Com. v. Schultz, Jr., P. , 116 A.3d 1116 ( 2015 )

J-A10020-15
2015 Pa. Super. 106
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER J. SCHULTZ, JR.
Appellant No. 1541 MDA 2014
Appeal from the Judgment of Sentence September 4, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000114-2012
CP-54-CR-0000117-2012
CP-54-CR-0000654-2011
CP-54-CR-0000655-2011
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
OPINION BY MUNDY, J.: FILED MAY 04, 2015
Appellant, Peter J. Schultz, Jr., appeals from the September 4, 2014
aggregate judgment of sentence of 52 to 104 months’ imprisonment,
imposed following the revocation of his state intermediate punishment (SIP)
sentence. After careful review, we affirm.
A previous panel of this Court summarized the relevant factual and
procedural background of this case as follows.
The Commonwealth charged Appellant with
multiple counts of possession of a controlled
substance, possession with intent to deliver, delivery
of a controlled substance, and possession of drug
paraphernalia at the above-captioned criminal docket
numbers. Appellant entered a negotiated guilty plea,
and on May 17, 2012, the trial court imposed a
sentence of 24 months of [SIP], with 59 days of
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credit for time served dating to March 20, 2012. On
March [7], 2014[1], shortly before the 24-month SIP
sentence was set to expire, the trial court found
Appellant in violation of [his SIP] and therefore
ordered him to serve an additional three months.
Commonwealth v. Schultz, --- A.3d ---, 580 MDA 2014 (Pa. Super. 2015)
(unpublished memorandum at 2) (footnote omitted). Appellant filed a
timely notice of appeal, which was docketed in this Court at 580 MDA 2014.
On January 27, 2015, this Court vacated the trial court’s order and
remanded for further proceedings. We held that the trial court lacked
jurisdiction to enter its order, as it was done outside the 30-day period for
modifications under Section 5505 of the Judicial Code. Id. at 4; see also
42 Pa.C.S.A. § 5505 (stating, “a court upon notice to the parties may modify
or rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been
taken or allowed[]”). Neither party filed a petition for allowance of appeal
with our Supreme Court.
Notwithstanding the pendency of Appellant’s appeal from its March 7,
2014 order, the trial court conducted another revocation hearing on June 12,
2014. The underlying basis for this hearing was the notification to the trial
court by the Department of Corrections (DOC) that it had expelled Appellant
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1
This Court explained in our previous memorandum that the trial court’s
order was not entered onto its docket until March 7, 2014. Commonwealth
v. Schultz, --- A.3d ---, 580 MDA 2014 (Pa. Super. 2015) (unpublished
memorandum at 1 n.1).
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from the SIP program. N.T., 6/12/14, at 8. At the conclusion of said
hearing, the trial court revoked Appellant’s SIP sentence and scheduled a
resentencing hearing. Id. at 41. On September 4, 2014, the trial court
imposed a new aggregate sentence of 52 to 104 months’ imprisonment. On
September 8, 2014, the trial court entered an order granting Appellant
certain credit for time served. On September 15, 2014, Appellant filed a
timely notice of appeal.2
On appeal, Appellant raises the following five issues for our review.
1. Whether the [trial court] committed an error of
law in concluding that a Commonwealth
witness was a custodian of records, thus
allowing his testimony to be received and
considered under the business records
exception to the hearsay rule[?]
2. Whether the [trial court] committed an error of
law and/or an abuse of discretion in finding []
Appellant in violation of the requirement of the
[SIP] program, and thus before the [trial
c]ourt for sentencing, based on hearsay
testimony[?]
3. Whether the [trial court] committed an abuse
of discretion in allowing the Commonwealth to
re-open its case and recall a witness and elicit
further testimony after the Commonwealth
closed its case and [] Appellant’s attorney gave
a closing statement[?]
4. Whether the [trial court] committed an error of
law and abuse of discretion by allowing the
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Commonwealth to recall a witness and elicit
further testimony after the Commonwealth
closed its case and [] Appellant’s attorney gave
a closing statement, the effect of which was to
deny [] Appellant his right to counsel by
allowing the Commonwealth to fill in the gaps
of its case that [] Appellant’s counsel had
pointed out in a closing argument, thus
converting [] Appellant’s counsel from an
advocate for [] Appellant to an adviser to the
Commonwealth[?]
5. Whether the [trial court] committed an error of
law in sentencing Appellant on September 4
and 8, 2014 since the evidence demonstrated
that [] Appellant had completed the [SIP]
program and was properly released[?]
Appellant’s Brief at 4.
We elect to address Appellant’s first four issues together. In his first
two issues, Appellant avers that the trial court erroneously admitted hearsay
evidence pursuant to the business records exception. Appellant’s Brief at 7-
8. In his third and fourth issues, Appellant avers the trial court erred when
it granted the Commonwealth’s request to reopen the record after Appellant
had given his closing argument to the trial court. Id. at 8-9. The
Commonwealth and the trial court argue that none of these issues merit
relief because the evidence proffered was beyond the scope of what the trial
court was statutorily permitted to decide at the revocation hearing.
Commonwealth’s Brief at 8; Trial Court Opinion, 11/6/14, at 6. We begin by
noting our well-settled standard of review regarding these issues.
The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
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discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted), appeal denied, 83
A.3d 167 (Pa. 2013). We likewise review a trial court’s decision to grant a
party’s request to reopen the record for an abuse of discretion.
Commonwealth v. Safka, 95 A.3d 304, 309 (Pa. Super. 2014), appeal
granted in part, 104 A.3d 525 (Pa. 2014).
Here, the testimony that Appellant objects to in his first four issues
was from Jerome Koerner, a SIP Coordinator with the DOC. On appeal,
Appellant objects to the parts of Koerner’s testimony pertaining to the three
underlying violations that caused Appellant to be expelled from the program.
Appellant’s Brief at 7. Appellant also objects to the trial court allowing the
Commonwealth to reopen the record to introduce evidence of additional
violations of the program that occurred before the trial court’s March 5, 2014
modification order, which was the subject of the appeal at 580 MDA 2014.
Id. at 8.
This Court has previously explained the purpose of the SIP program in
the following terms.
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The legislature enacted SIP in November 2004.
SIP is a two-year program designed to benefit
persons with drug and alcohol problems. In order to
be eligible for the SIP program, a defendant cannot
have a history of present or past violent behavior
and the [DOC] must determine that the defendant is
in need of drug and alcohol treatment.
Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa. Super. 2010)
(internal citation omitted). The governing statutes state that the DOC is
charged with promulgating regulations regarding the administration of the
SIP program. 61 Pa.C.S.A. § 4106. This includes regulations governing a
participant’s expulsion from the program. Id. Section 4105(f) also pertains
to expulsion from the SIP program, and provides as follows.
§ 4105. Drug offender treatment program
(a) Establishment.--The department shall establish
and administer a drug offender treatment program
as a State intermediate punishment. The program
shall be designed to address the individually
assessed drug and alcohol abuse and addiction needs
of a participant and shall address other issues
essential to the participant’s successful reintegration
into the community, including, but not limited to,
educational and employment issues.
…
(f) Expulsion from program.--
(1) A participant may be expelled from the
drug offender treatment program at any time
in accordance with guidelines established by
the department, including failure to comply
with administrative or disciplinary procedures
or requirements set forth by the department.
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(2) The department shall promptly notify the
court, the defendant, the attorney for the
Commonwealth and the commission of the
expulsion of a participant from the drug
offender treatment program and the reason for
such expulsion. The participant shall be
housed in a State correctional institution or
county jail pending action by the court.
(3) The court shall schedule a prompt State
intermediate punishment revocation hearing
pursuant to 42 Pa.C.S. § 9774 (relating to
revocation of State intermediate punishment
sentence).
Id. § 4105. Furthermore, Section 9774 of the Sentencing Code, referenced
in Section 4105(f)(3) above, states as follows.
§ 9774. Revocation of State intermediate
punishment sentence
(a) General rule.--The court may at any time
terminate a sentence of State intermediate
punishment pursuant to 61 Pa.C.S. Ch. 41 (relating
to State intermediate punishment).
(b) Revocation.--The court shall revoke a sentence
of State intermediate punishment if after a hearing it
determines that the participant was expelled from
or failed to complete the program.
(c) Proceedings upon revocation.--Upon
revocation of a State intermediate punishment
sentence, the sentencing alternatives available to the
court shall be the same as the alternatives available
at the time of initial sentencing. The attorney for the
Commonwealth must file notice, at any time prior to
resentencing, of the Commonwealth’s intention to
proceed under an applicable provision of law
requiring a mandatory minimum sentence.
42 Pa.C.S.A. § 9774 (emphasis added).
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In addition, when analyzing statutory text, we note the following.
“Under the Statutory Construction Act of 1972, … our
paramount interpretative task is to give effect to the
intent of our General Assembly in enacting the
particular legislation under review.”
Commonwealth v. Spence, 91 A.3d 44, 46 (Pa.
2014) (citation omitted). “We are mindful that the
object of all statutory interpretation is to ascertain
and effectuate the intention of the General Assembly
… and the best indication of the legislature’s intent is
the plain language of the statute.” Commonwealth
v. Walter, 93 A.3d 442, 450 (Pa. 2014) (citation
omitted). “When the words of a statute are clear
and unambiguous, we may not go beyond the plain
meaning of the language of the statute under the
pretext of pursuing its spirit.” Id., citing 1 Pa.C.S.A.
§ 1921(b). However, only “when the words of the
statute are ambiguous should a reviewing court seek
to ascertain the intent of the General Assembly
through considerations of the various factors found
in Section 1921(c) of the [Statutory Construction
Act].” Id. at 450–451, citing 1 Pa.C.S.A. § 1921(c).
In re D.M.W., 102 A.3d 492, 494 (Pa. Super. 2014).
In considering the statutes listed above, we conclude their text is
unambiguous. Section 4105(a) requires the DOC to “establish and
administer a drug offender treatment program as a [SIP].” 61 Pa.C.S.A. §
4105(a). The DOC is also statutorily tasked with “develop[ing] written
guidelines for participant selection criteria and the establishment of drug
offender treatment program selection committees within each diagnostic and
classification center of the department and shall address suspensions and
expulsions from the drug offender treatment program.” Id. § 4106
(emphasis added). Section 4105(f)(1) vests solely in the DOC the decision
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of “expel[ling a participant] from the drug offender treatment program at
any time in accordance with guidelines established by the department.” Id.
§ 4105(f)(1). The DOC is required to “promptly notify the court, the
defendant, the attorney for the Commonwealth and the [Pennsylvania
Commission on Sentencing] of the expulsion of a participant from the drug
offender treatment program and the reason for such expulsion.” Id. §
4105(f)(2). The trial court is required to conduct a revocation hearing under
Section 4105(f)(3) and “determine [whether] the participant was expelled
from or failed to complete the program.” 42 Pa.C.S.A. § 9774(b) (emphasis
added).
The plain text of Section 9774(b), coupled with the General Assembly’s
use of past tense, reveal that when addressing a revocation under Section
9774(b) the trial court is limited to the question of whether the DOC
expelled the defendant from the program, or whether the defendant failed to
complete the same. Id. The trial court is not required, or even legally
permitted, to act in an appellate capacity and decide for itself de novo
whether Appellant actually violated the terms of the SIP program. Had the
General Assembly wished for the trial court to conduct such an inquiry, it
would have used different language in the text of Section 9774(b), directing
or authorizing it to do so. Conversely, Section 9774(b) in its present form
only requires the Commonwealth to prove the fact of expulsion or non-
completion. Once the trial court finds this fact, it is required to revoke under
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Section 9774(b). See id. (stating, “[t]he [trial] court shall revoke a
sentence”); Koken v. Reliance Ins. Co., 893 A.2d 70, 81 (Pa. 2006)
(stating, “the term shall is mandatory for purposes of statutory construction
when a statute is unambiguous[]”) (internal quotation marks and citation
omitted). It is legally irrelevant to the issue before the trial court what the
reasons for Appellant’s expulsion were. Such a determination is the
province of the DOC and was already made internally before the trial court
conducted its revocation hearing.
Applying this framework to the instant case, we agree with the
Commonwealth that the testimony Appellant objected to was legally
irrelevant to the question of whether Appellant was actually expelled from
the SIP program by the DOC. Here, as noted above, all four of Appellant’s
issues pertain to testimony from Koerner concerning the particular violations
that led to Appellant’s expulsion from the SIP program. Appellant’s Brief at
7-9. However, as we have explained, this was not the question that the trial
court was charged with deciding. In addition, Appellant conceded twice on
the record that the DOC did in fact expel him from the program.
[Trial Court]: Well, the Court is going to conduct
a hearing today and allow the testimony of the
Commonwealth. Apparently [the Commonwealth]
subpoenaed a witness to be here, and the witness is
present?
[Commonwealth]: Yes, Your Honor.
[Trial Court]: Who is that?
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[Commonwealth]: It’s Jerome Koerner from
[the DOC], Your Honor.
[Trial Court]: Do[es Appellant] have any
objection to that?
[Defense Counsel]: I don’t have any objection, I
suppose, simply because the practical reality here is
… [t]he [SIP] Program has evidently told him he’s
not welcome back in it, so he’s sort of in a state of
limbo right now. I don’t know what could
conceivably happen if Your Honor didn’t do
something here today, because the [SIP] Program
won’t take him in; so I don’t know where that would
leave him. He’s got to go somewhere as a result of
today.
…
[Defense Counsel]: … I would like to make a
closing argument on my client’s behalf.
[Trial Court]: Yes, you may. I am going to - -
after that, I will set up a sentencing date as you
suggested.
[Defense Counsel]: Thank you. Your Honor, I
understand that practical reality as I said at the
outset of this hearing is that he cannot get back into
the SIP program because they have excluded him.
Even if Your Honor wanted to put him back in, they
won’t take him. I understand that.
…
N.T., 6/12/14, at 8-9, 29 (emphases added). As the sole fact to be proven
at the Section 9774(b) hearing was conceded by Appellant, we agree with
the Commonwealth and the trial court that any errors in the admission of
Koerner’s testimony concerning the underlying SIP program violations were
harmless, as said testimony was legally irrelevant for the purposes of the
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revocation hearing. As a result, Appellant is not entitled to relief on his first
four issues.
In his fifth issue, Appellant argues that the trial court erred in
imposing a new judgment of sentence on September 4, 2014, when he had
already completed the SIP program. Appellant’s Brief at 4. Before we may
address the merits of this claim, we must first determine whether it is
previously litigated as law of the case.3 This Court has previously explained
the law of the case doctrine in the following terms.
The law of the case doctrine refers to a
family of rules which embody the concept that
a court involved in the later phases of a
litigated matter should not reopen questions
decided by another judge of that same court or
by a higher court in the earlier phases of the
matter…. The various rules which make up the
law of the case doctrine serve not only to
promote the goal of judicial economy … but
also operate (1) to protect the settled
expectations of the parties; (2) to insure
uniformity of decisions; (3) to maintain
consistency during the course of a single case;
(4) to effectuate the proper and streamlined
administration of justice; and (5) to bring
litigation to an end.
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3
We note that we could deem Appellant’s issue waived for lack of a
developed argument in his brief. See Pa.R.A.P. 2119(a) (stating, “[t]he
argument shall be divided into as many parts as there are questions to be
argued … followed by such discussion and citation of authorities as are
deemed pertinent[]”). However, as we discuss infra, we deem this issue
previously litigated under the law of the case doctrine. Therefore, we
decline to find waiver in this instance. See id. at 2101 (stating, “if the
defects … in the brief … of the appellant … are substantial, the appeal …
may be … dismissed[]”) (emphasis added).
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Commonwealth v. McCandless, 880 A.2d 1262,
1267 (Pa. Super. 2005), appeal dismissed as
improvidently granted, 933 A.2d 650 ([Pa.] 2007)
(quoting Commonwealth v. Starr, 664 A.2d 1326,
1331 ([Pa.] 1995)). Thus, under the doctrine of the
law of the case,
when an appellate court has considered and
decided a question submitted to it upon
appeal, it will not, upon a subsequent appeal
on another phase of the case, reverse its
previous ruling even though convinced it was
erroneous. This rule has been adopted and
frequently applied in our own State. It is not,
however, inflexible. It does not have the
finality of the doctrine of res judicata. “The
prior ruling may have been followed as the law
of the case but there is a difference between
such adherence and res judicata; one directs
discretion, and the other supercedes [sic] it
and compels judgment. In other words, in one
it is a question of power, in the other of
submission.” The rule of the “law of the case”
is one largely of convenience and public policy,
both of which are served by stability in judicial
decisions, and it must be accommodated to the
needs of justice by the discriminating exercise
of judicial power.
[Id.] at 1268 … (quoting Benson v. Benson, 624
A.2d 644, 647 ([Pa. Super.] 1993)).
Commonwealth v. Gacobano, 65 A.3d 416, 419-420 (Pa. Super. 2013)
(parallel citations omitted).
In our January 27, 2015 memorandum, this Court “address[ed]
Appellant’s argument that [this Court] should [have] order[ed] him
discharged, inasmuch as the term of sentence [had then] expired.”
Schultz, supra at 6. Appellant argued the issue in his brief to this Court.
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See generally Appellant’s Brief, 580 MDA 2014, at 7. Addressing his
argument, we concluded that “Appellant failed to complete his SIP sentence
successfully by the end of the 24-month term of the sentence.” Id. at 7. As
noted above, Appellant did not seek further review from our Supreme Court.
Therefore, the holding by this Court’s prior panel constitutes the law of the
case as it pertains to Appellant’s re-articulation of the issue in the instant
appeal. See Gacobano, supra. Further, Appellant advances no basis for
concluding that our adherence to the prior ruling should be “accommodated
to the needs of justice” in this case and we perceive none. Id. For these
reasons, Appellant is not entitled to relief on his last issue.
Based on the foregoing, we conclude all of Appellant’s issues are
devoid of merit. Accordingly, the trial court’s September 4, 2014 judgment
of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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