Commonwealth v. Leatherby

116 A.3d 73

2015 PA Super 90

COMMONWEALTH of Pennsylvania, Appellee

v.Lafonce LEATHERBY, Appellant.

No. 510 EDA 2014

Superior Court of Pennsylvania.

Submitted Oct. 27, 2014.

Filed April 21, 2015.

Jonathan J. Sobel, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.^*

Opinion

OPINION BY LAZARUS, J.:

Lafonce Leatherby appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County, after a jury found him guilty of three counts each of unlawful contact with a minor¹ , endangering the welfare of a child² and corruption of the morals of a minor³ , as well as two counts of indecent assault.⁴ These charges stemmed from Leatherby's sexual abuse, over the course of several years, of his wife's three young daughters, aged 9 to 14. Upon careful review, we affirm in part and vacate in part.

The lower court recounted the procedural history of the case as follows:

Leatherby was arrested on December 8, 2010, and charged with unlawful contact with a minor, endangering the welfare of children, indecent assault on a person less than thirteen (13) years of age, corruption of minors, simple assault, recklessly endangering another person (“REAP”), and aggravated assault. The aggravated assault charge was disposed of in the Municipal Court.

On October 4, 2012, Leatherby's oral motion to preclude the Commonwealth from introducing complainant's handwritten letter was heard, and subsequently denied. This case then proceeded to trial by jury on the charges of unlawful contact with a minor, endangering the welfare of children, indecent assault of a person less than thirteen (13) years of age, and corruption of minors. The charges of simple assault and REAP were nolle prossed.

On October 11, 2012, the jury convicted Leatherby of every charge except that of Indecent Assault with regard to M.S., on which he was found not guilty. Sentencing was deferred to March 5, 2013, pending a Pre–Sentence Investigation Report (“PSI”) and both mental health and Megan's Law evaluations.

This [c]ourt bifurcated the sentencing hearing on March 5 and March 8, 2013, whereupon this [c]ourt made a finding that Leatherby was a Sexually Violent Predator (“SVP”), requiring Megan's Law mandated life-long registration. This [c]ourt sentenced Leatherby to an aggregate of seven and one half (7 ½) to fifteen (15) years of incarceration.

On March 15, 2013, Leatherby filed a pro-se Post–Sentence Motion for Reconsideration of Sentence.

On May 9, 2013, Attorney Jonathan Sobel entered his appearance on Leatherby's behalf.

On June 4, 2013, this Court ordered that the deadline for Leatherby to file Post–Sentence Motions was July 31, 2013.

On July 31, 2013, Leatherby filed a Motion for Extension of Time, which was granted on August 2, 2013.

On September 30, 2013, Leatherby filed a Post–Sentence Motion for Reconsideration of Sentence, alleging that the verdicts were against the sufficiency and weight of the evidence, that the sentence was excessive, and that the sentences for indecent assault and corruption of minors should have merged.

On January 17, 2014, Leatherby's motion was denied.

Leatherby filed a notice of appeal with this Court on February 12, 2014, followed by a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed its Rule 1925(a) opinion on March 13, 2014.

Trial Court Opinion, 3/13/14, at 2–3.

On appeal, Leatherby raises the following issues for our review:

1. Defendant challenges the jury verdict of guilty on the charges of unlawful contact with a minor with respect to all three complainants, M.S., F.G., and F.G. based upon the lack of sufficiency of the evidence.

2. Defendant challenges the jury verdict of guilty on the charge of endangering the welfare of a child (EWOC) with respect to all three complainants, M.S., F.G., and F.G. based upon the lack of sufficiency of the evidence.

3. Defendant challenges the jury verdict of guilty on the charge of indecent assault with respect to two complainants, S.G. and F.G. based upon the lack of sufficiency of the evidence.

4. Defendant challenges the jury verdict of guilty on the charge of corruption of the morals of a minor (CMOM) with respect to all three complainants, M.S., F.G., and F.G. based upon the lack of sufficiency of the evidence.

5. Defendant challenges the jury verdict on all charges tried in this case, including unlawful contact with a minor, endangering the welfare of a child, indecent assault, and corruption of the morals of a minor based upon the weight of the evidence as to all three complainants, M.S., F.G., and F.G.6. The trial court abused its discretion by imposing such an excessive sentence upon [d]efendant, Lafonce Leatherby. The defendant is challenging the discretionary aspect of his sentencing.

7. The trial court erred by failing to merge the conviction(s) for indecent assault with respect to complainants, S.G. and F.G. with the convictions for corruption of minors, because the convictions were based on the same acts.

8. The trial court erred in classifying defendant, Lafonce Leatherby as a sexually violent predator pursuant to 42 Pa.C.S.A. § 9792.

Brief of Appellant, at 9–10.

Prior to addressing Leatherby's appellate claims, we must consider the Commonwealth's assertion that Leatherby's appeal should be dismissed because it was not timely filed. See Brief of Appellee, at 11–13. In order to perfect a timely appeal, a defendant must file a notice of appeal within 30 days of the imposition of his sentence, unless he files a timely post-sentence motion within 10 days of sentencing, thereby tolling that 30–day window. See Pa.R.A.P. § 903; Pa.R.Crim.P. § 720(a).

Here, Leatherby was sentenced on March 8, 2013. At the time of sentencing, Leatherby's counsel stated that Leatherby could no longer afford his services, and requested that the trial court appoint new counsel. N.T. Sentencing, 3/8/13, at 69–70. The transcript of that hearing reflects that Leatherby's then-counsel, Pierre LaTour, III, Esquire, agreed to file a post-sentence motion on Leatherby's behalf within ten days of sentencing. The record states,

MR. LATOUR: At this time, Mr. Leatherby, do you want myself or your court appointed attorney to file the ten-day motion to ask this judge to reconsider your sentence?

THE DEFENDANT: Yes.

Q: And in addition to that, you are also requesting that the court-appointed attorney and I will perfect this appeal, file the notice of appeal with the Superior Court.

A: Yes.

Q: Just so [we] are clear. Judge, with that on the record, again, what I will do is perfect his post-sentencing appeal before Your Honor and file that motion in Mr. Leatherby's name. But again, I would ask the court-appointed attorney to handle that matter.

Id. at 70–71 (emphasis added).

Contrary to his promise at sentencing, Attorney LaTour never filed a notice of appeal nor a post-sentence motion to toll the 30–day appeal period, within the first ten days after the sentencing. Furthermore, the court did not appoint new counsel until March 18, 2013, exactly 10 days from the imposition of the sentence. In the interim, on March 15, 2013, Leatherby filed a pro se post-sentence motion in order to protect his rights. The Commonwealth contends that this pro se motion should be considered a nullity because Leatherby was represented by counsel at the time of filing, and such a filing would constitute improper hybrid representation. See Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 293 (2010) (pro se filing by a represented defendant constitutes “legal nullity”).

Conversely, Leatherby contends that for the ten days following his sentencing, he was unrepresented and, accordingly, he was required to preserve his own rights. See Reply Brief of Appellant, at 2–3. We are persuaded by his argument. It is clear from the sentencing transcripts that there was, at a minimum, confusion as to who would file post-sentence motions on Leatherby's behalf and, indeed, trial counsel failed to file those motions as promised.

For its part, the trial court did not appoint new counsel for Leatherby in time to preserve his post-sentence rights. Under the particular circumstances of this case, in which Leatherby was effectively abandoned by counsel and the trial court failed to timely appoint new counsel, Leatherby's pro se filing does not offend considerations of hybrid representation.⁵ Leatherby should not be precluded from appellate review based on what was, in effect, an administrative breakdown on the part of the trial court. See Commonwealth v. Robinson, 781 A.2d 152, 158 (Pa.Super.2001), rev'd on other grounds at 575 Pa. 500, 837 A.2d 1157 (2003) (declining to quash untimely appeal where appellant was not at fault). Accordingly, we find that the time within which to file an appeal was tolled by Leatherby's pro se motion, and we will consider his appeal timely.⁶

Leatherby first challenges the sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa.Super.2000).

Leatherby first challenges the sufficiency of the evidence to convict him of unlawful contact with a minor. In Pennsylvania, “[a] person commits an offense if he is intentionally in contact with a minor ... for the purpose of engaging in activity prohibited under ... Chapter 31 (relating to sexual offenses).” 18 Pa.C.S.A. § 6318(a)(1). This Court has previously elaborated on the crime of unlawful contact, explaining, “[unlawful contact with a minor] is best understood as unlawful communication with a minor.” Commonwealth v. Rose, 960 A.2d 149, 152 (Pa.Super.2008).

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