Com. v. Forrester-Westad, J.

J-A05038-22
2022 PA Super 150NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA CHRISTIAN FORRESTER- : No. 893 MDA 2021
WESTAD :
Appeal from the Order Entered June 18, 2021
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000160-2020
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
DISSENTING STATEMENT BY STEVENS, P.J.E.: FILED: SEPTEMBER 1, 2022
Despite an extensive colloquy with the trial judge in which Appellee
clearly acknowledged his guilt, the Majority’s decision affirms that portion of
the trial court’s June 18, 2021 order that granted Appellee’s motion to
withdraw his guilty plea. Appellee, who made no argument on the position
advanced by the Majority, is being permitted to withdraw a plea he clearly
understood and to which he clearly agreed. I respectfully dissent and would
reverse the trial court’s decision to allow Appellee to withdraw his plea.
The notes of testimony at the guilty plea hearing reveal the following
relevant colloquy between the trial judge and Appellee:
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A05038-22
THE COURT: Mr. Westad, are you on any type of
medication?
MR. FORRESTER-WESTAD: No, sir.
THE COURT: And you can read, write, and understand
English?
MR. FORRESTER-WESTAD: Yes, sir.
THE COURT: The Defendant's facing a two count
information. Count 1 is the crime of Theft by
Unlawful Taking, a Felony of the Third Degree,
punishable by up to seven years incarceration, a $
15,000 fine or both. Will you give us the factual
basis?
MR. ZEIGLER: Yes, Your Honor. On or about January
17, 2020 within the confines of Snyder County, the
Defendant did unlawfully take or exercise unlawful
control over movable property of another with intent
to deprive another thereof. To wit, Your Honor, the
Defendant took a 1986 Ford truck from the
Middleburg Auction Barn. That is the factual basis of
this plea, Your Honor.
THE COURT: Mr. Westad, do you understand that you
have the right to a trial by jury in this matter where
12 jurors would be selected from residents of Snyder
County. To convict you, all 12 jurors would have to
be unanimous and all 12 would have to be convinced
beyond a reasonable doubt of your guilt. You do not
have to prove your innocence, you do not have to
testify, and that cannot be held against you in any
way. Do you understand that?
MR. FORRESTER-WESTAD: Yes, sir.
THE COURT: Do you understand if you enter a plea,
you're giving up your rights to the trial by jury?
MR. FORRESTER-WESTAD: Yes, sir.
THE COURT: You're presumed innocent. By that I
mean I assume at this point that you've done nothing
wrong and I would instruct a jury that they would
have to do the same thing until such time as they
heard enough evidence to convince them beyond a
reasonable doubt of your guilt. If you enter a plea,
you're giving up your rights to the presumption of
innocence. Do you understand that?
MR. FORRESTER-WESTAD: Sir, yes, sir.
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THE COURT: Do you understand that you are not
required to enter a plea, you're absolutely free to
proceed to trial?
MR. FORRESTER-WESTAD: Sir, yes, sir.
THE COURT: Do you understand the nature of the
charge that you are pleading guilty to?
MR. FORRESTER-WESTAD: Very much so, sir.
THE COURT: And do you understand the possible
penalties?
MR. FORRESTER-WESTAD: Absolutely, sir.
THE COURT: The Commonwealth has indicated that
your plea agreement was in exchange if you plead
guilty to Count 1, Theft by Unlawful Taking, a Felony
of the Third Degree, you would receive a sentence in
the bottom-half of the standard range. Your Prior
Record Score is a four. The Offense Gravity Score for
this offense is a seven. The standard range is 18
months to 24 months. The bottom-half of the
standard range then would be somewhere between
18 and 21 months. Now, the Commonwealth has also
indicated they are not objecting to a sentence of
probation with restrictive conditions which would
permit you to stay out of State prison and complete
the treatment program that you just discussed. Is
that your understanding of the plea agreement?
MR. FORRESTER-WESTAD: Sir, yes, sir.
THE COURT: So you understand, there are no
guarantees you will receive a sentence of probation
with restrictive conditions.
MR. FORRESTER-WESTAD: Yes, sir, very much
understanding the severity of this.
THE COURT: Do you have any questions about your
plea agreement?
MR. FORRESTER-WESTAD: No, no, sir. Just like I said,
thank you if you can –
THE COURT: Are you in agreement with it?
MR. EORRESTER-WESTAD: Am I what?
THE COURT: Are you in agreement with the plea?
MR. FORRESTER-WESTAD: Sir, yes, sir.
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THE COURT: Other than the terms of your plea
agreement, has anyone made any threats against
you or promises to you in order to get you to enter a
plea?
MR. FORRESTER- WESTAD: No, no, sir.
THE COURT: Whose decision is it to plead guilty?
MR. FORRESTER-WESTAD: Mine and solely mine.
THE COURT: Did you commit the crime of Theft by
Unlawful Taking?
MR. FORRESTER-WESTAD: Yes, sir.
....
THE COURT: Do you have any questions?
MR. FORRESTER-WESTAD: No, sir. I just want to say
thank you for your time.
Notes of Testimony, 1/11/21 at 10-14 (emphasis added).
Even more to the point, Appellee sought to withdraw his guilty plea
based upon his claim that prosecution is barred under 18 Pa.C.S.A.
§ 110(1)(ii). See Motion to Withdraw Guilty Plea and Quash the Information,
6/1/21 at ¶¶ 8-9. Appellee alleged that “[t]he offense [he] plead guilty to in
Luzerne County is of the same course of conduct and criminal episode as he
is now being prosecuted for in Snyder County.” Id.
As recognized by the Majority, our standard of review of a trial court’s
decision to grant a pre-sentence motion to withdraw a guilty plea is well
settled:
A trial court’s decision regarding whether to permit a
guilty plea to be withdrawn should not be upset absent
an abuse of discretion. An abuse of discretion exists
when a defendant shows any “fair and just” reasons
for withdrawing his plea absent “substantial prejudice”
to the Commonwealth.
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Commonwealth v. Elia, 83 A.3d 254, 261-262 (Pa. Super. 2013) (original
quotation marks and some citations omitted), appeal denied, 94 A.3d 1007(Pa. 2014).
Likewise, our Supreme Court has long recognized that Subsection
110(1)(ii) bars a subsequent prosecution if each prong of the following four-
part test is met:
(1) the former prosecution must have resulted in an
acquittal or conviction;
(2) the current prosecution is based upon the same
criminal conduct or arose from the same criminal
episode as the former prosecution;
(3) the prosecutor was aware of the instant charges
before the commencement of the trial on the former
charges; and
(4) the current offense occurred within the same
judicial district as the former prosecution.
Commonwealth v. Perfetto, 207 A.3d 812, 821 (Pa. 2019) (citation
omitted). “For purposes of Section 110, a guilty plea is tantamount to a
conviction.” Commonwealth v. Peifer, 730 A.2d 489, 492 (Pa.Super. 1999)
(citations omitted), appeal denied, 743 A.2d 918 (Pa. 1999).
Here, it is undisputed that on May 29, 2020, Appellee pled guilty to the
charge of receiving stolen property in Luzerne County and was sentenced that
same day. In the instant case, Appellee originally pled guilty on January 11,
2021 to one count of theft by unlawful taking for conduct occurring in Snyder
County.
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Contrary to the Majority, I would find that Appellee has failed to satisfy
the second prong of Perfetto by demonstrating that the instant prosecution
for theft by unlawful taking in Snyder County “was based on the same criminal
conduct or arose from the same criminal episode” as his receiving stolen
property prosecution in Luzerne County. See Perfetto, 207 A.3d at 821.
Courts in this Commonwealth have long recognized that the
determination of whether various acts constitute a single criminal episode
requires the examination of the following two factors: (1) the logical
relationship between the acts; and 2) the temporal relationship between the
acts. Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006).
In ascertaining whether a number of statutory
offenses are “logically related” to one another, the
court should initially inquire as to whether there is a
substantial duplication of factual, and/or legal issues
presented by the offenses. … [A] mere de minimis
duplication of factual and legal issues is insufficient to
establish a logical relationship between offenses.
Commonwealth v. M.D.P., 831 A.2d 714, 719-720 (Pa.Super. 2003)
(citations omitted), appeal denied, 847 A.2d 1281 (Pa. 2004).
“The temporal relationship between criminal acts will be a factor that
frequently determines whether the acts are logically related. However, the
definition of a ‘single criminal episode’ should not be limited to acts which are
immediately connected in time.” Commonwealth v. Schmidt, 919 A.2d
241, 248 (Pa.Super. 2007) (citations omitted), appeal denied, 936 A.2d 40(Pa. 2007).
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Upon review of the record, I agree with the Commonwealth that the
charges relating to Appellee’s conduct in Snyder County do not stem from the
same “criminal episode” that resulted in the former prosecution relating to
Appellee’s conduct in Luzerne County.
The record reflects that, apart from the vehicle stolen, there exists no
substantial duplication of facts or evidence between the former Luzerne
prosecution and the instant Snyder County matter. On the contrary, the two
cases exhibit differences; in the date and time of the offenses; in the location
of the offenses; in witnesses required by the prosecution for the offenses; and
in the elements of the offenses.
Specifically, in February 2020, Appellee was found to be in possession
of a stolen truck in Luzerne County, Pennsylvania during a traffic stop by an
officer from the Kingston Police Department. Notes of testimony, 6/18/21 at
8. Appellee had stolen this truck more than three weeks earlier, in January
2020, from the parking lot of the Middleburg Auction Barn in Snyder County,
Pennsylvania, which is approximately 90 miles away. Id. at 8-9. At the time
of the initial theft in Snyder County, the truck contained a cordless drill, a
cordless impact gun, and bank bag belonging to the vehicle’s owner, William
Weist. Id.
The current prosecution concerned the crime of theft by unlawful taking
and would have presumably involved witnesses in Snyder County, including
officers from the Middleburg Police Department, employees of the inpatient
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rehabilitation facility in Snyder County where Appellee was being treated, and
the owner of the truck who reported it stolen, William Weist.
The former prosecution concerned the crime of receiving stolen
property, which requires proof of the additional element that the person had
knowledge that the property has been stolen, and presumably would have
involved witnesses from the Kingston Police Department in Luzerne County.
Because the two cases present varying legal questions, rely on different
witnesses, and contain different evidence, the two prosecutions were not part
of the same criminal episode. Based on the foregoing, I find that the trial
court’s conclusion that the instant prosecution in Snyder County was barred
by the former prosecution in Luzerne County is unsupported by the record.
Thus, I would conclude that Appellant has not demonstrated
a “fair and just reason” for withdrawing his plea. See Elia, 83 A.3d at 264.
Moreover, Appellee did not even make an argument on the basis the
Majority advances to affirm the trial court. Appellee is being permitted to
withdraw a plea he clearly agreed to, understood and for which he was advised
of his rights.
Accordingly, I would reverse the trial court’s order which grants
Appellee’s motion to withdraw his guilty plea and which quashes the criminal
information in its entirety and remands this matter for additional proceedings.
Therefore, I respectfully dissent.
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