Com. v. Kingston, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT BRADLEY KINGSTON
Appellant No. 2016 MDA 2012
Appeal from the PCRA Order October 22, 2012
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000735-2009
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 29, 2014
Appellant, Scott Bradley Kingston, appeals from the order dismissing
his petition pursuant to the Post Conviction Relief Act (“PCRA”). After careful
review, we affirm in part, vacate in part, and remand for further
proceedings.
As we write primarily for the parties, we set forth only so much of the
factual and procedural history as is necessary to address the issues raised in
this appeal. Kingston was arrested and charged with Driving Under the
Influence (“DUI”) of alcohol in 2008. While awaiting trial, Kingston was
imprisoned in the Wyoming County jail. On November 15, 2008, December
4, 2008, and December 16, 2008, Kingston wrote letters to Jennifer Mroz.
In the first letter, Kingston discussed the possibility of his father or his
mother testifying that they had been the driver of the vehicle when he was
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arrested. In the subsequent letters, Kingston suggested that Mroz take
responsibility as the driver of the vehicle on that night.
At Kingston’s trial in 2009, Mroz failed to appear and her preliminary
hearing testimony was read into the record. Kingston’s father testified, and
claimed that he had been driving the vehicle when Kingston was arrested.
Ultimately, the jury acquitted Kingston of DUI.
After the trial, the Commonwealth questioned Mroz on her failure to
appear at Kingston’s trial. While denying that she had intentionally failed to
appear, she conceded that she had been asked to perjure herself at trial.
She produced the letters Kingston had sent her from the Wyoming County
prison.
The Commonwealth subsequently charged Kingston with multiple
charges, including three charges of soliciting perjury relevant to the instant
appeal, and three charges of soliciting to hinder prosecution. A jury
convicted Kingston on the six relevant solicitation charges, and on May 17,
2010, the trial court sentenced Kingston on each of the six counts, as well as
two others. The trial court ran each sentence consecutively. This Court
affirmed Kingston’s judgment of sentence by order dated July 6, 2011, and
slightly under a month later, Kingston filed a pro se PCRA petition, which the
PCRA court dismissed without a hearing on December 5, 2011.
On May 2, 2012, Kingston filed a second timely PCRA petition through
counsel, which he amended on June 22, 2013. On October 22, 2012, the
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PCRA court entered an order dismissing Kingston’s second petition, and this
timely appeal followed.
On appeal, Kingston raises the following issues for our review:
A. Was the [c]ourt’s determination that 18 Pa.C.S. Section 906
does not prohibit Defendant from being sentenced to: three
(3) counts of solicitation of Jennifer Mroz to commit perjury
and three (3) counts of solicitation of Jennifer Mroz to hinder
prosecution of the Defendant in error? Furthermore, was the
Defendant entitled to relief under the Post Conviction Relief
Act (PCRA) for the following reasons: he was sentenced to a
term of imprisonment beyond the lawful maximum; he was
prejudiced by the ineffective assistance of counsel by not
raising this issue prior; and/or that the application of 18
Pa.C.S. Section 907 was in violation of the laws of
Pennsylvania?
B. Did the [c]ourt error in determining that the Defendant was
not prejudiced by the [c]ourt’s lack of venue and subject
matter jurisidiction?
Appellant’s Brief, at 5.
Our standard of review of a PCRA court’s denial of a petition for post-
conviction relief is well-settled. We must examine whether the record
supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. See Commonwealth v. Hall, 867 A.2d
619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our
scope of review is limited by the parameters of the PCRA. See
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).
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To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one of the errors listed in 42 PA.CONS.STAT.ANN. §
9543(a)(2)(i)-(viii). Commonwealth v. Albrecht, 554 Pa. 31, 41, 720
A.2d 693, 698 (1998). Section 9543(a)(2) requires, inter alia,
(2) That the conviction or sentence resulted from one or
more of the following:
(i) A violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States which, in
the circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused
the petitioner to plead guilty and the petitioner is
innocent.
(iv) The improper obstruction by government officials of
the petitioner's right of appeal where a meritorious
appealable issue existed and was properly preserved in
the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and
would have changed the outcome of the trial if it had
been introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
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42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).
We will address Kingston’s argument on jurisdiction and venue first. A
challenge to the trial court’s jurisdiction is cognizable under the PCRA. See
42 PA.CONS.STAT.ANN. § 9543(a)(2)(viii). A challenge alleging improper
venue is not. Thus, Kingston’s venue argument is meritless.
Kingston contends that the Bradford County Court of Common Pleas
did not have jurisdiction over the charges based upon the three relevant
letters as the letters were sent from Wyoming County Jail to Mroz, who
resided in Wyoming County. However, this Court has previously held that a
charge of solicitation may be tried in the county where the ultimate criminal
act was to be performed. See Commonwealth v. Carey, 439 A.2d 151,
155 (Pa. Super. 1981). Similarly, we held that venue was proper in the
target county. See id.
Here, while the solicitations never left Wyoming County, it is clear that
the ultimate criminal acts, perjury at Kingston’s DUI trial, and lying to police
during their investigation, were to occur in Bradford County. Thus, under
Carey, Bradford County had jurisdiction over the solicitation charges.
Furthermore, even if we were to reach his venue argument, it would merit
no relief. As a result, we affirm the PCRA court’s dismissal of Section II of
Kingston’s second amended PCRA petition.
Kingston next argues that trial counsel was ineffective for failing to
object, pursuant to 18 PA.CONS.STAT.ANN. § 906, to the imposition of
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separate sentences for each of the three solicitation to commit perjury
charges, and separately, the three solicitation to hinder prosecution charges
arising from the letters. Under Section 906, Kingston contends, these
convictions merged into only two sentences: one for solicitation to commit
perjury, and one for solicitation to hinder prosecution.
In addressing Kingston’s claim of trial counsel’s ineffectiveness, we
turn to the following principles of law:
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place … Appellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of
the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted). Moreover, “[w]e presume counsel is effective and place
upon Appellant the burden of proving otherwise.” Commonwealth v.
Springer, 961 A.2d 1262, 1266-1268 (Pa. Super. 2008). “This Court will
grant relief only if Appellant satisfies each of the three prongs necessary to
prove counsel ineffective.” Id., at 1267. Thus, we may deny any
ineffectiveness claim if “the evidence fails to meet a single one of these
three prongs.” Id.
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The PCRA court dismissed Kingston’s ineffectiveness claims without a
hearing, concluding that there was no arguable merit. We conclude that the
PCRA court’s reasoning was faulty. Kingston’s claims have arguable merit,
and we must remand for a hearing on the remaining two prongs of
Kingston’s ineffectiveness claims.
The PCRA court found that each of the three solicitation to commit
perjury convictions and each of the three solicitation to hinder prosecution
convictions envisioned culmination in different crimes. Section 906 of the
Crimes Codes provides that a “person may not be convicted of more than
one of the inchoate crimes of criminal attempt, criminal solicitation or
criminal conspiracy for conduct designed to commit or to culminate in the
commission of the same crime.”1 18 PA.CON.STAT.ANN. § 906. This Court
has repeatedly held that a defendant can be convicted of multiple related
inchoate crimes where the inchoate crimes envisioned culmination in distinct
crimes. See Commonwealth v. Grekis, 601 A.2d 1284, 1294 (Pa. Super.
1992).
Here, the PCRA court found that the first letter requested Mroz to
commit perjury and hinder prosecution by testifying and stating to police
investigators that Kingston’s mother had been driving on the night he was
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1
This Court has held that it is not the jury’s verdict, but the judgment of
sentence entered by the trial court, that constitutes a “conviction” under
Section 906. See Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa.
Super. 1992).
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arrested. In contrast, the PCRA court concluded that the second letter
requested Mroz to commit perjury and hinder prosecution by testifying and
stating to police investigators that Mroz had been driving on the night
Kingston was arrested. Finally, the PCRA court concluded that the third
letter requested that Mroz commit perjury and hinder prosecution by
testifying and stating to police investigators that she was intoxicated on the
night Kingston was arrested, and did not remember who was driving.
The PCRA court’s reasoning is plausible at first glance, but ultimately
proves too much. First, while the letters requested different methods of
perjury or hindering prosecution, they were all methods to the same end -
namely, exculpation of Kingston of the DUI charges. Second, while
Kingston’s letters provided three different methods by which Mroz could
perjure herself or provide false statements to police investigators, each
method was ultimately exclusive of the others. Mroz could only offer
perjured testimony once - at Kingston’s DUI trial. Similarly, she could only
use one of the proffered stories if she were to effectively hinder the
prosecution of Kingston. This is comparable to a defendant soliciting
another person to break into a house later that evening by going through
the front door, the back door, or through a window. The separate options do
not constitute discrete crimes. Only one crime is intended. Thus, we
conclude that the PCRA court’s finding that the solicitations envisioned more
than two ultimate crimes was in error.
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The Commonwealth argues that Section 906 does not prohibit multiple
convictions based upon separate solicitations that are designed to culminate
in the commission of the same crime. See Appellee’s Brief, at 5. Instead,
the Commonwealth posits, Section 906 prohibits separate convictions for
each of the different inchoate crimes based upon a single action taken by the
defendant.
Our review of existing case law interpreting Section 906 reveals no
precedent directly on point. In each case, the defendant had been convicted
of violating separate sections under Chapter 9 of the Crimes Code. None of
the published opinions addressed the propriety of multiple convictions for
separate violations of one section of Chapter 9, all aimed at culminating in
the same criminal outcome.2 We are thus presented an issue of first
impression.
While the Commonwealth’s argument has some appeal, we conclude
that it ultimately does not comport with a plain reading of the statute or a
close reading of case law applying the statute. First, we note that the
statute requires merger only when the separate inchoate convictions were
based on “conduct designed to culminate in the commission of the same
crime.” If the legislature desired the statute to only require merger where
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2
As noted infra, this issue was raised in Commonwealth v. Wade, but that
panel ultimately found the issue waived. See 33 A.3d at 115.
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the convictions were based upon the same conduct, it would have replaced
the phrase with the much shorter “same conduct.”
The policy undergirding Section 906, as explicated in our case law,
leads to the same conclusion. This Court has observed that the policy
behind Section 906 rested on a recognition that the harm in inchoate crimes
resides “not in the acts already accomplished, but in the danger that
appellant would succeed in his criminal endeavor.” Commonwealth v.
Crocker, 389 A.2d 601, 604 (Pa. Super. 1978); see also Commonwealth
v. Zappacosta, 401 A.2d 805, 808 (Pa. Super. 1979). Thus, we have
highlighted the fact that separate solicitations to immediately commit
involuntary deviate sexual intercourse at different times envisioned
culmination in distinct crimes in affirming multiple inchoate convictions. See
Grekis, 601 A.2d at 1295. Moreover, while ultimately finding the issue
waived for failure to preserve, this Court has recognized that section 906
would bar multiple convictions for possession of an instrument of crime if the
conduct at issue had but a single criminal objective. See Commonwealth
v. Wade, 33 A.3d 108, 115 (Pa. Super. 2011).
Here, the facts are undisputed. Kingston was convicted of writing
three letters soliciting Mroz to commit perjury at his trial and seeking Mroz
to hinder prosecution by giving the investigating officers false statements.
While there are six separate solicitations involved, they all envisioned
culmination in but two criminal acts; Mroz committing perjury and hindering
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prosecution. Thus, Kingston’s allegation of trial counsel ineffectiveness has
arguable merit.
However, the PCRA court dismissed the petition without a hearing.
Under such circumstances, we cannot address the issues of whether counsel
had a reasonable strategy. And, on this undeveloped record, we cannot say
that Kingston suffered prejudice. We therefore vacate the PCRA court’s
order on these grounds, and remand for further proceedings consistent with
this memorandum.
PCRA order affirmed in part and vacated in part. Case remanded for
further proceedings consistent with this memorandum. Jurisdiction
relinquished.
President Judge Emeritus Bender joins the memorandum.
Judge Bowes files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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