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HomeMy WebLinkAboutCP-21-CR-0002094-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2091-2009 : CHARGE: 1. INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE; : 2. STATUTORY SEXUAL ASSAULT; : 3. INDECENT ASSAULT; : 4. CORRUPTION OF MINORS : 5. UNLAWFUL CONTACT WITH A MINOR; : 6. PROSTITUTION AND RELATED : OFFENSES : AFFIANT: PTL. JEFFREY FRANKS V. : : CP-21-CR-2094-2009 : CHARGE: 1. INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE (3 COUNTS); : 2. STATUTORY SEXUAL ASSAULT : (3 COUNTS); : 3. INDECENT ASSAULT (3 COUNTS); : 4. CORRUPTION OF MINORS (3 COUNTS); : 5. UNLAWFUL CONTACT WITH A : MINOR (3 COUNTS); : 6. PROSTITUTION AND RELATED : OFFENSES (3 COUNTS) RONALD FRANK : AFFIANT: PTL. JEFFREY FRANKS IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Ebert, J., October 22, 2010 - Defendant was convicted in a non-jury trial on March 12, 2010, and now appeals 1 the following matters: 1. Whether the Suppression Court committed reversible error when it denied Defendant’s Pre-Trial Motion to Suppress Defendant’s confession. 1 Concise Statement of Facts of Complaint on Appeal, filed Sept. 29, 2010. 2. The sentencing court’s error in consecutive sentence on one count of Unlawful Contact with a Minor as raised in the Defendant’s Motion for Modification of Sentence. Statement of Facts This Court previously entered findings of fact and conclusions of law in its February 19, 2010 Order of Court denying the Defendant’s Omnibus Pre-Trial Motion. Defendant stipulated to additional facts in a non-jury trial held on March 12, 2010. Procedural History Defendant was arrested on the above-captioned charges on July 1, 2009 for actions occurring at various times with multiple juvenile victims from the year 2000 through 2007. Defendant filed a Petition for Reduction of Bail on September 3, 2009, which was denied after a hearing on October 16, 2009. On November 16, 2009, Defendant filed an Omnibus Pre-Trial Motion which included a Motion to Suppress and a Motion for Change of Venue. A suppression hearing was held on December 19, 2009, and Defendant’s Motion to Suppress was denied on February 19, 2010. Defendant stipulated to all facts provided by the Commonwealth in a non-jury trial on March 12, 2010, and Defendant was found guilty of all charges. On August 3, 2010, this Court determined that Defendant was a Sexually Violent Predator and Defendant was ordered to register as required under 42 Pa. C.S.A. § 9795.3. Defendant was sentenced on August 3, 2010. On August 13, 2010, Defendant filed a Motion for Modification of Sentence, which this Court denied on September 10, 2010. 2 Discussion A. The Court did not err in suppressing Defendant’s confession. Defendant argues that his confession given on June 11, 2009 to Officer Jeffrey Franks at the West Shore Regional Police Department should be suppressed because his right to counsel was violated. As determined in the suppression hearing, there is no violation of Fifth Amendment rights, which are triggered only by a custodial interrogation. However, we will address that issue briefly here because Defendant appeals partially on Fifth Amendment grounds. Any challenge of a violation to the Fifth Amendment right to counsel is based on the assertion that Miranda warnings were not properly given. A defendant not undergoing a custodial interrogation cannot assert a denial of his right to counsel as articulated in Miranda. See Com. v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009). To determine if an interview rises to the level of a custodial interrogation, we must view the totality of the circumstances to determine whether a reasonable person in the suspect's position would have believed he was under arrest. Com. v. Housman, 986 A.2d 822, 839 (Pa.2009) (citing Stansbury v. California, 511 U.S. 318, 323 (1994)). Defendant was not in custody during either the March 12, 2008 or the June 11, 2008 interviews with police. In both instances, he voluntarily came to the police station for the interview, he understood that he was free to leave at any time, and he acknowledged that he knew he would not be arrested at the conclusion of the interview. Accordingly, this Court properly found that the interviews with Defendant on March 12, 2008 and on June 11, 2009 were non-custodial. 3 Furthermore, the Pennsylvania Supreme Court has stated that “a confession given after a defendant invokes his right to counsel need not be suppressed where the defendant: (1) initiated further communication, exchanges, or conversations with the police, and (2) knowingly and intelligently waived the right to counsel.” Com. v. Martin, 1 A.3d 868, 878-879 (Pa. 2010) (citing Com v. Edwards, 903 A.2d 1139, 1150 (Pa. 2006). Defendant indicated on two occasions that he wanted to speak with police, and he specifically told Officer Franks during the June 11, 2009 interview that he did not want to have an attorney present and that he did want to speak with Officer Franks. Even if Defendant’s right to counsel had been triggered, his confession would still be admissible because Defendant initiated further communication with the police and knowingly waived his right to have an attorney present. Because it is clear that the circumstances of Defendant’s confession did not violate his Fifth Amendment rights, the only other consideration is Defendant’s Sixth Amendment right to counsel. It is well-established that the Sixth Amendment right to counsel in criminal cases does not attach until adversary proceedings begin. The Pennsylvania Supreme Court recently summarized the federal and state limits of the right to counsel by stating that Under the federal constitution, the right “attaches only at or after the initiation of adversary proceedings against the defendant.” United States v. Gouveia, 467 U.S. 180, 187 (1984). The right to counsel under the Pennsylvania Constitution “is coterminous with the Sixth Amendment right to counsel for purposes of determining when the right attaches.” Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999). Thus, the right generally attaches at arraignment. Commonwealth v. Gwynn, 943 A.2d 940, 948 (2008). Com. v. Wholaver, 989 A.2d 883, 897 (Pa. 2010). 4 The Pennsylvania Supreme Court also recently discussed the Sixth Amendment right to counsel at length in Com v. Colavita, when it stated that “[t]he right to counsel attaches at a particular point in time which reflects its “criminal prosecution” roots: ‘[A] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.’” Com. v. Colavita, 993 A.2d 874, 890 (Pa. 2010) (quoting Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa. 2009)). The Court further stated that “[m]oreover, no existing authority from the U.S. Supreme Court, this Court, or the Superior Court has recognized a right to counsel pre-arrest.” Id. at 891. Defendant in this case was not arrested until July 1, 2009. Defendant had not been arrested nor had any adversary judicial proceedings of any kind been initiated against him at the time of the June 11, 2009 interview. Therefore, his Sixth Amendment right to counsel had not been triggered at the time he gave his confession. It is clear in this case that Defendant’s right to counsel was not violated either under the Fifth or Sixth Amendment because both interviews in which he claims to have been questioned without an attorney were non-custodial and occurred pre-arrest and before any judicial proceedings had commenced against him. B. The Court did not err in entering consecutive sentences. Our Supreme Court has held that “the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses.” Com. v. Thomas, 879 A.2d 246, 263 (Pa.Super. 2005) (quoting Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa. 5 1994). If two crimes each require proof of at least one element that the other does not, then the crimes are not greater and lesser included offenses, and therefore the sentences do not merge. Id. (citing Com. v. Anderson, 650 A.2d at 23-24). Defendant argues that the charges of Unlawful Contact with a Minor should merge with the charges of Involuntary Deviate Sexual Intercourse. These two crimes do not merge because they each contain separate elements. The relevant portion of the offense of Unlawful Contact with a Minor is as follows: 6318. Unlawful contact with minor (a) Offense defined.--A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: (1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses). 18 Pa.C.S.A. § 6318. “Contacts” are defined in the statute as Direct or indirect contact or communication by any means, method or device, including contact or communication in person or through an agent or agency, through any print medium, the mails, a common carrier or communication common carrier, any electronic communication system and any telecommunications, wire, computer or radio communications device or system. 18 Pa.C.S.A. § 6318. The relevant section of the statute for the offense of Involuntary Deviate Sexual Intercourse states that a person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant who is less than 16 years of 6 age and the person is four or more years older than the complainant and the complainant and person are not married to each other. 18 Pa.C.S.A. § 3123 (a)(7). The Pennsylvania Supreme Court recently referenced 42 Pa. C.S.A. § 9765 (merger of sentences) and held that “[t]he statute's mandate is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other. Com. v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). It will be noted that in the other sexual offenses charged against the Defendant, specifically: Count 2 - Statutory Sexual Assault, 18 Pa. C.S.A. 3122.1, and Count 3 – Indecent Assault, 18 Pa.C.S.A. 3126, the Court did merge for sentencing purposes these offenses with the sentence for Involuntary Deviate Sexual Intercourse. Interestingly, the Defendant does not object to the concurrent sentence the Defendant received on the charge at Count 4 – Corruption of Minors, 18 Pa.C.S.A. 6301. This Court notes that Unlawful Contact with Minor, just like Corruption of Minors, is a charge under a totally separate chapter of the Crimes Code, Chapter 63, which deals exclusively with minors. In this Court’s view, this evidences that the legislature, in enacting this provision, saw it as distinctly separate from actual sexual offenses, which are defined in Chapter 31 of the Crimes Code. It is clear from both statutes that all of the statutory elements of one of the offenses are not included in the other offense. Intentional contact made with a minor for the purposes of recruiting the minor to engage in the performance of the prohibited sexual acts is separate from engaging in the sexual acts themselves. For example, the Pennsylvania Superior Court has ruled that Indecent Assault and Unlawful Contact With a Minor did not merge for sentencing purposes because the offenses do not share the 7 same elements. Com. v. Evans, 901 A.2d 528 (Pa. Super. 2006). The Court reasoned that “elements of unlawful contact with a minor consisted of intentionally, either directly or indirectly, contacting or communicating with minor for purpose of engaging in indecent assault, whereas elements of indecent assault required touching of sexual or other intimate parts of a person under age of 13 for purpose of arousing or gratifying sexual desire, in either person.” Id. at 537 (emphasis added). Similarly, under the facts of this case, the elements of Unlawful Contact With a Minor consist of contact or communication for the purpose of engaging in a prohibited sexual act, and the elements of Involuntary Deviate Sexual Intercourse require actual deviate sexual intercourse with the victims. Deviate sexual intercourse occurs if a man’s penis penetrates the mouth or anus of a person. 18 Pa.C.S.A. §3101, Pa.SSJI (Crim) 15.3123 D. Thus under the holding in Evans, just as Indecent Assault required the touching of sexual or intimate parts, Involuntary Deviate Sexual Intercourse requires deviate sexual intercourse which is defined as the placing of a penis in the mouth or anus of another. The offenses do not merge for sentencing purposes because each offense contains separate elements. It is important to note that the general rule in Pennsylvania is that in imposing a sentence, the Court has discretion to determine whether to make it concurrent with or consecutive to another sentence then being imposed. A challenge to the Court’s imposing consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of the sentence. Commonwealth v. Hoag, 665 A.2d 1212 (Pa.Super. 1995). In setting a sentence, the Court has discretion not only to deviate from guideline ranges but also to run the sentence concurrently with or 8 consecutive to other sentences being imposed. Commonwealth v. Mouzon, 828 A.2d 1126 (Pa.Super. 2003). In this case, the consecutive sentence imposed for the separate crime of Unlawful Contact with a Minor was appropriate. In this case, the Defendant, who held the public position of Fire Chief of the West Shore Bureau Fire Station, used his public position to initiate contacts with young boys for the purposes of eventually performing Involuntary Deviate Sexual Intercourse upon them. The boys wanted to be junior firefighters. What the Defendant wanted was to intentionally have contact with these boys in order to engage them in Involuntary Deviate Sexual Intercourse. The crime of Unlawful Contact with Minor was complete long before the Defendant actually engaged in Involuntary Deviate Sexual Intercourse. The consecutive sentence in this case for Unlawful Contact emphasizes the fact that a public official cannot use his position to contact children, who have innocently approached him for the legitimate, praiseworthy purpose of volunteering to help their community by becoming a junior firefighter, only to be lured into sordid activity by an individual who knew exactly what his ultimate criminal intentions were. The consecutive sentence given by this Court for this charge is totally appropriate in this case. Conclusion Defendant’s right to counsel was never triggered under either the Fifth or Sixth Amendment because Defendant was never in custody or under arrest during either interview with police. More specifically, Defendant was not in custody or under arrest during the interview on June 11, 2009 in which he confessed to the prohibited acts. Therefore, the Court properly denied Defendant’s Motion to Suppress his confession. 9 The charges of Unlawful Contact with a Minor and Involuntary Deviate Sexual Intercourse are separate offenses and the elements of one are not included in the other. Therefore, the offenses should not merge for sentencing purposes, and the Court properly sentenced Defendant in this case. By the Court, M. L. Ebert, Jr., J. Christylee L. Peck Senior Assistant District Attorney William Tully Attorney for Defendant 10