Com. v. Barrett, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS BARRETT :
:
Appellant : No. 799 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003088-2019
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 21, 2021
Appellant Curtis Barrett appeals from the judgment of sentence imposed
following his jury trial convictions for burglary, robbery, two counts of
aggravated assault, and related offenses.1 Appellant contends that the trial
court imposed an illegal sentence by not merging the count of aggravated
assault under Section 2702(a)(4) with aggravated assault under Section
2702(a)(1). Appellant also claims that he is entitled to a new trial based on
his trial counsel’s ineffectiveness. We affirm.
The trial court summarized the facts of this appeal as follows:
On June 3, 2019, at approximately 3:00 a.m., Helmut Theil
(“Theil”), a 73-year-old man, was entering his apartment located
at 201 South Fifth Street, Reading, Berks County, Pennsylvania.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3502(a)(1)(i), 3701(a)(1)(i), 2702(a)(1), 2702(a)(4),
3503(a)(1)(i), 3921(a), 2701(a)(1), and 2709(a)(1), respectively.
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Notes of Testimony, Jury Trial, January 9, 2020, to January 10,
2020 (“N.T.”) at 58, 91, 98. Shortly after Theil entered his
apartment, [Appellant] entered Theil’s apartment and demanded
Theil’s money, ATM/MAC card, cell phone and the numbers for his
ATM/MAC card. N.T. at 58, 59, 61, 94, 139, 140. [Appellant] also
physically assaulted Theil. N.T. at 60. [Appellant] struck Theil in
the head and knee with a piece of lumber that resembled a table
leg. N.T. at 63-64, 95. [Appellant] then covered Theil’s head with
a blanket and struck him with a hard, compact object that Theil
was unable to see. N.T. at 64-66, 96. Theil was struck at least
15 to 20 times by [Appellant]. N.T. at 64. While Theil’s head was
covered with a blanket, [Appellant’s] assault on Theil broke Theil’s
glasses, lacerated/punctured Theil’s eye, and caused Theil’s eye
to fall out of its socket. N.T. at 65-66, 67, 68, 70-71, 81-82, 122-
123. [Appellant] took Theil’s cell phones (2), ATM/MAC card and
money without Theil’s consent. N.T. at 61-62, 92, 94, 95, 105,
215. Theil did not give [Appellant] permission to enter his
apartment and told him to leave three or four times. N.T. at 63.
As a result of [Appellant’s] actions, Theil is now blind in one eye.
N.T. at 66, 74-75. Theil was at the Reading Hospital for three
days as a result of [Appellant’s] assault and underwent emergency
surgery due to his injuries. N.T. at 67, 71-72, 85, 192. After
[Appellant’s] assault on Theil, Theil was unable to eat or sleep.
N.T. at 74. Theil had difficulty walking and would constantly feel
dizzy. N.T. at 74. He then continued his medical care with a V.A.
doctor. N.T. at 74-75.
Trial Ct. Op., 9/8/20, at 2-3.
Appellant proceeded to a jury trial on January 6, 2020, and the jury
found him guilty of the above-mentioned crimes on January 10, 2020. The
trial court sentenced Appellant on January 13, 2020, to an aggregate term of
twenty-five to sixty years’ imprisonment.2
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2 Specifically, the trial court sentenced Appellant to the following terms of
incarceration: Count 1 (burglary)—six to twenty years consecutive to Count
3; Count 2 (robbery)—ten to twenty years; Count 3 (aggravated assault
(Section 2702(a)(1))—nine to twenty years consecutive to Count 2; and Count
(Footnote Continued Next Page)
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Kathleen D. Dautrich, Esq. (trial counsel) represented Appellant from
the pretrial proceedings through sentencing. Trial counsel also timely filed
post-sentence motions, which the trial court denied, a timely notice of appeal,
and a Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a)
opinion.
On December 9, 2020, this Court dismissed the appeal based on trial
counsel’s failure to file a brief. On December 21, 2020, our Court reinstated
the appeal. After trial counsel again failed to file a brief, this Court remanded
the matter to the trial court for the appointment of substitute counsel.
On May 3, 2021, the trial court appointed Douglas J. Waltman, Esq.
(present counsel), to represent Appellant. Present counsel filed an appellate
brief that abandoned the issues raised in trial counsel’s Rule 1925(b)
statement and raised two new claims concerning the legality of the trial court’s
sentence and the ineffectiveness assistance of trial counsel.3
Specifically, Appellant presents the following issues in his brief:
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4 (aggravated assault (Section 2702(a)(4))—five to ten years consecutive to
Count 2 but concurrent with Count 3. The trial court merged the remaining
counts.
3 The trial court’s Rule 1925(a) opinion addressed the issues that trial counsel
raised in her Rule 1925(b) statement. The trial court did not address the two
new claims that present counsel raised in this appeal. We note the
Commonwealth’s argument that Appellant’s failure to preserve his appellate
issues in a Rule 1925(b) statement requires a finding of waiver.
Commonwealth’s Brief at 7; see Pa.R.A.P. 1925(b)(4)(vii); Commonwealth
v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011). We will discuss below the
Commonwealth’s waiver arguments with respect to each of Appellant’s issues.
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1. Whether it was illegal to sentence Appellant on Count 4,
aggravated assault, 18 Pa.C.S. §2702(a)(4), when Count 4 is
a lesser included offense of Count 3, aggravated assault, 18
Pa.C.S. §2702(a)(1) under the cognate-pleading approach?
2. Whether trial counsel’s performance, on the face of the record,
is so deficient as to warrant a remand for new trial?
Appellant’s Brief at 9 (formatting altered).
Appellant first claims that the separate sentences for aggravated assault
under Section 2702(a)(1) and (a)(4) are illegal. Appellant argues that “[a]
simplistic and mechanical application of the statutory elements approach to
this case permits Appellant to be sentenced twice for the same conduct.” Id.
at 33. Appellant contends that the trial court should have used an
“evidentiary” or “cognate pleading” approach to determine whether two
subsections of the same criminal statute merge for sentencing.4 Id. at 30-
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4 By way of background, our Supreme Court summarized the three approaches
to determine what constitutes a lesser included offense as follows:
The statutory-elements approach began at common law and is
used in the federal courts and in various state courts. Under this
approach, the trial court is required to identify the elements of
both the greater charge and the lesser charge and determine
whether it is possible to commit the greater offense without
committing the lesser offense. If it is not possible, then the lesser
offense is considered a lesser-included offense of the greater
crime.
Pursuant to the cognate-pleading approach, there is no
requirement that the greater offense encompass all of the
elements of the lesser offense. Rather, it is sufficient that the two
offenses have certain elements in common. The focus of this
approach is on the pleadings as the trial court must determine
whether the allegations in the pleadings charging the greater
(Footnote Continued Next Page)
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31. According to Appellant, the trial evidence established that Appellant
struck Theil repeatedly with objects resulting in permanent vision loss. Id. at
33. Appellant continues, “Because the same underlying conduct establishes
the elements of both [Section 2702(a)(1) and (a)(4)], the lesser [Section]
2702(a)(4) is a lesser-included offense even though the two offenses have
distinct elements.” Id.
The Commonwealth asserts that Appellant’s merger argument lacks
merit pursuant to 42 Pa.C.S. § 9765 and this Court’s decision in
Commonwealth v. Rhoades, 8 A.3d 912 (Pa. Super. 2010).
Commonwealth’s Brief at 8-9. The Commonwealth also argues that the trial
court properly imposed separate sentences for aggravated assault because
Appellant committed separate assaults, one with table leg, the other with the
unidentified hard object. Id. at 9-11.
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offense include allegations of all of the elements of the lesser
offense. If so, the lesser charge is considered a lesser-included
offense of the greater charge. As this approach centers on the
pleadings of the case, notice and due process violations are not
generally grave concerns.
Finally, the evidentiary approach looks to the actual evidence
established at trial to assess the relationship between the greater
and lesser charges. The lesser offense may have elements that
are distinct from the greater offense and still be considered a
lesser-included offense, as long as the evidence presented at trial
to prove the greater offense actually establishes the elements of
the lesser offense. Generally, courts adopting this approach
require that the same underlying conduct establish the elements
of both offenses.
Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007) (citations omitted).
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Whether a defendant’s convictions merge for sentencing purposes is a
question implicating the legality of sentence. Commonwealth v. Quintua,
56 A.3d 399, 400 (Pa. Super. 2012). “[A] challenge to the legality of the
sentence can never be waived . . . .” Commonwealth v. Wolfe, 106 A.3d
800, 801 (Pa. Super. 2014) (citation omitted).5 Further, our standard of
review is de novo, and the scope of our review is plenary. Commonwealth
v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Section 9765 provides, in part, as follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
“The statute’s mandate is clear. It prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other.” Baldwin, 985 A.2d at 833. “If the offenses stem
from two different criminal acts, merger analysis is not required.”
Commonwealth v. Healey, 836 A.2d 156, 157-58 (Pa. Super. 2003)
(citation omitted).
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5 To the extent the Commonwealth claims that Appellant waived his challenge
to the legality of his sentence for failing to include it in his Rule 1925(b)
statement, the Commonwealth’s claim is meritless; therefore, we decline to
find waiver. See Wolfe, 106 A.3d at 801; Quintua, 56 A.3d at 400.
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The aggravated assault statute provides, in part:
(a) Offense defined.—A person is guilty of aggravated assault if
he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life;
* * *
(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon;
18 Pa.C.S. § 2702(a)(1), (4).
In Rhoades, this Court rejected the appellant’s argument that his
sentences for aggravated assault under Section 2702(a)(1) and (4) merged.
Rhoades, 8 A.3d at 918. The Rhoades Court reasoned that the offenses
under Sections 2702(a)(1) and (4) “did not share identical statutory
elements” because Section 2702(a)(4) required proof that the appellant used
a deadly weapon, while Section 2702(a)(1) required proof that the appellant
caused or attempted to cause serious bodily injury regardless of the “mode of
causing such an injury.” Id. (citation omitted) (emphasis in original).
Based on the foregoing, we agree with the Commonwealth that
Appellant’s merger argument merits no relief. Section 9765 requires this
Court to consider the elements of the offenses if merger applies. See 42
Pa.C.S. § 9765; Baldwin, 985 A.2d at 833. This Court’s decisional law holds
that the elements of Section 2702(a)(1) and (4) do not warrant merger, and
we are bound by that precedent. See Rhoades, 8 A.3d at 918; see also
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Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (noting that
“[t]his Court is bound by existing precedent under the doctrine of stare decisis
and continues to follow controlling precedent as long as the decision has not
been overturned by our Supreme Court” (citations omitted)). Accordingly, we
discern no error in the trial court’s decision to separately sentence Appellant
on the two counts of aggravated assault. See Baldwin, 985 A.2d at 833;
Rhoades, 8 A.3d at 918.
Appellant next contends that trial counsel’s ineffectiveness merits a new
trial. Appellant recognizes the general rule favoring the deferral of ineffective
assistance of counsel claims to a post-conviction collateral review. Appellant’s
Brief at 27. However, Appellant asserts that “trial counsel’s ineffectiveness
screams off the pages of the record in this matter.” Id. at 27 (formatting
altered). Appellant raises numerous arguments concerning trial counsel’s
performance in areas including trial counsel’s trial preparation, advice about
a plea offer, and objections at jury selection, trial, closing arguments, and
sentencing. Id. at 35-46. Appellant claims that “trial counsel did much wrong
and nothing well.” Id. at 46 (formatting altered).
The Commonwealth answers that Appellant did not preserve his
ineffectiveness claims for review in a direct appeal. Commonwealth’s Brief at
13. The Commonwealth concludes that “[a]s a result, this Court should . . .
dismiss this claim in favor of a later [Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546,] petition.” Id.
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Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79
A.3d 562, 576-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA
review. Id. However, our Supreme Court has recognized three exceptions to
the general rule. In Holmes, the Supreme Court held that a trial court has
discretion to address ineffectiveness claims on direct review in cases where
(1) there are extraordinary circumstances in which trial counsel’s
ineffectiveness is apparent from the record and “meritorious to the extent that
immediate consideration best serves the interests of justice[;]” or (2) “there
is good cause shown” and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his conviction and sentence.
Holmes, 79 A.3d at 563-64. The third exception requires “trial courts to
address claims challenging trial counsel’s performance where the defendant is
statutorily precluded from obtaining subsequent PCRA review.”
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).
Here, Appellant did not present his ineffective claims to the trial court,
nor did he waive his right to PCRA review. See Holmes, 79 A.3d at 564.
Further, Appellant’s failure to raise his ineffectiveness claims in a Rule 1925(b)
statement results in waiver pursuant to Rule 1925(b)(4)(vii). See Pa.R.A.P.
1925(b)(4)(vii); Hansley, 24 A.3d at 415. Therefore, Appellant did not
preserve his claims for review.
In any event, the record does not indicate that extraordinary
circumstances exist. See Holmes, 79 A.3d at 563-64. Further, Appellant is
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not statutorily barred from seeking PCRA relief. See Delgros, 183 A.3d at
361. Because none of the exceptions apply, we conclude that Appellant’s
ineffectiveness claims cannot be considered on direct appeal and dismiss them
without prejudice to Appellant’s right to raise them in a timely PCRA
proceeding.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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