Commonwealth v. McNeal

120 A.3d 313

2015 PA Super 150

COMMONWEALTH of Pennsylvania, Appellee

v.Wayne McNEAL, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Wayne McNeal, Appellant.

Nos. 1771 EDA 2013, 1775 EDA 2013

Superior Court of Pennsylvania.

Argued Jan. 13, 2015.

Filed July 16, 2015.

Courtney B. Kirschner, Public Defender, Philadelphia, for appellant.

Mary L. Huber, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

Opinion

OPINION BY WECHT, J.:

Wayne McNeal appeals from two judgments of sentence imposed upon him by the Honorable Chris Wogan, Judge of the Court of Common Pleas of Philadelphia County. We consolidate these cases sua sponte. Finding numerous instances of trial court error, we vacate those judgments of sentence, and we remand these cases for further proceedings.

On June 28, 2005, at CP–51–CR–0500911–2005, McNeal pleaded guilty to one count of robbery, 18 Pa.C.S. § 3701. Pursuant to an agreement with the Commonwealth, McNeal was sentenced to two and one-half to five years' incarceration, to be followed by five years of probation. The Honorable Earl Trent, Judge of the Court of Common Pleas, accepted the plea, and sentenced McNeal.

On July 1, 2011, at CP–51–CR–0008159–2011, McNeal was arrested and charged with burglary, 18 Pa.C.S. § 3502, criminal trespass, 18 Pa.C.S. § 3503, criminal mischief, 18 Pa.C.S. § 3304, and criminal attempt—theft, 18 Pa.C.S. §§ 901, 3921. These charges were assigned for disposition to Judge Wogan. The charges also formed the basis for a potential violation of the probation imposed by Judge Trent at CP–51–CR–0500911–2005. Judge Trent scheduled a probation violation hearing for July 29, 2011. However, the hearing was postponed until the burglary and related charges were resolved.

On April 11, 2013, the parties appeared before Judge Wogan for trial. However, the case was continued to the following day because the jury panel had been released before voir dire could commence. Nonetheless, on April 11, the Commonwealth presented McNeal with a plea offer. The Commonwealth offered to agree to a sentence of three and one-half to seven years' incarceration if McNeal pleaded guilty to the burglary charge. The proposed sentence fell within the mitigated range of the sentencing guidelines. Notes of Testimony (“N.T.”), 4/11/2013, at 4–5. Judge Wogan explained to McNeal the potential maximum sentences that he could receive if he went to trial and lost. Id. at 4–7. McNeal rejected the plea offer. Id. at 11. Judge Wogan urged McNeal to reconsider. Specifically, Judge Wogan told McNeal that he “should think about this overnight. You may not believe me that you will get 15 to 31 years. Maybe you should ask people around the jail if I would do that.” Id. at 12–13.

On the following day, the parties appeared before Judge Wogan. The parties and Judge Wogan discussed the grading of the criminal mischief charge. One of the allegations against McNeal was that, in perpetrating the alleged burglary, he caused damage to the front door of the home that he purportedly entered. The assistant district attorney stated that she was “inclined to proceed on [the criminal mischief charge] as a summary.” N.T., 4/12/2013, at 3. Judge Wogan commented that it was his understanding that prosecuting that crime as a summary, with Judge Wogan sitting as the finder of fact and rendering a verdict after the jury had ruled on the indictable offenses, was “permissible.” Id. Additionally, Judge Wogan volunteered that a summary is a conviction that would “be a violation of the probation that I am now supervising.” Id. Although Judge Wogan did not elaborate on the issue at that juncture, this was the first time that he revealed to the parties that he had assumed jurisdiction over the probation violation case that initially was assigned to Judge Trent.

The parties met again before Judge Wogan on April 15, 2013, after defense counsel had requested that a psychiatric evaluation be performed on McNeal. Judge Wogan readily agreed that an evaluation was necessary, “especially when he turned down a 3 and a half year sentence and could get 12 and a half or more.” N.T., 4/15/2013, at 3.

On April 18, 2013, the parties again met before Judge Wogan for more pretrial discussions. Once again, Judge Wogan informed McNeal of the terms of the proffered plea bargain. This time, however, Judge Wogan explained that the three and one-half to seven years offer encompassed the probation violation as well. Judge Wogan explained the offer, and the unconventional negotiations that occurred between the court and the parties, as follows:

I spoke with your attorney. And if you plead guilty on the criminal trespass, what you would get from me would be three-and-a-half to seven years—that is a promise I made—on everything including the [violation of probation]. I just want to make sure you understand that. That would have probation to follow, and that is less of a sentence that I normally think would be appropriate. Because I wanted to make it three to ten, but after negotiating with the attorneys I decided three to seven with probation to follow would be fair.^{[ 1 ]} Just so you understand, that is everything. You see, I could give you 7–1/2 to 15 years for violating my probation.^[ [^{2 ]} I'm not going to do that.

N.T., 4/18/2013, at 3–4. McNeal rejected the offer for a second time. Judge Wogan reacted as follows: “All right. Well, then you may end up doing seven years and nine months instead. If you don't see the logic in that, that's [sic ] whatever high school you went to, they didn't do a very good job.” Id. at 5.

The parties and the court then turned their attention back to the issue of whether the criminal mischief charge should continue to be graded as a misdemeanor, or whether it should be amended to a summary offense. The following exchange occurred between Judge Wogan and the parties:

THE COURT: All right. And the Commonwealth is holding off the criminal mischief as a summary which I will decide whether you committed criminal mischief when the jury trial is over.

[DEFENSE COUNSEL]: I do have an objection to that.

THE COURT: All right. Anything you want to say about that or generally?

[DEFENSE COUNSEL]: My objection would be this. The complainant testified—I have a number of objections. But first one is complainant testified that previously the damage to the door was $908. It is misdemeanor of the third degree, not a summary offense.

THE COURT: Right.

[DEFENSE COUNSEL]: And so by moving on the summary offense [the] Commonwealth is basically precluding the complainant from getting restitution as to the cost.

THE COURT: I didn't know you represented plaintiffs [sic ] here.

* * *

[DEFENSE COUNSEL]: And also, it is my belief that the criminal trespass, breaking the door, is necessary to, cross criminal mischief breaking a door is necessary to a felony to criminal trespass conviction which involves breaking in the first place. So that it is a lesser included offense and it is a necessarily included offense. And because of that fact he cannot be sentenced for both offenses because the breaking is a requirement of the criminal trespass felony two.

THE COURT: Well, we will see. We will see.

[DEFENSE COUNSEL]: Well, the nearest case I can find to that ...

THE COURT: It is a moot point. It is a moot point. The best that can happen to him—the best that can happen to you—all right—the best that can happen to you and your attorney's argument would be meaningless is somehow the jury finds you not guilty of criminal trespass. Then his argument that you can't be sentenced for criminal mischief falls away because I can still sentence you for criminal mischief if I find beyond a reasonable doubt that you broke the door.

[DEFENSE COUNSEL]: Well, my position on that is that you can't. Because if the jury acquits—

THE COURT: You are so wrong on that.

[DEFENSE COUNSEL]: —him of criminal trespass—

THE COURT: You are so—

[DEFENSE COUNSEL]: —then necessarily—

THE COURT: —you are so far from what the law is. The law is that even the jury can do something diametrically opposed to what I do. And the cases actually say it doesn't matter because maybe this was a jury that was utilizing jury nullification. Maybe their false sense—and they use the word “leniency” and I never used the word—leniency compelled them to do something which does not bound the judge. You have no support in Superior Court. To even think of one senior judge in Superior Court, he wouldn't go out on a limb.

[DEFENSE COUNSEL]: And also the fact that this would generate [a] probation violation, which up until last week would have been [a] violation of Judge Trent, but is now [a] violation of Your Honor.

THE COURT: Reasons of judicial economy and efficiency, he is on my probation now.

[DEFENSE COUNSEL]: Well, for reasons of judicial economy, you can have one trial instead of two.

THE COURT: You will see how efficient I am if we have a summer trial. We will do it real quickly.

N.T., 4/18/2013, at 5–9.

McNeal's jury trial began and ended on the following day, April 19, 2013. Following deliberations, and despite Judge Wogan's apparent disbelief that the jury could or would do so, the jury found McNeal not guilty of all of the crimes. This left the criminal mischief charge, now graded as a summary offense, for disposition by Judge Wogan. N.T., 4/19/2013, at 126–27. Regarding that summary offense, the Commonwealth offered no evidence, simply adopting that which had been presented to the jury. Judge Wogan chose to disagree with the jury's apparent credibility determinations. He found “the victim here to be credible,” and “found the defendant to be a liar.” N.T., 4/19/2013, Motion Volume I, at 3. He found McNeal guilty of the summary offense.

At the time he entered his verdict, Judge Wogan did not reveal that he had relied upon evidence not of record in assessing whether the Commonwealth proved beyond a reasonable doubt that McNeal had committed the criminal mischief. On May 31, 2013, he did so. That day,...