Com. v. Ross, T.

J-S34020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS RICHARD ROSS :
:
Appellant : No. 1490 WDA 2018
Appeal from the Judgment of Sentence Entered September 25, 2018
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-CR-0000367-2016
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 25, 2019
Thomas Richard Ross appeals from the judgment of sentence imposed
following his convictions for, inter alia, fleeing or attempting to elude police
officer.1 He argues the trial court erred in excluding the evidence of his
insanity, aside from his own testimony, and asks us to order that he remain
free on bond pending his filing of a Post Conviction Relief Act (“PCRA”) petition.
See 42 Pa.C.S.A. §§ 9541-9546. We affirm, and deny Ross’s request to
remain free on bond.
On June 30, 2016, Ross was seen littering on the Pennsylvania Turnpike
and was approached by police. Instead of stopping for the police, Ross fled at
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* Retired Senior Judge assigned to the Superior Court.
175 Pa.C.S.A. § 3733(a). Ross was also convicted of two counts of recklessly
endangering another person, 18 Pa.C.S.A. § 2705, scattering rubbish, 18
Pa.C.S.A. § 6501(a)(1), and multiple offenses under the Motor Vehicle Code.
J-S34020-19
a high rate of speed, left the turnpike without paying the toll, re-entered the
turnpike, again left the turnpike without paying the toll, and fled at a high rate
of speed until he crossed into Maryland, where Maryland police eventually
apprehended him.
Ross was formally arraigned on the charges in September 2016.2 Ross
was represented by public defenders until August 31, 2017, when he first
obtained a private attorney. Jury selection was scheduled for July 17, 2018.
On July 9, Ross retained new counsel, who filed a motion for
continuance. The motion was based in part on counsel’s assertion that
previous counsel had failed to file a notice of defense of insanity or notice of
expert evidence of mental condition, and “the interests of justice would require
nunc pro tunc filing thereof.” Mot., 7/13/18, at ¶ 3(a). Counsel argued that
the following circumstances warranted Ross’s presentation of an insanity
defense:
First, the nature of [Ross’s] conduct in and of itself suggests
insanity or mental infirmity. Second, only hours before [Ross’s]
conduct occurred, a 302 (50 P.S. § 7302)[3] commitment warrant
had been issued. The affidavit in support of said 302 commitment
warrant presents a textbook fact pattern in support of an insanity
or mental infirmity defense at trial. . . Third, upon [Ross’s] arrest
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2 Although the trial court states in its Rule 1925(a) opinion that the
arraignment occurred on September 9, 2016, the certified record contains an
order rescheduling arraignment for September 14, 2016. The docket reflects
the entry of the rescheduling order, but does not otherwise indicate when
formal arraignment occurred. The difference between the two dates is not
material to our disposition.
3 See 50 P.S. § 7302 (providing for 120–hour involuntary commitment of
severely mentally disabled person in need of immediate treatment).
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in Maryland, [Ross] was committed for psychiatric observation.
Fourth, after extradition to Pennsylvania, [Ross] was diagnosed
by [C.M., M.D.] as incompetent to stand trial, and committed to
Torrance State Hospital.
Id. The court denied the motion.
On July 16, the day before trial was scheduled to begin, Ross (through
counsel) filed a Notice of Expert Evidence of Mental Condition, Notice of
Defense of Insanity, and a Motion to Allow Filing of Notice[s] Nunc Pro Tunc.
The Notice of Expert Evidence of a Mental Condition stated that Ross intended
to call, as an expert witness, a forensic psychiatrist. The Notice of Defense of
Insanity stated that Ross intended to call the same forensic psychiatrist, and,
as a corroborating witness, Donna Caruso, the affiant on the 302 commitment
warrant. Ross submitted a copy of the affidavit as a proffer of Caruso’s
testimony. See N.T., 7/24/18, at 46. According to the affidavit, in the days
preceding the incident, Ross’s behavior had changed drastically, and he
exhibited behaviors and made statements such as that he believed he was
God, saw visions, believed the government was trying to kill him, and that he
was following signs from God to drive to Washington, DC. See Ross’s Ex. 1.
In the Motion to Allow Filling of Notice[s] Nunc Pro Tunc, Ross argued that his
prior counsel was ineffective for failing to file the Notices earlier.
On the day of trial, in open court, the court denied the Motion and
excluded all evidence of Ross’s insanity except for Ross’s own testimony. See
N.T., 7/24/18, at 3. The court found that Ross did not file notice of the insanity
defense within 30 days of his arraignment, as required by Rules of Criminal
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Procedure 568(A) and 579(A),4 but rather did so approximately 21 months
later. The court also found that Ross “was unable to provide any legitimate
reason for the extensive delay,” and that the admission of the evidence “at
such a late stage would have been unfair and prejudicial to the
Commonwealth.” See Trial Court Opinion, filed 12/13/18, at 2-3. The court
noted that the Commonwealth would be prejudiced in part because the Motion
was filed on the eve of trial. See N.T. at 3.
The court also stated that although Ross could raise the issue of insanity
through his own testimony,5 the court would not guarantee that it would
charge the jury on the defense of insanity without any evidence to corroborate
Ross’s testimony. N.T. at 11-13, 21-22.
Ross’s counsel then stated that Ross would forgo a full trial in order to
expediently appeal the court’s exclusion of the expert/corroborating evidence
of Ross’s insanity. Ross’s counsel stated Ross also wanted to pursue a claim
that previous counsel was ineffective for failing to file a timely notice of the
insanity defense on direct appeal, rather than wait until PCRA proceedings. He
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4 Rule 568 provides that a defendant shall file notice of his or her intention of
offering the defense of insanity at trial by the deadline for filing an omnibus
pretrial motion as provided in Rule 579, unless an exception as provided in
Rule 579 applies. Pa.R.Crim.P.568(A)(1) & comment. Rule 579 provides that
an omnibus pretrial motion must be filed within 30 days after arraignment,
“unless opportunity therefor did not exist, or the defendant or defense
attorney . . . was not aware of the grounds for the motion, or unless the time
for filing has been extended by the court for cause shown.” Pa.R.Crim.P.
579(A).
5 See Pa.R.Crim.P. 568(B)(1).
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asked the court to hold a hearing to address whether Ross had been deprived
of effective assistance of counsel. The court responded that it would not
consider Ross’s claims of ineffectiveness at that time.
Following this discussion, Ross waived his right to a jury trial and
proceeded to a non-jury trial. The parties stipulated to the testimony of the
Commonwealth witnesses. The court found Ross guilty and sentenced him to
an aggregate term of one to seven years’ incarceration. The court re-imposed
bail, at $25,000, pending Ross’s direct appeal. See Pa.R.Crim.P. 521(B)(2).
Ross filed a post-sentence motion raising, among other things, the court’s
refusal to accept Ross’s Notices nunc pro tunc. The court denied the post-
sentence motion.
Ross raises two issues on appeal:
1. Did the Court of Common Pleas abuse its discretion in not
allowing the defense of insanity to be heard[?]
2. Can prior counsel’s ineffective assistance be raised on the
present appeal?
Ross’s Br. at 7.6
I. Notice of Insanity Defense
Ross first argues that the court abused its discretion in excluding the
evidence of his insanity aside from his own testimony. Ross argues that under
Rule 579, the court can extend the deadline for filing notice of an insanity
defense for “cause shown”; the “cause shown” exception equates to the
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6 The Commonwealth did not file a brief in this matter.
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“interests of justice” exception of the previous version of the Rule; and the
exception applies where the merits of the insanity defense were “so apparent
that justice required [that] it be heard.” Ross’s Br. at 14 (quoting
Commonwealth v. Williams, 323 A.2d 862, 866 (Pa.Super. 1974)). Ross
argues that here, the merits of his insanity defense are apparent, because the
alleged criminal behavior indicates mental instability. He also asserts that
hours before he committed the instant crimes and violations, a Mental Health
Procedures Act commitment warrant was issued for him, and following his
arrest, he was immediately committed for psychiatric observation. He further
points out that after he was extradited to Pennsylvania, a doctor diagnosed
him as incompetent to stand trial and committed him to a state hospital.
Ross has waived this issue by fundamentally changing his argument on
appeal. In his Motion to Allow Filing of Notice[s] Nunc Pro Tunc, Ross only
argued the trial court should allow the untimely Notices because his previous
counsel was ineffective, an argument which he does not raise on appeal.
Instead, he now asserts, for the first time, that the court should have allowed
the evidence because it meets one of the exceptions listed in Rule 579, i.e.,
“cause shown,” and that the apparent merit of an insanity defense satisfies
“cause shown,” based on the “interests of justice” language in the previous
version of the Rule. Although Ross proffered the contents of his proposed
evidence supporting a defense of insanity, Ross did not argue that the merits
of his defense constituted “cause shown,” as contemplated by Rule 579, and
required the court to extend the filing deadline. Accordingly, the court’s Rule
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1925(a) opinion does not address the merits of the insanity defense, or
whether the merits of the defense could satisfy the “cause shown” exception
to the filing deadline.
As Ross’s arguments before the trial court and this Court differ
drastically, we conclude the issue of whether the court should have allowed
the excluded evidence due to the merits of Ross’s insanity defense has been
waived. See Pa.R.A.P. 302(a) (issues may not be raised for the first time on
appeal); Commonwealth v. Truong, 36 A.3d 592, 598 (Pa.Super. 2012)
(“New legal theories cannot be raised on appeal”).
Moreover, we discern no abuse of discretion in the court’s exclusion of
the evidence. See Commonwealth v. Sasse, 921 A.2d 1229, 1234, 1237
(Pa.Super. 2007) (stating evidentiary matters are reviewed under abuse of
discretion standard; holding court did not err in excluding untimely expert
evidence of insanity). The comment to Rule 579 explains that the concept of
“cause shown” contemplates “a finding by the court that discovery has not
been completed, or a bill of particulars has not been furnished, or that
contested motions for discovery or for a bill of particulars are pending.”
Pa.R.Crim.P. 579, comment. Thus, “cause shown” is satisfied when the
defendant filed the notice after the deadline due to circumstances not within
the defendant’s control. See, e.g., Commonwealth v. Baez, 21 A.3d 1280,
1282 (Pa.Super. 2011) (affirming trial court’s acceptance of nunc pro tunc
suppression motion where “cause shown” was receipt of supplemental
discovery report warranting suppression motion); Commonwealth v.
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Borovichka, 18 A.3d 1242, 1248 (Pa.Super. 2011) (affirming timeliness of
suppression claim where defendant was made aware of basis for claim on day
of suppression hearing).
Here, Ross did not argue that the delay was the result of a breakdown
of court operations or new information furnished by the Commonwealth. As
the trial court’s 1925(a) opinion explains, Ross did not “provide any legitimate
reason for the extensive delay,” when requesting to file the Notices past the
deadline. Tr. Ct. Op. at 2. It appears Ross was aware of the grounds for the
insanity defense well before his latest attorney filed the Notices.7 Further, the
court noted that the admission of the insanity defense at such a late stage
would have been prejudicial to the Commonwealth. Given this record, we
discern no abuse of discretion in the court’s exclusion of the evidence. See
Borovichka, 18 A.3d at 1248 (affirming untimeliness of suppression claim
where defendant presented it after deadline and did not offer reason why it
was timely).
II. Ineffective Assistance of Counsel
In his second Question Presented, Ross questions whether his previous
counsel’s ineffectiveness can be considered on direct appeal. However, in the
corresponding argument section of his brief, Ross states that he cannot raise
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7 Also, although Ross does not argue the court should have accepted the
untimely notice due to the change in his attorney, we note that we have
previously held that this does not meet an exception for allowing an untimely
pre-trial motion. See Commonwealth v. Page, 371 A.2d 890, 891
(Pa.Super. 1977).
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the issue of his counsel’s effectiveness on direct appeal because the trial court
refused to consider the claim. Ross does not argue the court erred in this
ruling or request we remand for consideration of prior counsel’s
ineffectiveness. Nor did Ross argue to the trial court any reason why the court
should consider the ineffectiveness claim on direct appeal. We therefore
consider the claim waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 2119(a)
(argument section of brief should correspond to questions, and include
discussion and citation to pertinent authorities).
Instead, Ross requests this Court to order that he remain released on
bond pending PCRA proceedings. Ross’s Br. at 16. Ross did not request the
trial court decide his right to bail after the conclusion of his direct appeal, but
addresses his request to this Court in the first instance. However,
“[a]pplications relating to bail when no appeal is pending shall first be
presented to the lower court, and shall be governed by the Pennsylvania Rules
of Criminal Procedure.” Pa.R.A.P. 1762(b)(1). The request is therefore
premature, and not properly before this Court. We therefore deny Ross’s
request to remain free on bond pending PCRA proceedings, without prejudice
to Ross’s ability to request bail in the court below after the conclusion of his
direct appeal.8
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8 Although the bail bond during a pending appeal does not remain valid
throughout post-conviction collateral proceedings, see Pa.R.Crim.P. 534,
comment and Commonwealth v. Dunlavey, 805 A.2d 562, 565 (Pa.Super.
2002), a PCRA court has some discretion to grant bail during the pendency of
a timely filed PCRA petition, see 42 Pa.C.S.A. § 9546(a), Commonwealth v.
McMaster, 730 A.2d 524, 527 n.1 (Pa.Super. 1999).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2019
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