1 V OL N O. 2 j a n ua ry 2 3, PITTSBURGH LEGAL JOURNAL OPINIONS a l l e g h e n y c o u n t y c o u rt of c o m m o n p l e as Commonwealth of Pennsylvania v. Cody Caterino, Ignelzi, J....Page 17 Criminal Appeal Ineffective Assistance of Counsel Weight of the Evidence Waiver of Right to Jury Trial Failure to Consult With Client Re: Recusal of Trial Court Harmless Error Credibility of Witnesses Witness for defendant being related to judge s secretary, which was explained to defense counsel but not to defendant, did not prejudice defendant and was not a basis for recusal. Commonwealth of Pennsylvania v. Dajon Smith, Lazzara, J....Page 22 Criminal Appeal Suppression Sentence (Discretionary Aspects) Forced Abandonment Reasonable Suspicion Mere encounter not requiring suspicion where defendant known to police, located in high crime area, looked nervous and reached toward waistband Commonwealth of Pennsylvania v. Michael Johns, Lazzara, J....Page 24 Criminal Appeal Sentencing (Discretionary Aspects) Evidence Sufficiency Sentencing (Legality) POSS/PWID Motion to Sever Charges Expert Testimony Insurance Fraud RRRI Police Officer an Aggravating Factor at Sentencing Former police officer engaged in pattern of criminal activity including lying on police reports and helping informants to obtain drugs Commonwealth of Pennsylvania v. Sharon Lynn Corona, Bigley, J....Page 29 Criminal Appeal Suppression Commonwealth Appeal Improper Seizure Police car that pulls up next to legally parked vehicle in parking lot engages in more than mere encounter and must have reasonable suspicion for seizure. Commonwealth of Pennsylvania v. Gerald Paul Kruth, Borkowski, J....Page 31 Criminal Appeal Waiver Summary Harassment Denial of Right to Summary Appeal Judge Sitting as a Magistrate Failure to Comply with Pa.R.A.P Trial court finds all issues are waived due to appellant s failure to concisely identify issues to be raised on appeal, in violation of Rule Commonwealth of Pennsylvania v. Sean Christopher Pappert, McDaniel, J....Page 32 Criminal Appeal Probation Revocation Sentencing (Discretionary Aspects) Child Pornography Validity of Revocation Failing therapeutic polygraphs constitutes a violation of a sex offender s probation
2 PLJ The Pittsburgh Legal Journal Opinions are published fortnightly by the Allegheny County Bar Association 400 Koppers Building Pittsburgh, Pennsylvania Allegheny County Bar Association 2015 Circulation 6,004 PLJ EDITORIAL STAFF Hal D. Coffey...Editor-in-Chief and Chairman Jennifer A. Pulice...Editor David A. Blaner...Supervising Editor Sharon Antill...Typesetter/Layout OPINION SELECTION POLICY Opinions selected for publication are based upon precedential value or clarification of the law. Opinions are selected by the Opinion Editor and/or committees in a specific practice area. An opinion may also be published upon the specific request of a judge. Opinions deemed appropriate for publication are not disqualified because of the identity, profession or community status of the litigant. All opinions submitted to the PLJ are printed as they are received and will only be disqualified or altered by Order of Court. OPINIONS The Pittsburgh Legal Journal provides the ACBA members with timely, precedent-setting, full text opinions, from various divisions of the Court of Common Pleas. These opinions can be viewed in a searchable format on the ACBA website, section EditorS Civil Litigation: Craig L. Fishman Criminal Litigation: Victoria Vidt Family Division: Reid Roberts Probate and Trust: Mark Reardon Real Property: Ken Yarsky Civil litigation opinions committee Christopher Channel Erin Hamilton Cecelia Dickson Austin Henry Joseph Froetschel William Labovitz John Gisleson Scott Leah Criminal litigation opinions committee Jesse Chen Anne Marie Mancuso Marc Daffner Patrick Nightingale Sharon Dougherty James Paulick Mark Fiorilli Melissa Shenkel Deputy D.A. Dan Fitzsimmons Dan Spanovich William Kaczynski Victoria Vidt family law opinions committee Reid B. Roberts, Chair Sophia P. Paul Mark Alberts David S. Pollock Christine Gale Sharon M. Profeta Mark Greenblatt Hilary A. Spatz Margaret P. Joy Mike Steger Patricia G. Miller William L. Steiner Sally R. Miller
3 j a n ua ry 2 3, pa g e 1 7 Commonwealth of Pennsylvania v. Cody Caterino Criminal Appeal Ineffective Assistance of Counsel Weight of the Evidence Waiver of Right to Jury Trial Failure to Consult With Client Re: Recusal of Trial Court Harmless Error Credibility of Witnesses Witness for defendant being related to judge s secretary, which was explained to defense counsel but not to defendant, did not prejudice defendant and was not a basis for recusal. No In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Ignelzi, J. September 29, OPINION This is an Appeal from an Order of Sentence dated September 17, 2013, which followed a May 13, 2013 Bench Trial in front of this Court. The Defendant, Cody Caterino Defendant was found guilty of Burglary (18 Pa. C.S. 3502(c)(l), Conspiracy- Burglary (18 Pa. C.S. 903(c), Robbery- Serious Bodily Injury (18 Pa. C.S. 3701(a)(1)(ii), and Conspiracy-Robbery (18 Pa. C.S. 903(c). Defendant was sentenced to two (2) years and nine (9) months to six (6) years imprisonment followed by a five (5) year term of probation for Burglary, and a consecutive two (2) years and nine (9) months to six (6) years imprisonment followed by a five (5) year term of probation for Robbery-Serious Bodily Injury. No further penalties were imposed as to the remaining counts. On September 24, 2013, Defendant filed a Pro Se Post Sentence Motion. This Court then appointed the Office of the Public Defender to represent the Defendant. Supplemental Post Sentence Motions were filed by Public Defender, Susan Swan, on February 4, The Motions were DENIED by this Court on February 7, Defendant filed a timely Notice of Appeal to the Superior Court of Pennsylvania on March 4, On July 2, 2014, Defendant through Counsel timely filed a Rule 1925(b) Statement of Errors Complained of on Appeal. For the reasons set forth below, the Order of this Court denying the Defendant s Post Sentence Motion was not in error and should be affirmed. HISTORY OF THE CASE The testimony in this is summarized as follows. On April 25, 2012, the alleged victim, Alexis Hardesty resided at 2343 Eldridge Street in Squirrel Hill with her mother and her boyfriend. (Trial Transcript T.T. dated May 13, 2013 at p. 8). There are three floors on this residence; when you enter the home there is a living room, dining room and kitchen; upstairs there is a bathroom and two bedrooms; and on the third floor there is a third bedroom in the attic. T.T. at p. 9. Ms. Hardesty was home alone in the third floor bedroom at approximately 7:30 P.M. on April 25, T.T. at p. 9. As Ms. Hardesty was watching a movie she heard two male voices downstairs. T.T. at p. 10. She assumed that the voices were coming from her boyfriend and his friend. T.T. at p. 10. Then the voices lowered to a whisper as she heard them come up the stairs to the third floor. T.T. at p. 10. Ms. Hardesty was sitting on her bed when she saw two males dressed in black at the top of the steps, wearing knit hats and something covering part of their face. T.T. at p.p. 10 & 11. Ms. Hardesty could see the area around the bridge of Defendant s nose, his eyes and part of his forehead. T.T. at p. 11. The Defendant then approached Ms. Hardesty asked where her boyfriend s stuff was. T.T. at p. 13. The Defendant was standing right in front of Ms. Hardesty and the other man was beside her when the Defendant pulled out a gun. T.T. at p. 13. At this time Ms. Hardesty realized that the man was Defendant, Cody Caterino. T.T. at p. 19. Defendant was less than five (5) feet away from Ms. Hardesty when he told her to get down. T.T. at p. 14. According to Ms. Hardesty she said No and Defendant proceeded to push her onto her bed and put the gun to her head. T.T. at p. 14. Ms. Hardesty was facing him and told him she knew who he was, and asked him to stop. T.T. at p. 15. Again, Ms. Hardesty testified that as they were face to face she realized he was Cody Caterino, the Defendant. T.T. at p. 26. Ms. Hardesty stated she recognized the Defendant because of her knowledge of him from High School with his distinct crooked nose and voice. T.T. at p. 15. Defendant testified that he had surgery on his nose a few weeks after graduation, approximately a year before this Robbery. T.T. at p.p. 81 & 82. However, in her closing, Assistant District Attorney, Carroll pointed out that the photo-array admitted into evidence exhibits a pretty distinctive bend in Defendant s nose. T.T. at p. 97. During the assault, the other man was grabbing money and marijuana that they were stealing. T.T. at p. 16. This entire event occurred within approximately fifteen (15) minutes. T.T. at p. 16. As this assault and robbery was occurring, Ms. Hardesty repeatedly told Defendant that she knew who he was and to stop. T.T. at p. 17. Defendant pulled the cover over her face and pushed the gun harder to her head. T.T. at p. 17. At that time, Ms. Hardesty was afraid to tell Defendant that she knew he was Cody Caterino, because she thought he may kill her. T.T. at p. 17. Ms. Hardesty heard the other man state that he got it, and then Defendant got off of Ms. Hardesty. T.T. at p. 17. She ripped the blanket from over her head and Defendant and the other man were already down the steps. T.T. at p.p. 17 & 18. When the Police arrived to take the report, she told them that she was 110% sure that the one man was Cody Caterino. T.T. at p. 20. The day after the Robbery, Ms. Hardesty spoke with Police and again stated that she knew the one male to be the Defendant. T.T. at p. 21. On a separate occasion, Ms. Hardesty spoke with Officer Gray, and again stated that she knew Defendant from High School. T.T. at p. 64. Ms. Hardesty told Officer Gray that as events went on during the Robbery, she was positive that it was the Defendant, Cody Caterino. T.T. at p. 65. Subsequently, Ms. Hardesty picked Defendant, Cody Caterino, out of an array and she was very adamant that it was him. T.T. at p. 66. Confronted, Ms. Hardesty told the Officers that she had a class with a girlfriend of the Defendant in her junior year of High School. T.T. at p. 37. She stated Defendant never spoke to her in High School, however, she over heard conversations between Defendant and his girlfriend, and could hear his voice. T.T. at p.p. 37 & 50. Ms. Hardesty admitted that she smoked a very tiny amount of marijuana prior to the Robbery, but denied any other use of drugs or alcohol. T.T. at p.p. 23 & 24. Ms. Hardesty also admitted that her boyfriend was selling marijuana. T.T. at p. 24. Officer Mertel testified that Ms. Hardesty stated that there were a couple of the mason jars with weed inside, two pairs of earrings, and approximately four thousand dollars in cash stolen by the two males. T.T. at p. 53 & 57. Ms. Hardesty testified she told the Officers that the males went through her jewelry, but wasn t sure if anything was missing. T.T. at p. 31 & 32. Ms. Hardesty testified that she spoke with her boyfriend immediately after this incident and he told her he was calling the Police. T.T. at p. 41. Ms. Hardesty testified that it was her decision to take the remaining marijuana, etc., to the car because two people had just broken into her home, and she was afraid that they would return. T.T. at p. 41 & 42. Subsequently, the Police went
4 pa g e 1 8 v olum e n o. 2 into the vehicle and found the items in the car. T.T. at p. 44. Officer Mertel testified she was instructed by her boyfriend to remove the drugs, some scales and baggies and to place them in the trunk of the car before the Police arrived. T.T. at p. 58. Both she and boyfriend were criminally charged. However, prior to the Hearing all charges were dismissed. T.T. at p. 44. Ms. Hardesty stated she was never told if she testifies against Defendant that the charges filed against her would be withdrawn. T.T. at p. 45 & 46. Indeed, at the Preliminary Hearing, the Officers failed to appear. T.T. at p. 46. Prior to commencement of the Non-Jury Trial on May 13, 2013, this Court called Counsel to sidebar. T.T. at p. 2. The Court inquired if there is a Police Officer in this case by the name of Rodney Steele. ADA Carroll informed the Judge that he is a character witness for the defense. Defense Counsel stated: A character witness. That s all. Id. The Judge disclosed to Counsel that his secretary just informed him she was related to Mr. Steele. Defense Counsel Wymard said he was going to call him, but if that creates a problem, he doesn t have to. ADA Carroll indicated she did not have an issue with it. Id. The Court then stated to ADA Carroll and Defense Counsel Wymard it would not affect him one way or the other if the witness was related to his secretary. It s up to you. T.T. at p. 3. Defense Counsel elected to proceed with the Jury Trial waiver colloquy without discussing the sidebar matter with Defendant. The Court next conducted an extensive on the record colloquy, including the essential elements of a Trial. The Defendant further signed a written waiver of his right to a Jury Trial Form dated May 13, T.T. at p.p At the Sentencing Hearing on September 17, 2013, an oral Motion for Extraordinary Relief was sought by new Defense Counsel, Lee Rothman. He called previous Defense Counsel, James Wymard to testify. Attorney Wymard testified that there was a sidebar immediately prior to the beginning of the Bench Trial. (Sentencing Transcript S.T. dated September 17, 2013, at p. 8). The Judge disclosed to both Defense Counsel and Counsel for the Commonwealth that it came to his attention that a possible character witness being called by the Defense, Rodney Steele was somehow related to his secretary. S.T. at p. 8. The Judge further indicated that if either side wanted to say or do anything they had that option. Attorney Wymard indicated he had no problem proceeding. S.T. at p. 11. The Judge stated that the relationship between Rodney Steele, a possible character witness for the Defense, and his secretary would not affect his ruling one way or another. T.T. at p. 3. Attorney Wymard admitted that he did not relay this information to Defendant, nor did Defendant inquire about the sidebar conversation. S.T. at p. 15. Defendant testified that if he would have known that information, he would have changed his mind because he would not want the Judge to make a decision in an uncomfortable situation, regardless of whether it was in his favor or the Commonwealth s favor. S.T. at p. 17. Knowing that information, Defendant indicated he would have requested a Jury Trial. S.T. at p. 19. The Judge advised both parties of the relationship. S.T. at p. 19. Further, the Court stated that this knowledge of the relationship would not impede the Court s ability to render a verdict and just verdict in this case. S.T. at p. 27. ERRORS COMPLAINED OF ON APPEAL The Concise Statement raises the following issues on Appeal: I. Did the Lower Court abuse its discretion in denying Mr. Caterino a New Trial based on Trial Counsel s failure to consult with his client, Cody Caterino, with regard to whether to request the Trial Judge to recuse himself, or to request a Jury Trial on the grounds that one of Mr. Caterino s character witnesses, Rodney Steele was a relative of the Judge s secretary? II. Did Defendant not enter a knowing and voluntary waiver of his right to a Jury Trial? III. Does Mr. Caterino s claim of Trial Counsel s ineffectiveness warrant exceptional treatment to allow the Appellate Court to conduct a unitary review of this claim at this stage of the proceedings pursuant to Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)? IV. Were the guilty verdicts in this case contrary to the weight of the evidence? ANALYSIS - I An abuse of discretion is not a mere error in judgment, but, rather, involves bias, ill-will, partiality, prejudice, manifest unreasonableness or misapplication of law. Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa. Super. 2011). The lower Court did not abuse its discretion denying Defendant a new Trial, and Defendant clearly entered a knowing and voluntary waiver of his right to a Jury Trial. It is this Court s position that the Trial Judge s awareness that one of Defendant s Character witnesses was somehow related to his secretary was not grounds for recusal of the Trial Judge in a Non-Jury Trial. The Trial Judge is presumed to be capable of disregarding improper evidence and there was no evidence that the Judge was biased or partial. See Commonwealth v. Irwin, 639 A.2d 52 (Pa. Super. 1994). The applicable sections of the Code of Judicial Conduct, Canon 3, Subsection C, including amendments received through December 15, 2013, is stated as follows: C. Disqualification (1) Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) they have a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding... The new Code of Judicial Conduct of May 2014, Subsection 2.11, adopted January 8, 2014, effective July 1, 2014 states in pertinent part as follows: 2.11 Disqualification (A) A judge shall disqualify himself or herself in any proceeding in which the judge s impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge had a personal bias or prejudice concerning a party or party s lawyer, or personal knowledge of facts that are in dispute in the proceeding...
5 j a n ua ry 2 3, pa g e 1 9 More importantly, Comment  to 2.11 states the following:  A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification. This is precisely what the Court did in the instant matter. It disclosed to Counsel at sidebar that the Judge just became aware that a character witness for the Defendant was in some way related to his secretary. The Court then stated on the record it would not affect his judgment one way or the other. T.T. at p. 3. It would not impede his ability to render a just verdict in this case. S.T. at p. 27. The Court s position was clearly stated, namely it would judge and assess the credibility of the character witness in question the same as any other character witness. The fact the character witness was related to the Court s secretary would not affect how the Court assessed the credibility, believability and effect of the character witness s testimony. The character witness was not known by or related to the Judge. The Judge did not have any conversations with the character witness, did not obtain personal knowledge of any facts in dispute and had no personal bias or prejudice concerning the Defendant. The defense further called two other character witnesses at Trial, who testified to the exact character traits as character witness Rodney Steele. T.T. at p.p Accordingly, even if the Court somehow judged Rodney Steele s testimony differently, which it did not, the Defendant was not prejudiced because other character witnesses testified. This Court further believes even if Defense Counsel Wymard had disclosed the sidebar conversation to Defendant, it would not have made a difference. A party seeking recusal of the Trial Judge bears the burden of establishing the grounds for recusal. Commonwealth v. Gibson, 567 A. 2d, 724, 727 (Pa. Super. 1989). This was not a basis for disqualification. Notwithstanding the fact that Defendant failed to meet his burden for recusal in the case at hand, this Court sets forth it has long been held that Trial Judges sitting as fact finders, are presumed to ignore prejudicial evidence in reaching a verdict. Commonwealth v. Brown, 486 A.2d, 441 (Pa. Super. 1985). It is also presumed that a Trial Judge is capable of recognizing in himself the symptoms of bias and impartiality. Our Supreme Court stated in Reilly.By Reilly v. Southeastern Pa. Transportation, 489 A. 2d 1291, 1299 (Pa. 1985): If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion. As such, if a question of recusal is made, either on motion or sua sponte, it is best answered by the trial judge himself. This Trial Judge set forth on the record the fact a character witness was related to his secretary would not affect his ability to render a fair verdict. Accordingly, no grounds for recusal existed, this Court was unbiased and impartial, and no abuse of discretion occurred. Defendant argues in the alternative that even if this was not a basis for recusal, he would have at a minimum, requested a Jury Trial. In support of this argument, the Defendant states For example, Mr. Caterino was not given the chance to consider the possibility that the Judge would not want to be seen as biased in his favor due to the relationship in question. At the furthest extreme, Defendant s argument suggest the Court rendered a guilty verdict against Defendant because the Court did not want to appear biased in favor of Defendant. It would be a violation of this Court s oath to render such a verdict. No such verdict was rendered in this case. A more logical interpretation of Defendant s argument is the Court discounted the testimony of character witness, Rodney Steele, or assessed his credibility differently from the other two character witnesses so as to not appear biased toward Defendant, and in favor of the Commonwealth. As previously stated, this also did not occur. ANALYSIS - II With regard to whether the Defendant entered a knowing and voluntary waiver of his right to a Jury Trial, even though he was not informed of the sidebar conversation between the Judge and Counsel, it is beyond peradventure the Defendant s waiver is valid. There is not dispute there is nothing of record indicating Attorney Wymard informed the Defendant regarding the discussion between the Court and lawyers at the bench regarding the Court s disclosure. There is also no dispute it cannot be discerned in the record why Attorney Wymard did not disclose or discuss this matter with the Defendant. Obviously, two explanations are available either Attorney Wymard intentionally or purposefully failed to disclose, or inadvertently, mistakenly failed to disclose. A review of Attorney Wymard s statements and testimony suggest his actions were intentional and deliberate and further suggest his actions were legitimate trial strategy, which would not require disclosure and/or consultation with the Defendant. When the Court made the disclosure, the Court asked I mean are your calling Steele. T.T. p. 2 at L. 21. Attorney Wymard immediately responded without advising or consulting the Defendant I was going to call him. If that creates a problem, I don t have to. Id. at L At the Sentencing Hearing, Attorney Wymard recounted his recollection of the sidebar discussion stating, All I said was, well if the Court has a problem with it I don t have to call him and I don t know what the Court s reaction to that was. I think the Judge said well it was your call and I elected to call him. S.T. at p. 13, L. 2-5 (emphasis added). Unequivocally, Attorney Wymard implemented the trial strategy he believed was appropriate. Defense Counsel realized it was only a defense character witness; he had two other defense character witnesses to call; the Judge did not obtain any knowledge of the facts in dispute; the Judge did not know or speak to the Defendant s character witness; the Judge had no bias or prejudice regarding the Defendant; and the Judge clearly stated his judgment would not be affected one way or the other. Defense Counsel admitted during his testimony any prejudice inured to the Commonwealth stating: Quite frankly, my read on it at this point was he was really letting Ms. Carroll and the prosecution be aware of the fact that one of my witnesses that a member of his staff knew one of my witnesses, you know, for them to decide what to do. S.T. at p. 11, L Defendant now claims his Trial Counsel was ineffective for failing to disclose the sidebar conversation to him prior to his waiver of a Jury Trial and, had he known the information he would not have waived his right to a Jury Trial. It must be reiterated that the information the Judge relayed to Counsel at sidebar was only that the Judge just became aware that a character witness for the Defense, Rodney Steele, was somehow related to the Judge s secretary. That was all the Judge knew. Nothing more. If anyone should have felt prejudiced by this information, it would have been the prosecuting attorney. However, she did not have a problem with the Judge deciding this case in a Bench Trial. She did not seek recusal of the Judge. At the Hearing for extraordinary relief pursuant to Pa.R.Crim. P. 704 (B), the only basis stated for alleging the defendant did
6 pa g e 2 0 v olum e n o. 2 not enter a knowing and voluntary waiver of his right to a Jury Trial was Defense Counsel s failure to inform the Defendant of the character witness issue raised by the Court at sidebar. S.T. at p. 4, L. 21 through p. 6 L. 14. Defendant contends, as he testified at his Hearing as follows: I believe if I would have known that prior to waiving my nonjury trial right, I would have changed my mind based on the fact that I wouldn t want Your Honor here to make a decision in an uncomfortable situation regardless of whether it was in my favor or their favor. I wouldn t want the Judge to make a decision in an uncomfortable situation. S.T. at p. 17, L The gravamen of Defendant s allegation is his Trial Counsel was ineffective. This ineffectiveness was Trial Counsel failing to disclose Trial Counsel s strategy to have the character witness testify notwithstanding the Court s disclosure. Defense Counsel s actions were legitimate trial strategy. Defense Counsel is not required to disclose or consult with their client on every facet of trial strategy. Failure to do so does not render a Defendant s waiver of Jury Trial null and void because it was not knowingly and voluntarily waived. Each facet of trial strategy does not have to be approved by the client. Obviously, after a defendant is displeased with a Non-Jury verdict, he or she can raise many instances of trial strategy, which were not discussed or consulted before implemented by Trial Counsel. In essence the Defendant has Buyer s Remorse for proceeding with a Non-Jury Trial and waiving his right to Jury Trial. The Defendant s allegations do not constitute an improper waiver of the Defendant s right to a Jury Trial. It is a well settled in Pennsylvania Law that Counsel is presumed effective, and to rebut that presumption petitioner must demonstrate that Counsel s performance was deficient and that such deficiency prejudiced him. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). If a petitioner fails to prove any of these prongs, his claim fails. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted). Generally, counsel s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client s interests. See, Ali, supra. Where matters of strategy and tactics are concerned, [a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater that the course actually pursued. Colavita, 993 A.2d at 887. To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceedings would have been different. Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). [A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding. Ali, 10 A.3d at 291. It is, of course, firmly embedded within our system of criminal justice that certain decisions during trial are within the exclusive province of counsel. Commonwealth v. McGrogan, 297 A.2d 456 (Pa. 1972). For instance, in the seminal case of Henry v. Mississippi, 379 U.S. 443, (1965), the United States Supreme Court acknowledged that the decision of whether to contemporaneously object to admission of evidence was one calling for the expertise and experience of counsel, and that a failure to object at trial may constitute a deliberate bypass precluding the defendant from obtaining relief in the federal courts. Id. at As Judge Lumbard noted in the United States ex rel. Cruz v. LaVallee, 448 F.2d 671, 679 (2nd Cir. 1971): The Supreme Court stated in Henry v. Mississippi that the deliberate bypassing by counsel of the contemporaneousobjection rule as a part of trial strategy would have (the) effect of precluding the defendant from later asserting constitutional claims, even where the trial strategy was adopted by counsel without prior consultation with the defendant. 379 U.S. at A lawyer must be able to determine questions of strategy during trial; and unless there are exceptional circumstances or unless the lawyer is so incompetent as to deprive the defendant of the right to effective assistance of counsel, his decision regarding trial strategy must be binding. (Citations omitted) (Footnote omitted). Id. at p. 679 The ABA Standards for Criminal Justice urge that (t)he lawyer should seek to maintain a cooperative relationship at all stages, While maintaining also the ultimate choice and responsibility for the progeny of Henry, as well as decisional law predating Henry, have delineated the type of strategic and tactical decisions which must be exercised by defense counsel alone. Courts have held that such tactical decisions as whether to make a summation, whether to request instructions, whether to make a motion for change of venue, whether to challenge hearsay statements, and many others are decisions to be made by defense counsel. McGrogan, 297 A.2d at p. 9. Counsel s trial strategy and/or inaction in not informing Defendant of the sidebar conversation in no way prejudiced the Defendant. This was exactly the type of tactical decision that must be exercised by counsel alone. After a thorough review of the evidence adduced at Trial, it is quite apparent the outcome of the proceeding would remain the same whether or not Defendant knew that one of his own character witnesses may be related to the Judge s secretary. The victim in this case provided an overwhelmingly positive identification of Cody Caterino/Defendant as one of the two perpetrators who attacked her. As such, Counsel had no obligation to disclose the information to the Defendant, and he properly told the Judge to proceed Non- Jury as previously planned. The waiver of jury colloquy occurred next, which proceeded after the disclosure by the Court and Defendant s Counsel decision, was a knowing and voluntary waiver of Defendant s right to a Jury Trial. A criminal Defendant is entitled to waive his right to a jury trial and elect to be tried by a judge without a jury. Pa.R.Crim. P For a waiver to be valid, it must be an intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards. Commonwealth v. Hayes, 596 A. 2d, 874, 876 (Pa. Super. 1991), quoting Commonwealth v. Quarles, 456 A.2d 188, 191 (Pa. Super. 1983). All necessary requirements for a knowing and intelligent waiver of a jury trial are present if the trial court conducts an on the record colloquy, including the essential elements of a trial, and the Defendant has signed a written waiver. Commonwealth v. Miguel, 598 A.2d 71 (Pa. Super. 1991). This is precisely the scenario that occurred in the instant case. Therefore, Defendant, Caterino s waiver of right to a jury trial is valid. No abuse of discretion occurred.
7 j a n ua ry 2 3, pa g e 2 1 ANALYSIS - III Defendant s claim of trial counsel s ineffectiveness does not warrant exceptional treatment that would allow the Appellate Court to conduct a unitary review of this claim under Commonwealth v. Holmes, 79 A. 3d 562 (Pa. 2013). Based upon the following Pennsylvania case law, Defendant s claims of ineffective assistance of Counsel are not reviewable on direct appeal under Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003); should be deferred to collateral review (PCRA) under the general rule of Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002); and cannot be deemed reviewable on direct appeal because the claim was not accompanied by a an express, knowing and voluntary waiver of PCRA review as set forth in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). In addition, in Commonwealth v. Wright, 961 A. 2d 119, (Pa. 2008), Mr. Justice Eakin noted that, Prolix Collateral claims should not be reviewed on Post-Verdict Motions unless the defendant waives his right to PCRA review, because the PCRA does not afford the right to two collateral attacks. Id. at 148. Consistent with Holmes, the Defendant s claims do not rise to the level of extraordinary circumstances, and this Trial Court correctly exercised it s discretion in determining the claim of ineffective assistance of counsel has no merit and immediate relief is not warranted. See Holmes, Supra. at p In the present case, Defendant claims that if his Counsel would have informed him of the conversation at sidebar, he would not have waived his right to a Jury Trial. It has been established in the Motion for Extraordinary Relief that his Counsel, James Wymard, did not inform him of the fact that one of Defendant s character witnesses was related to the Judge s secretary. However, the Judge made it abundantly clear on the record that this information would not affect his judgment one way or the other. He further stated he was just apprised of this relationship. Therefore, not seeking a recusal did not rise to the level of ineffective assistance of counsel. Moreover, the Defendant simply stated that had he known this information, he would have requested a Jury Trial, because he wouldn t want the Judge to make a decision in an uncomfortable situation, regardless if it was in his favor or Commonwealth s favor. S.T. at p. 17. The Judge made sure Counsel understood it would not affect him in any way. The Court was not in an uncomfortable situation at all. In addition, this vague statement is insufficient to support a finding of prejudice relative to an ineffectiveness of assistance of counsel claim. In order for a defendant to obtain relief based on ineffective assistance of counsel, the Defendant must show: The underlying legal claim has arguable merit; Counsel had no reasonable basis for his or her action or in-action; and the Petitioner suffered prejudice because of Counsel s ineffectiveness. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). A Petitioner establishes prejudice when he demonstrates that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Commonwealth v. Tedford, 960 A.2d 1112 (Pa. 2008). In a claim of ineffective assistance of counsel, prejudice is determined by an evaluation of whether, but for the arguably ineffective act or omission, there is a reasonable probability that the results would have been different. Commonwealth v. Petras, 534 A.2d, 483, 485 (Pa. Super. 1987). In the instant case, Defendant, Caterino failed to establish: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his in-action; and, (3) he suffered prejudice because of counsel s ineffectiveness. At most, defense Counsel s failure to inform Defendant of the sidebar conversation wherein the Judge was just informed that a character witness for Defendant was related to the Judge s secretary, amounts to harmless error. The Court made it completely clear that the information would not affect his judgment one way or the other. Additionally, the Defendant called other character witnesses who testified to the same character traits as the character witness, Rodney Steele. T.T. at p.p This is not a situation where the only character witness called by the Defendant was not properly evaluated by the trier of fact. Error is harmless where it did not prejudice the Defendant or prejudice was de minimus. Any alleged error would have been so insignificant by comparison that error could not have contributed to verdict. Commonwealth v. Groson, 670 A.2d 680 (Pa. Super. 1996). The Judge did not acquire any knowledge about the Defendant prior to Trial, much less any prejudicial knowledge. The Judge s only knowledge was that a character witness for the defense was some how related to his secretary. There is no merit to Defendant s claim that his Counsel s in-action constituted ineffective assistance of counsel. Counsel will not be deemed inept for failing to do a meritless act. See Irwin, Supra. Defendant did not expressly waive his PCRA rights, and no extraordinary circumstances exist. ANALYSIS - IV. A challenge to the verdict on the theory that it was against the weight of the evidence must establish that the verdict was so contrary to the evidence that it shocks one s sense of justice and makes a new Trial imperative. Commonwealth v. Butler, 647 A.2d 92, (Pa. Super. 1994). The decision to allow a new Trial is within the discretion of the Trial Judge and will not be disturbed absent an abuse of discretion. Butler, Supra. The credibility of a witness and the weight evidence are determinations that lie solely with the trier of fact, and the trier of fact is free to believe all, part or none of the evidence. Commonwealth v. Williams, 854 A.2d 440, 445 (Pa. 2004). Reassessment of the credibility of the witness is generally not proper in reviewing weight claims. Commonwealth v. Manly, 985 A.2d 256, 261 (Pa. Super. 2009). An Appellate Court cannot substitute its judgment for that of the fact finder. Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001). This Court was the finder of facts. It judged the credibility of Ms. Hardesty s testimony and found her credible. Ms. Hardesty testified that when Defendant and her were faced to face she realized it was Cody Caterino. T.T. at p. 15. Ms. Hardesty did not have classes with Defendant, however, he would visit a classmate of hers in her homeroom. T.T. at p. 37. Ms. Hardesty overheard conversations they had in their homeroom. T.T. at p. 50. Detective Gray corroborated that Ms. Hardesty told him she had homeroom with Defendant s girlfriend, as she had explained in Court. T.T. at p. 76. Ms. Hardesty told numerous Officers involved in the investigation she was positive that one of the perpetrators was Cody Caterino. She indicated that she recognized not only his voice, but his crooked nose. Ms. Hardesty stated that she was more than 100% sure of her identification of Cody Caterino. Moreover, Ms. Hardesty picked Defendant out of a photo array and continued to be adamant that the perpetrator was the Defendant. Therefore, the Court concludes that the verdict is not against the weight of the evidence. The claim is without merit. CONCLUSION For the reasons set forth above, this Court committed no errors of law, and Defendant s Appeal should be DENIED. Dated: September 29, 2014 BY THE COURT: /s/ignelzi, J.
8 pa g e 2 2 v olum e n o. 2 Commonwealth of Pennsylvania v. Dajon Smith Criminal Appeal Suppression Sentence (Discretionary Aspects) Forced Abandonment Reasonable Suspicion Mere encounter not requiring suspicion where defendant known to police, located in high crime area, looked nervous and reached toward waistband No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Lazzara, J. October 1, OPINION This is an appeal from the sentence imposed following a jury trial that occurred between August 22, 2013 and August 23, Prior to the jury trial, this court heard evidence regarding a suppression motion filed by the Defendant. Following the hearing on June 19, 2013, this court denied the Defendant s Motion to Suppress. The jury trial was then conducted, and the jury in the case found the Defendant guilty of Carrying a Firearm Without a License (18 Pa.C.S.A. 6106(a)(1)), but found him not guilty of Possession of a Firearm with an Altered Manufacturer s Number. (18 Pa.C.S.A (a)). This court sentenced the Defendant on November 21, 2013 to a period of incarceration of thirty (30) to sixty (60) months, with credit for time served from November 17, 2012 until the day of sentencing, to be followed by a one (1) year period of probation. The court also imposed court costs on the Defendant. The incarceration portion of this sentence was squarely in the middle of the standard range of the sentencing guidelines. The Defendant filed Post-trial Motions in this matter, which were argued on February 7, The Defendant argued that his sentence was too harsh under the circumstances, and he requested that he be re-sentenced in the mitigated range of the guidelines. (T.R. 2/7/14, pp. 2-5). This court denied the Defendant s post-trial motions following the argument. (T.R. 2/7/14, p. 6). The Defendant filed a timely Notice of Appeal. He raises two (2) issues in his Statement of Matters Complained of on Appeal, namely, that this court (1) erred in denying his suppression motion and (2) abused its discretion in imposing its sentence. On November 11, 2012, Officer James Goss of the City of McKeesport Police Department, a ten (10) year officer, was patrolling in a marked patrol unit in the area of Two District within the city when he observed the Defendant and a second male. (T.R. 6/19/13, pp. 4-5, 6). This area of the City of McKeesport is a very high crime area, with the officer having handled five (5) homicides within a city block. (T.R. 6/19/13, pp. 9, 22, 26). Officer Goss had just turned onto 13th Street when he noticed the Defendant and the second individual walking towards him. (T.R. 6/19/13, p. 6). As his cruiser passed the men, he noticed them looking very nervously toward him. (T.R. 6/19/13, p. 6). He then saw the Defendant reach towards the center of the waistband of his pants with both hands as if to conceal something. (T.R. 6/19/13, pp. 6, 15). Officer Goss recognized the individual reaching for his waistband as the Defendant from prior encounters with him. (T.R. 6/19/13, p. 7, 20-21). The men continued to look at Officer Goss nervously even after he had passed them. (T.R. 6/19/13, p. 6). Officer Goss made a right turn onto Jenny Lind Street, and then turned his car around to initiate contact with the Defendant. (T.R. 6/19/13, pp. 6, 9-10). He contacted a fellow officer, Officer Matthews, for back-up support as he proceeded back towards the Defendant. (T.R. 6/19/13, pp. 9-10, 20-21). Officer Goss parked his vehicle, exited it and began walking toward the Defendant and his companion, asking them to remove their hands from their pockets and place them behind their heads. (T.R. 6/19/13, p. 10). Officer Goss requested that the Defendant and his companion show their hands for officer safety. (T.R. 6/19/13, pp. 10, 21-22). He believed that the Defendant might be concealing a firearm due to a prior experience with him. (T.R. 6/19/13, pp. 11, 21-22). As he was requesting to see their hands, Officer Matthews was approaching the two (2) men from behind, on foot. (T.R. 6/19/13, pp ). The Defendant looked behind him nervously, toward Officer Matthews, who was in uniform and driving a marked police unit. (T.R. 6/19/13, pp. 11, 28). The Defendant then fled, with Officer Matthews giving chase. (T.R. 6/19/13, p. 11). The Defendant fled towards the Harrison Village area of the City of McKeesport, with Officer Matthews, a seven (7) year police veteran, giving chase. (T.R. 6/19/13, pp. 23, 24). Officer Matthews noticed that the Defendant was holding the right side of his pants waistband area as he fled. (T.R. 6/19/13, pp. 25, 27). As the Defendant ran between Buildings One (1) and Two (2) in Harrison Village, Officer Matthews saw him throw a silver firearm from his waistband. (T.R. 6/19/13, p, 24). Officer Matthews immediately stopped his pursuit and recovered a firearm from a dumpster. (T.R. 6/19/13, p. 25). It should be noted that there was no one else running near the Defendant when the officer observed the firearm being thrown. (T.R. 6/19/13, p. 25). The Defendant argues that this court erred in failing to suppress the evidence of the gun, claiming that the officers had neither reasonable suspicion nor probable cause to detain the Defendant. They also argue the doctrine of forced abandonment. (See Statement of Matters Complained of on Appeal, 11.I). The standard of review for assessing a trial court s denial of a suppression motion is limited to determining (1) whether the court s factual findings are supported by the record and (2) whether the trial court s legal conclusions based on the facts found by the court are correct. Com. v. Caban, 60 A.3d 120, 125 (Pa. Super. 2012). An appellate court is bound by the facts where the record supports the findings of the suppression court and may reverse only if the court erred in reaching its legal conclusions based on those facts. Com. v. Jones, 874 A.2d 108, 115 (Pa. Super. 2005). An appellate court is not bound by the legal conclusions of the trial court. Com. v. Thompson, 93 A.2d 478 (Pa. Super. 2014). The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect against unreasonable searches and seizures. U.S. Const. Amend. IV; Pa. Const. Art I, 8, Com. v. Cleckley, 738 A.2d 427, 433 (Pa. 1999). In determining whether a person has been seized by an interaction with the police, it is important to look to the type of encounter that was initiated by the police. In the Interest of D.M., 781 A.2d 1161 (Pa. 2001). Our Supreme Court has recognized three (3) types of encounters between the police and citizens: a mere encounter, an investigative detention, and a custodial interrogation. Com. v. Polo, 759 A.2d 372 (Pa. 2000). The first of these, a mere encounter (or request for information), which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an investigative detention must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or custodial detention must be supported by probable cause. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117 (1998).
9 j a n ua ry 2 3, pa g e 2 3 Polo, supra at 375. The Defendant alleges that Officer Goss initial contact with the Defendant, prior to his flight, was, at the very least, an investigative detention requiring reasonable suspicion. This court would initially note that it was Officer Goss intention at the time of his interaction with the Defendant to engage in a mere encounter. (T.R. 6/19/13, pp. 9, 10, 16-18). The question of whether there is reasonable suspicion is an objective test, based on the totality of the circumstances, not a subjective one. Com. v. Brown, 904 A.2d 925 (Pa. Super. 2006). However, while certainly not dispositive on the issue of whether reasonable suspicion existed at the time of contact with the Defendant, the officer s subject belief is a part of the totality of the circumstances. The uncontroverted testimony at the suppression hearing revealed that the officer parked his vehicle, exited it and approached the Defendant on foot. (T.R. 6/19/13, pp. 9, 20). There is no evidence on record that the officer had his weapon drawn as he approached the Defendant. Officer Goss did not order the Defendant to stop, and he did not tell the Defendant that he was not free to leave. (T.R. 6/19/13, p. 20). Rather, he requested that the Defendant reveal his hands for purposes of officer safety. (T.R. 6/19/13, pp. 10, 20). He made this reasonable request due to his belief that the Defendant might be armed, given his behavior when the officer first saw him, and because of the officer s prior knowledge of this Defendant, which included an incident involving firearms. (T.R. 6/19/13, pp. 10, 11-12, 21-22). There is no evidence that the officer used commanding language, yelled or raised his voice. On the contrary, the record indicates that the officer said please in his request for the Defendant to reveal his hands. (T.R. 6/19/13, p. 10). Based on the totality of the circumstances, this interaction was nothing more than a mere encounter, which the Defendant declined by fleeing the scene. Assuming there was no pre-flight seizure of the Defendant, the inquiry then turns to whether the officers were justified in their pursuit of the Defendant after his flight. Pursuit by officers after flight by the Defendant amounts to a seizure and, therefore, must be justified by either reasonable suspicion to stop and frisk or probable cause to actually effectuate a seizure. Com. v. Matos, 672 A.2d 769 (Pa. 1996). Our Supreme Court has concluded that unprovoked flight in a high crime area is sufficient to create reasonable suspicion to justify a stop and frisk. In the Interest of D.M., 781 A.2d 1161, 1164 (Pa. 2001). This is in keeping with United States Supreme Court precedent. Illinois v. Wardlow, 528 U.S. 119 (U.S. 2000). It is also required that the person fleeing be aware that he is, in fact, fleeing from the police. The common elements between Wardlow, Jefferson, D.M. II, and Brown are the incident took place in a high crime area and the suspect fled upon being confronted by the police or recognizing police presence in the immediate area. Com. v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012). In the instant case, both officers who testified at suppression indicated that the area of the stop of the Defendant was a high crime area. Officer Goss, who stated that the area was a very high crime area, testified to five (5) homicides in one block that he personally had contact with and countless violent incidences in the area. (T.R. 6/19/13, pp. 9, 18-19, 22). Officer Matthews also provided testimony which confirmed that the area of the stop was a high crime area. He stated that the area had open-air drug dealing and shootings. (T.R. 6/19/13, p. 26). While no objective data was presented to support the officers experiences with this area of McKeesport, this court is unaware of any case requiring such objective data. A review of the case law indicates that officer testimony is sufficient to support the assertion that a location is a high crime area. (See generally: D.M., supra; Com. v. Jefferson, 853 A.2d 404 (Pa. Super. 2004); Brown, supra). Here, the Defendant s flight was unprovoked. As was stated earlier, Officer Goss was merely walking toward the Defendant in a non-threatening manner, politely requesting that he be able to see the Defendant s hands. (T.R. 6/19/13, pp. 9-10, 20). While Officer Matthews was approaching from the opposite direction, there is no indication in the record that his approach of the Defendant was in any way threatening. In fact, Officer Matthews testified that the Defendant fled immediately after he exited his vehicle and started to approach the Defendant. (T.R. 6/19/13, pp. 24, 27). Both officers were wearing uniforms and driving marked police vehicles at the time of their encounter with the Defendant. (T.R. 6/19/13, pp. 6-7, 15, 28). Simply being approached by known police officers, who did not exhibit from their actions anything more than a desire to talk, is not provocation to flee. D.M., supra. It must be noted that, in addition to the Defendant s unprovoked flight in a high crime area, which under the case law is sufficient to create reasonable suspicion, as was previously cited, additional facts support that the officers had reasonable suspicion that criminal activity was occurring. Officer Goss testified that he saw the Defendant nervously reach for his waistband, which led him to believe that the Defendant was concealing a firearm. (T.R. 6/19/13, pp. 6, 11, 15, 21-22). The courts of Pennsylvania recognize that such a movement can justify or bolster greater police interaction with a citizen. Finally, if a suspect engages in hand movements that police know, based on their experience, are associated with the secreting of a weapon, those movements will buttress the legitimacy of a protective weapons search of the location where the hand movements occurred. In Interest of O.J., 958 A.2d 561 (Pa.Super.2008) (en banc). Com. v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) Additionally, Officer Goss was familiar with both the Defendant and his companion from prior incidents, and these prior incidents involved firearms. (T.R. 6/19/13, pp , 20-21). Given that the Defendant engaged in unprovoked flight from uniformed officers in a high crime area, coupled with Officer Goss prior knowledge that both the Defendant and his companion had incidents with firearms (T.R. 6/19/13, pp , 20-21), and that the Defendant s behavior that day was suggestive of a person concealing a firearm (T.R. 6/19/13, pp. 6, 11, 21), the totality of the circumstances indicate that there was reasonable suspicion to believe that criminal activity was afoot, that the officers were justified in their seizure of the Defendant by pursuing his flight, and that the officers could lawfully seize the gun discarded from him. The doctrine of forced abandonment, as contained in Matos, supra, and its progeny, is not applicable as an unlawful pursuit is contemplated in order to justify suppression of the discarded item. Here, the officers had reasonable suspicion at the time of the Defendant s flight and discarding of the gun. The pursuit of the Defendant was lawful. This court would note that, even if the appellate court should determine that the actions of Officer Goss rose to the level of investigative detention at the time of his initial approach of the Defendant, due to his request for the Defendant to place his hands on his head and the approach of Officer Matthews from behind, the record reflects sufficient facts to support that the officer had reasonable suspicion when he initially encountered the Defendant. Many of the same reasons that support a finding of reasonable suspicion after the Defendant s flight were, in fact, present at the time of the initial encounter. Officer Goss, as he approached
10 pa g e 2 4 v olum e n o. 2 the Defendant was aware of the Defendant s location in a high crime area (T.R. 6/19/13, pp. 9, 18-19, 22, 26), had observed him reach for his waistband as if concealing a firearm (T.R. 6/19/13, pp. 6, 11, 21), noted nervous behavior from both the Defendant and his companion (T.R. 6/19/13, p. 6), and was aware that the Defendant and his companion had previous incidents involving firearms. (T.R. 6/19/13, pp , 20-21). The fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. Com. v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010). Under the facts above, an objective review justifies that Officer Goss had reasonable suspicion at the time of his initial contact with the Defendant. This court did not err in denying the Defendant s suppression motion. The firearm in this case was not improperly seized. The Defendant s conviction and sentence should not be overturned on this basis. The Defendant s second allegation of error is that the court abused its discretion in sentencing the Defendant because it did not consider the rehabilitative needs of the Defendant or his personal factors and circumstances. However, this court had the benefit of a thorough presentence report and listened carefully to the statements of the Defendant and the mother of the Defendant s son prior to sentencing the Defendant. This court provided its thought process for the sentence on the record quite clearly when speaking to the Defendant during sentencing. (T.R. 11/21/13, pp. 6-11). Those reasons included the Defendant s prior criminal history (which included his plea to the same exact crime six (6) months prior to the charges in this case), his failure at community supervision (he committed the crime in this case less than two (2) months after he was released from jail on his previous case), the serious nature of the crime, and the lack of remorse of the Defendant. (T.R. 11/21/13, p. 8). Sentencing is a matter vested within the sound discretion of the sentencing judge and will not be disturbed on appeal absent a manifest abuse of discretion. Com. v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive. Com. v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 2003). An abuse of discretion is not merely shown by an error in judgment, but rather by establishing that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Mouzon, supra, at In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court s discretion, as the court is in the best position to measure factors such as the nature of the crime, the defendant s character, and the defendant s display of remorse, defiance or indifference. Com. v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Where an excessiveness claim is based on a court s sentencing outside of the standard guideline ranges, an appellate court looks, at a minimum, for an indication on the record that the sentencing court understood the suggested sentencing range. Com. v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). When the court so indicates, it may deviate from the guidelines to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the victim and the community, so long as the court also states the factual basis and specific reasons to deviate from the guidelines. Mouzon, supra, at Sentencing guidelines are merely advisory, and the sentencing court may sentence a defendant outside of the guidelines so long as it places its reasons for deviation on the record. Com. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). This court sentenced within the standard range of the guidelines for the crime of which the Defendant was convicted. In fact, the sentence was squarely in the middle of the standard range of the guidelines. The record clearly supports this court s sentence, especially when this was the Defendant s second conviction for the same charge within five (5) months. This court exercised its discretion when sentencing the Defendant, and that exercise of discretion should not be disturbed on appeal. Based on the foregoing, the jury verdict in this case and this court s sentence should be upheld. Date: October 1, 2014 BY THE COURT: /s/lazzara, J. Commonwealth of Pennsylvania v. Michael Johns Criminal Appeal Sentencing (Discretionary Aspects) Evidence Sufficiency Sentencing (Legality) POSS/PWID Motion to Sever Charges Expert Testimony Insurance Fraud RRRI Police Officer an Aggravating Factor at Sentencing Former police officer engaged in pattern of criminal activity including lying on police reports and helping informants to obtain drugs No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Lazzara, J. October 9, OPINION OF THE COURT The Defendant was charged by criminal information with the following offenses: Count 1 Criminal Attempt Insurance Fraud - 18 Pa. C.S. 901(A); Count 2 Manufacture or Delivery of a Controlled Substance - 35 P.S (A)(30); Count 3 Possession with Intent to Deliver Controlled Substance - 35 P.S (A)(30); Count 4 Possession of a Controlled Substance 35 P.S (A)(16);
11 j a n ua ry 2 3, pa g e 2 5 Count 5 Promoting Prostitution 18 Pa. C.S. 5902(B)(1); Count 6 Promoting Prostitution 18 Pa. C.S. 5902(B)(6); Count 7 Criminal Use of Communication Facility 18 Pa. C.S. 7512(A); Count 8 Obstruction of Administration of Law and Other Government Function 18 Pa. C.S. 5101; Count 9 False Reports 18 Pa. C.S. Pa C. S. 4906(B)(1); Count 10 Possession of a Controlled Substance 35 P.S (A)(32); Count 11 Possession of Drug Paraphernalia 35 P.S (A)(32) Count 12 Official Oppression 18 Pa. C. S. 5301(1); Count 13 Theft By Unlawful Taking 18 Pa. C/S 3921(A); Count 14 Receiving Stolen Property 18 Pa. 3925(A); Count 15 False Statement Under Penalty 18 Pa. C.S. 4904(B); Count 16 Conspiracy Possession With Intent to Manufacture or Delivery of a Controlled Substance 18 Pa. C. S. 903(C); and Count 17 Insurance Fraud 18 Pa. C. S. 4117(A)(2). 1 Prior to trial, the Defendant filed a Motion seeking to have the charges at Counts 12 through 15 severed from the remaining counts. This Motion was denied. The Defendant then proceeded to a jury trial, which occurred between May 7th and 14th, At the conclusion of the trial, the jury found the Defendant guilty at Counts 1, 2, 3, 4, 8, 9, 12 and 16. He was acquitted at the remaining counts. The Defendant appeared for sentencing on August 14, He was sentenced to consecutive periods of incarceration of not less than nine (9) nor more than eighteen (18) months at Counts 2 and 16. This court imposed periods of probation for the remaining charges on which the Defendant was convicted, including five (5) years of probation at Count 1 and two (2) years of probation at Counts 8 and Count 12, which were ordered to run consecutive to the five (5) year period of probation, but concurrent to one another. The Defendant filed a Post-Sentence Motion challenging the denial of his motion to sever, arguing that the evidence was not sufficient as to most counts and claiming that the sentence was excessive and an abuse of discretion. After argument on October 22, 2013, the Post-Sentence Motion was denied. Trial Counsel withdrew, and the Office of the Public Defender was appointed. No Notice of Appeal was filed following the denial of the Post-Sentence Motion. Defendant s new counsel filed a Post Conviction Relief Act (PCRA) Petition, alleging that trial counsel was ineffective for failing to file a timely appeal. Without objection from the Commonwealth, this court granted the Post Conviction Relief Act Petition and reinstated the Defendant s right to appeal. A Notice of Appeal was filed and, pursuant to this court s Order, a Concise Statement of Errors Complained of on Appeal was filed. In this Concise Statement, the Defendant identified the following claims of error that he intends to raise in the Superior Court: 1. The court erred in denying the Defendant s motion to sever the charges of unsworn falsification to law enforcement and of official oppression from the remaining charges; 2. The court erred in permitting the Commonwealth to present Keith Maceil as an expert regarding the cause of vehicular damage; 3. The trial court erred in permitting Pittsburgh Police Detective Michael Schopp to testify as to Pittsburgh Police Department common practices; 4. The evidence was insufficient to sustain the verdict of guilty on the charge of official oppression; 5. The evidence was insufficient to sustain the verdict of the charge of attempted insurance fraud; 6. The evidence was insufficient to sustain the verdict on the charge of possession with intent to deliver a controlled substance; 7. The evidence was insufficient to sustain the verdict as to the charge of delivery of a controlled substance; 8. The evidence was insufficient to sustain the verdict as to the charge of theft of the identification card; 2 9. The evidence was insufficient to sustain the verdict as to the charge of receipt of stolen property with regard to the ID card; The court erred when it imposed an illegal sentence upon the Defendant in that the sentence did not include a recidivism risk reduction in sentence; 11. The sentence imposed was manifestly excessive; 12. The court erred in failing to give proper weight to mitigating circumstances in determining the sentence; 13. The trial court erred in giving undue weight to aggravating circumstances with regard to sentencing; and 14. The court erred in considering the defendant s employment as a police officer as an aggravating circumstance. Turning first to the severance issue, the charges at Counts 12 through 15 arose out of the discovery, during the search of the Defendant s apartment following a controlled buy of narcotics involving the Defendant, of an ID card for a William D. Jackson. (N.T ). Mr. Jackson testified at trial that in 2008 the Defendant arrested him for disorderly conduct and public intoxication. (N.T ). The Defendant searched him, took his identification card and took him to the county jail where he remained overnight. (N.T ). After being released, Mr. Jackson pled guilty to the summary offenses. (N.T , ). Detective Michael Schopp testified that the procedures of the Pittsburgh Police Department regarding arrests for offenses graded
12 pa g e 2 6 v olum e n o. 2 as misdemeanors of the third degree provide that, unless the person was unable to provide a valid identification, the individual is to be charged by citation rather than taken into custody. (N.T ). Commonwealth Exhibit 14 included the Criminal Complaint and Affidavit of Probable Cause from Mr. Jackson s arrest. In that affidavit, the Defendant averred that Mr. Jackson did not have a valid ID and proffered that as the reason for the physical arrest rather than the issuance of a citation. (Com. Exhibit 14). In Commonwealth v. Collins, our Supreme Court reiterated the well-known test for deciding a motion to sever: (1)whether the evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, (3) whether the defendant will be unduly prejudiced by the consolidation of offenses. Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997). The decision whether to sever the charges is left in the sound discretion of the trial court, and that decision should not be disturbed on appeal absent showing a manifest abuse of that discretion. Commonwealth v. Presbury, 665 A2.d 825, (Pa. Super. 1995). This court did not abuse its discretion in refusing to sever the 2008 charges. The evidence of the Defendant s possession of William Jackson s identification card, and how he came to possess it, would have been admissible in a trial on the other charges. The ID card was found during the search of the Defendant s apartment. Paraphernalia for the ingestion and packaging of heroin was also found. (N.T ). Any evidence tending to demonstrate that a defendant resided in, or had control over, a residence where controlled substances or other contraband is found is relevant. The ID card of Mr. Jackson, standing alone, would not have been relevant. In fact, it could certainly have been used by the defense to argue that others had access to, or control over, the residence. The evidence explaining the Defendant s connection to that ID, and how it came to be in his possession, was relevant as indicia or proof of the Defendant s residency in the apartment. The evidence was also capable of being separated by the jury and was not likely to confuse them. Moreover, the Defendant suffered no prejudice in having the cases tried together. The Defendant next claims that the court erred in permitting Keith Maceil to testify as an expert regarding the cause of vehicular damage. The charge of Criminal Attempt- Insurance Fraud arose out of damage sustained by a vehicle that the Defendant rented. When the Defendant s vehicle was returned to the rental agency, it had substantial, observable damage. (N.T ). The rental agency advised the Defendant that the rental agency s insurance would not cover the damage. The Defendant then attempted to have his own insurance carrier, State Farm, cover the damage. In seeking coverage and making an insurance claim, the Defendant told the State Farm adjuster that he had parked the car on the street and, when he returned later, the vehicle was damaged. (N.T ; Com. Exhibit 15). David Borandi testified that he was driving the vehicle that the Defendant had rented when he got stuck in the mud and, as he attempted to free the vehicle, the vehicle struck a tree. (N.T ). Mr. Borandi and the Defendant spoke about the damage that Borandi had caused to the vehicle. (N.T , ). This evidence, if believed, establishes that the Defendant knew that the vehicle had not been damaged in a hit and run accident, but, rather, was damaged when it was being operated by a person not authorized by the rental agreement to do so. (N.T. 153). The Commonwealth also called Keith Maceil, the owner of the auto body business that repaired the damages to the rental vehicle, to testify at trial. (N.T. 209). Mr. Maceil was offered by the Commonwealth as an expert in the area of auto body repair. (N.T. 212). The Defendant objected to the proffer of Mr. Maceil as an expert, claiming that the witness was not properly qualified. This claim is wholly without merit. In order to qualify as an expert witness in a given field, a witness need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995). Thus, ordinarily, the test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. Id. at 528 (emphasis in original). Mr. Maceil testified that he has operated his own auto body repair business since 1988 and that he had worked for others before that. As this court stated when overruling the Defendant s objection, Expertise is not required to come from books and classes, but certainly from experience (N.T. 214). This witness had over twenty-five (25) years experience repairing damage to the bodies of automobiles. (N.T. 209). That experience provided him with the ability to offer an opinion as to the possible causes of the damage to the Defendant s rental vehicle. Clearly, Mr. Maceil possessed more expertise in this area than a person with ordinary training, knowledge, intelligence or experience. Next the Defendant complains that the court erred in permitting Detective Michael Schopp to testify that it was the policy of the Pittsburgh Police Department to issue citations for summary offenses, unless the person charged could not provide a valid ID. The Defendant objected on the basis that such testimony would constitute expert testimony. (N.T. 88). Such testimony is not, and was not, expert testimony. Detective Schopp was not offering his opinion; he was testifying to the fact that the Pittsburgh Police Department has a policy or routine practice of not taking persons into custody for minor offenses unless they cannot be identified. Evidence establishing the routine practice of an organization is admissible. Pa. R. Evid Detective Schopp s testimony regarding the routine practice of the Pittsburgh Police Department was clearly admissible. The Defendant has raised sufficiency of the evidence challenges to four (4) of the counts at which the jury returned guilty verdicts, namely, Counts 1, 2, 3, and 12. Before turning to these specific counts, the court would note that the well-established test for a challenge to the sufficiency of the evidence is whether the evidence, taken in a light favorable to the Commonwealth as verdict winner, establishes each and every element of the offenses charged beyond a reasonable doubt. Commonwealth v. Noel Matos Montalvo, 956 A.2d 926, 932 (Pa. 2008). The Commonwealth is entitled to all reasonable inferences from the evidence, and credibility determinations are the sole province of the finder of fact. A challenge to the credibility of a witness is not a basis for a claim that the evidence was insufficient. A jury is free to believe some, all or none of the testimony of any witness presented by either party and to accept or reject any evidence submitted by either party. Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007). The Defendant first contends, in his Statement of Matters Complained of on Appeal, that the evidence was insufficient as to the charge of Official Oppression, Count 12. The offense of Official Oppression requires proof that: A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he: (1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or
13 j a n ua ry 2 3, pa g e 2 7 (2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity. 18 Pa. C.S.A Thus, the elements that were required to be proven were: (1) that the Defendant was acting in his official capacity, or purported to be doing so, when he arrested William D. Jackson; 2) that he subjected Mr. Jackson to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights ; and, 3) that he did so knowing that his conduct was illegal. The first two (2) elements were not disputed at trial. Mr. Jackson was arrested by the Defendant acting in his official capacity as a police officer. That he did so knowing that it was illegal was established by the testimony of Mr. Jackson, who claimed to have given the officer his ID (N.T ), and the testimony of Detective Schopp regarding the policy of the City of Pittsburgh Police Department (N.T ), as well as the false statements made in the police report and affidavit of probable cause prepared by the Defendant. (Com. Exhibit 14). The verdict on this charge turned entirely on credibility. The Defendant claimed that Mr. Jackson never provided him with an ID (N.T ) at the time of his arrest, while Mr. Jackson claimed that he did. (N.T ). Obviously, the jury resolved this credibility determination against the Defendant. The jurors apparently believed Mr. Jackson, given the conviction on the charge, which meant that they believed that the Defendant took the ID, lied in the police report and affidavit of probable cause and, thereby, caused Mr. Jackson to be arrested and jailed. These facts, establishing that the Defendant caused the arrest and detention of Mr. Jackson by making false statements in official documents, were sufficient to allow the jury to find the Defendant guilty. Next, the Defendant claims that the evidence was insufficient to establish the charge of Criminal Attempt-Insurance Fraud, Count 1. The offense of Insurance Fraud is defined in 18 Pa. C.S.A. 4117, which provides: (a) Offense defined. A person commits an offense if the person does any of the following:... (2) Knowingly and with the intent to defraud any insurer or self-insured, presents or causes to be presented to any insurer or self-insured any statement forming a part of, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim. Criminal Attempt is when, with intent to commit a specific crime, a person does any act which constitutes a substantial step toward the commission of that crime. 18 Pa. C.S.A The Commonwealth s evidence established that the Defendant made material false statements to his insurance company, State Farm, in an attempt to get the insurance company to pay for the damages to the vehicle. Those material false statements were that the vehicle was struck by an unknown driver while it sat outside of the Defendant s apartment while he was doing laundry. (N.T ; Com. Exhibit 15). David Borandi, who drove the Defendant s rented vehicle transporting the women who were providing escort services, testified that the damage to the vehicle occurred when he was on a trip for one of the girls, the car got stuck in the mud and, as he was attempting to remove it, struck a telephone pole or tree. (N.T , ). Borandi indicated in his testimony that he told the Defendant how the damage occurred shortly after the incident. (N.T , ). Once again, the verdict on this charge turned on the credibility of the witnesses. If the jury believed the Defendant s version of how the vehicle sustained damage, then he did not attempt to commit insurance fraud. If, however, the jury believed Mr. Borandi, then that testimony established that the Defendant had made a material false statement to an insurance company in an attempt to secure payment. By its verdict, the jury indicated that the credibility determination was, once again, made adversely to the Defendant. Although the defense correctly pointed out that State Farm made no payment on this claim, the making of the false statement to secure payment of an insurance claim in and of itself certainly constituted a substantial step toward the commission of the crime of Insurance Fraud. The next two (2) insufficiency of the evidence claims involve the charges of Possession with Intent to Deliver and Delivery of a Controlled Substance, Counts 2 and 3. 4 These charges arose out of an undercover operation on August 27, 2011 which involved two cooperating witnesses, Regina Sill and Crystal Waz. (N.T ). Both cooperating witnesses had previously been arrested and charged with prostitution and drug offenses, and they had agreed to assist in the investigation of the Defendant s activities. (N.T. 107). Regina Silla told the Defendant that she and Ms. Waz had an appointment at a South Hills hotel to perform for some men. (N.T. 107). The Defendant agreed to drive the women there in a yellow cab that he periodically drove. The women entered the hotel room while the Defendant waited in the cab. The women were met at the hotel by Detective Todd Naylor, a narcotics investigator, who provided the women with $ in official funds and activated recording devices hidden on the women. (N.T ). The women returned to the Defendant s vehicle and advised him that they wanted to travel to the Northside of Pittsburgh to purchase heroin from a dealer known as Fresh. (N.T ). The conversation in the cab on the trip to the Northside was recorded and then played for the jury during the trial. (N.T. 113; Com. Exhibit 9). The Defendant was clearly made aware during the cab ride that the women were going to the Northside to secure heroin that they would, in turn, deliver to an individual named Scott, who was waiting for them at another hotel. (N.T , ). The Defendant drove the women to meet Fresh and waited in the cab as Ms. Silla left the vehicle to go purchase the heroin. (N.T ). When Ms. Silla returned, the Defendant drove the women to the Best Western Hotel in Greentree where they were to perform for, and provide the drugs to, another customer. (N.T. 110, ). The women left the cab, entered the room at the Best Western and provided nineteen (19) glassine stamp bags, later determined to contain 1.23 grams of heroin, to Detective Naylor. (N.T , 132). The women were searched again and then released. (N.T , 132). Two (2) days later, the Defendant was arrested, and his residence was searched pursuant to a search warrant. (N.T. 121). Paraphernalia commonly associated with the use of heroin, including a glassine baggie, a syringe, a spoon and a lighter, were found. (N.T ). The glassine baggie bore the same identifying stamp as the nineteen (19) glassine stamp bags purchased by Regina Silla on the 27th. (N.T , 139). The syringe and spoon held residue that testing confirmed to be heroin. (N.T ; Com. Exhibit 12). It was during this search that the identification of Mr. William Jackson was also found. (N.T ). The Defendant also testified on his own behalf. (N.T ). He testified that he knew that Ms. Regina Silla was a heroin addict. (N.T. 230). He admitted that, on the night in question, that he drove Regina Silla and Crystal Waz to see Fresh on the Northside. (N.T , 247). He further acknowledged that he knew that Ms. Silla obtained her drugs from him. (N.T. 247). He also was present
14 pa g e 2 8 v olum e n o. 2 when Regina Silla discussed taking to drugs to Scott at the Best Western Hotel in Greentree. (N.T , ). The Defendant was charged with Possession with Intent to Deliver and Delivery of a Controlled Substance based on his agreement to drive the cooperating witnesses to the Northside to purchase heroin and then to the Best Western Motel to deliver it to someone named Scott. He was charged as an accomplice and a co-conspirator, not as a principal. It is well-established that a defendant who was not a principal actor in committing the crime may, nevertheless, be liable for the crime if he was an accomplice of a principal actor. Commonwealth v. Bradley, 392 A.2d 688, 690 (Pa. Super. 1978). A person is an accomplice of a principal if with the intent of promoting or facilitating the commission of the offense, he: (i) solicit[ed the principal] to commit it; or (ii) aid[ed] or agree[d] or attempt[ed] to aid such other person in planning or committing it. Commonwealth v. Spotz, 716 A.2d 580, 585 (Pa. 1998). Thus, there is a two (2) prong test for determining if a defendant can be found guilty as an accomplice. See Commonwealth v. Woodward, 614 A.2d 239, 242 (Pa. Super.1992). First, it must be established that the defendant intended to aid or promote the underlying offense. Second, there must be evidence that the defendant actively participated in the crime by soliciting, aiding, or agreeing to aid the principal. While these two (2) requirements may be established by circumstantial evidence, a defendant cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene. Commonwealth v. Wagaman, A.2d 735, 740 (Pa. Super. 1993). There must be some additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did, or attempted to do, so. With regard to the amount of aid, it need not be substantial so long as it was offered to the principal to assist him in committing or attempting to commit the crime. See Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1997). The Defendant s conduct in the instant case met both prongs of this test. The recorded conversation in the taxi established that the Defendant knew that the purpose in driving to the Northside was the purchase of heroin from Fresh. (N.T ). He admitted as much in his direct examination when he testified that he knew that the purpose of driving to the Northside was to to see Fresh and that the purpose of seeing Fresh was for Regina to get drugs. (N.T. 247). The taped conversation also established that the Defendant knew that the purpose in driving to the Best Western in Greentree was to deliver the heroin to another person there. (N.T , ). This evidence was sufficient to establish the intent of the Defendant. The act of driving the taxi, first to buy the heroin and then to deliver it to Greentree, established the second prong of the test, that the Defendant aided or assisted in the commission of the crime. The Defendant was also liable as a co-conspirator. He has not challenged the sufficiency of the evidence as to his conviction for criminal conspiracy. Accordingly, the Defendant has conceded that the evidence was sufficient to establish that he entered into a conspiracy to possess with intent to deliver, or deliver, the heroin. Once the trier of fact finds that there was an agreement and the defendant intentionally entered into the agreement, that defendant may be liable for the overt acts committed in furtherance of the conspiracy regardless of which co-conspirator committed the act. Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). The agreement having been established by the conviction for criminal conspiracy, all that remained was for the Commonwealth to prove the overt acts committed in furtherance of the conspiracy. The Commonwealth did so through the evidence establishing that the other parties to the agreement, Regina Sill and Crystal Waz, possessed the heroin with the intent to deliver it to Scott and then actually did deliver it, with the aid and assistance of the Defendant. The Defendant drove the cooperating witnesses to the Northside, knowing that they were buying heroin. (N.T ). He waited for the purchase of the drugs to be complete. (N.T ). He then drove the women to the Best Western, knowing that they were in possession of heroin and that they were going to deliver it to a customer named Scott. (N.T , ). The evidence establishing these facts was not disputed at trial and constituted sufficient evidence to support the verdict of guilty as to the drug related offenses. The Defendant has raised five (5) challenges to the sentence imposed by this court. First, he claims that the court erred when it imposed an illegal sentence. The Defendant claimed that his sentence was illegal because he asserts that the sentence did not include a recidivism risk reduction in sentence. The record establishes that the court did make a recommendation for a recidivism risk reduction incentive. At page 18 of the sentencing transcript, after the Commonwealth noted the Defendant s eligibility for an RRRI sentence, this court said: We will make a recommendation for RRRI on the record. (N.T. 8/14/13, p.18). The sentencing order indicates that a reduction of 6 months and 22 days was made. Accordingly, this claim is meritless. In his final four (4) claims, the Defendant asserts that his sentence was manifestly excessive and an abuse of discretion. Though he raises this claim in four (4) separate paragraphs, each paragraph involves a challenge to the court s discretion in imposing sentence. According to the Defendant, the court did not give due consideration to the fact that: 1) the Defendant s offenses were non-violent; 2) he had no prior arrests; 3) he served 17 years as a police officer; 4) he received multiple commendations as an officer; and, 5) he was veteran. In addition, the Defendant claims that the court erred in considering the Defendant s status as a police officer as an aggravating circumstance when it should have been considered a mitigating factor. Sentencing is a matter vested within the sound discretion of the sentencing judge and will not be disturbed on appeal absent a manifest abuse of discretion. Com. v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive. Com. v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 2003). An abuse of discretion is not merely shown by an error in judgment, but rather by establishing that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Mouzon, supra, at In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court s discretion, as the court is in the best position to measure factors such as the nature of the crime, the defendant s character, and the defendant s display of remorse, defiance or indifference. Com. v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Where an excessiveness claim is based on a court s sentencing outside of the standard guideline ranges, an appellate court looks, at a minimum, for an indication on the record that the sentencing court understood the suggested sentencing range. Com. v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). When the court so indicates, it may deviate from the guidelines to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the victim and the community, so long as the court also states the factual basis and specific reasons to deviate from the guidelines. Mouzon, supra, at Sentencing guidelines are merely advisory, and the sentencing court may sentence a defendant outside of the guidelines so long as it places its reasons for deviation on the record. Com. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). In setting a sentence, a court has discretion to run the sentence concurrently with or consecutively to other sentences being
15 j a n ua ry 2 3, pa g e 2 9 imposed. Mouzon, supra, at The Superior Court has expressed concern that running sentences concurrently as a matter of habit can give a defendant a volume discount for separate criminal acts. Com. v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). This court gave due consideration to all of the circumstances of the Defendant s life and of the circumstances of the offenses involved here. That consideration led to a sentence in the standard range of the sentencing guidelines on the two (2) offenses for which a term of imprisonment was imposed. The court did take into consideration that the Defendant, at the time he was committing these offenses over an extended time period, was also employed as a Pittsburgh Police Officer. Unlike the defendant in Commonwealth v. Lowe, 522 A.2d 614 (Pa. Super. 1987), this case did not involve a single criminal incident; it involved a pattern of criminal activity engaged in over a period of time. The Superior Court in Lowe, supra, held that, where there is one isolated criminal incident after twenty-eight (28) years as a State Trooper, the fact that the defendant was a police officer should not be considered a factor warranting a harsher sentence. Here, however, there was not a single, isolated incident. The two (2) offenses for which the sentence of incarceration were imposed occurred on different dates, involved different facts and suggested a pattern of criminal activity. When a police officer engages in separate criminal offenses over an extended period of time, as the evidence in this trial revealed, it would be improper for this court to ignore that breach of the public trust in fashioning its sentence. It is also important to note that the court did not give the Defendant a sentence in the aggravated range. This is proof that this court did not consider the Defendant s status as a police officer as an aggravating factor because the sentence was not in the aggravated range. When the Superior Court in Lowe, supra, vacated the sentence, it did so because the sentencing court cited to the defendant s status as a former police officer as being an aggravating factor, warranting a sentence in the aggravated range. This court simply considered the defendant s status as a police officer, along with all other facts and circumstances surrounding the Defendant and his offenses, to determine where in the standard range guideline his sentence should fall. As the Defendant s sentence was not manifestly excessive and was not an abuse of discretion, the judgment of sentence should be affirmed on appeal. For all of the foregoing reasons, the Defendant s convictions and sentence should be upheld. Date: October 9, 2014 BY THE COURT: /s/lazzara, J. 1 The Commonwealth withdrew count 17 prior to the commencement of trial. 2 This claim was withdrawn prior to the completion of this Opinion. 3 This claim was withdrawn prior to the completion of this Opinion. 4 The Defendant was also charged with Criminal Conspiracy, with the object of the conspiracy being the Possession with Intent to Deliver and/or the Delivery of the heroin. The Defendant has not challenged the sufficiency of the evidence as to this charge. Commonwealth of Pennsylvania v. Sharon Lynn Corona Criminal Appeal Suppression Commonwealth Appeal Improper Seizure Police car that pulls up next to legally parked vehicle in parking lot engages in more than mere encounter and must have reasonable suspicion for seizure. No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Bigley, J. October 6, OPINION This is an appeal from an order granting a Motion to Suppress after a hearing was held on March 20, The Commonwealth filed an Interlocutory Appeal to the Superior Court on April 21, For the reasons set forth below, the Order of this Court Granting the Motion to Suppress was not in error and should be affirmed. The testimony in this case is summarized as follows. On July 3, 2013, Plum Borough Police Officer Daniel Moriarty was on routine patrol in uniform in a marked vehicle. (T.T.) 1 at 4. Officer Moriarty was driving west on Saltzburg Road at approximately 2:30a.m. when he noticed a car with its lights on parked in the parking lot of a local business (T.T.) at 4 and 20. The car was completely off the road pulled off into that parking lot. (T.T.) at 12 and The officer thought it had to be investigated because it was odd that a car was stopped at that location. (T.T.) at 5. Officer Moriarty passed the vehicle and then backed up his vehicle and put his window down to speak with the driver and ask what she was doing. (T.T.) at 4,5. The driver, Ms. Corona, stated she was waiting for someone. (T.T.) at 5. Officer Moriarty noticed slurred speech on the driver and decided to have a conversation with her. (T.T.) at 6. Officer Moriarty does not recall which words were slurred in his very brief conversation with Ms. Corona and based his observation of slurred speech on one sentence. (T.T.) at 23. Officer Moriarty did not observe her vehicle in operation, nor did he observe a motor vehicle code violation. (T.T.) at 24. At that point the Officer told the Ms. Corona to hang on and exited his vehicle to further investigate. (T.T.) at 6. After the Officer exited his vehicle Ms. Corona once again stated she was waiting for someone. (T.T.) at 7. The person she was waiting for drove by as they were speaking with each other. (T.T.) at 7. Officer Moriarty later noticed glassy eyes and an odor of alcohol on her breath. (T.T.) at 7. Shortly after that, a person did call the driver on her cell phone and then came through on her Blue Tooth in her vehicle. (T.T.) at 8. After the phone call, Officer Moriarty asked Ms. Corona to exit the car and perform field sobriety tests. (T.T.) at 9. After administering the field sobriety tests, the officer determined Ms. Corona was intoxicated. (T.T.) at 12. Subsequently, he placed her in handcuffs and under arrest. (T.T.) at 14. This court granted the Motion to Suppress and this timely appeal by the Commonwealth followed.
16 pa g e 3 0 v olum e n o. 2 The Concise Statement of Errors Complained of on Appeal filed by the Commonwealth raises one issue on appeal: 1. Did the trial court err in finding that the police officer s actions and statements rendered the instant encounter a seizure that was not supported by either reasonable suspicion or probable cause and thereby granting the Motion to Suppress? Upon careful review of the record in this case, the Court concludes that the evidence was sufficient to support the granting of the suppression motion and that the Court did not err in doing so. When reviewing an appeal from a suppression motion, the appellate courts must consider whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Where the record supports the findings of the suppression court, [the appellate courts] are abound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Leonard, 2008 WL , p. 2 (Pa.Super. 2008). When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review. The suppression court s findings of fact bind an appellate court if the record supports those findings. Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. Ct. 2007). The defense argued that as soon as Officer Moriarty pulled alongside Ms. Corona it was a seizure that was not supported by either reasonable suspicion or probable cause. The Commonwealth argues that the initial pulling alongside Ms. Corona was a mere encounter. In light of the facts of this case, the court finds the initial pulling alongside Ms. Corona when she is legally parked and has committed no vehicle code violations a seizure that was unsupported by either reasonable suspicion or probable cause. The Supreme Court of Pennsylvania has defined three types of police citizen interaction: a mere encounter, an investigative detention, and a custodial detention. Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 340 (1998). A mere encounter between police and a citizen need not be supported by any level of suspicion, and carr[ies] no official compulsion on the part of the citizen to stop or to respond. Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa.Super.1998). An investigatory stop, which subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute an arrest, requires a reasonable suspicion that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A custodial search is an arrest and must be supported by probable cause. Id. Commonwealth v. Kendall, 976 A.2d 506 (Pa.Super. 2009) In evaluating whether an interaction rises to the level of an investigative detention, the court must examine all the circumstances and determine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer s orders. Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super.2003). In Commonwealth v. Hill, 874 A.2d 1214 (Pa.Super. 2005), the Superior Court held that defendant s encounter with the police after he pulled to the side of the road was a seizure and not a mere encounter. Id at In Commonwealth v. Hill, the defendant pulled his truck to the side of the road in an effort to allow another motorist to pass. Id. at The officer pulled over behind the truck, activated his lights, and approached the truck to ascertain whether the defendant needed assistance. Id. at When the officer spoke to the defendant he detected an odor of alcohol on his breath; following a brief investigation, he arrested the defendant for driving under the influence of alcohol. Id. at The court found that the defendant had no reason to expect that a police officer would stop to render aid. Id. at In addition, the court held that the defendant did not commit any traffic violations and operated his vehicle in a safe manner at all relevant times on the night in question. Id. at The officer did testify that the defendant was not free to leave the scene after he activated his lights, failing to state any articulate facts at the suppression hearing that would give rise to a reasonable suspicion of criminal activity and thereby the detention was invalid. Id. at 1219, In the case at hand, Officer Moriarty passed a vehicle legally parked in a parking lot. The vehicle lights were on and the emergency flashers were not on. (T.T.) at 6. Officer Moriarty does not recall if he activated his lights or not when he pulled off the road. (T.T) at 23. Further, he testified that he did not observe the defendant commit any moving or traffic violations. (T.T.) at 24. The officer testified that he pulled up alongside the defendant because it was suspicious in nature for a car to be parked at that location. (T.T.) at 25. In fact, on direct examination the Officer testified that the defendant was pulled over on the side of the road and that it was odd for a vehicle to be where it was and that it definitely needed to be looked into. (T.T.) at 5 The Officer later acknowledged that the defendant was parked in a parking lot. (T.T.) at He further testified that his stop was investigatory in nature. (T.T.) at 26. In Commonwealth v. Fuller, 940 A.2d 476 (Pa.Super. 2007), the Superior Court held that the defendant was subjected to an investigatory detention, which was invalid because the trooper failed to articulate facts that would establish a reasonable suspicion of criminal activity. In Fuller, the troopers observed a pick-up truck in the distance traveling in the same direction as the troopers. Id. at 478. The troopers eventually caught up to the back of the truck, the truck slowed down to almost a complete stop and pulled off onto the berm of the road. Id. at 478. The troopers then pulled their vehicle onto the berm behind the defendant and activated their lights. Id. at 478. When the one trooper exited the police car and approached the defendant he noticed he was not wearing a seatbelt, that his eyes were bloodshot and glassy, and that he smelled of alcohol. Id. at 478. Subsequently, the defendant was placed under arrest for driving under the influence. Id. at 478. In this case, the defendant was legally parked in a parking lot. There was no indication that she was in any distress. The officer testified that his intention was to investigate due to the suspicious nature of a car being parked in that location 2. The officer never testified that he was doing any kind of welfare check, just that he was suspicious. Asked what she was doing, Ms. Corona stated that she was waiting for someone. In that brief sentence the Officer stated that the defendant s speech was slurred but could not recall which words were slurred. At that point Officer Moriarity then told Ms. Corona to hang on and decided to exit his vehicle to investigate. At that point no reasonable person would believe that they were free to leave. After assessing the evidence based on the totality of the circumstances, the Motion to Suppress, and the credibility of witnesses. I found that the Officer lacked reasonable suspicion to detain the defendant to further investigate. Consequently, this Court granted the Motion to Suppress. FOR ALL OF THE ABOVE REASONS, the granting of the Motion to Suppress should be affirmed. BY THE COURT: /s/bigley, J. 1 T.T. refers to the Trial Transcript of March 20, 2014, followed by the page number. 2 In the Affidavit of Probable Cause the Officer stated that the defendant s vehicle was pulled over to the right side of the roadway on the berm.
17 j a n ua ry 2 3, pa g e 3 1 Commonwealth of Pennsylvania v. Gerald Paul Kruth Criminal Appeal Waiver Summary Harassment Denial of Right to Summary Appeal Judge Sitting as a Magistrate Failure to Comply with Pa.R.A.P Trial court finds all issues are waived due to appellant s failure to concisely identify issues to be raised on appeal, in violation of Rule No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Borkowski, J. October 15, OPINION PROCEDURAL HISTORY Appellant, Gerald Kruth, was charged by criminal information ( ) with one count of simple assault, 1 originally filed as a private complaint. The case was assigned to the Honorable Beth A. Lazzara. Judge Lazzara granted the Commonwealth s motion to amend the misdemeanor count of simple assault to a summary count of harassment, and to add one summary count of disorderly conduct. The trial was scheduled for February 25, 2014, wherein Judge Lazzara agreed to sit as a magistrate. On February 25, 2014, the case was reassigned to the Honorable Edward J. Borkowski. Appellant proceeded to a trial on that date before the Trial Court. At the conclusion of the trial Appellant was found guilty of the summary count of harassment and not guilty of the summary count of disorderly conduct. That same day, Appellant was sentenced by the Trial Court to a period of probation of ninety days. Appellant filed a Motion to Compel Acceptance of Summary Appeal for Filing by Court Records on March 19, 2014, which was denied by the Trial Court on March 21, The Trial Court was not sitting as a magistrate, but was instead sitting as the finder of fact and law in a trial of summary offenses. Appellant filed a timely notice of appeal on March 27, STATEMENT OF ERRORS ON APPEAL Appellant filed a concise statement of matters complained of on appeal which substantially tracked his motion to compel, and is set forth below exactly as Appellant presented it: On August 24, 2012, Defendant was charged in a private complaint with Simple Assault, a misdemeanor of the second degree. 18 Pa.C.S.A. 2701(a)(1). After a preliminary hearing, Defendant was held for court. On January 22, 2014, on the date scheduled for the selection of a jury and the commencement of a jury trial, the Commonwealth moved before the Honorable Beth Lazzara to amend the charge of Simple Assault to Summary Harassment [18 Pa.C.S.A. 2709(a)(1)], and to add a count of Summary Disorderly Conduct [18 Pa.C.S.A. 5503(a)(4)]. Defendant opposed the motion, unless the case was ordered back to the District Magistrate for a summary trial, to which a summary appeal to a trial de novo could be taken, should Defendant be found guilty on either or both summary offenses. Judge Lazzara then granted the Commonwealth s motion, with the proviso that she would hear the case as a magistrate to preserve Defendant s right to a summary appeal. In fact, Daniel Gleixner, the prosecutor, stated on the record at that moment that he had intended to suggest the same. Judge Lazzara entered the Order that she would sit as a magistrate, and granted the Commonwealth a continuance to February 25, On that date, Judge Lazzara was presiding over a jury trial, and transferred the case to the Honorable Edward Borkowski. Before the trial commenced, Judge Borkowski was told by Defendant s counsel that it was understood that he would be sitting as a magistrate. Judge Borkowski stated on the record that he would do so. On February 25, 2014, after the summary trial was concluded, Judge Borkowski found Defendant not guilty of Disorderly Conduct, but guilty of Harassment. After sentencing Defendant to ninety (90) days of probation, Judge Borkowski advised Defendant that he had thirty (30) days to appeal to the Superior Court. Whereupon, Defendant s counsel asserted on the record Defendant s right to a summary appeal, and a trial de novo, with which Judge Borkowski disagreed. On March 18, 2014, Defendant s counsel attempted to file a summary appeal, but it was rejected by Court Records on the basis that the case had not been assigned a nontraffic summary case number. On March 19, 2014, Defendant filed a Motion to Compel Acceptance of Summary Appeal For Filing By Court Records. On March 21, 2014, Judge Borkowski entered an order denying the Motion because: the Court was sitting as finder of fact and law in a summary offense trial. First, there was an agreement on the record, acknowledged by Judge Lazzara and the prosecutor, that Defendant would be able to file a summary appeal if found guilty after a summary trial before a Common Pleas Judge sitting as a magistrate. Second Pa. R. Crim. P. No. 454 provides as follows concerning Trial In Summary Cases (B)... If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trial in criminal cases conducted in the courts of common pleas when jury trial has been waived.... (F) At the time of sentencing, the issuing authority shall: (2) advise the defendant of the right to appeal for a trial de novo in the court of common pleas... Therefore, the denial to Defendant of his right to file a summary appeal for a trial de novo not only violates an on-the-record agreement, but also violates the clear dictates of Pa. R. Crim P. No As such, Judge Borkowski s Order prohibiting the summary appeal should be reversed, and Defendant should be entitled to a trial de novo.
18 pa g e 3 2 v olum e n o. 2 FINDINGS OF FACT The underlying facts of the case are not germane to disposition of this appeal. DISCUSSION Appellant s concise statement fails to comply with Pennsylvania Rule of Appellate Procedure 1925(b)(4). In this regard, the Superior Court has stated: This Court has considered the question of what constitutes a sufficient 1925(b) statement on many occasions, and it is well-established that Appellant s concise statement must properly specify the error to be addressed on appeal. The Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal. Further, this Court may find waiver where a concise statement is too vague. When a court has to guess what issues an appellant is appealing, that is not enough for a meaningful review. In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (citations and quotations omitted). Furthermore, the statement should not be redundant or provide lengthy explanations as to any error. Pa. R. App. P. 1925(b)(4)(iv). Any issues not raised in accordance with Rule 1925(b)(4) are waived. Here, Appellant s four-page Concise Statement is substantially the same as Appellant s Motion to Compel. This filing fails to comply with Rule 1925(b)(4), and Appellant s claim is waived. CONCLUSION Based upon the foregoing, the judgment of sentence imposed by this Court should be affirmed. Date: October 15, 2014 BY THE COURT: /s/borkowski, J Pa. C.S. 2701(a)(1). Commonwealth of Pennsylvania v. Sean Christopher Pappert Criminal Appeal Probation Revocation Sentencing (Discretionary Aspects) Child Pornography Validity of Revocation Failing therapeutic polygraphs constitutes a violation of a sex offender s probation No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. McDaniel, J. October 15, OPINION The Defendant has appealed from the judgment of sentence entered on June 4, 2014, following the revocation of the Defendant s probation. A review of the record reveals that the Defendant has failed to present any meritorious issues on appeal and, therefore, the judgment of sentence should be affirmed. The Defendant was charged with Sexual Abuse of Children Photographing 1 and Possession of Child Pornography. 2 He appeared before this Court on March 5, 2012 and, pursuant to plea agreement with the Commonwealth, pled guilty to Possession of Child Pornography. The remaining charge was withdrawn. He was immediately sentenced to a term of probation of five (5) years with special conditions of Sex Offender Treatment, no contact with minors, no use of the internet and no possession of pornography. A 10-year term of Megan s Law registration was also imposed. No Post-Sentence Motions were filed and no direct appeal was taken. An SOC review hearing was held on October 31, 2012, at which time this Court added a special condition of no alcohol consumption, ordered an additional therapeutic polygraph and continued the hearing pending further review. A second review hearing was held on June 4, At that hearing, this Court revoked the Defendant s probation and imposed a term of imprisonment of three (3) to six (6) years. No Post-Sentence Motions were filed. This appeal followed. Generally, the review in an appeal from [a] judgment of sentence which has been imposed following revocation of probation is limited to the validity of the revocation proceedings and the legality of the judgment of sentence. Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa.Super. 2009). Here, the Defendant has challenged both the legality and the length of the sentence. 1. Validity of the Revocation The revocation of probation is governed by 42 Pa.C.S.A. 9771, which states, in relevant part: Modification or revocation of order of probation (b) Revocation. The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation. (c) Limitation on sentence of total confinement. The court shall not impose a sentence of total confinement upon revocation unless it finds that: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or (3) such a sentence is essential to vindicate the authority of the court.
19 j a n ua ry 2 3, pa g e Pa.C.S.A Pursuant to 42 Pa.C.S.A. 9771, probation may be revoked upon proof of the violation of specified conditions of the probation. 42 Pa.C.S.A. 9771(b). Because this Court found that the Defendant was in non-compliance with the conditions of his probation, particularly being discharged from sex offender treatment due to his failure to make any progress or follow his treatment plan, in failing three therapeutic polygraphs, using the internet and having contact with minors, the imposition of a sentence of imprisonment was permissible under the Sentencing Code. The Defendant takes issue with the legality of denial polygraphs in general, as well as their particular application to the facts of this case. It is well-established that denial polygraphs or therapeutic polygraphs are an accepted part of sex offender therapy. Our Courts have described the denial polygraph as an essential tool for a therapist whose job it is to reveal an offender s deception and encourage him or her to confront his or her urges and deviant behavior. The test results further the primary goal of counseling as part of a sexual offender s sentence, which is to rehabilitate the offender and prevent recidivism, with reasonably small incremental deprivations of the offender s liberty. Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa.Super. 2007). Our Courts have further held that a therapeutic polygraph is a proper element in a sex offender treatment program for a convicted sex offender and does not violate a probationer s rights under the Fifth Amendment to the United States Constitution or under Article One, Section Nine of the Pennsylvania Constitution, so long as the inquiries made pursuant to it relate to the underlying offense for which an offender has been sentenced and do not compel him or her to provide information that could be used against him or her in a subsequent trial. Id. Therapeutic polygraph examination results [are] admissible at [a] VOP hearing for purposes of helping explain the program s actions and the treatment procedures. Commonwealth v. A.R., 80 A.3d 1180, 1184 (Pa. 2013). Similarly, when sex offender therapy is made a condition of probation, the refusal to submit to a denial polygraph used in the therapy shall result in a situation where his counseling can no longer continue and may result in a probation revocation hearing. Shrawder, supra, at 440. As discussed above, sex offender therapy was a condition of the Defendant s probation. As a recognized and established part of that therapy, he was required to acknowledge and explore the deviant motivation for his actions. Throughout his therapy, the Defendant continued to maintain that he had no victims, because he only looked at pictures of children engaged in sexual acts. Additionally, the Defendant continued to deny viewing pornography in violation of the special conditions of his probation, which was established to be untrue by the first two polygraphs. The Defendant was offered a third polygraph but used movement and controlled breathing techniques to disrupt the results. Because his therapists felt the Defendant was unable to change his attitude and improve through treatment, he was not amendable to therapy. This is wholly appropriate. Contrary to the Defendant s argument, the Defendant s probation was not revoked because he failed an inadmissible polygraph test, but rather because he failed to fully participate in his therapy program, which was a condition of his probation. As this Court stated: THE COURT: He admitted to watching pornography at least prior to the first two polygraphs and in spite of that admission he still failed the polygraph so that means he admitted to a little and not everything. The fact he wasn t arrested doesn t carry any weight with me. This is a compliance court. This is not a treatment court. The idea, Mr. Pappert, of this court is to give you the opportunity to change your criminal behavior. Your criminal behavior involved watching children that were minors over and over so I ve had you in you ve had hearings, you talked to Mr. Bowie, and you are in total non-compliance. You are doing the exact same behavior. You are having contact with minors, you are using the computer. You don t even think that it is a crime to look at the kids and then you manage to fail two polygraphs even after admissions. I see no indication whatsoever that you have made even the teensiest, teensiest progress. I wanted to try to make you understand that your behavior is wrong and, most important, to change that behavior. The truth is you re exhibiting as far as I m concerned the same behavior for the last two years since I gave you a chance. (SOC Review Hearing, June 4, 2014, p. 9-10). Given the Defendant s utter lack of compliance as described above, the imposition of a term of imprisonment was necessary to vindicate this Court s authority. See 42 Pa.C.S.A. 4771, supra. This Court was well within its discretion in revoking the Defendant s probation and imposing a term of imprisonment. This claim must fail. 2. Excessive Sentence Review of a sentence imposed following the revocation of probation proceeds according to the standard applicable to all sentences. Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent an abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, abused its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Booze, 952 A.2d 1263, 1278 (Pa.Super. 2008), internal citations omitted. When imposing a sentence of total confinement, the sentencing judge must state the reasons for the sentence in open court Furthermore, the sentencing judge must explain any deviation from the sentencing guidelines Nevertheless, a lengthy discourse on the trial court s sentencing philosophy is not required. Commonwealth v. McVay, 849 A.2d 270, 275 (Pa.Super. 2004), internal citations omitted. Additionally, it bears mention that upon revocation of probation, a sentencing court possesses the same sentencing alternatives that it had at the time of the initial sentencing. Commonwealth v. Byrd, 663 A.2d 229, 231 (Pa.Super. 1995). See 42 Pa.C.S.A Moreover, it is well established that the sentencing alternatives available to a court at the time of initial sentencing are all of the alternatives statutorily available under the Sentencing Code [and] at any revocation of probation hearing, the court is similarly free to impose any sentence permitted by the Sentencing Code and is not restricted by the bounds of a negotiated plea agreement between a defendant and prosecutor. Commonwealth v. Wallace, 870 A.2d 838, (Pa. 2005), internal citations omitted. At the time of the plea, this Court noted that the maximum sentence for Possession of Child Pornography was seven (7) years. At the revocation hearing, this Court imposed a term of imprisonment of three (3) to six (6) years, which sentence was well below the maximum sentencing guidelines. As demonstrated by the record, the sentence imposed was within the guideline range available at the time of the initial
20 pa g e 3 4 v olum e n o. 2 sentencing and therefore, was legal. The sentence imposed was not in violation of the Sentencing Guidelines, either due to its length or the reasons contained in the record for its imposition. The sentence was legal and did not constitute an abuse of discretion. Therefore, this claim must fail. Accordingly for the above reasons of fact and law, the judgment of sentence entered by this Court on June 4, 2014, following the revocation of the Defendant s probation must be affirmed. BY THE COURT: /s/mcdaniel, J. Dated: October 15, Pa.C.S.A. 6312(c) 2 18 Pa.C.S.A. 6312(d)