J-S80024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MYRON M. COWHER, II                        :
                                               :
                      Appellant                :   No. 3297 EDA 2016

             Appeal from the Judgment of Sentence October 7, 2016
     In the Court of Common Pleas of Pike County Criminal Division at No(s):
                           CP-52-CR-0000422-2014


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                            FILED FEBRUARY 06, 2018

        Myron M. Cowher, II (“Appellant”) appeals from the judgment of

sentence imposed by the Court of Common Pleas of Pike County after a jury

found him guilty of multiple offenses related to an attempted election fraud.

We affirm.

        This case arises out of Appellant’s fraudulent voting scheme in the

2014 Wild Acres Community Association election.            Appellant and his co-

defendant, Dmitry Kuperschmidt,1 planned to cast ballots for historically

non-voting property owners of the Wild Acres Community in order to

influence the election results. Appellant went to trial in May of 2016 on 217


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1 Dmitry Kuperschmidt appealed his judgment of sentence at 3295 EDA
2016. We addressed his claims of error in a separate memorandum.
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counts, including forgery, identity theft, criminal use of a communications

facility, tampering with records or identification, criminal attempt, and

criminal conspiracy.2 The jury convicted Appellant on all 217 counts.

       On   August     11,    2016,    the     trial   court   sentenced   Appellant   to

incarceration for an aggregate term of eighteen months to four years. The

Commonwealth filed a motion for reconsideration. Following a hearing, the

trial court granted the Commonwealth’s request for an amendment of the

maximum sentence to fifty months to reflect the correct total of each

individual sentence; however, the trial court denied the Commonwealth’s

request for an additional sentence of probation. The trial court entered an

amended sentencing order on October 7, 2016, indicating the correct

maximum sentence of fifty months and affording Appellant credit for 143

days of time served.3        This appeal followed.        Appellant and the trial court

complied with Pa.R.A.P. 1925.

____________________________________________


2  18 Pa.C.S. §§ 4101(a)(2), 4120(a), 7512(a), 4104(a), 901, and 903,
respectively.

3  The jury convicted Appellant on multiple counts of criminal attempt and
criminal conspiracy related to the substantive offenses of forgery, identity
theft, and tampering with records or identification. However, “[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.” 18 Pa.C.S. §
906. Although the trial court originally sentenced Appellant on the attempt
and conspiracy convictions, it also amended the original sentencing order on
October 7, 2016, to remove the sentences for the conspiracy convictions as
to comply with 18 Pa.C.S. § 906. Order, 10/7/16, at 4–5.



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       On appeal, Appellant states a single issue for our consideration:4

       1. Did the lower court err when it refused to re-open the case in
          order to allow [Appellant] to exercise his right to testify when
          the request was made before closing arguments and where
          the court failed to colloquy him before the defense rested,
          refused to consider the substance of the proposed testimony
          and otherwise failed to inquire as to whether a miscarriage of
          justice would occur in the absence of his testimony?

Appellant’s Brief at 4. As this issue involves Appellant’s constitutional right

to testify, it is a question of law; thus, our standard of review is de novo,

and our scope of review is plenary. Commonwealth v. Baldwin, 58 A.3d

754, 762 (Pa. 2012) (citation omitted) (“Baldwin II”).

       Our Supreme Court has explained that:

       [a] criminal defendant’s right to testify has its source in the
       Fifth, Sixth, and Fourteenth Amendments of the United States
       Constitution, as well as Art. I, § 9 of the Pennsylvania
       Constitution. This right is not unfettered, however, and there are
       limitations on its exercise, such as the accommodation of
       legitimate interests in the trial process. Accordingly, the
       reopening of a case after the parties have rested, for the taking
       of additional testimony, is within the trial court’s discretion; this
       Court has couched the exercise of this discretion in terms of
       preventing a failure or miscarriage of justice.

Baldwin II, 58 A.3d at 763 (internal brackets and citations omitted). See

also Commonwealth v. Tharp, 575 A.2d 557, 558–559 (Pa. 1990) (“[A]

trial court has the discretion to reopen a case for either side, prior to the

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4  Although Appellant presented six issues for the trial court’s review, he only
presents one issue on appeal to this Court. Thus, we consider the other five
issues waived. Commonwealth v. Yocolano, 169 A.3d 47, 53 n.7 (Pa.
Super. 2017).



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entry of final judgment, in order to prevent a failure or miscarriage of

justice.”)). Furthermore:

      [w]e will deem a trial court to have abused its discretion only if
      we determine that the trial court’s ruling exhibited manifest
      unreasonableness, partiality, prejudice, bias or such lack of
      support as to render it clearly erroneous. We will not condemn
      a trial court’s ruling as an abuse of discretion merely
      because we might have reached a different conclusion
      had the decision been ours in the first instance.

Commonwealth v. Baldwin, 8 A.3d 901, 903–904 (Pa. Super. 2010)

(“Baldwin I”) (quoting Commonwealth v. Bango, 742 A.2d 1070, 1072

(Pa. 1999) (citation omitted) (emphasis in original)).       Finally, “there is no

requirement that the trial court conduct an on-the-record colloquy when a

defendant   waives     his   right   to   testify.”   Id.   at   907   n.5   (citing

Commonwealth v. Duffy, 832 A.2d 1132, 1137 n.3 (Pa. Super. 2003)

(citation omitted)).

      The Baldwin II Court upheld this Court’s framework for reviewing the

denial of a defense request to reopen its case. Baldwin II, 58 A.3d at 763–

764. That framework involved weighing a defendant’s “right to testify after

the close of evidence against the need for order and fairness in the

proceedings” to determine if the trial court abused its discretion in allowing

the testimony. Baldwin I, 8 A.3d at 910. We considered several factors

specific to the facts of Baldwin I that are also present in the case at hand:

both cases were jury trials; the defense motions occurred after the trial

court had informed the jury that the defense had rested, the evidence was


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closed, and proposed instructions had been provided; the defense motions

occurred before closing arguments and the trial court’s final charge; and the

Commonwealth’s rebuttal witnesses were no longer available.5

       Here, at the conclusion of the Commonwealth’s case-in-chief on Friday

afternoon, Appellant chose not to testify or to present any evidence. N.T.,

5/20/16, at 230.         On the following Monday morning, defense counsel

addressed the trial court:

             ATTORNEY BARON: . . . I will be making a Motion to Re-
       open my case. My client is now requesting or I should say
       demanding that he take the stand and testify. He indicated to
       me that he was not in the right state of mind on Friday due to
       the medications he was provided on Thursday. I guess over the
       weekend he had the opportunity to adapt to his medicines or
       come off those medications and apparently come to the right
       state of mind. So that is my Motion Judge.

                                          * * *

             THE COURT: Okay well I will tell you what my decision will
       be in a second but I have not had this specific scenario come up
       before but is there any case law that you want to refer me to
       because I just want to ask you before I make my decision.

             ATTORNEY BARON: Judge I guess that I just—like I said I
       found this out walking into Court this morning. I would just like
       for the record to indicate that my client on Friday was on
       Gabapentin, Cyclobenzaprine and prednisone my understanding
       they are Neurontin, Flexural and Duratocin; those are the drugs

____________________________________________


5 Additionally, we considered that defendant Baldwin did not want to testify;
rather, he wanted to address the jury without being subject to cross-
examination in order to bolster his insanity defense. Baldwin I, 8 A.3d at
910. Moreover, defendant Baldwin “presented no excuse to explain his
change of tack.” Id.



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     he was on, narcotics or whatever they are Your Honor. That is
     all I have to say for the record.

           THE COURT: Well what the Court will do is deny the
     Motion. Suffice it to say I think that sufficient time has lapsed to
     make that decision and the Court made it very clear when I
     indicated that the evidence was closed and I think based upon
     everything that the time has passed for Mr. Cowher to make that
     decision and the prejudice that might result from the
     Commonwealth in allowing the case to be reopened. I will deny
     the Motion but it is noted of record.

           ATTORNEY BARON: Thank you, Your Honor.

N.T., 5/23/16, at 3–5. Unlike defendant Baldwin, Appellant was “demanding

to testify,” and he explained his change of mind as the result of adapting to

new medications over the weekend. N.T., 5/23/16, at 3. Yet, at no time

before or on Friday, May 20, 2016, did Appellant identify his medications as

an impediment to testifying.

     The trial court disposed of Appellant’s challenge as follows:

           Under Pennsylvania law, it is within the Trial Court’s
     discretion to reopen a case, “in order to prevent a failure or
     miscarriage of justice.” Commonwealth v. Tharp, 575 A.2d 557,
     558 (Pa. 1990). The [c]ourt’s decision will be upheld as long as
     there is not an abuse of discretion. See Commonwealth v.
     Baldwin, 58 A.3d 754, 759 (Pa. 2012) [(Baldwin II)].

                                   * * *

           [Appellant] argues that under [Baldwin II], this [c]ourt did
     not make a sufficient inquiry into the value of [Appellant’s]
     testimony or how the Commonwealth would be prejudice[d] by
     the reopening of the case. [Appellant] further asserts that this
     [c]ourt erred by failing to colloquy [Appellant] about his decision
     not to testify prior to the close of evidence.

                                   * * *


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            We respectfully submit that under [Baldwin II] this [c]ourt
     appropriately denied [Appellant’s] Motion to reopen the case.
     The [c]ourt would particularly note that just as in [Baldwin II],
     [Appellant] here asserted his right to testify after the jury had
     been informed that the defense had rested and his assertion
     came just before closing arguments were to begin on a Monday
     after a weekend break. As in [Baldwin II], the [c]ourt had
     already received requests for points for charge and had prepared
     its final jury instructions. In addition, the [c]ourt had advised
     the jury and the parties on the close of trial on the preceding
     Friday that the testimony and evidence were closed and that trial
     would resume on Monday with closing arguments and the
     [c]ourt’s final charge. Further, there was an indication from
     Assistant District Attorney Bruce DeSarro, Esq. that the
     Commonwealth would be prejudiced by [Appellant’s] testimony
     because rebuttal witnesses were no longer available.          N.T.
     05/23/14 at 3–4.

           This [c]ourt also notes that, while certainly not dispositive
     of [Appellant’s] request to reopen his case, ample
     accommodation was made to the parties, including [Appellant],
     to present testimony and evidence in this trial. The parties had
     estimated that trial would last approximately three (3) days
     when in fact, it went into a fourth day of trial with the time
     between days three (3) and four (4) being an intervening
     weekend. The case had been pending for almost two (2) years
     before going to trial providing sufficient time to prepare including
     deciding whether to present testimony. Further, the [c]ourt had
     granted [Appellant’s] request to adjourn the end of the morning
     session and the entire afternoon session of day two (2) of trial to
     attend a medical appointment.

            Although unlike in [Baldwin II], [Appellant] did provide a
     reason for his failure to testify during the defense’s case, namely
     that he was not in the “right state of mind” due to medications
     that were prescribed the day before. Id. at 3. However, the
     [c]ourt found this excuse to be dubious since no prior concerns
     were raised about the issue of [Appellant’s] understanding of his
     right to testify.

           Finally, this [c]ourt would note that unlike in [Baldwin II],
     no colloquy of [Appellant] was necessary here. The defendant in
     [Baldwin II] asserted that he wished to address the jury without
     cross-examination in order to bolster his insanity defense. Id. at

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      764. Given this assertion the trial court determined that an on-
      the-record colloquy of the defendant was a necessary measure
      for insuring that the defendant was knowingly giving up his right
      to testify. Id. at 756. Here, no such concerns existed and
      therefore a colloquy of [Appellant] was not necessary to
      determine that he understood his right to testify and the
      implications of giving up that right.

Trial Court Opinion, 1/10/17, at unnumbered 15, 17–18.

      Upon review, we discern no abuse of the trial court’s discretion, i.e.,

no manifest unreasonableness, partiality, prejudice, bias, or such lack of

support as to render the trial court’s ruling clearly erroneous.   In denying

Appellant’s motion, the trial court considered that: (1) it had advised the

jury and the parties on the preceding Friday that the testimony and evidence

were closed and that closing arguments and the final charge would take

place on Monday; (2) it had already received requests for points for charge

and had prepared its final jury instructions; (3) re-opening the case would

cause prejudice to the Commonwealth; (4) Appellant had two years to

decide if he would testify; and (5) the trial court did not believe the reason

for Appellant’s change of mind about testifying.        Trial Court Opinion,

1/10/17, at unnumbered 17–18. These factual findings are supported by the

record, N.T., 5/20/16, at 238; N.T., 5/23/16, at 2–5.      Moreover, the trial

court’s legal conclusion is supported by this Court’s decision in Baldwin I:

      [T]he potential for disruption or prejudice in the proceedings,
      upon reopening the evidence to allow Appellant to testify, would
      not be insignificant. . . . [R]eopening the evidence may have
      confused the jurors, as the Appellant had expressly rested its
      case in the presence of the jury. Also, through his testimony,
      Appellant would have had the opportunity to raise issues

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     warranting a response or follow-up from the Commonwealth.
     The Commonwealth had previously presented its rebuttal
     witness, rested its case and dismissed its witnesses. Thus,
     allowing Appellant’s testimony could have resulted in potential
     prejudice to the Commonwealth or significant delay in the trial
     proceedings. . . . [T]he parties here had begun preparing jury
     instructions, the jury was about to be given instructions,
     summations were to begin, and potential rebuttal witnesses had
     been released.

Baldwin I, 8 A.3d at 911 (internal citation omitted). Accord Baldwin II,

58 A.3d at 765 (“Likewise, we agree with the Superior Court’s conclusion

that the potential for disruption or prejudice in the proceedings outweighed

any value appellant’s testimony may have had.”).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/18




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