Com. v. Prater, W.
Pa. Super. Ct.
J-A04011-21
2021 PA Super 141
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WAYNE PRATER
Appellant No. 673 EDA 2020
Appeal from the PCRA Order Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000375-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WAYNE PRATER
Appellant No. 674 EDA 2020
Appeal from the PCRA Order Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002465-2010
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WAYNE PRATER
Appellant No. 676 EDA 2020
Appeal from the PCRA Order Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County
J-A04011-21
Criminal Division at No: CP-51-CR-0008413-2010
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WAYNE PRATER
Appellant No. 677 EDA 2020
Appeal from the PCRA Order Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0008416-2010
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WAYNE PRATER
Appellant No. 678 EDA 2020
Appeal from the PCRA Order Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000374-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WAYNE PRATER
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Appellant No. 679 EDA 2020
Appeal from the PCRA Order Entered January 28, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0012511-2011
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED JULY 9, 2021
Appellant, Wayne Prater, filed a petition under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, claiming that his original sentence
was illegal and seeking a new trial on the basis of ineffective assistance of
counsel. The PCRA court held that Appellant’s original sentence was illegal
and imposed a new sentence, but it rejected Appellant’s claims of ineffective
assistance. Appellant moved for reconsideration of his new sentence, which
the court denied. He then filed an appeal to this Court challenging his new
sentence as well as the denial of his ineffective assistance claims. We affirm.
Appellant stands convicted of multiple crimes against his estranged
girlfriend and the mother of his children. On September 15, 2009, the victim
obtained a Protection From Abuse order that evicted Appellant from the
victim’s home and directed Appellant to refrain from any contact with her. On
November 30, 2009, Appellant made several harassing phone calls to the
victim, smashed her car windows, threw a brick through her home window
and slashed her tires. On December 2, 2009, Appellant broke into the victim’s
home and caused water to pour from the bathtub that he plugged up on the
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* Retired Senior Judge assigned to the Superior Court.
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second floor to the first floor through the ceiling. Later that same day, when
police spotted Appellant, he fled, resisted arrest, and threatened the arresting
officers. On August 16, 2010, Appellant demanded money from the victim
and physically assaulted her. On August 18, 2010, police informed the victim
that someone had called 911 claiming that she was going to kill herself with a
bomb. On August 19, 2010, the victim returned home to find her house again
flooded and a pipe bomb in her basement. Police found Appellant’s fingerprint
on a bag containing an incendiary fuse nearby. On August 20, 2010, police
again arrested Appellant and found a cellphone on him that was used to call
911 to inform authorities that the victim supposedly intended to kill herself
with a bomb.
Appellant was charged in six separate cases, which the court
consolidated for trial. The jury found Appellant guilty of three counts of
contempt of a court order; two counts each of assault, harassment, burglary,
and terroristic threats; and one count each of criminal trespass, criminal
mischief, resisting arrest, stalking, endangering another person, aggravated
assault, risking a catastrophe, possession of an instrument of crime, and
making offensive weapons. On November 2, 2012, the court sentenced
Appellant to an aggregate term of 35½ to 71 years of imprisonment, including
a sentence of 10 to 20 years of imprisonment for risking a catastrophe, a
third-degree felony under 18 Pa.C.S.A. § 3302. On April 7, 2014, this Court
affirmed on direct appeal. Appellant did not file a petition for allowance of
appeal with our Supreme Court.
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On March 15, 2015, Appellant filed a pro se PCRA petition. Counsel was
appointed and was permitted to withdraw without filing an amended petition.
New counsel was appointed and submitted a letter stating that the issues in
Appellant’s petition were meritless and there were no other issues of arguable
merit that could be raised. On May 31, 2017, the PCRA court dismissed
Appellant’s petition. Appellant appealed to this Court, which held that
counsel’s analysis of the PCRA claims had been cursory and incomplete and
remanded the matter to the PCRA court for further consideration. In 2019,
new PCRA counsel filed an amended petition and supplemented that petition
several times.
In the amended PCRA filings, Appellant contended that his sentence of
10 to 20 years of imprisonment for risking a catastrophe was illegal because
this offense is a third-degree felony carrying a maximum sentence of 7 years
of imprisonment. In the same filings, Appellant raised multiple claims of
ineffective assistance of counsel during trial.
On January 28, 2020, the PCRA court convened a video hearing on
Appellant’s PCRA claims. The PCRA court determined that it would resentence
Appellant to 3½ to 7 years of imprisonment for risking a catastrophe while
keeping all other sentences the same, resulting in a new aggregate sentence
of 29 to 58 years of imprisonment. Appellant’s attorney requested that the
new sentence for risking a catastrophe run concurrently with the other
sentences, thereby reducing Appellant’s total sentence to 25½ to 52 years of
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imprisonment. N.T., 1/28/20, at 21-22. The Commonwealth objected to this
request.
The court denied counsel’s request for a concurrent sentence on the
charge of risking a catastrophe, relying on its comment at the 2012 sentencing
that an above-guidelines sentence was proper due to Appellant’s lack of
remorse and the threat he posed to the victim. Id. at 29-31.
After counsel informed Appellant of his right to appeal his sentence, the
Commonwealth asked the court to address Appellant’s claims of ineffective
assistance. Appellant’s counsel objected on the ground that the appeal from
the new sentence would be a direct appeal, and therefore, the Superior Court
would not permit Appellant to raise claims of ineffective assistance in the
appeal. Id. at 33-34. The court heard argument on the ineffective assistance
claims and denied relief. Id. at 34-38.
On January 28, 2020, the PCRA court entered a written order granting
relief on the sentencing issue and denying relief on the ineffective assistance
claims. On the same date, the court issued a new written judgment of
sentence imposing a sentence of 3½ to 7 years of imprisonment for risking a
catastrophe while keeping the sentences on all other counts the same as in
Appellant’s original sentence.
On February 3, 2020, Appellant filed motions seeking reconsideration of
his new sentence. On February 12, 2020, the court denied these motions. On
February 19, 2020, in each of the six consolidated cases, Appellant filed a
notice of appeal from both his new judgment of sentence and the denial of
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PCRA relief on his ineffectiveness claims. Both Appellant and the court
complied with Pa.R.A.P. 1925. By order dated May 5, 2020, this Court
consolidated all six of the above-captioned appeals for appeal purposes.
Appellant raises the following issues in these appeals:
I. Is the appellant entitled to a new sentence hearing when the
sentence of [29 to 58] years in prison was manifestly
unreasonable, unjust and abuse of discretion when it was outside
the guidelines and the protection of the community, public,
complainant and the record of the appellant do not require such a
draconian sentence?
II. Did the trial court err in denying the appellant an evidentiary
hearing when appellant asserted material issue of fact that
appellate counsel on direct appeal failed to address the issue of
speedy trial which was preserved by the trial counsel in the trial
court?
III. Did the trial court err in denying the appellant an evidentiary
hearing when appellant raised a material issue of fact that trial
defense was ineffective in failing to request a mere presence
charge to the jury?
IV. Did the trial court err in denying the appellant an evidentiary
hearing when appellant asserted a material issue of fact that trial
defense counsel was ineffective in failing to call the defense
witnesses Balance Jones and Frank Jones instead of offering a
stipulation of their testimony when these witnesses would have
directly contradicted and refuted the complainant’s testimony that
the appellant attacked the complaint in their presence?
V. Did the trial court err in denying the appellant an evidentiary
hearing when appellant raised a material issue of fact that trial
defense counsel was ineffective in failing to call the fact witness
Eric Bell whose testimony would have refuted the testimony of the
complainant?
VI. Did the trial court err in denying the appellant an evidentiary
hearing when appellant raised a material issue of fact that trial
defense counsel failed to call an alibi witness that counsel knew
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existed and where counsel filed an alibi notice concerning this
witness prior to trial?
VII. Did the trial court err in denying the appellant an evidentiary
hearing when appellant raised a material issue of fact that trial
defense counsel failed to file a motion to suppress information that
was secured by police from the appellant’s alleged cell phone
when the police did not secure a search warrant?
VIII. Did the trial court err in denying appellant an evidentiary
hearing when appellant raised the issue that trial defense counsel
was ineffective for failing to file a motion in limine disallowing the
ATF report that contained confusing and misleading information?
IX. Should these consolidated appeals be quashed when they were
consolidated by this Court and all the issues are the same and all
these cases were consolidated in the trial court for trial, sentence
and PCRA proceedings?
Appellant’s Brief at 2-3.
As a preliminary matter, we address our jurisdiction to decide the issues
raised on appeal. During the January 28, 2020 hearing, after the court
announced Appellant’s new sentence, Appellant’s counsel argued that the
court should not address Appellant’s claims of ineffective assistance, because
“the Superior Court is going to say they’re not going to hear them because it’s
a direct appeal. So I’m just telling you . . . they’ve done this to me in the past
because I had clients that wanted me to raise these issues. And I did and the
Superior Court [said] we’re not hearing this.” N.T., 1/28/20, at 33-34. In
other words, counsel contended that the entry of a new sentence was a trial
court proceeding, and therefore, PCRA proceedings such as claims of
ineffective assistance cannot take place until the conclusion of Appellant’s
direct appeal from his new sentence. We disagree.
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The court entered two orders. First, it disposed of Appellant’s PCRA
petition by denying all ineffectiveness claims while granted sentencing relief.
Second, it immediately proceeded to resentence Appellant by entering the
new judgment of sentence now also being appealed. With regard to the first
order, Pa.R.Crim.P. 901 provides that an order finally disposing of a petition
for post-conviction relief shall constitute a final order for appeal purposes.
Appellant’s appeal from the January 28, 2020 order denying the
ineffectiveness claims and granting sentencing relief disposed of all claims
raised in Appellant’s PCRA petition. Appellant properly and timely appealed
from that order within 30 days of its entry. Pa.R.A.P. 903. With regard to the
second order, the new judgment of sentence, sentencing and post-sentence
motion proceedings are “trial court function[s],” not PCRA proceedings.
Commonwealth v. Gaines, 127 A.3d 15 (Pa. Super. 2015) (en banc)
(plurality opinion). Appellant properly and timely filed a motion challenging
his new judgment of sentence, and when that motion was denied on February
12, 2020, Appellant timely filed a direct appeal from that judgment of
sentence.
Counsel’s argument to the trial court that it could not have disposed of
Appellant’s post-conviction ineffectiveness issues until the conclusion of
Appellant’s direct appeal from his new sentence is misplaced. The rule that a
court may not entertain post-conviction proceedings related to a judgment of
sentence that is pending on direct appeal, Commonwealth v. Holmes, 79
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A.3d 562, 563 (Pa. 2013),1 is not applicable here because Appellant is
appealing from a new judgment of sentence unrelated to the judgment of
sentence that was the subject of Appellant’s post-conviction proceedings.
Appellant properly filed separate and timely notices of appeal from the final
order disposing completely of his post-conviction petition claims and a direct
appeal from his new judgment of sentence. We therefore now proceed to
address the issues raised in both appeals in these consolidated proceedings.2
Appellant’s arguments II through VIII all raise claims of ineffective
assistance of counsel. To prevail on a claim of ineffective assistance, the
petitioner must plead and prove that the underling claim is of arguable merit;
that counsel had no reasonable strategic basis for the disputed action or
inaction; and that there is a reasonable probability that the outcome of the
proceeding would have been different but for counsel’s error.
____________________________________________
1 Our Supreme Court promulgated a new rule, Pa.R.A.P. 341(f), effective July
1, 2021, that provides a PCRA order that (1) grants, denies, dismisses, or
otherwise finally disposes of a petition for post-conviction collateral relief, or
(2) grants sentencing relief, but denies, dismisses, or otherwise disposes of
all other claims within a petition for post-conviction collateral relief, shall
constitute final orders for purposes of appeal.
2 Where, as here, a petitioner appeals both from the denial of post-collateral
relief and a new judgment of sentence, the prudent course for this Court is to
decide first the post-conviction claims before addressing the new sentencing
claims. This is because if we find merit in post-conviction claims and grant a
new trial, the new judgment of sentence would be vacated. Petitioners who
find themselves in this situation need to be diligent about informing this Court
in their docketing statements of related actions in order for us to consolidate
related appeals for disposition and eliminate any conflict between our review
of post-conviction claims and new sentencing claims.
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Commonwealth v. Spotz, 84 A.2d 294, 311-12 (Pa. 2014). Failure to satisfy any one of these prongs is fatal to a claim of ineffective assistance. Commonwealth v. Chmiel,30 A.3d 1111, 1128
(Pa. 2011). The PCRA court’s factual findings are binding if the record supports them, and we review the court’s legal conclusions de novo. Commonwealth v. Mason,130 A.3d 601, 617
(Pa. 2015).
Appellant claims that appellate counsel was ineffective for not
challenging the denial of his Rule 600 motion to dismiss. Appellant fails in his
brief to develop this underlying claim in any meaningful way. While his brief
states that it took more than 500 days from the date of the filing of the
complaint until the commencement of his trial, it does not detail the delays in
bringing the case to trial or the parties who caused such delays. Nor can we
find any development of this claim in Appellant’s filings in the PCRA court.
Thus, this claim lacks arguable merit. Commonwealth v. Maddrey, 205
A.3d 323, 328–29 (Pa. Super. 2019) (rejecting appellant’s Rule 600 claim on
PCRA appeal because he failed to argue the set of facts that would warrant
him relief).
Next, Appellant claimed that trial counsel was ineffective for not
requesting a “mere presence” jury instruction. According to Appellant, on
December 2, 2009, he was seen by witnesses exiting a driveway three houses
from the victim’s home and, therefore, the jury should have been advised that
he was “merely present” near the scene.
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An instruction that mere presence is insufficient to convict is not
required in every case. Commonwealth v. La, 640 A.2d 1336, 1344 (Pa.
Super. 1994) ("where a jury is fully and adequately instructed on the elements
of a crime, and where it appears that a charge on ‘mere presence’ is not
essential to their understanding of the case, the trial court may refuse to issue
a specific instruction on mere presence."); Commonwealth v. Markle, 533
A.2d 756, 761(Pa. Super. 1987) (counsel not ineffective for declining to request unnecessary mere presence instruction); Commonwealth v. Durah- El,496 A.2d 1222, 1225
(Pa. Super. 1985) (counsel not ineffective for
declining to seek mere presence instruction where jury was accurately
informed of elements of crime and proposed defense).
The trial court accurately instructed the jury concerning the elements of
the charged crimes, making clear that a conviction could only be based upon
Appellant’s illegal conduct, not his mere presence at the crime scene. For
example, in instructing the jury on the crime of burglary, the court stated,
“Pennsylvania law says that a defendant commits a crime of burglary when he
enters a building in which he does not have permission or lawful authority
to enter.” N.T. 6/27/2012, at 28 (emphasis added). The trial court’s
instructions concerning Appellant’s other charges stemming from the
December 2, 2009 incident similarly required the jury to find that he actually
entered the victim’s residence, as follows:
To find the defendant guilty of criminal trespass, you must find
that the defendant broke into [the victim’s home] in Philadelphia
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which includes entry by force, breaking, intimidation,
unauthorized opening of locks or through an opening
designed for human access.
Id. at 31 (emphasis added).
In order to find the defendant guilty of [criminal mischief], you
must find that . . . defendant damaged the tangible property, in
this case, the residence [of the victim] intentionally by causing
flooding to her home.
Id. at 33.
In order to find the defendant guilty of [violating a Protection From
Abuse Order], you must find that . . . the defendant violated that
[court order] by entering [the victim’s home] in
Philadelphia, or by any of the alleged acts inside that location
after evaluating each of the dates I have given you.
Id. at 33-34 (emphasis added).
The trial court’s instructions informed the jury of the elements of each
crime with which he was charged. The instructions made clear that any
conviction must be based on Appellant’s illegal actions. He was not entitled
to a separate instruction that mere presence was insufficient to find him guilty.
Accordingly, this claim of ineffectiveness fails.
Next, Appellant claims that trial counsel was ineffective for not calling
various alleged witnesses at trial: his mother Blanche Jones, his stepfather
Frank Jones, Eric Bell, and his girlfriend Leticia Washington. To prevail on a
claim that counsel was ineffective for failing to call a witness, Appellant must
demonstrate that: (1) the witness existed, (2) the witness was available to
testify on his behalf, (3) counsel knew or should have known about the
witness, (4) the witness was willing to testify on his behalf, and (5) the
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absence of the testimony prejudiced him. Commonwealth v. Wright, 961
A.2d 119, 148, 155(Pa. 2008). “Trial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’s testimony would have been beneficial or helpful in establishing the asserted defense.” Commonwealth v. Chmiel,889 A.2d 501, 546
(Pa. 2005).
Appellant’s argument fails with regard to Blanche Jones and Frank Jones
because their testimony was introduced into the record via stipulation. With
regard to Eric Bell, trial counsel stated during trial:
[W]e did obtain service on Mr. Bell and I spoke to him personally
on the telephone on Sunday, and it was my opinion at the time
that Mr. Bell’s testimony would not help [Appellant]. Indeed, my
own opinion was it would hurt his case. So in lieu of that, I made
a strategic decision not to ask Mr. Bell to testify in this case.
N.T. 6/26/2012, at 58–59. After hearing counsel’s assertion, Appellant
informed the court that he was satisfied with trial counsel’s representation.
N.T. 6/26/2012, at 63. Thus, he knowingly waived his right to call Bell as a
witness. Commonwealth v. Lawson, 762 A.2d 753, 756(Pa. Super. 2000) (defendant who voluntarily waives right to call witnesses during colloquy cannot later claim that trial counsel was ineffective for not calling witness); Commonwealth v. Paddy,800 A.2d 294, 315
(Pa. 2002) (rejecting
ineffectiveness claim for failure to call witnesses where defendant was
colloquied and agreed with decision not to call witness).
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Washington’s affidavit vaguely asserted that “[t]he days in question, Mr.
Prater was at my home with me, the only time he was not with me was when
he went to see his Probation Officer a Mr. Ryan Corkery, which was every
[T]uesday morning.” Washington’s affidavit did not address defendant’s
whereabouts on any of the specific dates at issue. In fact, Washington did not
specify any date on which she and defendant were together. If taken literally,
Washington’s affidavit asserts that she was with defendant all day every day
for months prior to his arrest.
Appellant fails to show that Washington’s testimony would have altered
the trial outcome. Her proffered testimony would have contradicted every
witness at trial, including Appellant’s own witnesses. Blanche Jones,
Appellant’s mother, averred in her own affidavit that she was “an eyewitness
to one of the crimes [Appellant] allegedly committed at [her] home.” Jones’
stipulated testimony at trial contradicted Washington’s claim that defendant
was at home with her all day every day. See Commonwealth v. Harvey,
2020 WL 4883884, —A.3d— (Pa. Super. 2020) (non-precedential decision)
(appellant’s uncalled witness’s proffered testimony would not have been
beneficial because it would have contradicted appellant’s other witness); see
also Pa.R.A.P. 126(b) (permitting citation of non-precedential memorandum
decisions filed after May 1, 2019 for persuasive value).
Washington’s putative testimony also was refuted by the victim’s
coworker, who testified that she saw Appellant walk around the victim’s car
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on November 30, 2010, before he smashed the car windows. Appellant could
not have been with Washington for all of that day. N.T. 6/26/2012, at 4–6.
In addition, the victim’s friend saw Appellant leaving the driveway behind the
victim’s home when she came by and saw the flooded house on December 2,
2009. Id. at 51–54. He was arrested that same day, and again on August
20, 2010, after planting a pipe bomb and again flooding her home. N.T.
6/25/2012, at 23, 45–46; N.T. 6/26/2012, at 51–52, 152–57. Thus, Appellant
could not have been with Washington for all of that day as well.
In addition, Washington’s alleged alibi failed to foreclose the possibility
of Appellant’s telephone call to the police on August 18, 2010, in which he
claimed that the victim was going to kill herself with a pipe bomb. N.T.
6/25/2012, at 22, 46.
Since Washington’s testimony would not have been beneficial to
Appellant, the PCRA court properly denied relief on this issue.
Next, Appellant argues that trial counsel was ineffective for not seeking
to suppress evidence of Appellant’s cell phone number obtained by a detective
without a warrant. This claim fails, because at the time of Appellant’s trial
and direct appeal, the law relating to warrantless searches of cell phones did
not require suppression. The law on this subject did not change until after the
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conclusion of Appellant’s direct appeal. His trial attorney cannot be found
ineffective for failing to anticipate this change.3
The record reflects that Detective Fredericksdorf arrested Appellant with
a warrant and found a cell phone in Appellant’s pocket. When the detective
took Appellant to the police district, he called a supervisor in the police radio
unit to find out the phone number of the call warning the police about the
bomb in the victim’s house. The detective called that number, and Appellant’s
cell phone rang. Without obtaining a second warrant to search the cell phone,
the detective looked at the originating phone number displayed on Appellant’s
cell phone and recognized it as the number that he had just dialed. N.T.
06/26/2012, at 45–47.
A search occurs when police intrude upon a constitutionally protected
area without the individual's explicit or implicit permission. Florida v.
Jardines, 569 U.S. 1, 6 (2013). To constitute such an intrusion, the action
need not uncover something “of great personal value”; even a small,
seemingly insignificant act of information gathering by police in a
constitutionally protected area is a search.
At the time of Appellant’s trial in 2012 and direct appeal over the next
two years, Pennsylvania law provided that when the police seized a cell phone
____________________________________________
3 Although the PCRA court did not deny relief for this reason, we may affirm
its ruling for any reason supported by the record. In Re A.J.R.-H., 188 A.3d
1157, 1175-76 (Pa. 2018).
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found in plain view during the execution of a valid search warrant, the police
were not required to obtain a second warrant before searching the cell phone’s
memory chip. Commonwealth v. McEnany, 667 A.2d 1143, 1149 (Pa.
Super. 1995).
In 2014, the United States Supreme Court granted certiorari in Riley v.
California and United States v. Wurie, 573 U.S. 373(2014) (“Riley”), to resolve a split in lower courts as to “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” Id. at 378. In its June 25, 2014 decision, the Supreme Court held in Riley that “in the absence of an applicable exception, any search of a cell phone requires a warrant. This is because, like one’s home, an individual’s expectation of privacy is in the cell phone itself, not in each and every piece of information stored therein.” Commonwealth v. Fulton,179 A.3d 475, 487
(Pa. 2018) (analyzing Riley).
On July 11, 2014, citing Riley, this Court held in Commonwealth v.
Stem, 96 A.3d 407 (Pa. Super. 2014), that a warrantless search of the
defendant’s cell phone incident to his arrest for criminal trespass, a matter
unrelated to his cell phone, violated the defendant’s Fourth Amendment rights.
More recently, in early 2018, again citing Riley, our Supreme Court held in
Fulton that a detective violated the defendant’s constitutional rights following
his arrest when, without a warrant, he powered his cell phone on, navigated
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its menus to find its assigned number, and monitored it for incoming calls and
messages. Fulton, 179 A.3d at 488-89.
Had these decisions been in existence at the time of Appellant’s
prosecution, Appellant’s attorney might have had reason to file a motion to
suppress on the ground that Detective Fredericksdorf violated his
constitutional rights by looking at the number displayed on Appellant’s cell
phone without a warrant. These decisions, however, were not in effect at the
time of Appellant’s trial. The first case in this chain, Riley, was not issued
until June 25, 2014, one month after the conclusion of Appellant’s direct
appeal.4 The law in effect at the time of trial, McEnany, did not support a
motion to suppress. Because “counsel's stewardship must be judged under
the existing law at the time of trial,” Commonwealth v. Colon, 230 A.3d
368, 377 (Pa. Super. 2021), counsel “cannot be deemed ineffective for failing
to predict future developments or changes in the law” such as Riley, Stem
and Fulton.
Appellant also argues that that trial counsel was ineffective for not filing
a motion in limine to exclude evidence of the fuses found near the bomb that
he planted in the victim’s home. This claim is without merit.
____________________________________________
4 On April 7, 2014, this Court affirmed Appellant’s judgment of sentence.
Appellant did not appeal to our Supreme Court, so his direct appeal concluded
on May 7, 2014.
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The police recovered two plastic bags containing rolls of green fuse from
the victim’s basement, one opened and one unopened. Appellant’s fingerprint
was found on the opened bag. The fuse in the opened bag was not the same
as the one used in the bomb planted by Appellant in the victim’s home. N.T.
06/22/2012, 69, 76–78.
The evidence of the fuses was relevant and admissible. The
Commonwealth presented abundant evidence identifying Appellant as the
person who left the bomb in a red and white cooler in the victim’s basement.
The call to 911 falsely informing authorities that the victim wanted to kill
herself with a bomb originated from Appellant’s cell phone. N.T. 06/25/2012,
22–23; N.T. 06/26/2012, 45–46. Before planting the bomb, Appellant twice
tried to destroy the victim’s home by flooding it. N.T. 06/25/2012, 15–16,
24–26; N.T. 06/26/2012, 51–52. In this context, the evidence that
Appellant’s fingerprint was on a bag containing incendiary fuses in the
basement near the bomb was relevant to show that Appellant had access to
bomb-building material, to prove his ongoing plan to destroy the victim’s
house, and to prove his identity as the person who planted the bomb in the
victim’s basement. See Commonwealth v. Christine, 125 A.3d 394, 402
(Pa. 2015) (shank belonging to defendant that was not used in actual crime
was admissible because it showed his familiarity with and ability to create
weapon used to murder victim); Commonwealth v. Williams, 640 A.2d
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1251, 1260 (Pa. 1994) (evidence of guns not used in crime admissible to show
that defendant had been at scene of the crime).
We now address Appellant’s sentencing claim.
Appellant contends that the PCRA court abused its discretion by refusing
to run his new sentence for risking a catastrophe concurrently with his other
sentences. Appellant argued that his sentence of 10 to 20 years of
imprisonment for risking a catastrophe was illegal because this offense is a
third-degree felony carrying a maximum sentence of seven years’
imprisonment. The court resentenced Appellant to 3½ to 7 years of
imprisonment on this charge but kept Appellant’s sentences on all other
convictions the same and declined to run the sentence for risking a
catastrophe concurrently with the other sentences. Appellant filed a motion
challenging his new sentence that the court denied. We find no abuse of
discretion.
Risking a catastrophe is a third-degree felony, 18 Pa.C.S.A. § 3302(b),
carrying a maximum sentence of seven years’ imprisonment. 18 Pa.C.S.A. §
1103(3). The PCRA court correctly held that Appellant’s sentence of 10-20
years’ imprisonment was illegal. Furthermore, the PCRA court had the
authority to vacate his entire sentence and enter a new sentence on all counts.
Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999). This
is because Appellant effectively challenged the entire sentencing plan by
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contending that one of several interdependent sentences was illegal. Id. at
1290.
Appellant does not challenge (nor can he) the PCRA court’s authority to
enter a new sentence on all counts. He does claim, however, that the new
aggregate of 29 to 58 years of imprisonment is unreasonable and instead,
should be 25½ to 51 years, a total reached by making the sentence for risking
a catastrophe concurrent with the other sentences. Appellant’s claims
implicate the discretionary aspects of sentencing. We note:
[A]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction. We determine
whether the appellant has invoked our jurisdiction by considering
the following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 9781(b).
***
What constitutes a substantial question must be evaluated on a
case-by-case basis. A substantial question exists “only when the
appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” A
claim that a sentence is manifestly excessive might raise a
substantial question if the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms
underlying the sentencing process.
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Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016).
Here, Appellant filed a timely notice of appeal and raised these
discretionary sentencing claims before the trial court in post-sentence
motions. Additionally, his appellate brief properly includes the required
Pa.R.A.P. 2119(f) statement. Appellant presents a substantial question for
our review by asserting that the court failed to state sufficient reasons for
imposing sentence outside the sentencing guidelines. Commonwealth v.
Beatty, 227 A.3d 1277, 1287 (Pa. Super. 2020).
The Commonwealth incorporated into the record the notes of testimony
from Appellant’s initial sentencing hearing in 2012. N.T., 1/28/20, at 23.
Appellant’s prior record score was one, N.T., 11/2/12, at 1, and his highest
offense gravity score, 10, yielded a guidelines sentence of 30 to 42 months.
Id. at 13. The record demonstrates, however, that Appellant had no remorse
for his acts and represented a grave threat to the victim and her children.
Moments before Appellant addressed the court, he smiled at the victim
and the arresting officer and said, “I’ll see you again in court.” Id. at 26.
When Appellant addressed the court, instead of expressing remorse, he
assailed the arresting officer for allegedly “blatantly chang[ing] his statement
many times.” Id. at 28. He added, “For [the officer] to get on the stand and
blatantly say I’m a threat to him is an insult to me because I’m a very humble
person.” Id. at 28-29. He then criticized the victim for “blatantly lying” to
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obtain his conviction and labeled her testimony as an “insult” because he was
a “very good father.” Id. at 29.
The court responded, “[Y]ou’re showing me now is you have no
empathy. You have no caring or concern for the harm that you have caused
this woman and your children by your actions . . . [Y]ou don’t even feel the
pain of someone you’re supposed to love.” Id. at 30-31. Appellant answered
to the court, “You blatantly cut me off,” id. at 31, and then denied hitting the
victim or placing a bomb in her house. Id. at 32. The court replied:
I have gone outside of the sentencing guidelines with regard to
charges for a number of reasons. You just didn’t know when to
stop. You didn’t know when to stop. You start out on contempt
of court back in November of 2009. Then you just keep picking it
up. You go in and flood her home. You harassed her, assaultive
behavior, just make her life miserable.
Id. at 44. The court then asked, “You think it’s funny?” Appellant answered,
“Your Honor . . . I’m just sitting here listening to you.” Id.
The court continued:
And the problem is you don’t get [it]. You still don’t get it. You
started out in terms of talking to you -- the only thing you were
concerned about was you, you, you. You didn’t have -- you didn’t
give a damn about how she felt, and the impact on your children,
what she described to you in the letter, how your conduct and the
discord in that home has affected your children; let alone, there
being a pipe bomb in the home, which could have killed her and
your children. And you don’t get it. You just kept picking it up,
picking it up, escalating it. And you say you love, I don’t know
what kind of love you practice. And you still don’t get it, because
you’re sitting there frustrated and ready to jump out of your skin
of what I’m trying to tell you at this point, but maybe with all this
time ahead of you, maybe you’ll get it at some point. But you
need some therapy and some help. And counsel may be well-
spoken in terms of his appeal to the Court that you may not be a
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threat to others, but you are, because the pipe bomb could have
hurt other people other than the persons you intended it to hurt.
But you are most definitely a threat to this woman. I have no
doubt that if you were out, you would continue your harassment.
And not alone harassment, but you wouldn’t be satisfied until you
got her out of the picture and harmed her completely. Period.
That’s the threat. You can shake your head all you want to, but
everything that you have done in this courtroom has
demonstrated to this Court -- first of all, no remorse. You’re
narcissistic. And you have no concern for her well-being or the
well-being of your children. You can shake your head and say all
you want, but your actions speak louder than your words.
Id. at 44-46. Appellant responded, “All these allegations are false allegations
. . . The jury didn’t look completely at the evidence. They just looked at a
woman cry on the stand. I’m not going to allow what a jury found me guilty
of to change my character.” Id. at 46-47. The court stated:
You have no character, because a man wouldn’t sit up here and
put this woman, who had your children, through the hell that you
have put her through. And I would do everything I can to make
sure that you don’t harm her or put your children . . . Those are
the reasons why I have gone out of the sentencing guidelines.
Id. at 47.
The record demonstrates ample justification for Appellant’s lengthy
sentence. His relentless and escalating pattern of terror against the victim,
his egregious acts of repeatedly flooding her house and placing a pipe bomb
in her basement, his threat in court to the arresting officer and victim, his
arrogant denial of guilt, his insistence that he was an excellent father to the
children whom he endangered, his refusal to express remorse, and his
defiance towards the court illustrate his danger to the community in general
and to the victim and her children in particular. Although his sentence was
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substantial, it was a proper exercise of the court’s discretion. See
Commonwealth v. Booze, 953 A.2d 1263, 1279-80 (Pa. Super. 2008) (trial
court’s reasons for sentence of 23 to 46 years for robbery, false imprisonment,
burglary, theft, and criminal conspiracy to commit robbery and burglary were
sufficient; defendant showed lack of remorse, he made threatening comments
about others to probation officer contending that police set him up and that
he would get them back after he was released, he had prison misconducts,
facts of crimes showed that male in apartment was duct taped and bound with
rope, all four robbers used guns, and defendant was ringleader of group,
defendant committed further crimes after home invasion, and defendant was
extremely dangerous individual and was danger to community).
In his final argument, Appellant states that we should not quash these
appeals because the issues in all appeals are the same and because the lower
court consolidated these cases for trial, sentence and PCRA proceedings. We
have explained above that we have jurisdiction to address all issues raised in
this appeal. We now have addressed all issues and find no reason to overturn
the lower court’s orders.
For these reasons, we affirm the order granting in part and denying in
part Appellant’s amended PCRA petition and affirm the order imposing
Appellant’s new judgment of sentence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2021
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