Com. v. Pinkney, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY R. PINKNEY
Appellant No. 3546 EDA 2014
Appeal from the Judgment of Sentence of December 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0013967-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 02, 2015
Anthony Pinkney appeals his December 11, 2014 judgment of
sentence entered upon his convictions for unlawful contact with a minor, 18
Pa.C.S. § 6318; criminal conspiracy, 18 Pa.C.S. § 903; indecent assault of a
person less than thirteen years of age, 18 Pa.C.S. § 3126; involuntary
deviate sexual intercourse (“IDSI”), 18 Pa.C.S. § 3123; and corruption of
the morals of a minor, 18 Pa.C.S. § 6301. Pinkney raises an evidentiary
issue and also challenges the legality of his sentence. We find that Pinkney’s
evidentiary claim lacks merit. However, we vacate his judgment of
sentence, and we remand for resentencing, because we agree that Pinkney’s
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*
Retired Senior Judge assigned to the Superior Court.
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sentence is illegal pursuant to our decision in Commonwealth v. Wolfe,
106 A.3d 800 (Pa. Super. 2014).1
During July and August, 2013, then-eighteen-year-old Pinkney visited
his great grandmother’s home, where his then eleven-year-old cousin
(“Victim”) lived. During his time there, Pinkney repeatedly persuaded Victim
to perform oral sex on him. Eventually, Pinkney convinced Victim to perform
oral sex on his friend, as well. This pattern continued on a nearly nightly
basis for some time. Then, on August 5, 2013, Pinkney and his friend
convinced Victim to perform oral sex on one of the young men while the
other man inserted his penis into her anus.
The day after this last episode, on August 6, 2013, Victim informed her
mother about Pinkney’s friend, but at first did not mention Pinkney’s own
involvement. They then informed the police. There, Detective Adam
O’Donnell interviewed Victim privately. Again, at first, she mentioned only
Pinkney’s friend, but, after further discussion, she also implicated Pinkney.
Pinkney was arrested, whereafter he met with Detective O’Donnell.
Detective O’Donnell read Pinkney his Miranda rights.2 Pinkney waived his
rights, and Detective O’Donnell interviewed Pinkney about Victim’s
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1
Our Supreme Court has granted expedited review of our Wolfe
decision. See Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2015) (per
curiam). It has not yet issued its decision in that case.
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
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allegations. Pinkney denied having any sexual contact with Victim.
Detective O’Donnell then summoned his colleague, Detective Justin
Montgomery, who reminded Pinkney that he had waived his Miranda rights
and asked Pinkney whether he would like to make a statement regarding the
events of the prior day. Pinkney then admitted that he had sexual contact
with Victim the prior day, and he signed a written statement to that effect.
However, during his trial, Pinkney denied that he had had such contact with
Victim and claimed never to have seen the written statement.
During Detective Montgomery’s testimony, counsel for Pinkney
questioned him regarding the date recorded on the statement, which was
August 26, 2013. Detective Montgomery admitted that he had noted the
wrong date; the statement in question had been made on August 6, 2013.
Detective Montgomery further testified that he realized his error
approximately one week before trial but never informed the prosecutor
about the discrepancy. At this time, Pinkney moved for a mistrial. The trial
court denied Pinkney’s motion.
Following trial, the jury found Pinkney guilty of the above-cited crimes.
After receiving a pre-sentence report, on December 11, 2014, the trial court
imposed concurrent sentences on Pinkney’s various charges totaling twelve
and one half to twenty-five years’ incarceration, equal to the longest
individual sentence, which was imposed upon Pinkney’s conviction for IDSI.
The trial court also imposed seven years of probation for Pinkney’s
corruption of minors conviction, to run consecutively to Pinkney’s
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incarceration. Of relevance to Pinkney’s sentencing argument, the IDSI
conviction then was subject to a ten-year mandatory minimum sentence
under 42 Pa.C.S. § 9718(a), which this Court since has held to be
unconstitutional. See Wolfe, supra.
At the close of trial, counsel for Pinkney interposed what he styled a
“motion for JNOV,” which the trial court agreed to accept orally but
immediately denied. On December 11, 2014, the trial court imposed
Pinkney’s judgment of sentence. On December 15, 2014, Pinkney timely
filed the instant appeal. On December 16, 2014, the trial court ordered
Pinkney to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On January 5, 2015, the trial court entered
an amended Rule 1925(b) order. On January 20, 2015, Pinkney timely filed
his Rule 1925(b) statement, and the trial court filed its Rule 1925(a) opinion
on February 5, 2015, ripening this case for appeal.
In his statement of the questions involved, Pinkney raises only the
following issue:
Was the court in error upon denying a mistrial as it was
discovered in court that:
a. [t]he initial interview between the detective and
[Pinkney] was dated incorrectly and passed as pre-trial
discovery with reasonable expectation that it is to be
factual [sic], [and]
b. [t]he detective did not notify the Commonwealth upon
noticing the error.
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Brief for Pinkney at 6. However, in a two-sentence paragraph tacked on to
the argument section of his brief, Pinkney also challenges the legality of his
sentence. See id. at 11. Notably, the Commonwealth does not oppose
Pinkney’s challenge to the legality of sentence, and the trial court specifically
asks this Court to remand for resentencing. See Brief for Commonwealth at
10; Trial Court Opinion (“T.C.O.”), 2/5/2015, at 13.
Pinkney first challenges the trial court’s refusal to enter a mistrial,
which Pinkney sought upon the basis that a discrepancy on the date noted
on Pinkney’s August 6, 2013 statement prejudiced the defense because
Pinkney had no notice of the discrepancy and thus was unable to adjust his
defense strategy accordingly. Pinkney cites no case law in support of his
one-page argument and includes only conclusory claims of prejudice,
without the slightest effort to explain how advance notice of the discrepancy
would have changed the way Pinkney approached his trial.
The standard governing our review of a challenge to a trial court’s
denial of a motion for a mistrial is as follows:
A motion for a mistrial is within the discretion of the trial court.
Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa.
Super. 2000) (citations omitted). “[A] mistrial [upon motion of
one of the parties] is required only when an incident is of such a
nature that its unavoidable effect is to deprive the appellant of a
fair and impartial trial.” Commonwealth v. Lease, 703 A.2d
506, 508 (Pa. Super. 1997). It is within the trial court’s
discretion to determine whether a defendant was prejudiced by
the incident that is the basis of a motion for a mistrial. Id. On
appeal, our standard of review is whether the trial court abused
that discretion. Stafford, 749 A.2d at 500.
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An abuse of discretion is more than an error in judgment.
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002).
On appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised by the trial court was manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will. Id.
When the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge
bears a heavy burden . . . . [I]t is not sufficient to
persuade the appellate court that it might have reached a
different conclusion if, in the first place, [it was] charged
with the duty imposed on the court below; it is necessary
to go further and show an abuse of discretionary power.
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion 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 of record, discretion is
abused. We emphasize that an abuse of discretion may
not be found merely because the appellate court might
have reached a different conclusion . . . .
Commonwealth v. Garcia, 661 A.2d 1388, 1394-95
(Pa. Super. 1995) (quoting Paden v. Baker Concrete Constr.,
Inc., 658 A.2d 341, 343 (Pa. 1995) (citations and quotation
marks omitted)).
Commonwealth v. Tejeda, 834 A.2d 619, 623-24 (Pa. Super. 2003)
(citations modified; footnote omitted).
As noted, Pinkney’s argument is conclusory and lacking in any material
legal analysis. This Court consistently has held that, “[w]hen an appellant
fails to develop his issue in an argument and fails to cite any legal authority,
the issue is waived.” Commonwealth v. B.D.G., 959 A.2d 362, 371-72
(Pa. Super. 2008). Although Pinkney asserts that there is no Pennsylvania
case law addressing the question presented, that is beside the point: Our
decisional law, in fact, is replete with cases concerning Commonwealth
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discovery violations and the like from which one may derive broader
principles of general application, especially with regard to what constitutes
prejudice necessitating relief.
It is not this Court’s responsibility to comb through our case law when
an appellant declines to do so. Furthermore, a mistrial should only be
granted when the error in question has the unavoidable effect of depriving
the appellant of a fair and impartial trial, and this Court will reverse a trial
court’s refusal to do so only when its determination that such prejudice did
not occur reflects a manifest abuse of discretion. See Tejeda, supra.
Pinkney’s failure to specify with any particularity how a simple discrepancy
on the date recorded on his statement compromised the fairness of his trial
leaves this Court with no basis upon which to grant relief. Accordingly, we
affirm the trial court’s decision not to grant a mistrial.
With respect to Pinkney’s assertion that his judgment of sentence was
illegal, his failure to provide any meaningful argument on this point, beside a
citation to this Court’s decision in Wolfe, supra (without even providing a
citation for that decision), does not waive his claim. See Commonwealth
v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (“[C]hallenges to the legality
of the sentence are never waived.”). As noted, supra, at the time of his
sentencing, Pinkney was subject to a ten-year mandatory minimum
sentence for his IDSI conviction pursuant to 42 Pa.C.S. § 9718(a).
However, this Court since has held that subsection 9718(a) is facially
unconstitutional. See Wolfe, supra. Although our Supreme Court has
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granted review of our decision in that case, unless and until the Court
reverses or modifies our decision, it remains the law of Pennsylvania. See
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).
As noted, neither the trial court nor the Commonwealth disputes that
Wolfe renders Pinkney’s sentence illegal. The trial court expressly asks that
we remand the case for resentencing, and the Commonwealth does not
oppose the trial court’s request. Under these circumstances, we discern no
benefit to reviewing the law at length, although the trial court has provided
an admirably erudite account of the evolution of the law leading directly to
our Wolfe decision from the United States Supreme Court’s decision in
In re Winship, 397 U.S. 358 (1970), forward. See T.C.O. at 7-13.
Both parties and the trial court correctly relate the effect of our
decision in Wolfe upon sentences like Pinkney’s. Although the trial court in
fact imposed a sentence upon Pinkney’s IDSI conviction that exceeds the
prescribed ten-year mandatory minimum sentence, neither the trial court
nor the Commonwealth suggests that this warrants a different result than
Wolfe would require had Pinkney been sentenced just to the ten-year
mandatory minimum on that charge. Given that it is not at all obvious that
such a circumstance would restore the legality of Pinkney’s sentence, and
because the parties provide no advocacy on this issue, we assume without
deciding that Wolfe requires the same result under the instant
circumstances. Accordingly, we vacate Pinkney’s judgment of sentence and
remand for resentencing.
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Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2015
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