Com. v. Gadaleta, P. ( 2014 )

J-S41038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATRICIA E. GADALETA
Appellant No. 373 EDA 2014
Appeal from the Judgment of Sentence November 30, 2012
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000285-2011
BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 04, 2014
Appellant, Patricia E. Gadaleta, appeals from the November 30, 2012
following her conviction by a jury of identity theft, and two counts of
forgery.1 After careful review, we affirm.
The trial court, in its March 17, 2014 memorandum opinion, has aptly
summarized the factual and procedural history of this case, which we need
not repeat in full here. In brief, Appellant was charged on September 19,
2011, with the aforementioned charges plus receiving stolen property and
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1
18 Pa.C.S.A. §§ 4120(a), 4101(a)(3), and 4101(a)(2), respectively. The
imposed the same day at trial court docket number CP-13-CR-0000975-
2011. This Court affirmed the judgment of sentence at CP-13-CR-0000975-
2011 at Commonwealth v. Gadaleta, 3502 EDA 2012 (unpublished
memorandum, November 6, 2013), appeal denied, 955 MAL 2013 (Pa. May
28, 2014).
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verdict, Appellant filed post-trial motions, seeking judgment of acquittal as
to the receiving stolen property charge and seeking a mistrial on the basis of
infra. The trial court
conducted a hearing on the motions on November 16, 2012, and granted the
motion for judgment of acquittal as to count three, receiving stolen property,
sentenced Appellant on November 30, 2012. Appellant filed timely post-
sentence motions on December 10, 2012. Subsequently, Appellant filed a
premature appeal, which this Court quashed and remanded for disposition of
-sentence motions. Commonwealth v. Gadaleta, 3501
EDA 2012 (unpublished memorandum, November 6, 2013). After remand,
ost-sentence motions on January 8, 2014.
Appellant filed a timely notice of appeal on January 23, 2014.2
On appeal, Appellant raises the following questions for our review.
1.
ability to defend herself at trial by advising her
that her criminal record would be used against
her without having filed a pre-trial motion to
determine the admissibility of such record and
by advising her that her prior convictions
would be used against her at trial and that she
could not take the stand without being
prejudiced by the prior convictions and fail to
explain to defendant that the crimes could only
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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be used under the circumstances set forth in
42 Pa. C.S. § 5918(c) Commonwealth v.
Garcia, 551 Pa. 616, 712 A.2d 746 (1998)?
2.
because the sentences imposed in 285 CR
2011 and 975 CR 2011 when imposed
consecutively are excessive and do not
represent a sentence that is a just punishment
or reflects the rehabilitative needs of the
defendant?
3. Did the court err in failing to grant [Appellant]
a new trial because the jury foreman was
unable to fully understand the evidence
because he is illiterate?
trial counsel. 3
Under the standard and for the reasons set forth by the Honorable Joseph J.
Matika, in his erudite
ineffectiveness of counsel claims are premature and should properly be
raised, if necessary, in a petition pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546. We additionally note, our Supreme Court
recently reaffirmed the holding of Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002) in Commonwealth v. Holmes, 79 A.3d 562, (Pa. 2013).
deferred to PCRA review; trial courts should not entertain claims of
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3
In her appellate brief, Appellant combined the first two issues presented in
her Rule 1925(b) concise statement of errors complained of on appeal into a
single question. The trial court discussed both sub-issues together in its
Rule 1925(a) opinion.
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ineffectiveness upon postverdict motions; and such claims should not be
reviewed Id. at 576. The Holmes Court noted two
that a claim (or claims) of ineffectiveness is both meritorious and apparent
eview
Id. at 577-578.
Commonwealth v. Bomar,
826 A.2d 831 (Pa. 2003), that the Commonwealth and the trial court were
obligated to develop a complete record on her ineffective assistance of
counsel claim because she presented it in a timely post-sentence motion is
Bomar, to the extent it had
direct appeal of a claim of ineffective assistance of counsel if the trial court
made a determination based on a fully developed record. Id. at 855. It
decidedly did not obligate a trial court to require development of the record
or to make a determination. Accordingly, we agree with the trial court that
the instant sentence consecutively to the sentence imposed at trial court
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docket number CP-13-CR-0000975-
the seriousness of the offense and the societal impact without considering
the other factors set for Id.
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discre Commonwealth v.
Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en banc) (internal
quotations and citations omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).
The Rules of Appellate Procedure mandate that to
obtain review of such claims, the appellant must
include in his brief a Concise Statement of Reasons
Relied Upon for Allowance of Appeal. See
[Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007)]; see also Pa.R.A.P. 2119(f). The
must, in turn, raise a
substantial question as to whether the trial judge, in
imposing sentence, violated a specific provision of
See
[Commonwealth v. Fiascki, 886 A.2d 261, 263
(Pa. Super. 2005)]; Commonwealth v. Ousley,
392 Pa.Super. 549, 573 A.2d 599, 601 (1990)
(citations and internal quotation marks omitted)
sentence are not to be granted as a matter of
course, but ... only in exceptional circumstances
where it can be shown in the 2119(f) statement that
despite the multitude of factors impinging on the
sentencing decisions, the sentence imposed
determination of whether a particular issue poses a
substantial question is to be made on a case-by-case
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basis. See Fiascki, 886 A.2d at 263. If the Rule
2119(f) statement is absent or if the statement
provided fails to demonstrate a substantial question,
this Court may refuse to accept the appeal. See id.
Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).
Instantly, Appellant preserved her issue in her post-sentence motion
and included a Rule 2119(f) statement in her appellate brief. Appellant
comport with sentencing norms by
argument, however, reduces the issue to a mere one-paragraph assertion
that the trial court erred in imposing the subject aggregate sentence
consecutively to a second sentence Appellant received the same day at
docket number CP-13-975-CR-
rehabilitative needs. Id. at 15. This fails to raise a substantial question.
[A] bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a
substantial question. See Commonwealth v.
Moury, 992 A.2d 162, 171 172 (Pa. Super. 2010)
concurrent, sentences may raise a substantial
question in only the most extreme circumstances,
such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014).
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Here, the sentence was within the standard range of the guidelines
and the trial court imposed the sentence after a full hearing and
-sentence report. Appellant offers no
development in her brief of any extreme circumstances particular to this
This
Court has long recognized that we will not consider issues where Appellant
fails to cite to any legal authority or otherwise develop the issue.
Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013). Further, we agree with the trial
wherein it explains why the particularized sentence entered in this case was
appropriate, how it considered all the statutory factors including Appellant
rehabilitative needs, and how the specific circumstances of Appellant and the
instant offenses warranted the sentence imposed. Trial Court Opinion,
3/17/14, at 11-13.
In her final issue, Appellant argues that the trial court erred in denying
her motion to declare a mistrial, alleging the jury foreperson was not a
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at 2, quoting N.T., 5/11/12, at 205.
Subsequently, Appellant filed a motion for mistrial.4
motion for mistrial is as follows:
A motion for a mistrial is within the
discretion of the trial court. A mistrial upon
motion of one of the parties is required only
when an incident is of such a nature that its
unavoidable effect is to deprive the appellant
of a fair and impartial trial. It is within the trial
court's discretion to determine whether a
defendant was prejudiced by the incident that
is the basis of a motion for a mistrial. On
appeal, our standard of review is whether the
trial court abused that discretion.
Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014), quoting
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003) (internal
citations and footnote omitted).
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4
Pennsylvania Rule of Criminal Procedure 605 provides as follows.
Rule 605. Mistrial
(B) When an event prejudicial to the defendant
occurs during trial only the defendant may move for
a mistrial; the motion shall be made when the event
is disclosed. Otherwise, the trial judge may declare
a mistrial only for reasons of manifest necessity.
Pa.R.Crim.P. 605(B). Because we discern no error or abuse of discretion in
r,
was timely. See Commonwealth v. Boring, 684 A.2d 561, 567-568 (Pa.
Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997).
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Appellant references Section 4502 of the Judicial Code, which
provides as follows.
§ 4502. Qualifications of jurors
(a) General rule.--Every citizen of this
Commonwealth who is of the required minimum age
for voting for State or local officials and who resides
in the county shall be qualified to serve as a juror
therein unless such citizen:
(1) is unable to read, write, speak and understand
the English language;
42 Pa.C.S.A. § 4502(a)(1).
Appellant argues that the trial court not only erred in denying its
motion for mistrial, but should have acted sua sponte when it became
Brief at 24.
[The trial court] should not have allowed the
reading of the Verdict Sheet to go forward and for
any verdict to be returned in the case. Rather, some
type of inquiry should have been undertaken to
ascertain whether or not the foreperson truly could
understand, comprehend and analyze the evidence,
understand the law as dictated by this Court and
truly arrive at an independent judgment concerning
guilt or innocence of the Defendant. However, the
Defendant reiterates her proposition that even if
such inquiry had been undertaken, there simply is no
way in which this Court could have concluded that
the foreperson should have been entrusted with the
responsibility of being a fact-finder in this case in
light of the obvious inability of the foreperson to read
even a single word appearing on the Verdict Sheet.
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Id. at 22.5
at which the trial court carefully performed a colloquy of the foreperson and
determined that the foreperson, although able to read only at an 8th grade
level, was able to independently review, understand, evaluate and determine
the evidence and issues presented in this case. Trial Court Opinion,
3/17/14, at 15-16. Accordingly, the foreperson was not a disqualified juror
under 42 Pa.C.S.A. § 4502(a)(1).
Further, even if appellant could show that a
disqualified juror sat on his case, he has not
identified any prejudice, and we will not, as urged by
fairness. Commonwealth v. Delligatti, 371
Pa.Super. 315, 538 A.2d 34 (1988) (appellant fails
dire prejudiced him); see also United States v.
Silverman, 449 F.2d 1341 (2d Cir.1971) (inclusion
in panel of a disqualified juror does not require
reversal of a conviction unless there is a showing of
actual prejudice).
Commonwealth v. Bullock, 558 A.2d 535, 537-538 (Pa. Super. 1989)
(internal quotation marks and some citations omitted), appeal denied, 575
A.2d 561 (Pa. 1990). Accordingly, we conclude the trial court did not abuse
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5
Appellant has not alleged any error in connection with jury selection or the
voir dire of the jury. Appellant has not asserted that the foreperson misled
or was dishonest to the court relative to his ability to read. See e.g.,
Commonwealth v. Kelly, 609 A.2d 175 (Pa. Super. 1992) (finding per se
prejudice where empanelled juror lied in voir dire about having a prior
record), appeal denied, 617 A.2d 1272 (Pa. 1992)
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standard of review, discusses the relevant law and explains the basis for its
conclusion that said claims lack merit. Instantly, we carefully reviewed the
and well-reasoned opinion of Judge Joseph J. Matika is in concert with our
own views as addressed above. We conclude the trial court did not abuse its
-trial motion for mistrial or her
post-sentence motion, requesting reconsideration of sentence and raising
premature issues of ineffective assistance of trial counsel. Accordingly, we
adopt the opinion by the Honorable Joseph J. Matika as our own for purposes
of further appellate review. See Trial Court Opinion, 3/17/14.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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