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HomeMy WebLinkAbout98-0991 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. NICHOLAS ALBERT PRACHT, : NO. 98-0991 CRIMINAL TERM Defendant OPINION PURSUANT TO PA. R. APP. P. 1925 HOFFER, P.J.: <Y- In this opinion, the Court addresses Defendant's appeal to the Superior Court from a judgment of sentence imposed December 10, 1998. Defendant, Nicholas Albert Pracht, was charged with: (1) four counts of involuntary deviate sexual intercourse with a person less than sixteen years of age, pursuant to 18 Pa. C.S.A. §3123; (2) four counts of statutory sexual assault, pursuant to 18 Pa. C.S.A. §3122.1; and (3) four counts of corruption of minors, pursuant to 18 Pa. C.S.A. §6301. Defendant, determined by the Court to be indigent, was assigned a court appointed counsel on May 28, 1998. Defendant was unhappy with the representation and a second court appointed counsel was assigned July 21, 1998. Defendant again came in conflict with his counsel and asked the Court for permission to represent himself at trial. On October 13, 1998, Defendant's motion to represent himself was granted and his second court appointed counsel was ordered to remain as stand-by counsel at trial. 98-0091 CRIMINAL A jury trial was held in this matter, October 26 through 28, 1998. Before the case was sent to the jury for deliberation, the statutory assault charges were dismissed. Defendant was found guilty of all other counts charged. For each of the involuntary deviate sexual intercourse counts, the Court imposed concurrent sentences of imprisonment for six to fifteen years in a state correctional institution. Defendant was also ordered to pay the costs of prosecution for each involuntary deviate sexual intercourse count and one charge of corruption of minors.1 After trial, Defendant's stand-by counsel asked to withdraw from the case. On December 23, 1998, counsel's motion to withdraw was granted and a new counsel was assigned to handle Defendant's appeals. Defendant chose not to file a post sentence motion before this Court. The Court received notice of direct appeal to the Superior Court on January 7, 1999 and ordered Defendant to file a concise statement of matters complained of on appeal. After the statement was received, the Court directed Defendant to clarify some of his allegations by an order dated January 20, 1999. As of this date, the Court has not received clarification from Defendant. We will address the matters set out in Defendant's original statement as directly as possible. ~ The Court combined the four corruption of minors counts into one charge for sentencing purposes. 98-0091 CRIMINAL Allegation One: Sentence Imposed Was Outside Sentencing Guidelines and Mandatory Minimum Should Not Have Applied Defendant claims that the sentence he received was outside the sentencing guidelines and that the mandatory minimum should not have applied. This Court disagrees. The sentencing guidelines provide a starting point for setting sentences. See Commonwealth v. Jones, 433 Pa. Super. 266, 276, 640 A.2d 914, 919 (1994). The Pennsylvania Code governs sentencing guidelines. 204 Pa. Code §303.1 et seq. The Code states: (a) The procedure for determining the guideline sentence shall be as follows: (1) Determine the Offense Gravity Score as described in §303.3 and §303.15. (2) Determine the Prior Record Score as described in §303.4 - §303.8. (3) Determine the guideline sentence recommendation as described in §303.9 - §303.14, including Deadly Weapon Enhancement and Youth/School Enhancement (§303.10) and aggravating or mitigating circumstances (§303.13). 204 Pa. Code §303.2. A basic sentencing matrix, integrating all three steps, can be found at 204 Pa. Code §303.16. Defendant, in the case at bar, was charged with and convicted of involuntary deviate sexual intercourse, an offense with an Offense Gravity Score of 12. 98-0091 CRIMINAL Defendant's Prior Record Score was determined to be 2. Using the sentencing matrix, Defendant's standard sentence range was 60 to 78 months. Defendant received a sentence of 72 to 180 months in a state penitentiary, clearly within the sentencing guidelines. No error was committed by the Court. Mandatory sentencing provisions are constitutional. See Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). The mandatory sentence for the crime of involuntary deviate sexual intercourse, committed against a person under 16 years of age, is imprisonment of not less than five years. 42 Pa. C.S.A. §9718(a)(1). "The legislature has left no room in the statute for prosecutorial or judicial discretion to sentence to a lesser term. Commonwealth v. Heath, 528 Pa. 316, 391,597 A.2d 1135, 1136 (1991). In the case at bar, Defendant's victim was under 16 at the time the crimes charged were committed. Pursuant to the statute, the Court was required to impose the mandatory minimum sentence. Although the actual sentence imposed exceeded the mandatory minimum by 12 months, the Court did not err in imposing a minimum 72 month term that was well within the sentencing guidelines. Allegation Two: Ineffective Assistance of Pre-trial Counsel Defendant's Statement of Matters alleges that his pre-trial counsel was ineffective for failing to fully prepare for trial and for failing to negotiate a 98-0091 CRIMINAL reasonable plea bargain. Defendant is presenting this claim for the first time on appeal. The issue of presenting for the first time on appeal a claim for ineffective assistance of counsel has been addressed in a number of appellate decisions. See, e.g. Commonwealth v. Montalvo, 434 Pa. Super. 14, 641 A.2d 1176 (1994) (holding that no waiver occurs if issue raised at earliest opportunity; remand for evidentiary hearing unnecessary if appellate record sufficient to facilitate review); Commonwealth v. Thuy, 424 Pa. Super. 482, 623 A.2d 327 (1993) (holding that remand for evidentiary hearing proper where appellate record not sufficient to facilitate review). This Court has not previously ruled on nor reviewed Defendant's claim of ineffective assistance of his pre-trial counsel. Because the issue is now before the Superior Court on direct appeal, it is no longer appropriate for this Court to express an opinion on the merits of Defendant's claim. Allegation Three: Failure to Sequester Commonwealth Witnesses Defendant claims that the Court's failure to sequester Commonwealth witnesses unfairly prejudiced him. The purpose of sequestration is to prevent a witness from molding his testimony with that presented by other witnesses. See Commonwealth v. Henry, 550 Pa. 198, 361,706 A.2d 313, 320 (1997). A request for sequestration must be specific and supported by a showing that the interests of justice require it. See id. The decision to sequester witnesses is left to the 98-0091 CRIMINAL discretion of the trial judge. See Commonwealth v. Kravitz, 400 Pa. 198, 218, 161 A.2d 861,870 (1960). Granting a request for sequestration is appropriate in cases where there are several witnesses to the same event, and each witness sees something slightly different. Sequestration would prevent a witness from tailoring his or her testimony to that of another witness who has testified earlier. In the present case, the Court did not make a decision to sequester Commonwealth witnesses because a request for sequestration was never made. This was a case of the word of the victim against the word of Defendant. The victim's testimony could not have been molded by testimony presented by other witnesses because the victim testified first: Consequently, there was no need to sequester witnesses and Defendant was not unfairly prejudiced. Allegation Four: Failure to Conduct An Individual Voir Dire Defendant complains that he was unfairly prejudiced by the Court's failure to conduct an individual voir dire of all prospective jurors at the time of jury selection. Instead, the Court used a list system of challenges method, questioning prospective jurors as a group about their fitness for service on a jury. The purpose of voir dire is to impanel a fair and unbiased jury. See Commonwealth v. Paolello, 542 Pa. 47, 69, 665 A.2d 439, 450 (1995). "In capital cases, the individual voir dire method must be used unless the defendant waives 98-0091 CRIMINAL that alternative." Pa. R. Crim. P. 1106(e). In non-capital cases, the individual voir dire method or the list system of challenges method may be used to select jurors and alternates. Id. The trial court has discretion to determine in non-capital cases whether voir dire will be conducted individually or in a group. See Commonwealth v. Hathaway, 347 Pa. Super. 134, 144-45, 500 A.2d 443, 448 (1985). The case at bar was not a capital case. Defendant was charged with involuntary deviate sexual intercourse and corruption of minors. No excessive pre- trial publicity tainted the jury pool against Defendant. The Court exercised its discretion by employing the list system of'challenges method for selecting a fair and unbiased jury. Defendant was not unfairly prejudiced in the voir dire process. Allegation Five: Failure to Include Defendant's Caselaw on Credibility in the Charge to the Jury Defendant alleges that the Court committed error when it failed to include Defendant's caselaw on credibility in the charge to the jury. Defendant informed the Court before the charge to the jury was given that he had relevant caselaw on credibility that he wished included in the charge. Trial Transcript, Vol. II, p. 438. The Court told Defendant that it would give a credibility instruction. Id~ Through 7 98-0091 CRIMINAL his stand-by counsel, Defendant agreed to inform the Court after the charge was given of any additions or changes that he would like included in the charge. Id._~. After the charge was completed, Defendant informed the Court that he was satisfied with the charge given. Trial Transcript, Vol. II, p. 454. In reviewing jury instructions, the instructions must be looked at as a whole. Commonwealth v. Gibson, 547 Pa. 71, 91, 688 A.2d 1152, 1162 (1997), cert. denied, _ U.S._, 118 S. Ct. 364, 139 L. Ed.2d 284 (1997). "The trial court has broad discretion in its phrasing of jury instructions so long as the instructions given adequately reflect the law." Id. When viewed as a whole, the chargb given to the jury accurately reflected the applicable law. Trial Transcript, Vol. II, pp. 442-45. The Court correctly instructed the jurors that they were "the sole judges of the credibility of each and every witness who has testified." Trial Transcript, Vol. II, p.445. No abuse of discretion occurred when the Court gave the jury an instruction that adequately reflected the law. Allegation Six: Denial of Defendant's Request to Raise An Affirmative Defense of Mental Infirmity or Diminished Capacity Defendant claims that he should have been allowed to raise the affirmative defense of mental infirmity or diminished capacity. Defendant filed notice of his intent to use a defense of diminished capacity on August 17, 1998. Defendant 8 98-0091 CRIMINAL requested permission to raise the defense before trial began. Transcript of Discussion before Jury Selected, hereinafter "Discussion Transcript", p. 24. The Court informed Defendant that diminished capacity was not a defense to Defendant's crimes and that no testimony would be heard on the matter. Discussion Transcript, pp. 24-25. After revieWing all of Defendant's requests, the Court reiterated that a defense of diminished capacity was improper and would not be allowed. Discussion Transcript, pp. 42-43. A defendant must give notice of his intent to raise a defense of diminished capacity or mental infirmity. Pa. R. Crim. P 305(C)(1)(b). The Pennsylvania Rules of Criminal Procedure seem to contemplate'that the defense of diminished capacity results from mental infirmity, therefore the defense of diminished capacity is recognized, not the defense of mental infirmity. Pa. R. Crim. P. 311, Cmt. Diminished capacity is available as a defense in very limited circumstances. Commonwealth v. Legg, 551 Pa. 437, 444, 711 A.2d 430, 433 (1998). In Pennsylvania, diminished capacity is only available to a defendant who is "attempting to prove that he was incapable of forming the specific intent to kill; if the defendant is successful first degree murder is mitigated to third degree." Id. See also Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1996), cert. denied 516 U.S. 1121, 116 S.Ct. 931,133 L. Ed.2d 858 (1996). In employing the 98-0091 CRIMINAL diminished capacity defense, a defendant in a murder case admits general criminal culpability in attempting to reduce the degree of guilt from first degree to third degree. Le__~gg at 444, 711 A.2d at 433. In the case at bar, the defense of diminished capacity was unavailable to Defendant. Before and during trial, Defendant made no admissions of guilt as required by the defense. Defendant was charged with involuntary deviate sexual intercourse and corruption of minors. He was not charged with first degree murder, the only crime in which Pennsylvania allows the defense of diminished capacity. No error was committed by the Court when it denied Defendant the use of the diminished capacity defense. Allegations Seven: Suppression of Defense Evidence Defendant claims that the Court erred when it suppressed evidence he planned to use at trial. Because Defendant did not clarify his statement of matters complained of on appeal as requested, the Court must assume that Defendant is alleging that the Court erred when it refused to allow Defendant to present witnesses and visual aids related to a diminished capacity defense. "The admission of evidence is committed to the sound discretion of the trial court and an appellate court may reverse only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Bardo, 551 Pa. 140, 153, 709 A.2d 871, ]0 98-0091 CRIMINAL 877 (1998). Defendant did not file an omnibus pre-trial motion before trial was to begin. He arrived on the first day scheduled for trial with a list of requests, in the form of a pre-trial motion, that the Court dealt with point by point, on the record, before jury selection began. See Discussion Transcript. Defendant requested: (1) a chance to speak with the witnesses he subpoenaed because he could not speak to them from jail2; (2) an exception from the "rape shield" law to allow him to attack the victim's credibility by showing the victim's long history of lying; (3) copies of transcripts from a Protection from Abuse hearing and a pre-trial hearing in an earlier adjudicated corruption of minors ch~.rge; (4) a copy of the victim's criminal record; (5) a copy of the transcript from Defendant's preliminary hearing in this matter; (6) an order issued to the Cumberland County Prison that Defendant be able to use glue and scissors, have more that thirty Xerox copies per week and get extended law library time for preparing his defense; (7) that the fourth count of each of the charges filed against him be quashed; (8) an inventory list of all items confiscated from Defendant's home; (9) suppression of the preliminary hearing which he claimed contained an "illegal confession" by the victim; (10) that the Court 2 Before trial, Defendant was being held in the Cumberland County Prison for previous parole violations. ]] 98-0091 CRIMINAL accept his proposed witness list; and (11) that the Court obtain and allow Defendant to use stage props to aid in his defense. Discussion Transcript, pp. 4- 12. The Court made the following rulings on Defendant's requests: (1) Defendant, aided by his stand-by counsel, was permitted to speak to the subpoenaed witnesses, have access to glue, scissors and moro than thirty Xerox copies per week, and, if possible, listen to any audio taped proceedings related to this case; (2) Defendant was not given copies of transcripts from earlier proceedings or the preliminary hearing held in this matter because the Court found none to be in existence; (3) Defendant's mo[ion to suppress the preliminary hearing was denied; (4) the fourth counts of each charge were not quashed or dismissed because the Commonwealth had sufficient evidence to go forward; and (5) the Court and the District Attorney agreed that the "rape shield" law did not apply under these circumstances and Defendant was allowed to attack the victim's credibility as part of his defense. Discussion Transcript, pp. 12-20. Before trial began, the District Attorney gave Defendant copies of the victim's criminal record and the inventory of the items confiscated from Defendant's home. Defendant presented the Court with a list of eighteen potential witnesses. The Court took an offer of proof on each witness before ruling on admissibility. 98-0091 CRIMINAL The Court did not allow Defendant to present any witnesses whose testimony was related to the defense of diminished capacity. Discussion Transcript, pp. 21-40. For instance, the Court ruled that Defendant could not present: (1) Madame Lola, a psychic, who was to testify that abused persons develop hypersensitivity to other abused persons; (2) Sergeant York, a bomb expert, who would compare relationships between lovers with the results of a fusion bomb explosion; and (3) a series of doctors and mental health experts who would discuss Defendant's love addiction and his inability to conform his behavior to the social norm because of his own history of sexual abuse. Id. Defendant also requested the use'of stage props to aid in his defense. Discussion Transcript, p. 8. The Court did not allow Defendant to use the props requested, a two-bulb lamp and two clear water glasses, because the props were designed to further the diminished capacity defense. As discussed above, the defense of diminished capacity was unavailable to Defendant. Consequently, the Court did not allow Defendant to present witnesses or employ stage props in support of a diminished capacity defense. The Court did not abuse its discretion in ruling on the admissibility of Defendant's witnesses and stage props. Allegation Eight: Failure to Suppress Commonwealth Evidence 98-0091 CRIMINAL Defendant's final allegation is that the Court failed to suppress evidence used by the Commonwealth at trial. Without the aid of an omnibus pre-trial motion or a clarification of Defendant's statement of matters complained of on appeal, it is not clear what evidence Defendant believes was admitted in error. In discussions held before trial, Defendant did request suppression of his preliminary hearing and a copy of the inventory of items seized from his home during a search. Defendant may be alleging error because the Court denied his request to suppress and did not exclude any evidence taken from Defendant's home. Also, various exhibits presented by the Commonwealth were admitted at trial. It is possible that Defendant is alleging that additional error ~ccurred at this stage of trial. Defendant claimed that the preliminary hearing contained an "illegal confession", made by the victim to police, without the victim's mother being present. Discussion Transcript, p. 10. The Court refused to suppress the preliminary hearing. Discussion Transcript, p.12. Suppression is only proper where the reliability of evidence is called into serious question or government conduct is so egregious that suppression represents the only solution. Commonwealth v. Daniels, 537 Pa. 464, 477-78, 644 A.2d 1175, 1182 (1994). In the case at bar, the victim testified at trial and the jury had the opportunity judge his reliability. Suppression of the preliminary hearing was not necessary to protect 14 98-0091 CRIMINAL Defendant's interests. After receiving a copy of the inventory, Defendant made no request to suppress anything taken from his home. Trial testimony reflects that the Commonwealth, admittedly, took nothing useful to the case from Defendant's home. Discussion Transcript, pp. 207-13. No evidence seized from Defendant's home was used against him therefore suppression was not necessary and no error occurred. The Commonwealth's exhibits, including letters written by and to Defendant, were marked for identification without objection from Defendant. See Trial Transcript, Vol. I, pp. 84, 122, 157-60. At'the time of identification the content of the letters was discussed and Defendant failed to object. Id. At the close of the Commonwealth's case in chief, the District Attorney moved for the admission of Commonwealth exhibits 1 through 27. Trial Transcript, Vol. I, p. 271. At that time, Defendant objected to the admission of Commonwealth exhibits 9, 10, 16, 18, 19, 20, 21,22, and 23. Trial Transcript, Vol. I, p. 273-74. All exhibits, including those objected to by Defendant, were admissible, enabling both the District Attorney and Defendant to refer to the contents in closing arguments. Trial Transcript, Vol. I, pp. 277-79. At the close of trial, the Court again discussed the Commonwealth exhibits with Defendant and the District Attorney. Trial Transcript, Vol. II, pp. 455- 98-0091 CRIMINAL 58. All exhibits were deemed admissible but the Court did not allow the jury to take Commonwealth exhibits 6 through 23 with them into deliberations, in recognition of Defendant's objections. Id. Defendant did not object to the Court's treatment of the exhibits. The jury's access to the exhibits was limited because some exhibits contained impermissible references to Defendant's mental state. Suppression was not requested or necessary. The admission of evidence is left to the sound discretion of the trial court and will only be overturned with a showing that the trial court abused its discretion. Commonwealth v. Bardo, 551 Pa. 140, 153, 709 A.2d 871,877 (1998). Because the Court had sound reasons to deny Defendant's motion to suppress the preliminary hearing and to admit exhibits offered by the Commonwealth, no abuse of discretion occurred.