Opinion
J-S24012-16 No. 1202 MDA 2015
06-16-2016
COMMONWEALTH OF PENNSYLVANIA v. RICHARD ALLEN HAINLEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 25, 2012
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-0001662-2010 BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Richard Allen Hainley ("Hainley") appeals from the judgment of sentence entered following his conviction of two counts of involuntary deviate sexual intercourse ("IDSI"), and one count each of indecent assault and endangering the welfare of children. We affirm.
See 18 Pa.C.S.A. §§ 3123, 3126, 4304.
In an Opinion filed on August 28, 2012, the trial court summarized the factual history underlying the instant appeal. See Trial Court Opinion, 8/28/12, at 3-8. We adopt the trial court's recitation of the facts for the purpose of this appeal. See id.
Following a bench trial, Hainley was found guilty of the above-described charges. On January 25, 2016, the trial court sentenced Hainley to an aggregate prison term of 10-25 years. Hainley filed a post-sentence Motion, which the trial court denied. Thereafter, Hainley timely filed a direct appeal of his judgment of sentence.
On appeal, Hainley challenged, inter alia, his jury trial waiver colloquy as inadequate. The trial court conceded that there was no evidence of record regarding Hainley's waiver colloquy. Trial Court Opinion, 8/28/12, at 15. As a result, a panel of this Court vacated the trial court's Order denying Hainley's post-sentence Motion, and remanded the case for an evidentiary hearing as to whether Hainley's jury trial waiver was knowing and intelligent. Commonwealth v. Hainley , 75 A.3d 554 (Pa. Super. 2013) (unpublished memorandum at 14-15). Thereafter, the Pennsylvania Supreme Court denied Hainley's Petition for allowance of appeal. Commonwealth v. Hainley , 83 A.3d 167 (Pa. 2013).
On remand, the trial court conducted an evidentiary hearing as to whether Hainley had knowingly and intelligently waived his right to a jury trial. In an Opinion and Order entered on June 12, 2015, the trial court found that counsel for Hainley had, in fact, obtained a written jury trial waiver colloquy from Hainley, and that an oral colloquy had taken place. Trial Court Opinion, 6/12/15, at 17. The trial court ultimately found that Hainley had knowingly and intelligently waived his right to a jury trial. Id. at 19. Accordingly, the trial court again denied Hainley's post-sentence Motion. Id. Hainley subsequently filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Hainley presents the following claims for our review:
I. Was the holding of an evidentiary hearing, after the 120 day time period for holding such a hearing, legal[,] and did the [trial court] err in holding the hearing and, furthermore, did a prior Superior Court panel err in remanding the matter to the [trial court] for a hearing?Brief for Appellant at 3 (emphasis in original).
II. Is [Hainley] entitled to a new trial where his purported waiver of [a] jury trial was not made in a knowing, intelligent and voluntary fashion[,] and where the trial record reflects that no colloquy of [Hainley] was undertaken by the Commonwealth or the [trial court], and where the [t]rial [c]ourt has conceded that there is no supporting documentation at all of [Hainley's] waiver?
III. Is [Hainley] entitled to an arrest of judgment on all charges[,] as the evidence is insufficient to sustain the verdict?
IV. Is [Hainley] entitled to a new trial[,] as the verdict is not supported by the greater weight of the evidence?
Hainley first claims that a panel of the Pennsylvania Superior Court erred by remanding the matter for an evidentiary hearing as to whether he had waived his right to a jury trial. Id. at 21. Hainley contends that this Court erred when it ruled "that a hearing should occur, and especially erred if [the Court was] holding that the Commonwealth was, indeed, entitled to an evidentiary hearing." Id. (emphasis in original). According to Hainley, this Court's ruling would, in effect, extend the post-sentence motion time limit beyond 120 days, and the Court has no authority to do so. Id. at 21-22.
"It is axiomatic that a three-judge panel is bound by previous panel opinions[,] unless overruled by this Court sitting en banc, our Supreme Court, or the United States Supreme Court." Commonwealth v. Pepe , 897 A.2d 463, 465 (Pa. Super. 2006) (citation omitted). Because we cannot reconsider the propriety of this Court's prior Order, we cannot grant Hainley relief on this claim. See id.
Hainley next challenges the trial court's determination that he knowingly and voluntarily waived his right to a jury trial. Brief for Appellant at 25. According to Hainley, the record developed at the evidentiary shows that there was no oral or written colloquy at the time he purportedly waived his right to a jury trial. Id. In addition, Hainley argues, the record does not support the prosecutor's claim that there was, in fact, a colloquy. Id. Hainley directs our attention to the testimony of his counsel, Allan L. Sodomsky, Esquire ("Attorney Sodomsky"). Id. at 27-28. According to Hainley, Attorney Sodomsky never asked Hainley whether he "wanted" a jury trial. Id. at 27. Further, Hainley points out Attorney Sodomsky's testimony that he was uncertain whether he had clearly explained the differences between a bench and jury trial to Hainley. Id. at 28. Hainley also directs our attention to Attorney Sodomsky's testimony that, while he explained "all that stuff" to Hainley, Attorney Sodomsky did not believe that written documents were necessary, as they were repetitive. Id.
In addition, Hainley relies upon the testimony of Arthur Guistwite ("Guistwite"), who testified that he never saw Attorney Sodomsky give Hainley an explanation of the rights that Hainley would relinquish upon proceeding to a bench trial. Id. According to Hainley, Guistwite testified that, "[w]hile counsel explained that there would not be twelve jurors, he did not explain the differences in how a judge or a jury might reach and return a verdict." Id. Hainley further relies on Guistwite's testimony that he did not see any forms that Hainley would have filled out. Id.
Hainley also directs our attention to his own testimony, in which he acknowledged that the idea of a bench trial was first discussed with him on the first day of trial. Id. at 29. Hainley points out his testimony that, while he wanted a jury trial, he was "scared," and "went along with his attorney." Id. According to Hainley, "he did not sign any waiver forms, nor was he questioned by the [trial court] on the waiver." Id. Hainley argues that, reading the testimony of all of the witnesses as a "totality," the record supports his claim that he did not knowingly, intelligently or voluntarily waive his right to a jury trial. Id. at 32.
Waiver of the right to a jury trial is governed by Pa.R.Crim.P. 620:
In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge
of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge and the defendant's attorney as a witness.Pa.R.Crim.P. 620. The colloquy conducted by the trial court must apprise the defendant of the following essential elements of a trial by jury: that the jury would be selected from members of the community; that the verdict must be unanimous; and that the defendant would be allowed to participate in the selection of the jury. Commonwealth v. Shablin , 524 A.2d 511, 513 (Pa. Super. 1987). In deciding whether a jury waiver is valid, we employ a totality of the circumstances analysis that examines, among other things, the extent to which counsel and client discussed the waiver. Commonwealth v. O'Donnell , 740 A.2d 198, 219 (Pa. 1999); Commonwealth v. DeGeorge , 485 A.2d 1089, 1091 (Pa. 1984).
Applying the totality of the circumstances test in the instant case, the record supports the trial court's analysis and determination that Hainley's waiver was knowing, voluntary and intelligent. See Trial Court Opinion, 6/12/15, at 4-19. We agree with the sound reasoning of the trial court, and affirm the trial court's resolution of this claim on the basis of its June 12, 2015 Opinion. See id. We additionally observe the following.
Hainley points out the trial court's repeated references to the PCRA, and argues that the trial court applied the wrong standard when addressing his jury trial waiver. Brief for Appellant at 34-35. Our review of the trial court's Opinion discloses that the trial court improperly referred to the hearing on remand as a "PCRA" proceeding. See , e.g., Trial Court Opinion, 6/12/15, at 6-7 (citing to the "PCRA Hearing"), 10 (referring to testimony at the "PCRA hearing"). Notwithstanding, it is clear from the trial court's Opinion that it applied the appropriate burden of proof and law in addressing Hainley's claim. See id. at 4 (applying a totality of the circumstances standard in determining whether the waiver is valid), 4-5 (stating that it is the Commonwealth's burden to affirmatively establish a jury trial waiver), 18 (stating that the Commonwealth "has fulfilled its burden of proving a knowing and voluntary waiver on the part of [Hainley]."). Accordingly, the trial court's mischaracterization of the hearing does not entitle Hainley to relief.
In his third claim, Hainley challenges the sufficiency of the evidence underlying his verdict. Brief for Appellant at 40. Hainley points out that "[n]o one was present when the child was allegedly touched by [Hainley]." Id. Therefore, Hainley argues, the testimony of the other witnesses "is only as reliable as the young child in the instant matter." Id. Hainley directs our attention to alleged contradictions in the child's testimony, and observes that the child failed to report the March 2009 incident until October 2010. Id. Hainley also details incidents involving the child's mother, who, following their breakup, allegedly stalked Hainley, his girlfriend and his associates. Id. at 40-41. Hainley further asserts that there is no evidence of a change in the child's behavior immediately following the first incident. Id. at 43. Accordingly to Hainley, "at the end of the day, all that the Commonwealth can produce is the bald allegations of the child." Id.
In reviewing a challenge to the sufficiency of the evidence,
"we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt." Commonwealth v. Brown , 2012 PA Super 150, 52 A.3d 320, 323 (Pa.Super. 2012). Critically important, we must draw all reasonable inferences from the evidence in favor of the Commonwealth as the verdict-winner. Commonwealth v. Hopkins , 2013 PA Super 122, 67 A.3d 817, 820 (Pa.Super. 2013). "Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail." Brown , supra at 323. Of course, "the evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id.Commonwealth v. Watley , 81 A.3d 108, 113 (Pa. Super. 2013).
The Commonwealth can meet its burden "by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact[-]finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Id. It is improper for this Court "to re-weigh the evidence and substitute our judgment for that of the fact-finder." Id. Additionally, "the entire record must be evaluated and all evidence actually received must be considered." Id.
In its August 28, 2012 Opinion, the trial court addressed Hainley's challenge to the sufficiency of the evidence, and concluded that it lacks merit. See Trial Court Opinion, 8/28/12, at 9-12. We agree with the sound reasoning of the trial court, and affirm on the basis of its Opinion with regard to this claim. See id.
In his fourth claim, Hainley challenges the verdict as against the weight of the evidence. Brief for Appellant at 46. In support, Hainley states that
what the case comes down to is the child's testimony versus [Hainley's] testimony; [Hainley's] lack of prior inculpatory statements; the gross lack of corroborating evidence; and the seemingly complete support of the community, all attesting to the good character of [Hainley].Id. at 46-47. Hainley points out the context of the child's first allegation of abuse. Id. at 48. According to Hainley, at the time of the child's first allegation, she was being "chastised by her mother for inappropriate behavior." Id. Hainley posits that, "in order to deflect her mother's disapproval[, the child] made up a story that would upset her mother and defect her mother's anger elsewhere." Id.
A motion for a new trial based upon a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Clay , 64 A.3d 1049, 1054-55 (Pa. 2013).
A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.Id. at 1055 (citations and internal quotation marks omitted). Our standard of review of a weight claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Id. (citations omitted) (quoting Commonwealth v. Widmer , 744 A.2d 745, 753 (Pa. 2000)).
In its August 28, 2012 Opinion, the trial court addressed Hainley's claim and concluded that it lacks merit. See Trial Court Opinion, 8/28/12, at 13-14. Upon our review of the record, we discern no abuse of discretion by the trial court in this regard. Accordingly, we affirm on the basis of the trial court's Opinion with regard to this claim. See id.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/16/2016
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