J-S74007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYAINA FINCH

                            Appellant                  No. 898 EDA 2016


           Appeal from the Judgment of Sentence February 19, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002763-2015


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED OCTOBER 12, 2016

        Appellant Tyaina Finch appeals the judgment of sentence entered in

the Court of Common Pleas of Delaware County on February 19, 2016,

following her non-negotiated guilty plea to one count each of third degree

murder and terroristic threats1 for the killing of her boyfriend, an off-duty

police officer with the Darby Borough Police Department. We affirm, albeit

for reasons other than those relied upon by the trial court.

        The trial court related the factual and procedural history herein as

follows:




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c) and 2706(a), respectively.
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             On November 13, 201[5], Appellant entered an open guilty
       plea to Count 2: Murder in the Third Degree (F1).[2] At the
       hearing, this [c]ourt explained to Appellant that an open guilty
       plea meant there was no agreement between her counsel and
       counsel for the Commonwealth as to a recommended sentence
       and that the sentencing would be completely within this Court's
       discretion. [N.T., 11/13/2015 p. 4, 14]. This [c]ourt explained to
       Appellant the guideline ranges for Murder in the Third Degree.
       [N.T., 11/13/2016 p.5]. Appellant confirmed that she went over
       the guilty plea statements with her attorney, that she
       reads/writes/ and understandings [sic] the English language, and
       was not under the influence of any drugs or alcohol. [N.T.,
       11/13/2015 p. 7]. Appellant also stated that she understood her
       right to have a trial by judge or jury and that entering a guilty
       plea would mean she was not having a trial and that her counsel
       would not be filing any pre-trial motions. [N.T., 11/13/2015 p. 9,
       14]. Counsel and this Court both explained to Appellant that her
       plea would limit the issues she could raise on appeal. [N.T.,
       11/13/2016 p. 10].[3] Appellant told this [c]ourt that her plea
       was a result of her own free will and that no one had coerced or
       forced her or promised her anything in return. [N.T., 11/13/2016
       p. 11].
             Sentencing was set for January 7, 2016, and pre-
       sentence, psychiatric, and psychological evaluations were
       ordered. Counsel for the Commonwealth and counsel for
       Appellant were ordered to provide sentencing memorandums.
             On December 31, 2015, counsel for Appellant filed a
       Motion for Funds for Psychological Expert. The motion requested
       that the County pay for a specialized domestic violence
       evaluation to determine the nature and impact of her experience
       of being abused by Mr. Hudson as well as other persons in her
       past." 1 Appellant further contended she shot Mr. Hudson during

____________________________________________


2
  In exchange for Appellant’s guilty plea, the Commonwealth dismissed
charges for first degree murder, aggravated assault, and possessing
instruments of crime. See 18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), and
907(a), respectively.
3
  Specifically, Appellant was informed that she could challenge the trial
court’s jurisdiction, the legality of her sentence, trial counsel’s effectiveness
or whether she had entered her plea unwillingly. N.T. Guilty Plea, 11/13/15,
at 9-10.



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     a "boisterous physical altercation during which [Appellant] felt
     the need to defend herself.2"
            On the scheduled sentencing date of January 7th, this
     [c]ourt addressed the motion, denying counsel's request for the
     County to pay for the expert but allowing counsel additional time
     in which to have Appellant evaluated on her own accord. [N.T.,
     1/7/2016 p. 5]. Appellant failed to avail herself of this
     opportunity. Sentencing was re-scheduled for February 19,
     2016.
            On February 19th, the Commonwealth presented several
     individuals who spoke on Officer Hudson's behalf. Chief Smyth,
     Chief of the Darby Police Department for the past thirty-two
     years, told this Court that Officer Hudson was a special person
     who was loved by all, had a vibrant personality, and [a] young
     man who put himself through the police academy and had a
     promising career ahead of him. [N.T., 2/19/2016 p.6].
            Chief Jeffries, Chief of the Yeadon Fire Department for the
     past eighteen years, told this [c]ourt that Officer Hudson started
     with their Department as a junior fireman and excelled in all of
     his    training    and    eventually   became    Lieutenant   with
     responsibilities that included teaching and training new
     members; also serving on the Executive Board for several years.
     [N.T., 2/19/2016 p. 8-9]. In 2008, due to his dedication and
     hard work, Officer Hudson was awarded the Chief’s Award. [N.T.,
     2/19/2016 p. 9].
            Paul Andrews Jr., Officer Hudson's best friend, told this
     [c]ourt that he had known Officer Hudson for ten years and that
     Officer Hudson was a positive influence in his life and that he
     always knew Officer Hudson to be caring towards Appellant and
     how much he wanted Appellant as his girlfriend. [N.T.,
     2/19/2016 p. 11]. Mr. Andrews also told this [c]ourt that Officer
     Hudson told him on several occasions that Appellant was very
     aggressive towards him and that she argued with him a lot and
     that Officer Hudson's way of handling that was to leave the
     situation or to call him and talk about it. [N.T., 2/19/2016 p.
     12].
            On behalf of his family, Officer Hudson's cousin, Tiffany
     Settles, told this [c]ourt that Appellant came on their family
     vacation to Virginia and Appellant told her that she really didn't
     have any family or any connection with them as she was
     originally from Hawaii and then adopted by a family in
     Philadelphia who already had many other children. [N.T.,
     2/19/2016 p. 14]. In response to Appellant's statement in her
     evaluation that she was not free to leave, Ms. Settles testified

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     that she personally observed instances at Officer Hudson's home
     where Appellant came and left freely. [N.T., 2/19/2016 p. 15].
     Officer Hudson's father, Alfred Hudson, told this [c]ourt that his
     son was young, vibrant, and loved and respected by many; was
     a great writer; a noble man and that not a day goes by that the
     [sic] does not grieve for the loss of his son. [N.T., 2/19/2016 p.
     16].
            The last individual to speak was Officer Hudson's mother,
     Karen Hudson, who gave this [c]ourt a very emotional and
     harrowing account of what her family has been through since the
     loss of Officer Hudson. [N.T., 2/19/2016 p. 17-21].
            In addition to the testimony, the Commonwealth also
     admitted C-4, a copy of the Protection From Abuse (PFA) Order
     signed by Judge Cartisano against Appellant, where Officer
     Hudson was the victim. The Commonwealth also admitted C-5, a
     video of Appellant as she was being walked into [c]ourt to be
     processed shortly after being arrested, which depicts Appellant
     staring directly into the camera and saying, "do you want me to
     smile." Counsel for the Commonwealth also pointed out to this
     [c]ourt that Appellant's first version of the events that transpired
     that evening blamed her actions on the dog, stating that she was
     trying to remove the gun from the dog's mouth when it
     accidentally went off. The medical examiner told Officers that
     Officer Hudson was probably lying or kneeling down at the time
     he was shot as the trajectory of the bullet was a downward
     angle, which prompted Appellant to give another bogus
     statement to police. It wasn't until Appellant's third statement to
     police that she began telling them a story of Officer Hudson's
     abuse and that on the day of the shooting, Officer Hudson was
     abusing her and throwing her around the rooms yet the house
     was virtually undisturbed in crime scene photos. [N.T.,
     2/19/2016 p 40].
            On behalf of Appellant, Fred Grant, told this [c]ourt that
     Appellant is his foster daughter, and that she was different, had
     ups and downs but that she was helpful around the house and
     with her church ministry. [N.T., 2/19/2016 p. 26]. Robin Grant,
     also adopted by Fred Grant, grew up with Appellant and told this
     [c]ourt that she was close with Appellant when she was younger
     but that she moved away and didn't stay in contact often, but
     that she randomly ran into Appellant at the mall one day while
     Appellant was with Officer Hudson but that she didn't know much
     about their relationship. [N.T., 2/19/2016 p. 29]. Edward Ray,
     Appellant's biological father, told this [c]ourt that all he knew
     about his daughter was that she liked children and took part-

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      time jobs to go to school. [N.T., 2/19/2016 p. 30]. Appellant told
      this [c]ourt that she wanted to apologize to Officer Hudson's
      family, that her actions were senseless and that she loved
      Officer Hudson. [N.T., 2/19/2016 p. 37]. In addition, Appellant
      told this [c]ourt that Officer Hudson's mother was very nice to
      her. [N.T., 2/19/2016 p. 37].
              After listening to the testimony, reviewing the pre-
      sentence investigation report, the drug and alcohol evaluation,
      and the psychiatric evaluation, taking into account the
      guidelines, the nature of the crime, the impact on the victim and
      society and Appellant's rehabilitative needs, this [c]ourt
      sentenced Appellant to 18-to-36 years in a state correctional
      facility. Appellant was also sentenced on a separate transcript,
      2766-2015 to five years' probation for terroristic threats
      consecutive to the third degree murder sentence. [N.T.,
      2/19/2016 p. 48]. In that case, Appellant was charged with
      terroristic threats for another incident involving Officer Hudson,
      where Officer Hudson had locked himself in the bedroom, called
      911, and Appellant answered the door holding an eight inch
      steak knife, telling the responding officer that she was tired of
      him yelling and wanted him dead.3
              Counsel for Appellant filed a notice of appeal on March 18,
      2016 as well as a 1925(b) Statement and an Application to
      Appoint Counsel, as Appellant was no longer able to retain his
      services. This [c]ourt appointed the Delaware County Office of
      the Public Defender who was given an extension of time in which
      to file a new 1925(b) Statement, which was timely filed on May
      18, 2016.

      __
      1
         See Motion for Funds for Psychological Expert, Paragraph 3,
      filed December 31, 2015,
      2
         See Motion for Funds for Psychological Expert, Paragraph 2,
      filed December 31, 2015.
      3
         See Affidavit of Probable Cause transcript 2766-2015. This case
      is not on appeal.


Trial Court Opinion, filed 5/20/16, at 1-5.

      At the guilty plea hearing, Appellant asked for a deferred sentencing

date so that a presentence investigation report (PSI) and a mental health



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evaluation could be completed and to enable counsel to prepare for

sentencing.   N.T. Guilty Plea, 11/13/15, at 4. The trial court granted

Appellant’s request to hold the sentencing hearing in early 2016 and

scheduled the same for January 7, 2016. Id. at 4, 17-18. The trial court

further indicated it would be ordering a PSI along with a psychiatric

evaluation for diagnosis and treatment after the Commonwealth informed

the court it already was in possession of a psychological examination. Id. at

18-19.   Appellant never requested public funds to obtain an additional

evaluation, and she indicated that she had no further questions for the trial

court before the termination of the proceedings. Id. at 20.

      On December 31, 2015, Appellant filed her Motion for Funds for

Psychological Expert wherein she requested what she termed a “Domestic

Violence Evaluation” in order “to determine the nature and impact of

[Appellant’s] experience of being abused by Mark Hudson, as well as other

persons in her past, and whether [Appellant’s] history of abuse is relevant

for purposes of mitigation, which defense counsel is ethically required to

present to the court at a sentencing hearing.”     See Motion for Funds for

Psychological Expert, filed 12/31/15, at ¶ 3. Appellant also baldly averred

that she was “without funds to hire a psychologist/mitigation expert to assist

counsel in preparation of the sentencing phase of this matter” despite the

fact that counsel had been privately retained.    Id. at ¶ 12-13. Appellant

posited that “[a]lthough a plea has been agreed upon, it does mean the

entire story has been proffered.” Id. at ¶ 16.

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      In her brief, Appellant presents the following Statement of the

Question Involved:

            Whether the lower court erred in denying the defense
      motion for funding to hire a psychological expert for sentencing
      purposes since the refusal to provide funding, or to even conduct
      a hearing on the need for funding, precluded a defendant who
      asserted indigence from exploring or developing mitigation
      issues?

Brief for Appellant at 5.

      Appellant states that “[r]ather than litigate the case at trial, it was her

plan to prepare for a thorough sentencing hearing.” Brief of Appellant at 6.

Appellant maintains that the trial court’s denial of her motion to obtain public

funding to pay for the requested examination deprived her of her right to

due process because such an evaluation “could have helped her uncover,

understand and develop valuable mitigation evidence” which she otherwise

could not obtain as an indigent defendant.      Id. at 9. Appellant avers it is

reasonably likely that a domestic abuse expert’s psychological evaluation

would have impacted the sentence in that the trial court’s mistaken belief it

could not provide funding for such a study is evidenced in the fact that it

continued the sentencing hearing to enable Appellant to hire an expert. Id.

at 11. Appellant posits that the United States Supreme Court’s decision in

Ake v. Oklahoma, 470 U.S. 68 (1985) (finding that where his sanity will be

an issue at trial, a capital defendant is entitled to court-appointed mental

health expert) and this Court’s holding in Commonwealth v. Curnutte,

871 A.2d 839 (Pa.Super. 2005) (holding an indigent defendant subject to an



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SVP hearing under the provisions of Megan's Law II has a procedural due

process right to a court-appointed psychological expert) are dispositive

herein and urges this Court to vacate her judgment of sentence and remand

for new sentencing hearing. Id. at 11.

      In finding no merit to the aforementioned arguments, the trial court

first observed that the proper venue in which to raise a justification for the

killing would have been at trial, although Appellant opted not to have one.

The trial court related that it had the benefit of psychiatric, psychological and

drug/alcohol evaluations prior to sentencing, none of which indicated

domestic violence may have played a part in the murder.          The trial court

highlighted that Appellant accepted responsibility for the murder when she

tendered her guilty plea and explained it provided her with additional time

prior to sentencing to obtain an evaluation at her own expense.        The trial

court noted Appellant’s versions of events changed three times, and the first

two did not include any reference to her abuse at the hands of Officer

Hudson.    The trial court found most relevant that Officer Hudson had

obtained a PFA order against Appellant and that the medical examiner’s

report did not support the position that Appellant shot Officer Hudson in a

“boisterous physical altercation” as she averred in her motion. Trial Court

Opinion, filed 5/20/16, at 6-7.

      While its observations are sound, the trial court fails first to

acknowledge that when a defendant enters a guilty plea, she waives her

right to challenge on direct appeal all non-jurisdictional defects except the

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legality of her sentence and the validity of her plea. Commonwealth v.

Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008).            Herein, Appellant

neither asserts her plea was not entered knowingly, voluntarily and

intelligently nor that her sentence was illegal. To the contrary, as the trial

court stated, in her Motion for Funds for Psychological Expert, Appellant

stated she “has accepted responsibility for the death of Mark Hudson, who

was shot once while in the couple’s bedroom during a boisterous physical

altercation during which [Appellant] felt the need to defend herself.”    See

Motion for Funds for Psychological Expert, at ¶ 2; Trial Court Opinion, filed

5/20/16, at 6. Appellant echoed this admission when she stated she took

“full responsibility” for her “senseless act” and for her “actions” at the time

of sentencing. N.T. Sentencing, 2/19/16, at 32-33, 37-38; Trial Court

Opinion, filed 5/20/16, at 6.   In fact, at no time either at her guilty plea

hearing or during her sentencing hearing did Appellant maintain she had

been subjected to abuse at the hands of Officer Hudson or that such abuse

prompted her to kill him.

      As stated above, the trial court had the benefit of a PSI report and the

results of psychiatric and psychological examinations prior to rendering its

sentence, the legality of which Appellant does not challenge herein.

Therefore, we find Appellant waived the issue she raises before this Court

when she entered her guilty plea.          Accordingly, we affirm Appellant’s

judgment of sentence. Commonwealth v. Moore, 594 Pa. 619, 638, 937

A.2d 1062, 1073 (2007) (citations omitted) (“an appellate court may affirm

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a valid judgment based on any reason appearing as of record, regardless of

whether it is raised by appellee”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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