Commonwealth v. Tighe

184 A.3d 560

COMMONWEALTH of Pennsylvania

v.Patrick TIGHE, Appellant

No. 266 MDA 2017

Superior Court of Pennsylvania.

Argued October 17, 2017

Filed April 12, 2018

Terrence J. McDonald, Dunmore, for appellant.

Mariclare Hayes, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: BOWES, OLSON, AND RANSOM, JJ.

OPINION BY BOWES, J.:

Patrick Tighe appeals from the judgment of sentence of twenty to forty years incarceration, imposed following his convictions for, inter alia , rape, involuntary deviate sexual intercourse ("IDSI"), and sexual assault. We affirm the convictions, but vacate the judgment of sentence.

The trial court thoroughly set forth the facts underlying Appellant's convictions in its Pa.R.A.P. 1925(a) opinion, which we adopt herein:

On May 29, 2012, J.E. was 15 years of age. J.E. did not have a permanent residence. She lived at both her father's home and her grandmother's home in Scranton, Pennsylvania. On the night in question, J.E, resided at her father's residence with her older sister, [M.L.], and [M.L.]'s boyfriend, [C.E.]. J.E.'s mother and father were both incarcerated for drug usage. J.E. called the Defendant to drive her to a Wal–Mart to purchase tampons. The Defendant was 58 years of age. The Defendant agreed, and he drove his white minivan to meet J.E. J.E. entered the minivan and they proceeded to Wal–Mart. J.E purchased tampons at Wal–Mart and left the store with the Defendant a few minutes later. After the purchase, J.E. asked the Defendant to take her to a McDonald's restaurant. The Defendant agreed. Before reaching McDonalds, the Defendant expressed his desire to stop at his friend's house. The owner of the home was Joseph Hasham. The Defendant and J.E. entered the unoccupied home. J.E. used the restroom and searched the refrigerator—located in the kitchen—for a beverage. The Defendant entered the kitchen and pulled J.E. by the back of her shorts without warning. J.E. asked the Defendant what he was doing, but he did not reply. The Defendant took her into the living room, placed her on a couch, and flipped her on her back. J.E. repeatedly asked the Defendant to stop, but he covered her mouth. Despite J.E.'s protests, the Defendant removed her shorts; ripped out her tampon; and inserted his penis into her mouth and vagina. The incident lasted about 5 minutes.

After the Defendant raped J.E., she pleaded for the Defendant to drive her home. He eventually agreed, on the condition that she would not tell anybody about the incident. He also asked her to call him the next day. The Defendant drove J.E. to McDonalds. He borrowed Joseph Hasham's car because of a broken taillight in his own vehicle. Afterwards, he dropped her off at J.E.'s father's residence. J.E. rushed inside. She found [M.L.] and [C.E.] sleeping on the couch. The next morning—on May 30, 2012—J.E exhibited signs of distress and nervousness. J.E. told [M.L.] that the Defendant raped her, but J.E. asked [M.L.] not to discuss the incident with anyone else. Instead, [M.L.] called the police. Detective Vincent Uher from the Scranton Police Department responded and transported J.E. to the Children's Advocacy Center. The Children's Advocacy Center conducted a medical examination and collected a rape kit under the supervision of various experts. Joann Armaghan, a Forensic Scientist Supervisor for the Pennsylvania State Police, corroborated J.E.'s testimony and concluded that the test for the presence of saliva on J.E.'s neck and right breast was positive. Sara Harrier, a forensic DNA scientist for the Commonwealth of Pennsylvania, also corroborated J.E.'s testimony. Hamer testified that DNA on J.E.'s pubic hair contained a mixture of DNA from two individuals. Under statistical calculation, Hamer concluded that the most likely combination contained DNA of both J.E. and the Defendant.

Detective Uher learned that the Defendant tried to contact J.E. on her telephone, so he conducted a consensual phone intercept—also known as a wiretap—to gather additional information and/or evidence of the case. J.E. consented to the phone call. During the phone call, the Defendant made several incriminating statements, which eventually led to his arrest.

Trial Court Opinion, 7/28/16, at 7–10 (citations to transcript omitted).

Appellant represented himself at trial, and was convicted and sentenced on October 25, 2013 to an aggregate sentence of twenty to forty years incarceration. That sentence included the imposition of mandatory minimum sentences of ten to twenty years incarceration at the counts of rape and IDSI. The trial court imposed a concurrent sentence of one to two years at indecent assault, and an additional concurrent sentence of eight to sixteen years incarceration at unlawful contact with a minor.

Appellant filed post-sentence motions. The transcription of the notes of testimony was significantly delayed, leading to a September 18, 2015 motion requesting reinstatement of his post-sentence motion rights nunc pro tunc . The Commonwealth consented to this request, leading to a second set of post-sentence motions. While those motions remained active, the Commonwealth requested that the trial court vacate and resentence Appellant due to subsequent caselaw pertaining to mandatory minimum sentences.

On January 13, 2016, the trial court resentenced Appellant to the same aggregate sentence of twenty to forty years incarceration. However, as relevant to one of his issues on appeal, the trial court imposed a consecutive sentence for indecent assault whereas the original scheme called for a concurrent sentence at that charge.

Appellant filed a timely notice of appeal, and complied with the trial court's order to file a concise statement.¹ The trial court authored its opinion, and the matter is ready for review. Appellant raises eleven issues, which we have reordered for ease of discussion.²

1. Whether the trial court violated the Appellant's 6th Amendment rights under the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution by refusing to allow Appellant, acting pro se at trial, to cross-examine and/or question the victim at any time during trial or bail hearing, but instead required standby counsel to ask the victim all questions on Appellant's behalf using written questions prepared by Appellant in advance of cross-examination and/or questioning?

2. Whether the trial court committed an error of law and/or an abuse of discretion and/or otherwise violated the Appellant's right to a fair trial as guaranteed under both the United States Constitution and the Pennsylvania Constitution by refusing to rule on the Appellant's motion to recall thereby prejudicing the Appellant and his ability to properly present his defense?

3. Whether the trial court committed an error of law and/or an abuse of discretion, when it required Appellant to state every question he intended to ask the victim on recall with opposing counsel present thereby denying Appellant's right to a fair trial as guaranteed by both the United States Constitution and the Pennsylvania Constitution?

4. Whether the trial court abused its discretion and denied the Appellant's right to a fair trial as guaranteed by the United State[s] Constitution and the Pennsylvania Constitution when it allowed the victim to remain in the courtroom throughout the trial despite a sequestration order being issued and Appellant's intention to recall her despite the fact that Appellant requested to examine her in his case in chief?

5. Whether the trial court committed an error of law and/or an abuse of discretion, when it failed to grant a mistrial after the victim was allowed to hear her testimony, evidence and the subject matter of questions Appellant intended to ask her upon recall thereby prejudicing Appellant and denying him his right to a fair trial?

6. Whether the Appellant was denied his right to counsel in violation of the 6th Amendment of the United States Constitution and/or Article I, Section 9 of the Pennsylvania Constitution ?

7. Whether the trial court abused its discretion in appointing "stand-by counsel" for Appellant with whom the Appellant expressly stated he had irreconcilable differences and/or in failing to examine on the record whether such conflict actually existed as Appellant claimed?

8. Whether the trial court abused its discretion when it denied [Appellant's] request for an expert [to] be appointed to conduct independent testing, DNA testing and/or to assist him in his defense?

9. Whether the trial court committed an error of law and/or an abuse of discretion in limiting Appellant's right to cross-examine the Commonwealth's witness, [M.L.], about her drug use on the date of the incident?

10. Whether the trial court abused its discretion by denying Appellant's request to have his own psychological evaluation prior to the hearing to determine whether he was a sexually violent predator?

11. Whether the trial court issued an illegal sentence by finding that indecent assault did not merge for sentencing purposes or in the alternative abused its discretion when increas[ing] the sentence for indecent assault on resentence than what was originally imposed?

Appellant's brief at 5–7 (reordered).

I. Limitation Upon Cross–Examination of J.E.

Appellant's first argument appears to be an issue of first impression in this jurisdiction, and addresses the fact that the trial court granted the Commonwealth's motion to prohibit Appellant from personally cross-examining J.E. The Commonwealth filed the motion after Appellant, while at liberty and awaiting trial, contacted J.E. and asked her, "Why are you doing this to me? I didn't hurt you. Please don't put me in jail for life." N.T., 6/4/13, at 42. Following an evidentiary hearing at which J.E. testified to those facts and that the call scared her, the trial court granted the motion and required Appellant to provide Attorney Christopher Osborne, Appellant's stand-by counsel, with the questions he wished to ask J.E. at trial. The court...