J-S37005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DAVID L. BAYNES

                            Appellant               No. 378 WDA 2015


           Appeal from the Judgment of Sentence February 3, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000244-2014;
                           CP-02-CR-0002773-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED AUGUST 09, 2016

       Appellant, David L. Baynes, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his jury

trial convictions of rape, involuntary deviate sexual intercourse (“IDSI”),

sexual assault, indecent assault, indecent exposure, and simple assault.1

We affirm the convictions but vacate the judgment of sentence and remand

for resentencing.

       The relevant facts and procedural history of this case are as follows.

On the night of December 30, 2013, S.H. was ousted from a drug recovery

house for failing a urine test. S.H. called Appellant and asked if she could
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1
  18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(1), 3127(a),
2701(a)(1), respectively.
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temporarily stay at Appellant’s apartment until she was able to return to the

recovery house. Appellant agreed to let S.H. stay at his apartment. S.H.

arrived at the apartment, where Appellant was drinking alcohol and using

cocaine.    Appellant repeatedly pulled down his pants and asked S.H. to

perform oral sex on him, but she refused. At some point, S.H. took a nap

and woke up to Appellant standing over her with his pants off.     Appellant

again told S.H. to perform oral sex on him.      S.H. started to gather her

belongings to leave the apartment. Appellant then apologized and tried to

kiss S.H.   S.H. told Appellant to move out of her way and let her leave.

Appellant then struck S.H. on the head, ripped her shirt off, and forced her

to perform oral sex on him. After, Appellant threw S.H. onto the bed and hit

her again while struggling to remove her pants. Appellant then had forcible

vaginal intercourse with S.H.

      Appellant’s arrest generated media coverage and prompted M.S. to

contact the police and report a prior incident involving Appellant.     M.S.

alleged that on October 21, 2013, she was using drugs with Appellant when

he grabbed her by the throat, pulled her hair, and forced her to perform oral

sex on him.    M.S. alleged Appellant then pushed her onto a bed and had

forcible vaginal intercourse with her.

      The Commonwealth charged Appellant with rape, IDSI, sexual assault,

indecent assault, indecent exposure, and simple assault, in connection with

the incident involving S.H. With respect to the incident involving M.S., the


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Commonwealth        charged   Appellant   with   rape,   IDSI,   sexual   assault,

aggravated indecent assault, indecent assault, indecent exposure, and

simple assault. At a hearing on October 28, 2014, Appellant told the court

he wanted a new court-appointed attorney. Appellant’s counsel at that time

was Appellant’s third court-appointed attorney. The court denied Appellant’s

request. After a discussion with the court, Appellant decided he did not wish

to participate in jury selection. On October 29, 2014, prior to the start of

trial, Appellant indicated he did not want to be present for trial either. The

court conducted a colloquy regarding Appellant’s waiver of his right to be

present at trial.    Appellant confirmed he wanted to leave, and he was

escorted out of the courtroom. Appellant appeared in court on the second

day of trial and was present for the remainder of the trial.

      The jury convicted Appellant of all charges in connection with the

incident involving S.H. The jury also convicted Appellant of simple assault

with respect to M.S. but acquitted Appellant of the remaining counts.          On

February 3, 2015, the court sentenced Appellant to consecutive terms of ten

(10) to twenty (20) years’ incarceration for the rape and IDSI convictions.

The court also imposed a consecutive term of five (5) to ten (10) years’

incarceration for sexual assault.   The court imposed no further penalty for

the remaining convictions. Thus, the court imposed an aggregate sentence

of twenty-five (25) to fifty (50) years’ incarceration. Appellant timely filed a

notice of appeal on March 5, 2015.        The court ordered Appellant to file a


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concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

After the court granted an extension, Appellant timely complied.2

       Appellant raises the following issue for our review:

          DID THE [TRIAL] COURT COMMIT AN ERROR OF LAW
          WHEN IT FAILED TO CONDUCT, AS IT MUST WHEN
          DEALING WITH THE WAIVER OF A CONSTITUTIONAL
          RIGHT UNDER BOTH THE UNITED STATES AND
          PENNSYLVANIA CONSTITUTIONS, A FULL AND COMPLETE
          COLLOQUY REGARDING APPELLANT’S WAIVER OF HIS
          RIGHT TO BE PRESENT AT HIS TRIAL, AND THEREBY
          FAILED TO ENSURE THAT APPELLANT KNOWINGLY AND
          INTELLIGENTLY WAIVED HIS RIGHTS?

(Appellant’s Brief at 6).

       Appellant argues his waiver of his constitutional right to be present at

the jury trial was not knowing and intelligent. Appellant contends the court

failed to conduct an adequate colloquy pursuant to Commonwealth v.

Vega, 553 Pa. 255, 719 A.2d 227 (1998) (plurality), to ensure Appellant

understood the consequences of his failure to attend trial. Appellant asserts

the court merely informed him that he might hear evidence at trial which he

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2
   On June 23, 2016, Appellant filed with this Court a pro se “emergency
letter of termination of appellate counsel and stay in abeyance.” Appellant
filed his pro se motion after counsel and the Commonwealth had already
submitted appellate briefs.       Therefore, Appellant may not terminate
counsel’s representation and proceed pro se at this stage in the proceedings.
See Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223 (1994)
(stating appellant may not terminate counsel’s representation after appellate
briefs have been filed). Therefore, we deny Appellant’s open motion without
prejudice to Appellant’s right to assert counsel’s ineffectiveness later in a
petition timely filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546.



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would want his attorney to challenge during cross-examination of witnesses.

Appellant claims the court’s colloquy failed to cover other required factors,

such as Appellant’s right to testify in his own defense and the effect

Appellant’s absence might have on the jury and future claims of ineffective

assistance of counsel. Appellant concludes he is entitled to a new trial. We

disagree.

      “When we as an appellate court review a challenge to the validity of a

waiver of the right to be present at trial, we look to the record to determine

whether all the necessary information concerning the nature of the right and

the risk of not exercising that right was communicated to the [defendant].

If such information was communicated to the [defendant], the waiver will

not be disturbed.”     Commonwealth v. Faulk, 928 A.2d 1061, 1066

(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008).

         A defendant’s right to be present at trial is guaranteed by
         the Sixth Amendment to the United States Constitution; by
         Article I, Section 9 of the Pennsylvania Constitution; and
         by Pennsylvania Rule of Criminal Procedure 602(a). This
         Court has previously declined to interpret our state
         Constitution as requiring more protection for the accused
         with respect to trials in absentia than the United States
         Constitution. Furthermore, the right may be waived either
         impliedly, via the defendant’s actions, or expressly.

Id. at 1065-66 (internal citations omitted). In Vega, supra, a plurality of

the Pennsylvania Supreme Court addressed the content of the colloquy

regarding a defendant’s waiver of his right to be present during trial:

         While we do not require a rote dialogue such as that
         required for entry of a guilty plea or mandate any specific

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         language, the inquiry must be calculated to insure a
         defendant is aware of the dangers and disadvantages of
         waiving his right to be present during trial. Such an
         inquiry would necessarily include, at a minimum, a
         discussion of whether the defendant understands that if
         trial proceeds without his presence: (1) he would be
         unable to participate in the selection of a jury; (2) he
         waives his right to confront and cross-examine witnesses;
         (3) he will not be present to testify in his own defense;
         and (4) any claim challenging effective assistance of
         counsel will be severely limited since the defendant has
         chosen not to participate in his defense and will be unable
         to aid counsel during trial. Where the record contains no
         such inquiry there can be no valid waiver of the right to be
         present at trial.

Id. at 262, 719 A.2d at 231 (footnote omitted).

      Instantly, prior to jury selection on October 28, 2014, the court

addressed Appellant as follows:

         THE COURT: [Appellant], I have been informed that you
         do not wish to change your clothing for jury selection or
         participate in jury selection. That is up to you. You don’t
         have to do either. This is your jury. I think it’s to your
         advantage to be there and to decide [whom] you want to
         sit on your jury, you know, you get to have a vote in it, if
         you want. If you don’t, we are going to pick the jury
         without you. So if you will let me know how you intend to
         proceed we will follow your wishes.

(N.T. Hearing, 10/28/14, at 2). The court added, “I strongly advise that you

participate both in jury selection and in the trial.”   Id. at 6.   Appellant

confirmed that he did not wish to attend jury selection.    On the following

day, Appellant further indicated he did not wish to be present for trial. The

court stated the following:

         THE COURT: Okay. And, [Appellant], you have indicated
         that you do not wish to be present. The jury has been

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         selected and we are going to proceed with the jury trial. It
         is my strong recommendation that you stay here and help
         with your jury trial. This is your trial, no one else’s. And
         you may hear evidence that you wish to correct or talk
         about or you may know questions that would be
         appropriate to ask. And if you’re not here during the trial
         it’s going to be very difficult, if not impossible, for you to
         do it. I do believe that it’s in your—that it would be for
         your well-being to remain in the courtroom. However, if
         you refuse to do so the trial will proceed anyhow.

(N.T. Trial, 10/29/14, at 4-5). Appellant renewed his complaints regarding

his trial counsel and stated, “Yeah, I don’t even want to be part of this.” Id.

at 6. Later in the exchange, the court again asked Appellant if he wished to

be present for trial, to which Appellant replied, “No. I’m not going to stay.”

Id. at 11. Appellant was absent for the first day of trial, which comprised

almost all of the Commonwealth’s case-in-chief. Appellant appeared in court

on the following day and was present for the remainder of the trial.

Appellant also testified in his own defense.

      To the extent Appellant relies on Vega to argue the trial court’s

colloquy was constitutionally defective, we initially observe that Vega is a

non-binding, plurality decision. See In Interest of O.A., 552 Pa. 666, 676,

717 A.2d 490, 496 (1998) (stating: “While the ultimate order of a plurality

opinion; i.e. an affirmance or reversal, is binding on the parties in that

particular case, legal conclusions and/or reasoning employed by a plurality

certainly do not constitute binding authority”). Furthermore, the court in the

present case informed Appellant he had the right to participate in jury

selection and recommended that he exercise that right.          The court also

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advised Appellant he might hear evidence during trial he wished to challenge

or have questions to ask witnesses. The court strongly cautioned Appellant

it would not be in his best interest to make himself unavailable to aid

counsel during trial. The omission of any discussion of Appellant’s right to

testify in his own defense was rendered moot because Appellant did

ultimately return to court on the second day of trial and exercised that right.

The court’s colloquy satisfied the requirements of Vega, which does not

mandate a “rote dialogue.”      See Vega, supra.       Therefore, Appellant’s

waiver was valid and his issue merits no relief.

      Nevertheless, we also observe Appellant is a second-strike sex

offender and the Commonwealth gave notice of intent to seek the

mandatory minimum sentence under 42 Pa.C.S.A. 98718.2; yet, the certified

record shows that the court imposed consecutive terms of incarceration of

ten (10) to twenty (20) years for Appellant’s rape and IDSI convictions, as

well as a consecutive term of five (5) to ten (10) years’ incarceration for his

sexual assault conviction. We can raise and review an illegal sentence issue

sua sponte. See Commonwealth v. Oree, 911 A.2d 169, 172 (Pa.Super.

2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007).

      Section 9718.2 of the Sentencing Code establishes a mandatory

minimum sentence of twenty-five (25) years’ incarceration where a

defendant is convicted of a sex offense set forth in Section 9799.14, if at the

time of the commission of the current offense(s) the defendant had


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previously been convicted of an offense listed in Section 9799.14. See 42

Pa.C.S.A. § 9718.2(a)(1).3 See also Commonwealth v. Helsel, 53 A.3d

906 (Pa.Super. 2012), appeal denied, 619 Pa. 700, 63 A.3d 1244 (2013)

(holding trial court should have sentenced defendant as second-strike sex

offender under Section 9718.2, where defendant had committed two prior

triggering sex offenses but was sentenced for both crimes at same time; two

prior offenses counted as single strike).

       As well, Section 9765 addresses merger of sentences as follows:

          § 9765. Merger of sentences

          No crimes shall merge for sentencing purposes unless the
          crimes arise from a single criminal act and all of the
          statutory elements of one offense are included in the
          statutory elements of the other offense. Where crimes
          merge for sentencing purposes, the court may sentence
          the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.          The Crimes Code defines the offense of rape in

relevant part as follows:

          § 3121. Rape

          (a) Offense defined.—A person commits a felony of the
          first degree when the person engages in sexual intercourse
          with a complainant:

              (1)    By forcible compulsion.

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3
  The statute also establishes a mandatory sentence of life imprisonment
where at the time of the current offense, the defendant had been convicted
of two or more offenses set forth in Section 9799.14 arising from separate
criminal transactions. 42 Pa.C.S.A. § 9718.2(a)(2).



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18 Pa.C.S.A. § 3121(a)(1).      The pertinent subsection of the IDSI statute

provides:

           § 3123. Involuntary deviate sexual intercourse

           (a) Offense defined.—A person commits a felony of the
           first degree when the person engages in deviate sexual
           intercourse with a complainant:

              (1)   By forcible compulsion[.]

18 Pa.C.S.A. § 3123(a)(1). See also 18 Pa.C.S.A. § 3101 (defining “deviate

sexual intercourse” in part as “[s]exual intercourse per os or per anus

between human beings”).         The offense of sexual assault is defined as

follows:

           § 3124.1 Sexual assault

           Except as provided in section 3121 (relating to rape) or
           3123 (relating to involuntary deviate sexual intercourse), a
           person commits a felony of the second degree when that
           person engages in sexual intercourse or deviate sexual
           intercourse with a complainant without the complainant’s
           consent.

18 Pa.C.S.A. § 3124.1. See also Commonwealth v. Pasley, 743 A.2d 521

(Pa.Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000)

(explaining sexual assault statute was enacted to fill loophole left by rape

and IDSI statutes by criminalizing non-consensual sex where perpetrator

employs little or no force).

      Instantly, the Commonwealth filed notice          of intent to seek a

mandatory minimum sentence of twenty-five (25) years’ incarceration under

Section 9718.2 for Appellant’s convictions of rape, IDSI, sexual assault, and

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indecent assault, based on Appellant’s prior convictions for three counts of

sexual assault. All of Appellant’s prior sexual assault convictions arose in a

single case and counted as a single strike.       Therefore, Appellant is a now

second-strike offender under Section 9718.2 with respect to each triggering

offense in the instant case.      See 42 Pa.C.S.A. § 9718.2(a)(1); Helsel,

supra.     At sentencing, the court stated it was imposing an aggregate

sentence of twenty-five (25) to fifty (50) years’ incarceration, without

referring to any specific offense.     The court also indicated the sentence

included a mandatory minimum term.               The written sentencing order,

however, shows Appellant received two, consecutive sentences of ten (10)

to twenty (20) years’ incarceration for rape and IDSI, and a consecutive five

(5)   to   ten   (10)   years’   incarceration    for   sexual   assault.   See

Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa.Super. 2013) (stating

written sentencing order controls over court’s oral pronouncement of

sentence). Appellant’s sentences for those convictions are inconsistent with

the twenty-five (25) year minimum term of incarceration for second-strike

offenders prescribed by Section 9718.2. See 42 Pa.C.S.A. 9718.2(a)(1).

      Additionally, the evidence adduced at trial established Appellant

engaged in two distinct acts of sexual intercourse with S.H. First, Appellant

forced S.H. to perform oral sex on him.       Second, Appellant forced S.H. to

submit to vaginal intercourse. Those two acts correspond with Appellant’s

convictions for IDSI and rape, respectively. See 18 Pa.C.S.A. § 3123(a)(1),


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3121(a)(1).     The Commonwealth did not produce evidence that Appellant

engaged in any other acts of sexual intercourse with S.H. Thus, Appellant’s

conviction for sexual assault must have been based on the same act as his

conviction for either rape or IDSI.4 See Commonwealth v. Kelley, 569 Pa.

179, 801 A.2d 551 (2002) (stating offense of sexual assault requires act of

sexual intercourse or deviate sexual intercourse).        Further, all of the

statutory elements of sexual assault (sexual intercourse or deviate sexual

intercourse; victim’s lack of consent) are included in the offenses of rape and

IDSI.    See 18 Pa.C.S.A. § 3121(a)(1), 3123(a)(1), 3124.1(a)(1).       Sexual

assault is a lower graded offense than both rape and IDSI.          Therefore,

Appellant’s sexual assault conviction should have merged for sentencing

purposes.5 See 42 Pa.C.S.A. § 9765.

        Based on the foregoing, we affirm Appellant’s convictions, but we

vacate the judgment of sentence in its entirety and remand for resentencing.

When resentencing Appellant, the court must properly apply both merger

law and the second-strike provision of Section 9718.2(a)(1), which is not

satisfied by the aggregate sentence we have just vacated. Accordingly, we
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4
  In the criminal information, the description for the sexual assault count
stated: “The actor engaged in sexual intercourse or deviate sexual
intercourse with [S.H.] without his or her consent, in violation of Section
3124.1 of the Pennsylvania Crimes Code[.]” (Information, filed 2/7/14, at
1).
5
  The court did properly merge Appellant’s convictions of indecent assault
and indecent exposure.



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affirm Appellant’s convictions; but we vacate the judgment of sentence and

remand for resentencing.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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