Com. v. Swift, J. ( 2017 )

J-A16004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES SWIFT
Appellant No. 1446 WDA 2016
Appeal from the Judgment of Sentence entered April 28, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0010284-2015
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 29, 2017
Appellant, James Swift, appeals from the judgment of sentence
entered on April 28, 2016 in the Court of Common Pleas of Allegheny County
following Appellant’s convictions of one count each of harassment and
disorderly conduct.1 Appellant argues that the trial court violated the law of
the case doctrine, that the verdict in his non-jury trial was against the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2709(a)(1) and 5503(a)(1), respectively. Pursuant to
§ 2709(a)(1), “A person commits the crime of harassment when, with intent
to harass, annoy or alarm another, the person (1) strikes, shoves, kicks or
otherwise subjects the other person to physical contact[.]” In accordance
with § 5503(a)(1), “a person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he: (1) engages in fighting or threatening, or in violent or
tumultuous behavior[.]” Both offenses were graded as summary offenses.
18 Pa.C.S.A. §§ 2709(c)(1) and 5503(b), respectively.
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weight of the evidence, and that his sentence of probation was illegal
because he did not receive time credit for the one night he spent in prison.
Following review, we affirm his convictions. However, because we find his
sentence was illegal, we amend his sentencing order to reflect that he is
entitled to one day’s credit for time served, recognizing that our amendment
of the sentencing order will not upset his sentencing scheme.
This case arises from an August 8, 2015 altercation between Appellant
and his neighbor, Darryl Henderson (“Henderson”), when Henderson took
issue with the fact Appellant parked a vehicle in front of another neighbor’s
driveway. Henderson testified that Appellant came into his front yard,
punched him multiple times in the face, causing injuries including hearing
loss in his left ear, and then kicked him while on the ground. Notes of
Testimony (“N.T.”), 4/27/16, at 10-12. Appellant testified that Henderson
came into Appellant’s yard, stepped on Appellant’s foot and chest-bumped
him, prompting Appellant to punch him once. Henderson then returned to
his yard, lay on the ground, and called an ambulance. N.T., 4/28/16, at 39-
41. There were no eyewitnesses to the altercation although Appellant’s
friend, Patricia Culligan, testified that she observed Henderson on his own
front porch before the incident, went into Appellant’s home for
approximately three minutes to use the bathroom, and then saw Henderson
lying in his own yard with his knees pulled up to his chest and using his cell
phone when she came out of Appellant’s home. N.T., 4/27/16, at 29-30.
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Appellant was initially charged with simple assault, disorderly conduct
and harassment. The Commonwealth amended the criminal information and
proceeded to a bench trial on two charges each of disorderly conduct and
harassment, graded as summary offenses.2 Following the trial that took
place on April 27 and 28, 2016, the court found Appellant guilty of one count
of each offense and sentenced Appellant to consecutive terms of 90 days’
probation and a $300 fine at each count. N.T., 4/28/16, at 56.
Appellant filed a post-sentence motion and, ultimately, the trial court
permitted Appellant’s trial counsel to withdraw and appointed new counsel
who filed a supplemental post-sentence motion. The trial court denied relief
on September 8, 2016. This timely appeal followed. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our consideration:
I. The law-of-the case doctrine bars a court from altering the
resolution of a legal question previously decided by
another court of coordinate jurisdiction. Did the trial court
err and violate the law of the case where it required
Appellant’s counsel to continue representing Appellant
after counsel had been granted leave to withdraw by a
court of coordinate jurisdiction?
II. Testimony from the alleged victim established on the one
hand that Appellant inflicted a repetitious assault upon
him, and on the other hand that Appellant “slightly” had
physical contact with him. Provided these contradictory
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2 Events surrounding various motions and proceedings before the original
presiding judge, the Honorable Kevin G. Sasinoski, will be discussed herein
in relation to Appellant’s first issue on appeal.
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accounts, and seeing that there was no corroborating
evidence to support a repetitious assault, was the trial
court’s verdict contrary to the weight of the evidence?
III. Appellant received an aggregate maximum sentence of six
months[’]s probation for convictions of two summary
offenses. He did not receive time credit for a day he was
incarcerated. Accordingly, was Appellant’s sentence
illegal?
Appellant’s Brief at 3.
In his first issue, Appellant argues that the trial court erred and
violated the law of the case by requiring Appellant’s trial counsel to
represent him at trial despite the fact counsel was granted leave to withdraw
by a court of coordinate jurisdiction. As this issue presents a pure question
of law, our standard of review is de novo and our scope of review is plenary.
Jones v. Rivera, 866 A.2d 1148, 1150 (Pa. Super. 2005). To put this issue
in context, it is necessary to examine the procedural history of this case.
Our review of the record reveals that Attorney John Munoz of the
Allegheny Public Defender’s Office represented Appellant at his preliminary
hearing. Following the hearing, Appellant filed a motion for appointment of
counsel, seeking counsel from outside the Allegheny County Public
Defender’s Office. He claimed there was a conflict of interest because the
district justice, public defender, district attorney and trial judge are all paid
by Allegheny County. Motion for Appointment of Counsel, 10/6/15, at 1.
At Appellant’s pre-trial conference on October 23, 2015, Assistant
Public Defender Kelli J. Kleeb (“Attorney Kleeb”) was assigned to represent
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Appellant. On December 28, 2015, Attorney Kleeb filed a motion to
withdraw, asserting that she and Appellant had reached an impasse on how
to proceed with his case and indicating that Appellant had asked her to
withdraw. Motion to Withdraw, 12/28/15, at 1-2.3 In response, the
Honorable Kevin G. Sasinoski scheduled a hearing for January 6, 2016.
Order, 12/29/15, at 1. Although there is no transcript from the January 6,
2016 hearing, Judge Sasinoski commented at a February 17, 2016 hearing
that the withdrawal issue had been discussed and Attorney Kleeb indicated
that she and Appellant “can work through this.” N.T., Hearing, 2/17/16, at
4.4 Judge Sasinoski further commented that while Appellant was entitled to
a free attorney, he “does not have the right to choose which one.” Id.At the February 17, 2016 hearing, Assistant District Attorney Kara
Sidone (“ADA Sidone”) moved to amend the criminal information from three
charges, two of which were misdemeanor charges, to four summary charges
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3 Attorney Kleeb’s motion was filed in accordance with Pa.R.Crim.P.
120(B)(2)(a), which requires that a motion to withdraw must be filed with
the clerk of courts with a copy concurrently served on the attorney for the
Commonwealth and the defendant. We note that Pa.R.Crim.P. 120(B)(1)
provides that “Counsel for a defendant may not withdraw his or her
appearance except by leave of court.”
4 On March 31, 2017, by stipulation of the parties to expand the record
under Pa.R.A.P. 1926(b)(2), the certified record was supplemented to
include the transcript of the February 17, 2016 hearing.
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(two each of harassment and disorderly conduct). The defense did not
object to the amendments. Id. at 2-3.
The court proceeded to discuss Attorney Kleeb’s motion to withdraw
and Appellant’s motions, including his motion for appointment of counsel
from outside the Public Defender’s Office and his motion for Judge
Sasinoski’s recusal. During the course of the hearing, Appellant indicated he
did not want Attorney Kleeb to represent him, nor did he want to represent
himself. Id. at 6. Judge Sasinoski then informed Attorney Kleeb that she
was excused. Id. at 7. However, when Judge Sasinoski questioned
Appellant about his waiver of counsel, Appellant testified that he was not
waiving his right to counsel and asked the court to appoint him “conflict
counsel.” Id. at 7-8. Judge Sasinoski declined, citing the lack of conflict.
Id. at 8. He then called Attorney Kleeb back up and a discussion ensued
between Appellant and Judge Sasinoski about Appellant’s contention that
Attorney Kleeb was withholding evidence from Appellant. Id. at 9-11. At
the conclusion of that discussion, Appellant stated that he hoped Judge
Sasinoski would remove Attorney Kleeb. Judge Sasinoski replied, “No, I’m
not.” Id. at 11. Judge Sasinoski then informed Appellant of his options:
have Attorney Kleeb represent him, represent himself, or hire his own
attorney. Id.
The court then discussed Appellant’s motions, including his motion for
recusal of Judge Sasinoski. At the conclusion of the discussion, Judge
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Sasinoski announced, “Well, none of these motions have been ruled on and
you have summarily dismissed your lawyer, so I really don’t see a need to
rule on the motion to withdraw that was originally filed by Ms. Kleeb, and
you have been terminated.” Id. at 15. As the hearing proceeded, Appellant
again asked for counsel to be appointed and reiterated that he had not
waived his right to counsel. Id. at 16, 23. The Commonwealth expressed
concern that the trial court had not conducted an appropriate waiver
colloquy. Id. at 22. Judge Sasinoski responded that Appellant had “waived
counsel, he fired counsel[.] The issue is whether he gets conflict counsel. I
see no reason for conflict counsel to be appointed. He has an option of
representing himself. These are summary matters, and Ms. Kleeb was
appointed as a public defender. He . . . doesn’t want her.” Id. at 22-23.
After further discussion, Judge Sasinoski informed Appellant again that he
would not appoint “conflict counsel” for him. Judge Sasinoski then
announced that he was revisiting Appellant’s recusal request; that he would
be recusing himself from the case; and that the case would go back to the
district magistrate judge. Id. at 24-25.
The certified record includes the February 17, 2016 order amending
the criminal information and reflecting Judge Sasinoski’s recusal. The order
appears on the original criminal information on page 26 of the certified
record docketed in this appeal. Notations on that document also include the
designation of “Judge Williams” as the trial judge and, in what appears to be
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the same handwriting as the order, an indication that “Kara Sidone” is the
ADA and “K. Kleeb” represents Appellant. The record does not reflect any
order regarding Attorney Kleeb’s withdrawal or dismissal.
For reasons not apparent from the record, the case did not return to
the magistrate district judge but rather was assigned to Judge Joseph K.
Williams, III. ADA Sidone, Attorney Kleeb and Appellant appeared before
Judge Williams for a non-jury trial beginning on April 27, 2016. Attorney
Kleeb explained that Judge Sasinoski indicated at the February hearing that
Attorney Kleeb would be permitted to withdraw. However, Attorney Kleeb
acknowledged there was no order entered to that effect. N.T., Hearing,
4/27/16, at 4. ADA Sidone corroborated Attorney Kleeb’s recollection of
events from the February hearing and her belief that Judge Sasinoski did not
sign an order authorizing withdrawal of representation. Id. at 5. ADA
Sidone further explained Judge Sasinoski did grant the request to amend the
criminal information to reflect the summary offense charges.
Judge Williams asked if the officers were present at the hearing. ADA
Sidone responded that they were present as was the victim. The judge then
announced, “We’re doing this today. You’re not excused. Let’s go. Do
whatever you need to do. We’re getting this over with.” Id. Attorney Kleeb
responded, “Can I ask if you would ask my client if he would have me
represent him or represent himself.” Id. at 6. The judge answered that if
Appellant did not have his own attorney, Attorney Kleeb would be
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representing him, unless Appellant did not want her to. Appellant informed
the court that he would rather have Attorney Kleeb’s representation than
represent himself. Id. The trial proceeded and, as noted above, the trial
judge found Appellant guilty of one count each of harassment and disorderly
conduct and sentenced him to probation and fines.
Appellant argues that Judge Williams violated the coordinate
jurisdiction rule by overruling Judge Sasinoski’s oral order excusing Attorney
Kleeb from representing Appellant. Appellant concedes that the order was
not written but argues that the trial judge was bound by the oral order in
light of counsels’ representations to the trial court that Judge Sasinoski
orally granted Attorney Kleeb’s request to withdraw.
In his Rule 1925(a) opinion, Judge Williams explained:
The [c]ourt was assigned this matter after a colleague recused
himself. The parties both claimed that my colleague granted the
request of defense counsel to withdraw. The record does not
support counsel’s recollection. The long held custom in
Allegheny County is for the Information to reflect certain
activities. On the cover page of this two page document, in the
lower right corner, is a notation that on February 17, 2016, the
[c]ourt (Judge Sasinoski) recused himself. It also shows that
the Information was amended to the 4 summary offenses. The
non-jury trial was then held on April 28th. This is reflected on
the back side of page one. Mysterious by its absence is any
reference to counsel being allowed to withdraw. But, this is not
the only place such withdraw orders could be found. The search
for a separate order reflecting that supposed fact cannot be
found in the court file. In addition, the on-line docket history
shows no entry of an order authorizing counsel to withdraw.
When the parties appeared before this [c]ourt for the non-jury
trial on April 28th, the issue was brought up again. The [c]ourt
denied the request to withdraw. Transcript, pg. 4.
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This background makes for an easy disposition of
[Appellant’s law of the case] claim. According to him, the
supposed order granting withdraw was the “law of the case” and
thus, it was error for this [c]ourt not to honor that order. Since
there was no order, there was no “law of the case” that his
[c]ourt would have then felt obliged to follow.
Trial Court Rule 1925(a) Opinion, 12/5/16, at 3 (italics in original).
We agree. While Judge Sasinoski initially indicated that Attorney Kleeb
was excused, he later stated that he was not removing her. N.T., 2/17/16,
at 7, 11. Judge Sasinoski ultimately announced that because Appellant
“summarily dismissed” Attorney Kleeb, he “really [did not] see a need to
rule on the motion to withdraw that was originally filed by Ms. Kleeb.” Id. at
15. Clearly, as Judge Williams concluded, Judge Sasinoski did not issue an
order, oral or written, granting Attorney Kleeb’s motion to withdraw. In
absence of an order, Appellant cannot prevail on his law of the case claim
that Judge Williams violated the coordinate jurisdiction rule. Appellant’s first
issue fails for lack of merit.
In his second issue, Appellant argues that the trial court’s verdict was
contrary to the weight of evidence.5 As our Supreme Court reiterated in
Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013):
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5 Appellant properly preserved this claim by raising it in his post-sentence
and supplemental post-sentence motions. See Commonwealth v. Lofton,
57 A.3d 1270, 1273 (Pa. Super. 2012) (“A weight of the evidence claim
must be preserved either in a post-sentence motion, by a written motion
before sentencing, or orally prior to sentencing.”) See also Pa.R.Crim.P.
607(A).
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Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. [Commonwealth v.
Brown, 648 A.2d 1177, 1189 (Pa. 1994)]. Because the trial
judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. Commonwealth v. Farquharson,
467 Pa. 50, 354 A.2d 545 (Pa. 1976). One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
Id. at 1055 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.
2000) (emphasis in original).
[O]ur scope of review on a weight of the evidence claim is very
limited. We will respect the trial court’s findings with regard to
credibility and weight of the evidence unless it can be shown that
the lower court’s determination was manifestly erroneous,
arbitrary and capricious or flagrantly contrary to the evidence.
Hollock v. Erie Insurance Exchange, 842 A.2d 409, 417 (Pa. Super.
2004) (quoting Gemini Equipment Co. v. Pennsy Supply, Inc., 595 A.2d
1211, 1215 (Pa. Super. 1991) (alteration in original)).
As the trial court properly recognized, the weight claim “recognizes
that there was sufficient evidence to convict for both charges.” Trial Court
Rule 1925(a) Opinion, 12/5/16, at 2. See, e.g., Widmer, 744 A.2d at 751
(citation omitted). Appellant’s argument is based on Henderson’s testimony
that Appellant “inflicted a repetitious assault upon him, and on the other
hand that Appellant ‘slightly’ had physical contact with him.” Appellant’s
Brief at 3. Appellant suggests that Henderson’s comments constituted
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contradictory accounts and that there was no evidence to corroborate
Henderson’s characterization of the altercation as a “repetitious assault.”
Id.
Following our review of the trial transcript, we conclude that the trial
court was within its discretion to determine that the Commonwealth
established Appellant’s guilt of harassment and disorderly conduct beyond a
reasonable doubt.6 As the trial court observed,
[Appellant] seizes upon a response from [] Henderson and
attempts to make it appear as if there were conflicting accounts.
Assuming that there were, the trial court resolved that conflict
and not in [Appellant’s] favor. Nevertheless, the [c]ourt did not
see Henderson’s use of the word “slightly” as being
contradictory. The [c]ourt saw the answer as not being
responsive to the question and an example of lawyers asking
questions in “lawyer speak” and not in language that the witness
understands.
Trial Court Rule 1925(a) Opinion, 12/5/16, at 2.
The trial court’s determination was not manifestly erroneous, arbitrary
and capricious or flagrantly contrary to the evidence. Finding no abuse of
discretion on the part of the trial court, we reject Appellant’s weight of the
evidence claim for lack of merit.
In his third claim, Appellant contends the trial court imposed an illegal
sentence because the court did not give Appellant time credit for a day
Appellant was incarcerated. “A challenge to the trial court's failure to award
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6 See n. 1.
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credit for time served prior to sentencing involves the legality of a
sentence.” Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super.
2009).7
In Johnson, this Court recognized that 42 Pa.C.S.A. § 9760(1)
entitles an individual to credit for time served. “This section mandates that
‘all time spent in custody as a result of the criminal charge for which a prison
sentence is imposed or as a result of the conduct on which such a charge is
based’ must be credited to a defendant.” Id. at 1005. As in the case before
us, Johnson was originally sentenced to probation. Upon revocation of his
probation, he was sentenced to a term of imprisonment. This Court
concluded that, upon resentencing, Johnson was entitled to credit for time
served.
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7 In his statement of errors complained of on appeal, Appellant raised a
three-pronged ineffectiveness of counsel claim, including a claim of
ineffectiveness for failing to object to imposition of consecutive 90-day
probationary terms without an award of time credit for the one night
Appellant spent in jail. Appellant’s 1925(b) statement at 3. However, on
appeal, recognizing that legality of sentence is not waivable, Appellant
abandoned his ineffectiveness claims and pursued this legality of sentence
issue. Appellant’s Brief at 27. While a claim not raised in a 1925(b)
statement ordinarily would be considered waived, a challenge to the legality
of sentence is never waived and this Court may consider it sua sponte. See,
e.g., Commonwealth v. Rossetti, 863 A.2d 1185, 1193 (Pa. Super. 2004).
Therefore, we shall consider the merits of Appellant’s legality of sentence
claim.
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We agree with Appellant that he is entitled to credit for time served.
Therefore, we shall correct his sentence to reflect that he is entitled to credit
for the one day that he spent in prison. As this Court has recognized:
Where we determine that a sentence must be corrected, this
court has the option of amending the sentence directly or
remanding it to the trial court for resentencing.
Commonwealth v. Vazquez, 328 Pa. Super. 86, 476 A.2d 466(1984). If a correction by this court may upset the sentencing
scheme envisioned by the trial court, the better practice is to
remand.
Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996) (rev’d on
other grounds). Because correcting Appellant’s sentence to reflect that he is
entitled to one day’s credit for time served will not upset the sentencing
scheme, we shall amend his sentence directly rather than remand to the trial
court for resentencing.8 Therefore, Appellant’s April 28, 2016 Order of
Sentence is hereby amended to reflect that Appellant is entitled to credit for
one day of time served. In all other respects, Appellant’s judgment of
sentence is affirmed. The trial court’s April 28, 2016 Order of Sentence is
amended to include the following statement: “Appellant is entitled to one
day of credit for time served.”
Judgment of sentence affirmed.
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8 Although considered in the context of the ineffective assistance of counsel
claims raised in Appellant’s 1925(b) statement, the trial court acknowledged
that “[t]he collective read of the papers before the case made it to the Court
of Common Pleas is that [Appellant] spent an overnight in the county jail
and would be entitled to 1 day credit.” Trial Court Rule 1925(a) Opinion,
12/5/16, at 4, n. 2.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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