Com. v. Pham, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CUONG PHAM,
Appellant No. 2207 EDA 2018
Appeal from the PCRA Order Entered June 15, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014307-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 07, 2019
Appellant, Cuong Pham, appeals pro se from the post -conviction court's
June 15, 2018 order dismissing his timely -filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of
Appellant's underlying convictions, and we need not reiterate that discussion
for purposes of this appeal. See PCRA Court Opinion (PCO), 11/21/18, at 1-
4. Appellant filed the pro se PCRA petition at issue herein on December 7,
2017. Counsel was appointed, but instead of filing an amended petition on
Appellant's behalf, counsel filed a Turner/Finley' 'no -merit' letter and
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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petition to withdraw. On May 18, 2018, the court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant's petition without a hearing, to which
he filed a pro se response, as well as an amended PCRA petition. However,
on June 15, 2018, the PCRA court issued an order dismissing Appellant's
petition and granting counsel's request to withdraw.
Appellant filed a timely, pro se notice of appeal. The PCRA court ordered
him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant, however, did not file any Rule 1925(b) statement but,
instead, he filed two additional, pro se amended petitions. On November 21,
2018, the PCRA court issued a Rule 1925(a) opinion.
Herein, Appellant presents twelve issues for our review in the
"Statement of the Questions" portion of his brief, yet he delineates only two
separate claims in his "Argument" section. See Appellant's Brief at 2-3
("Questions Presented for Review"); id. at 11-15 ("Argument").
Consequently, Appellant has failed to comply with Pa.R.A.P. 2119 ("The
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part - in distinctive type or in type
distinctively displayed - the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent."). The two
claims set forth in Appellant's "Argument" section are the following:
[I.] Base[d] upon the legislative intent, foran individual to be
convicted under the statue [sic] 18 Pa.C.S.[] § 5902(3), the
individual must do more than make an offer to another person for
sexual activity: the individual must undertake acts the [sic]
demonstrate he has hired that person to perform a sexual act.
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[II.] [Appellant's] action of soliciting for ... sexual activity without
money exchanging hands or him undertaking further action that
would demonstrate he has hired an individual does not constitute
"hire" under the statute 18 Pa.C.S.[] § 5902(e), and thus[,] the
evidence proffered at trial was insufficient to sustain his
conviction.
See Appellant's Brief at 12, 13.
This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not
be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
In the case sub judice, we have reviewed the certified record, the briefs
of the parties, and the applicable law. Additionally, we have considered the
thorough opinion of the Honorable Daniel D. McCaffery of the Court of
Common Pleas of Philadelphia County. We conclude that Judge McCaffery's
well -reasoned opinion accurately disposes of the issues presented by
Appellant. Accordingly, we adopt his opinion as our own and affirm the order
dismissing Appellant's PCRA petition for the reasons set forth therein.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/7/19
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Circulated 07/19/2019 10:51 AM
IN THE COURT OF COMMON PLEAS PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION-CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA : PHILADELPHIA COURT
: OF COMMON PLEAS
: CRIMINAL TRIAL DIVISION
v. CP·Sl-CR-0014307-2011
CUONG PHAM FILED
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Opinion • Nov 21 201a
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OPINION
11 I of Jud/cfal Records
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MCCAFFERY, J
Cuong Pham (hereinafter "Appellant") appeals from an order denying him relief pursuant
to the.Post-Conviction Relief Act (hereinafter PCRA). 42 Pa.C.S. § 9541 et seq. For the reasons
set forth below, it is suggested that the order be affirmed.
PROCEDURAL HISTORY
On March 23, 2015, following a waiver trial, Appellant was found guilty of Patronizing
Prostitutes, graded as a misdemeanor of the third degree, pursuant to 18 Pa.C.S. § 5902(e).1
Following the verdict Appellant waived the preparation of pre-sentence reports: and this Court
imposed a sentence of time served to twelve months' incarceration. After the imposition of
sentence, Appel1ant filed a motion for reconsideration of sentence, which this Court denied on
May 22, 2015. Appellant then filed a notice of appeal. On November 22, 2016, the Superior
Court affirmed the judgment of sentence. Commonwealth v. Pham, 159 A.3d. 595 (Pa. Super.
2016). A petition for allowance of appeal followed and on September 8, 2017, the Pennsylvania
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Appellant was originally tried by a jury in June oF2012 and was convicted oFthe above offense. On April 22,
2014, the Superior Court granted him a new trial. Commonwealth v. Pham, 2583 EDA 2012.
Supreme Court denied the petition. Commonwealth v. Pham, 170 A.Jd. l 033 (Pa. 2016).
On December 7, 2017, Appellant filed a prose PCRA petition. Counsel was appointed to
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represent him and on May 17, 2018, counsel filed a no-merit letter pursuant to Finley v.
Pennsylvania, 481 U.S. 551 (1987), and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
a Motion to Withdraw as Counsel. After this Court carefully and assiduously reviewed the entire
record, it sent Appellant a Pa.R.Crim.P. 907 Notice of Intent to Dismiss on May 18, 2018, upon
finding that Appellant could not obtain PCRA relief because he was no longer serving a
sentence. Appellant responded to the notice by letter dated May 29, 2018. In his letter he raised
issues involving the scheduling of the PCRA and asserted that he did not request the appointment
of PCRA counsel. On June 11, 2018, he filed an amended pro se PCRA petition wherein he
argued that he should be entitled to equitable post-conviction collateral relief because no one
explained to him that he could not obtain PCRA relief if his sentence had expired.
On June 15, 2018, after again reviewing the entire record, this Court issued an order
dismissing Appellant's PCRA petition without a hearing and granting PCRA counsel's motion to
withdraw. On June l 0, 2018, Appellant filed a pro se notice of appeal from the June 15, 2018
order. Although ordered to file a Pa.R.A.P. 1925(b) Statement of Matters Complained of on
Appeal, Appellant filed two pro se amended PCRA petitions on August 27, 2018, and September
7, 2018. As best that can be discerned, Appellant again argued that he never requested the
appointment of PCRA counsel and that he never signed a contract with appointed counsel. He
also claimed that he should have been granted relief because he is actually innocent, the evidence
was insufficient to sustain his conviction, counsel forced him to waive his right to a jury trial,
and there is a restraint on his liberty due to his inability to scrub the memory of his conviction
from his mind.
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FACTUAL HISTORY
On December 9, 2010, at about 12:30 a.m., Philadelphia Police Officer Stephanie
Rosenbaum and other officers were in the 1800 block of East Sergeant Street investigating
activity related to prostitution because of a string of murders of prostitutes in the area. (N.T.
3/23/15, 12-13). Officer Rosenbaum's role was to act as a decoy. (N.T. 3/23/15, 12-13). While
doing so, a brown Nissan Maxima pulled up to her and the driver, the Appellant herein, told the
officer that he wanted a "blowjob." (N.T. 3/23/15, 13). Officer Rosenbaum asked Appellant
how much he was willing to pay and he said, "$20.00,, Id. Officer Rosenbaum contacted
members of her back-up team who placed Appellant under arrest.
Appellant testified in his own defense. He stated that on the night of the incident he
intended to visit a Vietnamese handyman who he wanted to hire to remove Appellant's property.
According to Appellant, while looking for a parking spot, a woman approached and asked him
what he wanted and if he had any money. (N.T. 3/23/15, 24-27, 39-40). He asked her what she
wanted and told her to leave. (N.T. 3/23/15, 12-13). Appellant denied that he was looking for
oral sex that night or that he asked the officer for a blowjob, (N.T. 3/23/J 5, 25, 39-40), adding
that his wife was in the car when the officer approached but had exited to meet the handyman
before he was arrested. (N.T. 3/23/15, 42).
Jane Huynh, Appellant's wife, also testified in his defense. She indicated that on the night
of her husband's arrest, she drove to the area where the incident occurred to meet her husband
who was planning to meet with a handyman. (N.T. 3/23/15, 61, 64). When Appellant arrived,
she entered the passenger side back seat of Appellant's car, which had a large coffee pot and
tools partially obscuring her. (N.T. 3/23/15, 61-62). While her husband was searching for a
parking spot, a woman approached the car and said something to Appellant. (N.T. 3/23/15, 63-
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64). Ms. Huynh told her husband that she did not want to be involved in what was occurring and
told him to drive away. (N.T. 3/23/15, 64).
DISCUSSION
Instantly, Appellant failed to comply with this Court's order directing him to file a
1925(b) Statement of Matters. Consequently, he waived appellate review of any claim he raises
on appeal. Precedent in this Commonwealth firmly establishes that when an appellant is ordered
to file a Rule 1925(b) statement, he or she must comply with Rule 1925(b)'s requirement in
order to preserve issues for appeal, and that any appellate issues not raised in a compliant Rule
l 925(b) statement will be deemed waived. See, e.g., Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1998). It is noted that the Superior Court has held that this principle applies in PCRA
proceedings. See Commonwealth v. Butler, 812 A.2d 63 l, 633 (Pa. 2002).
In a criminal case, however, Rule 1925 contemplates that not filing a timely Rule l 925(b)
Statement may be deemed to be "per se ineffective." Pa. R.A.P. 1925(b)(J). Nevertheless,
because Appellant represents himself on appeal that exception does not excuse Appellant's
failure to comply with this Court's order. The Pennsylvania Supreme Court has held that where
an individual insists on representing himself at any stage of criminal proceedings against him,
that individual cannot later assert his own ineffectiveness on appeal. See Commonwealth v.
Griffin, 644 A.2d 1167, 1171 (Pa. 1994) (adopting the Superior Court's standard with regard to
pro se criminal defendants who represent themselves). Accordingly, it is respectfully suggested
that the order appealed from be affirmed because Appellant waived appellate review by not filing
the ordered l 925(b) statement.
To the extent that Appellant might be claiming that the issues set forth in the two PCRA
petitions Appellant filed after this Court issued the 1925(b) order preserved the issues contained
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therein for appellate review, he still would not be entitled to review. The law is clear that a
defendant may not file a subsequent PCRA petition while a PCRA appeal is pending.
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000). Therefore, the issues raised therein are a
nullity.
Finally, and most importantly, this Court's order should be affirmed because, at the time
Appellant filed his pro se PCRA petition, he no longer was serving a sentence. The Pennsylvania
Supreme Court has clearly and unequivocally held that a defendant cannot obtain PCRA relief
once his or her sentence has expired. Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997).
That rule applies even in so-called "short sentence" cases. In Commonwealth v. Turner, 80 A.3d
7 54 (Pa. 2013), the Pennsylvania Supreme Court explained that "due process does not require the
legislature to continue to provide collateral review when the offender is no longer serving a
sentence." Id. at 765. The Court explained its rationale as follows:
Because individuals who are not serving a state sentence have
no liberty interest in and therefore no due process right to
collateral review of that sentence, the statutory limitation of
collateral review to individuals serving a sentence of
imprisonment, probation, or parole is consistent with the due
process prerequisite of a protected liberty interest. Of course,
the legislature was free to extend a statutory right of collateral
review to individuals like Petitioner who had completed their
sentence and, had they done so, they would be
constitutionally obligated to ensure that those rights were
impacted only in accord with due process. However, the
legislature did not do so. Rather, the General Assembly,
through the PCRA, excluded from co11ateral review those
individuals who were no longer subject to a state sentence,
thereby limiting the statutory right of collateral review to
those whose liberty was constrained.
The legislature was aware that the result of the custody or
control requirement of Section 9543(a)(l)(i) would be that
defendants with short sentences would not be eligible for
collateral relief. Indeed, that was the apparent intent: to
restrict collateral review to those who seek relief from a state
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sentence. The legislature's exclusion from collateral relief of
individuals whose liberty is no longer restrained is consistent
with the eligibility requirements of habeas corpus review
under the general state habeas corpus statute[.)
The PCRA provides eligibility for relief for cognizable claims,
including claims of ineffective assistance of trial counsel, and
is the sole means of obtaining collateral relief in Pennsylvania.
Petitioners are required to satisfy, inter alia, the criteria for
eligibility for relief, and the timeliness restrictions. By further
limiting the eligibility for relief under the PCRA to petitioners
serving sentences, our legislature chose not to create any
statutory entitlement to collateral review for defendants who
have completed their sentences.
Turner, 80 A.3d at 766-67 (citations omitted).
Under the above authorities, it is suggested that Appellant be denied appellate relief and
the order issued by this be affirmed.2
CONCLUSION
Based on the foregoing, it is respectfully suggested that the Order of this Court denying
Appellant PCRA relief be affirmed.
BY THE COURT,
Date: November 21, 2018
2
It is noted that Appellant did not raise as an issue a claim that he never complained about never having requested
that PCRA counsel be appointed to represent him until after this Court sent him the 907 notice. He also never
directly requested permission to represent himself. Also, it is noted that there is no equitable or "sympathetic"
exception to the requirement that a defendant must be serving a sentence to obtain PCRA relief. Finally, the
appointment of counsel has no effect on the finding that Appellant could not obtain PCRA relief because he was no
longer serving a sentence.
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CERTIFICATION OF SERVICE
I, James Molinari, Esquire, Law clerk to the Honorable Daniel D. Mccaffery hereby
certifies that on the 21st day of November, 2018, by first class mail, postage prepaid, a true and
correct copy of the attached opinion was served upon the following:
Cuong Pham, Pro Se
3218 N.45th Street
Pennsauken, N.J. 08109
Lawrence J. Goode, Esquire
Chief-Appeals Unit
Office of the Philadelphia
District Attorney
Three South Penn Square
Philadelphia, PA 19107
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