Opinion
J-A08024-18 No. 787 EDA 2017 No. 788 EDA 2017
08-13-2018
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY J. DIVALENTINO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 30, 2016
In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000840-2010 Appeal from the Judgment of Sentence August 30, 2016
In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000792-2010 BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Anthony J. DiValentino appeals from the judgments of sentence, entered in the Court of Common Pleas of Monroe County, after his conviction of two counts of harassment, two counts of kidnapping, two counts of retaliation against a witness, two counts of simple assault, coercion/threat to commit a crime, false imprisonment, intimidation of a witness, stalking, terroristic threats, and unlawful restraint. After careful review, we affirm based, in part, on the Honorable Jonathan Mark's opinion.
On March 21, 2010, police responded to a domestic incident involving DiValentino and his paramour, Ann Marie Andrews. Police subsequently arrested DiValentino and charged him with simple assault; he spent a short time in jail before posting bail. From the day of the assault until April 21, 2010, DiValentino continuously made threatening phone calls to Andrews in an attempt to intimidate and prevent her from testifying at his preliminary hearing for simple assault. On April 22, 2010, the morning of DiValentino's preliminary hearing, Andrews awoke to DiValentino pressing the barrel of a gun to her back. DiValentino held Andrews hostage, threatened her so she would not testify at his preliminary hearing, and stated he test-fired the gun into a pillow to ensure no one would hear his firearm discharge if he shot her. After approximately an hour, at Andrews' request, DiValentino released her so that she could take her daughter to the school bus stop. Andrews dropped her daughter off at the bus stop and proceeded directly to the police. Later that day, police arrested DiValentino and charged him with kidnapping, intimidation of a witness and related offenses. On April 26, 2010, Andrews was granted a three-year protection from abuse ("PFA") order against DiValentino. On June 10, 2010, DiValentino waived his right to a preliminary hearing in exchange for reduced bail, and he was released on bail on the condition he not contact Andrews.
On June 14, 2010, while Andrews was driving to work on Interstate 84 ("I-84") in New York State, DiValentino used his vehicle to run Andrews off the road. DiValentino caused a serious crash that injured Andrews and required emergency response personnel to extricate her from her vehicle with the Jaws of Life. DiValentino fled the scene and attempted to commit suicide, but New York State police apprehended him before his self-inflicted wounds proved fatal. New York State police later charged DiValentino with attempted murder and related offenses stemming from the I-84 incident. DiValentino remained incarcerated in New York State while awaiting trial both there and in Pennsylvania.
Sometime between December 2010 and January 2011, DiValentino conspired with a fellow inmate to murder or hire someone to murder Andrews. He provided the inmate with maps to Andrews' home, diagrams of the home, personal information about Andrews and her daughter, the home's garage code, details about the home's alarm system, and Andrews' daughter's school schedule. Unbeknownst to DiValentino, the inmate was a police informant who agreed to wear a wire during their conversations. On February 10, 2011, a grand jury indicted DiValentino for conspiracy and solicitation to commit murder.
DiValentino's New York State proceedings took over five years to complete, during which time he continued to litigate his Pennsylvania cases. During this time, the Commonwealth repeatedly attempted to get DiValentino extradited to Pennsylvania, and on September 11, 2015, DiValentino waived extradition. By then, the New York Supreme Court had convicted DiValentino of attempted murder and related charges.
DiValentino's Pennsylvania trial commenced on June 21, 2016, and concluded on June 23, 2016. A jury convicted DiValentino of all the foregoing charges. On August 30, 2016, the trial court sentenced DiValentino to an aggregate term of 150 to 300 months' incarceration to be served consecutive to his New York State sentence. The trial court applied the deadly weapon enhancement to DiValentino's sentence, pursuant to 42 Pa.C.S.A. § 9712, but, notably, the jury did not find DiValentino guilty of possession of an instrument of crime ("PIC").
On February 1, 2017, the trial court denied DiValentino's various post-sentence motions. DiValentino timely appealed, and both the trial court and DiValentino complied with Pa.R.A.P. 1925. On appeal, DiValentino raises the following issues for our review:
1. Did the trial court err in denying [DiValentino's] motion to dismiss where the Commonwealth denied him his constitutional right to a speedy trial by greatly exceeding the time frames established by [] Rule 600 as well as the [Interstate Agreement on Detainers ("IAD")] for bringing the matter to trial?Brief of Appellant, at 10-11.
2. Did the trial court commit reversible error by permitting irrelevant and highly prejudicial evidence of other bad acts?
3. Did the trial court commit reversible error by permitting testimonial hearsay to be admitted against [DiValentino], in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.
4. Was the evidence presented at trial insufficient to prove beyond a reasonable doubt that [DiValentino] held an individual in a place of confinement, a necessary element of a kidnapping charge?
The IAD is an agreement that established procedures for the transfer of prisoners incarcerated in one jurisdiction to the temporary custody of another jurisdiction, which has lodged a detainer against them. Commonwealth v. Williams , 896 A.2d 523, 536 (Pa. 2006).
DiValentino raised an additional issue in his Rule 1925(b) statement, which the trial court addressed in its Rule 1925(a) opinion: "The trial court erred in applying the [d]eadly [w]eapon [u]sed [e]nhancement . . . [where] there was insufficient evidence to establish by a preponderance of the evidence that [he] visibly possessed a firearm in the commission of a crime." DiValentino Rule 1925(b) statement, 4/3/2017. However, DiValentino has abandoned this issue on appeal by failing to argue it in his brief. Commonwealth v. Miller , 721 A.2d 1121, 1124 (Pa. Super. 1998) ("Failure to brief an issue is to waive it, as such omission impedes our ability to address the issue on appeal.").
DiValentino first argues the trial court erred in denying his pretrial motion to dismiss charges pursuant to Pa.R.Crim.P. 600. Our standard and scope of review of a trial court's denial of a motion to dismiss pursuant to Rule 600 is as follows:
In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. The proper scope of review in determining the propriety of the trial court[']s ruling is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the lower court. In reviewing the determination of the hearing court, an appellate court must view the facts in the light most favorable to the prevailing party.Commonwealth v. Cook , 865 A.2d 869, 875 (Pa. Super. 2004) (citation and internal formatting omitted).
The version of Rule 600 that the trial court applied to DiValentino's Rule 600 motion stated, in relevant part, as follows:
A new version of Rule 600 was adopted in October 2012, and became effective on July 1, 2013.
[(A)](3) Trial in court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail,
shall commence no later than 365 days from the date on which the complaint is filed.
* * *
(C) In determining the period for the commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 600;
(3) such a period of delay at any stage of the proceedings as results from:
Pa.R.Crim.P. 600(A)(3), (C) (rescinded October 1, 2012, effective July 1, 2013) (emphasis added).(a) the unavailability of the defendant or the defendant's attorney;
(b) any continuance granted at the request of the defendant or the defendant's attorney.
[T]he courts of this Commonwealth employ three steps - corresponding to Rules 600(A), (C), and (G) - in determining whether Rule 600 requires dismissal of charges against a defendant. First, Rule 600(A) provides the mechanical run date. Second, we determine whether any excludable time exists pursuant to Rule 600(C). We add the amount of excludable time, if any, to the mechanical run date to arrive at an adjusted run date.
If the trial takes place after the adjusted run date, we apply the due diligence analysis set forth in Rule 600(G). As we have explained, Rule 600(G) encompasses a wide variety of circumstances under which a period of delay was outside the control of the Commonwealth and not the result of the
Commonwealth's lack of diligence. Any such period of delay results in an extension of the run date. Addition of any Rule 600(G) extensions to the adjusted run date produces the final Rule 600 run date. If the Commonwealth does not bring the defendant to trial on or before the final run date, the trial court must dismiss the charges.Commonwealth v. Ramos , 936 A.2d 1097, 1103 (Pa. Super. 2007) (internal citations and footnote omitted). The Commonwealth has the burden of proving by a preponderance of the evidence that it exercised due diligence in accordance with Rule 600. Commonwealth v. Bradford , 46 A.3d 693, 701 (Pa. 2012). When a foreign jurisdiction detains a defendant, Rule 600 works in conjunction with the IAD to ensure that the defendant gets a speedy trial. 42 Pa.C.S.A. § 9101.
Instantly, the trial court determined that DiValentino was unavailable for trial primarily due to New York State's refusal to grant extradition. The trial court established on the record its reasons for denying DiValentino's Rule 600 motion at trial, N.T. Trial, 6/21/16, at 9-19, and at a hearing on his post-sentence motions. N.T. Post-Sentence Motions Hearing, 2/1/17, at 21. Moreover, the trial court attached to its Rule 1925(a) opinion an addendum reiterating its reasons for denying DiValentino's Rule 600 motion. Hearing Addenda 1, 2/1/17, at 13-19. See N.T. Post-Sentence Motions Hearing, 2/1/17, at 9 (Judge Mark directed the court reporter to attach the addendum "to any transcript that is made of [the February 1, 2017] proceeding so that the law [he] used is clear and a matter of record."). After review of the relevant notes of testimony, the trial court's hearing addenda, the certified record, the parties' briefs, and Judge Mark's opinion, we find the trial court did not abuse its discretion by denying DiValentino's Rule 600 motion.
DiValentino next argues that the trial court erred in allowing the jury to hear "extensive evidence about events that occurred well after the events at issue in this case," namely, "the New York events." Brief of Appellant, at 39-40. Specifically, DiValentino argues the "New York events bore no relevance to the crimes at issue." Id. at 40.
"Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Tyson , 119 A.3d 353, 357 (Pa. Super. 2015) (citation omitted). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Id. at 357-58 (citation omitted).
Pennsylvania Rule of Evidence 404(b) states as follows:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case
only upon a showing that the probative value of the evidence outweighs its potential for prejudice.Pa.R.E. 404(b).
(4) In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
DiValentino's Rule 404(b) claim generally centers on the relevance and prejudicial value of all evidence the Commonwealth proffered regarding the circumstances relevant to his convictions for attempted murder, conspiracy, solicitation to commit murder and related charges. Instantly, the trial court determined that DiValentino's failure to specifically identify or cite to particular evidence of record what evidence he challenges waives this claim. Even so, the trial court aptly explained why DiValentino's Rule 404(b) claim is meritless, primarily relying on the res gestae exception.
Res gestae evidence describing other crimes or bad acts is admissible to tell the complete story; such evidence may be admitted, however, only if the probative value of the evidence outweighs its potential for unfair prejudice. Commonwealth v. Hairston , 84 A.3d 657, 665 (Pa. Super. 2014). Here, 85 days elapsed between DiValentino's March 21, 2010 assault of Andrews in Pennsylvania, and the June 14, 2010 I-84 incident; however, he spent 50 of those days in jail. The I-84 incident occurred a mere four days after DiValentino posted bail for kidnapping and related charges. The New York events are probative and relate arguably to the Pennsylvania events. Therefore, we agree that the trial court did not abuse its discretion in allowing the Commonwealth to proffer evidence of the subsequent New York events.
DiValentino next avers the trial court erred by permitting testimonial hearsay implicating him in various crimes in violation of the Confrontation Clause. Specifically, DiValentino claims the trial court erred in allowing the Commonwealth to play consensual wire intercept recordings of his conversations with a jailhouse informant. DiValentino did not specify whether he is challenging the entirety of the recordings, his statements alone, or just the statements of the jailhouse informant.
The Confrontation Clause of the Sixth Amendment, made applicable to the states via the Fourteenth Amendment, provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Commonwealth v. Yohe , 79 A.3d 520, 544 (Pa. Super. 2013). The Confrontation Clause applies not only to in-court testimony, but also to out-of-court statements introduced at trial. Crawford v. Washington , 541 U.S. 36, 50-51 (2004). However, the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 47. A statement is testimonial if the primary purpose of the statement was to establish or prove past events. Commonwealth v. Abrue , 11 A.3d 484, 491 (Pa. Super. 2010). On the other hand, where non-testimonial hearsay is concerned, such statements are subject only to a state's hearsay rules and are exempted from Confrontation Clause scrutiny. Id. at 488. A statement is non-testimonial if it was made with the purpose of enabling police to meet ongoing emergency. Id. at 491.
Additionally, hearsay statements are admissible where: (1) a defendant's co-conspirator made them during and in furtherance of the conspiracy, Pa.R.E. 803(25)(E); and (2) a reasonable person in the declarant's position would have made the statement only if the person believed it to be true because, when made, it was so contrary to the declarant's interest. Pa.R.E. 804(b)(3)(A).
The trial court determined that statements made by DiValentino proffered by the Commonwealth were: (1) offered for context, rather than truth; (2) non-testimonial; (3) made in furtherance of a criminal conspiracy; and (4) comprised of party admission statements and statements against one's interests. We agree. DiValentino's statements were constitutionally admissible, and, thus, his Confrontation Clause claim must fail.
Lastly, DiValentino claims the evidence was insufficient to prove he held Andrews in a place of confinement, a necessary element of kidnapping.
Our standard and scope of review of sufficiency claims is well settled:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the law of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000) (internal citations omitted).
[A] person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:
18 Pa.C.S. § 2901(a). For purposes of the kidnapping statute, a "place of isolation" is not a geographic isolation, but rather effective isolation from the protections of society. Commonwealth v. Jenkins , 687 A.2d 836 (Pa. Super. 1996). The requirement that the victim be confined in a place of isolation for purposes of establishing the crime of kidnapping does not require that the victim be left alone. In the Interest of T.G., 836 A.2d 1003, 1008 (Pa. Super. 2003). The fact that other people are present does not necessarily negate the victim's isolation from the usual protections of society. Id.(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any governmental or political function.
The trial court determined the evidence of record is sufficient to sustain DiValentino's kidnapping conviction where he held Andrews at gunpoint for over an hour in her bedroom and threatened to shoot her if she reached for the phone. Hearing Addenda 1, 2/1/17, at 19-21; see N.T. Post-Sentence Motion Hearing, 2/1/17, at 37-19. Moreover, contrary to DiValentino's assertion, it is of no consequence that Andrews' daughter was present in the home when he kidnapped her. T.G., supra. Viewed in a light most favorable to the Commonwealth, there was ample evidence demonstrating that DiValentino held Andrews against her will for a substantial period. Thus, DiValentino's sufficiency claim is meritless.
Based on our review of the parties' briefs, the relevant case law and the certified record on appeal, we dispose of DiValentino's first four claims based on Judge Mark's opinion. We direct the parties to attach a copy of that decision in the event of further proceedings in the matter.
Last, DiValentino purports to challenge the legality of his sentence under Alleyne v. United States , 570 U.S. 99 (2013). At trial, a jury acquitted DiValentino of PIC. However, at sentencing, the trial court imposed the deadly weapon enhancement by way of judicial fact-finding under the preponderance of the evidence standard. The Commonwealth concedes that the trial court applied the preponderance of the evidence standard in applying the deadly weapon enhancement. Brief of Appellee, at 49. In Alleyne , the court held certain sentencing factors are elements of the underlying crime, and thus, must be submitted to the jury and proven beyond a reasonable doubt. However, that inquiry is not relevant to the deadly weapon enhancement. Alleyne dealt with factors that increased the mandatory minimum, but DiValentino's case does not deal with a mandatory minimum; instead, we are dealing with a sentencing enhancement.
Generally, a judge may not increase automatically a defendant's sentence based on a preponderance of the evidence standard. Commonwealth v. Valentine , 101 A.3d 801, 804 (Pa. Super. 2014). For example, mandatory minimum sentencing statutes (like sentences for offense committed with firearms) that do not pertain to prior convictions are constitutionally infirm insofar as they constrain the trial court to increase a defendant's mandatory minimum sentence based on a preponderance of the evidence standard. Id.
Here, however, the trial court did not impose a mandatory minimum. Rather, the trial court applied 204 Pa. Code § 303 to DiValentino's sentence, which states, in relevant part, as follows:
§ 303.9 Guideline sentence recommendation: general.
. . .
(b) Deadly Weapon Enhancement sentence recommendations. Except for those sentenced pursuant to 18 Pa.C.S.[A.] § 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), if the court determines that an offender possessed a deadly weapon pursuant to § 303.10(a)(1), the court shall instead consider the DWE/Possessed Matrix (§ 303.17(a)).
. . .
§ 303.10. Guideline sentence recommendations: enhancements.
(a) Deadly Weapon Enhancement.
(1) When the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Possessed Matrix (§ 303.17(a)). An offender has possessed a deadly weapon if any of the following were on the offender's person or within his immediate physical control:
204 Pa. Code § 303.9(b) and 303.10(a)(1)(i). In Commonwealth v. Buterbaugh , 91 A.3d 1247 (Pa. Super. 2014), this Court aptly summarized the utility of section 303, stating:(i) Any firearm, (as defined in 42. Pa.C.S.A. § 9712) whether loaded or unloaded[.]
The [Deadly Weapons Enhancement] provision of the Sentencing Guidelines provides that when the court determines that the defendant possessed a deadly weapon during the commission of a criminal offense, the court must add at least 12 months and up to 24 months to the guideline sentence that would otherwise have been applicable.Id. at 1268.
As the above demonstrates, section 303 of the Sentencing Code is distinct from section 9712; where the deadly weapon sentencing enhancement applies, the trial court is required only to raise the standard guideline range, and thus, it retains discretion to sentence outside the guideline range. Id. at n.10 ("If the enhancement applies, the sentencing court is required to raise the standard guideline range; however, the court retains the discretion to sentence outside the guideline range."). Therefore, application of the sentencing enhancement does not violate the holding in Alleyne.
Accordingly, the trial court's application of section 303 of the Sentencing Code does not implicate the legality of DiValentino's sentence, but rather, the discretionary aspects of his sentence, from which there is no appeal of right. See Commonwealth v. McAfee , 849 A.2d 270, 274 (Pa. Super. 2004); see Commonwealth v. Brougher , 978 A.2d 373, 376 (Pa. Super. 2009) (application of the deadly weapons enhancement implicates sentencing court's discretion once it imposes sentence following determination of the adjusted sentencing guideline range). Instantly, DiValentino has failed to comply with any of the procedural dictates necessary to invoke our jurisdiction to review his discretionary aspects of sentence claim. Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006) (internal citations omitted). Therefore, we find this issue waived.
Judgments of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/13/18
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