J-A21033-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MICHAEL SCOTT CHANCE,
Appellant No. 3009 EDA 2015
Appeal from the Judgment of Sentence August 25, 2015
in the Court of Common Pleas of Chester County,
Criminal Division, No(s): CP- 15 -CR- 0003643 -2014
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 24, 2016
Michael Scott Chance ( "Chance ") appeals from the judgment of
sentence entered following his conviction of open lewdness, and the
summary offense of disorderly conduct.' We affirm.
On August 7, 2014, at around 3:30 a.m., Uwchlan Township Police
Officer David Coppola ( "Officer Coppola ") responded to a radio dispatch
regarding a possible prowler or suspicious vehicle at Kidwelly Court, in the
Rhondda homeowners development in Uwchlan. Upon arriving at the scene,
Officer Coppola spoke to the complainant. The complainant told Officer
Coppola that a vehicle had pulled into Kidwelly Court, after which a man
exited the vehicle, left it running with the lights on, and walked to another
part of the court.2 Aware of recent break -ins in the area, Officer Coppola
' 18 Pa.C.S.A. §§ 5901, 5503.
2 It was established that Chance was not the man who left the vehicle.
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walked in the same direction as the driver of the unattended vehicle, as
indicated by the complainant. According to Officer Coppola, he heard what
sounded like a car trunk or door slam. Looking in the direction of the noise,
Officer Coppola saw Chance from a distance of about 30 feet. Walking about
ten feet toward Chance, Officer Coppola saw that Chance was wearing black
bedroom slippers, pink girls' underwear on his body, and purple panties on
his head. The purple panties covered Chance's face.
From a distance of about 10 to 15 feet, Officer Coppola saw Chance
appear to apply a gel to his groin area. At that time, Chance "took his right
hand and stuck it into his pants and started to manipulate his genitals[,]"
"apparently masturbating." N.T., 5/13/15, at 16. When Officer Coppola
asked Chance what he was doing, Chance confirmed that he was
masturbating. After ascertaining Chance's identity, and the fact that he
lived at Kidwelly Court, Officer Coppola told Chance that he would receive his
citation by mail. Officer Coppola then directed Chance to go inside his
residence.
A jury found Chance guilty of the above -described charges. The trial
court thereafter sentenced Chance to a minimum of one month and a
maximum of 12 months in jail, with Chance eligible for work release after
two weeks. The trial court further sentenced Chance to 50 hours of
community service. Chance filed a post- sentence Motion. While the post -
sentence Motion was pending, Chance's counsel filed a Motion for leave to
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withdraw his appearance on Chance's behalf. Counsel alleged that he and
Chance had a "fundamental disagreement about the proper direction of his
representation[,]" and that Chance was without income. Motion for Leave to
Withdraw, ¶¶ 1 -2. Counsel further indicated that Chance qualified for the
appointment of counsel. Id., ¶ 2.
On September 9, 2015, the trial court entered an Order granting in
part and denying in part Chance's post- sentence Motion.3 On that same
date, the trial court granted defense counsel's request to withdraw from
representation. The trial court's Order directed Chance to apply for
representation by the Public Defender's Office. Chance timely filed a pro se
Notice of Appeal, followed by a pro se court -ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
Chance now presents the following clams for our review:
1. Did the trial court commit reversible error when it denied
[Chance's] request for the corpus delicti jury instruction?
2. Did the trial court commit reversible error by not advising
[Chance] of his post[ -]sentence rights[,] thus causing him undue
prejudice for preparing his appeal?
3. Did the trial court commit reversible error by unduly
impairing [Chance's] right of allocution?
Brief for Appellant at 4.
3Specifically, the trial court continued to require Chance to participate in the
county sex offender's program. However, the trial court amended its bail
condition that Chance be subject to electronic home monitoring.
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Chance first claims that the trial court improperly failed to issue a
corpus delicti4 jury instruction. Id. at 8. Chance argues that a corpus delicti
instruction was made necessary because, during the Commonwealth's
opening argument, the prosecutor referred to Chance's statement to Officer
Coppola (i.e., that Chance was masturbating) without prior notice to Chance
and prior to the admission of any trial evidence. Id. at 10 -11. Chance
argues that the trial court improperly denied his requested corpus delicti jury
instruction, and "made matters worse by instructing the jury that: 'Before
you must -before you may consider this statement as evidence against
[Chance,] you must find that a crime was in fact committed. ' Id. at 11
(citation and emphasis omitted). According to Chance, the trial court erred
by opening the "scope of consideration" beyond the open lewdness charge,
thereby allowing the jurors to speculate about the existence of other crimes,
including but not limited to the disorderly conduct charge. Id. Chance
contends that the trial court's instruction did not explain how the jury was
supposed to weigh Chance's statement, "namely that the corpus delicti rule
additionally requires that the Commonwealth prove to the jury's satisfaction
beyond a reasonable doubt, the corpus delicti of the crimes charged." Id.
(internal quotation marks and citation omitted).
4 Corpus delicti, "the body of the crime," is defined as "a wrong committed
by criminal means, and consisting of the occurrence of a loss or injury, and
some person's criminal conduct as the source of that loss or injury."
Commonwealth v. Ware, 329 A.2d 258, 274 (Pa. 1974).
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"The relevant inquiry for [an appellate court,] when reviewing a trial
court's failure to give a jury instruction, is whether such charge was
warranted by the evidence in the case." Commonwealth v. Baker, 963
A.2d 495, 506 (Pa. Super. 2008).
In reviewing a challenge to the trial court's refusal to give a
specific jury instruction, it is the function of this Court to
determine whether the record supports the trial court's decision.
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case. A jury charge
will be deemed erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue. A charge is considered
adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties
and its refusal to give a requested charge does not require
reversal unless the [a]ppellant was prejudiced by that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(citation omitted).
"The corpus delicti rule places the burden on the prosecution to
establish that a crime has occurred before a confession or admission of the
accused connecting him to the crime can be admitted." Commonwealth v.
Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005).5 The purpose of this rule is
to prevent the hasty and unguarded character that often attaches to
5 We note that "the order in which evidence is presented is a matter
committed to the trial court's discretion, and its rulings will not be disturbed
absent an abuse of that discretion." Commonwealth v. Edwards, 903
A.2d 1139, 1158 -59 (Pa. 2006).
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confessions and admissions and the consequent danger of a conviction
where no crime has in fact been committed. Commonwealth v. Otterson,
947 A.2d 1239, 1249 (Pa. Super. 2008). However, our Pennsylvania
Supreme Court has explained that "the corpus delicti rule should not be
viewed as a condition precedent to the admissibility of the statements or
confessions of the accused. Ware, 329 A.2d at 274 n.41; accord,
Commonwealth v. Taylor, 831 A.2d 587, 590 -91 (Pa. 2003).
Rather, the rule seeks to ensure that the Commonwealth has
established the occurrence of a crime before introducing the
statements or confessions of the accused to demonstrate that
the accused committed the crime. The rule was adopted to
avoid the injustice of a conviction where no crime exists . . . .
The fact that a crime has been committed by someone must be
shown before a confession will be received.
Taylor, 831 A.2d at 590 -91 (citation and internal quotation marks omitted).
A person commits the crime of disorderly conduct if, "with the intent to
cause public inconvenience, annoyance or alarm[,] or recklessly creating a
risk thereof, he ... makes an obscene gesture[,] or ... creates a physically
offense condition by any act which serves no legitimate purpose of the
actor." 18 Pa.C.S.A. § 5503(a)(3), (4). In a prosecution for open lewdness,
the corpus delicti consists of proof that the person "does any lewd act which
he knows is likely to be observed by others who would be affronted or
alarmed." 18 Pa.C.S.A. § 5901.
As the trial court observed in its Opinion,
Officer [] Coppola ... testified that on August 7, 2014[,] at
around 3:30 a.m., he received a radio call of a suspicious vehicle
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at Kidwelly Court .... When he was investigating, he observed
[Chance] in the parking lot of the development wearing only
black bedroom slippers, pink girl's underwear on his body, and
purple girl's panties pulled over his head. He then saw [Chance]
apply gel to his groin area and begin to masturbate.
Trial Court Opinion, 1/29/16, at 3; see also N.T., 5/13/15, at 13 -14
(wherein Officer Coppola described his encounter with Chance). Further, at
trial, Officer Coppola testified that
I did ask [Chance] if he had just pulled into the court because I
had at some point told him that that's -we were there
investigating a suspicious vehicle that had pulled in, and that he
said no, he's been home for a while and he lives right there, and
he had pointed to his residence[,] which he was directly in front
of.
N.T., 5/13/15, at 19.6 Thus, the Commonwealth presented evidence,
independent of Chance's inculpatory statement, that Chance had left his
residence, attired in pink underwear and wearing purple underwear on his
head, to rub his groin area in a public parking lot. Under these
circumstances, we agree with the trial court's determination that a corpus
delicti jury instruction was not warranted, as the Commonwealth had
established the crimes by independent evidence. See Trial Court Opinion,
1/29/16, at 4.
6 Chance's statement that he had been at his residence is not inculpatory.
Accordingly, the corpus delicti rule does not apply. See Commonwealth v.
Persichini, 737 A.2d 1208, 1213 (Pa. 1999) (recognizing that only
inculpatory statements are subject to the corpus delicti rule, but equally
dividing as to whether the two -tiered approach to the corpus delicti rule
should be abandoned).
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Chance next claims that the trial court improperly failed to advise him
of his right to file post- sentence motions and an appeal, pursuant to
Pa.R.Crim.P. 7047 and 720.8 Brief for Appellant at 15 -16. Chance claims
that there is "no excusing such a fundamental breakdown in judicial,
statutory and constitutional due process." Id. at 16. Further, Chance
argues that the trial court improperly allowed his counsel to withdraw on the
day that the post- sentence Motion was denied. Id. at 17. Chance argues
that the trial court "stranded him without counsel with the appeal clock
ticking." Id. Therefore, Chance asserts, this Court should remand the case
for resentencing, so that the errors can be corrected. Id. at 19.
Our review of the record discloses that Chance, assisted by counsel,
timely filed his post- sentence Motion. Thus, the remedy of a remand so the
court could properly advise Chance of his right to file a post- sentence motion
is moot.
Regarding Chance's claim that the trial court improperly permitted his
counsel to withdraw prior to filing a notice of appeal, the trial court stated
the following:
7 Rule 704 requires, inter a /ia, that at sentencing, a trial judge "shall
determine on the record" that the defendant has been advised of his right to
file a post- sentence motion and the applicable time limitations, as well as
the right to the assistance of counsel in preparing such motions.
Pa.R.Crim.P. 704(C)(3).
8
Rule 720 sets forth the post- sentence procedures to be followed by the
trial court and the timing applicable for post- sentence motions and the filing
of a notice of appeal.
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[Chance] fails to acknowledge, however, that on the same date
his Motion for Post -Sentence Relief was decided, the court also
entered an Order permitting defense counsel to withdraw. In
that Order dated September 9, 2015, [Chance] was directed to
promptly apply for representation by the Chester County Public
Defender's Office. As of the date of [the trial court's] Opinion
(more than four (4) months later), [Chance] has failed to do so.
He also has not filed a motion to proceed in forma pauperis.
Thus, [Chance's] failure to be represented by counsel during the
pendency of this appeal is a result of [Chance's] failure to apply
for representation by the Public Defender's Office and /or to
obtain private counsel on his own.
As [Chance] filed timely appeal in this matter and
a
suffered no prejudice[] by the trial judge's failure to advise him
of his appellate rights, this allegation of error does not entitle
him [to] any relief.
Trial Court Opinion, 1/29/16, at 6. We agree, and affirm on this basis.9 See
id.
Finally, Chance argues that the trial court unduly impaired his right of
allocution at the sentencing hearing. Brief for Appellant at 19. Chance
takes exception to the trial court's interruptions of his statements at the
sentencing hearing. Id. at 22.
The failure to grant a defendant the right of allocution constitutes legal
error. See Commonwealth v. Jacobs, 900 A.2d 368, 376 -77 (Pa. Super.
2006) (en banc). However, like most legal errors, a claim that the
defendant was denied his right to allocution is nevertheless waivable if not
raised before the trial court. Id.
9 We further note that Chance is presently represented by counsel, and has
not set forth any additional issues that he would have raised had he been
properly advised pursuant to Pa.R.Crim.P. 704 and 720.
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Here, Chance exercised his right of allocution at sentencing. See N.T.,
8/25/15, at 16 -17 (wherein, after the trial court informed Chance that it had
received and read Chance's letter to the court and the pre- sentence
investigation report, Chance expressed his shame over the incident). When
specifically asked whether Chance wished to address the sentence, Chance
responded in the negative. Id. at 21. Thus, Chance was afforded his right
of allocution regarding his sentence, but waived his right of further allocation
regarding the sentencing. As such, Chance's claim lacks support in the
record, and is waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be
raised for the first time on appeal).
Judgment of sentence affirmed.
Judgment Entered.
J:seph D. Seletyn,
Prothonotary
Date: 10/24/2016
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