Com. v. Frederick, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID FREDERICK :
:
Appellant : No. 1808 WDA 2019
Appeal from the PCRA Order Entered November 14, 2019
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000497-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: February 2, 2022
Appellant, David Frederick, appeals from the post-conviction court’s
order dismissing his timely petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, and in
accordance with an agreement reached by the parties, we reverse the PCRA
court’s order, vacate Appellant’s judgment of sentence, and remand for
resentencing.
This Court previously provided a summary of the facts and procedural
history of this case as follows:
The Commonwealth charged Appellant with 15 sexually[-]related
crimes[1] against his biological juvenile daughter. The victim, who
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* Retired Senior Judge assigned to the Superior Court.
1Specifically, the Commonwealth charged Appellant with rape, 18 Pa.C.S. §
3121(a)(1); rape of a child, 18 Pa.C.S. § 3121(c); statutory sexual assault,
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was 18 years old at the time of trial, testified that Appellant
engaged in various acts of sexual misconduct on a weekly basis
beginning when she was 11 or 12 years old.
Following a two-day trial in April 2014, a jury found Appellant
guilty of [two counts of EWOC, corruption of minors, and two
counts of indecent assault].[2] On October 7, 2015, following an
assessment and argument, the trial court determined Appellant to
be a sexually violent predator…. On November 14, 2014, the trial
court sentenced Appellant to an aggregate term of 62 months to
19 years of imprisonment.
Commonwealth v. Frederick, No. 1963 WDA 2014, unpublished
memorandum at 1-2 (Pa. Super. filed Jan. 12, 2016). On direct appeal, this
Court affirmed Appellant’s judgment of sentence, and he did not seek further
review with our Supreme Court. Commonwealth v. Frederick, 136 A.3d
1031 (Pa. Super. 2016) (unpublished memorandum).
Appellant timely-filed the instant PCRA petition (“Petition”) on January
3, 2017. Following a hearing on July 29, 2019,3 Appellant filed a motion to
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18 Pa.C.S. § 3122.1(b); involuntary deviate sexual intercourse, 18 Pa.C.S. §
3123(a)(1); aggravated indecent assault of a child, 18 Pa.C.S. § 3125(b); two
counts of sexual assault, 18 Pa.C.S. § 3124.1; aggravated indecent assault,
18 Pa.C.S. § 3125; two counts of incest, 18 Pa.C.S. § 4302(b)(1), (2); two
counts of endangering welfare of children (“EWOC”), 18 Pa.C.S. § 4304(a)(1);
corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii); and two counts of indecent
assault, 18 Pa.C.S. § 3126(a)(1), (8). As is particularly relevant to this
appeal, the EWOC offenses were charged as third degree felonies pursuant to
18 Pa.C.S. § 4304(b)(1)(ii) (“If the actor engaged in a course of conduct of
endangering the welfare of a child, the offense constitutes a felony of the third
degree.”).
2 The jury found Appellant not guilty of the remaining charges.
3At the hearing, the PCRA court determined that all the issues raised in the
Petition at that point in time could be addressed without fact-finding. N.T.,
7/29/19, at 2-3. The court also granted Appellant 20 days to file amendments
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amend the Petition on August 30, 2019. On November 14, 2019, the PCRA
court issued an opinion and order denying the Petition.4 Appellant filed a
timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)
statement. The PCRA court issued its Rule 1925(a) opinion on February 5,
2020.
Appellant now presents the following questions for our review:
I. Whether [Appellant] received ineffective assistance of counsel
from trial counsel because trial counsel failed to request the trial
court charge the jury as to the definition of “course of conduct”
relative to the offenses of [EWOC] and corruption of minors where
said “course of conduct” was an element of the offense for which
he was charged and would elevate the grading and offense gravity
score of those offenses?
II. [Appellant] intends to withdraw the claim for relief enumerated
as “2” in [his Rule 1925(b) statement] for the reasons set forth in
the Argument.
III. Whether the PCRA court erred by failing to address
[Appellant]’s additional, meritorious PCRA issues raised in [his]
August 30, 2019 Motion to Amend [the Petition] and where the
PCRA court’s November 13, 2019 Order[,] filed November 19,
2019[,] failed to comply with Pa.R.Crim.P. 907 or Pa.R.Crim.P.
908?
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to the Petition, although the court also stated that it had not yet determined
if it would ultimately permit those amendments. Id. at 3-4.
4 The PCRA court did not file a notice pursuant to Pa.R.Crim.P. 907 of its intent
to dismiss the Petition without an evidentiary hearing, despite having
determined that no fact-finding was required to address the claim in the
Petition. See Pa.R.Crim.P. 907(1) (“If the judge is satisfied from this review
that there are no genuine issues concerning any material fact and that the
defendant is not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings, the judge shall give notice to the
parties of the intention to dismiss the petition and shall state in the notice the
reasons for the dismissal.”). Moreover, the court did not rule on Appellant’s
pending motion to amend the Petition.
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Appellant’s Brief at 6-7 (unnecessary capitalization omitted).
We observe that the Commonwealth of Pennsylvania’s Office of the
Attorney General, in lieu of filing a brief in opposition to Appellant’s claim on
appeal, instead submitted a letter to this Court on November 5, 2021,
indicating that the Commonwealth had reached an agreement with Appellant
as to the resolution of this appeal. See Commonwealth’s Letter (“Letter
Brief”), 11/5/21, at 1. In that letter, the Commonwealth states that, in
exchange for Appellant’s withdrawing his third claim, the Commonwealth
concedes that Appellant is entitled to relief on his first claim in the form of a
new sentencing hearing. Id.
In his first claim for relief, Appellant asserts that his trial counsel was
constitutionally ineffective5 for failing to request specific jury instructions
related to his convictions for EWOC and corruption of minors, which were
graded as third-degree felonies at sentencing. Specifically, Appellant points
out that the jury was only instructed with respect to the core elements of
EWOC and corruption of minors, which constitute misdemeanors of the first
degree. See 18 Pa.C.S. § 4304(b)(1)(i) (“An offense under this section
constitutes a misdemeanor of the first degree.”); and see 18 Pa.C.S. §
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5To prove ineffective assistance, a petitioner must “rebut the presumption of
professional competence” by counsel “by demonstrating that: (1) his
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis…; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different.” Commonwealth v. Ali, 10
A.3d 282, 291 (Pa. 2010).
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6301(a)(1)(i) (“Whoever, … by any act corrupts or tends to corrupt the morals
of any minor … commits a misdemeanor of the first degree.”). Appellant
contends that the jury was never instructed with respect to the third-degree-
felony gradings of these offenses, which apply when the Commonwealth
proves a defendant engaged in a ‘course of conduct’ in violating the respective
statutes. See 18 Pa.C.S. § 4304(b)(1)(ii) (“If the actor engaged in a course
of conduct of [EWOC], the offense constitutes a felony of the third degree.”)
(emphasis added); and see 18 Pa.C.S. § 6301(a)(1)(ii) (“Whoever, being of
the age of 18 years and upwards, by any course of conduct in violation of
Chapter 31 … corrupts or tends to corrupt the morals of any minor … commits
a felony of the third degree.”) (emphasis added).
In Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004), this
Court held that for EWOC
to be graded as a third-degree felony, the Commonwealth must
allege in the information and present evidence at trial of the
additional factor of “course of conduct,” and the jury must be
instructed on such. … We cannot merely assume the jury found
this additional fact when no evidence of it was presented at trial
and no mention of it was made in the jury's charge.
Id. at 18 (emphasis added). Appellant argues that his trial counsel was
ineffective for failing to request a specific jury instruction for the felony
grading of the EWOC charges in accordance with Popow and, analogously,
that counsel was ineffective for failing to request proper instructions with
respect to the felony grading of the corruption of minors statute.
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In its Rule 1925(a) opinion, the PCRA court determined that “since: 1)
the jury was specifically instructed to address whether the Commonwealth
proved, beyond a reasonable [doubt], whether … Appellant committed
separate acts on different dates and times; and[] 2) the jury specifically found
that [Appellant] committed separate and distinct acts/offen[s]es, counsel was
not ineffective for requesting a more specific instruction.” PCRA Court
Opinion, 2/5/20, at 2. However, the court failed to address whether the jury
had been properly instructed with respect to the felony gradings of EWOC and
corruption of minors, independent of whether there was sufficient evidence
presented to prove a course of conduct under either offense.
As the Commonwealth dutifully acknowledges,
[t]he jury instructions provided for [c]orruption of [m]inors and
[EWOC] did not contain the elements needed for the jury to
convict [Appellant] of a felony of the third degree. The
instructions provided to the jury paralleled the instructions for
those offenses when graded as a misdemeanor of the first degree.
However, the jury convicted [Appellant] of those offenses as
felonies of the third degree. The Commonwealth concedes that
[Appellant] has proven ineffective assistance of counsel for failing
to request the proper jury instructions.
Letter Brief at 1.
We agree. Although Appellant was properly charged and convicted with
respect to the core elements of EWOC and corruption of minors,6 the
instructions given to the jury cannot sustain the felony grading of either
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6 “It is ‘the settled law in Pennsylvania ... that a defendant may be convicted
of an offense that is a lesser-included offense of the crime actually charged.’”
Commonwealth v. Kelly, 102 A.3d 1025, 1032 (Pa. Super. 2014) (quoting
Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007)).
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offense. Thus, Appellant is entitled to resentencing for those crimes.
Additionally, as noted by the Commonwealth,
[r]educing the corruption of minors[] count and the two counts of
[EWOC] to misdemeanors of the first degree would disrupt the
overall sentencing scheme. Kelly, 102 A.3d at 1033 (remand[ing]
for resentencing where felony conviction of corruption of minors
was altered to lesser included misdemeanor conviction of
[c]orruption of [m]inors); … Popow, 844 A.2d [at] 18 …
([applying a] similar principle … to [an EWOC] conviction).
Letter Brief at 2 (unnecessary capitalization omitted).
Accordingly, with respect to Appellant’s first claim, we vacate his
judgment of sentence in its entirety, and remand for resentencing consistent
with this memorandum. Otherwise, we leave Appellant’s convictions intact.
As to his remaining claims, Appellant withdrew his second claim with the filing
of his brief, and he has agreed to withdraw his third claim in accordance with
the aforementioned agreement between the parties.
Order reversed. Case remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2022
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