Com. v. Best, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COLIN BEST :
:
Appellant : No. 1165 MDA 2022
Appeal from the PCRA Order Entered August 2, 2022
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000742-2008,
CP-41-CR-0001020-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 12, 2023
Appellant Colin Best appeals the order of the Court of Common Pleas of
Lycoming County dismissing his petition pursuant to the Post-Conviction Relief
Act (PCRA).1 Consistent with controlling precedent, we remand for further
proceedings necessary to develop a factual record with respect to Appellant’s
challenge to the legality of his sentence. We affirm the remainder of the PCRA
court’s order denying relief.
In July 2019, Appellant was charged with two counts of invasion of
privacy at docket CR-41-CR-1020-2019 for taking photographs of young
females (ages 24 and 15) while they tried on bathing suits in a dressing room
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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of a department store in Williamsport, Pennsylvania. Appellant was also facing
a violation of probation (VOP) at docket CP-41-CR-0000742-2008.
On August 19, 2019, Appellant filed a pro se motion for the appointment
of new counsel at both dockets. Thereafter, Appellant filed multiple pro se
documents, indicating he was acting pro se as he was not satisfied with his
counsel’s representation.
On September 20, 2019, the trial court held a hearing at which Appellant
requested to proceed pro se with the assistance of standby counsel. The trial
court conducted a colloquy on the record and determined Appellant’s waiver
of counsel at both dockets was knowing, intelligent, and voluntary. The trial
court appointed Helen Stolinas, Esq. as standby counsel, specifying that her
duties were “solely to answer legal questions raised by [Appellant] in person,
in writing, or while in a court proceeding.” Order, 9/24/19, at 1.
At a hearing held on October 29, 2019, Appellant made an oral request
that Attorney Stolinas be appointed as his legal counsel for docket 742-2008,
but indicated he would still proceed pro se at docket 1020-2019. Notes of
Testimony (N.T.), 10/29/19, at 32-37. The trial court appointed Attorney
Stolinas to represent Appellant in connection with the VOP matter at docket
742-2008. The trial court directed the Commonwealth to provide discovery to
Attorney Stolinas on both dockets, although Appellant had not requested
Attorney Stolinas’s representation for docket 1020-2019 and Attorney Stolinas
was still standby counsel in that case. Id. at 37-39.
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On January 23, 2020, Appellant entered a negotiated guilty plea to two
counts of invasion of privacy at docket number 1020-2019 and was sentenced
to two consecutive terms of one to two years’ imprisonment resulting in an
aggregate sentence of two to four years’ imprisonment. On the same day, the
trial court revoked Appellant’s probation on docket 742-2008 as a result of
the aforementioned charges and resentenced him to a period of two to four
years’ imprisonment concurrent with his sentence at docket 1020-2019. The
trial court also indicated that Appellant would be deemed a Tier I sex offender,
required to comply with a fifteen-year period of registration under SORNA, but
not considered a Sexually Violent Predator (SVP). Appellant acted pro se in
reaching this plea deal with the Commonwealth.
On December 14, 2020, Appellant filed a timely pro se PCRA petition
listing both captions. The PCRA court appointed Jeana Long, Esq. to serve as
Appellant’s PCRA counsel, but Attorney Long filed a petition to withdraw as
counsel and a no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988) (en banc). After a September 7, 2021 hearing, the PCRA court allowed
Attorney Long to withdraw as counsel based on its finding that Attorney Long
and Appellant had irreconcilable differences.2 Order, 9/7/21, at 1.
The PCRA court appointed Matt Diemer, Esq. to serve as Appellant’s
PCRA counsel and directed him to evaluate Appellant’s PCRA petition and file
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2 The PCRA court did not evaluate Attorney Long’s request to withdraw based
on the reasoning set forth in her Turner-Finley no-merit letter.
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either a supplemental PCRA petition or a motion to withdraw accompanied by
a Turner-Finley no-merit letter. Order, 9/7/21, at 1.
On February 9, 2022, Atty. Diemer filed a supplemental PCRA petition
raising claims of the ineffectiveness of trial counsel and prior PCRA counsel as
well as a claim that the Commonwealth had withheld material evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). On April 11, 2022,
Appellant filed a pro se petition to request review of an additional PCRA issue
raising a challenge to his reporting requirements under SORNA pursuant to
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). On April 14, 2022,
the PCRA court forwarded Appellant’s pro se filing to counsel. Counsel did not
file any additional supplemental petitions.
On May 6, 2022, the PCRA court held an evidentiary hearing. On August
2, 2022, the PCRA court filed an order denying Appellant’s petition.
On August 19, 2022, Appellant filed a timely notice of appeal. Atty.
Diemer filed a petition to withdraw along with a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). On August 18, 2023, this Court remanded
the case after concluding that Appellant had been effectively deprived of
counsel for the appeal of his first PCRA petition as Atty. Diemer had not
complied with the requirements of Anders or demonstrated that he
meaningfully participated in the appeal. Thus, this Court remanded for the
appointment of new counsel and denied the petition to withdraw as moot.
On remand, the PCRA court appointed new counsel, Brian Ulmer, Esq.,
who filed an advocate’s brief, raising the following issues for our review:
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I. Did the PCRA court err in denying relief, where standby
counsel was ineffective, depriving Appellant of his right to
self-representation by taking an active role beyond that
prescribed for standby counsel and failing to provide all
information to Appellant to allow for a knowing, intelligent,
and voluntary guilty plea?
II. Did the PCRA court err in denying relief where the
Commonwealth violated Appellant’s rights by withholding
material evidence which in so doing undermined the truth
determining process and elicited a guilty plea which was not
knowing, intelligent and voluntary?
III. Did the PCRA court err in denying relief where Appellant
received a sentence violative of due process and
Commonwealth v. Torsilieri?
Appellant’s Brief, at 4.
Appellant’s first two claims are closely related. Appellant first argues
that his standby counsel was ineffective in interfering with his right to self-
representation in entering his guilty plea. Appellant claims standby counsel
exceeded the limits of her role when she accepted discovery provided by the
prosecution on Appellant’s behalf for the case at docket 1020-2019 and
provided a minimal amount of exculpatory evidence. Given that Appellant
alleges that he did not receive all relevant discovery materials, Appellant
argues that he would not have entered a guilty plea had he been able to review
all the evidence.
Our Supreme Court has held that “a defendant who chooses to represent
himself cannot obtain relief by raising a claim of ineffectiveness of counsel or
standby counsel.” Commonwealth v. Williams, 196 A.3d 1021, 1029–30
(Pa. 2018) (quoting Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012)).
However, given that the United States Supreme Court has recognized a
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defendant’s right to self-representation in Faretta v. California, 422 U.S.
806 (1975), a defendant may raise a challenge to the scope of standby
counsel’s role to assure that it does not “supplant [the] defendant’s choice of
self-representation.” Williams, 196 A.3d at 1030.
The United States Supreme Court has recognized that a defendant’s
right to self-representation recognized in Faretta does not impose an
“absolute bar on standby counsel’s unsolicited participation.” McKaskle v.
Wiggins, 465 U.S. 168, 176 (1984). To determine whether a defendant’s
right to self-representation has been respected, courts must evaluate whether
standby counsel’s participation (1) allows the defendant to “preserve actual
control over the case he chooses to present to the jury” and (2) does not
include participation without the defendant’s consent that “destroy[ed] the
jury’s perception that the defendant is representing himself.” Id. at 177-78.
Given that Appellant is challenging standby counsel’s participation
outside the presence of a jury, only the first of the two limitations applies. In
evaluating whether Appellant was allowed to preserve actual control over his
case, we note that:
Faretta rights are adequately vindicated in proceedings outside
the presence of the jury if the pro se defendant is allowed to
address the court freely on his own behalf and if disagreements
between counsel and the pro se defendant are resolved in the
defendant's favor whenever the matter is one that would normally
be left to the discretion of counsel.
Id. at 177-79.
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In the guilty plea to the charges at docket 1020-2019 for which
Appellant was represented by standby counsel, the trial court conducted an
oral plea colloquy in which Appellant acknowledged that by pleading guilty, he
was giving up the right to pursue his pretrial claims, which included a request
to compel discovery. Notes of Testimony (N.T.), 1/23/20, at 41-42. Before
entering the plea, Appellant had alleged that there was potentially more
discovery materials to be provided by the prosecution.
Nevertheless, instead of waiting for additional discovery, Appellant
indicated on the record that he had enough time to consider his guilty plea,
wished to plead guilty, declined the opportunity to have further discussion
with standby counsel, and stated that he had no questions or concerns to
address with the trial court or standby counsel. Id. at 44. As such, there is no
evidence in the record to show that standby counsel exceeded her role or
interfered with Appellant’s right to self-representation.
In Appellant’s second claim, he argues the Commonwealth improperly
withheld material evidence from the defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, Appellant claims he did not have
the opportunity to review evidence from the Toms River Police Department
from New Jersey, which included police reports, interoffice emails, search
warrants, and video recordings. Appellant’s Brief, at 5.
Our Supreme Court has provided that, in order to establish a Brady
violation, a defendant has the burden to prove that: “(1) evidence was
suppressed by the state, either willfully or inadvertently; (2) the evidence was
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favorable to the defendant, either because it was exculpatory or because it
could have been used for impeachment; and (3) the evidence was material,
in that its omission resulted in prejudice to the defendant.” Commonwealth
v. Willis, 46 A.3d 648, 656 (Pa. 2012) (citations omitted).
The PCRA court rejected this claim as it found that Appellant failed to
show “how the evidence was material to his case, as evidence from an
investigation in New Jersey pertaining to a New Jersey case would not have
provided him with any sort of recourse in his Lycoming County case.” PCRA
Court Opinion (P.C.O.), 12/7/23, at 7. Appellant has not responded to this
point with any showing of how evidence from the New Jersey investigation
would have been material in this case or favorable to the defense. Further,
Appellant does not make any attempt to explain how the absence of such
evidence resulted in any prejudice.
As a result, we conclude the PCRA court correctly found that Appellant
was not entitled to any relief on his challenges to the effectiveness of standby
counsel or his allegations that the Commonwealth had withheld material,
exculpatory evidence from the defense.
In his third claim, Appellant claims his obligation to register as a sex
offender under Revised Subchapter H of SORNA renders his sentence illegal.
Appellant cites to our Supreme Court’s decision in Torsilieri to suggest that
his reporting requirements violate his due process rights and are punitive as
they are based on irrebuttable presumptions that “sexual offenders have a
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high risk of recidivism and that tier-based registration protects the public from
reoffenders.” Appellant’s Brief, at 14-15.
Appellant’s constitutional challenges to Revised Subchapter H are
questions of law. “[W]hen an appellant challenges the constitutionality of a
statute, the appellant presents this Court with a question of law.”
Commonwealth v. Boyd, 287 A.3d 957, 959 (Pa.Super. 2022) (quoting
Commonwealth v. Morgan, 258 A.3d 1147, 1152 (Pa.Super. 2021)). “As
with all questions of law, our standard of review is de novo and our scope of
review is plenary.” Boyd, 287 A.3d at 959 (quoting Commonwealth v.
Lacombe, 234 A.3d 602, 608 (Pa. 2020))
Appellant’s constitutional challenges are identical to those addressed in
Torsilieri, in which the defendant claimed his registration requirements
pursuant to Revised Subchapter H of SORNA were unconstitutional as they
were based on invalid presumptions that “all sexual offenders are dangerous
and pose a high risk of recidivation, necessitating registration and notification
procedures to protect the public from recidivist sexual offenders.” Torsilieri,
232 A.3d at 573. The trial court agreed, finding inter alia, that Revised
Subchapter H violated due process and the defendant’s right to reputation
through the utilization of an irrebuttable presumption of future
dangerousness.
On appeal, the Supreme Court in Torsilieri recognized that “while
courts are empowered to enforce constitutional rights, they should remain
mindful that the wisdom of a public policy is one for the legislature, and the
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General Assembly's enactments are entitled to a strong presumption of
constitutionality rebuttable only by a demonstration that they clearly, plainly,
and palpably violate constitutional requirements.” See id. at 596. Further, the
Supreme Court emphasized that “it will be a rare situation where a court would
reevaluate a legislative policy determination, which can only be justified in a
case involving the infringement of constitutional rights and a consensus of
scientific evidence undermining the legislative determination.” Id. The
Supreme Court ultimately found it necessary to remand the case as the record
was not sufficient to address the issue on appeal. Id.
In this case, we acknowledge that Appellant is raising these issues for
the first time on appeal. As noted above, while Appellant filed a pro se motion
raising a Torsilieri challenge before the PCRA court, this filing was not
docketed but forwarded to Appellant’s counsel. As counsel never filed an
amended petition with a Torsilieri claim, the PCRA court did not have an
opportunity to rule on this issue. After Appellant was appointed new counsel
on collateral appeal, counsel raised this issue in his advocate’s brief.
However, as Appellant’s claim challenging the constitutionality of SORNA
implicates the legality of his sentence, it is nonwaivable. Commonwealth v.
Thorne, 276 A.3d 1192, 1194 (Pa. 2022) (holding that the jurisprudence
establishing that challenges implicating the legality of a sentence cannot be
waived “applies equally to constitutional challenges to Revised Subchapter H
of SORNA”).
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Where a Torsilieri challenge is raised for the first time on appeal, this
Court has found that remand is appropriate “to allow the parties to address
whether a consensus has developed to call into question the relevant
legislative policy decisions impacting offenders’ constitutional rights.”
Torsilieri, 232 A.3d at 595. In Boyd, this Court remanded the case for the
trial court to hold an evidentiary hearing on Boyd’s constitutional challenges
to Revised Subchapter H as Boyd had raised these arguments for the first time
on appeal, and the trial court had not yet had the opportunity to receive
evidence and argument on these issues. Boyd, 287 A.3d at 960.
Likewise, in this case, as Appellant has raised his Torsilieri challenges
for the first time on appeal, we do not have the necessary factual record to
review Appellant’s claims. We also note that Appellant has not had the
opportunity to offer any scientific evidence or learned testimony to support
his claims.
In accordance with Thorne and Torsilieri, we remand for the PCRA
court to hold an evidentiary hearing on Appellant’s constitutional challenges
to Revised Subchapter H where Appellant will have the opportunity to
supplement his argument with scientific evidence. We affirm the remainder of
the PCRA court’s denial of relief.
Order affirmed in part. Case remanded for proceedings consistent with
this decision. Jurisdiction relinquished.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/12/2023
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