J-S34020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS RICHARD ROSS                        :
                                               :
                       Appellant               :   No. 1490 WDA 2018

     Appeal from the Judgment of Sentence Entered September 25, 2018
     In the Court of Common Pleas of Bedford County Criminal Division at
                       No(s): CP-05-CR-0000367-2016


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED OCTOBER 25, 2019

       Thomas Richard Ross appeals from the judgment of sentence imposed

following his convictions for, inter alia, fleeing or attempting to elude police

officer.1 He argues the trial court erred in excluding the evidence of his

insanity, aside from his own testimony, and asks us to order that he remain

free on bond pending his filing of a Post Conviction Relief Act (“PCRA”) petition.

See 42 Pa.C.S.A. §§ 9541-9546. We affirm, and deny Ross’s request to

remain free on bond.

       On June 30, 2016, Ross was seen littering on the Pennsylvania Turnpike

and was approached by police. Instead of stopping for the police, Ross fled at

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*    Retired Senior Judge assigned to the Superior Court.

175 Pa.C.S.A. § 3733(a). Ross was also convicted of two counts of recklessly
endangering another person, 18 Pa.C.S.A. § 2705, scattering rubbish, 18
Pa.C.S.A. § 6501(a)(1), and multiple offenses under the Motor Vehicle Code.
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a high rate of speed, left the turnpike without paying the toll, re-entered the

turnpike, again left the turnpike without paying the toll, and fled at a high rate

of speed until he crossed into Maryland, where Maryland police eventually

apprehended him.

       Ross was formally arraigned on the charges in September 2016.2 Ross

was represented by public defenders until August 31, 2017, when he first

obtained a private attorney. Jury selection was scheduled for July 17, 2018.

       On July 9, Ross retained new counsel, who filed a motion for

continuance. The motion was based in part on counsel’s assertion that

previous counsel had failed to file a notice of defense of insanity or notice of

expert evidence of mental condition, and “the interests of justice would require

nunc pro tunc filing thereof.” Mot., 7/13/18, at ¶ 3(a). Counsel argued that

the following circumstances warranted Ross’s presentation of an insanity

defense:

       First, the nature of [Ross’s] conduct in and of itself suggests
       insanity or mental infirmity. Second, only hours before [Ross’s]
       conduct occurred, a 302 (50 P.S. § 7302)[3] commitment warrant
       had been issued. The affidavit in support of said 302 commitment
       warrant presents a textbook fact pattern in support of an insanity
       or mental infirmity defense at trial. . . Third, upon [Ross’s] arrest
____________________________________________


2  Although the trial court states in its Rule 1925(a) opinion that the
arraignment occurred on September 9, 2016, the certified record contains an
order rescheduling arraignment for September 14, 2016. The docket reflects
the entry of the rescheduling order, but does not otherwise indicate when
formal arraignment occurred. The difference between the two dates is not
material to our disposition.

3 See 50 P.S. § 7302 (providing for 120–hour involuntary commitment of
severely mentally disabled person in need of immediate treatment).

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      in Maryland, [Ross] was committed for psychiatric observation.
      Fourth, after extradition to Pennsylvania, [Ross] was diagnosed
      by [C.M., M.D.] as incompetent to stand trial, and committed to
      Torrance State Hospital.

Id. The court denied the motion.

      On July 16, the day before trial was scheduled to begin, Ross (through

counsel) filed a Notice of Expert Evidence of Mental Condition, Notice of

Defense of Insanity, and a Motion to Allow Filing of Notice[s] Nunc Pro Tunc.

The Notice of Expert Evidence of a Mental Condition stated that Ross intended

to call, as an expert witness, a forensic psychiatrist. The Notice of Defense of

Insanity stated that Ross intended to call the same forensic psychiatrist, and,

as a corroborating witness, Donna Caruso, the affiant on the 302 commitment

warrant. Ross submitted a copy of the affidavit as a proffer of Caruso’s

testimony. See N.T., 7/24/18, at 46. According to the affidavit, in the days

preceding the incident, Ross’s behavior had changed drastically, and he

exhibited behaviors and made statements such as that he believed he was

God, saw visions, believed the government was trying to kill him, and that he

was following signs from God to drive to Washington, DC. See Ross’s Ex. 1.

In the Motion to Allow Filling of Notice[s] Nunc Pro Tunc, Ross argued that his

prior counsel was ineffective for failing to file the Notices earlier.

      On the day of trial, in open court, the court denied the Motion and

excluded all evidence of Ross’s insanity except for Ross’s own testimony. See

N.T., 7/24/18, at 3. The court found that Ross did not file notice of the insanity

defense within 30 days of his arraignment, as required by Rules of Criminal



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Procedure 568(A) and 579(A),4 but rather did so approximately 21 months

later. The court also found that Ross “was unable to provide any legitimate

reason for the extensive delay,” and that the admission of the evidence “at

such    a   late   stage   would    have       been   unfair   and   prejudicial   to   the

Commonwealth.” See Trial Court Opinion, filed 12/13/18, at 2-3. The court

noted that the Commonwealth would be prejudiced in part because the Motion

was filed on the eve of trial. See N.T. at 3.

        The court also stated that although Ross could raise the issue of insanity

through his own testimony,5 the court would not guarantee that it would

charge the jury on the defense of insanity without any evidence to corroborate

Ross’s testimony. N.T. at 11-13, 21-22.

        Ross’s counsel then stated that Ross would forgo a full trial in order to

expediently appeal the court’s exclusion of the expert/corroborating evidence

of Ross’s insanity. Ross’s counsel stated Ross also wanted to pursue a claim

that previous counsel was ineffective for failing to file a timely notice of the

insanity defense on direct appeal, rather than wait until PCRA proceedings. He

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4 Rule 568 provides that a defendant shall file notice of his or her intention of
offering the defense of insanity at trial by the deadline for filing an omnibus
pretrial motion as provided in Rule 579, unless an exception as provided in
Rule 579 applies. Pa.R.Crim.P.568(A)(1) & comment. Rule 579 provides that
an omnibus pretrial motion must be filed within 30 days after arraignment,
“unless opportunity therefor did not exist, or the defendant or defense
attorney . . . was not aware of the grounds for the motion, or unless the time
for filing has been extended by the court for cause shown.” Pa.R.Crim.P.
579(A).

5   See Pa.R.Crim.P. 568(B)(1).

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asked the court to hold a hearing to address whether Ross had been deprived

of effective assistance of counsel. The court responded that it would not

consider Ross’s claims of ineffectiveness at that time.

        Following this discussion, Ross waived his right to a jury trial and

proceeded to a non-jury trial. The parties stipulated to the testimony of the

Commonwealth witnesses. The court found Ross guilty and sentenced him to

an aggregate term of one to seven years’ incarceration. The court re-imposed

bail, at $25,000, pending Ross’s direct appeal. See Pa.R.Crim.P. 521(B)(2).

Ross filed a post-sentence motion raising, among other things, the court’s

refusal to accept Ross’s Notices nunc pro tunc. The court denied the post-

sentence motion.

        Ross raises two issues on appeal:

        1. Did the Court of Common Pleas abuse its discretion in not
        allowing the defense of insanity to be heard[?]

        2. Can prior counsel’s ineffective assistance be raised on the
        present appeal?

Ross’s Br. at 7.6

                          I. Notice of Insanity Defense

        Ross first argues that the court abused its discretion in excluding the

evidence of his insanity aside from his own testimony. Ross argues that under

Rule 579, the court can extend the deadline for filing notice of an insanity

defense for “cause shown”; the “cause shown” exception equates to the

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6   The Commonwealth did not file a brief in this matter.

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“interests of justice” exception of the previous version of the Rule; and the

exception applies where the merits of the insanity defense were “so apparent

that justice required [that] it be heard.” Ross’s Br. at 14 (quoting

Commonwealth v. Williams, 323 A.2d 862, 866 (Pa.Super. 1974)). Ross

argues that here, the merits of his insanity defense are apparent, because the

alleged criminal behavior indicates mental instability. He also asserts that

hours before he committed the instant crimes and violations, a Mental Health

Procedures Act commitment warrant was issued for him, and following his

arrest, he was immediately committed for psychiatric observation. He further

points out that after he was extradited to Pennsylvania, a doctor diagnosed

him as incompetent to stand trial and committed him to a state hospital.

      Ross has waived this issue by fundamentally changing his argument on

appeal. In his Motion to Allow Filing of Notice[s] Nunc Pro Tunc, Ross only

argued the trial court should allow the untimely Notices because his previous

counsel was ineffective, an argument which he does not raise on appeal.

Instead, he now asserts, for the first time, that the court should have allowed

the evidence because it meets one of the exceptions listed in Rule 579, i.e.,

“cause shown,” and that the apparent merit of an insanity defense satisfies

“cause shown,” based on the “interests of justice” language in the previous

version of the Rule. Although Ross proffered the contents of his proposed

evidence supporting a defense of insanity, Ross did not argue that the merits

of his defense constituted “cause shown,” as contemplated by Rule 579, and

required the court to extend the filing deadline. Accordingly, the court’s Rule

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1925(a) opinion does not address the merits of the insanity defense, or

whether the merits of the defense could satisfy the “cause shown” exception

to the filing deadline.

      As Ross’s arguments before the trial court and this Court differ

drastically, we conclude the issue of whether the court should have allowed

the excluded evidence due to the merits of Ross’s insanity defense has been

waived. See Pa.R.A.P. 302(a) (issues may not be raised for the first time on

appeal); Commonwealth v. Truong, 36 A.3d 592, 598 (Pa.Super. 2012)

(“New legal theories cannot be raised on appeal”).

      Moreover, we discern no abuse of discretion in the court’s exclusion of

the evidence. See Commonwealth v. Sasse, 921 A.2d 1229, 1234, 1237

(Pa.Super. 2007) (stating evidentiary matters are reviewed under abuse of

discretion standard; holding court did not err in excluding untimely expert

evidence of insanity). The comment to Rule 579 explains that the concept of

“cause shown” contemplates “a finding by the court that discovery has not

been completed, or a bill of particulars has not been furnished, or that

contested motions for discovery or for a bill of particulars are pending.”

Pa.R.Crim.P. 579, comment. Thus, “cause shown” is satisfied when the

defendant filed the notice after the deadline due to circumstances not within

the defendant’s control. See, e.g., Commonwealth v. Baez, 21 A.3d 1280,

1282 (Pa.Super. 2011) (affirming trial court’s acceptance of nunc pro tunc

suppression motion where “cause shown” was receipt of supplemental

discovery report warranting suppression motion); Commonwealth v.

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Borovichka, 18 A.3d 1242, 1248 (Pa.Super. 2011) (affirming timeliness of

suppression claim where defendant was made aware of basis for claim on day

of suppression hearing).

       Here, Ross did not argue that the delay was the result of a breakdown

of court operations or new information furnished by the Commonwealth. As

the trial court’s 1925(a) opinion explains, Ross did not “provide any legitimate

reason for the extensive delay,” when requesting to file the Notices past the

deadline. Tr. Ct. Op. at 2. It appears Ross was aware of the grounds for the

insanity defense well before his latest attorney filed the Notices.7 Further, the

court noted that the admission of the insanity defense at such a late stage

would have been prejudicial to the Commonwealth. Given this record, we

discern no abuse of discretion in the court’s exclusion of the evidence. See

Borovichka, 18 A.3d at 1248 (affirming untimeliness of suppression claim

where defendant presented it after deadline and did not offer reason why it

was timely).

                     II. Ineffective Assistance of Counsel

       In his second Question Presented, Ross questions whether his previous

counsel’s ineffectiveness can be considered on direct appeal. However, in the

corresponding argument section of his brief, Ross states that he cannot raise

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7 Also, although Ross does not argue the court should have accepted the
untimely notice due to the change in his attorney, we note that we have
previously held that this does not meet an exception for allowing an untimely
pre-trial motion. See Commonwealth v. Page, 371 A.2d 890, 891
(Pa.Super. 1977).

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the issue of his counsel’s effectiveness on direct appeal because the trial court

refused to consider the claim. Ross does not argue the court erred in this

ruling    or   request    we    remand     for   consideration   of   prior   counsel’s

ineffectiveness. Nor did Ross argue to the trial court any reason why the court

should consider the ineffectiveness claim on direct appeal. We therefore

consider the claim waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 2119(a)

(argument section of brief should correspond to questions, and include

discussion and citation to pertinent authorities).

         Instead, Ross requests this Court to order that he remain released on

bond pending PCRA proceedings. Ross’s Br. at 16. Ross did not request the

trial court decide his right to bail after the conclusion of his direct appeal, but

addresses his request to this Court in the first instance. However,

“[a]pplications relating to bail when no appeal is pending shall first be

presented to the lower court, and shall be governed by the Pennsylvania Rules

of Criminal Procedure.” Pa.R.A.P. 1762(b)(1). The request is therefore

premature, and not properly before this Court. We therefore deny Ross’s

request to remain free on bond pending PCRA proceedings, without prejudice

to Ross’s ability to request bail in the court below after the conclusion of his

direct appeal.8
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8 Although the bail bond during a pending appeal does not remain valid
throughout post-conviction collateral proceedings, see Pa.R.Crim.P. 534,
comment and Commonwealth v. Dunlavey, 805 A.2d 562, 565 (Pa.Super.
2002), a PCRA court has some discretion to grant bail during the pendency of
a timely filed PCRA petition, see 42 Pa.C.S.A. § 9546(a), Commonwealth v.
McMaster, 730 A.2d 524, 527 n.1 (Pa.Super. 1999).

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2019




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