Commonwealth v. McNeal ( 2015 )

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2015 Pa. Super. 150
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE MCNEAL
Appellant No. 1771 EDA 2013
Appeal from the Judgment of Sentence of May 31, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0500911-2005
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE MCNEAL
Appellant No. 1775 EDA 2013
Appeal from the Judgment of Sentence of May 31, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008159-2011
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
OPINION BY WECHT, J.: FILED JULY 16, 2015
Wayne McNeal appeals from two judgments of sentence imposed upon
him by the Honorable Chris Wogan, Judge of the Court of Common Pleas of
Philadelphia County. We consolidate these cases sua sponte. Finding
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numerous instances of trial court error, we vacate those judgments of
sentence, and we remand these cases for further proceedings.
On June 28, 2005, at CP-51-CR-0500911-2005, McNeal pleaded guilty
to one count of robbery, 18 Pa.C.S. § 3701. Pursuant to an agreement with
the Commonwealth, McNeal was sentenced to two and one-half to five years’
incarceration, to be followed by five years of probation. The Honorable Earl
Trent, Judge of the Court of Common Pleas, accepted the plea, and
sentenced McNeal.
On July 1, 2011, at CP-51-CR-0008159-2011, McNeal was arrested
and charged with burglary, 18 Pa.C.S. § 3502, criminal trespass, 18 Pa.C.S.
§ 3503, criminal mischief, 18 Pa.C.S. § 3304, and criminal attempt—theft,
18 Pa.C.S. §§ 901, 3921. These charges were assigned for disposition to
Judge Wogan. The charges also formed the basis for a potential violation of
the probation imposed by Judge Trent at CP-51-CR-0500911-2005. Judge
Trent scheduled a probation violation hearing for July 29, 2011. However,
the hearing was postponed until the burglary and related charges were
resolved.
On April 11, 2013, the parties appeared before Judge Wogan for trial.
However, the case was continued to the following day because the jury
panel had been released before voir dire could commence. Nonetheless, on
April 11, the Commonwealth presented McNeal with a plea offer. The
Commonwealth offered to agree to a sentence of three and one-half to
seven years’ incarceration if McNeal pleaded guilty to the burglary charge.
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The proposed sentence fell within the mitigated range of the sentencing
guidelines. Notes of Testimony (“N.T.”), 4/11/2013, at 4-5. Judge Wogan
explained to McNeal the potential maximum sentences that he could receive
if he went to trial and lost. Id. at 4-7. McNeal rejected the plea offer. Id.
at 11. Judge Wogan urged McNeal to reconsider. Specifically, Judge Wogan
told McNeal that he “should think about this overnight. You may not believe
me that you will get 15 to 31 years. Maybe you should ask people around
the jail if I would do that.” Id. at 12-13.
On the following day, the parties appeared before Judge Wogan. The
parties and Judge Wogan discussed the grading of the criminal mischief
charge. One of the allegations against McNeal was that, in perpetrating the
alleged burglary, he caused damage to the front door of the home that he
purportedly entered. The assistant district attorney stated that she was
“inclined to proceed on [the criminal mischief charge] as a summary.” N.T.,
4/12/2013, at 3. Judge Wogan commented that it was his understanding
that prosecuting that crime as a summary, with Judge Wogan sitting as the
finder of fact and rendering a verdict after the jury had ruled on the
indictable offenses, was “permissible.” Id. Additionally, Judge Wogan
volunteered that a summary is a conviction that would “be a violation of the
probation that I am now supervising.” Id. Although Judge Wogan did not
elaborate on the issue at that juncture, this was the first time that he
revealed to the parties that he had assumed jurisdiction over the probation
violation case that initially was assigned to Judge Trent.
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The parties met again before Judge Wogan on April 15, 2013, after
defense counsel had requested that a psychiatric evaluation be performed on
McNeal. Judge Wogan readily agreed that an evaluation was necessary,
“especially when he turned down a 3 and a half year sentence and could get
12 and a half or more.” N.T., 4/15/2013, at 3.
On April 18, 2013, the parties again met before Judge Wogan for more
pretrial discussions. Once again, Judge Wogan informed McNeal of the
terms of the proffered plea bargain. This time, however, Judge Wogan
explained that the three and one-half to seven years offer encompassed the
probation violation as well. Judge Wogan explained the offer, and the
unconventional negotiations that occurred between the court and the
parties, as follows:
I spoke with your attorney. And if you plead guilty on the
criminal trespass, what you would get from me would be three-
and-a-half to seven years – that is a promise I made – on
everything including the [violation of probation]. I just want to
make sure you understand that. That would have probation to
follow, and that is less of a sentence that I normally think would
be appropriate. Because I wanted to make it three to ten, but
after negotiating with the attorneys I decided three to seven
with probation to follow would be fair.[1] Just so you
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1
Among the numerous errors by Judge Wogan in this case is his
admission that he negotiated a plea bargain with the parties. Prior versions
of our Rules of Criminal Procedure explicitly prohibited such participation by
a trial judge. Although the current version of Pa.R.Crim.P. 590 no longer
contains a blanket prohibition barring judges fom engaging in plea
negotiations, the Comment to that rule notes that the ban was removed to
permit, for example, a judge to “inquire of defense counsel and the attorney
for the Commonwealth whether there has been any discussion of a plea
(Footnote Continued Next Page)
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understand, that is everything. You see, I could give you 7-1/2
to 15 years for violating my probation.[2] I’m not going to do
that.
N.T., 4/18/2013, at 3-4. McNeal rejected the offer for a second time. Judge
Wogan reacted as follows: “All right. Well, then you may end up doing
seven years and nine months instead. If you don’t see the logic in that,
that’s [sic] whatever high school you went to, they didn’t do a very good
job.” Id. at 5.
The parties and the court then turned their attention back to the issue
of whether the criminal mischief charge should continue to be graded as a
misdemeanor, or whether it should be amended to a summary offense. The
following exchange occurred between Judge Wogan and the parties:
THE COURT: All right. And the Commonwealth is
holding off the criminal mischief as a
summary which I will decide whether you
committed criminal mischief when the
jury trial is over.
_______________________
(Footnote Continued)
agreement, or to give counsel, when requested, a reasonable period of time
to conduct such a discussion.” Pa.R.Crim.P. 590 Cmt. The Comment notes
that “[n]othing in this rule, however, is intended to permit a judge to
suggest to a defendant, defense counsel, or the attorney for the
Commonwealth, that a plea agreement should be negotiated or accepted.”
Id. Judge Wogan’s actions ran afoul of both aspects of this proviso. He not
only encouraged McNeal to take a plea, and participated in the actual plea
negotiations; he also repeatedly criticized McNeal for not taking the deal.
2
This is the second time that Judge Wogan indicated that he had
assumed jurisdiction over Judge Trent’s probation case, this time going as
far as calling it “my” probation, even though the case originated with Judge
Trent.
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[DEFENSE COUNSEL]: I do have an objection to that.
THE COURT: All right. Anything you want to say
about that or generally?
[DEFENSE COUNSEL]: My objection would be this. The
complainant testified – I have a number
of objections. But first one is
complainant testified that previously the
damage to the door was $908. It is
misdemeanor of the third degree, not a
summary offense.
THE COURT: Right.
[DEFENSE COUNSEL]: And so by moving on the summary
offense [the] Commonwealth is basically
precluding the complainant from getting
restitution as to the cost.
THE COURT: I didn’t know you represented plaintiffs
[sic] here.
* * *
[DEFENSE COUNSEL]: And also, it is my belief that the criminal
trespass, breaking the door, is necessary
to, cross criminal mischief breaking a
door is necessary to a felony to criminal
trespass conviction which involves
breaking in the first place. So that it is a
lesser included offense and it is a
necessarily included offense. And
because of that fact he cannot be
sentenced for both offenses because the
breaking is a requirement of the criminal
trespass felony two.
THE COURT: Well, we will see. We will see.
[DEFENSE COUNSEL]: Well, the nearest case I can find to that .
..
THE COURT: It is a moot point. It is a moot point.
The best that can happen to him – the
best that can happen to you – all right –
the best that can happen to you and your
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attorney’s argument would be
meaningless is somehow the jury finds
you not guilty of criminal trespass. Then
his argument that you can’t be
sentenced for criminal mischief falls
away because I can still sentence you for
criminal mischief if I find beyond a
reasonable doubt that you broke the
door.
[DEFENSE COUNSEL]: Well, my position on that is that you
can’t. Because if the jury acquits --
THE COURT: You are so wrong on that.
[DEFENSE COUNSEL]: --him of criminal trespass --
THE COURT: You are so –
[DEFENSE COUNSEL]: -- then necessarily --
THE COURT: -- you are so far from what the law is.
The law is that even the jury can do
something diametrically opposed to what
I do. And the cases actually say it
doesn’t matter because maybe this was a
jury that was utilizing jury nullification.
Maybe their false sense – and they use
the word “leniency” and I never used the
word – leniency compelled them to do
something which does not bound the
judge. You have no support in Superior
Court. To even think of one senior judge
in Superior Court, he wouldn’t go out on
a limb.
[DEFENSE COUNSEL]: And also the fact that this would
generate [a] probation violation, which
up until last week would have been [a]
violation of Judge Trent, but is now [a]
violation of Your Honor.
THE COURT: Reasons of judicial economy and
efficiency, he is on my probation now.
[DEFENSE COUNSEL]: Well, for reasons of judicial economy,
you can have one trial instead of two.
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THE COURT: You will see how efficient I am if we have
a summer trial. We will do it real
quickly.
N.T., 4/18/2013, at 5-9.
McNeal’s jury trial began and ended on the following day, April 19,
2013. Following deliberations, and despite Judge Wogan’s apparent disbelief
that the jury could or would do so, the jury found McNeal not guilty of all of
the crimes. This left the criminal mischief charge, now graded as a
summary offense, for disposition by Judge Wogan. N.T., 4/19/2013, at 126-
27. Regarding that summary offense, the Commonwealth offered no
evidence, simply adopting that which had been presented to the jury. Judge
Wogan chose to disagree with the jury’s apparent credibility determinations.
He found “the victim here to be credible,” and “found the defendant to be a
liar.” N.T., 4/19/2013, Motion Volume I, at 3. He found McNeal guilty of the
summary offense.
At the time he entered his verdict, Judge Wogan did not reveal that he
had relied upon evidence not of record in assessing whether the
Commonwealth proved beyond a reasonable doubt that McNeal had
committed the criminal mischief. On May 31, 2013, he did so. That day,
before imposing sentence on McNeal, Judge Wogan confessed to considering
a letter that was sent to him by McNeal but had never been offered into
evidence by the Commonwealth:
However, remember, Mr. McNeal wrote me a letter, as you
recall. I thought it was a pretty darn good letter. And in it he
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said he wasn’t guilty of a burglary. By the way, I agree with
that.
* * *
He was smart enough to say in his letter, however, [that] there
is evidence of criminal trespass. That’s an understatement.
N.T., 5/31/2013, at 15-16. Judge Wogan revealed that his verdict differed
from that of the jury because he “had additional information that the jury
didn’t have.” Id. at 17.
Defense counsel insisted to Judge Wogan that, because the letter
wasn’t part of the trial record, Judge Wogan was not permitted to consider
it. Judge Wogan responded as follows:
Then you have another appellate issue, because yes, I did use
the letter. I had additional information. We talked about the
letter. I gave you a copy and the Commonwealth. If you don’t
like defendants writing me letters, then maybe your office should
counsel them early on. But he said there was evidence of
criminal trespass, and yes, I agree. That was an
understatement.
* * *
Well, maybe you have an appellate issue because I used the
letter and that was information that the jury didn’t have but I
had. It’s a tacit admission.
Id. at 17-18. In his Pa.R.A.P. 1925(a) opinion, Judge Wogan declared that
he “was the finder of fact on the criminal mischief summary, and was not
about to ignore a letter voluntarily sent by [McNeal] to [the] court . . . .”
Trial Court Opinion (“T.C.O.”), 4/15/2014, at 11.
Prior to sentencing, McNeal filed a motion for extraordinary relief. In
that motion, McNeal challenged, inter alia, Judge Wogan’s assumption of
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jurisdiction over Judge Trent’s probation case. Before sentencing, Judge
Wogan described the circumstances that led to his taking the probation case
from Judge Trent, as follows:
[B]y the way, the conversation I had with Judge Trent saying I
reached out to him, well, actually, Judge Trent called me about
advice on another case. He had a big insurance fraud case in his
room and he called me. He was having a serious problem and
asked me for my advice. Luckily, it worked out for both of us.
The advice I gave him he was able to do what he wanted to do.
And in the course of talking to Judge Trent, I said, I’ve got a
case coming up. We’re trying to get a jury. I think he’s on your
probation. Do you want me to handle it? I don’t know what’s
going to happen yet. He said, Sure. I give cases up all the
time.
N.T., 5/31/2013, at 7. Judge Wogan also repeatedly criticized the public
defender’s office for objecting to the procedure he imposed in this case.
According to Judge Wogan, the transfer of cases occurs quite frequently in
the Court of Common Pleas of Philadelphia County, without any objection
from the public defender’s office. Id. at 6-8. Apparently, Judge Wogan
believed that, because no other attorney from the public defender’s office
had objected previously, defense counsel in this case was precluded from
doing so. Judge Wogan denied McNeal’s motion for extraordinary relief.
At the conclusion of the sentencing hearing, Judge Wogan informed
McNeal that he was “going to . . . give you every day I can give you today.”
Id. at 25. Judge Wogan then proceeded to sentence McNeal to thirty to
sixty months’ incarceration on the probation violation, followed by a
consecutive term of one and one-half to three months on the summary
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criminal mischief conviction. McNeal filed post-sentence petitions to vacate
the judgment of sentence and to reconsider the sentence. Judge Wogan
denied both motions.
On June 17, 2013, McNeal filed a timely notice of appeal. In response,
Judge Wogan directed McNeal to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). McNeal filed a
concise statement on July 31, 2013, but noted that certain volumes of
testimony had not yet been produced. Nonetheless, Judge Wogan issued an
opinion pursuant to Pa.R.A.P. 1925(a) on August 23, 2013. On October 28,
2013, this Court remanded the matter to Judge Wogan, and granted McNeal
the right to file a supplemental concise statement once all of the transcripts
had been produced. On February 6, 2014, McNeal filed a supplemental
concise statement. On April 15, 2014, Judge Wogan filed a supplemental
Pa.R.A.P. 1925(a) opinion.
In case number 1771 EDA 2013, McNeal raises the following issues for
our review:
1. Did not the trial court abuse its discretion and violate the
Rules of Criminal Procedure when it sought out and obtained
authority over [McNeal’s] probation violation case, which
originated in front of another sitting judge, without consent of
the parties?
2. Did not the trial court err when it found [McNeal] in direct
violation of his probation where the underlying conviction,
which was the basis for the violation, was illegal?
3. Did not the trial court abuse its discretion when it imposed
the maximum sentence allowed by law where the sentence
was manifestly excessive and unreasonable, where the
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sentence far surpassed what was necessary to foster
[McNeal’s] rehabilitative needs and where the sentence was a
product of partiality, bias and ill will?
4. Did not the trial court violate [McNeal’s] right to due process
under Article I, Section 9 of the Pennsylvania Constitution and
the 5th and 14th Amendments [to] the United States
Constitution where it: sought out and obtained authority over
[McNeal’s] probation case; attempted to coerce [McNeal] into
pleading guilty; usurped the authority of the jury; rendered a
verdict based on facts not in evidence; imposed the maximum
sentenced allowed by law; and failed to maintain impartiality
throughout the course of the proceedings.
Brief for McNeal (No. 1771 EDA 2013), at 4.
At No. 1775 EDA 2013, McNeal presents the following additional
questions for our consideration:
1. Did not the trial court err and violate [McNeal’s] right to a
trial by jury when it permitted the criminal mischief charge,
originally graded as a misdemeanor, to be reduced to a
summary offense, severed from the remaining charges, and
submitted to the court for a verdict where the sole purpose
for doing so was to circumvent the authority of the jury and
when the court, in fact, rendered a verdict contrary to the
clear pronouncements of the jury?
2. Did not the trial court err when it considered facts not in
evidence, to wit: the contents of a letter written by [McNeal]
that was not presented as evidence during the trial, when
deliberating and rendering a verdict on the criminal mischief
charge?
3. Did not the trial court violate [McNeal’s] right to due process
under Article I, Section 9 of the Pennsylvania Constitution and
the 5th and 14th Amendments [to] the United States
Constitution where it: sought out and obtained authority over
[McNeal’s] probation case; attempted to coerce [McNeal] into
pleading guilty; usurped the authority of the jury; rendered a
verdict based on facts not in evidence; imposed the maximum
sentence allowed by law; and failed to maintain impartiality
throughout the course of the proceedings?
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Brief for McNeal (No. 1775 EDA 2013), at 3.
The issues presented by McNeal in his two appeals intertwine at
various points. That is, the resolution of certain issues from one case will
impact our analysis of issues from the other case. Some issues we will not
need to address at all. With that primer, we begin our discussion with the
first issue presented by McNeal in case number 1771 EDA 2013.
In this issue, McNeal maintains that Judge Wogan erroneously
assumed control over the probation case that originated from his guilty plea
before Judge Trent. McNeal contends that Judge Wogan’s unilateral action
violated Rule 700 of the Pennsylvania Rules of Criminal Procedure. We
agree.
When we consider an appeal from a sentence imposed following the
revocation of probation, “[o]ur review is limited to determining the validity
of the probation revocation proceedings and the authority of the sentencing
court to consider the same sentencing alternatives that it had at the time of
the initial sentencing. 42 Pa.C.S. § 9771(b).” Commonwealth v. Fish,
752 A.2d 921, 923 (Pa. Super. 2000). Revocation of a probation sentence is
a matter committed to the sound discretion of the trial court, and that
court’s decision will not be disturbed on appeal in the absence of an error of
law or an abuse of discretion. Commonwealth v. Smith, 669 A.2d 1008,
1011 (Pa. Super. 1996).
We have uncovered no case precedent that addresses McNeal’s
argument precisely. In the main, the parties’ duel on this point consists of
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McNeal arguing that there is no case law or statute that would permit a trial
judge to assume control over another judge’s case, while the Commonwealth
maintains that there is no legal authority that prohibits a judge from doing
so.3 McNeal relies primarily upon Pa.R.Crim.P. 700, which we discuss in
more detail immediately below, and which facially applies to original
sentencing. For the reasons that follow, we believe that McNeal’s reliance
upon Rule 700 is a more sound approach than the Commonwealth’s, as the
latter would afford trial judges unbridled and essentially unchallengeable
authority to shuffle cases between themselves without the knowledge,
consent, or opportunity to be heard of the parties.
The parties correctly observe that no rule of procedure or case law
either permits or prohibits a judge specifically from assuming control over a
probation case supervised by another judge. Nonetheless, Rule 700
provides that “the judge who presided at the trial or who received the plea
of guilty or nolo contendere shall impose sentence unless there are
extraordinary circumstances which preclude the judge’s presence.”
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3
The Commonwealth also argues that McNeal has waived the issue
because he did not object when Judge Wogan made two passing references
to the fact that he had taken control over Judge Trent’s probation case. See
Brief for the Commonwealth (No. 1771 EDA 2013) at 10-11 (citing
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003);
Pa.R.A.P. 302(a)). We decline to find waiver in this instance, because
McNeal raised the issue in his motion for extraordinary relief, which was filed
before Judge Wogan sentenced McNeal on the probation violation. Hence,
the issue was preserved, and Judge Wogan was afforded ample opportunity
to consider (and to reconsider) and to rule on the objection.
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Pa.R.Crim.P. 700(a). The use of the word “shall” in the language of the rule
evinces Pennsylvania’s general disinclination to permit different judges to try
and to sentence a defendant. This policy recognizes the obvious value of a
judge who “is in the best position to view a defendant’s character, defiance
or indifference, and the overall effect and nature of the crime. When
formulating its order, the sentencing court must consider the nature of the
criminal and the crime.” Commonwealth v. Koren, 646 A.2d 1205, 1208
(Pa. Super. 1994) (internal citations omitted). It is axiomatic that the judge
who presides over the trial, or who accepts a guilty plea based upon a
recitation of the facts underlying the pleaded-to crime, is the judicial officer
best equipped to assess the nature of the defendant and the crime itself
before imposing sentence.
Rule 700 does not state that its terms apply to sentencing following a
probation revocation. However, our General Assembly has instructed that,
upon a probation revocation, “the sentencing alternatives available to the
court shall be the same as were available at the time of initial sentencing.”
42 Pa.C.S. § 9771(b). In other words, in practical effect, a judge imposing
sentence after finding that a defendant has violated probation is no different
from a judge imposing sentence in the first instance. For this precise
reason, we discern no principled difference between a judge imposing an
original sentence and one imposing a probation violation sentence, and
certainly no difference meaningful enough to exempt the latter from the
dictates of Rule 700.
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Pursuant to Rule 700, Judge Trent was the judge who “received the
plea of guilty,” and Judge Trent is the one who “shall impose sentence.”
Only upon “extraordinary circumstances” is another judge permitted by the
terms of the rule to impose a sentence. Having combed the record, we
observe no such circumstances, whether extraordinary or even pedestrian.
There is no statement, not even an offhand comment or aside, to suggest
that Judge Trent was away, ill, or unavailable to address his docket. We find
no circumstances that would permit Judge Wogan to reach out and take
control from Judge Trent over McNeal’s probation case. Only the consent of
both parties would permit such a maneuver. As noted earlier, Judge Wogan
initially revealed that he had assumed jurisdiction over the case only in
passing, while the parties were discussing with the court whether the
criminal mischief charge should be graded as a misdemeanor or as a
summary offense.
As noted, when Judge Wogan finally addressed the events that led him
to take over that portion of McNeal’s case, he offered the following
explanation:
[B]y the way, the conversation I had with Judge Trent saying I
reached out to him, well, actually, Judge Trent called me about
advice on another case. He had a big insurance fraud case in his
room and he called me. He was having a serious problem and
asked me for my advice. Luckily, it worked out for both of us.
The advice I gave him he was able to do what he wanted to do.
And in the course of talking to Judge Trent, I said, I’ve got a
case coming up. We’re trying to get a jury. I think he’s on your
probation. Do you want me to handle it? I don’t know what’s
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going to happen yet. He said, Sure. I give cases up all the
time.
N.T., 5/31/2013, at 7. Thus, the transfer of the case from Judge Trent to
Judge Wogan did not occur based upon some extraordinary circumstance,
but rather by mere happenstance. Had Judge Trent never called Judge
Wogan about some entirely different matter, the transfer of McNeal’s case
might never have happened. Random chance does not amount to an
extraordinary circumstance. Compare Commonwealth v. Williams, 375
A.2d 155 (Pa. Super. 1977) (finding that transfer was warranted because
original trial judge suffered a stroke, which constituted an extraordinary
circumstance.).
Judge Wogan also asserted that judicial economy justified his
assumption of control over McNeal’s case. Undeniably, trial judges should
strive for efficiency. But convenience does not equate with the extraordinary
circumstances which Rule 700 requires. The rule commands that the judge
who presides over the plea “shall” be the one who imposes the sentence,
except where “extraordinary circumstances . . . preclude the judge’s
presence.” We find no such circumstances in the record before us.
In his Rule 1925(a) opinion, Judge Wogan echoes the position that the
Commonwealth takes herein; to wit, that nothing in the rules prohibits the
action that he took in this case. For the preceding reasons, we reject this
narrow interpretation of our rules. At all events, Judge Wogan offers a
distinctly sparse explanation of his action according to the purpose of our
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rules. Instead, Judge Wogan opts to justify his actions by taking aim at the
public defender’s office. For example, Judge Wogan claims that the reason
he spoke to Judge Trent about the case was because the public defender’s
office routinely neglects to inform trial courts when probation violations
occur. Apparently, Judge Wogan believes that it was his civic duty to inform
Judge Trent that McNeal possibly had violated his probation. What other
members of the public defender’s office have done in other cases is of
course irrelevant to McNeal. Moreover, Judge Wogan’s claim is plainly
incorrect in this instance. As counsel for McNeal pointed out to Judge Wogan
on the record, Judge Trent already was aware of the alleged violation and
had in fact scheduled a hearing on the violation for July 29, 2013. See N.T.,
5/31/2013, at 7.
Judge Wogan claimed that similar transfers occur frequently, and
further alleged that the public defender’s office “only argues that transferring
[violation of probation] cases is contrary to the Rules of Criminal Procedure
when it believes it may impact their client negatively.” T.C.O. at 6. This
strikes us as a peculiar criticism indeed. Our Supreme Court promulgates
rules. Lawyers invoke and rely upon those rules in representing their
clients. Such advocacy of necessity may at times include arguments that a
particular ruling or procedure violates an applicable rule. We fail to
comprehend, and we do not approve, Judge Wogan’s chastisement of
lawyers’ use of our rules in fulfilling their professional duty of zealous
representation.
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The fact that transfers frequently occur in Philadelphia, assuming that
claim to be true, and the fact that the public defender’s office does not
object to those transfers in every instance, in no way precludes a present
objection. What allegedly has become entrenched as common practice does
not preclude another attorney from standing on the rules and pursuing a
meritorious claim. More importantly, the putative commonality of a practice
does not exempt a court from Rule 700’s mandate. No extraordinary
circumstance exists in this case, and no amount of finger-pointing by the
trial court will prove otherwise.
For these reasons, McNeal is entitled to a new probation violation
hearing. Nevertheless, for the reasons that follow, such hearing might not
be necessary upon remand because we vacate the summary criminal
mischief conviction upon which the probation violation relied. We turn our
attention to McNeal’s claims concerning that conviction.
McNeal first argues that the trial court erred by permitting the
Commonwealth to reduce the grading of the criminal mischief charge from a
misdemeanor to a summary offense. McNeal alleges that the
Commonwealth elected to proceed with the charge as a summary offense at
the suggestion of Judge Wogan. McNeal insinuates that the decision was a
collaborative effort between the prosecutor and Judge Wogan to “circumvent
the authority of the jury.” Brief for McNeal (No. 1775 EDA 2013) at 24.
McNeal further contends that, because he was charged initially with a
misdemeanor, he was entitled to a jury trial on the charge as such. Finally,
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McNeal argues that the bifurcation of the charges resulted in violations of
the concepts of double jeopardy and collateral estoppel. Id. at 25. On this
last point, we disagree with McNeal.
The criminal mischief charge at issue initially was filed as an ungraded
misdemeanor. However, at the preliminary hearing in this case, the
assistant district attorney requested, based upon the amount of damage
($960) asserted by the alleged victim during the hearing, that the charge be
designated a third degree misdemeanor. N.T., 7/18/2011, at 9-10; see 18
Pa.C.S. § 3304(b) (grading criminal mischief if the damage caused by the
actor is more than $500 but less than $1000). However, on April 12, 2013,
the assistant district attorney told the trial court that she was “inclined to
proceed on that as a summary.” N.T., 4/12/2013, at 3. By April 15, 2013,
the prosecutor had decided affirmatively to reduce the charge to a summary
offense, a decision to which McNeal objected and which he steadfastly
opposed. N.T., 4/15/2013, at 7-8. At sentencing, the assistant district
attorney noted that she had acted at the direction of her supervisor. N.T.,
5/31/2013, at 19.
McNeal maintains, both directly and by allusion, that the prosecutor
elected to proceed with the charge as a summary offense to accommodate
Judge Wogan, who, McNeal believes, wanted the charge to be a summary so
that he could preside over that charge personally so as to ensure a
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conviction that would in turn constitute a violation of McNeal’s probation. 4
The record lends considerable support to McNeal’s allegations regarding
Judge Wogan’s motives. Judge Wogan repeatedly questioned McNeal’s
intelligence, and at least twice emphasized prior to the verdict that a
summary conviction would serve as a probation violation. Our close review
of the record suggests that Judge Wogan had decided that McNeal was guilty
of some crimes before the trial even started. Judge Wogan explained that
one of McNeal’s arguments would be moot if the jury “somehow” found him
not guilty of the charged offenses. N.T., 4/18/2013, at 7. At sentencing,
Judge Wogan told McNeal that he was “going to . . . give you every day I
can give you today.” N.T., 5/31/2013.
Regardless of what Judge Wogan’s true motives were, we cannot
impute those motives to the assistant district attorney in this case. “The
prosecutor . . . has the duty to decide what charges should be brought
against a particular offender and then to prosecute the offender according to
that law. A prosecutor is vested with considerable discretion in deciding who
will or will not be charged and what they will be charged with.”
____________________________________________
4
Bifurcating a trial such that a jury will render a verdict on any
misdemeanors or felonies while a trial judge rules on any summary offenses
is permitted by our rules of criminal procedure. See Pa.R.Crim.P. 648(F)
(“If there is a summary offense joined with the misdemeanor, felony, or
murder charge that was tried by the jury, the trial judge shall not remand
the summary offense to the issuing authority. The summary offense shall be
disposed of in the court of common pleas[.]”).
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Commonwealth v. Amundsen, 611 A.2d 309, 311 (Pa. Super. 1992). The
United States Supreme Court likewise has acknowledged that the
prosecution enjoys considerable discretion in deciding what charges to bring
against a defendant. United States v. Batchelder, 442 U.S. 114 (1979).
“Selectivity in the enforcement of criminal law is, of course, subject to
constitutional constraints. . . . [A] prosecutor may be influenced by the
penalties available upon conviction; however, that fact[,] standing alone,
does not give rise to a violation of the Equal Protection or Due Process
Clauses.” Commonwealth v. Berryman, 649 A.2d 961, 974 (Pa. Super.
1994). Further:
[i]n reviewing a grant to amend an information, the Court will
look to whether the appellant was fully apprised of the factual
scenario which supports the charges against him. Where the
crimes specified in the original information involved the same
basic elements and arose out of the same factual situation as the
crime added by the amendment, the appellant is deemed to
have been placed on notice regarding his alleged criminal
conduct and no prejudice to defendant results.
Commonwealth v. J.F., 800 A.2d 942, 945 (Pa. Super. 2002).
Commonwealth v. Sinclair, 897 A.2d 1218, 1222 (Pa. Super. 2006)
(citation modified).
In light of these standards, and in view of the vast discretion afforded
to prosecutors to decide which charges to file and pursue against a
defendant, we can discern no abuse of prosecutorial discretion under these
circumstances. There is no evidence of record that the prosecutor acted in
collusion with Judge Wogan. Nor are we permitted to presume that the
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prosecutor’s actions were based only upon the belief that Judge Wogan
would in fact convict McNeal and find him in violation of his probation.
Simply put, we cannot impute Judge Wogan’s improper behavior to the
Commonwealth without some evidence in the record to show that the
prosecutor harbored the same dubious motive. The record we have does not
support such a finding. Thus, our concerns notwithstanding, we must reject
McNeal’s argument that the trial court erred in permitting the prosecutor to
reduce the charge.
We also reject McNeal’s argument that permitting the prosecutor to
reduce the charge was a violation of the principles of double jeopardy or
collateral estoppel. In Commonwealth v. States, 938 A.2d 1016 (Pa.
2007), the Pennsylvania Supreme Court explained the concepts of double
jeopardy and collateral estoppel in the criminal context as follows:
The proscription against twice placing an individual in jeopardy
of life or limb is found in the Fifth Amendment to the United
States Constitution, made applicable to the states through the
Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784,
794 (1969). The double jeopardy protections afforded by our
state constitution are coextensive with those federal in origin;
essentially, both prohibit successive prosecutions and multiple
punishments for the same offense. Commonwealth v.
Fletcher, 861 A.2d 898, 912 (Pa. 2004). We have described
double jeopardy rights as “freedom from the harassment of
successive trials and the prohibition against double punishment.”
Commonwealth v. Hude, 425 A.2d 313, 318 (Pa. 1980)
(plurality). [C]ollateral estoppel (also known as issue
preclusion), is most familiar in the civil context, where its stated
purpose is to “relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and by preventing
inconsistent decisions, [and] encourage reliance on
adjudication.” Shaffer v. Smith, 673 A.2d 872, 875 (Pa. 1996).
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However, collateral estoppel does not operate in the criminal
context in the same manner in which it operates in the civil
context. For instance, in civil practice the doctrine is applicable,
in equal measure, to both parties, whereas in the criminal
context, the use of the doctrine is considerably restricted,
particularly where the Commonwealth seeks to use it against a
criminal defendant. See Commonwealth v. Holder, 805 A.2d
499 (Pa. 2002) (permitting the Commonwealth limited use of
collateral estoppel principles to preclude relitigation of an
evidentiary ruling that had been rendered in a previous
probation hearing) (plurality). With respect to the criminal law
defendant, collateral estoppel is treated as a subpart of double
jeopardy protection and is defined as follows: “Collateral
estoppel . . . does not automatically bar subsequent
prosecutions[,] but does bar redetermination in a second
prosecution of those issues necessarily determined between the
parties in a first proceeding which has become a final judgment.”
Commonwealth v. Smith, 540 A.2d 246, 251 (Pa. 1988)
(citation omitted). As simple as this definition appears, the
principle’s application is not as straightforward as it is in the civil
context because it must be viewed through the lens of double
jeopardy. Commonwealth v. Brown, 469 A.2d 1371, 1373
(Pa. 1983) (it is “double jeopardy that forbids the state from
offending the collateral estoppel rule”).
States, 938 A.2d at 1019-20 (citations modified).
These principles apply to “subsequent” prosecutions where the first
trial ended with a definitive determination of a controlling material issue.
Id. They do not apply to the typical scenario permitted by Pa.R.Crim.P.
648(F), where the jury and the trial court rendered conflicting credibility
findings. A trial judge, sitting simultaneously as fact-finder with a jury in a
bifurcated summary/non-summary trial, is entitled to make his or her own
credibility findings, and it is well-settled that “inconsistent verdicts are
permissible in Pennsylvania.” States, 938 A.2d at 1025. What occurred in
this case was an inconsistent verdict. Such verdicts, “while often perplexing,
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are not considered mistakes and do not constitute a basis for reversal.”
Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004)
(citations omitted).
We turn now to what is perhaps the most troubling aspect of this
troubling case: Judge Wogan’s unapologetic admission that he considered
evidence dehors the record when deliberating upon and rendering a verdict
on the criminal mischief charge. As noted earlier, Judge Wogan considered
information from a letter that McNeal had sent to him, even though the
Commonwealth never introduced that letter at trial. See N.T., 5/31/2013,
at 15-18; T.C.O. at 11. This was plain error. Indeed, it was stark and
fundamental error.
We are unaware of any basis for Judge Wogan’s assertion that “there
is no legal reason to exclude this court from considering the letter in making
its summary [sic] judgment.” T.C.O. at 11. It is hornbook law that “a court
may not support an adjudication of guilt with evidence not part of the trial
record.” Commonwealth v. Wasiuta, 421 A.2d 710 (Pa. Super. 1980);
Commonwealth v. Martell, 452 A.2d 873, 875 (Pa. Super. 1982); see
also Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984) (noting that “a trial
court may not consider facts or evidence dehors the record in making [any]
determination.”); Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007) (same).
Here, Judge Wogan freely admitted that he considered the contents of
McNeal’s letter, notwithstanding an apparent glimmer of recognition that it
was improper for him to do so:
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Then you have another appellate issue, because yes, I did use
the letter. I had additional information. We talked about the
letter. I gave you a copy and the Commonwealth. If you don’t
like defendants writing me letters, then maybe your office should
counsel them early on. But he said there was evidence of
criminal trespass, and yes, I agree. That was an
understatement.
* * *
Well, maybe you have an appellate issue because I used the
letter and that was information that the jury didn’t have but I
had. It’s a tacit admission.
N.T., 5/31/2013, at 17-18. As he did in defending his unilateral actions in
reaching out for McNeal’s probation case, Judge Wogan again attempted to
place the blame on the defense attorney. In this instance, Judge Wogan
criticized defense counsel for failing to instruct clients not to send letters to
the trial judge. It is apparent that Judge Wogan believed that he could flout
the basic principles of fair trial because defense counsel never affirmatively
told McNeal that it was a bad idea to send the judge a letter. Judge Wogan’s
blame-shifting is unavailing. It is clear that Judge Wogan had no interest in
the propriety of considering the letter, and that he was going to consider it
regardless of the commands of our laws. See T.C.O. at 11 (Judge Wogan
states that he “is not about to ignore a letter voluntarily sent by [McNeal] to
[the] court.”). T.C.O. at 11.
Judge Wogan convicted McNeal of a crime with evidence that the
Commonwealth never introduced at trial. This was patent error. The
Commonwealth concedes candidly that McNeal is entitled to relief. See Brief
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for the Commonwealth (No. 1775 EDA 2013), at 15-16. McNeal’s summary
criminal mischief conviction is vacated.
Having concluded that McNeal’s conviction must be vacated, we also
must vacate the judgment of sentence that was imposed for the probation
violation. The criminal mischief conviction was the exclusive basis for the
probation violation. Again, the Commonwealth candidly concedes that
McNeal is entitled to this relief. See Brief for the Commonwealth (No. 1771
EDA 2013), at 14-15. Consequently, we vacate that judgment of sentence
as well. Because we do so, we need not address McNeal’s claim concerning
the discretionary aspects of his sentence in case number 1771 EDA 2013,
and that claim is now moot.
In his remaining two claims, McNeal raises identical due process
arguments, in each of which he delineates the acts of impropriety committed
by Judge Wogan. We need not delve into these issues in any substantive
way. Judge Wogan’s errors and transgressions are well documented in this
case. We need proceed no further. We need not commence an additional
discussion of whether Judge Wogan violated McNeal’s rights to due process
and fundamental fairness so as to require a new trial. The relief that McNeal
requests based upon these asserted constitutional violations is vacatur of his
judgments of sentence and a remand for new proceedings. For the reasons
elaborated upon above, we already have granted that precise relief to
McNeal. Thus, McNeal’s last two claims are moot, and require no further
discussion.
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Judgments of sentence vacated. Case remanded.5 Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2015
____________________________________________
5
By command of our Supreme Court, this Court is not permitted sua
sponte to order a judge to recuse himself from a case. See
Commonwealth v. Whitmore, 912 A.2d 827, 833-34 (Pa. 2006). We
obviously will not do so. We nonetheless would be remiss if we did not
express our concern for McNeal’s ability to receive a fair and impartial trial if
this case is tried anew before Judge Wogan, because Judge Wogan already
has heard the evidence of record and has rendered a verdict based upon
evidence dehors that evidentiary record. See Canon 2.9 of the Code of
Judicial Conduct (“A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge
outside the presence of the parties or their lawyers, concerning a pending or
impending matter.”).
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