Opinion
J-S01036-17 No. 288 MDA 2016
03-29-2017
COMMONWEALTH OF PENNSYLVANIA v. GARY WILLIAMS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 26, 2016 in the Court of Common Pleas of Lackawanna County, Criminal Division, No(s): CP-35-CR-0001294-2012 BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Gary Williams ("Williams") appeals from the judgment of sentence imposed following his (1) conviction of two counts each of recklessly endangering another person and terroristic threats, and one count each of aggravated assault and simple assault; and (2) guilty plea to persons not to possess firearms. Additionally, Williams has filed a Motion for change of court-appointed counsel. We deny Williams's Motion, affirm Williams's convictions, vacate his judgment of sentence, and remand for entry of an amended sentencing order granting Williams additional credit for time served.
See 18 Pa.C.S.A. §§ 2705, 2706(a)(1), 2702(a)(1), 2701(a)(1) and 6105(a)(1).
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See TrialCourt Opinion, 11/3/16, at 2-21.
In its Opinion, the trial court indicated that Williams was sentenced on the federal charges on August 27, 2014. See Trial Court Opinion, 11/3/16, at 4. However, both the Commonwealth and Williams assert that the federal sentencing occurred on August 28, 2014. Additionally, the state sentencing Order awarded Williams credit for time served from the date of his arrest to August 28, 2014, which suggests that this is the correct date for the federal sentencing. Accordingly, we have referred to the federal sentencing date herein as August 28, 2014, and conclude that the trial court's reference to August 27, 2014, was in error.
On June 30, 2016, Williams filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. The trial court thereafter issued its Pa.R.A.P. 1925(a) Opinion.
On appeal, Williams raises the following issues for our review:
1. Was the Commonwealth's evidence sufficient to establish every element of the crimes charged beyond a reasonable doubt?
2. Did the [t]rial [c]ourt err in allowing the Commonwealth to offer evidence [that Williams] was abusive toward Gloria Soto [("Gloria"),] and had punched her on a prior occasion[,] to show an escalation of events and demonstrate [Williams's] motive, malice, intent and ill will toward [Gloria]?
3. Did the [t]rial [c]ourt err in denying [Williams's] pre[-]sentence [M]otion to withdraw his guilty plea to [p]ersons not to [p]ossess or [c]ontrol [f]irearms[,] where [Williams] offered fair and just reasons for the withdrawal of his guilty plea?
4. Did the [t]rial [c]ourt err in denying [Williams's] [M]otion to withdraw his guilty plea to [p]ersons not to [p]ossess or
[c]ontrol [f]irearms[,] where [the] prosecution was barred by 18 Pa.[]C.S.A. § 111 and double jeopardy principles?Brief for Appellant at 5 (footnote added, issues renumbered for consistency with presentation of issues in Williams's appellate brief).
5. Did the [t]rial [c]ourt err in disregarding evidence of taint[,] and in finding Xander Soto [("Xander")] competent to testify?
6. Did the [t]rial [c]ourt err in failing to hold a hearing regarding Gloria['s] competency to testify?
7. Did the [t]rial [c]ourt err in failing to hold a Grazier hearing[,] and in refusing to allow [Williams] to waive counsel?
8. Did the [t]rial [c]ourt impose an illegal sentence by sentencing [Williams] to an aggregate term of 79 to 120 months' imprisonment[,] and by failing to give him proper credit for time[]served?
Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).
In his first issue, Williams contends that the evidence was insufficient to convict him of aggravated assault. Id. at 14. Williams points to the Criminal Complaint, and asserts that this charge was based on the allegation that he struck Gloria on the head multiple times with the butt of his rifle. Id. at 15. Williams asserts that, because Gloria recanted her statement that Williams struck her on the head with the butt of his rifle, the Amended Information alleged that Williams struck Gloria on the head with "an object." Id . at 15-16. Williams argues that "the Commonwealth failed to prove [that] Williams caused Gloria [] to be struck in the forehead with an object[,] and also failed to establish the identity of the object[,] or show how its alleged use, or intended use, was calculated or likely to produce death or serious bodily injury." Id . at 16. Williams points to Gloria's trial testimony, and contends that she did not observe Williams strike her with an object, and could not identify the object that struck her. Id. at 17. Williams asserts that, because Gloria could not identify the object, there was no basis for the jury to find that the object was a deadly weapon. Id. at 18. Williams claims that, even if the jury determined that Williams had struck Gloria with a dresser drawer, it was not an inherently dangerous or lethal device, and the prosecution introduced no evidence to support a finding that its use was calculated to produce death or serious bodily injury. Id. Williams argues that no dresser drawer was recovered from the scene or admitted into evidence, and Gloria did not testify about the size, shape or weight of the dresser drawer, or about the velocity of the object and the force of its impact. Id. Williams further contends that "[b]ecause Gloria [] suffered only superficial injury, the force of impact was obviously minimal." Id.
Williams also asserts that the evidence was insufficient to convict him of terroristic threats against Xander. Id. at 19. Williams claims that, at the preliminary hearing, Gloria and Xander testified only that Williams had threatened to kill Gloria, if she disrespected his friends again. Id. Williams points to the transcript of Gloria's 9-1-1 call, and argues that she made no reference to Xander, and stated only that Williams was going to kill her. Id. Williams also points to Gloria's trial testimony, and contends that she made no reference to a threat against Xander, and stated only that Williams had threatened to kill her if she did not clean the house. Id. Williams claims that Xander was in his bedroom during the argument, and that this fact "further undermines [Xander's] claim he heard Williams threaten to kill him and his mother." Id.
Williams additionally contends that the evidence was insufficient to sustain his conviction of assault because the Commonwealth failed to prove that he struck Gloria with an object. Id. at 20.
Williams further asserts that the evidence was insufficient to sustain his conviction of recklessly endangering Xander because he was not in the room when Williams discharged his rifle into Gloria's bedroom wall, near her head. Id. at 22. Williams claims that the bullet penetrated the bedroom wall, but did not enter the bathroom located on the opposite side of that wall. Id. Williams argues that, when the rifle discharged, Xander was in his bedroom located across the hall from Gloria's bedroom, and "it was impossible for him to have been placed in danger of death or serious bodily injury." Id. at 22-23.
In its Opinion, the trial court addressed Williams's first issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 21-28. We agree with the reasoning of the trial court, which is supported by the evidence of record when viewed in the light most favorable to the Commonwealth, and affirm on this basis as to Williams's first issue. See id.
In his second issue, Williams contends that the trial court erred by permitting the Commonwealth to introduce evidence of Williams's prior violence against Gloria. Brief for Appellant at 24. Williams asserts that there was only one prior incident of domestic abuse, which allegedly occurred ten months prior to the incident in question. Id. at 30. Williams further asserts that, because Gloria never reported the incident to police, no police reports, court filings or restraining orders were offered into evidence to establish the date of the incident or corroborate the testimony of Gloria and Xander regarding the abuse. Id. Williams claims that, even if the testimony of Gloria and Xander is deemed sufficient, the isolated prior incident was insufficient to establish a pattern or history of abuse, so as to establish Williams's motive, malice, intent or ill will toward Gloria. Id.
Williams also argues that, even if evidence of the prior incident was admissible under Pa.R.E. 404(b), it should have been excluded because its probative value was outweighed by the potential for unfair prejudice. Brief for Appellant at 31. Williams contends that, instead of determining whether the Commonwealth had met its burden of proving the crimes for which he was charged, the jury may have convicted him based on his propensity to engage in criminal behavior. Id. at 32. Williams asserts that "his guilt or innocence must be established by evidence relevant to the particular offense for which he is on trial; not by showing he was an abusive man who[,] in the past[,] abused Gloria ...." Id. Williams claims that, because the jury found him not guilty of aggravated assault for firing a rifle at Gloria's head, the trial court abused its discretion by admitting evidence of his prior abuse of Gloria. Id. at 33. Williams argues that, even though Gloria recanted her statement that Williams hit her in the head several times with the butt of his rifle, the jury nevertheless found him guilty of aggravated assault for striking her in the head with an object. Id. Williams contends that the admission of prior incidents of his verbal and physical abuse toward Gloria "created a latent hostility [towards him] in the minds of the jury[,] which caused the jury to convict him of aggravated assault ... and the remaining charges." Id.
Pa.R.E. 404(b) sets forth the permissible and prohibited uses of evidence of a person's prior bad acts.
In its Opinion, the trial court addressed Williams's second issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 28-34. We discern no abuse of discretion by the trial court, and affirm on this basis as to Williams's second issue. See id.
Even if the evidence of Williams's past abuse of Gloria had been improperly admitted, we would have concluded that such admission was harmless. See Commonwealth v. Levanduski , 907 A.2d 3, 21 (Pa. Super. 2006) (concluding that an error was harmless where the properly admitted and uncontradicted evidence of guilt was so overwhelming, and the prejudicial effect of the error so insignificant by comparison, that the error could not have contributed to the verdict).
In his third issue, Williams contends that the trial court improperly denied his request to withdraw his guilty plea to persons not to possess firearms. Brief for Appellant at 34. Williams asserts that his admission of guilt for unlawfully possessing a firearm was made under duress, and coercion by his trial counsel. Id. at 36. Williams claims that he also sought to withdraw his guilty plea so that he could challenge the legality of the search and seizure of the rifle. Id. Williams argues that, "[b]ecause the Commonwealth alleged no prejudice, the [t]rial [c]ourt's subjective belief that Williams's request to withdraw his guilty plea was a dilatory tactic[,] or that his defense was implausible[,] were not proper grounds to deny relief." Id. Williams contends that, because the trial court could have sentenced him on the remaining charges, it erred in denying his request to withdraw his guilty plea to the firearms charge. Id. at 38.
The standard of review that we employ in challenges to a trial court's decision regarding a pre-sentence motion to withdraw a guilty plea is well-settled: "[a] trial court's decision regarding whether to permit a guilty plea to be withdrawn should not be upset absent an abuse of discretion. An abuse of discretion exists when a defendant shows any 'fair and just' reasons for withdrawing his plea absent 'substantial prejudice' to the Commonwealth." Commonwealth v. Pardo , 35 A.3d 1222, 1227 (Pa. Super. 2011) (citation omitted).
In its Opinion, the trial court addressed Williams's third issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 38-42. We discern no abuse of discretion by the trial court, and affirm on this basis as to Williams's third issue. See id.
In his fourth issue, Williams contends that the trial court erred by denying his request to withdraw his guilty plea to persons not to possess firearms under 18 Pa.C.S.A. § 6105(a)(1) because the prosecution was barred by 18 Pa.C.S.A. § 111 and the double jeopardy clauses of Article 1, § 10 of the Pennsylvania Constitution and the Fifth Amendment to the United States Constitution from prosecuting that charge. Brief for Appellant at 39. Williams asserts that the persons not to possess firearms charge was substantially the same crime as, and arose from the same conduct underlying, his prior federal conviction of unlawful possession of a firearm under 18 U.S.C. § 922(g)(1). Brief for Appellant at 39. Williams claims that both charges were based on the same conduct; "namely[,] his unlawful possession of the [] rifle that was shipped to [] Gloria['s] residence and allegedly used to fire a bullet into her bedroom wall ...." Id. at 42. Although Williams concedes that his conviction under 18 U.S.C. § 922(g)(1) required the additional element that the firearm had traveled in interstate commerce, he nevertheless argues that this element is a "mere formality." Brief for Appellant at 42. Williams contends that, because the legislative purpose of both offenses is the same, the trial court placed him twice in jeopardy by denying his pre-sentence Motion to withdraw his guilty plea to persons not to possess firearms. Id. at 43-44.
Pursuant to section 111, when conduct constitutes an offense within the concurrent jurisdiction of Pennsylvania and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in Pennsylvania if certain enumerated circumstances apply. See 18 Pa.C.S.A. § 111.
In its Opinion, the trial court addressed Williams's fourth issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 34-38. We discern no abuse of discretion by the trial court, and affirm on this basis as to Williams's fourth issue. See id.; see also Commonwealth v. Williams , 151 A.3d 1113, 1117 (Pa. Super. 2016) (holding, under similar circumstances, that the trial court properly denied the defendant's motion, under 18 Pa.C.S.A. § 111, to dismiss the charge of persons not to possess a firearm, because 18 Pa.C.S.A. § 6105(a)(1) and 18 U.S.C. § 922(g)(1) each (1) requires proof of a fact the other does not; and (2) targets harms that differ substantially in scope).
In his fifth issue, Williams contends that he filed a Motion challenging Xander's competency, and requesting a taint hearing. Brief for Appellant at 46. Williams asserts that the testimony provided at the preliminary hearing established that Xander was in his bedroom on the night in question, and did not observe any of the events at issue. Id. Williams claims that Xander's testimony was tainted by his exposure to media and interactions with his mother, law enforcement personnel and members of the district attorney's office. Id. at 46-47. Williams argues that Xander was not questioned by the trial court or counsel regarding his recollection of the events in question, and the trial court made no determination regarding Xander's ability to perceive the events or his capacity to remember and describe past events. Id . at 48. Williams contends that the trial court "erred and abused its discretion in summarily concluding [that] Xander [] was competent to testify." Id. Williams also asserts that he made a sufficient showing of taint to warrant specific questions regarding Xander's conversations with his mother, law enforcement personnel and members of the district attorney's office about the events at issue. Id. at 48-49.
In its Opinion, the trial court addressed Williams's fifth issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 46-49. We discern no abuse of discretion by the trial court, and affirm on this basis as to Williams's fifth issue. See id.
In his sixth issue, Williams contends that he filed a Motion challenging Gloria's competency to testify on the basis that her mental conditions, use of antidepressant and psychotropic medications, and illicit use of heroin rendered her incapable of perceiving events accurately and recalling them correctly. Brief for Appellant at 50-51. Williams points to several inconsistencies in Gloria's testimony, and claims that such inconsistencies demonstrate that her ability to observe an event and recall it accurately was adversely affected by her mental illness and illicit drug use. Id. at 51-52, 53. Williams asserts that the trial court erred by failing to conduct a hearing regarding Gloria's competency to testify, thereby causing prejudice to his case. Id. at 51, 53.
In its Opinion, the trial court addressed Williams's sixth issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 49-51. We discern no abuse of discretion by the trial court, and affirm on this basis as to Williams's sixth issue. See id.
In his seventh issue, Williams contends that he made a timely request to waive counsel, and to proceed pro se. Brief for Appellant at 56. Williams claims that the trial judge questioned Williams regarding portions of his written waiver of counsel colloquy, and advised Williams that no ruling would be made on his request until trial. Id. at 56-57. Williams argues that, despite the trial judge's representation that he would question Williams regarding the remainder of the waiver of counsel colloquy before trial, the trial judge failed to do so, and also failed to conduct a Grazier hearing. Id. at 58.
In its Opinion, the trial court addressed Williams's seventh issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 11/3/16, at 43-45. We discern no abuse of discretion by the trial court, and affirm on this basis as to Williams's seventh issue. See id.
In his final issue, Williams contends that the trial court failed to give him proper credit for time served. Brief for Appellant at 60. Williams claims that the pre-sentence investigation report erroneously indicated that he began serving a legal sentence upon his sentencing on the federal charges. Id. Williams argues that he has not commenced service of his federal sentence, and, accordingly, the trial court erred by failing to give him credit for the time he served in state prison from his federal sentencing on August 28, 2014, to his state sentencing on January 26, 2016. Id. at 61. Williams disputes the Commonwealth's assertion that this period of imprisonment should be credited to Williams's federal sentence. Reply Brief for Appellant at 5. Williams asserts that, pursuant to the doctrine of primary jurisdiction, he has remained exclusively in the Commonwealth's custody, and has not been released to federal custody or begun to serve his federal sentence. Id. at 7. Williams claims that he will receive no credit toward his federal sentence for the time he remained in state prison following his federal conviction and prior to his state sentencing. Id.
At the time of his sentencing on the state charges, Williams was given credit for time served of 821 days, representing the period in which he was in state custody from his arrest on May 30, 2012, to his federal sentencing on August 28, 2014.
Williams also contends that, because his minimum aggregate prison sentence is more than half of his maximum aggregate prison sentence, his sentence is illegal under 42 Pa.C.S.A. § 9756(b)(1) (providing that the minimum sentence of confinement imposed shall not exceed one-half of the maximum sentence imposed). Brief for Appellant at 59. However, our review of the record discloses that Williams's minimum aggregate prison sentence (79 months) did not exceed one-half of his maximum aggregate prison sentence (180 months). See Trial Court Opinion, 11/3/16, at 21. Thus, we find no merit to this claim.
Under the doctrine of primary jurisdiction, the sovereign which first arrests a defendant has primary jurisdiction over him. See Newsuan v. Pa. Dep't of Corr., 853 A.2d 409, 411 (Pa. Cmwlth. 2004). As explained by the Commonwealth Court in Newsuan ,
[t]he doctrine of primary jurisdiction is a means for resolving jurisdictional disputes between [] sovereigns. ... Chambers v. Holland , 920 F. Supp. 618, 622 (M.D. Pa. [1996]), aff'd, 100 F.3d 946 (3d Cir. 1996). Primary jurisdiction remains vested in the sovereign that first arrested the defendant until it relinquishes its priority of jurisdiction by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence. [ Id.] at 622 (citing United States v. Warren , 610 F.2d 680, 684-85 (9th Cir. 1980) and Roche v. Sizer , 675 F.2d 507, 510 (2d Cir. 1982)). Thus, when a federal court and state court each have jurisdiction of a defendant, the doctrine of primary jurisdiction allows the tribunal which first obtained jurisdiction to hold it to the exclusion of the other until the first tribunal's jurisdiction is exhausted. In re Liberatore , 574 F.2d 78, 88 (2d Cir. 1982).Newsuan , 853 A.2d at 411-12.
When a state has primary jurisdiction, as is the case here, primary jurisdiction over a defendant ends and federal custody over him commences only when the state authorities relinquish him on satisfaction or extinguishment of the state obligation. Chambers , 920 F. Supp. at 622 (citing United States v. Smith , 812 F. Supp. 368, 370 (E.D.N.Y. 1993) and Thomas v. Whalen , 962 F.2d 358, 361 n.3 (4th Cir. 1992)). The federal sentence does not commence until the defendant is received into custody at the official detention facility at which the sentence is to be served. 18 U.S.C. § 3585(a); United States v. Pungitore , 910 F.2d 1084, 1118-[]19 (3d Cir. 1990), cert. denied, 500 U.S. 915, 114 L. Ed. 2d 98, 111 S. Ct. 2009, 111 S. Ct. 2010, 111 S. Ct. 2011 (1991)[] ("a federal sentence does not begin to run until the defendant is delivered to the place where the sentence is to be served").
Our review of the record reflects that, on May 30, 2012, the Scranton City Police Department filed a Criminal Complaint against Williams, and he was arrested by Scranton police on that same date. Thus, primary jurisdiction vested in the Commonwealth, as the sovereign that first arrested Williams. See Newsuan , 853 A.2d at 411; Chambers , 920 F. Supp. at 622. Williams was unable to post bail, and remained in the Lackawanna County Prison following his arraignment. At some point, Williams was transferred to SCI Coal Township, where he presently remains. Neither the trial court nor the Commonwealth dispute that Williams remained in state custody from the date of his arrest, on May 30, 2012, to his sentencing on the state charges on January 26, 2016. Thus, despite Williams's conviction of the federal offenses, for which he was sentenced on August 28, 2014, he remained in state custody, and subject to the Commonwealth's primary jurisdiction. Williams's federal sentence did not begin to run upon his federal sentencing because the Commonwealth did not relinquish its priority of jurisdiction over him, nor was he delivered to the official federal detention facility where his federal prison sentence is to be served. See Newsuan , 853 A.2d at 412; 18 U.S.C. § 3585(a). Accordingly, we conclude that Williams is entitled to additional credit for time served for the period between his federal sentencing, on August 28, 2014, and his state sentencing on January 26, 2016.
We therefore affirm Williams's convictions, but vacate his judgment of sentence and remand for entry of an amended sentencing order granting Williams additional credit for time served for the period between his federal sentencing, on August 28, 2014, and his state sentencing on January 26, 2016.
In its Opinion, the trial court addressed Williams's final issue, and determined that Williams is entitled to additional credit for time served. See Trial Court Opinion, 11/3/16, at 59. However, the trial court calculated the additional time served to be merely 152 days, which is patently erroneous. --------
With respect to Williams's Motion for change of court-appointed counsel, we deny the Motion without prejudice to refile the Motion in the trial court, upon remand.
Motion for change of court-appointed counsel denied. Judgment of sentence vacated; case remanded for entry of an amended sentencing order granting Williams additional credit for time served, consistent with this Memorandum. Superior Court jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/29/2017
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