author: WAITE, J.,

text:
    Commonwealth v. Dagutis

      C.P. of Bucks County,
    no. 7898-2008.

      Abigail Taylor Fillman, for the Commonwealth.

      Suzette Sanders Adler, for the defendant.
    March 22, 2010
   WAITE, J.,

INTRODUCTION

This matter involves a charge and conviction of Brian Dagutis for driving under the influence (DUI) based primarily, although not exclusively, on the testimony of a consultant to a private, for-profit testing laboratory, over defense objections. The consultant in question was a former owner of the laboratory where the subject testing was done. There was no issue made regarding the skill and experience of the consultant in the field of forensic testing of blood for alcohol content (BAC). The determination of guilt that we made based on that evidence was called into question by the defendant/appellee in post-trial motions. Upon consideration of a confluence of new and critical developments in decisional law almost simultaneously emanating from the United States Supreme Court and the Pennsylvania Supreme Court at about the time of our original decision, compelled us to decide that the evidence offered by the Commonwealth through its consultant was flawed.

In a case of first impression for the Pennsylvania Supreme Court on the issue of “at the time of driving” requirement for general impairment DUI charges obliged our reconsideration of Count I of the charges against appellee. The offense was borderline in respect to appellee’s BAC, and the general observations of the arresting officers who conducted field sobriety tests were questionable in that they were not authorized or recognized by the National Highway Safety Administration of the U.S. Department of Transportation caused us to conclude that the evidence sans the BAC evidence was not sufficiently reliable and persuasive to support the finding of guilt beyond a reasonable doubt. Therefore, we reversed ourselves and found appellee not guilty.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

The Commonwealth filed the following statement of matters complained of on appeal, which we repeat verbatim as follows:

“(1) The trial court erred in substituting a judgment of not guilty despite the guilty verdict originally entered by the same.

“(2) The trial court erred in reassessing the credibility and weight of the evidence presented by the Commonwealth expert, Dr. Siek, and the defense expert, Dr. Lage.

“(3) If the trial court intended to determine by its order that the evidence was insufficient, it failed to view the evidence in the light most favorable to the Commonwealth and incorrectly determined the evidence to be insufficient.

“(4) If the trial court intended to determine by its order that the verdict was contrary to the weight of the evidence, it abused its discretion and failed to grant a new trial.”

STANDARD OF REVIEW

In significant respects, the issue presented is one of statutory interpretation, which, as a question of law, is subject to a de novo standard of review in the appellate courts. Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009) citing Commonwealth v. Hoke, 599 Pa. 587, 962 A.2d 664 (2009). “Pursuant to the Statutory Construction Act, our task in interpreting a statute is to ascertain and effectuate the intention of the General Assembly.” Id. “The Statutory Construction Act admonishes that “[w] hen the words of a statute are clear and free from all • ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id.

The trial court must be able and willing to review its own rulings in a matter of great importance to the litigants and to change its mind and correct legal errors if adequate grounds are presented by the moving party. Otherwise, the rules in respect to post-trial procedures are rendered hollow, meaningless and a useless exercise in futility. Instead, we accept the invitation to review our ruling particularly where fundamental changes obtain in the field of evidence related to the issues appropriately raised and preserved by appellee.

The standard to be applied in reviewing the sufficiency of the evidence is whether viewing all the evidence properly admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008), appeal denied, 2009 WL 2947378 (2009); Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super 2006). It is not clear that this rule applies, as urged by the Commonwealth, with respect to the grant of post-trial motions, but our ultimate disposition is the same in either case.

After excluding certain factual conclusions and expert opinions rendered by the consultant, the remaining evidence was inconclusive and lacked the reliability essential to establish all the elements of the offenses charged. Therefore, we found that the Commonwealth did not sustain its burden of proof by the “beyond a reasonable doubt” standard. We considered all of the other evidence in the case from the entirety of the record and even evaluating it in the light most favorable to the Commonwealth to the logical extensions of that evidence and we still had a reasonable doubt. Thus, the conclusion that we reached in respect to the reversal of the verdict was commanded under all of the circumstances.

The issues raised by the appellant/Commonwealth are adequately dealt with as conflated.

RELEVANT RECENT APPELLATE COURT DEVELOPMENTS

As noted, the subject case was before this court for decision on March 18, 2009. Within the ten-day time limit, appellee filed his post-trial motions. During the time of our consideration of those post-trial motions, on June 25,2009, the United States Supreme Court decided Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). In general terms, Justice Antonin Scalia, writing for the majority, rejected the notion that in a drug trial, the prosecution may introduce certificates in the nature of affidavits of laboratory analysts, the contents of which provide that material seized by police was a controlled substance without calling the analyst who conducted the analytical procedures because the defendant’s Sixth Amendment right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004) is violated thereby.

On January 25,2010, the United States Supreme Court in Briscoe v. Virginia, 2010 WL 246152, 130 S.Ct. 1316 (2010), vacated a judgment of conviction of a drug suspect where the trial court held that the failure of a defendant to call the analyst who conducted the analytical procedures was a waiver of his Sixth Amendment right of confrontation. Per curiam, the Supreme Court vacated the lower court’s decision as being inconsistent with the Court’s opinion in Melendez.

Justice Scalia explained that the states have relied on the Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56 (1980), holding that a certificate issued by a scientist conducting independent analytical services presented a sufficient indicia of reliability to permit its use without the defendant’s right to confront. Such analytical services were at that time considered to be sufficiently independent of the underlying criminal prosecution to render such reports as being “non-testimonial”. The reports were also characterized as being “non-accusatory” in nature. However, the Supreme Court in Melendez now holds that the Sixth Amendment is not activated merely by the nature of it being testimonial or not but whether the witness is one who is testifying “against” the defendant’s interest even if the witness is not “hostile” in the general sense to the defendant. Reliability is no longer the touchstone in that Sixth Amendment protections are procedural rather than a substantive guarantee and are designed to insure that reliability is assessed in such a way and in a particular manner of testing in the “crucible of cross-examination.” And, as confirmed by the remand in Briscoe v. Virginia {supra), the availability of compulsory process allowing the defendant to call the analyst does not satisfy Sixth Amendment requirements.

Furthermore, Sixth Amendment requirements cannot be circumvented by the argument that an analyst is a contemporaneous, non-testimonial witness of the non-conventional variety for the reason that the witness is not testifying about something he witnessed in the past and is now called upon to relate his observations. It was argued and rejected by the Melendez court that an analyst was observing the contemporaneous results of testing he was then performing. The reasoning of the Supreme Court was that the analyst was testing and preparing a certificate of something that occurred in the past just as any other conventional witness and the very nature of the certificate is for its use in court against the defendant. The Supreme Court further observed that the indicia of reliability is not as secure as the members of the Supreme Court once believed. They now recognized that accepting such certificate/affidavits was accepting evidence at face value when that type of evidence was or could be prone to distortion or manipulation and therefore was not the type of evidence that one should accept as the inherent result of neutral scientific testing.

The U.S. Supreme Court’s reasoning and rationale applies with equal force to analysts testifying through state sanctioned certificates like those utilized in the instant matter. Importantly, the issue in prosecutions for section (a)(2) offenses, in large part comes down to whether the toxicology report reveals a BAC of .08 or more within two hours of driving. The processes and procedures by which that BAC is determined is the only significant issue for determination.

In respect to the Pennsylvania Supreme Court’s decision that played a role in our instant decision, on December 29,2009 that court filed its opinion in Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009), a case of first impression interpreting and constructing subsection (a)(1) of the DUI statute enacted in 2003. The court found that the general impairment section of the statute required the Commonwealth to prove that the defendant was under the influence while he was driving as opposed to having the prohibited quantity of alcohol in his system within two hours of driving. The court acknowledged that there is a certain level of relation back evidence that must be considered, but restricted that kind of evidence to “relative immediacy”.

Due to the U.S. Supreme Court’s restriction on the admissibility of hearsay certificates on BAC in respect to the level of alcohol within the “two hour” window and the relative paucity and questionable quality of the field sobriety testing done in the instant matter in respect to the general impairment count, we were compelled to grant appellee’s post-trial motions.

DISCUSSION

The statute in question in the instant matter provides at subsection (a)(1) as charged in Count I of the information, that an operator of a motor vehicle is guilty of DUI when the following is violated:

11 (a) General impairment.-

“(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.” (emphasis added)

Subsection (a)(2) as charged in Count II provides:

“(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is at least 0.08 percent but less than 0.10 percent within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.”

This matter came before this court for a bench trial at which the two arresting officers testified along with the Commonwealth’s expert witness/toxicologist and appellee’s expert pharmacologist. The Commonwealth called Dr. Siek and identified him as a toxicologist who was the lab director despite the fact that he was employed by a separate entity.

“Q. Dr. Siek, what is your profession?

“A. I’m a toxicologist, which covers medical toxicology and forensic toxicology, and I direct a laboratory that does analytical toxicology.

“Q. How long have you been employed with toxicology?

“A. I started that in 1968.

“Q. What lab is it that you work with?

“A. Right now, it’s called Analytic Biochemistries.

“Q. Who is it that employs you?

“A. It’s Atlantic Diagnostic Laboratories that’s the employer.” (N.T. 3/18/2009, p. 52.)

“Q. Have you performed tests on blood samples to determine alcohol concentration?

“A. Yes, I told you that. Since 1968.

“Q. How often would you say you do that?

“A. How often?

“Q. Uh-huh.

“A. Well, I review what somebody’s done every day almost, and I do some myself. Not all that many, but I did one this morning, in fact.” Id at p. 54.

“Q. Dr. Siek, have you reviewed the lab from ABC in this case, the case of Commonwealth versus Brian Dagutis?

“A. Yes.

“Q. How is it that that blood alcohol level is arrived at? What is your process?

“A. Well, the analytical technique is gas chromatography and sampling by headspace. It includes an internal standard. Two different bottles are filled with the test specimen so that you do a duplicate analysis. And then when we go through it, we average the two results and report that. So in this case we got .086 percent and .084 percent. And that becomes, of course, as the mean of .085 percent.

“Q. Are you aware of the term of a variance of blood alcohol levels?

“A. Well, variance with respect to analytical accuracy and precision, yes.

“Q. Can you describe what a variance is?

“A. Well, if you repeat the test many, many times, it’s the average difference between answers.

“Q. In your normal blood alcohol testing what is the general variance that you would expect to find?

“A. Okay, the coefficient of variation would be plus or minus three percent of the answer that’s reported.

“Q. So, if you’re looking at your blood alcohol level of .085, say in this case, if you were to consider the variance that you mentioned, what would be the range of blood alcohol level, given that variance?

“A. .082 to .088.

“Q. So, the variance can go either way?

“A. Yes.

“Q. And in this particular case, you would expect that even given the variance that you are discussing, the lower end of that would be the .082?

“A. Right. That’s one standard deviation.” Id. at pp. 55-57.

The deviations are determined by the methodology utilized by the analyst performing the applicable procedures along with the stringency or rigor of the standards applied to the procedures. While Dr. Siek asserts that the particular analyst who performed the procedures is competent to carry out the procedures appropriately, Dr. Siek was not the person who in fact performed the procedures.

“Q. Dr. Siek, did you perform the actual analysis in this case?

“A. No.

“Q. Someone else did; is that right?

“A. That’s correct.

“Q. And the person that performed that was a Dr. Madison; is that right?

“A. Paul Madison, he is not a doctor.

“Q. I am sorry. The initials are P.R.?

“A. Paul R. Madison.

“Q. Do they have the same qualifications as you, do you know?

“A. What was that again?

“Q. Does this Paul R. Madison have the same qualifications as you do?

“A. No. He does not have a Ph.D. degree. He has a chemistry degree. He’s been working with us since 1994. He knows the methods very well and has been doing this for a long, long time.” Id. at pp. 71-72.

Dr. Siek admitted that based on whoever performed the testing, there would be differences in the results that he would expect in the BAC readings. Id. at pp.73-83. He contended that the differences he would expect from the lab in question in this case which was his own lab would be 3 percent in 66 percent of the repetitions. In other words, for Siek’s lab, if one took the same sample of blood and ran the tests in exactly the same manner, utilizing the same equipment and ran the tests 100 times, 66 of the results would have a variance either up or down in the BAC of 3 percent. Siek would then take the average of those 66 results and take that average as the actual BAC in that sample. Id. That, of course, means that 34 of those results would vary by more than 3 percent, which Dr. Siek referred to as “one standard deviation.” He then stated that if one applied two standard deviations or 6 percent variance in the test results, 95 percent of the test results would tall within that 6 percent variation. Id. Taking the mean of .085 and applying a 6 percent variation, the test result on the low end would come in just under .08. To get to 99 percent of the test results, one would go to three standard deviations which would provide for 9 percent variation and would take the test result in the subject sample mean of .085 to well under .08.

The question of whether the deviations one should apply should be one, two or three deviations would depend on the accuracy of the equipment utilized in the lab; the age and maintenance of the instruments such as the pippettes used to transfer the sample for testing; the type and amount of substances used to prepare and maintain the blood samples; the skill and experience of the analyst and the protocol used to perform the testing along with other factors. Id. at pp. 89-91. Clearly, one with a financial interest in the profitability of the lab would be interested in protecting the solidity of those high standards that would be affected by the typicality and history of the lab’s record for standard deviations. Dr. Siek’s relationships and his interests were raised by the following inquiry:

“The court: Cross-examine.

“Ms. Adler: Thank you, Your Honor.

“Cross-Examination Of Dr. Theodore J. Siek By Ms. Adler

“Q. Dr. Siek, you used to own Analytical Bio-Chemistry labs; is that right?

“A. I beg your pardon?

“Q. You used to own the lab you work for; is that right? And you recently sold that lab and now you’re the director of that lab; is that right?

“A. Yes.

“Q. You[r] lab performs most of the blood alcohol analyses for the Commonwealth?

“A. For Bucks County Police Departments, yes.

“Q. And that’s actually your biggest customer; is that right?

“A. I’m not sure. They are a big customer in terms of a single person, or a single entity supplying testing for us.” Id at p. 69.

Appellee’s expert, Dr. Gary Lage, testified that he knew that on prior occasions Dr. Siek admitted that two standard deviations was his lab’s standard in determining BAC. Id. at p. 92.

GENERAL IMPAIRMENT DUI — RELATION BACK

The relation back or extrapolation concept is one where the capacity of an operator of a motor vehicle is presumed by the level of alcohol in his system at a defined point in time as compared to the time when he or she was operating the motor vehicle. Obviously, the Commonwealth cannot establish the precise amount of alcohol in a defendant’s system at the instant he is operating his vehicle and the question is how long after the defendant is stopped by the police can his BAC be reasonably and reliably determined with sufficient exactitude to satisfy the “beyond a reasonable doubt” requirements of the DUI statute. The legislature resolved the issue in large part by setting the standard for the violation as determined by the BAC at any time within a two-hour block of time after operation of the motor vehicle. Left undefined is the extrapolation or relation back issue in the case of general impairment where the state of impairment must be that at or near the instant of operation.

In its analysis of Segida, the Superior Court observed “[W]hen a police officer conducts a stop of a vehicle and in due course observes indicia of intoxication which leads to field sobriety tests and a timely BAC test, our law allows the fact-finder to conclude that appellant’s state of intoxication after being stopped is indicative of his state while driving. This is so because we recognize that although the state of intoxication is not static, neither is it so dynamic as to change substantially in a short period of time, nor does the state of intoxication fluctuate wildly and unpredictably so as to render a reading one moment irrelevant to the state moments later.” Commonwealth v. Segida, 912 A.2d 841 (Pa. Super. 2006), rev ’d on other grounds.

“An expert’s description of the nature of alcohol absorption/dissipation was related in Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), as follows: a person’s blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly one hour after drinking has ceased, and that, thereafter, the level declines____[A]lcohol has no effect until it is absorbed into the bloodstream, which normally takes 30 to 90 minutes.” Id., 912 A.2d at 847 n.3.

Those issues were addressed by the parties and certain conclusions were inappropriately drawn which required correction.

“Ms. Adler: Right. But your honor, he doesn’t say is that when he actually stopped, was his last drink at 7:30.

“The Court: He would not know when he stopped. All he knows is what the defendant told him.

“Ms. Adler: Exactly. And then the prosecutor is asking Dr. Siek to reach[ed] an opinion based on what Mr. Dagutis may or may have not said. I think the officer said, as best as I can recall, he’s not definite. And there’s no specific information as to whether Mr. Dagutis consumed those alcoholic beverages and when he exactly stopped. I don’t believe that Dr. Siek has enough information to render an opinion in this matter.

“The Court: Well, if you’re saying that the statement that the officer made here in court, that the officer was not accurately reciting what your client told him, then that is something that can be dealt with by your client. But as of this time, there is on the record testimony regarding the time, in a range, as to when and what amount of alcohol and other substances were ingested by the defendant. So the objection is overruled.

“By Ms. Fillman:

“Q. I believe I was asking you, based on the timing that the — the scenario I gave you, that someone was drinking about six or seven beers and maybe some wine at about 7:30 or 8 p.m. at night, and then at 2 in the morning they are located and exhibit these signs. How much [of] a difference are we talking, say if you look at an hour? Say between 2 a.m. and 3 a.m.? Could you estimate how much of a differen[ce] in a blood alcohol level there would be?

“Ms. Adler: Your Honor, I am going to object to this again. This goes back to the relation — back testimony. The legislature specifically rejected this type of testimony when they adopted the new DUI statute. Basically the issue is, was Mr. Dagutis’ blood alcohol level over a certain level within two hours of driving—

“The Court: Well, the relation back is the two-hour period.

“Ms. Adler: My understanding is that the legislature has specifically rejected relation-back testimony. The statute says: Was a person’s blood alcohol level at a certain point within two hours of driving. So the issue is, was his blood alcohol level at X amount within two hours of driving. Whether or not his blood alcohol level would have been going up or down is not an issue for this court.” Id at pp. 62-65.

Appellee’s attorney was correct in her statement and the undersigned was at least partially incorrect. Relation back per se has been qualified to very recent ingestion as opposed to the six to seven hour interval suggested in this case. Upon further review, and in consideration of the developments in the appellate courts on point in the salient issues in this case, the distinctions pointed out by appellee commands a different result. The fact is that the Commonwealth was seeking to introduce “relation back” as is now clear based on the immediate testimony following the overruling of appellee’s objections.

“By Ms. Fillman

“Q. So say for an hour, say between 2 and 3 a.m, and under the scenario that I have given you, could you estimate what kind of difference in blood alcohol level we would be looking at in that time period?

“A. Yes.

“Q. What would you estimate?

“A. You would add .01 to .02 to that particular result, so it would be .095, to .105.

“Q. At a .095 to .105, what signs of impairment are associated with that level?” Id at p. 68.

The Superior Court in Segida, addressed that issue and the Supreme Court did not disturb that conclusion as follows:

“Of course, technically speaking, all DUI cases involve some degree of extrapolation or relation back as the Commonwealth never truly provides evidence of an individual’s incapacity at the moment they were driving, but rather, the Commonwealth necessarily provides evidence of an individual’s capacity some time after the vehicle was last driven. When a police officer conducts a stop of a vehicle and then in due course observes indicia of intoxication which leads to field sobriety tests and then a timely B AC test, our law allows the fact-finder to conclude that appellant’s state of intoxication after being stopped is indicative of his state while driving. This is so because we recognize that although the state of intoxication is not static, neither is it so dynamic as to change substantially in a short period of time, nor does the state of intoxication fluctuate wildly and unpredictably so as to render a reading one moment irrelevant to the state moments later.” Segida, 912 A.2d at 846-47

The Supreme Court addressed that matter as a case of first impression in certain respects regarding statutory interpretation, which, as a question of law, required the court to apply a de novo standard of review. Commonwealth v. Hoke, 599 Pa. 587, 962 A.2d 664 (2009). The Statutory Construction Act required the court to ascertain and effectuate the intention of the General Assembly. In so doing, the court reviewed the language and patent intent of the legislature.

“The General Assembly enacted section 3802 on September 30,2003, and it became effective on February 1, 2004, repealing and replacing the prior DUI statute, which had been found at 75 Pa.C.S. §3731 See Commonwealth v. Duda, 592 Pa. 164, 923 A.2d 1138 (2007). Under the now-repealed section 3731, it was and is undisputed that the proscribed conduct was driving 4while under the influence of alcohol to a degree which renders the person incapable of safe driving,’ or driving 4while the amount of alcohol by weight in the blood of the person is 0.10 percent or greater.’ 75 Pa.C.S. §3731(a)(1) and (a)(4), respectively, (repealed) (emphasis added). S ee Duda, supra at 1141 -44 (setting forth a brief review of the historical background to the repeal of section 3731 and enactment of section 3802). This court has already made clear that, in contrast to the now-repealed subsection 3731(a)(4), which required a specific blood alcohol level at the time of driving, subsection 3802(a)(2) deems irrelevant a motorist’s blood alcohol level at the time that he or she was driving. Duda, supra at 1147. Rather, under subsection 3802(a)(2), the relevant determination is a motorist’s blood alcohol level within two hours after driving. Id.

“The question presented in the instant case is whether, by analogy to subsection 3802(a)(2), subsection 3802(a) (1) does not require the Commonwealth to prove that a motorist had been rendered incapable of safely driving at the time that he or she actually drove. In other words, does subsection 3802(a)(1) resemble subsection 3802(a) (2) in that the actual time of driving is not included in the elements of the offense? Or, alternatively, does subsection 3802(a)(1) resemble the repealed subsection 3731(a)(1) in that an element of the offense is driving while incapable of doing so safely? More succinctly, the issue can be stated as follows: is subsection 3802(a)(1) an ‘at the time of driving’ offense?” Segida, 985 A.2d at 875-76

The Supreme Court answered that question in the affirmative and that answer along with the paucity of reliable field observations directed us to the inescapable conclusion that we should grant instant appellee’s motion.

CONCLUSION

We appropriately granted appellee’s post-trial motions reversing our finding of guilt and entered a verdict of not guilty.


source: Caselaw Access Project

author: BALDI, J,

license: Public Domain

text:
    Corbus v. Corbus

      C.P. of Bucks County,
    no. [ AXX-XX-XXXXX ]-C-35

      Tina Mazaheri, for the plaintiff.

      Kevin Handy, for the defendant.
    February 23, 2010
   BALDI, J,

On December 23, 2009, this court entered an order finding John Corbus in contempt of a court order previously entered by the Honorable Clyde W. Waite on April 6, 2009. Specifically, Mr. Corbus was found in contempt for failing to comply with the court-ordered obligation to provide travel accommodations for Ms. Corbus’ family to the United States, so that the Mr. Corbus’ and Ms. Corbus’ minor children could spend time with Ms. Corbus’ family. Mr. Corbus filed a timely notice of appeal on January 21, 2010. On February 5,2010, the Superior Court designated the appeal as a Children’s Fast Track appeal in accordance with the recent amendments to the Pennsylvania Rules of Appellate Procedure. Pursuant to Pa. R.A.P. 1925(a) we file this opinion.

FACTUAL BACKGROUND

The relevant facts are as follows: The parties involved in the instant dispute are Erika Corbus (Mother), John Corbus, (Father) and their two children, Estefania and Sarah Corbus. Mother and Father were married in 1997, and divorced in January of 2009. Mother is a Mexican citizen, and over the period of the parties’ marriage, both Mother and Father would travel multiple times each year to Mexico for family visits. See findings of fact, 4/6/09, ¶¶7-9. The parties have a history of profound difficulties relating to travel between Mexico and the United States with their children. Specifically, in the year 2000, while Mother was in Mexico with the children, Father traveled to Mexico and concocted a scheme to take the children back to the United States without Mother’s knowledge. Id. atfl2. Father did this by representing to Mother that he was taking the children to the park, when in fact he planned to spirit them away to the United States. Id. Father admitted to this conduct; however, he claimed he did so under duress. Id.

In addition, when Mother was in Mexico with the children in March 2004, Father contrived the issuance of a custody order from this court through the use of misleading information. Id. at ¶16. Father went to Mexico and represented himself as being there for purposes of reconciliation. Id. at ¶18. He deceived Mother into thinking the family would be able to set aside their differences and function in a good and wholesome manner. Id. As a result, Mother voluntarily agreed to come back to the United States with Father and the children. Id.

However, in the Houston Airport, Father sought out a police officer and demanded that Mother be arrested for violation of the custody order that unbeknownst to Mother, he had recently obtained. Id. at ¶21. Father manipulated the court proceedings to obtain Mother’s declaration as a fugitive by filing petitions during a time when he knew and in fact had taken steps to ensure that Mother could not be present to oppose his assertions. Id. at ¶28. Father knew that Mother’s status as an alien would cripple her ability to present a defense. Id. Father took full and unfair advantage of his position of power and authority to the detriment of Mother and ultimately to the detriment of the children. Id. Father’s conduct resulted in Mother being arrested in front of her children, being held in jail in Houston for one night, and being subsequently arrested in Philadelphia upon her arrival and criminally charged with interference with custody. Id. at ¶¶22, 24-25. Mother ultimately spent 15 days in the Bucks County Correctional Facility, as she had insufficient funds to post bail. In addition, Mother opted to accept Accelerated Rehabilitative Disposition (ARD), for fear that a conviction would negatively affect her immigration status. Id. at ¶25.

On February 8,2005, upon consideration of a custody evaluation which recommended that Mother be granted primary physical custody of the children, the Honorable Judge Fritsch entered an order granting Mother primary physical custody. This decision was affirmed by the Superior Court on July 18, 2006.

The custody order issued by Judge Fritsch restricted Mother’s ability to travel with the children. Id. at ¶¶34-35. However, after a hearing before Judge Waite on March 10,2009, Judge Waite found that Mother wished to be able to travel with the children to Mexico to maintain familial ties both on her part and on the parts of her children. Id. at ¶38. Mother’s home and her immediate family are in the Monterrey, Mexico area. Id. at ¶43. The children likewise expressed a keen interest and desire to maintain connections with the Mexican side of their family, both language-wise and in terms of their heritage. Id. at ¶41. Father, however, adamantly believed that in the event the minor children were permitted to travel to Mexico that they would not return.

Judge Waite found that the dangers presented by travel of identifiable U.S. citizens in Mexico and particularly to the Monterrey area were too great to subject the children to those risks, and that alternative measures existed to maintain familial, language and heritage connections via frequent visits by Mother’s family to the United States. Id. at ¶¶43-44. Judge Waite found that due to Father’s employment as a senior pilot with Continental Airlines he had substantial perquisites of employment to both travel himself domestically and internationally and to provide travel opportunities for his nuclear and extended family, gratis. Id. at ¶¶9, 44. Because Father possessed the means to provide for the transport of a limited number of persons to the United States on a frequent basis at no cost to him either in cash or other perquisites, Father was ordered to:

“provide either for the transport of three members of Mother’s family to the United States three times a year at his personal expense or ... provide travel passes for those three persons.” Court order, 4/6/09, ¶03.

Father’s failure to comply with these court-ordered travel obligations prompted Mother to file a pro se “emergency motion for a contempt hearing.” A hearing was held before the undersigned on November 30,2009. At the hearing, evidence was presented that Mother had informed F ather of the proposed travel dates for her family by letter on May 19, 2009; however, Father did not book the flights from Texas to Philadelphia until July 4, 2009, only two days prior to the proposed July 6, 2009 travel date. N.T. 10/6/09, pp. 55-59; 11/30/09, pp. 89-92. Further, Mother testified that she repeatedly attempted to confirm the travel plans with Father, to which Father assured her that he would place the travel reservations. N.T. 10/6/09, pp. 56-57. Not only did Father wait until the weekend of July 6, 2009 to finally confirm that he had purchased the tickets, he also waited until that point to inform Mother that he was only going to purchase tickets from Laredo, Texas to Philadelphia, rather than tickets from Monterrey, Mexico to Philadelphia. N.T. 10/6/09, p. 57. This conduct preliminarily indicates to this court Father’s continued lack of cooperation in carrying out the letter and intent of the April 6, 2009 court order.

Father also admitted at the hearing that the court order required him to bring Mother’s family into the United States, but stated that this arrangement was not feasible and could not be accomplished. N.T. 11/30/09, pp. 93-95. By way of explanation, Father testified that he is only able to obtain standard “travel passes” from his employer on domestic flights, and could only obtain international travel passes by actually accompanying Mother’s family on the international flight. N.T. 11/30/09, p. 80. Father testified that he was not willing to accompany Mother’s family on the flight, and therefore the international travel passes would not be available to him. While Father first stated that he did not want to accompany Mother’s family because his work schedule did not allow him to do so, he then stated that he would never be willing to accompany Mother’s family on an international flight because he did not feel safe in Mexico, citing concerns about Mother’s relatives, crime statistics, drug cartels, andHINI outbreaks. N.T. 11/30/09, pp. 80-81. It is for this reason that Father stated that he booked flights for Mother’s family from Laredo, Texas to Philadelphia, Pennsylvania. N.T. 11/30/09, pp. 80-82.

Father also failed to make arrangements to transport Mother’s family from Monterrey, Mexico to Laredo, Texas. Mother testified that it was unlikely that her family would have even been able to travel into Laredo, Texas on such short notice, due to the fact that her family members would need to acquire “pass travel permits,” which would have been needed upon entry to the United States. N.T. 10/6/09, pp. 58-59.

In light of the provisions of Judge Waite’s order, and the foregoing evidence, this court found that Father had disrespected Judge Waite’s order and had engaged in contemptuous behavior. In an effort to carry out the intent of Judge Waite’s order to maintain familial ties between the children and their family in Mexico, the undersigned directed that Father place $3,000 in an escrow account for purposes of purchasing transportation tickets for Mother’s family members. See court order, 12/23/09.

Father now appeals this finding of contempt and has presented the following issues on appeal, verbatim:

“(1) The trial court erroneously imposed a [sic] open-ended support obligation on Father in a custody matter and, as a result, failed to properly consider the imposition of the financial obligation under the support guidelines.

“(2) The trial court did not have a proper basis for imposing an additional support obligation on Father by requiring Father to purchase airline tickets for Mother’s family.

“(3) The trial court’s finding of fact, upon which the support obligation is based, is contrary to the law of the case.” See statement of matters complained of on appeal, 1/21/10.

We will address these issues in seriatim.

DISCUSSION

Father first asserts that this court imposed an open-ended support obligation by requiring him to provide travel arrangements to Mother’s family members. However, our court order was not open-ended, and simply sought to enforce Father’s obligation to “provide either for the transport of three members of Mother’s family to the United States three times a year at his personal expense or . . . provide travel passes for those three persons,” as set forth in the April 6,2009 court order. Based upon both Mother’s and Father’s testimony, adequate travel arrangements were never put in place to bring Mother’s family “to the United States” so that the children could spend time with her family.

We find Father’s testimony as to the unavailability of international travel passes to be credible; however, we find that Father was still fully aware that he had to provide full transportation “to the United States” for Mother’s family, whether it was at his personal expense or in the form of a travel pass from his employer. The court order clearly required Father to transport Mother’s family members from Mexico to the United States. Father failed to do this by only providing travel accommodations from Texas. Accordingly, we found Father’s failure to comply with the transportation of Mother’s family from Mexico to the Philadelphia area to be in contempt of the clear and unambiguous language of the April 6, 2009 court order.

Because Father has refused to accompany Mother’s family on the international flights from Mexico, and the travel passes are not otherwise available from Father’s employer for international flights, this court entered an order requiring Father to fund an escrow account with $3,000 to allow three of Mother’s family members to visit the Philadelphia area, and the children, three times a year. This order was not meant to be punitive; rather, it was put in place so that the provisions of the April 6, 2009 order could be successfully carried out. This obligation was not open-ended; it simply required Father to comply with the previous order and transport three of Mother’s family members to this area three times a year.

Appellant’s contention that this court failed to properly consider the imposition of the financial obligation under the support guidelines is similarly without merit. Our court order simply enforces a prior court order, and that prior court order, which imposed the original financial obligation, was never appealed by Father. The issue of determining support payments was not before the court to decide on November 30, 2009. Rather, that issue had been litigated previously and was never appealed. The only issue before this court was whether or not Father’s conduct was contemptuous, which we found to be the case.

Father next contends that the trial court did not have a proper basis for imposing an additional support obligation upon him. Again, this court did not impose an additional obligation; it simply directed Father to comply with the existing court order which required and continues to require him to pay for the costs of transportation of Mother’s family to the United States three times a year.

Finally, Father maintains that “the trial court’s finding of fact, upon which the support obligation is based, is contrary to the law of the case.” See concise statement, ¶0. We assume that Father is arguing that our finding of contempt was in error and was contrary to law. Contempt power is “essential to the preservation of the court’s authority and prevents the administration of justice from falling into disrepute.” Marian Shop Inc. v. Baird, 448 Pa. Super. 52, 55, 670 A.2d 671, 673 (1996) (citing Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569 (1949)). When reviewing an appeal from a contempt order, the appellate court must place great reliance upon the discretion of the trial judge. Id. (citing Fenstamaker v. Fenstamaker, 337 Pa. Super. 410, 487 A.2d 11 (1985)); Sinaiko v. Sinaiko, 445 Pa. Super. 56, 63, 664 A.2d 1005, 1009 (1995) (citing Goodman v. Goodman, 383 Pa. Super. 374, 556 A.2d 1379 (1989), appeal denied, 523 Pa. 642, 565 A.2d 1167 (1989)). On appeal from a court’s order holding a party in contempt of court, the Superior Court is “limited to determining whether the trial court committed a clear abuse of discretion.” Id. (citing Mueller v. Anderson, 415 Pa. Super. 458, 460, 609 A.2d 842, 842-43 (1992)).

In Garr v. Peters, the Superior Court discussed a court’s civil contempt powers and stated that:

“A court may exercise its civil contempt power to enforce compliance with its orders for the benefit of the party in whose favor the order runs but not to inflict punishment. A party must have violated a court order to be found in civil contempt. The complaining party has the burden of proving by a preponderance of evidence that a party violated a court order .... To impose civil contempt the trial court must be convinced beyond a reasonable doubt from the totality of evidence presented that the contemnor has the present ability to comply with the order.” Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001). (citations omitted)

In the instant case, Father himself admitted that he did not obtain transportation for Mother’s family from Mexico to the United States. N.T. 11/30/09, 94-95. The court had previously ordered Father to do so. See court order, 4/6/09, fD3. This evidence was sufficient to find that Father had violated the court order. This court was not convinced that Father did not have the present ability to comply with the order; Father could have either obtained international travel passes from his employer and accompanied Mother’s family on the flight, or he had the option to personally purchase travel arrangements for Mother’s family. Therefore, in accordance with the law as set forth in Garr v. Peters, we found that Father had violated a court order, and a finding of contempt was appropriate to enable enforcement of that court order. This finding did not constitute an error of law, despite Father’s claims to the contrary.

Based upon the foregoing, we find that appellant’s issues raised on appeal are without merit.

      . The findings of fact and conclusions of law accompanying Judge Waite’s court order dated April 6,2009 were accepted by this court as matters of record and provided the background as set forth above. See court order, 4/6/09.

      . At the hearing on October 6,2009, the court became aware that the travel passes do actually cost Father approximately $200 each way. However, Father did not appeal the April 6, 2009 order, which had accepted as fact that the travel passes were provided free of charge to Father through his employer.

      . In addition, the court found Father in contempt for failure to return the children as required for vacation; for failing to cooperate with Mother in respect to medical care; and for refusing Mother reasonable telephone access with the children when they were with Father. The court imposed sanctions in the amount of $10,000, payable to Mother for her attorney’s fees. See order, 4/6/09, |D1.

      . At the hearing, testimony from Mother, which had been given at a prior hearing on October 6, 2009 before the Honorable Clyde W. Waite, was entered into evidence by the agreement of the parties. We simply offer this information for the purpose of clarifying the record.

      . Mother testified that the particular border her family would have had to cross is a high immigration crossing border, and as such, Mexican citizens who are seeking to enter the United States beyond the immediate border crossing area are required to obtain “pass travel permits,” so that they can travel deeper into the United States (e.g. Laredo, Texas).


author: BOYLAN, J,

text:
    Commonwealth v. Rivera
    C.P. of Bucks County,
    no. 2007-5697.

      Maureen Flannery Span, for the Commonwealth.

      Ronald Elgart, for the defendant.
    March 19, 2010
   BOYLAN, J,

Defendant, Justo Tuty Rivera, pled guilty to criminal attempt — first-degree murder, criminal attempt — rape by forcible compulsion, aggravated assault, and related offenses. Following his plea, defendant received an aggregate sentence of 22 1/2 to 45 years in a state correctional facility. Defendant now appeals the dismissal of his first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §9541 et seq.

The following is a summary of the relevant facts. On June 8, 2007, officers from Bensalem Township Police Department responded to the Neshaminy Mall, located in Bucks County, Pennsylvania, to the area of the family restroom for the report of an assault with a knife. N.T. 12/4/07, p. 19. The victim advised the police that she had been working at the Dunkin’ Donuts in the food court area of the mall and that she went to use the bathroom, which was a family bathroom. N.T. 12/4/07, pp. 19-20. When the victim entered the family bathroom, the defendant was seated on a bench. N.T. 12/4/07, p. 20. The victim asked the defendant which bathroom was unlocked and he pointed to the right side. N.T. 12/4/07, p. 20. The victim entered that bathroom and as she was closing the door, the defendant approached her from behind, and grabbed her around the neck. N.T. 12/4/07, pp. 20-21. The defendant said “fuck you, open yourself” to the victim and began to unbuckle his pants. N.T. 12/4/07, pp. 21, 23.

The victim screamed and begged him to stop. N.T. 12/4/07, p. 24. The defendant then pulled out a knife and placed it against the victim’s throat and began to cut her. N.T. 12/4/07, p. 24. The defendant told the victim that he was going to kill her and she grabbed the knife and in the process cut her hand. N.T. 12/4/07, p. 24. The victim began to scream and the defendant fled. N.T. 12/4/07, p. 24.

Bensalem police officers and mall security reviewed the mall’s video surveillance tapes and they observed the defendant, after the incident, exit the mall near the engineering dock doors. N.T. 12/4/07, pp. 24-25. He set his shirt and knife on the ground and placed a barrel over top of them. N.T. 12/4/07, pp. 24-25. These items were recovered by the police and placed into evidence. N.T. 12/4/07, p. 25.

The victim was treated at a local hospital for lacerations under her chin, on her neck, and several lacerations to her left hand and fingers. N.T. 12/4/07, p. 29. She received 26 stitches in her hand. N.T. 12/4/07, p. 29. As a result of the attack, she still has numbness and pain in her left hand, and has been unable to return to work. N.T. 12/4/07, p. 29.

On June 9,2007, Bensalem police received an anonymous call that identified the male actor as the defendant. N.T. 12/4/07, p. 25. Later that night, at police headquarters, the victim positively identified the defendant in a photograph lineup as the actor who assaulted her. N.T. 12/4/07 pp. 25-26. Police apprehended the defendant in his home and recovered a white tank top with visible blood stains on it. N.T. 12/4/07, p. 26. Back at headquarters, defendant admitted that he was at the mall and gave the following statement:

“I hurt somebody for no reason last night. I just decided to go to Neshaminy Mall. I got the knife from the apartment. Nothing special made me pick the Indian lady. I just saw her..... I was gonna rob and fuck the Indian lady. I didn’t do it because she was making too much noise. I knew I cut her... I undid my belt buckle because I was gonna fuck her ....” N.T. 12/4/07, pp. 26-28.

On December 4, 2007, defendant entered a plea of guilty to one count of criminal attempt — first-degree murder, one count of criminal attempt — rape by forcible compulsion, two counts of aggravated assault, one count of recklessly endangering another person, one count of terroristic threats with the intent to terrorize another, one count of possession of a weapon, and two counts of simple assault. During the plea, the defendant stated that he did not recall the events that night because he was high at the time. Sentencing was deferred for a sexual offender assessment pursuant to 42 Pa.C.S. §9795.4. The assessment determined that defendant did not meet the criteria for a sexually violent predator. N.T. 3/6/08, p. 7.

On February 25, 2008, Defendant filed a pro se “motion for change of venue” and “motion to withdraw guilty plea.” On March 4,2008, defense counsel filed a “motion to withdrawal guilty plea and motion to appoint private counsel” on the defendant’s behalf.

On March 6, 2008, defendant withdrew the “motion for change of venue,” “motion to withdraw guilty plea,” and “motion to withdraw guilty plea and motion to appoint private counsel,” and he renounced a letter he wrote to the undersigned requesting to withdraw his plea. N.T. 3/6/08, pp. 2-6, 9-10. Sentencing was deferred again at the request of the defense for further preparation. N.T. 3/6/08, pp. 7-8.

On March 18, 2008, after exercising his right of allocution, defendant received a total sentence of 22 1/2 years to 45 years in a state correctional facility. Specifically, defendant was sentenced to 10 to 20 years for Count 1, criminal attempt — first-degree murder; a consecutive 10 to 20 years for Count 2, criminal attempt — rape by forcible compulsion; and a consecutive 2 1/2 years to 5 years for Count 5, terroristic threats. N.T. 3/18/08, p. 18. Defendant also received a consecutive five years probation for Count 6, possession of a weapon. N.T. 3/18/08, pp. 17-18. No further penalty was imposed for the remaining offenses.

Additionally, we note that defendant was not a neophyte. At the time of his arrest, defendant was on federal parole for bank robbery. Defendant’s prior record also includes convictions for possession with intent to deliver in 1999 and escape in 2006.

On March 28, 2008, defendant filed a “motion to modify and reconsideration of sentence.” A hearing was scheduled for April 28, 2008, but cancelled because the defendant was taken into custody by the federal authorities two days prior to his hearing. On June 6, 2008 defendant filed a “motion to reschedule hearing.” On July 3, 2008, a hearing was held on defendant’s post-sentence motions. During the hearing, defendant apologized to the victim for this “heinous act” blaming it on the “combination of drugs and alcohol and the things that [he] had gone through in [his] life” and stated that he “wished it never happened.” N.T. 7/3/08, pp. 7-8. After the hearing, defendant’s motion was denied. Defendant did not file a direct appeal.

On July 6,2009, defendant filed his first Post Conviction Relief Act (PCRA) petition. On August 6, 2009, counsel was appointed. On September 14, 2009, the Commonwealth filed an answer. On October 15, 2009, defendant filed an amended PCRA petition. Hearings were held on defendant’s PCRA petition on October 29, 2009 and October 30, 2009. At the conclusion of the hearings, the petition was denied.

On November 13, 2009, defendant filed a notice of appeal to the Superior Court. On November 30, 2009, defendant filed a statement of matters complained of on appeal.

The issues raised on appeal are whether trial counsel was ineffective: (1) “in his representation of defendant in that he informed/threatened he would abandon defendant if defendant did not plead guilty, thereby inducing a plea that was not intelligently or voluntarily made;” and (2) “for failing to file a direct appeal on behalf of defendant.”

The standard of review upon the appeal from the denial of PCRA relief is whether the PCRA court’s findings are supported by the record and are free of legal error. Commonwealth v. Abu-Jamal, 574 Pa. 724, 731, 833 A.2d 719, 723 (2003), cert. denied, 541 U.S. 1048 (2004). A defendant serving a sentence of imprisonment is eligible for relief under the PCRA if he pleads and proves by a preponderance of the evidence that the conviction or sentence resulted from one or more of the following:

“(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place;

“(ü) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place;

“(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent;

“(iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court;

“(v) [deleted]

“(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced;

“(vii) The imposition of a sentence greater than the lawful maximum; and/or

“(viii) A proceeding in atribunal without jurisdiction.” 42 Pa.C.S. §9543(a)( 1-2).

Moreover, a defendant must plead and prove that an allegation of error has not been previously litigated or waived. 42 Pa.C.S. §9543(a)(3).

In Pennsylvania, our law presumes that “counsel has rendered effective assistance.” Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007). (citation omitted) Therefore, in order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the following three elements:

“(1) the underlying claim is of arguable merit;

“(2) counsel’s action or inaction lacked any reasonable basis designed to effectuate [defendant’s] interest; and

“(3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Id.

The threshold inquiry in ineffectiveness of counsel claims is whether the issue, argument, and/or tactic which counsel has foregone, and which forms the basis for the assertion of ineffectiveness is of arguable merit, as counsel cannot be found ineffective for failing to pursue a baseless or meritless claim. Id. at 1041-42.

First, defendant argues that trial counsel was ineffective in his representation of defendant because he threatened the defendant that he would abandon him if he did not plead guilty, thereby inducing a plea that was not intelligently or voluntarily made.

During the guilty plea colloquy, defendant stated to this court that he was pleading guilty voluntarily and of his own free will. N.T. 12/4/07, p. 2. He affirmed that no one had made any threats to him in order to force him to plead guilty. N.T. 12/4/07, pp. 2-3. Defendant stated twice that he was satisfied with the representation provided by his attorney. N.T. 12/4/07, pp. 7-8, 17-18. Additionally, defense counsel colloquied defendant as to whether he was satisfied with the representation. N.T. 12/4/07, pp. 16-18. Specifically, the following exchange occurred:

“Defense Counsel: And so far as you sit here today, Mr. Rivera, are you satisfied with the way I’ve represented you.

“Defendant: I am.

“Defense Counsel: And do you think I’ve spent sufficient time with you to talk about the case and additional time now as we prepared for sentencing and evaluations down the road?

“Defendant: Yeah, I trust you.” N.T. 12/4/07, pp. 17-18.

The defendant also stated that he could read, speak, and write the English language, completed the eleventh grade, and was not under the influence of any alcohol, drugs, or medication. N.T. 12/4/07, pp. 6,18-19. Finally, defendant admitted that he was pleading guilty because he was satisfied that he was in fact guilty and admitted to the facts. N.T. 12/4/07, pp. 15,18. Consequently, this court found that defendant’s guilty plea was knowingly, intelligently, and voluntarily entered and that the defendant understood the consequences of pleading guilty. N.T. 12/4/07, p. 19.

Additionally, at his next court hearing, defendant voluntarily withdrew his post-guilty plea motions and the following exchange occurred:

“Court: And are you satisfied with his representation of you?

“Defendant: I am satisfied with his representation of me.” N.T. 3/6/08, pp. 5-6, 9.

Thereafter, during the PCRA hearing, trial counsel stated that he never threatened that the defendant would have to proceed to trial without his representation. N.T. 10/30/09, p. 30.

This court does not find the assertions that the defendant was threatened to be credible. Indeed the record demonstrates that defendant entered his guilty plea knowingly, voluntarily, and intelligently. Defendant has the burden to prove that his prior counsel threatened him to plead guilty. Therefore, the defendant has not proven the first prong of an ineffective assistance of counsel claim, specifically that the underlying claim is of arguable merit. Failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness. Commonwealth v. Daniels, 600 Pa. 1, 17-18, 963 A.2d 409, 419 (2009). Therefore, we do not need not reach the other prongs of the test.

Second, defendant argues that trial counsel was ineffective for failing to file a direct appeal on his behalf. At the outset, we note that the unjustified failure to file a requested direct appeal is ineffective assistance of counsel per se and that a defendant does not have to demonstrate his innocence or show that he likely would have succeeded on appeal in order to meet the prejudice prong of the test for ineffectiveness. Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa. Super. 2009); see also, Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006). However, before counsel will be deemed ineffective for failing to file a direct appeal, “the defendant must prove that he requested an appeal and that counsel disregarded that request.” Bath, 907 A.2d at 622.

Generally, if counsel ignores a defendant’s request to file a direct appeal, the defendant is entitled to have his appellate rights restored. Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006). Amere allegation will not suffice to prove that counsel ignored the defendant’s request to file an appeal. Id. Rather, the burden is on the petitioner to plead and present evidence to this court that he, in fact, requested counsel to pursue a direct appeal within the requisite time period and that the request was ignored or rejected by trial counsel. Commonwealth v. Collins, 546 Pa. 616, 622, 687 A.2d 1112, 1115 (1996).

In the present case, defendant has also failed to meet this burden. During the PCRA evidentiary hearing, defendant stated that he asked trial counsel to file a direct appeal on his behalf and he believed that he made this request after the reconsideration hearing. N.T. 10/29/09, pp. 11-14, 37. Thereafter, trial counsel testified that the defendant never asked him to file an appeal. N.T. 10/30/09, pp. 24-26, 35-36. This court found counsel’s statements to be believable. Accordingly, this court found that defendant failed to satisfy his burden of proving that he did in fact request an appeal and counsel disregarded that fact.

Additionally, counsel satisfied his constitutionally-imposed duty to consult with the defendant regarding his appellate rights. Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001). Counsel discussed with the defendant that the only issue he could appeal would be the discretionary aspects of sentencing and that in his opinion the only true recourse the defendant had would be to file a PCRA petition. N.T. 10/30/09, pp. 24-26, 35-36.

For these reasons, the relief sought in defendant’s PCRA petition was denied.

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §2702(a)(l); 18 Pa. C.S. §2702(a)(4).

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §2706(a)(l).

      .18 Pa.C.S. §907(b).

      . 18 Pa.C.S. §2701(a)(l); 18 Pa. C.S. §2701(a)(3).


author: CEPPARULO, J,

text:
    Commonwealth v. Kidd

      C.P. of Bucks County,
    no. 3477-2009.

      Suzette S. Adler, deputy public defender, for appellant.

      Ryan Hyde, assistant district attorney, for appellee.
    March 25, 2010
   CEPPARULO, J,

I. INTRODUCTION

Defendant Henry Kidd appeals to the Superior Court of Pennsylvania from this court’s denial of his motion to withdraw plea of guilty.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 2009, defendant Henry Kidd was arrested for trying to purchase merchandise from a Falls Township, Bucks County, Pennsylvania 7-Eleven with a counterfeit $100 bill. On October 19,2009, defendant initially entered a guilty plea to forgery and attempted theft by deception. After receiving a full plea colloquy, defendant indicated that he wanted to re-evaluate his situation to withdraw his proposed guilty plea and changed his plea to not guilty. On October 26, 2009, defendant changed his mind again and entered an open guilty plea. Defendant’s plea was accepted and he was immediately sentenced to a period of incarceration of not less than six months, nor more than 24 months on the forgery count, with no further penalty for the attempted theft by deception count.

On November 5, 2009, defendant filed a motion to withdraw plea of guilty alleging that his plea was not knowing, intelligent, or voluntarily entered because he believed that there was an agreement that he would receive a sentence of six to 23 months. Defendant’s motion was denied on November 30, 2009. Defendant appeals from the denial of his motion to withdraw plea of guilty.

III. MATTER COMPLAINED OF ON APPEAL

On January 22,2010, defendant filed his statement of matters complained of on appeal, raising the following issue, verbatim:

“Did the trial court err when it denied appellant’s motion to withdraw his guilty plea?”

IV. ANALYSIS

The sole issue defendant raises on appeal is whether this court erred in denying his post-sentence motion to withdraw guilty plea. The standard of review for post-sentence motions for withdrawal is well settled:

“‘[P]ost-sentence motions for withdrawal are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence-testing devices.’ Commonwealth v. Flick, 802 A.2d [620, 623 (Pa. Super. 2002)]. A defendant must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea. Id., citing Commonwealth v. Gunter, 565 Pa. 79, 771 A.2d 767 (2001); Commonwealth v. Kirsch, 930 A.2d [1282, 1284 (Pa. Super. 2007)]. ‘Manifest injustice may be established if the plea was not tendered knowingly, intelligently, and voluntarily.’ Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa. Super. 2002), citing Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992).” Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).

Defendant’s motion claims that his plea was not knowing, intelligent, or voluntarily entered because he believed that there was an agreement that he would receive a sentence of six to 23 months, instead of the six to 24 month sentence he received. A review of defendant’s plea colloquy, however, reveals no such agreement. Defendant received two thorough plea colloquies, where he affirmed his understanding of the meaning and consequences of an open guilty plea, including his understanding of the possible maximum sentence he could receive and that he was pleading guilty, not because of an agreement as to sentence, but because he was actually guilty of the crimes charged.

During defendant’s first guilty plea colloquy, which occurred on October 19, 2009 (N.T. 1, p. 1), after participating in virtually the entire guilty plea colloquy, defendant indicated that he wished to withdraw his guilty plea and to plead not guilty. (N.T. 1, p. 10.) This reevaluation by defendant occurred during the factual presentation of the crimes for which Mr. Kidd was pleading guilty and he indicated to the court that he was not pleading guilty because he was not sure who was representing him. It is worth noting, of course, that the Bucks County Public Defender represented defendant from the initial complaint up to and including the colloquy with the court and we assumed that Mr. Kidd’s only complaint was that different public defenders handled different stages of the case. In any event, during his explanation he stated “then when I get down here, perfect example, today, she just presented the offer to me and I, I — I’m considering it, but I don’t want to give up my right yet”. (N.T. 1, p. 10.) The court responded “there is no offer.” Defendant responded “there is no offer?”. The court responded “no.” (N.T. l,p. 10.)

Defendant was, therefore, advised on the record specifically during the first guilty plea colloquy that there was no offer from the Commonwealth or by his public defender as a condition of his pleading guilty. Because this was prior to sentencing, the court permitted Mr. Kidd to withdraw his guilty plea and set the case down for trial on October 26,2009. On that date, rather than pleading not guilty and going to trial, defendant again changed his mind and indicated that he now was willing to plead guilty. Defendant received another full guilty plea colloquy where he was told, now for the second time, of the maximum sentence for the crime to which he was pleading guilty with no indication that this plea was subject to a plea bargain with the district attorney. (N.T. 2, p. 2.) During the sentencing phase of that proceeding, this court initially imposed a sentence of not less than one nor more than three years incarceration in a state correctional institution and began to give Mr. Kidd credit for time already served when it was realized that the defendant was not entitled to any time credit (N.T. 2, p. 9) because he was not entitled to time credit, we reconsidered and vacated our initial sentence and instead imposed a sentence of not less than six months nor more than 24 months incarceration in a state correctional institution based not only on the fact that he did not have any time credit on this sentence, but also because he was facing a state parole violation sentence of approximately eight months. (N.T. 2, p. 9.) There is no indication, whatsoever, of any type of plea bargain or plea agreement and no objection was made to the sentence imposed by the defendant or his attorney. In deciding whether there was any credibility to the defendant’s assertion that there was a plea agreement, we also took note that the Bucks County Criminal Court Sheet did not indicate a negotiated plea and instead simply indicated that this was an open guilty plea on Count 1 of the Information. Finally, we also make reference to the Pennsylvania Commission on Sentencing Guidelines wherein the defendant’s mitigated range was at six months, the standard range of sentence was nine to 16 months and the aggravated range was 19 months on Count 1, forgery, which was charged as a felony of the second degree. Obviously, defendant ultimately received a mitigated sentence. It is also worth noting that on that same form, there is an indication that the defendant has had a minimum of ten prior convictions indicating that he was certainly familiar with the Criminal Justice System. On that form, the block marked “non-neg guilty plea” was checked off and the block marked “neg guilty plea” was left blank.

Defendant’s motion to withdraw plea of guilty only demonstrated his displeasure with the sentence he received and then only with the 24 month maximum he received versus the 23 months he alleges he was promised. As indicated by the withdrawal of his October 19 guilty plea for time to reconsider his plea, defendant was obviously weighing the consequences of going to trial or of pleading guilty. There was no indication during either of the two guilty plea colloquies that defendant’s decision was anything but a knowing, intelligent, and voluntary guilty plea. Each guilty plea colloquy also advised defendant that if his case involved a plea bargain which the court was unwilling to accept, that the court would allow defendant to withdraw his guilty plea under such circumstances (N.T. 1, p. 7 and N.T. 2, p. 5). Defendant was acutely aware of the meaning and consequences of his guilty plea. Defendant’s claims in his motion to withdraw that he believed he would receive a maximum sentence one month less than what he actually received is neither credible given the circumstances, nor does it rise to the level of a manifest injustice. Defendant’s motion to withdraw demonstrates nothing more than defendant’s displeasure at receiving a maximum sentence of 24 months, instead of 23 months. As such, it is respectfully suggested that defendant’s motion to withdraw guilty plea was properly denied and that no manifest injustice has resulted thereby.

V. CONCLUSION

The foregoing represents this court’s opinion regarding defendant’s appeal from the denial of his motion to withdraw plea of guilty, dated November 5, 2009.

      . 18 Pa.C.S. §4101 (A)(3); 18Pa.C.S. §3922(A)(1).