Commonwealth v. McNeal

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2015 PA Super 150

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

WAYNE MCNEAL

Appellant No. 1771 EDA 2013

Appeal from the Judgment of Sentence of May 31, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0500911-2005

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

WAYNE MCNEAL

Appellant No. 1775 EDA 2013

Appeal from the Judgment of Sentence of May 31, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008159-2011

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

OPINION BY WECHT, J.: FILED JULY 16, 2015

Wayne McNeal appeals from two judgments of sentence imposed upon

him by the Honorable Chris Wogan, Judge of the Court of Common Pleas of

Philadelphia County. We consolidate these cases sua sponte. Finding
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numerous instances of trial court error, we vacate those judgments of

sentence, and we remand these cases for further proceedings.

On June 28, 2005, at CP-51-CR-0500911-2005, McNeal pleaded guilty

to one count of robbery, 18 Pa.C.S. § 3701. Pursuant to an agreement with

the Commonwealth, McNeal was sentenced to two and one-half to five years’

incarceration, to be followed by five years of probation. The Honorable Earl

Trent, Judge of the Court of Common Pleas, accepted the plea, and

sentenced McNeal.

On July 1, 2011, at CP-51-CR-0008159-2011, McNeal was arrested

and charged with burglary, 18 Pa.C.S. § 3502, criminal trespass, 18 Pa.C.S.

§ 3503, criminal mischief, 18 Pa.C.S. § 3304, and criminal attempt—theft,

18 Pa.C.S. §§ 901, 3921. These charges were assigned for disposition to

Judge Wogan. The charges also formed the basis for a potential violation of

the probation imposed by Judge Trent at CP-51-CR-0500911-2005. Judge

Trent scheduled a probation violation hearing for July 29, 2011. However,

the hearing was postponed until the burglary and related charges were

resolved.

On April 11, 2013, the parties appeared before Judge Wogan for trial.

However, the case was continued to the following day because the jury

panel had been released before voir dire could commence. Nonetheless, on

April 11, the Commonwealth presented McNeal with a plea offer. The

Commonwealth offered to agree to a sentence of three and one-half to

seven years’ incarceration if McNeal pleaded guilty to the burglary charge.

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The proposed sentence fell within the mitigated range of the sentencing

guidelines. Notes of Testimony (“N.T.”), 4/11/2013, at 4-5. Judge Wogan

explained to McNeal the potential maximum sentences that he could receive

if he went to trial and lost. Id. at 4-7. McNeal rejected the plea offer. Id.

at 11. Judge Wogan urged McNeal to reconsider. Specifically, Judge Wogan

told McNeal that he “should think about this overnight. You may not believe

me that you will get 15 to 31 years. Maybe you should ask people around

the jail if I would do that.” Id. at 12-13.

On the following day, the parties appeared before Judge Wogan. The

parties and Judge Wogan discussed the grading of the criminal mischief

charge. One of the allegations against McNeal was that, in perpetrating the

alleged burglary, he caused damage to the front door of the home that he

purportedly entered. The assistant district attorney stated that she was

“inclined to proceed on [the criminal mischief charge] as a summary.” N.T.,

4/12/2013, at 3. Judge Wogan commented that it was his understanding

that prosecuting that crime as a summary, with Judge Wogan sitting as the

finder of fact and rendering a verdict after the jury had ruled on the

indictable offenses, was “permissible.” Id. Additionally, Judge Wogan

volunteered that a summary is a conviction that would “be a violation of the

probation that I am now supervising.” Id. Although Judge Wogan did not

elaborate on the issue at that juncture, this was the first time that he

revealed to the parties that he had assumed jurisdiction over the probation

violation case that initially was assigned to Judge Trent.

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The parties met again before Judge Wogan on April 15, 2013, after

defense counsel had requested that a psychiatric evaluation be performed on

McNeal. Judge Wogan readily agreed that an evaluation was necessary,

“especially when he turned down a 3 and a half year sentence and could get

12 and a half or more.” N.T., 4/15/2013, at 3.

On April 18, 2013, the parties again met before Judge Wogan for more

pretrial discussions. Once again, Judge Wogan informed McNeal of the

terms of the proffered plea bargain. This time, however, Judge Wogan

explained that the three and one-half to seven years offer encompassed the

probation violation as well. Judge Wogan explained the offer, and the

unconventional negotiations that occurred between the court and the

parties, as follows:

I spoke with your attorney. And if you plead guilty on the
criminal trespass, what you would get from me would be three-
and-a-half to seven years – that is a promise I made – on
everything including the [violation of probation]. I just want to
make sure you understand that. That would have probation to
follow, and that is less of a sentence that I normally think would
be appropriate. Because I wanted to make it three to ten, but
after negotiating with the attorneys I decided three to seven
with probation to follow would be fair.[1] Just so you
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1
Among the numerous errors by Judge Wogan in this case is his
admission that he negotiated a plea bargain with the parties. Prior versions
of our Rules of Criminal Procedure explicitly prohibited such participation by
a trial judge. Although the current version of Pa.R.Crim.P. 590 no longer
contains a blanket prohibition barring judges fom engaging in plea
negotiations, the Comment to that rule notes that the ban was removed to
permit, for example, a judge to “inquire of defense counsel and the attorney
for the Commonwealth whether there has been any discussion of a plea
(Footnote Continued Next Page)

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understand, that is everything. You see, I could give you 7-1/2
to 15 years for violating my probation.[2] I’m not going to do
that.

N.T., 4/18/2013, at 3-4. McNeal rejected the offer for a second time. Judge

Wogan reacted as follows: “All right. Well, then you may end up doing

seven years and nine months instead. If you don’t see the logic in that,

that’s [sic] whatever high school you went to, they didn’t do a very good

job.” Id. at 5.

The parties and the court then turned their attention back to the issue

of whether the criminal mischief charge should continue to be graded as a

misdemeanor, or whether it should be amended to a summary offense. The

following exchange occurred between Judge Wogan and the parties:

THE COURT: All right. And the Commonwealth is
holding off the criminal mischief as a
summary which I will decide whether you
committed criminal mischief when the
jury trial is over.

_______________________
(Footnote Continued)

agreement, or to give counsel, when requested, a reasonable period of time
to conduct such a discussion.” Pa.R.Crim.P. 590 Cmt. The Comment notes
that “[n]othing in this rule, however, is intended to permit a judge to
suggest to a defendant, defense counsel, or the attorney for the
Commonwealth, that a plea agreement should be negotiated or accepted.”
Id. Judge Wogan’s actions ran afoul of both aspects of this proviso. He not
only encouraged McNeal to take a plea, and participated in the actual plea
negotiations; he also repeatedly criticized McNeal for not taking the deal.
2
This is the second time that Judge Wogan indicated that he had
assumed jurisdiction over Judge Trent’s probation case, this time going as
far as calling it “my” probation, even though the case originated with Judge
Trent.

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[DEFENSE COUNSEL]: I do have an objection to that.

THE COURT: All right. Anything you want to say
about that or generally?

[DEFENSE COUNSEL]: My objection would be this. The
complainant testified – I have a number
of objections. But first one is
complainant testified that previously the
damage to the door was $908. It is
misdemeanor of the third degree, not a
summary offense.

THE COURT: Right.

[DEFENSE COUNSEL]: And so by moving on the summary
offense [the] Commonwealth is basically
precluding the complainant from getting
restitution as to the cost.

THE COURT: I didn’t know you represented plaintiffs
[sic] here.

* * *

[DEFENSE COUNSEL]: And also, it is my belief that the criminal
trespass, breaking the door, is necessary
to, cross criminal mischief breaking a
door is necessary to a felony to criminal
trespass conviction which involves
breaking in the first place. So that it is a
lesser included offense and it is a
necessarily included offense. And
because of that fact he cannot be
sentenced for both offenses because the
breaking is a requirement of the criminal
trespass felony two.

THE COURT: Well, we will see. We will see.

[DEFENSE COUNSEL]: Well, the nearest case I can find to that .
..

THE COURT: It is a moot point. It is a moot point.
The best that can happen to him – the
best that can happen to you – all right –
the best that can happen to you and your

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attorney’s argument would be
meaningless is somehow the jury finds
you not guilty of criminal trespass. Then
his argument that you can’t be
sentenced for criminal mischief falls
away because I can still sentence you for
criminal mischief if I find beyond a
reasonable doubt that you broke the
door.

[DEFENSE COUNSEL]: Well, my position on that is that you
can’t. Because if the jury acquits --

THE COURT: You are so wrong on that.

[DEFENSE COUNSEL]: --him of criminal trespass --

THE COURT: You are so –

[DEFENSE COUNSEL]: -- then necessarily --

THE COURT: -- you are so far from what the law is.
The law is that even the jury can do
something diametrically opposed to what
I do. And the cases actually say it
doesn’t matter because maybe this was a
jury that was utilizing jury nullification.
Maybe their false sense – and they use
the word “leniency” and I never used the
word – leniency compelled them to do
something which does not bound the
judge. You have no support in Superior
Court. To even think of one senior judge
in Superior Court, he wouldn’t go out on
a limb.

[DEFENSE COUNSEL]: And also the fact that this would
generate [a] probation violation, which
up until last week would have been [a]
violation of Judge Trent, but is now [a]
violation of Your Honor.

THE COURT: Reasons of judicial economy and
efficiency, he is on my probation now.

[DEFENSE COUNSEL]: Well, for reasons of judicial economy,
you can have one trial instead of two.

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THE COURT: You will see how efficient I am if we have
a summer trial. We will do it real
quickly.

N.T., 4/18/2013, at 5-9.

McNeal’s jury trial began and ended on the following day, April 19,

2013. Following deliberations, and despite Judge Wogan’s apparent disbelief

that the jury could or would do so, the jury found McNeal not guilty of all of

the crimes. This left the criminal mischief charge, now graded as a

summary offense, for disposition by Judge Wogan. N.T., 4/19/2013, at 126-

27. Regarding that summary offense, the Commonwealth offered no

evidence, simply adopting that which had been presented to the jury. Judge

Wogan chose to disagree with the jury’s apparent credibility determinations.

He found “the victim here to be credible,” and “found the defendant to be a

liar.” N.T., 4/19/2013, Motion Volume I, at 3. He found McNeal guilty of the

summary offense.

At the time he entered his verdict, Judge Wogan did not reveal that he

had relied upon evidence not of record in assessing whether the

Commonwealth proved beyond a reasonable doubt that McNeal had

committed the criminal mischief. On May 31, 2013, he did so. That day,

before imposing sentence on McNeal, Judge Wogan confessed to considering

a letter that was sent to him by McNeal but had never been offered into

evidence by the Commonwealth:

However, remember, Mr. McNeal wrote me a letter, as you
recall. I thought it was a pretty darn good letter. And in it he

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said he wasn’t guilty of a burglary. By the way, I agree with
that.

* * *

He was smart enough to say in his letter, however, [that] there
is evidence of criminal trespass. That’s an understatement.

N.T., 5/31/2013, at 15-16. Judge Wogan revealed that his verdict differed

from that of the jury because he “had additional information that the jury

didn’t have.” Id. at 17.

Defense counsel insisted to Judge Wogan that, because the letter

wasn’t part of the trial record, Judge Wogan was not permitted to consider

it. Judge Wogan responded as follows:

Then you have another appellate issue, because yes, I did use
the letter. I had additional information. We talked about the
letter. I gave you a copy and the Commonwealth. If you don’t
like defendants writing me letters, then maybe your office should
counsel them early on. But he said there was evidence of
criminal trespass, and yes, I agree. That was an
understatement.

* * *

Well, maybe you have an appellate issue because I used the
letter and that was information that the jury didn’t have but I
had. It’s a tacit admission.

Id. at 17-18. In his Pa.R.A.P. 1925(a) opinion, Judge Wogan declared that

he “was the finder of fact on the criminal mischief summary, and was not

about to ignore a letter voluntarily sent by [McNeal] to [the] court . . . .”

Trial Court Opinion (“T.C.O.”), 4/15/2014, at 11.

Prior to sentencing, McNeal filed a motion for extraordinary relief. In

that motion, McNeal challenged, inter alia, Judge Wogan’s assumption of

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jurisdiction over Judge Trent’s probation case. Before sentencing, Judge

Wogan described the circumstances that led to his taking the probation case

from Judge Trent, as follows:

[B]y the way, the conversation I had with Judge Trent saying I
reached out to him, well, actually, Judge Trent called me about
advice on another case. He had a big insurance fraud case in his
room and he called me. He was having a serious problem and
asked me for my advice. Luckily, it worked out for both of us.
The advice I gave him he was able to do what he wanted to do.
And in the course of talking to Judge Trent, I said, I’ve got a
case coming up. We’re trying to get a jury. I think he’s on your
probation. Do you want me to handle it? I don’t know what’s
going to happen yet. He said, Sure. I give cases up all the
time.

N.T., 5/31/2013, at 7. Judge Wogan also repeatedly criticized the public

defender’s office for objecting to the procedure he imposed in this case.

According to Judge Wogan, the transfer of cases occurs quite frequently in

the Court of Common Pleas of Philadelphia County, without any objection

from the public defender’s office. Id. at 6-8. Apparently, Judge Wogan

believed that, because no other attorney from the public defender’s office

had objected previously, defense counsel in this case was precluded from

doing so. Judge Wogan denied McNeal’s motion for extraordinary relief.

At the conclusion of the sentencing hearing, Judge Wogan informed

McNeal that he was “going to . . . give you every day I can give you today.”

Id. at 25. Judge Wogan then proceeded to sentence McNeal to thirty to

sixty months’ incarceration on the probation violation, followed by a

consecutive term of one and one-half to three months on the summary

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criminal mischief conviction. McNeal filed post-sentence petitions to vacate

the judgment of sentence and to reconsider the sentence. Judge Wogan

denied both motions.

On June 17, 2013, McNeal filed a timely notice of appeal. In response,

Judge Wogan directed McNeal to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). McNeal filed a

concise statement on July 31, 2013, but noted that certain volumes of

testimony had not yet been produced. Nonetheless, Judge Wogan issued an

opinion pursuant to Pa.R.A.P. 1925(a) on August 23, 2013. On October 28,

2013, this Court remanded the matter to Judge Wogan, and granted McNeal

the right to file a supplemental concise statement once all of the transcripts

had been produced. On February 6, 2014, McNeal filed a supplemental

concise statement. On April 15, 2014, Judge Wogan filed a supplemental

Pa.R.A.P. 1925(a) opinion.

In case number 1771 EDA 2013, McNeal raises the following issues for

our review:

1. Did not the trial court abuse its discretion and violate the
Rules of Criminal Procedure when it sought out and obtained
authority over [McNeal’s] probation violation case, which
originated in front of another sitting judge, without consent of
the parties?

2. Did not the trial court err when it found [McNeal] in direct
violation of his probation where the underlying conviction,
which was the basis for the violation, was illegal?

3. Did not the trial court abuse its discretion when it imposed
the maximum sentence allowed by law where the sentence
was manifestly excessive and unreasonable, where the

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sentence far surpassed what was necessary to foster
[McNeal’s] rehabilitative needs and where the sentence was a
product of partiality, bias and ill will?

4. Did not the trial court violate [McNeal’s] right to due process
under Article I, Section 9 of the Pennsylvania Constitution and
the 5th and 14th Amendments [to] the United States
Constitution where it: sought out and obtained authority over
[McNeal’s] probation case; attempted to coerce [McNeal] into
pleading guilty; usurped the authority of the jury; rendered a
verdict based on facts not in evidence; imposed the maximum
sentenced allowed by law; and failed to maintain impartiality
throughout the course of the proceedings.

Brief for McNeal (No. 1771 EDA 2013), at 4.

At No. 1775 EDA 2013, McNeal presents the following additional

questions for our consideration:

1. Did not the trial court err and violate [McNeal’s] right to a
trial by jury when it permitted the criminal mischief charge,
originally graded as a misdemeanor, to be reduced to a
summary offense, severed from the remaining charges, and
submitted to the court for a verdict where the sole purpose
for doing so was to circumvent the authority of the jury and
when the court, in fact, rendered a verdict contrary to the
clear pronouncements of the jury?

2. Did not the trial court err when it considered facts not in
evidence, to wit: the contents of a letter written by [McNeal]
that was not presented as evidence during the trial, when
deliberating and rendering a verdict on the criminal mischief
charge?

3. Did not the trial court violate [McNeal’s] right to due process
under Article I, Section 9 of the Pennsylvania Constitution and
the 5th and 14th Amendments [to] the United States
Constitution where it: sought out and obtained authority over
[McNeal’s] probation case; attempted to coerce [McNeal] into
pleading guilty; usurped the authority of the jury; rendered a
verdict based on facts not in evidence; imposed the maximum
sentence allowed by law; and failed to maintain impartiality
throughout the course of the proceedings?

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Brief for McNeal (No. 1775 EDA 2013), at 3.

The issues presented by McNeal in his two appeals intertwine at

various points. That is, the resolution of certain issues from one case will

impact our analysis of issues from the other case. Some issues we will not

need to address at all. With that primer, we begin our discussion with the

first issue presented by McNeal in case number 1771 EDA 2013.

In this issue, McNeal maintains that Judge Wogan erroneously

assumed control over the probation case that originated from his guilty plea

before Judge Trent. McNeal contends that Judge Wogan’s unilateral action

violated Rule 700 of the Pennsylvania Rules of Criminal Procedure. We

agree.

When we consider an appeal from a sentence imposed following the

revocation of probation, “[o]ur review is limited to determining the validity

of the probation revocation proceedings and the authority of the sentencing

court to consider the same sentencing alternatives that it had at the time of

the initial sentencing. 42 Pa.C.S. § 9771(b).” Commonwealth v. Fish,

752 A.2d 921, 923 (Pa. Super. 2000). Revocation of a probation sentence is

a matter committed to the sound discretion of the trial court, and that

court’s decision will not be disturbed on appeal in the absence of an error of

law or an abuse of discretion. Commonwealth v. Smith, 669 A.2d 1008,

1011 (Pa. Super. 1996).

We have uncovered no case precedent that addresses McNeal’s

argument precisely. In the main, the parties’ duel on this point consists of

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McNeal arguing that there is no case law or statute that would permit a trial

judge to assume control over another judge’s case, while the Commonwealth

maintains that there is no legal authority that prohibits a judge from doing

so.3 McNeal relies primarily upon Pa.R.Crim.P. 700, which we discuss in

more detail immediately below, and which facially applies to original

sentencing. For the reasons that follow, we believe that McNeal’s reliance

upon Rule 700 is a more sound approach than the Commonwealth’s, as the

latter would afford trial judges unbridled and essentially unchallengeable

authority to shuffle cases between themselves without the knowledge,

consent, or opportunity to be heard of the parties.

The parties correctly observe that no rule of procedure or case law

either permits or prohibits a judge specifically from assuming control over a

probation case supervised by another judge. Nonetheless, Rule 700

provides that “the judge who presided at the trial or who received the plea

of guilty or nolo contendere shall impose sentence unless there are

extraordinary circumstances which preclude the judge’s presence.”
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3
The Commonwealth also argues that McNeal has waived the issue
because he did not object when Judge Wogan made two passing references
to the fact that he had taken control over Judge Trent’s probation case. See
Brief for the Commonwealth (No. 1771 EDA 2013) at 10-11 (citing
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003);
Pa.R.A.P. 302(a)). We decline to find waiver in this instance, because
McNeal raised the issue in his motion for extraordinary relief, which was filed
before Judge Wogan sentenced McNeal on the probation violation. Hence,
the issue was preserved, and Judge Wogan was afforded ample opportunity
to consider (and to reconsider) and to rule on the objection.

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Pa.R.Crim.P. 700(a). The use of the word “shall” in the language of the rule

evinces Pennsylvania’s general disinclination to permit different judges to try

and to sentence a defendant. This policy recognizes the obvious value of a

judge who “is in the best position to view a defendant’s character, defiance

or indifference, and the overall effect and nature of the crime. When

formulating its order, the sentencing court must consider the nature of the

criminal and the crime.” Commonwealth v. Koren, 646 A.2d 1205, 1208

(Pa. Super. 1994) (internal citations omitted). It is axiomatic that the judge

who presides over the trial, or who accepts a guilty plea based upon a

recitation of the facts underlying the pleaded-to crime, is the judicial officer

best equipped to assess the nature of the defendant and the crime itself

before imposing sentence.

Rule 700 does not state that its terms apply to sentencing following a

probation revocation. However, our General Assembly has instructed that,

upon a probation revocation, “the sentencing alternatives available to the

court shall be the same as were available at the time of initial sentencing.”

42 Pa.C.S. § 9771(b). In other words, in practical effect, a judge imposing

sentence after finding that a defendant has violated probation is no different

from a judge imposing sentence in the first instance. For this precise

reason, we discern no principled difference between a judge imposing an

original sentence and one imposing a probation violation sentence, and

certainly no difference meaningful enough to exempt the latter from the

dictates of Rule 700.

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Pursuant to Rule 700, Judge Trent was the judge who “received the

plea of guilty,” and Judge Trent is the one who “shall impose sentence.”

Only upon “extraordinary circumstances” is another judge permitted by the

terms of the rule to impose a sentence. Having combed the record, we

observe no such circumstances, whether extraordinary or even pedestrian.

There is no statement, not even an offhand comment or aside, to suggest

that Judge Trent was away, ill, or unavailable to address his docket. We find

no circumstances that would permit Judge Wogan to reach out and take

control from Judge Trent over McNeal’s probation case. Only the consent of

both parties would permit such a maneuver. As noted earlier, Judge Wogan

initially revealed that he had assumed jurisdiction over the case only in

passing, while the parties were discussing with the court whether the

criminal mischief charge should be graded as a misdemeanor or as a

summary offense.

As noted, when Judge Wogan finally addressed the events that led him

to take over that portion of McNeal’s case, he offered the following

explanation:

[B]y the way, the conversation I had with Judge Trent saying I
reached out to him, well, actually, Judge Trent called me about
advice on another case. He had a big insurance fraud case in his
room and he called me. He was having a serious problem and
asked me for my advice. Luckily, it worked out for both of us.
The advice I gave him he was able to do what he wanted to do.
And in the course of talking to Judge Trent, I said, I’ve got a
case coming up. We’re trying to get a jury. I think he’s on your
probation. Do you want me to handle it? I don’t know what’s

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going to happen yet. He said, Sure. I give cases up all the
time.

N.T., 5/31/2013, at 7. Thus, the transfer of the case from Judge Trent to

Judge Wogan did not occur based upon some extraordinary circumstance,

but rather by mere happenstance. Had Judge Trent never called Judge

Wogan about some entirely different matter, the transfer of McNeal’s case

might never have happened. Random chance does not amount to an

extraordinary circumstance. Compare Commonwealth v. Williams, 375

A.2d 155 (Pa. Super. 1977) (finding that transfer was warranted because

original trial judge suffered a stroke, which constituted an extraordinary

circumstance.).

Judge Wogan also asserted that judicial economy justified his

assumption of control over McNeal’s case. Undeniably, trial judges should

strive for efficiency. But convenience does not equate with the extraordinary

circumstances which Rule 700 requires. The rule commands that the judge

who presides over the plea “shall” be the one who imposes the sentence,

except where “extraordinary circumstances . . . preclude the judge’s

presence.” We find no such circumstances in the record before us.

In his Rule 1925(a) opinion, Judge Wogan echoes the position that the

Commonwealth takes herein; to wit, that nothing in the rules prohibits the

action that he took in this case. For the preceding reasons, we reject this

narrow interpretation of our rules. At all events, Judge Wogan offers a

distinctly sparse explanation of his action according to the purpose of our

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rules. Instead, Judge Wogan opts to justify his actions by taking aim at the

public defender’s office. For example, Judge Wogan claims that the reason

he spoke to Judge Trent about the case was because the public defender’s

office routinely neglects to inform trial courts when probation violations

occur. Apparently, Judge Wogan believes that it was his civic duty to inform

Judge Trent that McNeal possibly had violated his probation. What other

members of the public defender’s office have done in other cases is of

course irrelevant to McNeal. Moreover, Judge Wogan’s claim is plainly

incorrect in this instance. As counsel for McNeal pointed out to Judge Wogan

on the record, Judge Trent already was aware of the alleged violation and

had in fact scheduled a hearing on the violation for July 29, 2013. See N.T.,

5/31/2013, at 7.

Judge Wogan claimed that similar transfers occur frequently, and

further alleged that the public defender’s office “only argues that transferring

[violation of probation] cases is contrary to the Rules of Criminal Procedure

when it believes it may impact their client negatively.” T.C.O. at 6. This

strikes us as a peculiar criticism indeed. Our Supreme Court promulgates

rules. Lawyers invoke and rely upon those rules in representing their

clients. Such advocacy of necessity may at times include arguments that a

particular ruling or procedure violates an applicable rule. We fail to

comprehend, and we do not approve, Judge Wogan’s chastisement of

lawyers’ use of our rules in fulfilling their professional duty of zealous

representation.

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The fact that transfers frequently occur in Philadelphia, assuming that

claim to be true, and the fact that the public defender’s office does not

object to those transfers in every instance, in no way precludes a present

objection. What allegedly has become entrenched as common practice does

not preclude another attorney from standing on the rules and pursuing a

meritorious claim. More importantly, the putative commonality of a practice

does not exempt a court from Rule 700’s mandate. No extraordinary

circumstance exists in this case, and no amount of finger-pointing by the

trial court will prove otherwise.

For these reasons, McNeal is entitled to a new probation violation

hearing. Nevertheless, for the reasons that follow, such hearing might not

be necessary upon remand because we vacate the summary criminal

mischief conviction upon which the probation violation relied. We turn our

attention to McNeal’s claims concerning that conviction.

McNeal first argues that the trial court erred by permitting the

Commonwealth to reduce the grading of the criminal mischief charge from a

misdemeanor to a summary offense. McNeal alleges that the

Commonwealth elected to proceed with the charge as a summary offense at

the suggestion of Judge Wogan. McNeal insinuates that the decision was a

collaborative effort between the prosecutor and Judge Wogan to “circumvent

the authority of the jury.” Brief for McNeal (No. 1775 EDA 2013) at 24.

McNeal further contends that, because he was charged initially with a

misdemeanor, he was entitled to a jury trial on the charge as such. Finally,

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McNeal argues that the bifurcation of the charges resulted in violations of

the concepts of double jeopardy and collateral estoppel. Id. at 25. On this

last point, we disagree with McNeal.

The criminal mischief charge at issue initially was filed as an ungraded

misdemeanor. However, at the preliminary hearing in this case, the

assistant district attorney requested, based upon the amount of damage

($960) asserted by the alleged victim during the hearing, that the charge be

designated a third degree misdemeanor. N.T., 7/18/2011, at 9-10; see 18

Pa.C.S. § 3304(b) (grading criminal mischief if the damage caused by the

actor is more than $500 but less than $1000). However, on April 12, 2013,

the assistant district attorney told the trial court that she was “inclined to

proceed on that as a summary.” N.T., 4/12/2013, at 3. By April 15, 2013,

the prosecutor had decided affirmatively to reduce the charge to a summary

offense, a decision to which McNeal objected and which he steadfastly

opposed. N.T., 4/15/2013, at 7-8. At sentencing, the assistant district

attorney noted that she had acted at the direction of her supervisor. N.T.,

5/31/2013, at 19.

McNeal maintains, both directly and by allusion, that the prosecutor

elected to proceed with the charge as a summary offense to accommodate

Judge Wogan, who, McNeal believes, wanted the charge to be a summary so

that he could preside over that charge personally so as to ensure a

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conviction that would in turn constitute a violation of McNeal’s probation. 4

The record lends considerable support to McNeal’s allegations regarding

Judge Wogan’s motives. Judge Wogan repeatedly questioned McNeal’s

intelligence, and at least twice emphasized prior to the verdict that a

summary conviction would serve as a probation violation. Our close review

of the record suggests that Judge Wogan had decided that McNeal was guilty

of some crimes before the trial even started. Judge Wogan explained that

one of McNeal’s arguments would be moot if the jury “somehow” found him

not guilty of the charged offenses. N.T., 4/18/2013, at 7. At sentencing,

Judge Wogan told McNeal that he was “going to . . . give you every day I

can give you today.” N.T., 5/31/2013.

Regardless of what Judge Wogan’s true motives were, we cannot

impute those motives to the assistant district attorney in this case. “The

prosecutor . . . has the duty to decide what charges should be brought

against a particular offender and then to prosecute the offender according to

that law. A prosecutor is vested with considerable discretion in deciding who

will or will not be charged and what they will be charged with.”

____________________________________________

4
Bifurcating a trial such that a jury will render a verdict on any
misdemeanors or felonies while a trial judge rules on any summary offenses
is permitted by our rules of criminal procedure. See Pa.R.Crim.P. 648(F)
(“If there is a summary offense joined with the misdemeanor, felony, or
murder charge that was tried by the jury, the trial judge shall not remand
the summary offense to the issuing authority. The summary offense shall be
disposed of in the court of common pleas[.]”).

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Commonwealth v. Amundsen, 611 A.2d 309, 311 (Pa. Super. 1992). The

United States Supreme Court likewise has acknowledged that the

prosecution enjoys considerable discretion in deciding what charges to bring

against a defendant. United States v. Batchelder, 442 U.S. 114 (1979).

“Selectivity in the enforcement of criminal law is, of course, subject to

constitutional constraints. . . . [A] prosecutor may be influenced by the

penalties available upon conviction; however, that fact[,] standing alone,

does not give rise to a violation of the Equal Protection or Due Process

Clauses.” Commonwealth v. Berryman, 649 A.2d 961, 974 (Pa. Super.

1994). Further:

[i]n reviewing a grant to amend an information, the Court will
look to whether the appellant was fully apprised of the factual
scenario which supports the charges against him. Where the
crimes specified in the original information involved the same
basic elements and arose out of the same factual situation as the
crime added by the amendment, the appellant is deemed to
have been placed on notice regarding his alleged criminal
conduct and no prejudice to defendant results.
Commonwealth v. J.F., 800 A.2d 942, 945 (Pa. Super. 2002).

Commonwealth v. Sinclair, 897 A.2d 1218, 1222 (Pa. Super. 2006)

(citation modified).

In light of these standards, and in view of the vast discretion afforded

to prosecutors to decide which charges to file and pursue against a

defendant, we can discern no abuse of prosecutorial discretion under these

circumstances. There is no evidence of record that the prosecutor acted in

collusion with Judge Wogan. Nor are we permitted to presume that the

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prosecutor’s actions were based only upon the belief that Judge Wogan

would in fact convict McNeal and find him in violation of his probation.

Simply put, we cannot impute Judge Wogan’s improper behavior to the

Commonwealth without some evidence in the record to show that the

prosecutor harbored the same dubious motive. The record we have does not

support such a finding. Thus, our concerns notwithstanding, we must reject

McNeal’s argument that the trial court erred in permitting the prosecutor to

reduce the charge.

We also reject McNeal’s argument that permitting the prosecutor to

reduce the charge was a violation of the principles of double jeopardy or

collateral estoppel. In Commonwealth v. States, 938 A.2d 1016 (Pa.

2007), the Pennsylvania Supreme Court explained the concepts of double

jeopardy and collateral estoppel in the criminal context as follows:

The proscription against twice placing an individual in jeopardy
of life or limb is found in the Fifth Amendment to the United
States Constitution, made applicable to the states through the
Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784,
794 (1969). The double jeopardy protections afforded by our
state constitution are coextensive with those federal in origin;
essentially, both prohibit successive prosecutions and multiple
punishments for the same offense. Commonwealth v.
Fletcher, 861 A.2d 898, 912 (Pa. 2004). We have described
double jeopardy rights as “freedom from the harassment of
successive trials and the prohibition against double punishment.”
Commonwealth v. Hude, 425 A.2d 313, 318 (Pa. 1980)
(plurality). [C]ollateral estoppel (also known as issue
preclusion), is most familiar in the civil context, where its stated
purpose is to “relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and by preventing
inconsistent decisions, [and] encourage reliance on
adjudication.” Shaffer v. Smith, 673 A.2d 872, 875 (Pa. 1996).

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However, collateral estoppel does not operate in the criminal
context in the same manner in which it operates in the civil
context. For instance, in civil practice the doctrine is applicable,
in equal measure, to both parties, whereas in the criminal
context, the use of the doctrine is considerably restricted,
particularly where the Commonwealth seeks to use it against a
criminal defendant. See Commonwealth v. Holder, 805 A.2d
499 (Pa. 2002) (permitting the Commonwealth limited use of
collateral estoppel principles to preclude relitigation of an
evidentiary ruling that had been rendered in a previous
probation hearing) (plurality). With respect to the criminal law
defendant, collateral estoppel is treated as a subpart of double
jeopardy protection and is defined as follows: “Collateral
estoppel . . . does not automatically bar subsequent
prosecutions[,] but does bar redetermination in a second
prosecution of those issues necessarily determined between the
parties in a first proceeding which has become a final judgment.”
Commonwealth v. Smith, 540 A.2d 246, 251 (Pa. 1988)
(citation omitted). As simple as this definition appears, the
principle’s application is not as straightforward as it is in the civil
context because it must be viewed through the lens of double
jeopardy. Commonwealth v. Brown, 469 A.2d 1371, 1373
(Pa. 1983) (it is “double jeopardy that forbids the state from
offending the collateral estoppel rule”).

States, 938 A.2d at 1019-20 (citations modified).

These principles apply to “subsequent” prosecutions where the first

trial ended with a definitive determination of a controlling material issue.

Id. They do not apply to the typical scenario permitted by Pa.R.Crim.P.

648(F), where the jury and the trial court rendered conflicting credibility

findings. A trial judge, sitting simultaneously as fact-finder with a jury in a

bifurcated summary/non-summary trial, is entitled to make his or her own

credibility findings, and it is well-settled that “inconsistent verdicts are

permissible in Pennsylvania.” States, 938 A.2d at 1025. What occurred in

this case was an inconsistent verdict. Such verdicts, “while often perplexing,

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are not considered mistakes and do not constitute a basis for reversal.”

Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004)

(citations omitted).

We turn now to what is perhaps the most troubling aspect of this

troubling case: Judge Wogan’s unapologetic admission that he considered

evidence dehors the record when deliberating upon and rendering a verdict

on the criminal mischief charge. As noted earlier, Judge Wogan considered

information from a letter that McNeal had sent to him, even though the

Commonwealth never introduced that letter at trial. See N.T., 5/31/2013,

at 15-18; T.C.O. at 11. This was plain error. Indeed, it was stark and

fundamental error.

We are unaware of any basis for Judge Wogan’s assertion that “there

is no legal reason to exclude this court from considering the letter in making

its summary [sic] judgment.” T.C.O. at 11. It is hornbook law that “a court

may not support an adjudication of guilt with evidence not part of the trial

record.” Commonwealth v. Wasiuta, 421 A.2d 710 (Pa. Super. 1980);

Commonwealth v. Martell, 452 A.2d 873, 875 (Pa. Super. 1982); see

also Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984) (noting that “a trial

court may not consider facts or evidence dehors the record in making [any]

determination.”); Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007) (same).

Here, Judge Wogan freely admitted that he considered the contents of

McNeal’s letter, notwithstanding an apparent glimmer of recognition that it

was improper for him to do so:

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Then you have another appellate issue, because yes, I did use
the letter. I had additional information. We talked about the
letter. I gave you a copy and the Commonwealth. If you don’t
like defendants writing me letters, then maybe your office should
counsel them early on. But he said there was evidence of
criminal trespass, and yes, I agree. That was an
understatement.

* * *

Well, maybe you have an appellate issue because I used the
letter and that was information that the jury didn’t have but I
had. It’s a tacit admission.

N.T., 5/31/2013, at 17-18. As he did in defending his unilateral actions in

reaching out for McNeal’s probation case, Judge Wogan again attempted to

place the blame on the defense attorney. In this instance, Judge Wogan

criticized defense counsel for failing to instruct clients not to send letters to

the trial judge. It is apparent that Judge Wogan believed that he could flout

the basic principles of fair trial because defense counsel never affirmatively

told McNeal that it was a bad idea to send the judge a letter. Judge Wogan’s

blame-shifting is unavailing. It is clear that Judge Wogan had no interest in

the propriety of considering the letter, and that he was going to consider it

regardless of the commands of our laws. See T.C.O. at 11 (Judge Wogan

states that he “is not about to ignore a letter voluntarily sent by [McNeal] to

[the] court.”). T.C.O. at 11.

Judge Wogan convicted McNeal of a crime with evidence that the

Commonwealth never introduced at trial. This was patent error. The

Commonwealth concedes candidly that McNeal is entitled to relief. See Brief

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for the Commonwealth (No. 1775 EDA 2013), at 15-16. McNeal’s summary

criminal mischief conviction is vacated.

Having concluded that McNeal’s conviction must be vacated, we also

must vacate the judgment of sentence that was imposed for the probation

violation. The criminal mischief conviction was the exclusive basis for the

probation violation. Again, the Commonwealth candidly concedes that

McNeal is entitled to this relief. See Brief for the Commonwealth (No. 1771

EDA 2013), at 14-15. Consequently, we vacate that judgment of sentence

as well. Because we do so, we need not address McNeal’s claim concerning

the discretionary aspects of his sentence in case number 1771 EDA 2013,

and that claim is now moot.

In his remaining two claims, McNeal raises identical due process

arguments, in each of which he delineates the acts of impropriety committed

by Judge Wogan. We need not delve into these issues in any substantive

way. Judge Wogan’s errors and transgressions are well documented in this

case. We need proceed no further. We need not commence an additional

discussion of whether Judge Wogan violated McNeal’s rights to due process

and fundamental fairness so as to require a new trial. The relief that McNeal

requests based upon these asserted constitutional violations is vacatur of his

judgments of sentence and a remand for new proceedings. For the reasons

elaborated upon above, we already have granted that precise relief to

McNeal. Thus, McNeal’s last two claims are moot, and require no further

discussion.

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Judgments of sentence vacated. Case remanded.5 Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/16/2015

____________________________________________

5
By command of our Supreme Court, this Court is not permitted sua
sponte to order a judge to recuse himself from a case. See
Commonwealth v. Whitmore, 912 A.2d 827, 833-34 (Pa. 2006). We
obviously will not do so. We nonetheless would be remiss if we did not
express our concern for McNeal’s ability to receive a fair and impartial trial if
this case is tried anew before Judge Wogan, because Judge Wogan already
has heard the evidence of record and has rendered a verdict based upon
evidence dehors that evidentiary record. See Canon 2.9 of the Code of
Judicial Conduct (“A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge
outside the presence of the parties or their lawyers, concerning a pending or
impending matter.”).

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