Com. v. Ford, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PERRY FORD
Appellant No. 3125 EDA 2013
Appeal from the Judgment of Sentence May 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009903-2011
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 04, 2015
Appellant, Perry Ford, appeals from the May 30, 2013 aggregate
judgment of sentence of eight to 16 years’ imprisonment, imposed after he
was found guilty at a bench trial of one count each of unlawful contact with a
minor, indecent assault, indecent exposure, simple assault, and corruption of
minors.1 After careful review, we vacate and remand with instructions.
The trial court summarized the relevant factual and procedural history
of this case as follows.
At around 7:30 p.m. on May 28, 2011,
[Appellant] …, was out front of 3947 Priscilla Street
in Philadelphia, Pennsylvania, where the victim,
[T.W.], lives. The victim is a fourteen (14) year-old
mentally retarded girl who reads at a
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1
18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(2), 3127(a), 2701(a), and
6301(a)(1)(i), respectively.
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prekindergarten level and has difficulty taking care of
herself.
In his statement, [Appellant] told detectives
that the victim’s mother sent the victim over “to take
care of him,” and that if the victim had been only 11
years old, that would have been “better for me”.
According to the victim’s mother, [Appellant] kissed
and hugged the victim; he then turned her around
and put one arm around her neck in a headlock.
With his other hand, [Appellant] reached inside the
victim’s underwear and rubbed her buttocks.
[Appellant] then reached for his zipper, exposed his
penis, and rubbed it between the victim’s butt
cheeks. The victim freed herself from [Appellant]
and ran into her house.
When police responded to the 3900 block of
Priscilla Street, they observed an angry crowd of
people screaming that [Appellant] had just raped a
little girl. The police had the young victim identify
[Appellant] before arresting him and taking him to
the hospital[.]
Trial Court Opinion, 6/30/14, at 3 (internal citations omitted).
On August 30, 2011, the Commonwealth filed an information charging
Appellant with the above-mentioned offenses as well as four counts of
criminal attempt, and one count each of unlawful restraint, false
imprisonment, recklessly endangering another person, and endangering the
welfare of a child.2 At some point, Appellant filed a motion to suppress his
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2
18 Pa.C.S.A. §§ 901(a), 2902(a)(1), 2903(a), 2705, and 4304(a)(1),
respectively.
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statement to police.3 On November 26, 2012, the trial court conducted a
suppression hearing, at the conclusion of which, the trial court denied
Appellant’s motion to suppress. Appellant proceeded to a three-day bench
trial on January 23, 2013, at the conclusion of which, the trial court found
Appellant guilty of one count each of unlawful contact with a minor, indecent
assault, indecent exposure, simple assault, and corruption of minors. The
trial court acquitted Appellant of all remaining charges.
On May 30, 2013, the trial court imposed an aggregate sentence of
eight to 16 years’ imprisonment.4 On June 4, 2013, Appellant filed a timely,
post-sentence motion. On October 4, 2013, the trial court entered an order
denying Appellant’s post-sentence motion by operation of law. See
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3
Although this Court has a copy of the transcript pertaining to this
suppression motion, the motion itself does not appear in the certified record,
nor does it appear on the docket sheet. Nevertheless, because all parties
agree on the subject of the suppression motion, the trial court had provided
an analysis of the issue in its opinion, and this Court has the suppression
motion transcript, we decline to find waiver on this basis. Cf.
Commonwealth v. O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006)
(concluding the defendant waived his suppression issue where this Court
was “unable to determine whether O’Black actually filed a motion to
suppress and [was] equally unable to determine whether the trial court's
decision to deny the motion to suppress constitutes error[]”).
4
Specifically, the trial court sentenced Appellant to three to six years’
imprisonment for unlawful contact with a minor, two to four years’
imprisonment for indecent assault, and three to six years’ imprisonment for
corruption of minors. All sentences were to run consecutively to each other,
and the trial court imposed no further penalty on the remaining charges. We
further note Appellant was determined not to be a sexually violent predator.
N.T., 5/30/13, at 2.
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generally Pa.R.Crim.P. 720(B)(3)(b). On November 1, 2013, Appellant filed
a timely notice of appeal.5
On appeal, Appellant raises the following three issues for our review.
I. Is [A]ppellant entitled to a new trial as a result
of the pretrial court’s denial of his pretrial
motion to suppress [his] statement?
II. Is [A]ppellant entitled to a new trial as a result
of the ruling of the pretrial court that denied
his request for a change of counsel?
III. Is [A]ppellant entitled to a remand for
resentencing since the trial court’s aggregate
sentence of 8 to 16 years is excessive,
unreasonable and not supported by
[A]ppellant’s character, history and condition?
Appellant’s Brief at 4.
In his first issue, Appellant avers the trial court erred by not granting
his motion to suppress his statement to police. Id. at 14. We begin by
noting our well-settled standard of review regarding suppression issues.
[I]n addressing a challenge to a trial court’s denial of
a suppression motion [we are] limited to determining
whether the factual findings are supported by the
record and whether the legal conclusions drawn from
those facts are correct. Since the [Commonwealth]
prevailed in the suppression court, we may consider
only the evidence of the [Commonwealth] and so
much of the evidence for the defense as remains
uncontradicted when read in the context of the
record as a whole. Where the record supports the
factual findings of the trial court, we are bound by
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5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)
(some brackets and citation omitted).
Appellant argues that the waiver of his Miranda6 warnings was not
voluntary as he was under the influence of phencyclidine (PCP). Appellant’s
Brief at 14. The Commonwealth agrees that Appellant “told the police he
had taken PCP.” Commonwealth’s Brief at 7. However, the Commonwealth
maintains this did not render his Miranda waiver involuntary. Id. at 7-8.
We employ a two-pronged test to ascertain whether an appellant has
validly waived his Miranda rights prior to giving a statement to police.
First, we consider “whether the waiver was voluntary, in the sense that [the]
defendant’s choice was not the end result of governmental pressure[.]”
Commonwealth v. Pruitt, 951 A.2d 307, 318 (Pa. 2008) (citation
omitted), cert. denied, Pruitt v. Pennsylvania, 556 U.S. 1131 (2009).
Second, we consider “whether the waiver was knowing and intelligent, in the
sense that it was made with full comprehension of both the nature of the
right being abandoned and the consequence of that choice.” Id. The
burden rests upon the Commonwealth to establish that the defendant
knowingly and voluntarily waived his Miranda rights. Id.____________________________________________
6
Miranda v. Arizona, 384 U.S. 436 (1966).
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In determining whether the Commonwealth has satisfied its burden,
we “must consider the totality of the circumstances surrounding the
confession.” Commonwealth v. Housman, 986 A.2d 822, 840 (Pa. 2009),
cert. denied, Housman v. Pennsylvania, 131 S. Ct. 199 (2010). The
following factors are important in evaluating the totality of the
circumstances.
[T]he duration and means of interrogation; the
defendant’s physical and psychological state; the
conditions attendant to the detention; the attitude
exhibited by the police during the interrogation; and
any other factors which may serve to drain one’s
powers of resistance to suggestion and coercion.
Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004) (citations
omitted). Here, Appellant’s argument appears to focus on the second prong
of the analysis. Appellant argues that his Miranda waiver was involuntary
because he was high on PCP at the time. Appellant’s Brief at 14.
It is axiomatic that “[i]ntoxication is a factor to be considered, but it is
not sufficient, in and of itself to render the confession involuntary.”
Commonwealth v. Manning, 435 A.2d 1207, 1209 (Pa. 1981) (citation
omitted).
The fact that an accused has been drinking does not
automatically invalidate his subsequent incriminating
statements. The test is whether he had sufficient
mental capacity at the time of giving his statement
to know what he was saying and to have voluntarily
intended to say it. Recent imbibing or the existence
of a hangover does not make his confession
inadmissible, but goes only to the weight to be
accorded to it.
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Commonwealth v. Ventura, 975 A.2d 1128, 1137-1138 (Pa. Super. 2009)
(citation omitted), appeal denied, 987 A.2d 161 (Pa. 2009). “[W]hen
evidence of impairment is present, it is for the suppression court to decide
whether the Commonwealth has established by a preponderance of the
evidence that the suspect nonetheless had sufficient cognitive awareness to
understand the Miranda warnings and to choose to waive his rights.” Id.,quoting Commonwealth v. Britcher, 563 A.2d 502, 507 (Pa. Super.
1989), affirmed, 592 A.2d 686 (Pa. 1991). Our Supreme Court has
explained that these standards are “equally applicable to those instances
where an accused was allegedly under the influence of drugs or narcotics at
the time of his interrogation by police officials.” Manning, supra at 1209-
1210.
At the suppression hearing, the Commonwealth presented the
testimony of Detective Joseph Jenkins. Detective Jenkins testified that
Appellant had “an injury to his mouth … appeared jittery … [and] was talking
a little fast, but that was about it.” N.T., 11/26/12, at 29. Detective Jenkins
further testified that he gave Appellant his Miranda warnings. Id. at 30.
Detective Jenkins asked Appellant seven questions regarding the receipt and
waiver of the Miranda warnings. Id. at 31. Detective Jenkins wrote down
Appellant’s answers, gave Appellant the form so he could read it over, and
Appellant signed it. Id. Detective Jenkins testified that Appellant told him
“he wanted to tell [Detective Jenkins] his side of the story.” Id. at 32.
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Further, Detective Jenkins testified that he had witnessed people who were
under the influence of PCP and “[t]hey become violent and uncontrollable.”
Id. at 55. Based on Detective Jenkins’ observations, he “believed
[Appellant] understood where he was at.” Id. at 31-32.
Appellant also testified at the suppression hearing. Appellant testified
that he did consume PCP the day he was arrested but did not recall being
arrested. Id. at 64. Appellant testified he has consumed PCP every day
since 2004. Id. at 65. Appellant testified that had he not been on PCP that
day, he would have answered Detective Jenkins’ Miranda questions
differently and would have invoked his right to counsel. Id. at 66-67.
Appellant testified that he did not remember anything connected to receiving
or waiving his Miranda rights. Id. at 68.
After careful review, we conclude Appellant is not entitled to relief.
This Court has explained time and again that the trial court’s credibility
determinations are binding on us. Commonwealth v. Hudson, 92 A.3d
1235, 1241 (Pa. Super. 2014). As an appellate court, we cannot substitute
our judgment for that of the trial court. See Commonwealth v. Bond, 652
A.2d 308, 311 (Pa. 1995) (stating that an “appellant [may not] seek[] a
different ruling from [an appellate court] on the matter of the credibility of
the witnesses[]”). Here, the trial court found Detective Jenkins’ testimony
as to Appellant’s demeanor and alertness credible and Appellant’s less than
credible. N.T., 11/26/12, at 110; Trial Court Opinion, 6/30/14, at 5. As
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noted above, Detective Jenkins testified that Appellant appeared alert and
aware of his surroundings. N.T., 11/26/12, at 31-32. Based on these
considerations, we conclude Appellant “had sufficient cognitive awareness to
understand the Miranda warnings and to choose to waive his rights.”
Ventura, supra. Therefore, we further conclude the trial court properly
denied Appellant’s motion to suppress. See Washington, supra.In his second issue, Appellant avers that the trial court erred in
denying his motion for change of counsel. Appellant’s Brief at 18.
The Sixth Amendment to the United States
Constitution provides that in all criminal
prosecutions, the accused shall enjoy the right to
have the assistance of counsel for his or her defense.
Similarly, Article I, Section 9 of the Constitution of
this Commonwealth affords to a person accused of a
criminal offense the right to counsel. However, the
constitutional right to counsel of one’s own choice is
not absolute. Rather, the right of an accused
individual to choose his or her own counsel, as well
as a lawyer’s right to choose his or her clients, must
be weighed against and may be reasonably restricted
by the state’s interest in the swift and efficient
administration of criminal justice. Thus, while
defendants are entitled to choose their own counsel,
they should not be permitted to unreasonably clog
the machinery of justice or hamper and delay the
state’s efforts to effectively administer justice.
Commonwealth v. Lucarelli, 971 A.2d 1173, 1178-1179 (Pa. 2009)
(internal citations omitted). “Generally, ‘[t]he decision of whether to grant a
request for a change of counsel is a matter vested to the sound discretion of
the trial court and will not be disturbed on appeal, absent an abuse of
discretion.’” Commonwealth v. Patterson, 931 A.2d 710, 715 (Pa. Super.
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2007), quoting Commonwealth v. Basemore, 582 A.2d 861, 864 (Pa.
1990), cert. denied, Basemore v. Pennsylvania, 502 U.S. 1102 (1992).
In the case sub judice, Appellant requested a change of counsel the
same day as he litigated his suppression motion, which at the time was the
day his trial was to begin. Appellant claimed that his case was not a “top
priority” for retained counsel due to his inability to pay counsel’s legal fees.
N.T., 11/26/12, at 9. Appellant also believed that he should have a change
of counsel due to current counsel advising to take a plea offered by the
Commonwealth. Id. at 12. It was on these bases that Appellant requested
a change of counsel. The record reveals that Appellant had previously
retained two private attorneys. Id. at 14. Nevertheless, in connection with
this motion, Appellant requested the court appoint new counsel to represent
him. Id.
Assuming arguendo that Appellant was entitled to court-appointed
counsel, we conclude the trial court did not abuse its discretion in denying
Appellant’s motion. Cf. Pa.R.Crim.P. 122(A)(2) (stating that counsel shall be
appointed “in all court cases, prior to the preliminary hearing to all
defendants who are without financial resources or who are otherwise unable
to employ counsel[]”). As the trial court pointed out, counsel had “been
preparing diligently for the [suppression] motion … [a]nd [that] he [had]
subpoenaed a doctor on [Appellant’s] behalf” for said motion. N.T.,
11/26/12, at 13. Appellant also acknowledged that counsel had visited him
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in prison “a couple of times” and that he had chances to speak to counsel “a
number of times” at the courthouse for various appearances. Id. at 10. The
fact that counsel advised Appellant to accept a plea offer from the
Commonwealth does not amount to an irreconcilable difference between
counsel and a defendant. Commonwealth v. Johnson, 454 A.2d 1111,
1116-1117 (Pa. Super. 1982). Based on these considerations, we conclude
the trial court did not abuse its discretion when it denied Appellant’s motion
for a change of counsel. See Patterson, supra.In his third issue, Appellant raises claims regarding the discretionary
aspects of his sentence. See Appellant’s Brief at 20-29. However, we
decline to address these arguments at this juncture, as our review of the
record has revealed a potential issue regarding the legality of Appellant’s
sentence, which would render Appellant’s discretionary aspects of sentence
issue moot. Commonwealth v. Tanner, 61 A.3d 1043, 1046 n.3 (Pa.
Super. 2013). We begin by noting that a challenge to the legality of the
sentence can never be waived and may be raised by this Court sua sponte.
Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)
(citation omitted); see also Commonwealth v. Borovichka, 18 A.3d
1242, 1254 (Pa. Super. 2011) (stating, “[a] challenge to the legality of a
sentence … may be entertained as long as the reviewing court has
jurisdiction[]”).
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It is also well-established that “[i]f no statutory authorization exists for
a particular sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation
omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the
legality of a sentence are questions of law[.] … Our standard of review over
such questions is de novo and our scope of review is plenary.”
Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations
omitted).
The issue going to the legality of Appellant’s sentence pertains to his
conviction for corruption of minors, which is codified as follows.
§ 6301. Corruption of minors
(a) Offense defined.--
(1) (i) Except as provided in subparagraph (ii),
whoever, being of the age of 18 years and
upwards, by any act corrupts or tends to
corrupt the morals of any minor less than 18
years of age, or who aids, abets, entices or
encourages any such minor in the commission
of any crime, or who knowingly assists or
encourages such minor in violating his or her
parole or any order of court, commits a
misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and
upwards, by any course of conduct in violation
of Chapter 31 (relating to sexual offenses)
corrupts or tends to corrupt the morals of any
minor less than 18 years of age, or who aids,
abets, entices or encourages any such minor in
the commission of an offense under Chapter 31
commits a felony of the third degree.
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…
18 Pa.C.S.A. § 6301(a)(1) (emphases added). As this Court recently noted
corruption of minors graded as a first-degree misdemeanor is a lesser-
included offense of corruption of minors graded as a third-degree felony.
Commonwealth v. Kelly, 102 A.3d 1025, 1032-1033 (Pa. Super. 2014)
(en banc).
As noted above, Appellant received a sentence of three to six years’
imprisonment for corruption of minors. Based on our review of the record,
Appellant was charged with corruption of minors as a third-degree felony.
However, at the conclusion of the bench trial, the trial court announced on
the record that it was finding Appellant “guilty of corrupting the morals of a
minor as an [sic] M1[.]” N.T., 1/25/13, at 5. At sentencing, however, the
Commonwealth stated its recommended sentence for the “F3, corrupting the
morals of a minor which is 3 and a half to 7[.]” N.T., 5/30/13, at 13. In its
Rule 1925(a) opinion, the trial court specifically lists Appellant’s corruption of
minors conviction as a first-degree misdemeanor. Trial Court Opinion,
6/30/14, at 1 n.5. The trial court’s docket and written sentencing order,
both list corruption of minors graded as a third-degree felony, but curiously,
they also list the first-degree misdemeanor subsection, Section
6301(a)(1)(i), next to it.
The statutory maximum sentence for an offense graded as a first-
degree misdemeanor is five years’ imprisonment. 18 Pa.C.S.A. § 1104(1).
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The statutory maximum sentence for an offense graded as a third-degree
felony is seven years’ imprisonment. Id. § 1103(3). If the trial court
intended to state at the conclusion of the bench trial that Appellant was
guilty of a third-degree felony, the sentence imposed would be legal.
However, if the trial court intended to convict Appellant of the lesser-
included offense of corruption of minors as a first-degree misdemeanor,
Appellant’s sentence is illegal, as it is one year over the statutory maximum.
Given the confused state of the record, we conclude the best course of
action is to vacate the judgment of sentence and remand for further
proceedings. On remand, the trial court shall clarify the record as to what
grading it intended for the corruption of minors offense. If it intended the
grading to be a third-degree felony, the trial court shall enter an order
reinstating the same judgment of sentence. However, if the trial court
intended the offense to be graded as a first-degree misdemeanor, it shall
conduct a new sentencing hearing and resentence Appellant consistent with
the proper statutory maximum. Our judgment in this case is without
prejudice to Appellant to file a new notice of appeal after the trial court
clarifies the record. If on remand the trial court reinstates the original
judgment of sentence, Appellant may re-raise his discretionary aspects of
sentencing claims, to the extent they are already preserved. If the trial
court resentences Appellant anew, Appellant may raise any sentencing issue
that may arise from said resentencing.
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Based on the foregoing, we conclude Appellant’s claims of trial error
are devoid of merit. However, we also conclude the trial court may have
imposed an illegal sentence, but the record is not sufficiently clear for us to
make a definitive determination. Accordingly, the trial court’s May 30, 2013
judgment of sentence is vacated, and the case is remanded for further
proceedings, consistent with this memorandum.
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2015
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