Commonwealth v. Popichak

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COMMONWEALTH OF PENNSYLVANIA Appellee v. CHRISTOPHER WILLIAM POPICHAK, Appellant

No. 2387 EDA 2021

No. J-A26016-22

Superior Court of Pennsylvania

June 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered October 22, 2021 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002162-2020

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

KING J.

Appellant Christopher William Popichak, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas following his open guilty plea to burglary.^[1] We affirm.

The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant with burglary, criminal trespass, and theft by unlawful taking in connection with the theft of various items from the property of Joseph and Rosalie Ilene Hemler ("Victims"). A jury trial commenced on August 24, 2021. Prior to the commencement of trial, Appellant expressed dissatisfaction with his attorney and requested a continuance to obtain new representation. The court denied Appellant's request, finding that Appellant's issues with his attorney were based on counsel's refusal to file frivolous motions that Appellant asked him to file. On the first day of trial, Victims testified by video. Mrs. Hemler, who was 77 years old at the time of trial, testified that Appellant's grandmother was one of her best friends and because of this connection, Mr. Hemler hired Appellant to do work on their property when Appellant was having difficulty finding a job. Mr. Hemler, who was 80 years old at the time of trial, testified that Appellant worked for him on and off for a few months, doing yard work and clearing out stockpiled tools and spare parts that had accumulated on his property from his years of working as a mechanic and electrician. The spare supplies were kept in Mr. Hemler's shop, which was located in a separate structure from their residence. The shop was generally kept locked but was always open when Appellant came to work so that he could access tools and supplies to do his work. Appellant did not do any work inside the house except one instance when he helped move a piece of furniture down the stairs. Victims did not give Appellant permission to enter their residence freely and Appellant always knocked on the door before entering. Victims gave Appellant permission to use the bathroom that was located right inside the entrance to the house from the garage but Appellant always informed Mr. Hemler prior to doing so.

On April 6, 2020, Mr. Hemler asked Appellant to come to the property to help him tear down an old generator in order to dispose of it. Shortly after lunch, Mr. Hemler got a call and needed to leave the property to run an errand. Prior to leaving, Mr. Hemler showed Appellant which parts to remove from the generator and instructed Appellant to continue working while he was gone. Mr. Hemler expected that the work would take Appellant the whole day and into the next day. Approximately 20 to 30 minutes after he left, Mr. Hemler received a call from Appellant stating that he completed the work. Mr. Hemler told Appellant that additional panels needed to be removed from the generator and instructed him to continue working.

Mrs. Hemler testified that on the afternoon of April 6, 2020, she was working on a puzzle in a room on the second floor of her house when Appellant unexpectedly entered the room. She found his presence upstairs strange because she did not hear him knock and did not permit him to enter the house. However, she did not ask him to leave because he was her friend's grandson. Appellant informed her that he finished the work that Mr. Hemler gave him and asked if there was anything else for him to do. She told him that he could leave if he had completed his work. Appellant asked Mrs. Hemler if there was a bathroom on the second floor. After Mrs. Helmer told Appellant where the bathroom was located, Appellant was out of her line of sight on the second floor for several minutes before he left. Victims' bedroom and their son's bedroom was located on the second floor and the doors to the bedrooms were typically kept shut.

Mr. Hemler testified that he returned to his property at approximately 5:30 P.M. that evening and Appellant was not present on the property. Mr. Hemler checked on the generator that Appellant was asked to work on and noted that Appellant did not remove any parts from the generator except some copper bars and copper wires. The next morning, Appellant texted Mr. Hemler that he was sick. The following day, Appellant arrived at the property and Mr. Hemler asked him to do some light yard work because it was expected to rain.

While Appellant was on the property on April 8, 2020, Victims' son, Todd Hemler, returned home after being away for a few days and noticed that the coin jar in his room was missing. He checked the house and noticed that the larger coin jar located in Mr. Helmer's downstairs office was also missing. Victims confirmed that Appellant was the only other individual who had entered the house recently. Victims called the police and Appellant was questioned by the officers. Appellant left the property after being questioned and returned later in the day. Appellant walked up to Mr. Hemler and attempted to give Mr. Hemler an envelope containing $900.00. Appellant stated that he did not steal anything but wanted Mr. Hemler to have the money. Mr. Hemler testified that he refused to accept the envelope and immediately informed the police about the encounter. Additionally, the Commonwealth admitted into evidence a property receipt from a scrapyard and Mr. Hemler identified items on the receipt which were from his shop, taken without his knowledge or permission.

After the first day of trial, Appellant had a phone conversation with his grandmother from prison, which was recorded. In the conversation, Appellant told his grandmother to state on the witness stand that Appellant was locked up for 13 months without bail for a crime he did not commit in order to cause a mistrial. When his grandmother stated that she would not do so, Appellant said he would take matters into his own hands. The next morning, prior to the commencement of the second day of testimony, the Commonwealth informed Appellant of their knowledge of this phone call and sent troopers to interview Appellant's grandmother about the conversation. After some negotiations, Appellant agreed to enter an open guilty plea to burglary and the Commonwealth agreed not to seek a minimum sentence above the bottom of the standard guideline sentencing range, which was 48 months' imprisonment.

The court conducted a colloquy with Appellant regarding his open guilty plea to ensure that his plea was knowing, voluntary and intelligent. The court explained to Appellant that although the Commonwealth agreed not to seek a minimum sentence higher than 48 months, the court was not bound by the Commonwealth's position. Appellant indicated that he understood. Additionally, the court specifically asked Appellant if he was satisfied with his attorney's representation in his plea negotiation considering his prior claim of dissatisfaction with his counsel. Appellant indicated that he was satisfied with counsel's representation, had time to discuss his plea with counsel, and had no questions about the rights he was giving up by entering a guilty plea.

Satisfied that Appellant's plea was knowing, voluntary, and intelligent, the court accepted Appellant's open guilty plea on August 25, 2021, and ordered a pre-sentence investigation("PSI") report.

Appellant filed a pro se motion to withdraw guilty plea on September 3, 2021. Appellant retained new counsel, who entered his appearance on September 7, 2021, and filed a counseled motion to withdraw the guilty plea on September 16, 2021. The court held a hearing on the motion on October 1, 2021. Appellant testified that he was innocent of the crime and felt pressured to plead guilty because his prior counsel was not properly prepared to defend him at trial and failed to pursue viable defenses. The Commonwealth introduced the transcript of the phone conversation Appellant had with his grandmother regarding Appellant's attempt to cause a mistrial as evidence that Appellant made a knowing, voluntary and intelligent decision to plead guilty after being confronted with the weight of the evidence against him. The Commonwealth further argued that it would be prejudiced by Appellant's withdrawal of the guilty plea because a full day of testimony had already taken place in front of a jury prior to Appellant's plea. On October 7, 2021, the court denied Appellant's pre-sentence motion to withdraw the guilty plea.

On October 22, 2021, the court conducted a sentencing hearing. The Commonwealth refrained from making any sentencing recommendation, and the court sentenced Appellant to an aggravated range sentence of six to fifteen years of incarceration. On October 26, 2021, Appellant filed a motion for reconsideration of sentence and a second motion to withdraw the guilty plea. Appellant filed a third motion to withdraw the guilty plea on October 28, 2021. The court denied all three motions on November 8, 2021. Appellant filed a timely notice of appeal on November 17, 2021. The court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on November 19, 2021, and Appellant timely complied on December 3, 2021.

Appellant raises the following issues for our review:

1)Did the trial court abuse its discretion in refusing to allow Appellant to withdraw his plea of guilty to the charge of burglary prior to

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