Com. v. Postie, F.

Jan 26, 2015
17 MDA 2014
Versions:118 A.3d 455

Appeal from the Judgment of Sentence entered on December 6, 2013 in the Court of Common Pleas of Schuylkill County, Criminal Division, No. CP-54-CR-0001119-2012

MEMORANDUM BY MUSMANNO, J.:

Frederick Andrew Postie (“Postie”), pro se, appeals from the judgment of sentence imposed after a jury convicted him of four counts each of burglary, criminal trespass, theft by unlawful taking, and receiving stolen property, as well as two counts of criminal conspiracy.12 We affirm.

The trial court set forth the procedural history and relevant facts underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we incorporate herein by reference. See Trial Court Opinion, 3/25/14, at 1-5.

At the close of trial, the jury convicted Postie of the above-mentioned offenses. Following Postie’s filing of a Notice of Appeal, and a pro se Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, the trial court filed its Pa.R.A.P. 1925(a) Opinion. In response, Postie filed a pro se Application for relief with this Court, requesting that we grant him permission to file an Amended Rule 1925(b) Concise Statement with the trial court. This Court granted Postie’s Application, after which Postie filed a pro se Amended Rule 1925(b) Concise Statement, and the trial court filed an Amended Rule 1925(a) Opinion.

On appeal, Postie presents the following issues for our review:

  1. Did the trial court err when it denied suppression of statements made by [Postie to police,] and [inculpatory evidence seized from Postie’s] cell phone[,] where police, lacking probable cause and acting outside of their territorial jurisdiction, seized [Postie] and subjected him to a custodial interrogation, coercing his statement[s] by confronting him with illegally seized items?
  2. Did the trial court err and deny [Postie] due process by not conducting a hearing to address [Postie’s] Petition to proceed in a self-representative role?
  3. Did the trial court err when it denied [Postie’s] Motion to dismiss the conspiracy charges pursuant to section 110 of the Pennsylvania Crimes Code?
  4. Did the trial court err by sentencing [Postie] for multiple conspiracy charges, burglary[,] and the act in which the burglarious entry resulted in[, graded] as felony 1’s[,] where the facts only supported felony 2’s, and by improperly failing to credit [Postie] for time spent in custody prior to trial?
  5. Did the trial court abuse it’s [sic] discretion by relying on a deficient pre-sentence report during sentencing and then failing to state its reason[s] [for the sentence imposed] on the record?
  6. Was [Postie] denied due process when the prosecuting authorities failed to provide a video of the custodial interrogation?

Brief for Appellant at 4 (some capitalization omitted).3

First, Postie argues that the suppression court erred in failing to suppress (1) his inculpatory written and oral statements made to police officers (hereinafter “the interviewing officers”) during the interview conducted at the Summit Hill Police Department on February 28, 2012; and (2) inculpatory evidence seized from his cell phone. See id. at 13-35. Postie points out that the suppression court ruled that evidence, found by police when executing a search warrant of Postie’s residence a few days before the February 28, 2012 interview, was inadmissible because the items seized were not specifically identified in the search warrant. See id. at 30-32; see also Suppression Court Opinion, 5/30/13, at 5 (stating that “[t]he application for the warrant simply stated that [the police] were searching for ‘stolen items from several burglaries in Rush Township.’ … Pa.R.Crim.P. 215 does require that the applicant specifically identify the property to be searched and seized, and appellate court decisions have consistently held that a warrant can be held to be unlawful if this requirement is not met.” (citations to case law omitted)). Postie contends that the suppression court should have suppressed his inculpatory statements, made to the interviewing officers, because the interviewing officers coerced such statements by confronting Postie with the illegally seized evidence from his residence. See Brief for Appellant at 30-35. Moreover, according to Postie, the suppression court erred in failing to rule that (a) the interviewing officers lacked probable cause to conduct a valid custodial interrogation; and (b) the warrant to seize Postie’s cell phone was not supported by probable cause. See id. at 13, 16-18, 28-30.

Our standard of review of a denial of suppression is whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en banc) (citation omitted).

Initially, we observe that the evidence seized from Postie’s cell phone pursuant to a warrant was not used at trial. Accordingly, this issue is moot.

Regarding the admissibility of Postie’s inculpatory statements to the interviewing officers, the suppression court set forth the applicable law, thoroughly addressed Postie’s challenge concerning this evidence, and determined that the court properly refused to suppress Postie’s statements. See Suppression Court Opinion, 5/30/13, at 6-14. Because our review confirms that the suppression court’s thorough and cogent analysis is supported by the record and the law, we affirm on this basis with regard to Postie’s first issue. See id.4

Next, Postie argues that the trial court erred by depriving him of his constitutional right to proceed pro se at trial. See Brief for Appellant at 36-43. Postie points out that, prior to trial, he sent the trial court judge a pro se Petition invoking his right to represent himself (hereinafter “the Petition for self-representation”).5 Id. at 37. Although Postie concedes that he subsequently expressed that he wanted defense counsel to represent him at trial, according to Postie, defense counsel “coerce[d] Postie into acquiescing to his will.” Id.; see also id. at 41-42. Postie further argues that the trial court erred in failing to conduct a hearing on the Petition for self-representation. Id. at 39-41.

The trial court addressed Postie’s claim concerning the Petition for self-representation in its Pa.R.A.P. 1925(a) Opinion, and properly rejected it, reasoning that it is “disingenuous” based upon Postie’s subsequent expression that he wanted to be represented by defense counsel at trial. See Trial Court Opinion, 3/25/14, at 9. The trial court’s rationale is supported by the record, and we therefore affirm on this basis with regard to this claim. See id. Moreover, we find no merit to Postie’s bald allegation that defense counsel coerced Postie into being represented by counsel at trial, nor do we discern any error or abuse of discretion by the trial court in not conducting a full hearing on the Petition for self-representation.

In his third issue, Postie argues that the trial court erred when it denied defense counsel’s oral Motion to dismiss the conspiracy charges pursuant to the compulsory joinder rule, codified at 18 Pa.C.S.A. § 110.6 See Brief for Appellant at 44-45. Specifically, Postie contends that section 110 mandated dismissal of these charges because (1) he was previously convicted of conspiracy in Northampton County; and (2) these conspiracies were a part of the same criminal episode, and occurred during the same

timeframe. See Brief for Appellant at 44 (arguing that “[t]he Northampton [C]ounty charge allegedly took place on January 1, 2012, while the Schuylkill [C]ounty charges allegedly occurred between the dates of December 12, 2011[,] and January 13, 2012. Hence, it would be illogical to assume these were separate conspiracies.”).

As noted above, the compulsory joinder rule only bars a subsequent prosecution if all charges were within the same judicial district as the former prosecution. See 18 Pa.C.S.A. § 110(1)(ii); see also Commonwealth v. Miskovitch, 64 A.3d 672, 686 (Pa. Super. 2013). The compulsory joinder rule is inapplicable in the instant case because Northampton and Schuylkill Counties are different judicial districts. Therefore, this claim does not entitle Postie to relief.

Postie’s fourth issue is actually comprised of several distinct sub-issues, which we will address separately. First, Postie argues that the sentencing court erred in failing to credit him for 59 days that he had served in jail (hereinafter “the disputed time”) while awaiting sentence on the instant charges. See Brief for Appellant at 46. According to Postie, the disputed time was not credited to any of his other sentences imposed in other counties. Id. We disagree.

At Postie’s sentencing hearing, after considering argument from both parties concerning the disputed time, the sentencing court determined that Postie was not entitled to have the disputed time credited toward the sentence imposed in this case because he had served the disputed time, outside of Schuylkill County, toward a sentence imposed on another case. See N.T., 12/6/14, at 8-9; see also Amended Trial Court Opinion, 5/30/14, at 3 (stating that “[Postie] had no credit for the instant case[,] as he had been serving a Carbon County sentence during his period of incarceration.”). Accordingly, there is no merit to Postie’s claim for credit regarding the disputed time. See 42 Pa.C.S.A. § 9760(4) (providing that credit for time served on a sentence can only be granted when it has not already been credited toward another sentence); see also Commonwealth v. Pardo, 35 A.3d 1222, 1231 n.14 (Pa. Super. 2011) (applying section 9760(4) and concluding that the appellant was not entitled to credit for time that had already been credited toward a sentence imposed in a different jurisdiction).

Also in his fourth issue, Postie contends that the sentencing court erred in sentencing him for his two burglary convictions, graded as first-degree felonies, because the burglarized buildings in question do not meet the statutory definition of an “occupied structure.” See Brief for Appellant at 48-51, 52-54. According to Postie, “[t]he facts only support a finding of unoccupied structures in which no individual was present, consistent with a charge of second-degree felonies.” Id. at 54.7

At the time that Postie was charged, the Crimes Code defined the offense of burglary,8 and set forth the grading of the offense, as follows:

(a) Offense defined.-- A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

* * *

(c) Grading.—

(1) Except as provided in paragraph (2), burglary is a felony of the first degree.

(2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.

18 Pa.C.S.A. § 3502(a), (c); see also 18 Pa.C.S.A. § 3501 (defining “occupied structure” as “[a]ny structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.”).

With this in mind, our review discloses that the trial court addressed this claim in its Pa.R.A.P. 1925(a) Opinion and properly rejected it. See Trial Court Opinion, 3/25/14, at 8. We affirm with regard to this claim based on the trial court’s rationale. See id.

Additionally, Postie challenges the language of section 3502(c), asserting that the phrase “adapted for overnight accommodation” is unconstitutionally ambiguous. See Brief for Appellant at 48-53; see also 18 Pa.C.S.A. § 3502(c)(2). Postie has waived this challenge, since he did not raise it in his court-ordered Rule 1925(b) Concise Statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that “[a]ny issues not raised in a 1925(b) statement will be deemed waived.”); see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in the [Concise] Statement … are waived.”). Likewise, Postie has waived his challenge to the trial judge’s jury instruction concerning the burglary statute and the phrase “occupied structure,” see Brief for Appellant at 53-54, since he did not raise this challenge in his Concise Statement. See Lord, supra.

Postie next contends that the sentencing court erred in imposing separate sentences on his two convictions of conspiracy to commit burglary: one, a first-degree felony for the burglary of 714 Claremont Avenue; and the other, a second-degree felony for the burglary of 716 Claremont Avenue. See Brief for Appellant at 44-45 (arguing that “[s]ince it would be illogical to assume [that] these two separate conspiracies to burglarize both buildings occurred at separate times[,] when the crimes themselves happened simultaneously, they should be viewed as a single conspiracy to burglarize both buildings.”). We disagree. The trial court properly sentenced Postie on both of his conspiracy convictions,910 since the convictions concerned two separate conspiracies, and burglaries of two different properties, which occurred at different times. See, e.g., Commonwealth v. Andrews, 768 A.2d 309, 316 (Pa. 2001) (holding that the appellant was properly convicted of, and sentenced on, two separate counts of conspiracy to commit robbery where “the crimes involved different victims, were carried out at different apartment buildings, in different parts of the city, and were separated by three hours. In addition, the crimes were not interdependent, as where one offense is a ‘necessary intermediate step’ to committing a later offense.” (citation omitted)).

Finally, Postie argues that the sentencing court erred in failing to merge his sentences for burglary with his sentences for criminal trespass, since criminal trespass was the object of the burglaries. See Brief for Appellant at 47-48;11 see also 18 Pa.C.S.A. § 3502(d) (providing that “[a] person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.”).

The trial court concisely addressed this claim in its Pa.R.A.P. 1925(a) Opinion and properly rejected it. See Trial Court Opinion, 3/25/14, at 8. We affirm with regard to this claim based on the trial court’s rationale. See id.

In his fifth issue, Postie argues that the sentencing court committed reversible error by relying upon a “deficient” pre-sentence investigation report (hereinafter “PSI”), which was prepared without his having been interviewed,12 and did not contain mitigating information concerning his background. See Brief for Appellant at 55-59. Specifically, Postie contends that the sentencing court failed to consider the following mitigating factors:

[Postie] is not a career criminal[;] Postie’s prior record score is a one; he holds a Master Certification in automobile repair from the Automotive Service Excellence Group; at the time of his incarceration[,] he owned and operated his own small business …; he is married and supported a family for more than 18 years; he was currently completing his degree in Psychology[; and Postie] is an avid volunteer in his community[.]

Id. at 56. Postie additionally asserts that the sentencing court abused its discretion by failing to adequately state its reasons for the sentence imposed on the record. Id. at 55, 58.

Postie’s claim essentially raises a challenge to the discretionary aspects of his sentence, from which there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where the appellant has preserved the discretionary sentencing claim for appellate review by raising it at sentencing or in a timely post-sentence motion, the appellant must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Hill, 66 A.3d at 363-64.

Here, Postie included a Rule 2119(f) concise statement in his brief. However, he has waived his claim that the sentencing court failed to set forth adequate reasons on the record for the sentence imposed because he failed to preserve it either at sentencing or in a post-sentence motion. See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009) (stating that “[i]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.”).

Concerning Postie’s allegation that the sentencing court erred by relying upon a “deficient” PSI,13 and failing to consider certain mitigating factors, such a claim does not necessarily raise a substantial question. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (noting that a claim that the sentencing court failed to consider certain mitigating factors generally does not raise a substantial question); see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (stating that, where the sentencing court had the benefit of a PSI, an appellate court can “presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.”). However, in the instant case, we deem that Postie’s claim presents a substantial question, given that he was not interviewed prior to preparation of the PSI to provide mitigating information. See, e.g., Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724-25 (Pa. Super. 2013) (holding that an appellant’s claim that the sentencing court abused its discretion by imposing sentence without ordering a PSI, or failing to give a reason on the record for not ordering a PSI, presents a substantial question).

Accordingly, we will address the merits of Postie’s claim, mindful of our standard of review: “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation omitted).

A review of the transcript from Postie’s sentencing hearing reveals that Postie’s defense counsel, in fact, brought many of the above-mentioned mitigating factors to the attention of the sentencing judge. See N.T., 12/6/14, at 5-6, 8-12, 25-26. Moreover, both Postie and his wife testified at the sentencing hearing and presented mitigating information. See id. at 15-25. Additionally, Postie stated his opinion to the sentencing judge that the PSI “was a completely negative report done without my knowledge[,]” id. at 20, and, in response, the judge gave Postie an opportunity to offer any mitigating information and/or contest anything in the PSI that he considered erroneous. See id. at 20-25. In the trial court’s Amended Rule 1925(a) Opinion, the court stated that “[t]he [sentencing] court considered all of the material produced at the sentencing hearing prior to promulgating the sentence that it did. None of the discrepancies [that Postie] identified in the [PSI] played any part in his sentence.” Amended Trial Court Opinion, 5/30/14, at 2. Accordingly, we discern no abuse of discretion by the court in sentencing Postie.

Finally, Postie argues that his due process rights were violated because the Commonwealth failed to provide him with a copy of the video recording of his confession to the interviewing officers. See Brief for Appellant at 60-61;14 see also Trial Court Order, 5/30/13 (ordering the Commonwealth to provide to Postie a copy of any recording of the police interview of Postie conducted on February 28, 2012, if such recording existed).

The trial court addressed this claim in its Amended Rule 1925(a) Opinion as follows: “[N]o such video tape was entered into evidence at trial, and no such video tape exists because the machinery used to attempt to produce such a video malfunctioned. It was not possible to produce something that did not exist.” Amended Trial Court Opinion, 5/30/14, at 3-4; see also Trial Court Opinion, 3/25/14, at 9 (stating that “[t]his matter was addressed at the suppression hearing[,] at which [one of the police officers who interviewed Postie] testified that, although there were signs informing individuals that interview sessions would be recorded, the tape recording system was not functioning properly.”). Our review discloses that the trial court’s rationale is supported by the record, and we therefore affirm on this basis in determining that Postie’s final issue does not entitle him to relief. See Amended Trial Court Opinion, 5/30/14, at 3-4; Trial Court Opinion, 3/25/14, at 9.

For the foregoing reasons, we discern no abuse of discretion or error of law by the trial court, and we therefore affirm Postie’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/26/2015

Notes

1
See 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3921(a), 3925(a), 903(a)(1).
2
Postie currently has an unrelated appeal pending in this Court, at docket number 2442 EDA 2014, concerning his separate criminal case in the Carbon County Court of Common Pleas.
3
We observe that Postie’s Argument section is voluminous. See Brief for Appellant at 13-63. Moreover, Postie concedes that his brief slightly exceeds the word limit contained in Pa.R.A.P. 2135. See Brief for Appellant at 64; see also Pa.R.A.P. 2135(a)(1) (providing that a principal brief shall not exceed 14,000 words). However, we will overlook this minor defect.
4
As an addendum, to the extent that Postie challenges the jurisdiction of the interviewing officers, he correctly observes in his brief that “[a]rgument [regarding this matter] was not forwarded by [Postie’s] trial counsel as to the Municipial Police Jurisdiction Act[, 42 Pa.C.S.A. § 8951 et seq.,] violation and[,] thus, [this claim is] waived for purposes of this appeal.” Brief for Appellant at 13; see also Pa.R.A.P. 302(a) (providing that “issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).
5
Postie was represented by defense counsel when he filed the Petition for self-representation.
6

Section 110 provides, in relevant part, as follows:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted … in a conviction … and the subsequent prosecution is for:

* * *

(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense[.]

18 Pa.C.S.A. § 110(1)(ii) (emphasis added).

7
We observe that Postie does not challenge the sufficiency of the evidence supporting the burglary convictions.
8
The burglary statute was amended after the charges were filed against Postie.
9
Postie does not raise a challenge to the sufficiency of the evidence supporting his separate conspiracy convictions. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal); see also Lord, supra.
10
We additionally observe that the sentencing court ordered the sentence imposed on Postie’s second count of conspiracy to run concurrently with the sentence imposed on the first count.
11
Postie has failed to develop this claim in any meaningful fashion. See Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (stating that “[t]his Court will not become the counsel for an appellant, and will not, therefore, consider issues which are not fully developed in the brief. … An issue that is not properly briefed … is considered waived ….” (citations omitted)). Nevertheless, we decline to deem this claim waived because the trial court concisely addressed it in its Pa.R.A.P. 1925(a) Opinion.
12
The record confirms Postie’s assertion that he was not interviewed before the PSI was filed. See N.T. (sentencing), 12/6/14, at 21.
13
Postie preserved this claim by raising it at sentencing.
14
Postie concedes, however, that “this [C]ourt [has] determined that ‘the Pennsylvania Constitution does not require contemporaneous recording of statements and that the adoption of a rule requiring contemporaneous recording of custodial interrogation should be left to the Pennsylvania Supreme Court or the General Assembly[.]’” Brief for Appellant at 61 (quoting Commonwealth v. Harrell, 65 A.3d 420, 429 (Pa. Super. 2013)).
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