Opinion
No. 946 MDA 2021
05-16-2022
COMMONWEALTH of Pennsylvania v. Dominic J. FLEMISTER Appellant
MEMORANDUM BY NICHOLS, J.:
Dominic J. Flemister (Appellant) appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA). After review, under the circumstances presented herein, we remand with instructions and retain jurisdiction.
42 Pa.C.S. §§ 9541 -9546.
Briefly, we note that after a jury trial, Appellant was found guilty of attempted murder of the first degree, aggravated assault, and firearms not to be carried without a license in connection with the shooting of Rodney Dunbar. On September 17, 2015, the trial court sentenced Appellant to a term of twenty to forty years of incarceration for attempted murder, a concurrent term of nine to eighteen years of incarceration for aggravated assault, and a concurrent term of three to seven years of incarceration for the firearms offense. Id. at 6.
18 Pa.C.S. §§ 901(a), 2702(a)(1), and 6106(a)(1), respectively.
After this Court affirmed Appellant's judgment of sentence on September 8, 2016, Appellant filed a timely first PCRA petition. After numerous extensions, amended PCRA petitions, and substitutions of counsel, the PCRA court dismissed Appellant's PCRA petition on June 17, 2021. Appellant filed a timely appeal on July 15, 2021, and Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Prior to addressing the issues raised on appeal, we note the possibility that Appellant is serving an illegal sentence. As noted above, Appellant was convicted of both attempted murder and aggravated assault, and the trial court sentenced Appellant on each conviction. It appears these crimes were based on the single act of Appellant shooting Mr. Dunbar. Our Supreme Court has held that the single criminal act of shooting and critically injuring a person does not support sentences for both attempted murder and aggravated assault. Commonwealth v. Anderson , 650 A.2d 20, 24 (Pa. 1994). Aggravated assault is a lesser included offense of attempted murder, and these crimes merge for purposes of sentencing. Id. (citing 18 Pa.C.S. §§ 901(a), 2502(a), 2702(a)(1) ).
Where jurisdiction is proper in this Court, the legality of a sentence is not subject to waiver, and it may be raised sua sponte. See Commonwealth v. DiMatteo , 177 A.3d 182, 192 (Pa. 2018) ; see also Commonwealth v. Randal , 837 A.2d 1211, 1214 (Pa. Super. 2003).
Nevertheless, we are cognizant that the sentences would not merge where there were separate criminal acts underlying each charge. See Commonwealth v. Wesley , 860 A.2d 585 (Pa. Super. 2004). However, such circumstances are neither argued in Appellant's brief nor readily apparent from the certified record.
We point out that when Appellant filed his direct appeal, he included a request for the notes of testimony from the trial and sentencing. See Notice of Appeal, 11/4/15 (docketed at 1951 MDA 2015). However, in the instant appeal, the certified record contains only an excerpt from the sentencing hearing and portions of the trial excluding the parties’ closings. Indeed, the trial court's charge to the jury addresses only the single act of Appellant shooting Mr. Dunbar, see N.T., 8/19-20/15, at 148-151, and the notes of testimony from Appellant's sentencing hearing include an excerpt of only six pages. See N.T., 9/17/15, at 1-6. This excerpt does not provide the imposition of sentence and there is no discussion regarding merger. See id.
It is apparent that in Appellant's direct appeal, he filed a Reproduced Record (RR) in our Court. In the RR, as in the record in the current appeal, the closing arguments are not included in the notes of testimony. However, the RR contains a lengthier sentencing transcript. Unfortunately, even in the more complete sentencing transcript from the RR, there is no mention of merger, only a reference to a "prior altercation." See RR from direct appeal (1951 MDA 2015), at 178. As such, even the expanded transcripts in the earlier RR do not answer specifically the question concerning merger.
Given the state of the current record, were we to merely remand for completion of the certified record, we may receive only another copy of the same truncated transcripts which we have already received and waste more valuable time. Moreover, even if we receive the more complete transcript that was included in the prior RR, it will likely not answer the merger question, because, as noted, even the RR does not discuss merger.
Conversely, remanding this matter to the PCRA court to address the deficiencies and possible errors in the record allows this Court to obtain the PCRA court's findings and conclusions in a supplemental opinion and supplemental record. We also gain the benefit of argument from the parties in supplemental briefs. Simply stated, remand allows this Court to obtain more information in a more efficient and expedient manner than merely requesting the existing transcripts.
Accordingly, we remand this matter to the PCRA court with instructions. The PCRA court shall address the state of the record and determine whether the record explains the sentence, and the PCRA court shall answer the merger question. The PCRA court will make this determination, supplement the record, and make its findings in a supplemental opinion. Thereafter, the parties shall file supplemental briefs addressing the legality of sentencing issue. Once the record is supplemented, the supplemental opinion is filed, and the parties filed their supplemental briefs, this Court will address Appellant's current PCRA appeal and address the merger issue.
In conclusion, were we able to discern with certainty that the sentences should have merged, we would correct the sentence or remand for resentencing as part of our disposition of the instant appeal. See Randal , 837 A.2d at 1214. However, we are unable to make this determination. Therefore, we remand this matter to the PCRA court to address the state of the record, the legality of Appellant's sentence, and file a supplemental opinion within thirty days and supplement the record if necessary. Appellant shall have twenty-one days from the date the supplemental opinion is filed to file a supplemental brief. Thereafter, the Commonwealth shall have twenty-one days in which to file a response.
If the PCRA court finds that the sentences should have merged, it shall note this in the supplemental opinion but not vacate or resentence Appellant as we retain jurisdiction.
Case remanded with instructions. Jurisdiction retained.
Judge Colins joins the memorandum.
Judge Bowes files a dissenting memorandum.
DISSENTING MEMORANDUM BY BOWES, J.:
My esteemed colleagues elect to remand this appeal for, inter alia , a supplemental PCRA court opinion and additional briefing by the parties to address whether attempted murder and aggravated assault merge for the purposes of sentencing. However, because the proposed remand is both premature and potentially unnecessary, I respectfully dissent.
It is beyond cavil that this Court will address issues regarding the legality of a sentence sua sponte. However, it is equally true that we should not delay the resolution of an appeal unnecessarily. Appellant asserted the following three issues, any of which would warrant a new trial, if meritorious, and alleviate the need to determine the legality of the sentence imposed in this case:
A. Whether the PCRA court erred in denying Appellant's PCRA petition where Appellant presented sufficient evidence of trial counsel's ineffectiveness in failing to impeach Commonwealth witnesses Chambers and Dunbar on their prior crimen falsi convictions.
B. Whether the trial court erred in denying Appellant's PCRA petition where Appellant presented sufficient evidence of trial counsel's ineffectiveness in failing to impeach Commonwealth witness Hill regarding favorable treatment he received from the Commonwealth.
C. Whether the trial court erred in denying Appellant's PCRA petition where Appellant presented sufficient evidence of trial counsel's ineffectiveness in failing to object [to] the Commonwealth's failure to prove an element of the crime.
Appellant's brief at 4 (unnecessary capitalization and suggested answers omitted). Critically, our resolution of these issues is not affected by the deficiencies in the record that the majority seeks to remedy.
Conventional principles of appellate review require that we address the substantive allegations of ineffective assistance before confronting the concomitant sentencing issue. However, rather than address this appeal in the normal course, the majority ostensibly presumes that the substantive claims lack merit and remands the matter for the PCRA court to supplement the certified record and provide an opinion on the issue of merger, which again, is utterly contingent upon our merits determination.
Moreover, although potentially helpful, the trial court's analysis of the merger issue is unnecessary in light of our de novo review. See Commonwealth v. Edwards , 256 A.3d 1130, 1136 (Pa. 2021) ("A claim that crimes should merge for sentencing purposes raises a non-waivable challenge to the legality of the sentence; thus, our standard of review is de novo and our scope of review is plenary."). Accordingly, even providing that Appellant's substantive issues fail, any supplemental opinion provided by the PCRA court is wholly advisory.
As to the details of the remand, the majority provides,
[W]e remand this matter to the PCRA court to address the state of the record, the legality of Appellant's sentence, and file a supplemental opinion within thirty days and supplement the record if necessary. Appellant shall have twenty-one days from the date the supplemental opinion is filed to file a supplemental brief. Thereafter, the Commonwealth shall have twenty-one days in which to file a response.
See Majority Memorandum at 5 (footnote omitted).
Thus, by presuming the futility of Appellant's substantive assertions and remanding for an advisory supplemental opinion and additional briefing, the majority will delay the resolution of this case by up to seventy-two additional days. This scenario begs the question, what if, upon the case's eventual return to this Court, the majority ultimately determines that any one of Appellant's substantive challenges, in fact, warrants relief? From my perspective, if relief is warranted based on the existing record but deferred for what proves to be a futile exercise, the resulting seventy-two day-delay is entirely unnecessary.
Thus, rather than suspend the resolution of this appeal, potentially unnecessarily, I would immediately enter a precise order directing the PCRA court to obtain the complete transcripts of all of the relevant proceedings, including the closing arguments and sentencing hearing, and, if necessary, direct the PCRA court to order the court reporter to transcribe the relevant notes of testimony pursuant to its authority under Pa.R.A.P. 1931(b), or explain why it cannot. In the meantime, I would address the merits of Appellant's three ineffective assistance claims, and only then, having confirmed that a new trial is not warranted and that a remand is absolutely necessary notwithstanding the supplemented record, would I remand the case for the PCRA court's analysis and additional briefing.
Rule 1931(b) provides, in pertinent part,
Duty of Trial Court . After a notice of appeal has been filed, the judge who entered the order appealed from shall ... cause the official court reporter to comply with Pa.R.A.P. 1922 or shall otherwise settle a statement of the evidence or proceedings as prescribed by this chapter, and shall take any other action necessary to enable the clerk to assemble and transmit the record as prescribed by this rule.
Pa.R.A.P. 1931(b) ; see also Commonwealth v. McCardle , 667 A.2d 751, 752-53 (Pa. Super 1995) (once ordered by appellant, trial judge has duty to assure transcription of testimony); Pa.R.J.A.703(B), Note ("Judges must also take an active role in ensuring the timely preparation of documents, such as notes of testimony[.]").
For all of the foregoing reasons, I respectfully dissent.