J-A19041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 FRANKLIN LAMAR BUTLER                     :
                                           :
                     Appellant             :   No. 1265 EDA 2017

         Appeal from the Judgment of Sentence September 27, 2016
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0009354-2014


BEFORE:       PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                   FILED NOVEMBER 13, 2019

      Appellant, Franklin Lamar Butler, appeals from the judgment of

sentence entered in the Court of Common Pleas of Montgomery County after

the court, sitting as finder of fact in Appellant’s stipulated bench trial, found

him guilty of one count each of aggravated assault, recklessly endangering

another person, discharge of a firearm into occupied structure, person not to

possess a firearm, and receiving stolen property. Sentenced to an aggregate

sentence of 15 to 30 years’ incarceration, Appellant denies that he voluntarily

waived his rights to a jury trial and to present evidence in his own defense,

and he claims a violation of his due process rights flowed from the court’s

refusal to permit his testimony during the stipulated trial. We affirm.

      The trial court aptly provides the relevant facts and procedural history,

as follows:



____________________________________
* Former Justice specially assigned to the Superior Court.
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     At approximately 8:33 p.m. on Monday, November 3, 2014,
     Norristown police officers responded to a dispatch of multiple
     shots fired at 624 West Lafayette Street in Norristown,
     Montgomery County. (Stipulated Bench Trial (“N.T.”), 6/28/16,
     Commonwealth Exhibit C-1 Affidavit of Probable Cause). The
     occupants of Apartment 1 at 624 West Lafayette Street met the
     officers and stated that it was Appellant who had fired multiple
     shots from the black semiautomatic handgun into the side window
     of the apartment, narrowly missing an eight-year-old child who
     had been watching television.

     Police recovered seven (7) shell casings from the breezeway near
     the rear entrance to the apartment. Id. Officers observed holes
     from rounds shot into the television, the living room wall and a
     bedroom door. Corporal Adam Schurr, Detective James Angelucci
     and Lieutenant Michael Crescitelli interviewed four of the
     witnesses at the Norristown Police Department between 9:45 p.m.
     and 11:46 p.m. that night. Id. Each witness identified Appellant
     as the shooter.

     At approximately 10:23 p.m. on the same night, Norristown Police
     Officer Benjamin Lerman responded to a dispatch call reporting a
     male passed out in the patio area at 1201 Arch Street.
     Commonwealth Exhibit C-1, Affidavit of Probable Cause
     Continuation. . . . The caller, a male resident of the apartment
     building next to where Appellant had passed out, met Officer
     Lerman and Officer Fay on arrival. Id. at 6. The apartment
     resident said that Appellant did not live at that address.

     As the officers cautiously approached Appellant, they could smell
     the odor of alcohol coming from him. Id. at 6, 7, 10. The officers
     placed handcuffs on Appellant for their safety and with the
     intention of arresting Appellant for public intoxication. Id. at 7.

     [Appellant awoke and identified himself by his first name, and a
     safety “pat-down” search before placing him in the patrol car
     revealed an empty handgun tucked in his waistband.             A
     subsequent investigation revealed the handgun had been stolen
     from a Lansdale gun dealership.

     Officer Lerman radioed Corporal Bishop to report that Appellant
     matched the description of the 624 West Lafayette suspect, which
     included a tattoo observed by a witness to the shooting. Officers
     transported Appellant to the police station where, ten hours later,

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     they read him Miranda warnings him and began asking questions
     about the shooting. Appellant provided a statement indicating he
     had shot his gun into an apartment window at 624 West Lafayette
     Street at the time in question.]

     Counsel for Appellant, George M. Griffith, Jr., Esquire (“Attorney
     Griffith”) entered his appearance and filed an omnibus pre-trial
     motion on January 9, 2015. [On July 21, 2015, a jury trial was
     set to commence as scheduled when Appellant] requested a
     continuance to possibly engage private counsel, which the court
     granted by order docketed on July 21, 2015. The record reflects
     that Appellant requested additional continuances and eventually
     requested to proceed pro se.

     A hearing, scheduled under Pa.R.Crim.P. 121 for November 5,
     2015, had to be continued because Appellant refused to
     participate in the required colloquy.fn N.T., Pa.R.Crim.P. 121
     Hearing, 11/5/15, at 56. During a subsequent hearing on March
     31, 2016, Appellant withdrew his request to proceed pro se and
     requested another continuance to obtain private counsel. N.T.,
     Pa.R.Crim.P. 121 Hearing, 3/31/16. The [trial court] issued an
     order on April 1, 2016, scheduling Appellant’s jury trial for May 9,
     2016.


        Fn. During the colloquy, the [trial court] and the ADA
        explained the elements of the crimes charged, the
        exposure on each charge, the Commonwealth’s burden
        and the right to counsel before Appellant refused to
        participate. N.T. Rule 121 Hearing, 11/5/15.




     [After the court granted the Commonwealth a continuance for a
     change in prosecutor,] the court scheduled Appellant’s jury trial
     for June 16, 2016.      With a jury panel in place and the
     Commonwealth ready to proceed on June 16, 2016, Appellant
     again requested a continuance, which [the trial court] reluctantly
     granted. Appellant claimed that witnesses Faith Norris and Almyra
     Taylor had made “incriminating” statements to Appellant in
     recorded telephone conversations while he was incarcerated, and
     Appellant wanted to be able to play those conversations for the
     jury.fn


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        Fn. Appellant had raised the same witness credibility issue
        in his pro se motion to suppress and the undersigned
        explained to Appellant on the record that the proper
        avenue to raise the issue was through cross-examination
        of those witnesses.


     The court scheduled Appellant’s jury trial to begin on June 27,
     2016, by order docketed on June 20, 2016. In the meantime,
     both Attorney Griffith and the undersigned worked with Inmate
     Services at the Montgomery County Correctional Facility to
     provide two CDs of Appellant’s recorded telephone conversations
     with Faith Norris and Almyra Taylor from November 2014 to June
     2016. In addition, the court ordered transportation to the
     courthouse for Appellant to personally listen to the recorded
     phone calls. Order docketed on June 20, 2016; N.T. Jury Trial
     (Waiver), 6/27/16, at 10, 17. Although the [trial court] declined
     to give Appellant another continuance to listen to the CDs, the
     court explained to Appellant that arrangements would be made
     for Appellant to listen to them during the trial period when the
     trial was not occurring.

     On Monday, June 27, 2016, with a jury panel as well as
     Commonwealth witness Faith Norris again present, but prior to
     jury selection, Appellant made the decision to proceed by way of
     a stipulated bench trial. Id. at 23-24. Appellant acknowledged
     that Attorney Griffith had explained the procedures as it relates to
     a stipulated bench trial. Id. Additionally, the [trial court]
     conducted several portions of the colloquy to determine whether
     Appellant was making the decision to waive a jury trial knowingly,
     intelligently, and voluntarily, including an explanation of the
     differences between a stipulated bench trial and a jury trial. Id.
     at 25-36.

     When the court concluded that the Commonwealth was going to
     use Appellant’s statement and Attorney Griffith’s omnibus pre-trial
     motion had not yet been heard, the [trial court] granted
     Appellant’s request for a suppression hearing to be held the
     following day. Id. at 37-48. [The trial court] also agreed to allow
     Appellant to present evidence regarding the telephone
     conversations with Ms. Norris and Ms. Taylor that Appellant

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     argued were exculpatory and potentially keep the record open if
     the court determined that Appellant had raised a meritorious
     claim. Id. at 50.

     The court conducted a suppression hearing on June 28, 2016.
     Appellant sought to suppress the gun recovered from his
     waistband following his arrest as well as his subsequent
     statements. Appellant asserted that he had no memory of the
     events leading up to his arrest or giving a statement. Id. at 44,
     46-48; N.T. Suppression Hearing, 6/28/16, at 54-63.           The
     Commonwealth offered testimony by Officer Lerman . . ., Corporal
     Shurr . . ., and Detective Chad Bruckner of the Lansdale Police
     Department[, who had investigated the burglary of the Lansdale
     gun dealership. The trial court heard Appellant’s testimony, but
     it concluded he offered neither evidence nor compelling legal
     argument to support his claim that he had unknowingly and
     involuntarily waived his Miranda rights before providing his
     statements to police.

     Therefore, the trial court] placed its Findings of Fact and
     Conclusions of Law pursuant to Rule 581(I) of the Pennsylvania
     Rules of Criminal Procedure on the record at the time of the
     Hearing. Id. at 68-89. Therein, the court specifically found and
     determined, inter alia, as follows: (1) Officer Lerman responded
     to a call for a person passed out on another’s property; 2) upon
     arrival Officer Lerman encountered Appellant, smelling of alcohol,
     passed out on someone else’s patio; 3) Officer Lerman placed
     Appellant under arrest for public intoxication at approximately
     10:30 p.m.; 4) prior to putting Appellant in the patrol car, Officer
     Lerman conducted a search incident to arrest and safety pat-
     down; 5) while doing so, the officer recovered a handgun from
     Appellant’s waistband; 6) Officer Lerman seized the firearm
     pursuant to a legal arrest and search incident to that arrest; 7)
     approximately ten (10) hours after [Appellant’s] arrest, Corporal
     Schurr observed an interview of Appellant conducted by Detective
     Angelucci; 8) Corporal Schurr has training and experience in
     interviewing hundreds of people under the influence of alcohol or
     drugs; 9) Corporal Schurr observed Appellant’s gait, speech and
     demeanor and concluded that Appellant was not under the
     influence of alcohol and appeared to be coherent; 10) Detective
     Bruckner also testified that based on his training and experience,
     he determined Appellant was not under the influence, answered
     all questions logically, was aware of his surroundings and why he
     was there and provided valuable information on an open burglary

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     case; 11) both detectives testified that Appellant was alert,
     attentive, answered questions logically and showed no signs of
     impairment; and accordingly, 12) the court denied Appellant’s
     motion to suppress the firearm and the two statements to police.

     At the conclusion of the suppression hearing, the [trial court]
     continued with Appellant’s colloquy before proceeding to a
     stipulated bench trial. N.T., Stipulated Bench Trial, 6/28/16, at
     90-104. [On the same date,] Appellant also signed a waiver of
     jury trial form in which he acknowledged the rights he was waiving
     by proceeding to a stipulated bench trial. Appellant confirmed
     that he had read the form and that he understood its contents.
     N.T. Stipulated Bench Trial at 100. [The trial court] answered all
     of Appellant’s questions and, before accepting Appellant’s waiver,
     asked both counsel if they had any questions. Both counsel
     responded that they did not have any questions. Id.

     The Commonwealth introduced its evidence for the court’s
     consideration, including the Suppression Hearing testimony, the
     Affidavit of Probable Cause, a copy of Appellant’s federal
     convictions, photographs of the residence depicting the bullet
     holes, Appellant’s statement to the Norristown Police Department
     and his statement to the Lansdale Police Department, and the
     statements from the four witnesses. Id. at 104-106.

     [The trial court] then asked Attorney Griffith as well as Appellant
     himself whether either of them had any additional evidence they
     wanted to introduce and both replied that they did not have
     additional evidence. Id. at 107. Attorney Griffith specifically
     inquired of Appellant whether he wanted to expand on anything
     he had previously raised at the suppression hearing and Appellant
     responded “No.” Id. Both the Commonwealth and the defense
     rested on the record. Id.

     The court took a recess to read the additional evidence and
     caselaw presented before pronouncing its verdict. Id. at 109.
     Upon [the trial court’s] return to the bench to render a verdict,
     Attorney Griffith informed the court that even though Appellant
     had told the court when asked whether he had anything else to
     introduce and Appellant had replied “no,” that subsequently
     Appellant told counsel he wanted to testify. Id. at 110.

     [The trial court] reminded counsel and Appellant that Appellant
     had replied “no” when asked if he had anything else before the

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      court closed the record. [The trial court] also noted that it had
      incorporated into the record and considered Appellant’s testimony
      from the Suppression Hearing about the telephone calls in
      rendering its decision. Id. [The trial court] entered the verdict as
      noted above and deferred sentencing until such time as a
      presentence investigation report and a PPI evaluation could be
      completed.

      [At sentencing, the court imposed a standard range sentence for
      each conviction. N.T., 9/27/16, at 32-34. After the denial of post-
      sentence motions seeking only the modification of his sentence,
      this timely appeal followed.]

Trial Court Opinion, 6/29/18, at 2-12.

      Appellant presents the following questions for our consideration:

      1. Did Mr. Butler voluntarily, knowledgeably, or intelligently waive
         his jury trial?

      2. Did Mr. Butler voluntarily, knowingly, or intelligently waive his
         right to present evidence in his own defense, including his own
         testimony?


      3. Was Mr. Butler deprived [of] his right to Due Process under the
         Pennsylvania and United States Constitutions where he was
         informed by the trial court that he would be able to present
         evidence—including to testify on his own behalf—and then the
         trial court refused to reopen the record so that he could do so?

Appellant’s brief, at vii.

      In Appellant’s first two issues, he argues that the trial court’s colloquy

failed to explain adequately the consequences of waiving one’s right to a jury

in favor of proceeding with a stipulated bench trial.      The Commonwealth

responds that Appellant waived this issue because he failed to make a timely

objection before the trial court. We agree.




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      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a); In Interest of A.W., 187

A.3d 247, 253 (Pa. Super. 2018). Our review of the notes of testimony reveals

that Appellant, who was represented by counsel at all relevant times, failed to

object to the voluntariness of either his jury trial waiver or his stipulation to

the Commonwealth’s evidence, nor did he otherwise raise these issues in his

post-sentence motions. Pa.R.A.P. 302; see Commonwealth v. Gumpert,

512 A.2d 699, 703 (Pa.Super. 1986) (when there is no objection at trial to a

judge's failure to give a jury waiver colloquy, the issue is waived insofar as

the trial court is denied the opportunity to correct the deficiency). Accordingly,

Appellant’s first two issues are waived.

      In Appellant’s remaining issue, he argues that the court deprived him of

his rights to due process and fair proceedings when the court informed him

he would be able to present evidence during the stipulated bench trial only to

thereafter deny him that opportunity. We disagree.

      In this regard, Appellant cites to the record where defense counsel

indicated that Appellant understood the nature of a stipulated bench trial and

“would like to make a statement before the Court.” N.T. at 6/27/16, at 24.

Later during the same pre-trial proceeding, Appellant addressed the court on

whether, during the stipulated bench trial, he could introduce evidence of what

he believed to be exculpatory phone calls, which led to the following exchange:

      Trial Court:         During the trial. I will permit you to do that,
      even though it’s stipulated. I’ll hear from you on that. . . . And if
      it’s—if it’s meritorious, I may keep the record open for that limited

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     purpose. That was my thought. Meaning that I will not close the
     record on the stipulated bench trial if I think you make a
     meritorious claim, one that has merit.

     Appellant:        Oh, okay. Thank you, Your Honor.

     Trial Court:       Anything else? So my point is, Mr. Butler –
     because I’m going to let this jury go today based upon the fact
     you’re telling me this is going to be a stipulated bench trial.

     Appellant:        Yes, Your Honor. I agreed to that.

     Trial Court:      You’re agreeing on the record right now, right?

     Appellant:        Yes, Your Honor.

     Trial Court:        All right. I just want to make sure. There would
     be a stipulated bench trial whether I grant the suppression or deny
     it. It still would have the right to proceed.

     So I want to make sure, before I let this jury go, that you are
     clear, truthful, you’re accurate in terms of your representation to
     me about we were going to a stipulated bench trial because we
     got about 75 percent through the procedural and the explanation
     part of it.

     Appellant:        …Like,     maybe       it’s    [the     alleged
     miscommunication between defense counsel and Appellant] due
     to my fault for not expressing certain things or due to the
     relationship we had in the past. But when it comes to stipulated
     bench, like, when we was going to trial, I had people who was
     going to testify on my behalf from both scene [sic]. From the
     scene at Ms. Taylor’s house and from the scene of the cops finding
     me passed out asleep.

     So, with that not being on record anymore, on file, because I’m
     taking the stipulated bench trial, I’m just asking you what other
     things is there that I can arouse to possibly help me. Or do I need
     still to try to get the witnesses that were going to testify for me
     to come to the suppression? Because that’s the part I don’t really
     understand.




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      Trial Court:      No. A suppression hearing is just limited on
      whether the police had authority to do certain things. Such as
      search, take statements, things of that nature.

      Appellant:        All right. And I’m –

      Trial Court:      If you have something else, we can talk about it
      after the suppression, but before I close the record on the
      stipulated bench as to what, if anything, else you want me to hear.

      ....

      So, counsel, we will have a suppression hearing tomorrow. So we
      will reconvene at 9:15. We’ll do the suppression hearing. And
      then we’ll continue on with the stipulated bench trial.

      When the Commonwealth’s case is over, I’ll hear from you about
      what else you think I need to consider. All right?

      Appellant:        Okay. Thank you, your Honor.

N.T. at 50-51, 52-53, 54.

      Appellant’s stipulated bench trial commenced the following day. As the

court said it would do, it gave Appellant the opportunity to raise evidence for

the court’s consideration at the conclusion of the Commonwealth’s case.

Appellant, however, declined the court’s offer:

      Trial Court:      Anything else from the Commonwealth?

      Prosecutor:       No, Your Honor.

      Trial Court:      Anything else from the defense?

      Counsel:          Judge, no evidence. I don’t know if Frank
      [Appellant] wants to expand on anything he’s previously indicated
      to you at the suppression hearing. Frank?

      Appellant:        No, Your Honor.




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       Trial Court:         Okay.     All right.   Is counsel resting on the
       record, then?

       Counsel:             I am.

N.T., 6/28/16, at 107.

       The court thereafter closed the record, indicated it would consider

statements from the suppression hearing, and adjourned to deliberate. Only

when all returned after recess to hear the court’s verdict did counsel inform

the court that Appellant had wished to make a statement to the court prior to

deliberations.

       The court deemed the request belated, although it reminded counsel

and Appellant that it had specifically incorporated Appellant’s statements from

the suppression hearing, over the Commonwealth’s objections, “to insure that

his testimony became part of the trial record.” The court then announced its

verdict. N.T. at 111.

       Appellant now contends that the court failed to provide him with a

promised opportunity to discuss evidence for the court’s consideration prior to

deliberation.1 The record belies this claim, as it plainly shows how Appellant

and counsel declined the court’s offer to hear any evidentiary concerns they

may have wished to raise after the Commonwealth closed its case-in-chief.

Appellant’s due process claim, therefore, merits no relief.

       Judgment of sentence affirmed.


____________________________________________


1 This Court notes the trial court was more than tolerant of Appellant’s
repeated changes of mind and various requests and demands.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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