J-A22029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
            v.                            :
                                          :
                                          :
BRANDON JUNE WILSON                       :
                                          :
                  Appellant               :     No. 3217 EDA 2016

         Appeal from the Judgment of Sentence September 6, 2016
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0000597-2014


BEFORE:    BOWES, J., LAZARUS, J., and PLATT*, J.

CONCURRING MEMORANDUM BY BOWES, J.:                  FILED JANUARY 19, 2018

     I agree with my learned colleagues that the trial court incorrectly

determined that Appellant knowingly and intelligently waived the protections

afforded by Pennsylvania Rule of Evidence 410, which barred any statements

made by Appellant during plea negotiations, and that the error was not

harmless beyond a reasonable doubt.           I write separately to set forth my

view that this issue does not present a question of whether Rule 410 was

waived as a part of the plea agreement. Additionally, “Because a successful

sufficiency of the evidence claim warrants discharge on the pertinent crime,

we must address this issue first.” Commonwealth v. Toritto, 67 A.3d 29,

33 (Pa.Super. 2013) (citation omitted).

     In reviewing the sufficiency of the evidence of third-degree homicide,

our standard of review is well-settled. Whether the evidence was sufficient

to sustain the charge presents a question of law.        Our standard of review

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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is de novo and our scope of review is plenary. Commonwealth v. Walls,

144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting our

inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      However, a review of Appellant’s argument demonstrates that it is, in

fact, a weight of the evidence claim. Appellant attacks the credibility of the

witnesses, concluding that “None of these individuals [was] worthy of belief.

All of them had a motive to testify falsely against [Appellant], and to identify

him as the shooter. . . . The countless lies and multiple self-serving versions

of events provided by these individuals are too flawed to be worthy of

belief.”   Appellant’s brief at 37.       “A claim attacking the weight of the

evidence . . .     questions which evidence the fact-finder should have

believed.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). The

jury was free to credit or discredit the testimony as it saw fit for sufficiency

purposes, and we cannot reevaluate its determinations.               Therefore,

Appellant’s sufficiency argument fails.

      I now address Appellant’s argument regarding the trial court’s denial

of his motion to preclude statements made during plea negotiations.         The



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key exchange occurred during a May 21, 2014 meeting between Appellant,

his counsel, two prosecutors, and investigating officers:

      [Assistant District Attorney]: We're here today on May 21, 2014
      for a proffer involving Brandon Wilson. . . . I talked to your
      attorney and essentially I am offering the same thing all the
      other persons charged as accomplices in the murder of Darcy
      Kravchenko have been offered. And that is, for you to give a
      truthful proffer and otherwise cooperate with the investigators in
      that case, but whatever you give will be subject to use and
      derivative use immunity. We will not be using your
      statements against you or evidence derived from your
      statements against you in any court proceeding.

      Mr. Wilson: Okay.

      [Assistant District Attorney]: But it has to be truthful.

      Mr. Wilson: Yes I will.

      [Assistant District Attorney]: Or everything goes away. In
      exchange for which you will be offered a plea of guilty to Murder
      in the Third Degree as an Accomplice under 18 Pa. C.S. §
      2502(c) and 18 Pa. C.S. § 306. There is no agreement on
      sentencing, but the Commonwealth, the District Attorney are not
      in opposition to meeting with the Judge and your lawyer in
      chambers to get an idea of what exposure you're going to have.

      Mr. Wilson: Okay.

Commonwealth’s brief at 9-10 (citing transcript, emphases added).

      Appellant also agreed that he would testify against his co-defendants.

He then supplied statements, and later entered a guilty plea to third-degree

homicide as specified during the conversation, with sentencing deferred

pending the outcome of the other cases. However, Appellant later refused

to testify, and the plea was withdrawn.        Thereafter, Appellant filed the

motion to preclude, which the trial court denied.


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      The Commonwealth concedes that Appellant made these statements

during a plea negotiation process, and therefore they fell within the ambit of

Pennsylvania Rule of Evidence 410, which provides:

      (a) Prohibited Uses. In a civil or criminal case, evidence of the
      following is not admissible against the defendant who made the
      plea or participated in the plea discussions:

      (1) a guilty plea that was later withdrawn;

      (2) a nolo contendere plea;

      (3) a statement made in the course of any proceedings under
      Rules 311, 313, 409, 414, 424, 550 or 590 of the Pennsylvania
      Rules of Criminal Procedure, Rule 11 of the Federal Rules of
      Criminal Procedure, or a comparable rule or procedure of
      another state; or

      (4) a statement made during plea discussions with an
      attorney for the prosecuting authority if the discussions
      did not result in a guilty plea or they resulted in a later
      withdrawn guilty plea.

Pa.R.E. 410 (emphases added).       Hence, the statements were categorically

inadmissible absent a valid waiver of Rule 410’s protections.

      I agree with my learned colleagues that the trial court erroneously

permitted introduction of these statements and that the error was not

harmless beyond a reasonable doubt.          The Majority views this issue as

presenting   an   abuse   of   discretion.   Preliminarily,   I   recognize   that

Commonwealth v. Widmer, 120 A.3d 1023 (Pa.Super. 2015), similarly

viewed the introduction of statements covered by Rule 410 as falling under

the usual abuse of discretion framework concerning evidentiary issues.



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However, that case appeared to actually analyze the validity of the waiver as

a question of law. I submit that Rule 410 affords the trial court no discretion

to admit statements made during plea discussions, absent a waiver. In turn,

whether Appellant waived Rule 410 presents a question of law, which we

review de novo.1        Since the abuse of discretion analysis requires proper

application of the law, the distinction between these points may often be

immaterial. However, for the sake of clarity, I would explicitly hold that a

waiver of Rule 410 must be reviewed as a question of law, and that this

purported waiver failed that test. My reasoning follows.

       Our precedents have adopted the analysis of United States v.

Mezzanatto, 513 U.S. 196 (1995), in which the United States Supreme

Court analyzed the federal analog to Rule 410 and concluded that a criminal

defendant may waive its protections.           In Mezzanatto, the High Court set

forth the basic facts:

____________________________________________


1
  I agree with the United States Court of Appeals for the Fifth Circuit’s
observation regarding the standard of review:

       Whether [federal] Rule 410 is waivable with respect to the use of
       plea statements in the government's case-in-chief is a legal
       conclusion, reviewed de novo. While the government is correct
       that a district court's admission of evidence, if objected to, is
       reviewed for abuse of discretion, de novo review of attendant
       legal issues is a component part of that abuse of discretion
       review.

United States v. Sylvester, 583 F.3d 285, 288, n.4 (5th Cir. 2009).




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     [Mezzanatto] and his attorney asked to meet with the prosecutor
     to discuss the possibility of cooperating with the Government.
     The prosecutor agreed to meet later that day. At the beginning
     of the meeting, the prosecutor informed respondent that he had
     no obligation to talk, but that if he wanted to cooperate he would
     have to be completely truthful. As a condition to proceeding
     with the discussion, the prosecutor indicated that
     respondent would have to agree that any statements he
     made during the meeting could be used to impeach any
     contradictory testimony he might give at trial if the case
     proceeded that far. Respondent conferred with his counsel and
     agreed to proceed under the prosecutor's terms.

Id. at 198 (emphasis added). The United States Court of Appeals for the

Ninth Circuit held that the rule’s protections could not be waived.       The

Supreme Court disagreed, and ultimately noted that, “[A]bsent some

affirmative indication that the agreement was entered into unknowingly or

involuntarily, an agreement to waive the exclusionary provisions of the plea-

statement Rules is valid and enforceable.”        Id. at 210.     Therefore,

Mezzanatto, and our acceptance of its principles, stands for the proposition

that Rule 410 may be waived, but the case does not dictate what form a

valid waiver must take.

     In any event, the agreement referred to in the foregoing Mezzanatto

quotation is clearly referring to the agreement that “[Mezzanatto] would

have to agree that any statements he made . . . could be used to impeach

any contradictory testimony he might give at trial” as a condition precedent

to plea discussions. Id. at 198. In contrast, the Commonwealth appears to

view the reference to “agreement” as referring to the plea agreement, which

was subsequently withdrawn. “[N]owhere in the record of either pretrial or

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post trial proceedings did the appellant raise the issue of involuntariness as

a basis for invalidating the plea agreement or that his decision to enter into

the plea agreement was unknowing in the first instance.” Appellant’s brief

at 18.

          As the Majority notes, there is nothing to indicate the Commonwealth

conditioned its willingness to engage in plea discussions upon Appellant’s

agreement to forego Rule 410’s protections, which was the case in

Mezzanatto.        The Commonwealth pays no heed to this distinction, and

instead focuses on the fact that Appellant accepted a plea, which was later

withdrawn.2      “The lower court found that there was no evidence that the

defendant’s entry into the agreement was unknowing or involuntary and as a

result, in light of his breach, the statement under oath could be utilized at

trial.”    Id. at 14.     By referencing Appellant’s breach, the Commonwealth

appears to view the introduction of his statements as, in effect, damages.

Putting aside the questionable notion that damages for violation of a plea

agreement       can     justify   introducing   statements   made   during   a   plea

____________________________________________


2
  Mezzanatto involved only the introduction of inculpatory statements for
impeachment purposes and not, as occurred herein, as substantive evidence
introduced in the case-in-chief.      Justice Ginsburg, joined by Justices
O’Connor and Breyer, filed a concurring statement noting that “a waiver to
use such statements in the case in chief would more severely undermine a
defendant’s incentive to negotiate, and thereby inhibit plea bargaining.” Id.
at 11. However, since the Government did not seek a waiver for those
purposes, the three Justices did not comment further. Our precedents have
accepted that waiver is permissible for both purposes.



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negotiation, the Commonwealth’s conclusion overlooks the crucial point: Did

Appellant waive the exclusionary provisions of Rule 410?

      I submit that the answer to that question, as a matter of law, is no. I

glean from the Commonwealth’s brief that it views a breach of any plea

agreement as sub silentio waiving Rule 410. That analysis relegates the rule

to irrelevancy. Any “promise” by the Commonwealth not to use statements

made during plea negotiations at any later trial is superfluous as that is

precisely what Rule 410 already does. The Commonwealth’s “offer” is akin

to foregoing the death penalty in a retail theft case.     Moreover, while the

Commonwealth followed up by informing Appellant that “everything goes

away” in the event of non-compliance, that language is remarkably

ambiguous. Such language is equally amenable, if not more amenable, to

an interpretation that the proposed deal for third-degree homicide “goes

away” in the event of non-compliance, i.e., the prosecution would seek to

void the plea, not that the door is open to introducing all his statements. I

would hold that this language failed to serve as a valid waiver of Rule 410.

      For these reasons, I do not agree that this issue should be analyzed as

whether the Commonwealth made “waiver of Wilson’s Rule 410 rights a clear

and explicit condition of his plea agreement.” Majority memorandum at 11.

There is a distinction between Appellant’s statements during the plea

discussions versus statements he made at the actual plea hearing under

oath. Technically, no plea existed unless and until the trial court accepted


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the plea.    Even if Appellant had agreed to waive his Rule 410 rights with

respect to statements he made at the actual plea hearing, that agreement

would not relate back to the plea discussions themselves. For instance, in

United States v. Escobedo, 757 F.3d 229, 231 (5th Cir. 2014), the Fifth

Circuit   analyzed     under    Mezzanatto       whether   the   Government   could

introduce in its case-in-chief “the record statements to which Escobedo

agreed in his plea agreement[.]” Id. at 231 (emphasis added). To assess

whether the Government could introduce those statements, the Court looked

to “[t]he language . . . contained in a section of the plea agreement entitled

“Breach of Plea Agreement.”            Id. at 233.   Thus, even if Appellant had

actually agreed to waive his Rule 410 rights as part of the actual plea, that

agreement would only permit introduction of statements made during the

plea, not any statements made during discussions leading to the plea. See

Pa.R.E. 410(a)(3) (barring the use of statements made during, inter alia,

guilty plea proceedings).

       Finally, I agree that the phrase “[o]r everything goes away” is

inherently ambiguous.3         See Majority memorandum at 11 (concluding that

any ambiguities must be resolved against the Commonwealth). However, I
____________________________________________


3
   I note that Appellant states that he “did not get the benefit of his
substantial compliance.” Appellant’s brief at 27. Apparently, Appellant also
views the propriety of introducing his statements as one of contract law, in
that he substantially complied with the plea agreement. However, Appellant
properly alleged that Rule 410 barred the introduction of his statements,
which, as I have stated, poses a question of law.



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am not convinced it is proper to assess any ambiguities in the first instance,

as that suggests we may be inclined to permit introduction of statements

made during plea negotiations even if the waiver was not explicit.      I am

troubled by the idea the Commonwealth may introduce statements made

during plea discussions on anything less than a showing that the defendant

was directly informed of the consequences. Compare Mezzanatto, supra

at 198 (“[T]he prosecutor indicated that respondent would have to agree

that any statements he made during the meeting could be used to impeach

any contradictory testimony he might give at trial”); Widmer, supra at

1026 (“So you understand that what you say, if you decide at some point

after you do this proffer with us, that you no longer wish to do it, anything

that's on record here will be used against you.”) (quoting transcript); C.f.

Commonwealth v. Burno, 154 A.3d 764, 773-74 (Pa. 2017) (in first plea

negotiation the defendant was informed that “if the negotiations fell through

or broke down for any reason, any statements that Burno had made would

be used against him at a future trial”). For the foregoing reasons, I concur

in the decision to award a new trial.




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