Com. v. Stovall, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL L. STOVALL,
Appellant No. 1329 WDA 2015
Appeal from the Judgment of Sentence July 20, 2015
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0003162-2013
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 6, 2016
Appellant, Daniel L. Stovall, appeals from the judgment of sentence
imposed following his jury conviction of driving under the influence (DUI),
general impairment, 75 Pa.C.S.A. § 3802(a)(1). We affirm.
The relevant facts and procedural history of this case are as follows.
On September 14, 2013, at 2:28 a.m., Patrolman Bruce E. Kosko of the Erie
Police Department responded to a report of an accident involving a vehicle
crash into a house. When he arrived at the scene, he observed a Cadillac
with damage to its rear resting against a house. Patrolman Kosko
interviewed a witness who reported that he observed a dark-colored sedan
driving in reverse at a high rate of speed strike the rear of the Cadillac. The
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*
Retired Senior Judge assigned to the Superior Court.
J-S20033-16
Cadillac rolled for a distance and ran into the house; the sedan fled the
scene. Patrolman Kosko also interviewed the owner of the Cadillac, who
indicated that he did not park his vehicle in its present location and that
there was no damage to it when he parked it. Based on this information, at
2:45 a.m., Patrolman Kosko issued a radio dispatch report for police to be
on the lookout for a dark-colored sedan, possibly with heavy rear-end
damage.
Approximately one hour later, Lieutenant Mark Sanders observed
Appellant’s vehicle, a silver sedan with heavy rear-end damage, traveling on
a street located approximately seven blocks from the scene of the collision.
He stopped Appellant’s vehicle and radioed for backup. Appellant exhibited
signs of intoxication including slurred speech and an odor of alcohol; he
could not stand on his own, and immediately failed a field sobriety test.
Police arrested Appellant and called an ambulance for his front seat
passenger, who was unresponsive and nearly unconscious. Although
Appellant initially consented to a blood draw, police deemed it unsafe to
administer after he became belligerent at the hospital.
On February 4, 2014, Appellant filed a motion to suppress evidence,
claiming that the stop of his vehicle was illegal. The court entered an
opinion and order denying the motion on April 7, 2014, following a hearing.
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On the morning of trial, June 9, 2015, Appellant’s appointed counsel of
record filed a motion seeking pro hac vice admission of Robert F. DiCello,
Esq., a member of the Ohio bar,1 to represent Appellant in this case.2 The
trial court denied the motion and ordered Appellant’s counsel of record to
represent him at trial. However, it permitted Attorney DiCello to participate
in Appellant’s defense in an advisory capacity.
Appellant proceeded to trial and the jury found him guilty of DUI on
June 10, 2015. On July 20, 2015, with the benefit of a pre-sentence
investigation report (PSI),3 the trial court sentenced Appellant to a term of
not less than fourteen nor more than twenty-eight months’ incarceration, a
sentence in the standard range of the sentencing guidelines. The court
denied Appellant’s timely post-sentence motion on July 30, 2015. This
timely appeal followed.4
Appellant presents the following issues for our review:
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1
Appellant resides in Ohio. (See N.T. Suppression Hearing, 4/03/14, at 3).
2
See Pennsylvania Bar Admission Rule 301(b) (requiring, inter alia, that
motions for pro hac vice admission be filed at least three days prior to
appearance before court).
3
The PSI revealed a previous DUI conviction in New York in 2006 and an
operating a vehicle while intoxicated (OVI) conviction in Ohio in September
2012. (See Trial Court Opinion, 10/12/15, at 7; Appellant’s Brief, at 9).
4
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on September 11, 2015. The
court filed an opinion on October 12, 2015. See Pa.R.A.P. 1925.
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[1.] [Whether] the trial court erred in denying [Appellant’s]
suppression motion when the circumstances surrounding the
initial police traffic stop did not rise to the level of reasonable
suspicion[?]
[2.] [Whether] the trial court erred in precluding [Appellant]
from retaining private counsel from outside Pennsylvania,
denying his right to counsel[?]
[3.] [Whether] the sentence in this case was manifestly
excessive and clearly unreasonable when the court sentenced
[Appellant] as a third conviction in the last ten years when the
other conviction was not sufficiently established as a matter of
law[?]
(Appellant’s Brief, at i) (most capitalization omitted).5
In his first issue, Appellant argues that the trial court erred in
determining that the investigatory stop was supported by reasonable
suspicion. (See id. at 5-8). Specifically, he claims that Lieutenant Sanders
lacked reasonable suspicion because his silver sedan did not match the
reported description of the dark-colored sedan involved in the collision.
(See id. at 7). Appellant further maintains that Lieutenant Sanders lacked a
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5
We take Appellant’s issues from the brief’s table of contents. The brief
appears to be missing pages and does not include a statement of the
questions involved as required by our rules of appellate procedure. See
Pa.R.A.P. 2116(a). Although we could find waiver based on this defect, see
Pa.R.A.P. 2101, we decline to do so where the three issues Appellant lists in
the table of contents correspond to those discussed in the brief, and were
included in his Rule 1925(b) statement. (See Appellant’s Brief, at i, 5, 8-9;
Rule 1925(b) Statement, 9/11/15); see also Commonwealth v. Ryan,
909 A.2d 839, 841 (Pa. Super. 2006) (declining to find waiver despite Rule
2116 violation).
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legal cause to initiate the stop because he had not observed any illegal
activity. (See id. at 7-8). This issue lacks merit.
Our standard of review is as follows:
The standard and scope of review for a challenge to the
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. When reviewing rulings of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the record supports findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Leonard, 951 A.2d 393, 396 (Pa. Super. 2008)
(citation omitted).
[O]ur courts have long recognized three levels of
interaction that occur between the police and citizens that are
relevant to the analysis of whether a particular search or seizure
conforms to the requirements of U.S. CONST. amend IV and P.A.
CONST. art. I, § 8.
The first of these is 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 respond.
The second, an “investigative detention” must be supported by
reasonable suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest. Finally, an arrest
or “custodial detention” must be supported by probable cause.
Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013), appeal
denied, 87 A.3d 320 (Pa. 2014) (case citation omitted).
. . . [P]rior to stopping a citizen for investigative purposes,
a police officer must possess at least reasonable suspicion of
that individual’s involvement in illegal activity based on the
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totality of the circumstances as known to the officer.
Nevertheless,
[r]easonable suspicion is a less stringent
standard than probable cause necessary to
effectuate a warrantless arrest, and depends on the
information possessed by police and its degree of
reliability in the totality of the circumstances. In
order to justify the seizure, a police officer must be
able to point to specific and articulable facts leading
him to suspect criminal activity is afoot. In
assessing the totality of the circumstances, courts
must also afford due weight to the specific,
reasonable inferences drawn from the facts in light of
the officer’s experience and acknowledge that
innocent facts, when considered collectively, may
permit the investigative detention.
Commonwealth v. Howard, 64 A.3d 1082, 1088 (Pa. Super. 2013),
appeal denied, 74 A.3d 118 (Pa. 2013) (citations and quotation marks
omitted).
Furthermore, “[a] finding of reasonable suspicion does not demand a
meticulously accurate appraisal of the facts.” Commonwealth v.
Muhammed, 992 A.2d 897, 901 (Pa. Super. 2010) (citation omitted).
“Indeed, even stops based on factual mistakes generally are constitutional if
the mistake is objectively reasonable.” Id. (citation omitted).
The record in the instant case reflects that, at approximately 2:45
a.m., Lieutenant Sanders received a radio dispatch report of a hit and run
accident, with a directive to be on the lookout for a dark-colored sedan with
heavy rear-end damage that had pushed another vehicle into a house. (See
N.T. Suppression Hearing, 4/03/14, at 11-12, 18, 20; see also N.T. Trial,
6/09/15, at 46). Within an hour of the report, he observed Appellant’s silver
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car, which had “substantial” rear-end damage, just seven blocks from the
collision site. (N.T. Suppression Hearing, 4/03/14, at 19; see id. at 21-22,
26). He then initiated the stop of Appellant’s vehicle based on his belief that
it was involved in the hit and run accident. (See id. at 21, 26).
Based on the totality of the circumstances, we conclude that
Lieutenant Sanders articulated the requisite reasonable suspicion to stop
Appellant’s vehicle, and that any discrepancy he made regarding its color
was objectively reasonable given the heavy rear-end damage and close
proximity to the collision site. See Howard, supra at 1088; Muhammed,
supra at 901. Therefore, the trial court properly denied the motion to
suppress evidence. See Leonard, supra at 396. Appellant’s first issue
does not merit relief.
In his second issue, Appellant claims that the trial court violated his
Sixth Amendment right to counsel during his jury trial. (See Appellant’s
Brief, at 8-9). Specifically, he argues that the court denied him the right to
counsel of his choice when it refused to grant pro hac vice admission to his
privately retained counsel from Ohio, Attorney DiCello. (See id.). We
disagree.
Preliminarily, we observe that because this issue presents a question
of law, we apply a de novo standard of review. See Commonwealth v.
Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009).
The Sixth Amendment to the United States Constitution provides: “In
all criminal prosecutions, the accused shall enjoy the right . . . to have the
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Assistance of Counsel for his defence.” U.S. Const., amend. VI. “[T]he core
purpose of the [Sixth Amendment] counsel guarantee was to assure
‘Assistance’ at trial, when the accused was confronted with both the
intricacies of the law and the advocacy of the public prosecutor.”
Commonwealth v. Padilla, 80 A.3d 1238, 1252 (Pa. 2013), cert. denied,
134 S. Ct. 2725 (2014) (citations omitted). “As a general rule, a conviction
will not be vacated for a violation of the Sixth Amendment right to counsel in
the absence of a showing that the reliability of the defendant’s trial was
undermined.” Id. at 1253 (citations omitted).
The Sixth Amendment to the United States Constitution
provides that in all criminal prosecutions, the accused shall enjoy
the right to have the assistance of counsel for his or her defense.
Similarly, Article I, Section 9 of the Constitution of this
Commonwealth affords to a person accused of a criminal offense
the right to counsel. However, the constitutional right to counsel
of one’s own choice is not absolute. Rather, the right of an
accused individual to choose his or her own counsel, as well as a
lawyer’s right to choose his or her clients, must be weighed
against and may be reasonably restricted by the state’s interest
in the swift and efficient administration of criminal justice. Thus,
while defendants are entitled to choose their own counsel, they
should not be permitted to unreasonably clog the machinery of
justice or hamper and delay the state’s efforts to effectively
administer justice.
Lucarelli, supra at 1178-79 (citations omitted).
Here, despite Appellant’s apparently existing attorney-client
relationship with Ohio attorney DiCello, he did not file his motion seeking
permission for Attorney DiCello to represent him at trial until the morning
of trial. (See Motion for pro hac vice admission of Robert F. DiCello,
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6/09/15, at 1 ¶ 3); see also Pa.B.A.R. 301(b)(2)(ii) (requiring motion to be
filed by sponsor at least three days prior to court appearance). At this point,
appointed counsel from the public defender’s office had been Appellant’s
attorney of record and active in this case for eight months, since October
2014; prior to this, Appellant was represented by another attorney from the
public defender’s office. The trial court found that the motion was untimely
and that Attorney DiCello failed to comply with other applicable procedural
requirements for out-of-state attorneys seeking pro hac vice admission.
(See N.T. Trial, 6/09/15, at 3-5). However, it did permit Attorney DiCello to
assist in Appellant’s defense during trial in an advisory capacity. (See id. at
7-8; Appellant’s Brief, at 3).
Upon review, we conclude that the trial court did not violate
Appellant’s constitutional right to counsel by denying his eleventh-hour
request to permit an attorney who is not licensed to practice law in
Pennsylvania to try his case, instead of his attorney of record. See
Lucarelli, supra at 1178-79. The record reflects that the trial court
properly declined the non-compliant application and reasonably restricted
Appellant’s right to choose his own counsel; Appellant has not shown that
the court’s ruling undermined the reliability of his trial in any way. See
Padilla, supra at 1253. Therefore, Appellant’s second issue does not merit
relief.
In his third issue, Appellant challenges the legality of his sentence.
(See Appellant’s Brief, at 9). Specifically, he avers that the trial court
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erroneously treated the instant conviction as his third DUI offense in the last
the ten years. (See id.). Although he acknowledges his previous DUI/OVI
convictions in New York in 2006 and in Ohio in 2012, he nevertheless
maintains, without citation to authority, that “because the Ohio offense was
treated as a first offense by the Ohio Courts, the Pennsylvania offense
should be a second offense.” (Id.). This issue does not merit relief.
A challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has jurisdiction. It is
also well-established that if no statutory authorization exists for
a particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. Issues relating
to the legality of a sentence are questions of law[.] . . . Our
standard of review over such questions is de novo and our scope
of review is plenary.
Commonwealth v. Batts, 125 A.3d 33, 45-46 (Pa. Super. 2015) (citation
omitted).
Preliminarily, we observe that Appellant’s single-paragraph argument
on this issue is underdeveloped; he has failed to cite or discuss any legal
authority to support his position. See Pa.R.A.P. 2119(a)-(b). However,
because we have jurisdiction over this matter and an illegal sentence must
be vacated, we will review his claim. See Batts, supra at 45-46.
Section 3806 of the Vehicle Code, titled “Prior offenses” provides, in
pertinent part:
(b) Repeat offenses within ten years.—The calculation of
prior offenses for purposes of sections 1553(d.2) (relating to
occupational limited license), 3803 (relating to grading) and
3804 (relating to penalties) shall include any conviction, whether
or not judgment of sentence has been imposed for the violation,
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adjudication of delinquency, juvenile consent decree, acceptance
of Accelerated Rehabilitative Disposition or other form of
preliminary disposition within the ten years before the
sentencing on the present violation for any of the following:
(1) an offense under section 3802 [(relating to
DUI)];
(2) an offense under former section 3731;
(3) an offense substantially similar to an
offense under paragraph (1) or (2) in another
jurisdiction; or
(4) any combination of the offenses set forth in
paragraph (1), (2) or (3).
75 Pa.C.S.A. § 3806(b) (emphasis added). Thus, the plain language of the
statute contemplates including convictions substantially similar to DUI in
other jurisdictions in calculating prior offenses. See id. Therefore, the trial
court properly treated Appellant’s DUI as a third offense.
Moreover, Appellant’s assertion that the instant DUI conviction was
erroneously treated as a third offense, (see Appellant’s Brief, at 9), is
directly contradictory to his position at the sentencing hearing, where
defense counsel acknowledged Appellant’s previous Ohio and New York
convictions, and readily conceded “This is a third offense, and my client’s
recognizing this[.]” (N.T. Sentencing, 7/20/15, at 5). The trial court then
imposed sentence within the standard range of the sentencing guidelines.
(See id. at 10-11; see also Guideline Sentence Form, 7/21/15, at 1). After
review of the record, we conclude that Appellant’s argument that his
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sentence is illegal is specious. Therefore, his third issue does not merit
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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