J-A21033-16

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

COMMONWEALTH OF PENNSYLVANIA                               IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                v.

MICHAEL SCOTT CHANCE,

                          Appellant                             No. 3009 EDA 2015

            Appeal from the Judgment of Sentence August 25, 2015
               in the Court of Common Pleas of Chester County,
              Criminal Division, No(s): CP- 15 -CR- 0003643 -2014

BEFORE:     BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                FILED OCTOBER 24, 2016

        Michael      Scott Chance       ( "Chance ")   appeals from the judgment of

sentence entered following             his    conviction of open lewdness, and the

summary offense of disorderly conduct.' We affirm.

        On August 7, 2014, at around              3:30 a.m., Uwchlan Township Police

Officer David Coppola           ( "Officer   Coppola ") responded to   a   radio dispatch

regarding   a    possible prowler or suspicious vehicle at Kidwelly Court, in the

Rhondda homeowners development in Uwchlan. Upon arriving at the scene,

Officer Coppola spoke to the complainant.                 The complainant told Officer

Coppola that         a   vehicle had pulled into Kidwelly Court, after which      a   man

exited the vehicle, left it running with the lights on, and walked to another

part of the     court.2      Aware of recent break -ins in the area, Officer Coppola



'   18 Pa.C.S.A. §§ 5901, 5503.

2   It was established that Chance was not the man who left the vehicle.
J-A21033-16

walked in the same direction as the driver of the unattended vehicle, as

indicated by the complainant.             According to Officer Coppola, he heard what

sounded like       a   car trunk or door slam.            Looking in the direction of the noise,

Officer Coppola saw Chance from                a   distance of about 30 feet. Walking about

ten feet toward Chance, Officer Coppola saw that Chance was wearing black

bedroom slippers, pink girls' underwear on his body, and purple panties on

his head. The purple panties covered Chance's face.

        From   a       distance of about 10 to 15 feet, Officer Coppola saw Chance

appear to apply          a   gel to his groin area. At that time, Chance "took his right

hand and stuck it into his pants and started to manipulate his genitals[,]"

"apparently masturbating."              N.T., 5/13/15, at 16.           When Officer Coppola

asked       Chance what           he   was     doing,      Chance    confirmed    that he was

masturbating.            After ascertaining Chance's identity, and the fact that he

lived at Kidwelly Court, Officer Coppola told Chance that he would receive his

citation by mail.             Officer Coppola then directed Chance to go inside his

residence.

        A   jury found Chance guilty of the above -described charges. The trial

court thereafter sentenced Chance to                       a   minimum of one month and         a


maximum of 12 months in jail, with Chance eligible for work release after

two weeks.             The trial court further sentenced Chance to 50 hours of

community service.              Chance filed       a   post- sentence Motion.    While the post -

sentence Motion was pending, Chance's counsel filed                      a   Motion for leave to



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withdraw his appearance on Chance's behalf.                  Counsel alleged that he and

Chance had    a   "fundamental disagreement about the proper direction of his

representation[,]" and that Chance was without income. Motion for Leave to

Withdraw, ¶¶      1 -2.     Counsel further indicated that Chance qualified for the

appointment of counsel. Id.,         ¶ 2.

      On September 9, 2015, the             trial court entered an Order granting               in

part and denying in part Chance's post- sentence                  Motion.3      On   that same

date, the trial court granted defense counsel's request to withdraw from

representation.           The trial court's Order directed Chance to apply for

representation by the Public Defender's Office. Chance timely filed                   a   pro   se

Notice of Appeal, followed by           a   pro   se   court -ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      Chance now presents the following clams for our review:

      1.   Did the trial court commit reversible error when it denied
      [Chance's] request for the corpus           delicti   jury instruction?
      2.  Did the trial court commit reversible error by not advising
      [Chance] of his post[ -]sentence rights[,] thus causing him undue
      prejudice for preparing his appeal?

      3.   Did the trial court commit reversible error by unduly
      impairing [Chance's] right of allocution?

Brief for Appellant at 4.



3Specifically, the trial court continued to require Chance to participate in the
county sex offender's program. However, the trial court amended its bail
condition that Chance be subject to electronic home monitoring.


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      Chance first claims that the trial court improperly failed to issue                   a


corpus delicti4 jury instruction.   Id. at   8. Chance argues   that   a   corpus delicti

instruction was made necessary because, during the Commonwealth's

opening argument, the prosecutor referred to Chance's statement to Officer

Coppola (i.e., that Chance was masturbating) without prior notice to Chance

and prior to the admission of any trial evidence.         Id. at   10 -11.         Chance

argues that the trial court improperly denied his requested corpus delicti jury

instruction, and "made matters worse by instructing the jury that: 'Before

you must -before you may consider this statement as evidence against

[Chance,] you must find that        a   crime was in fact committed.       '     Id. at   11

(citation and emphasis omitted). According to Chance, the trial court erred

by opening the "scope of consideration" beyond the open lewdness charge,

thereby allowing the jurors to speculate about the existence of other crimes,

including but not limited to the disorderly conduct charge.                Id.     Chance

contends that the trial court's instruction did not explain how the jury was

supposed to weigh Chance's statement, "namely that the corpus delicti rule

additionally requires that the Commonwealth prove to the jury's satisfaction

beyond   a   reasonable doubt, the corpus delicti of the crimes charged."                 Id.
(internal quotation marks and citation omitted).


4 Corpus delicti, "the body of the crime," is defined as "a wrong committed
by criminal means, and consisting of the occurrence of a loss or injury, and
some person's criminal conduct as the source of that loss or injury."
Commonwealth v. Ware, 329 A.2d 258, 274 (Pa. 1974).


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      "The relevant inquiry for [an appellate court,] when reviewing          a   trial

court's failure to give      a   jury instruction,   is   whether such charge was

warranted by the evidence in the case." Commonwealth v. Baker, 963

A.2d 495, 506 (Pa. Super. 2008).

      In reviewing a challenge to the trial court's refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court's decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error.      Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the [a]ppellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667                      (Pa.   Super. 2013)

(citation omitted).

      "The corpus delicti rule places the burden on the prosecution to

establish that   a   crime has occurred before   a   confession or admission of the

accused connecting him to the crime can be admitted."           Commonwealth v.
Dupre, 866 A.2d 1089, 1097         (Pa. Super. 2005).5 The purpose of this rule is

to   prevent the hasty and unguarded character that often attaches to

5 We note that "the order in which evidence is presented is a matter
committed to the trial court's discretion, and its rulings will not be disturbed
absent an abuse of that discretion." Commonwealth v. Edwards, 903
A.2d 1139, 1158 -59 (Pa. 2006).

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confessions and admissions and the consequent danger of                               a       conviction

where no crime has in fact been committed. Commonwealth v. Otterson,

947 A.2d 1239, 1249 (Pa. Super. 2008).                          However, our Pennsylvania

Supreme Court has explained that "the corpus                      delicti   rule should not be

viewed as    a   condition precedent to the admissibility of the statements or

confessions of the accused.                   Ware, 329 A.2d at 274 n.41; accord,

Commonwealth v. Taylor, 831 A.2d 587, 590 -91                      (Pa. 2003).

     Rather, the rule seeks to ensure that the Commonwealth has
     established the occurrence of a crime before introducing the
     statements or confessions of the accused to demonstrate that
     the accused committed the crime. The rule was adopted to
     avoid the injustice of a conviction where no crime exists                            .   .    .   .


     The fact that a crime has been committed by someone must be
     shown before a confession will be received.

Taylor, 831 A.2d at 590 -91 (citation and internal quotation marks omitted).

     A person commits the crime of                 disorderly conduct if, "with the intent to

cause public inconvenience, annoyance or alarm[,] or recklessly creating                                   a


risk thereof, he       ...   makes an obscene gesture[,] or           ...   creates   a           physically

offense condition by any act which serves no legitimate purpose of the

actor." 18 Pa.C.S.A.          §   5503(a)(3), (4). In     a   prosecution for open lewdness,

the corpus   delicti     consists of proof that the person "does any lewd act which

he knows is likely to be observed by others who would be affronted or

alarmed." 18 Pa.C.S.A.            §   5901.

     As the trial court observed in its Opinion,

      Officer [] Coppola ... testified that on August 7, 2014[,] at
      around 3:30 a.m., he received a radio call of a suspicious vehicle


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J-A21033-16

        at Kidwelly Court .... When he was investigating, he observed
        [Chance] in the parking lot of the development wearing only
        black bedroom slippers, pink girl's underwear on his body, and
        purple girl's panties pulled over his head. He then saw [Chance]
        apply gel to his groin area and begin to masturbate.

Trial Court Opinion, 1/29/16, at 3; see also N.T., 5/13/15, at 13 -14

(wherein Officer Coppola described his encounter with Chance).            Further, at

trial, Officer Coppola testified that

        I did ask [Chance] if he had just pulled into the court because I
        had at some point told him that that's -we were there
        investigating a suspicious vehicle that had pulled in, and that he
        said no, he's been home for a while and he lives right there, and
        he had pointed to his residence[,] which he was directly in front
        of.

N.T., 5/13/15, at         19.6   Thus, the Commonwealth presented evidence,

independent of Chance's inculpatory statement, that Chance had left his

residence, attired in pink underwear and wearing purple underwear on his

head,    to   rub   his   groin area    in   a   public parking   lot.   Under these

circumstances, we agree with the trial court's determination that           a corpus


delicti jury instruction was not warranted, as the Commonwealth had

established the crimes by independent evidence.             See Trial Court Opinion,

1/29/16, at 4.



6 Chance's statement that he had been at his residence is not inculpatory.
Accordingly, the corpus delicti rule does not apply. See Commonwealth v.
Persichini, 737 A.2d 1208, 1213 (Pa. 1999) (recognizing that only
inculpatory statements are subject to the corpus delicti rule, but equally
dividing as to whether the two -tiered approach to the corpus delicti rule
should be abandoned).


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J-A21033-16

        Chance next claims that the trial court improperly failed to advise him

of his right to file post- sentence motions and an appeal, pursuant to

Pa.R.Crim.P. 7047 and 720.8      Brief for Appellant at 15 -16.                  Chance claims

that there    is   "no excusing such       a    fundamental breakdown in judicial,

statutory and constitutional due process."              Id.    at 16.        Further, Chance

argues that the trial court improperly allowed his counsel to withdraw on the

day that the post- sentence Motion was denied.                Id. at   17.       Chance argues

that the trial court "stranded him without counsel with the appeal clock

ticking." Id. Therefore, Chance asserts, this Court should remand the case

for resentencing, so that the errors can be corrected. Id. at 19.

        Our review of the record discloses that Chance, assisted by counsel,

timely filed his post- sentence Motion. Thus, the remedy of                  a   remand so the

court could properly advise Chance of his right to file          a   post- sentence motion

is   moot.

        Regarding Chance's claim that the trial court improperly permitted his

counsel to withdraw prior to filing    a       notice of appeal, the trial court stated

the following:


7   Rule 704 requires, inter a /ia, that at sentencing, a trial judge "shall
determine on the record" that the defendant has been advised of his right to
file a post- sentence motion and the applicable time limitations, as well as
the right to the assistance of counsel in preparing such motions.
Pa.R.Crim.P. 704(C)(3).
8
   Rule 720 sets forth the post- sentence procedures to be followed by the
trial court and the timing applicable for post- sentence motions and the filing
of a notice of appeal.

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J-A21033-16

      [Chance] fails to acknowledge, however, that on the same date
      his Motion for Post -Sentence Relief was decided, the court also
      entered an Order permitting defense counsel to withdraw. In
      that Order dated September 9, 2015, [Chance] was directed to
      promptly apply for representation by the Chester County Public
      Defender's Office. As of the date of [the trial court's] Opinion
      (more than four (4) months later), [Chance] has failed to do so.
      He also has not filed a motion to proceed in forma pauperis.
      Thus, [Chance's] failure to be represented by counsel during the
      pendency of this appeal is a result of [Chance's] failure to apply
      for representation by the Public Defender's Office and /or to
      obtain private counsel on his own.

            As   [Chance] filed     timely appeal in this matter and
                                       a
      suffered no prejudice[] by the trial judge's failure to advise him
      of his appellate rights, this allegation of error does not entitle
      him [to] any relief.

Trial Court Opinion, 1/29/16, at 6. We agree, and affirm on this basis.9 See

id.

      Finally, Chance argues that the trial court unduly impaired his right of

allocution at the sentencing hearing.            Brief for Appellant at 19.   Chance

takes exception to the trial court's interruptions of his statements at the

sentencing hearing.   Id. at     22.

      The failure to grant   a   defendant the right of allocution constitutes legal

error. See Commonwealth v. Jacobs, 900 A.2d 368, 376 -77 (Pa. Super.

2006) (en banc).       However, like most legal errors,           a   claim that the

defendant was denied his right to allocution is nevertheless waivable if not

raised before the trial court.    Id.


9 We further note that Chance is presently represented by counsel, and has
not set forth any additional issues that he would have raised had he been
properly advised pursuant to Pa.R.Crim.P. 704 and 720.

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      Here, Chance exercised his right of allocution at sentencing. See N.T.,

8/25/15, at 16 -17 (wherein, after the trial court informed Chance that it had

received and    read   Chance's letter to the court and the pre- sentence

investigation report, Chance expressed his shame over the incident). When

specifically asked whether Chance wished to address the sentence, Chance

responded in the negative.    Id. at    21. Thus, Chance was afforded his right

of allocution regarding his sentence, but waived his right of further allocation

regarding the sentencing.     As such, Chance's claim lacks support in the

record, and is waived. See Pa.R.A.P. 302(a) (stating that     a   claim cannot be

raised for the first time on appeal).

      Judgment of sentence affirmed.

Judgment Entered.




J:seph D. Seletyn,
Prothonotary

Date: 10/24/2016




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