Com. v. Calderone, J. ( 2020 )

J-S34029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES FRANCIS CALDERONE :
:
Appellant : No. 1334 MDA 2019
Appeal from the Judgment of Sentence Entered July 17, 2019
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000890-2015
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 30, 2020
Appellant, James Francis Calderone, appeals from the judgment of
sentence of 33¼ to 82½ years’ incarceration, imposed after a jury convicted
him of four counts each of attempted murder and recklessly endangering
another person, and one count of aggravated assault. Herein, Appellant
challenges the trial court’s denial of his motion to appoint a psychologist to
evaluate him prior to sentencing. After careful review, we affirm.
The trial court summarized the pertinent facts and procedural history of
this case, as follows:
The present case arises out of an incident which occurred
on November 9, 2015[,] during which [Appellant], with an AK-47
type weapon and other firearms[,] and a large cache of
ammunition, opened fire at a maintenance worker (Mr. Hock) and
three (3) police officers (Rafferty, Martin and Shultz) at a local
industrial development complex. In the melee, Officer Martin was
grazed in the head with a metal fragment believed to be from a
bullet shot out of [Appellant’s] weapon. The [o]fficers opened fire
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only after [Appellant] refused to put down his weapons, locked a
round in the AK-47 chamber and raised the weapon toward the
officers. After exchanging fire, [Appellant] was shot in the chest
and incapacitated.
On June 2, 2016, [Appellant] filed a [“]Motion for Leave to
Secure a Preliminary Psychiatric/Mental Health Examination of
Defendant[”] (the “First Motion”). The First Motion was granted
by [o]rder dated June 23, 2016. [Appellant] was examined twice
by Richard E. Fischbein, M.D., a board certified psychiatrist, once
on May 20, 2017[,] and once on October 12, 2018. Reports of
each examination, with various opinions, were entered into the
trial record as Exs. D5 (report dated May 24, 2017) and D6 (report
dated October 12, 2018).
Trial occurred from May 8, 2019 to May 10, 2019. During
the trial, Dr. Fischbein testified consistent[ly] with his reports.
In Ex. D5, Dr. Fischbein diagnosed [Appellant] with
[a]djustment [d]isorder [with] [m]ixed [e]motional [f]eatures.
Dr. Fischbein testified that [Appellant’s] conduct “did not add up,”
given that he did not have any other violent episodes, as reported
by [Appellant]. Dr. Fischbein stated that [Appellant] did not have
… Antisocial Personality Disorder. Dr. Fischbein testified that
[Appellant] consistently professed to have no memory of the
incident. With no objection from the Commonwealth, Dr.
Fischbein was permitted to opine that the event was out of
character for [Appellant] and that he believed [Appellant’s]
reporting to him.1 Dr. Fischbein confirmed that, very recently
[before] the incident, [Appellant] had found out that he had
impregnated his next door neighbor and was concerned about the
consequence[s] to his marriage. Dr. Fischbein stated that
[Appellant] had alleged that his wife had put Xanax into
[Appellant’s] coffee the morning of the incident, and that Dr.
Fischbein believed [Appellant] and his claim that he slipped into a
delirium as a result. Dr. Fischbein found [Appellant] to be
presently competent to stand trial, and testified that he is doing
rather well in prison, with a balanced outlook. In Ex. D5, Dr.
Fischbein opined that [Appellant’s] psychiatric illness had a “very
significant” effect on [Appellant’s] behavior during the incident.
Dr. Fischbein opined that [Appellant] was[,] “at [a] minimum,”
guilty but mentally ill, and “wonder[ed]” if [Appellant] lacked
intent during the incident.
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1 Dr. Fischbein testified that the incident was “out of
character” for [Appellant], and that [Appellant] “struck
[him] as honest.” Dr. Fischbein’s testimony included several
such statements.
In Ex. D6, Dr. Fischbein went beyond his opinions as expressed
in Ex. D5. Dr. Fischbein interviewed several witnesses and based
his opinions on their recounting of events. In Ex. D6, Dr. Fischbein
again opined that [Appellant] was diagnosed with [a]djustment
[d]isorder with [m]ixed [e]motional [f]eatures, with anxiety and
depression. He then opined that, during the incident, [Appellant]
“was suffering from a state of delirium, most likely as a result of
the surreptitious drugging of his drinks by his wife…[.]” There was
some evidence of that at trial, [but] [Appellant’s] wife testified
that she did not drug [Appellant’s] coffee. Dr. Fischbein opined
that [Appellant’s] behavior was “out of his volition and control,”
and that his wife’s drugging of his drinks resulted in [his]
“involuntarily altering his behavior.” Dr. Fischbein continued to
be of the opinion that [Appellant] was competent to stand trial,
but opined that [Appellant] was not able to appreciate the
wrongfulness of his actions and that he was legally insane at the
time of the incident.
Dr. Fischbein testified that [Appellant] was not able to form a
specific intent to commit the crimes with which he was charged.
Dr. Fischbein confirmed that he charged approximately $7,970 for
his two (2) interviews and reports.
On May 10, 2019, a jury convicted [Appellant] of four (4)
counts of Attempted Murder [(18 Pa.C.S. §§ 901(a), 2502(a))],
four (4) counts of Aggravated Assault ([18 Pa.C.S.] §
270[2](a)(1): Attempt to cause serious bodily injury)[)], one (1)
count of Aggravated Assault ([18 Pa.C.S.] § 270[2](a)(3):
Causing bodily injury to a police officer), and four (4) counts of
Recklessly Endangering Another Person ([18 Pa.C.S.] § 2705).
Trial Court Opinion (TCO), 9/10/19, at 1-3.
Appellant’s sentencing was scheduled for July 17, 2019. On May 16,
2019, he filed a “Motion to Secure a Psychological Evaluation of Defendant for
Possible Sentence Mitigation.” Therein, Appellant requested that the court
appoint Dr. Michael A. Church, Ph.D., “to conduct a battery of psychological
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tests[,] including[,] but not limited to[,] the [Minnesota Multiphasic
Personality Inventory (MMPI),] to discover any mitigating psychological
issues.” Motion, 5/16/19, at 2 (unnumbered). In addition to the $3,500 fee
for Dr. Church to examine Appellant and draft a report, Appellant asked the
court to order the payment of the additional fee of $1,800 for the doctor’s
testimony at Appellant’s sentencing hearing. Id.
On June 19, 2019, the court conducted a hearing on Appellant’s motion.
The court noted that Dr. Fischbein had twice examined Appellant, drafted two
reports, and testified, all at the cost of “around $7,000.” N.T. Hearing,
6/19/19, at 2. The court questioned what Appellant hoped to discern from an
additional examination by Dr. Church. Id. at 3-4. Defense counsel stated
that Appellant wished to establish that he does not have antisocial personality
disorder, and that it is unlikely he will reoffend if he is not incarcerated. Id.
at 5. In response, the Commonwealth noted that Dr. Fischbein had opined
“on the last page of his first report … that … [Appellant] does not appear to
[have] … antisocial personality disorder….” Id. at 6. Additionally, a probation
officer present at the hearing stated that an assessment of Appellant’s risk of
reoffending could be conducted and included in the pre-sentence investigation
(PSI) report. Id. Thus, at the close of the hearing, the court denied
Appellant’s motion for a psychological evaluation by Dr. Church, but ordered
that the Columbia County Adult Probation and Parole Office conduct “some
kind of assessment as to the risk of recidivism in regard to the violence which
is the subject of the present case.” Id. at 9.
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On July 17, 2019, the court conducted Appellant’s sentencing hearing.
At the outset, the court confirmed that it had received a PSI report. N.T.
Sentencing, 7/17/19, at 2. Additionally, defense counsel noted that there had
been a recidivism-risk assessment conducted using the “Ohio Risk Assessment
System Community Supervision Tool.” Id. at 4. Defense counsel made no
objection to the adequacy or accuracy of that report; instead, he marked and
admitted it into the record. Id. Further, Dr. Fischbein’s two, pretrial
psychiatric evaluations of Appellant were admitted for the court’s
consideration, and the doctor also took the stand at the sentencing
proceeding. Id. Dr. Fischbein testified that he could “very confidently say
[that Appellant] is an individual who does not have antisocial personality
disorder.” Id. at 14. He also opined that Appellant’s not having antisocial
personality disorder “makes his overall prognosis and learning capabilities and
taking responsibility for bad events much more likely. And the risk of
recidivism or ever appearing in front of this [c]ourt again is greatly reduced.”
Id.
In addition, Dr. Fischbein testified that he had reviewed the Ohio Risk
Assessment System Community Supervision Tool. He explained that
Appellant had received a “low score” on that assessment, “which suggests that
he is not a hardened criminal and the risk of recidivism or needing strict
supervision, when and if he gets out of [p]rison…, does not have to be
intensive. … [H]e would in all likelihood abide by whatever recommendations
are made by the court.” Id. at 15.
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At the conclusion of the hearing, the court sentenced Appellant to the
aggregate term stated supra. He filed a timely motion for reconsideration of
his sentence. Before the court ruled on Appellant’s motion, he filed a notice
of appeal on August 8, 2019. The court denied his post-sentence motion on
August 12, 2019.1 Appellant thereafter complied with the trial court’s order
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, and the court filed a Rule 1925(a) opinion on September 10, 2019.
Herein, Appellant states the following issue for our review:
1) Did the [trial c]ourt err and deny due process in denying this
indigent defendant the right to be able to present all significant
information at sentencing, especially since it appears that the
[c]ourt was going to impose the equivalent of a virtual life
sentence on … Appellant? Did the [trial c]ourt err when it found
that the … []MMPI[] test[,] when used for purposes of
sentencing[,] was cumulative of a forensic evaluation performed
by a psychiatrist who focused solely on whether Appellant was
legally insane at the time this incident occurred and performed no
testing of Appellant?
Appellant’s Brief at 2.
Initially, we note that, “[t]he decision whether to appoint an expert
witness to assist in the preparation of a defense is within the sound discretion
of the trial court.” Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.
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1 This Court has explained that, “[u]nder Pa.R.Crim.P. 720(A)(2), no direct
appeal may be taken by a defendant while his post-sentence motion is still
pending.” Commonwealth v. Ratushny, 17 A.3d 1269, 1271 n.4 (Pa.
Super. 2011) (citing Pa.R.Crim.P. 720, Comment). However, the Ratushny
panel found that, pursuant to Pa.R.A.P. 905, we may “treat [an] appellant’s
premature notice of appeal as having been filed after entry of the order
denying post-sentence motions.” Id. We apply this rationale to Appellant’s
premature notice of appeal in the present case.
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Super. 2005) (citing Commonwealth v. Gelormo, 475 A.2d 765, 769 (Pa.
Super. 1984)). Here, the trial court explained the basis for its decision to
deny Appellant’s motion for the appointment of a psychologist, as follows:
A hearing was held on the … [m]otion on June 19, 2019[,]
at which the trial record of Dr. Fischbein’s testimony and his
reports were incorporated by reference. At that hearing, this
[c]ourt asked counsel for [Appellant] what opinions he was
seeking in addition to those already elicited in Exs. D5 and D6,
and counsel responded with a desire to conduct an MMPI, … which
assesses personality traits and psychopathology. In his two (2)
reports, Dr. Fischbein already opined as to [Appellant’s]
personality traits, … mental health diagnosis[,] and the pathology
behind his opinions.
Defense counsel also cited a desire to secure an opinion
from Dr. Fischbein to the effect that [Appellant] did not possess
an antisocial personality. It was pointed out to counsel that Dr.
Fischbein’s reports and testimony at trial already expressed those
opinions. Finally, defense counsel sought a risk assessment,
which was ordered to be performed by the Columbia County Adult
Probation and Parole Office, and was admitted into the record at
sentencing.
This [c]ourt issued an [o]rder dated June 19, 2019[,]
denying the … [m]otion, except that [the court] ordered the … risk
assessment. In [the o]rder of June 19, 2019, [the court] cited the
fact that Dr. Fischbein rendered opinions on mitigation of
responsibility and insanity[,] and that [Appellant] did not have an
antisocial personality. This [c]ourt stated that further psychiatric
evaluations would be redundant. Unstated in the [o]rder of June
19, 2019[,] is the fact that approximately $7,970.00 in Columbia
County taxpayers’ money ha[d] already been spent in the present
case on psychiatric evaluations.
[Appellant] has been accorded his right to psychiatric
evaluations, and the record contains Dr. Fischbein’s opinions
regarding [Appellant’s] diagnosis, his lack of specific intent, his
lack of diagnosis of antisocial personality, and the alleged
pathology, i.e., [that Appellant’s] wife spiked his coffee with drugs
and he suffered from delirium and depression from impregnating
his next door neighbor. This evidence was heard by this [c]ourt,
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and in its capacity as the sentencing [c]ourt, this [c]ourt, like the
jury, attributed no weight or credibility to those opinions due to
their lack of credible foundation. It is submitted that this [c]ourt
was well within its discretion to deny the aspect of the … [m]otion
which sought public funding for further psychiatric evaluations of
[Appellant].
TCO at 5-6.
On appeal, Appellant avers that the trial court abused its discretion by
denying his motion for the appointment of a psychologist to conduct the MMPI
evaluation before the sentencing proceeding. He contends that the court’s
decision violated his due process right to present the “fullest information
possible” concerning his “life and characteristics” for the court’s consideration
in fashioning his sentence. Appellant’s Brief at 21-22 (citation omitted). He
argues that Dr. Fischbein’s evaluation is not analogous to an MMPI
assessment, which he discusses in detail in his brief. See id. at 26-28.
Appellant stresses that Dr. Fischbein’s pretrial examinations focused on
discerning his state of mind at the time of the shooting, not his mental health
at the time of sentencing. Therefore, he maintains that the court erred in
concluding that it would be redundant to appoint another psychologist to
conduct an MMPI assessment.
Appellant also insists that the court’s denial of his motion for a
psychological evaluation was improperly premised on the cost thereof. In
support, he relies on Commonwealth v. Konias, 136 A.3d 1014 (Pa. Super.
2016), where we stated:
It is well-established that indigent defendants have a right to
access the same resources as non-indigent defendants in criminal
proceedings. Commonwealth v. Curnutte, 871 A.2d 839, 842
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(Pa. Super. 2005). The state has an “affirmative duty to furnish
indigent defendants the same protections accorded those
financially able to obtain them.” Commonwealth v.
Sweeney, … 533 A.2d 473, 480 ([Pa. Super.] 1987). Procedural
due process guarantees that a defendant has the right to present
competent evidence in his defense, and the state must ensure that
an indigent defendant has fair opportunity to present his
defense. Ake v. Oklahoma, 470 U.S. 68 … (1985).
Id. at 1019.
Appellant has failed to demonstrate an abuse of discretion by the trial
court. The court afforded Appellant his due process right to present his
defense by appointing Dr. Fischbein, who conducted two assessments, drafted
reports, and testified at both Appellant’s trial and sentencing hearing. The
court was permitted to consider the cost expended on Dr. Fischbein’s services
and testimony in determining whether to grant Appellant’s request for an
additional psychological evaluation. Nothing in Konias suggests otherwise.
We also discern no abuse of discretion in the court’s conclusion that the
information sought by Appellant in requesting another psychological
evaluation was cumulative of the opinions offered by Dr. Fischbein. First, at
the hearing on Appellant’s motion, he informed the court that an additional
psychological evaluation was necessary to establish that he does not have
antisocial personality disorder. However, Dr. Fischbein opined, in both his
pretrial reports and testimony at the sentencing hearing, that Appellant does
not have antisocial personality disorder. While Appellant now provides a
lengthy discussion of the MMPI assessment, arguing that it would have
provided different information that was more pertinent to the court’s
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sentencing considerations, he did not present this detailed argument to the
court at the hearing on his motion. Therefore, he cannot now argue that the
court erred by failing to appoint a psychologist to conduct the MMPI.
Second, Appellant informed the court that another psychological
evaluation was necessary to assess his likelihood of reoffending. In response,
the court ordered a recidivism-risk assessment to be conducted before the
sentencing hearing. Defense counsel made no objection to the assessment
that was ultimately conducted, and moved to enter it into the record at the
sentencing hearing. Moreover, Dr. Fischbein explained, in his testimony at
the sentencing proceeding, that the assessment indicated that Appellant poses
a low-risk of reoffending.
In sum, it is apparent that the record before the sentencing court
already contained the information that Appellant sought to obtain via another
psychological evaluation. Accordingly, we discern no abuse of discretion in
the court’s denial of Appellant’s request for an additional evaluation by another
psychologist.2
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2 We observe that, at the close of Appellant’s brief, he argues that the court’s
sentence was excessive, given the evidence that he presented a low risk of
reoffending. See Appellant’s Brief at 32-34. However, Appellant’s prior
attorney, who filed his Rule 1925(b) statement, failed to raise this issue,
thereby waiving it for our review. See Pa.R.A.P. 1925(b)(4)(vii);
Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super. 2008) (citations
omitted) (stating “[w]here the trial court orders an [a]ppellant to file a concise
statement of matters complained of on appeal under [Rule] 1925, any issue
not contained in that statement is waived on appeal”). To the extent Appellant
asks this Court to remand for his present counsel to file a new Rule 1925(b)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/30/2020
____________________________________________
statement to raise this excessive-sentencing claim, as well as several other
“critical issues” not set forth in prior counsel’s Rule 1925(b) statement, we
cannot provide such relief. See Appellant’s Brief at 38-47; see also
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (“Our jurisprudence is
clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant to file and serve
a Rule 1925(b) statement, when so ordered; any issues not raised in
a Rule 1925(b) statement will be deemed waived; [and] the courts lack the
authority to countenance deviations from the Rule’s terms….”). Instead,
Appellant must plead and prove, in a timely-filed petition under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, that the attorney who filed
his Rule 1925(b) statement acted ineffectively by not preserving the at-issue
claims.
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