Com. v. Jacobs

Page 368

900 A.2d 368

COMMONWEALTH of Pennsylvania, Appellee v. Fatayshia JACOBS, Appellant.

Superior Court of Pennsylvania.

Argued November 15, 2005.

Filed May 1, 2006.

Karl L. Morgan, Public Defender, Philadelphia, for appellant.

Jonathan M. Levy, Assistant District Attorney, Philadelphia, for Com., appellee.

BEFORE: DEL SOLE, P.J., JOYCE, MUSMANNO, LALLY-GREEN, TODD, KLEIN, BENDER, BOWES, and GANTMAN, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Fatayshia Jacobs, appeals from the judgment of sentence entered on January 22, 2004. We affirm.

¶ 2 The factual and procedural history of the case is as follows. On December 3, 2003, Appellant pled no contest to one count of attempted murder. The charge arose from an incident on January 9, 2003, when Appellant attempted to smother her seven-week-old daughter with a pillow.¹

¶ 3 At the sentencing hearing, Appellant's counsel gave a lengthy and eloquent plea for leniency and rehabilitation. Counsel argued, inter alia, that the criminal act was an irrational outburst stemming from untreated mental illness and post-partum depression. N.T., 1/22/2004, at 5-20. At the end of her argument, counsel stated:

Finally, Your Honor, I have spoken with Miss Jacobs about her right to allocution. She's very nervous about speaking in court and she asked me to tell the court what she told me in the booth here just this morning.

She relayed to me that she really does completely regret her actions on the day of January 9th of 2003. That [the child] is very important to her. That it is the one person that she was hoping to have a good relationship with and that she hopes that this court will show mercy on her in your sentence and allow her to have some kind of visitation or relationship with her by lifting the stay away order.

Thank you, Your Honor.

Id. at 20-21. The prosecutor then responded, inter alia, that Appellant was willfully non-compliant with her medication program and with the many social services that had been offered to her. Id. at 21-30. The prosecutor also argued that Appellant had attempted to starve the child in utero while Appellant was in jail for drug offenses. Id. at 22.

¶ 4 After the court took a brief recess, the following exchange took place:

APPELLANT'S COUNSEL: Miss Jacobs informed me she would like to say a few words to the court.

THE COURT: All right.

APPELLANT: I would like to thank you this morning for letting me speak basically about the case. I believe some things were exaggerated and I received help and I have extra help for my mental illness and I have been taking medication for years. I have been going to Progressions and programs to help me, yes. And at the time when I did this to my child I wasn't in my right frame of mind, and also regret that I did that. And I did say those things that I did say² but I didn't mean them at the time. And I feel as though it's very important I should receive visitation rights with my daughter because she's the only thing that I have as a family right now.

It just seems like I have a lot of potential and stuff like that and I know that I won't be coming back and forth to jail because that's not how I am, you know. I know if I have one chance I know I can better myself and I know I can go right. It's not like I sat there my whole life and got myself in trouble. I also tried to be straight and arrow [sic]. I worked with kids. I have taken care of aunt's kids for years and I love children too, you know.

And I think that's all I really want to say, Your Honor. And thank you, again.

THE COURT: All right.

The protection of children is one of the things that this court takes very seriously. Innocent children being forced into situations, born into situations where they are beaten, smothered, it's very upsetting to this court.

And this court on its own, just out of its own curiosity, has looked into postpartum depression which I really feel is something that certain women go through that is the closest thing to a living hell.

However, while there is some part of postpartum depression in this particular case, there was also an attempt before the child was born.

APPELLANT: That is not true, Your Honor.

THE COURT: Don't interrupt me, please.

APPELLANT: Sorry.

THE COURT: Don't interrupt me. Don't interrupt me. What you did to one of God's treasures.

All right. Stand up, please.

APPELLANT'S COUNSEL: May I say one thing.

THE COURT: Certainly.

APPELLANT'S COUNSEL: I heard what [the prosecutor] said about the attempt to starve herself beforehand and I didn't see that in the reports also. So I don't know where that information is coming from.

PROSECUTOR: That came from the victim impact statement given by Mrs. Jacobs.

APPELLANT'S COUNSEL: It was my understanding that Fatayshia was living in Reading at that time. So I don't know where she got that information.

PROSECUTOR: It says, Your Honor, that Fatayshia told Mrs. Jacobs about that.

THE COURT: Well, I'm going to address the whole thing.

If you look, there's been a systematic recklessness, recklessness by this person towards that child, towards that child.

Id. at 30-34. The court then imposed a prison term of five to ten years, plus a consecutive term of ten years' probation. The sentence fell within the standard range of the sentencing guidelines. Appellant did not file post-sentence motions. This appeal followed.³

¶ 5 On appeal to a three-judge panel of this Court, Appellant argued that the trial court denied her right to allocution. A majority of the panel held that Appellant's claim was not waived, even though she failed to raise it in the trial court, because her claim implicated the legality of the sentence. The panel majority relied, inter alia, on this Court's recent decision in Commonwealth v. Newton, 875 A.2d 1088 (Pa.Super.2005), appeal denied, ____ Pa. ____, 890 A.2d 1058 (Pa. December 15, 2005). The panel further reasoned that on the merits, Appellant was not denied her right to allocution. The third member of the panel reasoned that the claim was waived.

¶ 6 The Commonwealth filed a petition for reargument, despite the fact that it prevailed with the three-judge panel. This Court granted the Commonwealth's reargument petition on August 3, 2005.

¶ 7 On reargument, Appellant raises two issues:

1. Should not this Court quash this Commonwealth reargument as it is inconsistent with the intent of Pa. R.A.P. 2543, and does not implicate any of the considerations governing allowance of appeal?

2. Did not the lower court infringe upon, and violate Appellant's right to allocution, requiring a new sentencing hearing?

Appellant's Substituted Brief on Reargument at 3.

¶ 8 First, Appellant argues that this Court should quash this reargument. Appellant notes that the Commonwealth prevailed with the three-judge panel. Appellant argues: "the fact that the Commonwealth won, but did not win in a manner to its liking, is not a `compelling reason' for allowing reargument under [Pa.R.A.P.] 2543." Id. at 10. Appellant further argues that reargument is improper in this case because the three-judge panel's decision was not inconsistent with published precedent; in fact, it was completely consistent with this Court's recent opinion in Newton. Id. at 9-10.

¶ 9 Rule 2543 of the Rules of Appellate Procedure sets forth the "Considerations Governing Allowance of Reargument" in pertinent part as follows:

Reargument before an appellate court is not a matter of right, but of sound judicial discretion, and reargument will be allowed only when there are compelling reasons therefor[.]

[Official] Note: The following, while neither controlling nor fully measuring the discretion of the court, indicate the character of the reasons which will be considered:

(1) Where the decision is by a panel of the court and it appears that the decision may be inconsistent with a different panel of the same court on the same subject.

(2) Where the court has overlooked or misapprehended a fact of record material to the outcome of the case.

(3) Where the court has overlooked or misapprehended (as by misquotation of text or misstatement of result) a controlling or directly relevant authority.

(4) Where a controlling or directly relevant authority relied upon by the court has been expressly reversed, modified, overruled or otherwise materially affected during the pendency of the matter sub judice, and no notice thereof was given to the court pursuant to Rule 2501(b) (change in status of authorities).

Pa.R.A.P. 2543 and Official Note. This Court's Internal Operating Procedures add a fifth consideration: "Where the issues have potential for a significant impact upon developing law or public policy." Superior Court I.O.P. § 65.38(B)(5).

¶ 10 We decline to quash the Commonwealth's reargument petition for several reasons. First, the Rules of Appellate Procedure and our Internal Operating Procedures do not prohibit a prevailing party from filing a reargument petition.⁴ Second, while the panel's decision was consistent with Newton, it was arguably inconsistent with another recent en banc case from this Court: Commonwealth v. Berry, 877 A.2d 479 (Pa.Super.2005). Reargument in the instant case will provide this Court an opportunity to re-examine Newton, Berry, and other pertinent case law on the question of whether allocution implicates the legality of the sentence.⁵ Finally, we note that this issue appears to be arising with some regularity. Indeed, reargument will provide guidance in a companion case to the instant case, Commonwealth v. Jermaine Williams, ____ A.2d ____, 2006 WL 1412906 (Pa.Super.2006). For these reasons, in the exercise of discretion, we decline to quash.

¶ 11 We now turn to Appellant's second argument. Appellant argues that the trial court denied her right to allocution by interrupting her while she was attempting to correct the trial court's understanding of a critical matter related to sentencing.

¶ 12 Generally, "issues not raised in the lower court are...