Commonwealth v. Lites

234 A.3d 806

COMMONWEALTH of Pennsylvania

v.Brandon LITES, Appellant

No. 822 EDA 2018

Superior Court of Pennsylvania.

Submitted December 17, 2018

Filed June 29, 2020

Brandon Lites, appellant, pro se.

Katayoun M. Copeland, Assistant District Attorney and Vram Nedurian, Jr., Assistant District Attorney, Media, for Commowealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

OPINION BY NICHOLS, J.:

Appellant Brandon Lites appeals from the judgment of sentence, imposed following a jury trial for burglary, attempted rape, indecent assault, criminal trespass, and simple assault.¹ Appellant's counsel, J. Anthony Foltz, Esq., has filed a petition to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Appellant has filed a pro se response. In our prior memorandum decision, we initially affirmed Appellant's judgment of sentence and granted Attorney Foltz's petition to withdraw. Subsequently, Appellant retained Jerome M. Brown, Esq., who filed a motion for reconsideration challenging the legality of Appellant's sentence. This Court granted reconsideration limited to that issue and withdrew our prior memorandum decision. This decision replaces our withdrawn prior memorandum decision. For the reasons that follow, we affirm the convictions, grant Attorney Foltz's petition to withdraw, but vacate the judgment of sentence and remand for resentencing.

Because the parties are familiar with this matter, we do not extensively restate the facts of this case. Briefly, the Commonwealth charged Appellant with the above-mentioned offenses for a June 24, 2014 incident in which an individual sexually assaulted the then eighty-one-year-old victim inside the victim's apartment.

Prior to trial, Appellant filed a motion for a competency determination of the victim. The trial court denied Appellant's motion without prejudice to re-raise the issue at the time of trial. Order, 10/27/17. According to the docket, on December 18, 2017, the Commonwealth made an oral motion in limine to preclude any mention of a competency evaluation, which the trial court granted that same day. Docket at 5. The trial court, however, noted that the victim testified at a competency hearing prior to trial. See N.T., 12/20/17, at 47.

At the jury trial, Appellant's trial counsel did not object to the victim's competence during the victim's trial testimony. The victim testified about the sexual assault, but did not identify Appellant as the perpetrator of the assault. N.T., 12/20/17, at 42-43. The Commonwealth, however, introduced DNA evidence from a "rape kit" that inculpated Appellant. Id. at 111-12. Appellant testified on his own behalf and denied any involvement in the attack. The jury found Appellant guilty, and the court ordered a presentence investigation report.

On February 9, 2018, the Commonwealth filed a sentencing memorandum that listed Appellant's criminal history, including his guilty plea to first-degree felony burglary on August 16, 1994. Commonwealth's Sentencing Memo., 2/9/18, at 2 n.2, 3 (unpaginated). The Commonwealth did not attach any supporting documentation for its list, but asserted that Appellant should be sentenced as a second-strike offender under 42 Pa.C.S. § 9714 based on a prior burglary conviction in 1994.

At the sentencing hearing, the Commonwealth presented its reasoning for a mandatory minimum sentence:

It is the Commonwealth's position that the mandatory minimums apply to both the counts for criminal attempted rape and burglary. Burglary was Count 1. Criminal attempted rape was Count 2. Your Honor, under Title 42, Section 9714 (a), the law states that if [Appellant] is convicted of a crime of violence at the time—and at the time of the commission of that offense they were already previously convicted of a crime of violence, then there should be a mandatory minimum applied to that charge. Your Honor, the crime of violence is defined under the statute, and criminal attempt to rape, as well as burglary that he was convicted of, are both crimes of violence, so they would apply to both of those charges. As to his prior offense, Your Honor, [Appellant] did commit a burglary on June 9th, 1994, and, Your Honor, he pled guilty to that charge. The Commonwealth will be handing up to the Court Commonwealth Exhibit—Sentencing Exhibit 1, which was provided to [Appellant's] counsel previous to the sentencing date.^{[2 ]} And, Your Honor, they're just the documents that show his conviction, as well as the information with the statute on it. Your Honor, [Appellant] was convicted of burglary, felony of the first degree . Now, Your Honor, under Section (g) of Title 42, Section 9714, it says that burglary, as defined in the current law, Section— Title 18, Section 3502(a)(1), or its equivalent offense also applies as a crime of violence and has to be the equivalent offense that he was convicted of at the time that the act was committed. Your Honor, I have attached in Appendix B I believe that it is in my sentencing memorandum a copy of the statute that was in place, the burglary statute was in place at that time when he committed the offense. And, Your Honor, you will find that all of the elements in that statute are identical for the felony one burglary to the elements that he was convicted of for this burglary offense, which is a crime of violence. So, Your Honor, that's why the Commonwealth is representing that this is an equivalent offense to burglary as defined in the current burglary statute under Subsection(a)(1). For that reason, Your Honor, his prior offense is an equivalent offense that was committed at the—or that was—that was equivalent offense for the statute that was there at the time in 1994 when he committed the offense. Your Honor, given that it applies to the prior offense and given that the current offenses are crimes of violence, the mandos apply. Your Honor, if I may proceed, I don't know if defense wants to offer his argument as to the mandos now or I could proceed with the rest of my argument.

N.T. Sentencing Hr'g, 2/12/18, at 27-29 (emphasis added).

After additional unrelated argument by the Commonwealth, Appellant's plea counsel briefly countered as follows:

Based on the exhibit there that has the information, as well as the sentencing sheet, neither one of those indicate that what [Appellant] pled to was burglary with the person present. I would argue that without that key factor in there, that the mandatory minimum should not apply because that is not a first-string offense.

Id. at 39.³

At the conclusion of the hearing, the trial court imposed a mandatory minimum sentence of ten to twenty years’ imprisonment for burglary, followed by a consecutive mandatory minimum sentence of ten to twenty years’ imprisonment for attempted rape. Id. at 45-46. The trial court imposed concurrent sentences for the remaining counts. Appellant did not file post-sentence motions.

Appellant timely appealed, and the trial court ordered Appellant to comply with Pa.R.A.P. 1925(b), and Attorney Foltz filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders brief. Attorney Foltz filed a petition to withdraw and an Anders brief with this Court.

In the Anders brief, Attorney Foltz raised one question:

Did the trial court err in denying the motion of [Appellant's] counsel for an evaluation of the competency of the alleged victim, R.L. to testify at the trial of [Appellant]?

Anders Brief at 6.

In our prior memorandum decision, we held that Attorney Foltz's petition to withdraw and brief complied with the technical requirements of Anders and Santiago . See Commonwealth v. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014).

We then addressed the sole challenge raised in the Anders brief, which was that the victim "clearly had difficulty recalling numerous facts about the alleged attack [and that] counsel for the Commonwealth and the judge of the trial court needed to ask numerous questions repeatedly to get the answers that they sought." Anders Brief at 15. We reviewed the trial court's ruling on a witness's competency to testify for an abuse of discretion. Commonwealth v. Delbridge , 578 Pa. 641, 855 A.2d 27, 34 (2003) ; see also Pa.R.E. 601 ; Commonwealth v. Boich , 982 A.2d 102, 109-10 (Pa. Super. 2009) (en banc ).

Following our review, we concluded that Appellant's intended challenge to the competency of the victim was frivolous. See Boich , 982 A.2d at 110. The trial court, we held, acted within its discretion to deny Appellant's pre-trial motion without prejudice. See id. Appellant did not re-raise his objection at trial. Furthermore, the trial court observed the victim testify at trial and did not signal any concern about her competency. See id. Nothing in the victim's testimony reflected a basis for Appellant or the trial court to establish that the victim was incapable of perceiving the assault she experienced, was unable to make herself understood, had an impaired memory, or did not understand her duty to tell the truth. See id. at 109-10. Therefore, we agreed with Attorney Foltz that this claim lacked any support in the record or law. See Orellana , 86 A.3d at 882 n.7.

In our prior memorandum decision, we also addressed the thirteen issues Appellant raised in his pro se response.⁴ We quoted Appellant's first five issues in his pro se response as follows:

1) [Appellant] submits that mitigating circumstances are present in this case given that [Appellant] was denied DNA expert witness to be present and[/]or available to aid [the] jury with interpretation of scientific evidence beyond the competence of a lay person pursuant to ( Pa.R.E. 702 - 3 )[. Appellant] cites Todd Heller, Inc. v. United Parcel Service , 754 A.2d 689 [.]

2) Detective [Nelson] Collins[’s] testimony of the description of the attacker having a moustache was hearsay, false and inconsistent with previous testimony statements made in prior official proceeding under oath pursuant to 18 Pa.C.S.A. § 4902 [.]

3) [Trial counsel] failed to object

...