Commonwealth v. Dozier ( 2014 )

J-S53020-12
2014 Pa. Super. 177
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE L. DOZIER
Appellant No. 1386 EDA 2010
Appeal from the Judgment of Sentence of December 12, 2002
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1103561-2000
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED AUGUST 20, 2014
Maurice Dozier appeals his December 12, 2002 judgment of sentence.
We affirm.
The trial court has provided the following factual history of this case:
The evidence admitted at trial established that in the early
morning hours of October 24, 2000, [A.R.] was brutally
assaulted and raped in her bed in front of her six-year-old
daughter and infant son. At that time, [A.R.] lived with her two
children . . . in the City and County of [Philadelphia].
Earlier that evening, [A.R.] saw [Dozier] on the street and asked
him if he could fix her refrigerator. She had known him from the
and worked on the refrigerator; he spent ten to fifteen minutes
in the house. [Dozier] returned a few times that evening, at one
point selling her a microwave. [A.R.] had a male guest at the
house from 12:30 a.m. to 5:00 a.m. on October 24, 2000. After
her guest left, [A.R.] went upstairs to sleep in the bedroom with
her children. Some time later, [A.R.] awoke to a noise in her
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*
Retired Senior Judge assigned to the Superior Court.
J-S53020-12
bedroom. It was still dark, but she saw [Dozier] standing over
her. [A.R.] screamed, and [Dozier] hit her on the head with a
hard object. [Dozier] pulled down and ripped her pants and
. Not in front of
penetrate her with his penis. [Dozier] turned her over and
placed a blanket over her face and raped her, while [A.R.] kicked
and pleaded for him to stop. [Dozier] carried with him a metal
bar wrapped in tape and a flashlight[,] the same tools he used to
repair the refrigerator that night. During the attack, [Dozier]
it. [Dozier] also choked [A.R.] with his hands; he was wearing
.
got dressed, picked up her children, and r
house, where she called the police.
The police arrived within ten minutes and [A.R.] told the officers
that she was raped and that it was [Dozier] who did it. While
neighbor approached Police Officer John McLaughlin and brought
him into her house. She told him the perpetrator was walking
down Napa Street. Officer McLaughlin approached [Dozier],
stopped him, and informed him that he was being investigated
for a rape that just occurred. [A.R.] was taken outside to view
[Dozier] and she positively identified him as her assailant.
[A.R.] was then transported to the Episcopal Hospital for a
medical examination and rape kit.
There was a stipulation to the Police Department Criminalistic[s]
Laboratory report that examined the rape kit taken from [A.R.].
The vaginal, v[u]lvular, and cervical areas tested positive for
sperm. The vaginal and cervical areas tested positive for
prostatic acid phosphate, which is an enzyme found in semen.
The presence of this enzyme is indicative of recent sexual
activity.
The DNA analysis was conducted by Chad Summerfield and
Kevin Knox, forensic scientists at the Philadelphia Police
Department. They conducted a forensic examination of the rape
kit and other physical evidence collected from the bedroom.
Mr. Summerfield tested the shorts [A.R.] had on the night of the
attack and the fitted sheets from her bed. He also had blood
samples from the complainant and [Dozier]. Mr. Summerfield
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testi
was the source of the DNA extracted from the bed sheet. He
also testified that he would expect to see this DNA profile one
time in 4.5 quadrillion. DNA analysis was also performed on the
sperm fou
53,000 match. That analysis excluded 99.99% of the African-
American population. Mr. Summerfield concluded to a
reasonable degree of scientific certainty that the seminal stain
from the sheet belonged to [Dozier].
-5 (citations to the record
omitted).
The trial court related the procedural history as follows:
Following a non-jury trial on July 11, 2002, before the Honorable
Willis W. Berry[,] Jr., [Dozier] was convicted of Rape,
Aggravated Assault, Aggravated Indecent Assault, Possessing
Assault, and Recklessly Endangering Another Person.[1] On
December 12, 2002, Judge Berry sentenced [Dozier] to [terms]
of incarceration for the Rape and Burglary convictions of . . . ten
(10) to twenty (20) years, to run concurrently; for Aggravated
Assault, ten (10) to twenty (20) years, to run concurrent[ly] with
the Rape conviction; for Indecent Assault, one (1) to (2) years,
consecutive [to] the Rape Conviction; for the PIC conviction,
two-and-one-half (2½) to five (5) years, to run consecutive[ly]
to the Rape conviction; [and] for Unlawful Restraint, one (1) to
two (2) years, consecutive with the Rape conviction. An
aggregate term of fourteen-and-one-half (14½) to twenty-[nine
(29)] years of incarceration was imposed.
No direct appeal was filed. A timely [petition under the Post-
9541, et seq.] was
filed on October 31, 2003. That petition was dismissed without
[a] hearing on April 11, 2005.
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1
18 Pa.C.S. §§ 3121, 2702, 3125, 907, 2902, 2701, 2705
(respectively).
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[Dozier] filed a second PCRA petition on July 21, 2008. Judge
nunc
pro tunc on April 22, 2010. [Dozier] filed a notice of appeal on
May 21, 2010. Following that appeal, Judge Berry filed an
opinion on March 23, 2011. A Grazier hearing[2] was held on
April 19, 2011, and [Dozier] was permitted to represent himself
pro se.
After numerous subsequent filings with the Superior Court, the
case was remanded to the trial court to file a Pa.R.A.P. 1925(a)
time, however, Judge Berry had retired from the bench. The
case was then reassigned to this court on February 5, 2013.
This court ordered [Dozier] to file a concise statement of matters
complained of on appeal consistent with Rule 1925(b).
Id. at 1-2 (footnote omitted).
pro se Rule 1925(b) statement
red] eighteen[] nearly incomprehensible points of error made by the
Id. at 2. From these eighteen asserted issues, the trial court
gleaned only four that it deemed worthy of consideration, reproduced
ement as follows:
1. Relators arrest was unlawful and unconstitutional being
absent the mandatory search and arrest warrant particularly
describing the place to be searched, and the person or thing to
be seized.
2. Relator was denied his constitutional right to face his
accuser.
****
7. Trial counsel Ms. Connie Clarke, Esq., for the DEFENDERS
ASSOCIATION, violated relators constitutional right to have a
trial by jury.
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2
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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****
18. Relator was not sentenced within or by the 60-days time
period but was pronounced sentence upon 6-months after
conviction.
Id. at 2- 1925(b) Statement,
6/21/2013, at 1-3). Seriatim, the trial court rejected each of these issues
on the merits.
Before this Court, Dozier is more ambitious, raising no fewer than
twenty-seven issues. These twenty-seven issues are grouped into nine
denominated sections in his argument, as follows: (1) Unconstitutional
Search and Seizure; (2) Arrested Without Miranda3 Warning;
(3) Statements Without Miranda Warning Inside the Interrogation Room;
(4) Speedy Trial Violation; (5) The Right to Face Your Accuser; (6) Delayed
Sentence Violation; (7) Biased Statement of Trial Judge; (8) The Most
Important Document (The Sentencing Order); and (9) Corrupt Trial Judge.
4
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3
See Miranda v. Arizona, 384 U.S. 436 (1966).
4
Despite asking for, and being granted, a motion to extend its deadline
for filing a responsive brief in this matter, the Commonwealth failed by a
considerable margin to file a brief within the extended time this Court
afforded it to do so, unnecessarily delaying the resolution of these
entitled to the expeditious review of the issues that he presents on appeal.
Inasmuch as the Commonwealth, when in the posture of an appellee, is not
obligated to file such a brief, we urge the Commonwealth to seek extensions
for the filing of its brief only when it intends to, and is confident that it has
the capacity to, exercise its right to file such a brief on a timely basis.
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Before proceeding further, we must assess which of these issues have
been preserved in the court below and which have been presented to this
Court such that review of their merits is appropriate. Doing so will enable us
Issues 2 and 3, in which Dozier asserts violations of Miranda, as well
and issue 7, which i
statements, all are waived for failure to present them in his Rule 1925(b)
statement. See Pa.R.A.P.
1925(b)] Statement and/or not raised in accordance with the provisions of
Commonwealth v. Baker, 24 A.3d
1006, 1034-35 (Pa. Super. 2011).
Preservation of an issue in the trial court and its inclusion in the Rule
1925(b) statement are necessary but not sufficient to preserve the right to
appellate review. See Pa.R.A.P.
appellant also must provide this Court with substantive argument, fortified
by reference to re Our
rules require compliance with the following requirements, inter alia:
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each
part in distinctive type or in type distinctively displayed the
particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent.
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Pa.R.A.P. 2119(a).
aterial respects
with the requirements of these rules as nearly as the circumstances of the
particular case will admit, otherwise, . . . if the defects are in the brief . . . of
the appellant and are substantial, the appeal . . . may be quashed or
dismisse 2101. Not infrequently, Pennsylvania courts have
deemed violations of Rule 2119(a) sufficiently substantial to require waiver
of the issues in question. See, e.g., Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009); Commonwealth v. Brougher, 978 A.2d 373,
376 (Pa. Super. 2009). Moreover, mere recitation of boilerplate law followed
by conclusory assertions of error typically does not suffice to ripen an issue
for our review. See Commonwealth v. Murchinson, 899 A.2d 1159, 1162
(Pa. Super. 2006).
These principles standing alone compel us to deem waived several
other categories of issues set forth by Dozier. First, issue 5, concerning an
basis. Although Dozier provides boilerplate citations regarding the federal
and state constitutional right of confrontation, Brief for Dozier at 25-26,
including references to Roman Governor Festus and President Dwight D.
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Eisenhower, he fails to support his particular claim with any on-point case
law. Consequently, this issue is waived.5
Issue 9, in which Dozier challenges his conviction upon the basis that
the presiding judge at his trial, Judge Berry, was corrupt, see Brief for
Dozier at 37-38, also is waived. In support of this claim, Dozier cites
periodical articles that we may not consider, because they are not included
in the certified record. See Commonwealth v. Preston, 904 A.2d 1, 6-7
(Pa. Super. 2006). As well, he cites our decision in Commonwealth v.
Cain, 29 A.3d 3 (Pa. Super. 2011). In that case, we acknowledged that
disciplinary action had been taken, and a criminal investigation conducted,
against Judge Berry for improper business practices, which ultimately led
Judge Berry to recuse himself from hearing criminal matters at the request
Id. at 8 & n.6.
Because the appellant alleged that Judge Berry had drawn attention for
these practices as early as April 2007, before the appellant had been tried,
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5
In short, Dozier argues that he was denied the opportunity to face his
accuser, whom he identifies as Jaroslaw Krajewski, a representative of the
Philadelphia
criminal complaint filed against Dozier, and, as Dozier underscores, on the
various crimes at issue in this case. See Brief for Dozier at 25. We are
aware of no law to the effect that the law enforcement affiant who swears
m,
A.R. Dozier does not contend that he was denied the opportunity to
confront A.R.
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we acknowle
been questioned. Accordingly, we remanded for fact-finding to determine
judge had discovered the
Id. at 8-
9. In this case, however, Dozier was tried years before any of the
allegations against Judge Berry came to light, and, most importantly, before
any criminal investigation was opened. Hence, the fears of partiality
animating our decision in Cain were not in play; there was no reason at the
matters. Having cited no other cases in supp
argument essentially consists of bald allegations of partiality during a time
period when Dozier can demonstrate no basis for such allegations.
Accordingly, this issue, too, is waived.
This leaves for our consideration issues 1, 6, and 8. Issue 1 is styled a
challenge to the propriety of the seizure and putative search of Dozier by the
Philadelphia police shortly after Dozier assaulted A.R. First, we may
inted
argument, at no time does Dozier assert that anything inculpating was
retrieved from his person during his seizure, or that anything so retrieved
was introduced against him at trial. Consequently, this issue, being entirely
abstract and tied to noth
reviewable.
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that he could not have been seized, let alone arrested, without a warrant.
He presents this as an unqualified proposition of law, which is patently false.
an individual in a public place unless they have probable cause to
believe that 1) a felony has been committed; and 2) the person to be
arrested is the felon Commonwealth v. Clark, 735 A.2d 1248, 1251
(Pa. 1999) (emphasis added).6
In Commonwealth v. Sabb, 409 A.2d 437 (Pa. Super. 1979), to cite
only one of myriad cases that we might, we found that the police had
probable cause to arrest a rape suspect when the victim, who did not know
her assailant before the time of the crime, identified him by his approximate
size, clothing, accessories, and facial hair. The police found the suspect a
half-hour after the assault, three and one-half blocks from the scene of the
crime. He matched the description provided by the victim except for the fact
that he wore a hat that the victim had not mentioned, and his glasses were
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6
Dozier acknowledges but misstates this principle when he asserts that
. . . can only make a warrantless search and[/]or
arrest upon probable
his eye sight [sic
less true with regard to misdemeanors, see Clark, 735 A.2d at 1251, it is
simply false with regard to felonies.
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description and the circumstances when the assailant was discovered
established probable cause to arrest the attacker without a warrant. Id. at
440-41.
In the case at bar, the evidence at trial established that the police
arrived shortly after Dozier left A.R.
identified Dozier, whom she had known since childhood, as her assailant.
Her neighbor informed police that Dozier was on the street in the
foun
thereafter, A.R. identified Dozier in person as her assailant.
In Sabb, we supported our determination that the police had probable
cause to arrest the assailant in that case by citing five cases in which our
Supreme Court or we had reached the same conclusion under similar
circumstances i.e., that the police had probable cause to arrest suspects
considerations. Id. at 441. We would struggle to find a more detailed
description of an assailant than an immediate identification by name by a
victim who knew the suspect for many years preceding the assault. Thus,
e cause which is
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devoid of any citations to on-point case law in which a court that binds us
ruled in his favor is unavailing.7
In issue 6, Dozier contends that the trial court improperly delayed
sentencing to such an extent that he should be granted discharge. We note
at the outset that Dozier erroneously cites former Pa.R.Crim.P. 1405 for the
8
This is relevant
inasmuch as the distinction adds thirty days to the time period that the trial
court had under the rule to enter its judgment of sentence. While Rule 1405
afforded trial courts sixty days to impose sentence, Rule 704 provides that
Pa.R.Crim.P. 704(A)(1). This time period may be extended by at least thirty
days, and perhaps sixty days, when the trial court remands the defendant
for purposes of a psychiatric or psychological examination, as occurred in
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7
As well, Dozier does not direct us to where in the record he challenged
his arrest before or during his trial, as required by Pa.R.A.P. 2117(c)
ue is not reviewable on appeal
unless raised or preserved below, the statement of the case shall also
disposed of it.). Our review of the certified record does not indicate that this
was the subject of any pre-trial motion or an objection at trial.
Consequently, even if this issue had a modicum of merit, we might find in
the alternative that it is waived. See Pa.R.A.P. 302(a) (precluding appellate
review of issues not raised in the first instance in the trial court).
8
Rule 704 was amended and renumbered (from 1405) on March 1,
2000, and took effect on April 1, 2001. Dozier was tried and convicted on
July 11, 2002.
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this case. Compare Pa.R.Crim.P.
sentence should be imposed within 90 days of conviction or the entry of a
plea of guilty or nolo contendere, unless the court orders a psychiatric or
psychological examination pursuant to Rule 702(B). Such an order should
extend the time for sentencing for only as much time as is reasonably
required, but in no event should sentencing be extended for more than 30
days beyond the original 90- with
Pa.R.C.P. . . . order the defendant to
undergo a psychiatric or psychological examination. For this purpose the
defendant may be remanded to any available clinic, hospital, institution, or
state correctional diagnostic and classification center for a period not
exceeding 60 days.
The above-compared rules and comment leave a degree of uncertainty
as to the duration of the applicable time limit under the circumstances of this
case, wherein the trial court ordered a psychological assessment in advance
of sentencing. In effect, relying upon the inapplicable sixty-day time limit
provided by repealed Rule 1405 and the thirty-day limit that Dozier
maintains applies under Rule 702 (a proposition that arguably is true only if
the comment to Rule 704 trumps the text of Rule 702), questions inhere as
to whether the rules called for Dozier to be sentenced within ninety days
(under Rules 1405 and 702), 120 days (under Rules 702, 704, and the
comment to Rule 704), or 150 days (under the plain text of Rules 702 and
704 standing alone).
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-day argument because, as noted, Rule
1405 provided for thirty fewer days than successor Rule 704, which plainly
applies to this case. Arguendo, then, we will give Dozier the benefit of his
best-case scenario under the applicable Rules 702 and 704, which would
have required the trial court to sentence Dozier within 120 days, absent
good cause shown. As noted, Dozier was convicted on July 11, 2002. He
was sentenced on December 12, 2002. Thus, it appears that Dozier was
sentenced 154 days after he was convicted, approximately thirty-four days
later than he should have been under Rules 702 and 704.9 Upon this basis,
Dozier seeks discharge.
In Commonwealth v. Glass, 586 A.2d 369 (Pa. 1991), our Supreme
Court explained that questions regarding delays in sentencing should be
analyzed under the same standard that applies to alleged speedy trial
violations:
This Court has firmly established a framework for analysis of
cases where delays in sentencing have implicated rights to a
speedy trial under the Sixth Amendment and under Article I, § 9
of the Pennsylvania Constitution. Commonwealth v. Glover,
458 A.2d 935 (Pa. 1983); Commonwealth v. Pounds,
417 A.2d 597, 599 (Pa. 1980). The factors to be considered in
such cases were described as follows in Glover, 458 A.2d
at 937:
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9
days after his was convicted. See Brief for Dozier at 28. The distinction is
immaterial.
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speedy trial right has been violated, it must first be
determined whether the delay itself is sufficient to trigger
further inquiry. Barker v. Wingo, 407 U.S. 514 (1972);
Jones v. Commonwealth, 434 A.2d 1197 (Pa. 1981). If
the delay is sufficient to trigger further inquiry, the
reviewing court must balance the length of the delay with
of his right to a speedy trial, and any resulting prejudice to
the interests protected by the right to a speedy trial.
Barker, supra; Pounds, supra.
Glass, 586 A.2d at 371-72 (citations modified). Thus, merely establishing
that more time separated conviction and sentencing than the rules intended
does not necessitate discharge. Rather, discharge is called for only when
the delay in question causes the defendant prejudice. Commonwealth v.
Anders, 725 A.2d 170, 173 (Pa.
sentenced in violation of Rule 1405 is entitled to a discharge only where
the defendant can demonstrate that the delay in sentencing
prejudiced him or her.
the totality of the circumstances, as no one factor is necessary, dispositive,
or of sufficient imp Id.
Assessing this case in light of the above factors, it is clear that Dozier
is not entitled to discharge. First, the delay, at most, amounted to just over
thirty days. Relative to the brutality of his crime, the need for a
psychological evaluation, and the utter improbability of him receiving a
sentence not measured in decades, an extra thirty days in advance of
sentencing, roughly twenty-five percent longer than the prescribed limit and
a period for which he was credited with time served, cannot be said to be so
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prejudicial as to require discharge. Second, Dozier has not even attempted
to inform us as to whether, when, and how he objected to this delay, if at
all. More generally, Dozier has in no way stated or implied how the modest
delay at issue in any way imposed upon his due process or speedy trial
rights, or otherwise prejudiced him, in light of the fourteen and one-half to
twenty-nine-year sentence that the trial court ultimately imposed.
Inasmuch as the existence of prejudice is a sine qua non to an award of
relief for a violation of Rules 702 and 704, and Dozier has made no showing
of prejudice, he is not entitled to relief on this issue.
Dozier during the pendency of this appeal, pertains to the alleged illegality of
his detention due to the fact that the trial court did not enter a written order
of sentence. The precise legal basis asserted is
difficult to resolve into something warranting meaningful discussion. Aside
sentencing authority, he appears to seek relief for a putative violation of
42 Pa.C.S. § 9764(b)(5), which requires a sentencing court to provide a
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judgment of sentence.10 His argument evidently rests upon the assumption
that, because his numerous requests for criminal justice agencies to provide
him with a copy of his sentencing order have been rebuffed, 11 such a
sentencing order must not exist and, therefore, he is being held illegally.
We need not review the necessity of a written sentencing order to
reject this argument. Regardless of whether Dozier was unable to procure a
copy of his sentencing order from various individuals and agencies, our
review confirms that the certified record contains a sentencing order
reflecting precisely the judgment of sentence recited at the outset of this
opinion. Because the categorical nonexistence of such an order appears to
ails. Moreover, this
Court recently has held that it matters not whether the sentencing order is in
the possession of any administrative or judicial body other than the certified
record retained by the court of common pleas. See Joseph v. Glunt, ___
A.3d ___, 899 WDA 2013, 2014 WL 2155396, at *6 (Pa. Super. May 23,
2014). As in Joseph, the certified record in this case confirms and
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10
which was filed during the pendency of this appeal, refers to section 9764,
his otherwise very similar argument on this topic in his brief relies
exclusively upon a litany of cases of dubious relevance to this case. See
Brief for Dozier at 33-37.
11
Dozier documents his efforts to obtain his sentencing order by
attaching to his motion voluminous correspondence between him and
various individuals and agencies, in which said individuals and agencies
denied that such an order was in their possession.
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the same reasons,
Shogan, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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