J-S02011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

PERRY FORD

                            Appellant                        No. 3125 EDA 2013


             Appeal from the Judgment of Sentence May 30, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009903-2011


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                                FILED FEBRUARY 04, 2015

       Appellant, Perry Ford, appeals from the May 30, 2013 aggregate

judgment of sentence of eight to 16 years’ imprisonment, imposed after he

was found guilty at a bench trial of one count each of unlawful contact with a

minor, indecent assault, indecent exposure, simple assault, and corruption of

minors.1 After careful review, we vacate and remand with instructions.

       The trial court summarized the relevant factual and procedural history

of this case as follows.

                   At around 7:30 p.m. on May 28, 2011,
              [Appellant] …, was out front of 3947 Priscilla Street
              in Philadelphia, Pennsylvania, where the victim,
              [T.W.], lives. The victim is a fourteen (14) year-old
              mentally     retarded   girl   who    reads    at   a
____________________________________________
1
  18 Pa.C.S.A. §§ 6318(a)(1),                  3126(a)(2),   3127(a),   2701(a),   and
6301(a)(1)(i), respectively.
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              prekindergarten level and has difficulty taking care of
              herself.

                    In his statement, [Appellant] told detectives
              that the victim’s mother sent the victim over “to take
              care of him,” and that if the victim had been only 11
              years old, that would have been “better for me”.
              According to the victim’s mother, [Appellant] kissed
              and hugged the victim; he then turned her around
              and put one arm around her neck in a headlock.
              With his other hand, [Appellant] reached inside the
              victim’s underwear and rubbed her buttocks.
              [Appellant] then reached for his zipper, exposed his
              penis, and rubbed it between the victim’s butt
              cheeks. The victim freed herself from [Appellant]
              and ran into her house.

                     When police responded to the 3900 block of
              Priscilla Street, they observed an angry crowd of
              people screaming that [Appellant] had just raped a
              little girl. The police had the young victim identify
              [Appellant] before arresting him and taking him to
              the hospital[.]

Trial Court Opinion, 6/30/14, at 3 (internal citations omitted).

       On August 30, 2011, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses as well as four counts of

criminal   attempt,     and    one    count    each   of   unlawful   restraint,   false

imprisonment, recklessly endangering another person, and endangering the

welfare of a child.2 At some point, Appellant filed a motion to suppress his




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2
  18 Pa.C.S.A. §§ 901(a), 2902(a)(1), 2903(a), 2705, and 4304(a)(1),
respectively.




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statement to police.3      On November 26, 2012, the trial court conducted a

suppression hearing, at the conclusion of which, the trial court denied

Appellant’s motion to suppress. Appellant proceeded to a three-day bench

trial on January 23, 2013, at the conclusion of which, the trial court found

Appellant guilty of one count each of unlawful contact with a minor, indecent

assault, indecent exposure, simple assault, and corruption of minors.     The

trial court acquitted Appellant of all remaining charges.

       On May 30, 2013, the trial court imposed an aggregate sentence of

eight to 16 years’ imprisonment.4 On June 4, 2013, Appellant filed a timely,

post-sentence motion. On October 4, 2013, the trial court entered an order

denying Appellant’s post-sentence motion by operation of law.            See
____________________________________________
3
  Although this Court has a copy of the transcript pertaining to this
suppression motion, the motion itself does not appear in the certified record,
nor does it appear on the docket sheet. Nevertheless, because all parties
agree on the subject of the suppression motion, the trial court had provided
an analysis of the issue in its opinion, and this Court has the suppression
motion transcript, we decline to find waiver on this basis.                Cf.
Commonwealth v. O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006)
(concluding the defendant waived his suppression issue where this Court
was “unable to determine whether O’Black actually filed a motion to
suppress and [was] equally unable to determine whether the trial court's
decision to deny the motion to suppress constitutes error[]”).
4
  Specifically, the trial court sentenced Appellant to three to six years’
imprisonment for unlawful contact with a minor, two to four years’
imprisonment for indecent assault, and three to six years’ imprisonment for
corruption of minors. All sentences were to run consecutively to each other,
and the trial court imposed no further penalty on the remaining charges. We
further note Appellant was determined not to be a sexually violent predator.
N.T., 5/30/13, at 2.




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generally Pa.R.Crim.P. 720(B)(3)(b). On November 1, 2013, Appellant filed

a timely notice of appeal.5

       On appeal, Appellant raises the following three issues for our review.

              I.     Is [A]ppellant entitled to a new trial as a result
                     of the pretrial court’s denial of his pretrial
                     motion to suppress [his] statement?

              II.    Is [A]ppellant entitled to a new trial as a result
                     of the ruling of the pretrial court that denied
                     his request for a change of counsel?

              III.   Is [A]ppellant entitled to a remand for
                     resentencing since the trial court’s aggregate
                     sentence of 8 to 16 years is excessive,
                     unreasonable     and     not     supported    by
                     [A]ppellant’s character, history and condition?

Appellant’s Brief at 4.

       In his first issue, Appellant avers the trial court erred by not granting

his motion to suppress his statement to police.         Id. at 14.   We begin by

noting our well-settled standard of review regarding suppression issues.

              [I]n addressing a challenge to a trial court’s denial of
              a suppression motion [we are] limited to determining
              whether the factual findings are supported by the
              record and whether the legal conclusions drawn from
              those facts are correct. Since the [Commonwealth]
              prevailed in the suppression court, we may consider
              only the evidence of the [Commonwealth] and so
              much of the evidence for the defense as remains
              uncontradicted when read in the context of the
              record as a whole. Where the record supports the
              factual findings of the trial court, we are bound by
____________________________________________
5
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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               those facts and may reverse only if the legal
               conclusions drawn therefrom are in error.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)

(some brackets and citation omitted).

        Appellant argues that the waiver of his Miranda6 warnings was not

voluntary as he was under the influence of phencyclidine (PCP). Appellant’s

Brief at 14.    The Commonwealth agrees that Appellant “told the police he

had taken PCP.” Commonwealth’s Brief at 7. However, the Commonwealth

maintains this did not render his Miranda waiver involuntary. Id. at 7-8.

        We employ a two-pronged test to ascertain whether an appellant has

validly waived his Miranda rights prior to giving a statement to police.

First, we consider “whether the waiver was voluntary, in the sense that [the]

defendant’s choice was not the end result of governmental pressure[.]”

Commonwealth v. Pruitt, 951 A.2d 307, 318 (Pa. 2008) (citation

omitted), cert. denied, Pruitt v. Pennsylvania, 556 U.S. 1131 (2009).

Second, we consider “whether the waiver was knowing and intelligent, in the

sense that it was made with full comprehension of both the nature of the

right being abandoned and the consequence of that choice.”         Id.   The

burden rests upon the Commonwealth to establish that the defendant

knowingly and voluntarily waived his Miranda rights. Id.



____________________________________________
6
    Miranda v. Arizona, 384 U.S. 436 (1966).



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      In determining whether the Commonwealth has satisfied its burden,

we “must consider the totality of the circumstances surrounding the

confession.” Commonwealth v. Housman, 986 A.2d 822, 840 (Pa. 2009),

cert. denied, Housman v. Pennsylvania, 131 S. Ct. 199 (2010).                    The

following   factors   are   important    in   evaluating   the   totality   of   the

circumstances.

            [T]he duration and means of interrogation; the
            defendant’s physical and psychological state; the
            conditions attendant to the detention; the attitude
            exhibited by the police during the interrogation; and
            any other factors which may serve to drain one’s
            powers of resistance to suggestion and coercion.

Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004) (citations

omitted). Here, Appellant’s argument appears to focus on the second prong

of the analysis. Appellant argues that his Miranda waiver was involuntary

because he was high on PCP at the time. Appellant’s Brief at 14.

      It is axiomatic that “[i]ntoxication is a factor to be considered, but it is

not sufficient, in and of itself to render the confession involuntary.”

Commonwealth v. Manning, 435 A.2d 1207, 1209 (Pa. 1981) (citation

omitted).

            The fact that an accused has been drinking does not
            automatically invalidate his subsequent incriminating
            statements. The test is whether he had sufficient
            mental capacity at the time of giving his statement
            to know what he was saying and to have voluntarily
            intended to say it. Recent imbibing or the existence
            of a hangover does not make his confession
            inadmissible, but goes only to the weight to be
            accorded to it.

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Commonwealth v. Ventura, 975 A.2d 1128, 1137-1138 (Pa. Super. 2009)

(citation omitted), appeal denied, 987 A.2d 161 (Pa. 2009).              “[W]hen

evidence of impairment is present, it is for the suppression court to decide

whether the Commonwealth has established by a preponderance of the

evidence that the suspect nonetheless had sufficient cognitive awareness to

understand the Miranda warnings and to choose to waive his rights.” Id.,

quoting Commonwealth v. Britcher, 563 A.2d 502, 507 (Pa. Super.

1989), affirmed, 592 A.2d 686 (Pa. 1991).               Our Supreme Court has

explained that these standards are “equally applicable to those instances

where an accused was allegedly under the influence of drugs or narcotics at

the time of his interrogation by police officials.” Manning, supra at 1209-

1210.

        At   the   suppression   hearing,   the   Commonwealth     presented   the

testimony of Detective Joseph Jenkins.            Detective Jenkins testified that

Appellant had “an injury to his mouth … appeared jittery … [and] was talking

a little fast, but that was about it.” N.T., 11/26/12, at 29. Detective Jenkins

further testified that he gave Appellant his Miranda warnings.         Id. at 30.

Detective Jenkins asked Appellant seven questions regarding the receipt and

waiver of the Miranda warnings. Id. at 31. Detective Jenkins wrote down

Appellant’s answers, gave Appellant the form so he could read it over, and

Appellant signed it. Id. Detective Jenkins testified that Appellant told him

“he wanted to tell [Detective Jenkins] his side of the story.”         Id. at 32.

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Further, Detective Jenkins testified that he had witnessed people who were

under the influence of PCP and “[t]hey become violent and uncontrollable.”

Id. at 55.      Based on Detective Jenkins’ observations, he “believed

[Appellant] understood where he was at.” Id. at 31-32.

      Appellant also testified at the suppression hearing. Appellant testified

that he did consume PCP the day he was arrested but did not recall being

arrested.   Id. at 64.   Appellant testified he has consumed PCP every day

since 2004. Id. at 65. Appellant testified that had he not been on PCP that

day, he would have answered Detective Jenkins’ Miranda questions

differently and would have invoked his right to counsel.       Id. at 66-67.

Appellant testified that he did not remember anything connected to receiving

or waiving his Miranda rights. Id. at 68.

      After careful review, we conclude Appellant is not entitled to relief.

This Court has explained time and again that the trial court’s credibility

determinations are binding on us.    Commonwealth v. Hudson, 92 A.3d

1235, 1241 (Pa. Super. 2014). As an appellate court, we cannot substitute

our judgment for that of the trial court. See Commonwealth v. Bond, 652

A.2d 308, 311 (Pa. 1995) (stating that an “appellant [may not] seek[] a

different ruling from [an appellate court] on the matter of the credibility of

the witnesses[]”). Here, the trial court found Detective Jenkins’ testimony

as to Appellant’s demeanor and alertness credible and Appellant’s less than

credible.   N.T., 11/26/12, at 110; Trial Court Opinion, 6/30/14, at 5.    As


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noted above, Detective Jenkins testified that Appellant appeared alert and

aware of his surroundings.      N.T., 11/26/12, at 31-32.       Based on these

considerations, we conclude Appellant “had sufficient cognitive awareness to

understand the Miranda warnings and to choose to waive his rights.”

Ventura, supra.     Therefore, we further conclude the trial court properly

denied Appellant’s motion to suppress. See Washington, supra.

      In his second issue, Appellant avers that the trial court erred in

denying his motion for change of counsel. Appellant’s Brief at 18.

                   The Sixth Amendment to the United States
            Constitution     provides     that   in    all   criminal
            prosecutions, the accused shall enjoy the right to
            have the assistance of counsel for his or her defense.
            Similarly, Article I, Section 9 of the Constitution of
            this Commonwealth affords to a person accused of a
            criminal offense the right to counsel. However, the
            constitutional right to counsel of one’s own choice is
            not absolute.      Rather, the right of an accused
            individual to choose his or her own counsel, as well
            as a lawyer’s right to choose his or her clients, must
            be weighed against and may be reasonably restricted
            by the state’s interest in the swift and efficient
            administration of criminal justice.         Thus, while
            defendants are entitled to choose their own counsel,
            they should not be permitted to unreasonably clog
            the machinery of justice or hamper and delay the
            state’s efforts to effectively administer justice.

Commonwealth v. Lucarelli, 971 A.2d 1173, 1178-1179 (Pa. 2009)

(internal citations omitted). “Generally, ‘[t]he decision of whether to grant a

request for a change of counsel is a matter vested to the sound discretion of

the trial court and will not be disturbed on appeal, absent an abuse of

discretion.’” Commonwealth v. Patterson, 931 A.2d 710, 715 (Pa. Super.

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2007), quoting Commonwealth v. Basemore, 582 A.2d 861, 864 (Pa.

1990), cert. denied, Basemore v. Pennsylvania, 502 U.S. 1102 (1992).

      In the case sub judice, Appellant requested a change of counsel the

same day as he litigated his suppression motion, which at the time was the

day his trial was to begin. Appellant claimed that his case was not a “top

priority” for retained counsel due to his inability to pay counsel’s legal fees.

N.T., 11/26/12, at 9. Appellant also believed that he should have a change

of counsel due to current counsel advising to take a plea offered by the

Commonwealth. Id. at 12. It was on these bases that Appellant requested

a change of counsel.     The record reveals that Appellant had previously

retained two private attorneys. Id. at 14. Nevertheless, in connection with

this motion, Appellant requested the court appoint new counsel to represent

him. Id.

      Assuming arguendo that Appellant was entitled to court-appointed

counsel, we conclude the trial court did not abuse its discretion in denying

Appellant’s motion. Cf. Pa.R.Crim.P. 122(A)(2) (stating that counsel shall be

appointed “in all court cases, prior to the preliminary hearing to all

defendants who are without financial resources or who are otherwise unable

to employ counsel[]”).    As the trial court pointed out, counsel had “been

preparing diligently for the [suppression] motion … [a]nd [that] he [had]

subpoenaed a doctor on [Appellant’s] behalf” for said motion.              N.T.,

11/26/12, at 13. Appellant also acknowledged that counsel had visited him


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in prison “a couple of times” and that he had chances to speak to counsel “a

number of times” at the courthouse for various appearances. Id. at 10. The

fact that counsel advised Appellant to accept a plea offer from the

Commonwealth does not amount to an irreconcilable difference between

counsel and a defendant.       Commonwealth v. Johnson, 454 A.2d 1111,

1116-1117 (Pa. Super. 1982). Based on these considerations, we conclude

the trial court did not abuse its discretion when it denied Appellant’s motion

for a change of counsel. See Patterson, supra.

      In his third issue, Appellant raises claims regarding the discretionary

aspects of his sentence.       See Appellant’s Brief at 20-29.   However, we

decline to address these arguments at this juncture, as our review of the

record has revealed a potential issue regarding the legality of Appellant’s

sentence, which would render Appellant’s discretionary aspects of sentence

issue moot.     Commonwealth v. Tanner, 61 A.3d 1043, 1046 n.3 (Pa.

Super. 2013).       We begin by noting that a challenge to the legality of the

sentence can never be waived and may be raised by this Court sua sponte.

Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)

(citation omitted); see also Commonwealth v. Borovichka, 18 A.3d

1242, 1254 (Pa. Super. 2011) (stating, “[a] challenge to the legality of a

sentence … may be entertained as long as the reviewing court has

jurisdiction[]”).




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       It is also well-established that “[i]f no statutory authorization exists for

a particular sentence, that sentence is illegal and subject to correction.”

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation

omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the

legality of a sentence are questions of law[.] … Our standard of review over

such   questions    is   de   novo   and   our   scope   of   review   is   plenary.”

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations

omitted).

       The issue going to the legality of Appellant’s sentence pertains to his

conviction for corruption of minors, which is codified as follows.

             § 6301. Corruption of minors

             (a) Offense defined.--

                   (1) (i) Except as provided in subparagraph (ii),
                   whoever, being of the age of 18 years and
                   upwards, by any act corrupts or tends to
                   corrupt the morals of any minor less than 18
                   years of age, or who aids, abets, entices or
                   encourages any such minor in the commission
                   of any crime, or who knowingly assists or
                   encourages such minor in violating his or her
                   parole or any order of court, commits a
                   misdemeanor of the first degree.

                   (ii) Whoever, being of the age of 18 years and
                   upwards, by any course of conduct in violation
                   of Chapter 31 (relating to sexual offenses)
                   corrupts or tends to corrupt the morals of any
                   minor less than 18 years of age, or who aids,
                   abets, entices or encourages any such minor in
                   the commission of an offense under Chapter 31
                   commits a felony of the third degree.


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                                            …

18 Pa.C.S.A. § 6301(a)(1) (emphases added). As this Court recently noted

corruption of minors graded as a first-degree misdemeanor is a lesser-

included offense of corruption of minors graded as a third-degree felony.

Commonwealth v. Kelly, 102 A.3d 1025, 1032-1033 (Pa. Super. 2014)

(en banc).

       As noted above, Appellant received a sentence of three to six years’

imprisonment for corruption of minors. Based on our review of the record,

Appellant was charged with corruption of minors as a third-degree felony.

However, at the conclusion of the bench trial, the trial court announced on

the record that it was finding Appellant “guilty of corrupting the morals of a

minor as an [sic] M1[.]” N.T., 1/25/13, at 5. At sentencing, however, the

Commonwealth stated its recommended sentence for the “F3, corrupting the

morals of a minor which is 3 and a half to 7[.]” N.T., 5/30/13, at 13.        In its

Rule 1925(a) opinion, the trial court specifically lists Appellant’s corruption of

minors conviction as a first-degree misdemeanor.              Trial Court Opinion,

6/30/14, at 1 n.5.     The trial court’s docket and written sentencing order,

both list corruption of minors graded as a third-degree felony, but curiously,

they    also   list   the    first-degree       misdemeanor   subsection,   Section

6301(a)(1)(i), next to it.

       The statutory maximum sentence for an offense graded as a first-

degree misdemeanor is five years’ imprisonment. 18 Pa.C.S.A. § 1104(1).


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The statutory maximum sentence for an offense graded as a third-degree

felony is seven years’ imprisonment.      Id. § 1103(3).    If the trial court

intended to state at the conclusion of the bench trial that Appellant was

guilty of a third-degree felony, the sentence imposed would be legal.

However, if the trial court intended to convict Appellant of the lesser-

included offense of corruption of minors as a first-degree misdemeanor,

Appellant’s sentence is illegal, as it is one year over the statutory maximum.

      Given the confused state of the record, we conclude the best course of

action is to vacate the judgment of sentence and remand for further

proceedings. On remand, the trial court shall clarify the record as to what

grading it intended for the corruption of minors offense. If it intended the

grading to be a third-degree felony, the trial court shall enter an order

reinstating the same judgment of sentence.        However, if the trial court

intended the offense to be graded as a first-degree misdemeanor, it shall

conduct a new sentencing hearing and resentence Appellant consistent with

the proper statutory maximum.        Our judgment in this case is without

prejudice to Appellant to file a new notice of appeal after the trial court

clarifies the record.   If on remand the trial court reinstates the original

judgment of sentence, Appellant may re-raise his discretionary aspects of

sentencing claims, to the extent they are already preserved.       If the trial

court resentences Appellant anew, Appellant may raise any sentencing issue

that may arise from said resentencing.


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      Based on the foregoing, we conclude Appellant’s claims of trial error

are devoid of merit.    However, we also conclude the trial court may have

imposed an illegal sentence, but the record is not sufficiently clear for us to

make a definitive determination. Accordingly, the trial court’s May 30, 2013

judgment of sentence is vacated, and the case is remanded for further

proceedings, consistent with this memorandum.

      Judgment of sentence vacated.          Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2015




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