Com. v. Berger, F. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK BERGER III, :
:
Appellant : No. 1067 EDA 2019
Appeal from the Judgment of Sentence Entered March 6, 2019
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002040-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: April 22, 2021
Frederick Berger, III (“Berger”), appeals from the judgment of sentence
imposed following his convictions of possession of a controlled substance,
possession of drug paraphernalia, and public drunkenness.1 We affirm.
On January 18, 2018, Souderton Borough Police Officer Adam Moore
(“Officer Moore”) was dispatched to the corner of North Fourth Street and East
Summit Street in Souderton, Pennsylvania, regarding reports of a possibly
intoxicated man. The man was reportedly disheveled and yelling incoherently
near a group of children, who were waiting for a school bus. Officer Moore
arrived at the aforementioned location, and observed Berger lying,
unresponsive, on the steps of a home’s front porch. Berger exhibited signs of
intoxication, including a disoriented demeanor and an inability to respond to
____________________________________________
1 35 P.S. § 780-113(a)(16), (a)(32); 18 Pa.C.S.A. § 5505.
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questions. Officer Moore arrested Berger on a charge of public drunkenness.
Pursuant to a search incident to arrest, Officer Moore discovered blue packets,
one of which tested positive for fentanyl, some loose pills, and two one-dollar
bills rolled up in the form of a straw. Berger was subsequently charged with,
inter alia, the above-mentioned crimes.
On March 22, 2018, Berger failed to appear for his preliminary hearing,
and the trial court issued a bench warrant for his arrest. On August 9, 2018,
following Berger’s arrest pursuant to the bench warrant, Berger appeared for
a video conference and waived his right to appear for an arraignment.
On September 28, 2018, Berger appeared for his pre-trial conference
and was granted a continuance in order to obtain counsel. On November 29,
2018, Berger appeared for his continued pre-trial conference, and was again
granted a continuance in order to obtain counsel. On January 16, 2019,
Berger appeared for his second continued pre-trial conference, accompanied
by an assistant public defender, Julia Lucas, Esquire (“Attorney Lucas”).
Attorney Lucas stated that Berger had applied for representation with the
Public Defender’s office, but had not completed the paperwork necessary to
qualify. Berger advised the trial court that he was unable to verify his income,
and that he intended to represent himself. The trial court placed Berger’s case
on the trial list, and advised Berger to reconsider representing himself.
On February 11, 2019, Attorney Lucas appeared on Berger’s behalf, and
advised the trial court that Berger was still in the process of applying for
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representation with the Public Defender’s office, and that although Attorney
Lucas believed that Berger would qualify, Berger wished to “have a pro se
bench trial.” N.T., 2/11/19, at 3. Attorney Lucas also advised the trial court
that she could serve as standby counsel, should Berger wish to proceed pro
se. The trial court scheduled the case for a bench trial.
On March 6, 2019, Berger appeared, pro se, for trial, having failed to
complete the paperwork to qualify for a public defender. Nonetheless, the
trial court appointed Attorney Lucas to represent him, in the event that Berger
still wanted representation, and held a brief recess for Berger to meet with
Attorney Lucas and decide whether he wanted to proceed to trial represented
by counsel or pro se.
Following the recess, Berger made an oral Motion for a continuance on
the grounds that he was not “mentally capable of proceeding.” N.T., 3/6/19,
at 7. Berger testified that he had “been going through extensive ADHD and
bipolar [and] other issues.” Id. at 8. Berger stated that he had a psychiatric
appointment scheduled for that afternoon. Id. Berger further represented
to the court, “I’m not connecting the dots right now in my head. I’m having
issues. And like I said -- I feel as though, if I’m medicated, I’ll be able to
further adapt to what’s going on right now.” Id. at 8-9.
The trial court denied Berger’s Motion for a continuance, stating that,
given Berger’s multiple continuances to obtain an attorney, it found Berger’s
statements regarding his mental issues to be incredible, and simply a delaying
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tactic. Id. at 9-13. However, the trial court offered Berger the option of a
mental health evaluation by the Commonwealth, via revocation of his bail, and
incarceration in the Montgomery County Correctional Facility. Id. at 12-14.
After consulting with Attorney Lucas, Berger agreed to proceed to a bench
trial, represented by Attorney Lucas. Id. at 14. Pursuant to a waiver of his
right to a jury trial, Berger informed the court that he was not suffering from
any mental health issues that would interfere with his ability to understand
the trial proceedings and his rights, and that he was clear-minded. Id. at 15.
Following a bench trial, the trial court found Berger guilty of the above-
mentioned charges. Berger waived his right to a pre-sentence investigation
report, and accepted a negotiated sentence of time served to twelve months
in the Montgomery County Correctional Facility, followed by one year of
probation, and court costs. Berger filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
On appeal, Berger raises the following questions for our review:
1. Did the trial court err in denying [] Berger’s request for a
continuance?
2. Did the trial court err in assigning costs absent a
determination of [] Berger’s ability to pay?
Brief for Appellant at 2.
In his first claim, Berger alleges that the trial court abused its discretion
in denying his Motion for a continuance. Id. at 11-14. Berger claims that at
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some time prior to the date of his trial, he recognized that he was “having
difficulty with his mental processing,” and he had scheduled a psychiatric
appointment for the day set for his trial. Id. at 12. Berger argues that he
should have been granted a continuance so that he could have met with a
psychiatrist and been prescribed medication to address his mental health
issues, prior to proceeding to trial. Id. Berger argues that he had regularly
appeared for his court hearings, and his limited continuance requests were
justified based on his difficulty in securing the services of the Public Defender’s
office. Id. Berger argues that he was prejudiced because his decision-making
skills were impaired when he waived his constitutional rights and during his
trial. Id. at 13.
Appellate review of a trial court’s continuance decision is
deferential. The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. As we have
consistently stated, an abuse of discretion is not merely an error
of judgment. Rather, discretion is abused when the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record.
….
This Court has observed that trial judges necessarily require
a great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors
at the same place at the same time, and this burden counsels
against continuances except for compelling reasons.
Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (citations,
quotation marks and brackets omitted).
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Pennsylvania Rule of Criminal Procedure 106 states, in relevant part, as
follows:
(A) The court or issuing authority may, in the interests of justice,
grant a continuance, on its own motion, or on the motion of either
party.
….
(D) A motion for continuance on behalf of the defendant shall be
made not later than 48 hours before the time set for the
proceeding. A later motion shall be entertained only when the
opportunity therefor did not previously exist, or the defendant was
not aware of the grounds for the motion, or the interests of justice
require it.
Pa.R.Crim.P. 106 (emphasis added).
Here, Berger presented his Motion for a continuance minutes before his
trial was scheduled to begin. See N.T., 3/6/19, at 7. Berger did not indicate
that his mental issues were unknown until the day of trial. See id. at 7-15;
Pa.R.Crim.P. 106(D). Indeed, Berger represented that he had scheduled an
appointment, but did not state that he had scheduled this appointment less
than 48 hours before the time of his trial. Id. at 8. Moreover, Berger informed
the court that he had not suffered from any mental illness for years; he
produced no evidence that he was suffering from mental illness at that time
or that he had a scheduled appointment with a psychiatrist; and he had been
granted multiple continuances previously in order to secure counsel. Id. at
9, 11. Furthermore, the trial court found that Berger appeared of sound mind,
understood the nature of the proceedings and was competent to proceed;
Berger declined the trial court’s offer to have a mental health examination
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conducted by the Commonwealth; and Berger testified that he was “clear-
minded,” and did not have any mental health issues that interfered with his
ability to “understand what’s happening.” Id. at 13, 14, 15. Accordingly, we
conclude that the trial court did not abuse its discretion in denying Berger’s
Motion for a continuance. See Pa.R.Crim.P. 106; Norton, supra.
In his second claim, Berger alleges that the trial court imposed an illegal
sentence when it ordered him to pay court costs without first considering his
ability to pay. See Brief for Appellant at 14-19. Berger argues that
Pa.R.Crim.P. 706(c) requires a trial court to consider at sentencing a
defendant’s ability to pay fines. Id. at 14-15. Berger acknowledges this
Court’s holdings in Commonwealth v. Hernandez, 917 A.2d 332 (Pa. Super.
2007) (stating that Rule 706 requires that a trial court determine a
defendant’s ability to pay court costs prior to incarcerating him for failing to
pay said costs, not prior to sentencing), and Commonwealth v. Childs, 63
A.3d 323 (Pa. Super. 2013) (same). Brief for Appellant at 15-16. However,
Berger argues that the Hernandez and Childs Courts failed to address this
Court’s prior decisions in Commonwealth v. Martin, 335 A.2d 424 (Pa.
Super. 1975), and Commonwealth v. Mead, 446 A.2d 971 (Pa. Super.
1982), and that the Hernandez and Childs holdings are based on flawed
reasoning. Brief for Appellant at 15-16. Berger asks that we “revisit the
history and intent of Rule 706(c)” and effectively overrule our precedent set
in Hernandez and Childs. Id. at 15-19.
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“When the legality of a sentence is at issue on appeal, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013) (citation and quotation
marks omitted). “An illegal sentence must be vacated.” Commonwealth v.
Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009) (citation omitted).
This Court recently decided this issue in an en banc Opinion, which was
filed on March 23, 2021. See Commonwealth v. Lopez, 2021 PA Super 51(filed March 23, 2021) (en banc). In Lopez, Alexis Lopez (“Lopez”) pled guilty
to intent to deliver a controlled substance. Id. at *1. The trial court sentenced
Lopez to 11½ to 23 months in prison, followed by three years of probation.
Id. At some point, Lopez was released on parole, and subsequently violated
the terms of his parole. Id. Prior to the resentencing hearing, Lopez filed a
“Motion for Ability-to-Pay Hearing at Sentencing to Waive Costs,” “in which he
argued that the trial court was required to hold a hearing on his ability to pay
before the court could impose mandatory court costs.” Id. Like Berger, Lopez
relied on Pa.R.Crim.P. 706 and Martin, 335 A.2d 424, in support of his claim.
Id. Following a hearing, the trial court denied the Motion, stating that it was
not required to hold an ability-to-pay hearing prior to sentencing, in
accordance with this Court’s decision in Childs, 63 A.3d 324. Lopez, 2021
PA Super 51 at *1. The trial court subsequently resentenced Lopez to 6 to 23
months in prison, followed by 2 years of probation, and $1,695.94 in
mandatory court costs. Id.-8-
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On appeal, this Court reviewed Rule 706, Childs, and Martin, and
determined that Rule 706 only requires that the trial court hold an ability-to-
pay hearing before a defendant is incarcerated for failure to pay said fines,
and not before imposing court costs as a part of sentencing. Lopez, 2021 PA
Super 51 at *5. Specifically, this Court concluded that Martin was
inapplicable because it involved whether the trial court could impose fines
upon the defendant without considering the defendant’s ability to pay, not
court costs. Id. This Court “reaffirm[ed] Childs’ holding that a defendant is
not entitled to an ability-to-pay hearing before a court imposes court costs at
sentencing.” Id.Here, the trial court imposed court costs at sentencing, and has not
incarcerated Berger for failing to pay costs. Because the trial court was not
required to make an ability-to-pay determination prior to sentencing Berger
to pay court costs, Berger’s sentence legality claim fails. See Lopez, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/21
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