Com. v. Decosta, D. ( 2018 )

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2018 PA Super 282COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DONDI DECOSTA,
Appellant No. 3317 EDA 2016
Appeal from the Judgment of Sentence Entered September 30, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004260-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
OPINION BY BENDER, P.J.E.: FILED OCTOBER 16, 2018
Appellant, Dondi DeCosta, appeals from the judgment of sentence of an
aggregate term of 4-10 years’ incarceration, imposed following his conviction
for possession of an instrument of crime and terroristic threats. Appellant
claims the trial court abused its discretion by permitting the jury to convict
Appellant in absentia while Appellant was hospitalized and intubated, which
occurred during the course of the jury’s deliberations. After careful review,
we vacate Appellant’s judgment of sentence and remand for a new trial.
A detailed recitation of the facts underlying Appellant’s conviction are
not necessary to our disposition of this appeal. Briefly, on October 12, 2015,
Appellant threatened two strangers with a knife in front of a Pathmark Store
in Northeast Philadelphia. One victim drew a firearm and warned Appellant to
stop, but Appellant ignored the warning. The victim shot Appellant in the
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groin as Appellant charged him with the knife. The Commonwealth charged
Appellant with two counts each of aggravated assault, terroristic threats,
simple assault, and recklessly endangering another person, and one count of
possessing an instrument of crime.1
Appellant was tried by a jury between June 22nd and June 27th of 2016.
The jury began its deliberations on Friday the 24th, and were set to reconvene
on Monday the 27th. As deliberations were set to begin on that Monday,
Appellant’s counsel informed the court that Appellant had been hospitalized
over the weekend with a diagnosis of Sepsis. N.T., 6/27/16, at 2. Counsel
indicated that Appellant was sedated and on a mechanical ventilator and,
therefore, unable to attend the trial. Id. Counsel provided documentation
from two doctors corroborating this account. Counsel refused the court’s
request to waive his client’s presence if there were any questions from the
jury. Id. at 3.
The trial court decided to proceed over defense counsel’s objections.
Specifically, the trial court declared that no prejudice would result from
Appellant’s absence, and that defense counsel could address any questions
raised by the jury. Id. at 5. Defense counsel objected to proceeding in any
fashion until Appellant was able to return to the courtroom, and that the trial
court should declare a mistrial if it refused to stay deliberations. Id. at 6-7.
Defense counsel specifically requested that the court stay the jury’s
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1The simple assault and recklessly endangering another person charges were
nolle prossed prior to trial.
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deliberations until noon (three hours later) in order to get an update on
Appellant’s condition. Id. at 6-7. The trial court denied counsel’s
objections/requests. Id. at 7. Soon thereafter, the jury requested further
instructions on the definitions of the charged crimes. Id. at 8. Defense
counsel renewed his objection to proceeding in absentia. Id. at 9. The court
denied the objection and proceeded to instruct the jury. Id. at 12-22.
Immediately thereafter, the jury indicated that it had reached a verdict.
Id. at 23. When the trial court signified that it intended to receive the verdict,
defense counsel renewed his objection to proceeding in Appellant’s absence,
“especially for a verdict.” Id. The trial court overruled the objection, and
proceeded to receive the jury’s verdict in Appellant’s absence. Id. at 25-30.
The jury found Appellant guilty of possessing an instrument of crime and
one count of terroristic threats, and not guilty as to all remaining counts. On
September 30, 2016, the trial court sentenced Appellant to 2-5 years’
incarceration for possessing an instrument of crime, and to a consecutive term
of 2-5 years’ incarceration for terroristic threats, constituting an aggregate
sentence of 4-10 years’ incarceration.
Appellant filed a timely notice of appeal. On February 15, 2017,
Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued its opinion 291 days later, on December 4, 2017.
Appellant now presents the following questions for our review:
1. Did the trial court err in taking the verdict of the jury when the
Appellant was not present due to medical problems?
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2. Did the lower court err at sentencing by imposing a term of
imprisonment that was excessive and was imposed without proper
consideration of mitigating circumstances?
Appellant’s Brief at 3.
Appellant’s first claim concerns his constitutional and statutory rights to
be present during every stage of a criminal trial.
The right to trial by jury is guaranteed by the Sixth Amendment
to the U.S. Constitution and by the Pennsylvania Constitution,
Article I, Section 6 and Section 9. A defendant’s right to be
present at his or her trial is grounded in the Confrontation Clause
of the Sixth Amendment and in the Due Process Clauses of the
Fifth and Fourteenth Amendments. The United States Supreme
Court has determined that “[o]ne of the most basic of the rights
guaranteed by the Confrontation Clause is the accused’s right to
be present in the courtroom at every stage of his trial.” Illinois
v. Allen, 397 U.S. 337, 338 … (1970) (citing Lewis v. United
States, 146 U.S. 370 … (1892)). In addition, the High Court “has
assumed that, even in situations where the defendant is not
actually confronting witnesses or evidence against him, he has a
due process right to be present in his own person whenever his
presence has a relation, reasonably substantial, to the fullness of
his opportunity to defend against the charge…. Thus, a defendant
is guaranteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.” Kentucky v.
Stincer, 482 U.S. 730, 745 … (1987) (quotation marks and
internal citation omitted).
Commonwealth v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012).
Additionally, Pa.R.Crim.P. 602(A) provides that:
The defendant shall be present at every stage of the trial including
the impaneling of the jury and the return of the verdict, and at
the imposition of sentence, except as otherwise provided by this
rule. The defendant’s absence without cause at the time
scheduled for the start of trial or during trial shall not preclude
proceeding with the trial, including the return of the verdict and
the imposition of sentence.
Pa.R.Crim.P. 602(A).
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Under the constitutional standard, the right to be present at trial “is not
guaranteed ‘when presence would be useless, or the benefit but a shadow.’
Due process only requires the defendant’s presence ‘to the extent that a fair
and just hearing would be thwarted by his absence.’” Commonwealth v.
Williams, 959 A.2d 1272, 1281–82 (Pa. Super. 2008), aff'd, 9 A.3d 613 (Pa.
2010). As such, the constitutional rights at issue are circumscribed by a
prejudice standard – a defendant must show that his absence from a trial
proceeding could have undermined the fairness of the proceeding.
However, Rule 602 provides for more protection than offered by either
the United States or Pennsylvania Constitutions. Rule 602 dictates that a
defendant “shall be present at every stage of the trial including the
impaneling of the jury and the return of the verdict, … except as otherwise
provided by this rule.” Pa.R.Crim.P. 602(A) (emphasis added). The only
exception provided by Rule 602 is where the defendant is “absent without
cause….” Id.2 Thus, we, first consider whether the trial court abused its
discretion in determining, pursuant to Rule 602(A), that Appellant was absent
without cause when the verdict was issued on June 27, 2016.
In its opinion, the trial court reasoned that it did not err in receiving the
verdict in absentia because it found that Appellant was absent without cause.
Trial Court Opinion (“TCO”), 12/4/17, at 11-19. Specifically, the trial court
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2 However, like most rights, a defendant may affirmatively waive his presence
during trial proceedings. See Pa.R.Crim.P. 602 (comment) (“Nothing in this
rule is intended to preclude a defendant from affirmatively waiving the right
to be present at any stage of the trial….”).
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determined that Appellant was absent without cause because it determined
that he had deliberately attempted to commit suicide in order to avoid his
trial. Id. at 14. The court based this finding on Appellant’s family’s reporting
to doctors that they were concerned that his hospitalization “may actually
have been a suicide attempt.” Id. (quoting from Exhibit E of Appellant’s
Sentencing Motion, a note from a treating physician). “More importantly,” the
court reasoned, “the document test results from Aria [H]ospital reflected that
Appellant had tested positive for both benzodiazepines and opiates before
being admitted to the hospital.” Id. The court admitted that its decision was
influenced by Appellant’s previous attempts to “employ, falsify or exaggerate
his medical conditions to avoid trial an incur undue sympathy information [sic]
from the jury….” Id. at 15. The trial court summarized this prior conduct as
follows:
The docketed court history of [the] instant case was replete with
successful employment of [Appellant’s] purported medical
conditions to lower bail and delay trial. When this case was first
presented before this presiding trial court[,] the effort to use his
medical conditions to unduly delay trial was unsuccessfully
renewed. During this effort, [Appellant] revealed himself to be
quite competent and able to proceed to trial despite his
protestations to the contrary.
This [c]ourt similarly observed that when [Appellant] finally
appeared ready for the jury trial to begin, he used his family
members to manipulate and move a wheelchair in and out of the
courtroom during which he feigned extreme pain and exaggerated
his overall condition beginning during jury selection. At every
other proceeding, however, including when he appeared before at
more preliminary proceedings and after the trial before the mental
health evaluators and presentence investigator[,] he walked
easily with crutches.
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Particularly relevant to [Appellant’s] demonstrated intent to
manipulate his medical condition to avoid responsibility for his
violence was the report of a selected juror during jury selection.
This selected juror reported to the trial court that she happened
to be in an elevator occupied by [Appellant], his family and his
counsel during which she overheard conversations concerning
[Appellant’s] use of the wheelchair. These conversations caused
her to believe there was a concerted effort to falsely portray
[Appellant’s] medical condition to incur her sympathy. After this
upset juror reported the conversation, she was duly dismissed and
replaced after a recorded hearing. Even though the trial court
cautioned [Appellant], however, he brazenly continued to fake
pain and injury whenever the jury was in view of him during the
trial.
[Appellant’s] overall behavior before, during and after trial
certainly colored the trial court’s perception of [his] mindset and
purpose [during] his absence on the last morning of deliberation
June 27, 2016. Thus, [Appellant] cannot fault the trial court for
believing his absence on the day he faced potential imprisonment
on June 27, 2016 was without just cause.
Id. at 15-16.
Appellant argues that the trial court’s ruling was made without sufficient
proof of the allegation that he had intentionally absented himself from the
jury’s verdict by attempting suicide. Appellant construes the court’s
determination as mere speculation, given that Appellant’s family had only
conveyed their suspicion of a suicide attempt to doctors, and documentation
provided to the court indicated that Appellant had a prescription for opiates
for pain management. Appellant’s Brief at 12. Appellant also complains that
the trial court essentially shifted the burden of proof on this matter, as it is
the Commonwealth’s duty to show, by a preponderance of the evidence, that
he was absent without cause.
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In Commonwealth v. Hill, 737 A.2d 255 (Pa. Super. 1999), this Court
indicated that the Commonwealth bears the burden of proving that a
defendant is absent without cause. Id. at 259 (“Where the Commonwealth
has demonstrated by a preponderance of the evidence that the defendant is
absent ‘without cause’ and that he knowingly and intelligently waived his right
to be present, he may be tried in absentia.”). Instantly, we see no evidence
in the record of the Commonwealth’s attempting to meet this burden.
Instead, the trial court appears to have rested its decision based on
documentation provided to the court by Appellant. More troubling, the court
suggests in its opinion that Appellant bore the burden of proving that his
absence was involuntary. See TCO at 15 (“To date, no data has been
submitted to prove the claim that [Appellant]’s action was involuntary.”)
(emphasis added).
The documentation reviewed by the court indicates that its decision was
based primarily on hearsay speculation by the family that they suspected
Appellant’s hospitalization resulted from a suicide attempt. There is no
evidence that anyone observed Appellant attempting to commit suicide.
Neither Appellant’s family, nor the doctor whose notes restated the family’s
speculation regarding suicide, testified before the trial court. Indeed, the
family member or members who offered their suspicion to the attending
medical professionals were never identified. Moreover, the presence of drugs
in Appellant’s system when he was hospitalized was not obvious or clear
evidence of a suicide attempt, as the trial court appears to suggest, given that
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Appellant had a prescription for opiates to manage his pain, regardless of
whether he had, at times, exaggerated that pain during prior court
proceedings. It is not suspicious at all that a person would still be receiving
medication for pain eight months after being shot in the groin. Furthermore,
there was no evidence presented to the trial court that indicated that the
quantity of drugs detected in Appellant’s system was beyond what would have
been expected had he been taking those medications as prescribed. Finally,
there is no evidence in the record that Appellant’s diagnosis of Sepsis was
faked, or that it could have been induced by a suicide attempt as implicitly
suggested by the trial court.3
Also of concern here is that, rather than acting as a neutral arbiter of
justice, the trial judge appears to have assumed the Commonwealth’s role as
an advocate with respect to defense counsel’s request to stay the proceedings
based on Appellant’s obvious inability to attend the trial proceedings. “An
abuse of discretion exists where the court has reached a conclusion which
overrides or misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Ballard, 80 A.3d 380, 397 n.18 (Pa. 2013) (emphasis
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3 The implicit suggestion of the trial court is that Appellant attempted to
commit suicide by drug overdose, and in so doing self-inflicted his Sepsis
diagnosis. However, “Sepsis is a life-threatening condition that arises when
the body’s response to infection causes injury to its own tissues and organs.”
https://en.wikipedia.org/wiki/Sepsis. No evidence was presented to the trial
court demonstrating that Sepsis can result, much less did result in this case,
from a suicide attempt by drug overdose.
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added) (quoting Commonwealth v. Flor, 998 A.2d 606, 634 (Pa. 2010)).
While we understand the court’s legitimate concerns regarding Appellant’s
prior conduct before and during trial, it was the Commonwealth’s burden to
demonstrate that he was absent without cause when the court decided to
proceed with the return of the verdict without Appellant present. Indeed, the
district attorney did not once oppose Appellant’s motion to stay or motion for
a mistrial, nor even weigh in at all on the court’s deliberations regarding
Appellant’s absence.4 See N.T., 6/27/16, at 2-12 (prior to the jury’s
question); 23-25 (prior to receiving the jury’s verdict).
As such, we conclude that the trial court abused its discretion by denying
defense counsel’s request to stay the return of the verdict, thereby violating
Appellant’s statutory right to be present pursuant to Rule 602(A). The
Commonwealth did not prove, by a preponderance of the evidence, that
Appellant was absent without cause. At best, the court speculated that
Appellant had attempted to commit suicide based on mere conjecture received
through multiple layers of hearsay, despite Appellant’s suffering from a life-
threatening condition that easily could have been unrelated to any purported
suicide attempt. Evidence of Appellant’s prior misconduct could not overcome
these evidentiary deficiencies supporting the allegation that he was absent
without cause during the return of the verdict. Therefore, the trial court’s
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4 We acknowledge that, for the first time on appeal, the Commonwealth
explicitly agrees with the trial court’s refusal to grant a stay of the
proceedings, and to receive the verdict in absentia, despite its silence during
those proceedings.
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determination that he was absent without cause was manifestly unreasonable.
Alternatively, it also appears to be the result of partiality, given the trial court’s
assumption of the role of the Commonwealth’s advocate in this case.
Accordingly, Appellant is entitled to a new trial.
We decline to address Appellant’s sentencing claim, as our decision to
grant Appellant a new trial renders that issue moot.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/18
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