Com. v. Hoffa, K. ( 2021 )

J-A07026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ALAN HOFFA :
:
Appellant : No. 703 MDA 2020
Appeal from the Judgment of Sentence Entered March 4, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001420-2018
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED MAY 26, 2021
Appellant Keith Alan Hoffa appeals from the Judgment of Sentence of
63 to 126 years’ incarceration imposed after the court found him guilty of
multiple sex abuse offenses involving five children. Appellant purports to
challenge the sufficiency of the evidence supporting each of the convictions,
and the exercise of the court’s discretion in ordering consecutive rather than
concurrent sentences. After careful review, we remand for the trial court to
file a supplemental Rule 1925(a) Opinion.
Over the course of many years, Appellant sexually assaulted girls when
they were between the ages of 8 and 16. In late 2016, M.C., who was a friend
of Appellant’s daughter, told her mother that when she stayed over at
Appellant’s house for sleepovers, Appellant would touch her in the bath,
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* Former Justice specially assigned to the Superior Court.
J-A07026-21
shower, and while getting dressed, in ways that made her feel uncomfortable.
Mother reported the molestation to the authorities, and a grand jury
investigation ensued.
On June 1, 2018, the Commonwealth indicted Appellant on twenty-four
offenses involving at least five girls, some now women, including Rape of a
Child, two counts of Indecent Assault-Person Less than 13 years of age;
Criminal Solicitation-Indecent Assault Person Less than 13 years of age; two
counts of Indecent Exposure, Dissemination of Obscene Materials to a Minor,
three counts of Corruption of Minors-Defendant Age 18 or Above, Unlawful
Contact with Minor-Sexual Offenses, Unlawful Contact with Minor-Obscene
and other Sexual Materials and Performance, two counts of Involuntary
Deviate Sexual Intercourse-Person Less than 16 years of age; two counts of
Aggravated Indecent Assault-Person Less than 16 years of age; and Indecent
Assault-Person Less than 16 years of age.1
Appellant filed a pre-trial Motion for a Taint and Competency Hearing.
Soon thereafter, defense counsel filed at Appellant’s behest a Motion to
Withdraw from representation indicating Appellant wished to represent
himself. The court held a hearing on the Motions on November 20, 2019, first
addressing the Motion to Withdraw. When the court asked Appellant if he
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1 18 Pa.C.S. §§ 3121(c), 3126(a)(7), 902(a), 3127(a), 5903(c)(1),
6301(a)(1)(ii), 6318(a)(1) and (4), 3123(a)(7); 3125(8), and 3126(a)(8).
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wanted to represent himself, he responded “no.” N.T. Hearing, 11/20/19, at
4, 6. The court then carried on with the taint and competency hearing.
Appellant proceeded to a bench trial before the Hon. Deborah E. Curcillo
on December 9, 2019. Over three days, the court heard detailed testimony
from eight girls and women who had received unwanted and inappropriate
touching and other sexual assaults from Appellant or had observed Appellant
as he inappropriately touched other victims, some beginning when they were
eight years old. Some of them testified regarding taking baths with him when
they were between the ages of 10 and 12 years old and his having touched
their breasts and vaginas, sometimes with his mouth. Some spoke of
Appellant’s taking photographs of them when they were in the bathtub or just
out of the tub, encouraging them to skinny dip in his hot tub with him, and
having them touch his penis with their hands or their mouths. In addition,
they testified regarding Appellant’s giving them gifts, wine coolers, and
attention, as well as their friendships with Appellant’s daughter and/or his
stepson. One victim testified that Appellant had raped her more than once
when she 8 or 9 years old.2
The Commonwealth also presented testimony from investigating
detectives, a forensic investigator who had interviewed M.C., relatives of two
victims, and an expert on children’s responses to sexual abuse. In addition,
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2 N.T., 12/10/19, at 248-49.
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the court admitted the tape of two forensic interviews and one video statement
from three victims; a handwritten note from Appellant to one of the girls, a
thumb drive containing suggestive photos of girls, and a computer printout
showing names of websites accessed by Appellant with names suggesting child
pornography involving teenaged and younger girls. Appellant and his wife also
testified.
Immediately after closing arguments, Judge Curcillo found Appellant
guilty of the seventeen offenses set forth above and one obstruction of justice
charge.3 She ordered a pre-sentence investigation and an evaluation from
the Sex Offender Assessment Board (“SOAB”).
On March 4, 2020, the court held a sentencing hearing, noting it had
reviewed the presentence investigation report and the SOAB evaluation
designating Appellant a sexually violent predator (“SVP”). After listening to
victim impact statements and Appellant, the court stated:
Based on the conviction, as well as the pattern of behavior
demonstrated by [Appellant] over many years, determined to find
vulnerable families and just prey on young girls relentlessly over
two decades using control and ultimately harming these numerous
young girls, these victims having experienced and continue to
experience anxiety and depression and probably for years to
come, his actions have not only affected the victims, but their
families and future relationships, we believe the sentence I’m
about to give is appropriate.
N.T. Sentencing, 3/4/20, at 8-9.
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3 The court found him not guilty of four charges; the Commonwealth had
withdrawn three charges before trial.
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The court then sentenced Appellant to consecutive terms of
imprisonment aggregating to a total of 63 to 126 years’ incarceration. Id.4
After the denial of Post-Sentence Motions filed by new counsel,
Appellant appealed.5 He filed a court-ordered Pa.R.A.P. 1925(b) Statement
on July 13, 2020. The trial court filed a Rule 1925(a) Opinion on July 23,
2020, concluding, among other things, that it was unable to address the
sufficiency and sentencing challenges because Appellant had not requested
the trial transcripts when he filed his Notice of Appeal. See Memorandum
Op., dated 7/23/20, at 5 (stating “the lack of trial transcripts prevents this
[c]ourt from providing a meaningful opinion in support of the reasons which
gave rise to the appeal. The Superior Court cannot accept a trial court’s
assertions in its 1925 Opinion as an accurate portrayal of what transpired at
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4Specifically, the court entered the following terms of incarceration: Rape of
a Child, 25-50 years; Indecent Assault on Victim less than 13 years of age,
25-50 years; Criminal Solicitation, 3 years; Indecent Exposure, 2 years; IDSI
Person less than 16 years of age, 5 years; 2 counts of Aggravated Indecent
Assault-Person less than 16 years of age, 1 to 2 years each; Indecent Assault-
Person less than 16 years of age, 1-2 years.
5 The Notice of Appeal, filed May 8, 2020, is deemed timely in accordance with
the Order issued in In re: General Statewide Judicial Emergency, 234
A.3d 408 (Pa. filed May 27, 2020) (due to the COVID-19 pandemic,
suspending time calculations and filing deadlines from March 16, 2020,
through June 1, 2020). Accordingly, the Commonwealth’s assertion that this
court lacks jurisdiction due to an untimely-filed Notice of Appeal is incorrect.
See Appellee’s Brief at 4.
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a … trial without having a transcript of the proceedings in the certified
record.”).
Appellant requested the trial transcripts on September 21, 2020, and
the court reporter filed them on September 28, 2020. The prothonotary of
the court of common pleas subsequently supplemented the certified record
with the transcripts.
Appellant raises the following issues in his Statement of Questions
Presented:
1. Whether the lower court conducted a deficient Grazier[6]
colloquy prior to Appellant’s taint hearing?
2. Whether this Honorable Court should remand the instant
matter for the trial court to file a Pa.R.A.P. 1925(a) Opinion?
3. Whether the Commonwealth failed to present sufficient
evidence for Appellant’s: indecent assault, criminal solicitation
for indecent assault, indecent exposure, dissemination of
obscene material to a minor, corruption of minors, and unlawful
contact with a minor convictions against M.C.; rape of a child,
indecent assault of a child under thirteen, indecent exposure,
and corruption of minors against M.S. involuntary deviate
sexual intercourse convictions against C.H.; involuntary
deviate sexual intercourse and aggravated assault convictions
against C.R.; and aggravated indecent assault, indecent
assault, and corruption of minors convictions against T.H.?
4. Whether the trial court imposed an excessive and unreasonable
sentence?
Appellant’s Brief at 15 (reordered).
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6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), requires a court to
conduct a colloquy with the defendant who wishes to represent himself to
determine, among other things, the voluntariness of the waiver of the right to
counsel.
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Issue 1
In his first issue, Appellant avers that the lower court conducted a
“deficient Grazier colloquy prior to Appellant’s taint hearing” as required by
Pa.R.Crim.P. 121(A). Appellant’s Br. at 45, 47. In his argument, Appellant
does not actually cite to or discuss Grazier. However, he string quotes other
cases applying legal principles relevant to review of whether a defendant
knowingly waived the right to counsel, noting that a court must “fully advise
the accused of the nature and elements of the crime before accepting waiver
of counsel.” Id. at 49 (citation omitted). He contends that because the court
did not inquire into whether there was a conflict of interest or whether counsel
was neglecting to file meritorious motions, the court “failed to properly
colloquy him on his decision, instead, making his decision for him.” Id. at 49-
50.
The trial court addressed Appellant’s claim as follows:
Although the Motion to Withdraw was filed by Appellant’s counsel
on his behalf, Appellant immediately stated that he did not wish
to represent himself for his trial. During this hearing, Appellant
never stated that he wished to remove his counsel. In fact,
Appellant states twice that he does not wish to represent himself
for his trial. The [ ]conversation, as noted above, between
Appellant and the [c]ourt reveals that Appellant merely had
questions and concerns regarding the grand jury and procedural
issues. . . . The requirements set forth in Pa.R.Crim.P. 121(A) are
necessary in situations when a defendant has decided to proceed
pro se for trial. It is necessary and required to go through the
appropriate colloquy after a defendant has invoked his right to
waive counsel and before a judge allows a defendant to proceed
pro se. In this instant case, Appellant stated that he did not wish
to represent himself and would not be proceeding pro se.
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Consequently, a colloquy informing him of his rights and the
consequences of proceeding pro se was not necessary because
Appellant did not choose to proceed pro se.
Tr. Ct. Op., dated 7/23/20, at 10 (citations to record and case law
omitted).
We agree with the trial court’s reasoning. In his Brief, Appellant does
not acknowledge that when the court asked him at the start of the hearing on
the Motion to Withdraw if he was requesting that his attorneys withdraw their
representation, he specifically told the court “No.” N.T. Pre-trial Hearing,
11/20/19, at 4. He further stated that he could not represent himself, and
subsequently repeated that he did not wish to represent himself. See N.T.
Pre-trial Hearing at 4, 6. Since Appellant did not want to waive his right to
counsel, the court was not obligated to conduct a Grazier hearing.
Accordingly, Appellant’s first issue warrants no relief.
Issues 2 through 4
Appellant requests that we remand his case to the trial court for a
Pa.R.A.P. 1925(a) Opinion that addresses the issues raised in his Rule 1925(b)
Statement. Appellant’s Br. at 36. He notes that because the trial transcript
was served on all parties on September 28, 2020, “all deficiencies have been
cured.” Id.
Pa.R.A.P. 1922 provides that an appellant “may file a request for
transcripts Under Pennsylvania Rule of Judicial Administration 4007 prior to or
concurrent with the notice of appeal.” (emphasis added). See also Pa.R.A.P.
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1911 (an appellant is required to request any transcript “in the time prescribed
by Rules 4001 et seq. of the Pennsylvania Rules of Judicial Administration.”)
[“Pa.R.J.A.”]). Pa.R.J.A. Nos. 4001-4016 do not provide a specific time frame
in which an appellant must request a transcript. Rather, those rules set forth,
inter alia, time frames by which court reporters must respond to requests for
transcripts. See, e.g., Pa.R.J.A. 4011. In the event a transcript is not part of
the record, an appellate court “may take such action as it deems appropriate,
which may include dismissal of the appeal.” Pa.R.A.P. 1911(d).
Here, Appellant did request the trial transcript, albeit four months after
filing the Notice of Appeal. Notwithstanding the delayed request, the trial
court received the transcript and included it as part of a supplement to the
record certified to this court. As noted in its Rule 1925(a) Opinion, filed ten
days after the filing of Appellant’s Rule 1925(b) Statement, the trial court
could not review Appellant’s sufficiency and sentencing issues without the trial
transcript.
The transcript is now part of the record. Because the purpose of the
Rule 1925(a) Opinion is “to provide the appellate court with a statement of
reasons for the order ... to permit effective and meaningful review,”
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005), we remand
for the trial court to file a supplemental Rule 1925(a) Opinion addressing the
sufficiency and sentencing issues raised in Appellant’s Rule 1925(b)
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Statement, except for the Grazier issue set forth as Issue #6 in his 1925(b)
Statement, which we have addressed above.
Further, we direct the trial court to file its supplemental Rule 1925(a)
Opinion within 30 days after remand. If he chooses, Appellant may file an
amended Brief within 30 days after the trial court files its Supplemental Rule
1925(a) Opinion. The Commonwealth may file an Amended Appellee’s Brief
within 14 days after Appellant files his amended Brief.
Case remanded with instructions. Panel jurisdiction retained.
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