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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON JUNE WILSON :
:
Appellant : No. 3217 EDA 2016
Appeal from the Judgment of Sentence September 6, 2016
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000597-2014
BEFORE: BOWES, J., LAZARUS, J., and PLATT*, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED JANUARY 19, 2018
I agree with my learned colleagues that the trial court incorrectly
determined that Appellant knowingly and intelligently waived the protections
afforded by Pennsylvania Rule of Evidence 410, which barred any statements
made by Appellant during plea negotiations, and that the error was not
harmless beyond a reasonable doubt. I write separately to set forth my
view that this issue does not present a question of whether Rule 410 was
waived as a part of the plea agreement. Additionally, “Because a successful
sufficiency of the evidence claim warrants discharge on the pertinent crime,
we must address this issue first.” Commonwealth v. Toritto, 67 A.3d 29,
33 (Pa.Super. 2013) (citation omitted).
In reviewing the sufficiency of the evidence of third-degree homicide,
our standard of review is well-settled. Whether the evidence was sufficient
to sustain the charge presents a question of law. Our standard of review
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* Retired Senior Judge assigned to the Superior Court.
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is de novo and our scope of review is plenary. Commonwealth v. Walls,
144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting our
inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).
However, a review of Appellant’s argument demonstrates that it is, in
fact, a weight of the evidence claim. Appellant attacks the credibility of the
witnesses, concluding that “None of these individuals [was] worthy of belief.
All of them had a motive to testify falsely against [Appellant], and to identify
him as the shooter. . . . The countless lies and multiple self-serving versions
of events provided by these individuals are too flawed to be worthy of
belief.” Appellant’s brief at 37. “A claim attacking the weight of the
evidence . . . questions which evidence the fact-finder should have
believed.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). The
jury was free to credit or discredit the testimony as it saw fit for sufficiency
purposes, and we cannot reevaluate its determinations. Therefore,
Appellant’s sufficiency argument fails.
I now address Appellant’s argument regarding the trial court’s denial
of his motion to preclude statements made during plea negotiations. The
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key exchange occurred during a May 21, 2014 meeting between Appellant,
his counsel, two prosecutors, and investigating officers:
[Assistant District Attorney]: We're here today on May 21, 2014
for a proffer involving Brandon Wilson. . . . I talked to your
attorney and essentially I am offering the same thing all the
other persons charged as accomplices in the murder of Darcy
Kravchenko have been offered. And that is, for you to give a
truthful proffer and otherwise cooperate with the investigators in
that case, but whatever you give will be subject to use and
derivative use immunity. We will not be using your
statements against you or evidence derived from your
statements against you in any court proceeding.
Mr. Wilson: Okay.
[Assistant District Attorney]: But it has to be truthful.
Mr. Wilson: Yes I will.
[Assistant District Attorney]: Or everything goes away. In
exchange for which you will be offered a plea of guilty to Murder
in the Third Degree as an Accomplice under 18 Pa. C.S. §
2502(c) and 18 Pa. C.S. § 306. There is no agreement on
sentencing, but the Commonwealth, the District Attorney are not
in opposition to meeting with the Judge and your lawyer in
chambers to get an idea of what exposure you're going to have.
Mr. Wilson: Okay.
Commonwealth’s brief at 9-10 (citing transcript, emphases added).
Appellant also agreed that he would testify against his co-defendants.
He then supplied statements, and later entered a guilty plea to third-degree
homicide as specified during the conversation, with sentencing deferred
pending the outcome of the other cases. However, Appellant later refused
to testify, and the plea was withdrawn. Thereafter, Appellant filed the
motion to preclude, which the trial court denied.
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The Commonwealth concedes that Appellant made these statements
during a plea negotiation process, and therefore they fell within the ambit of
Pennsylvania Rule of Evidence 410, which provides:
(a) Prohibited Uses. In a civil or criminal case, evidence of the
following is not admissible against the defendant who made the
plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made in the course of any proceedings under
Rules 311, 313, 409, 414, 424, 550 or 590 of the Pennsylvania
Rules of Criminal Procedure, Rule 11 of the Federal Rules of
Criminal Procedure, or a comparable rule or procedure of
another state; or
(4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions
did not result in a guilty plea or they resulted in a later
withdrawn guilty plea.
Pa.R.E. 410 (emphases added). Hence, the statements were categorically
inadmissible absent a valid waiver of Rule 410’s protections.
I agree with my learned colleagues that the trial court erroneously
permitted introduction of these statements and that the error was not
harmless beyond a reasonable doubt. The Majority views this issue as
presenting an abuse of discretion. Preliminarily, I recognize that
Commonwealth v. Widmer, 120 A.3d 1023 (Pa.Super. 2015), similarly
viewed the introduction of statements covered by Rule 410 as falling under
the usual abuse of discretion framework concerning evidentiary issues.
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However, that case appeared to actually analyze the validity of the waiver as
a question of law. I submit that Rule 410 affords the trial court no discretion
to admit statements made during plea discussions, absent a waiver. In turn,
whether Appellant waived Rule 410 presents a question of law, which we
review de novo.1 Since the abuse of discretion analysis requires proper
application of the law, the distinction between these points may often be
immaterial. However, for the sake of clarity, I would explicitly hold that a
waiver of Rule 410 must be reviewed as a question of law, and that this
purported waiver failed that test. My reasoning follows.
Our precedents have adopted the analysis of United States v.
Mezzanatto, 513 U.S. 196 (1995), in which the United States Supreme
Court analyzed the federal analog to Rule 410 and concluded that a criminal
defendant may waive its protections. In Mezzanatto, the High Court set
forth the basic facts:
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1
I agree with the United States Court of Appeals for the Fifth Circuit’s
observation regarding the standard of review:
Whether [federal] Rule 410 is waivable with respect to the use of
plea statements in the government's case-in-chief is a legal
conclusion, reviewed de novo. While the government is correct
that a district court's admission of evidence, if objected to, is
reviewed for abuse of discretion, de novo review of attendant
legal issues is a component part of that abuse of discretion
review.
United States v. Sylvester, 583 F.3d 285, 288, n.4 (5th Cir. 2009).
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[Mezzanatto] and his attorney asked to meet with the prosecutor
to discuss the possibility of cooperating with the Government.
The prosecutor agreed to meet later that day. At the beginning
of the meeting, the prosecutor informed respondent that he had
no obligation to talk, but that if he wanted to cooperate he would
have to be completely truthful. As a condition to proceeding
with the discussion, the prosecutor indicated that
respondent would have to agree that any statements he
made during the meeting could be used to impeach any
contradictory testimony he might give at trial if the case
proceeded that far. Respondent conferred with his counsel and
agreed to proceed under the prosecutor's terms.
Id. at 198 (emphasis added). The United States Court of Appeals for the
Ninth Circuit held that the rule’s protections could not be waived. The
Supreme Court disagreed, and ultimately noted that, “[A]bsent some
affirmative indication that the agreement was entered into unknowingly or
involuntarily, an agreement to waive the exclusionary provisions of the plea-
statement Rules is valid and enforceable.” Id. at 210. Therefore,
Mezzanatto, and our acceptance of its principles, stands for the proposition
that Rule 410 may be waived, but the case does not dictate what form a
valid waiver must take.
In any event, the agreement referred to in the foregoing Mezzanatto
quotation is clearly referring to the agreement that “[Mezzanatto] would
have to agree that any statements he made . . . could be used to impeach
any contradictory testimony he might give at trial” as a condition precedent
to plea discussions. Id. at 198. In contrast, the Commonwealth appears to
view the reference to “agreement” as referring to the plea agreement, which
was subsequently withdrawn. “[N]owhere in the record of either pretrial or
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post trial proceedings did the appellant raise the issue of involuntariness as
a basis for invalidating the plea agreement or that his decision to enter into
the plea agreement was unknowing in the first instance.” Appellant’s brief
at 18.
As the Majority notes, there is nothing to indicate the Commonwealth
conditioned its willingness to engage in plea discussions upon Appellant’s
agreement to forego Rule 410’s protections, which was the case in
Mezzanatto. The Commonwealth pays no heed to this distinction, and
instead focuses on the fact that Appellant accepted a plea, which was later
withdrawn.2 “The lower court found that there was no evidence that the
defendant’s entry into the agreement was unknowing or involuntary and as a
result, in light of his breach, the statement under oath could be utilized at
trial.” Id. at 14. By referencing Appellant’s breach, the Commonwealth
appears to view the introduction of his statements as, in effect, damages.
Putting aside the questionable notion that damages for violation of a plea
agreement can justify introducing statements made during a plea
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2
Mezzanatto involved only the introduction of inculpatory statements for
impeachment purposes and not, as occurred herein, as substantive evidence
introduced in the case-in-chief. Justice Ginsburg, joined by Justices
O’Connor and Breyer, filed a concurring statement noting that “a waiver to
use such statements in the case in chief would more severely undermine a
defendant’s incentive to negotiate, and thereby inhibit plea bargaining.” Id.
at 11. However, since the Government did not seek a waiver for those
purposes, the three Justices did not comment further. Our precedents have
accepted that waiver is permissible for both purposes.
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negotiation, the Commonwealth’s conclusion overlooks the crucial point: Did
Appellant waive the exclusionary provisions of Rule 410?
I submit that the answer to that question, as a matter of law, is no. I
glean from the Commonwealth’s brief that it views a breach of any plea
agreement as sub silentio waiving Rule 410. That analysis relegates the rule
to irrelevancy. Any “promise” by the Commonwealth not to use statements
made during plea negotiations at any later trial is superfluous as that is
precisely what Rule 410 already does. The Commonwealth’s “offer” is akin
to foregoing the death penalty in a retail theft case. Moreover, while the
Commonwealth followed up by informing Appellant that “everything goes
away” in the event of non-compliance, that language is remarkably
ambiguous. Such language is equally amenable, if not more amenable, to
an interpretation that the proposed deal for third-degree homicide “goes
away” in the event of non-compliance, i.e., the prosecution would seek to
void the plea, not that the door is open to introducing all his statements. I
would hold that this language failed to serve as a valid waiver of Rule 410.
For these reasons, I do not agree that this issue should be analyzed as
whether the Commonwealth made “waiver of Wilson’s Rule 410 rights a clear
and explicit condition of his plea agreement.” Majority memorandum at 11.
There is a distinction between Appellant’s statements during the plea
discussions versus statements he made at the actual plea hearing under
oath. Technically, no plea existed unless and until the trial court accepted
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the plea. Even if Appellant had agreed to waive his Rule 410 rights with
respect to statements he made at the actual plea hearing, that agreement
would not relate back to the plea discussions themselves. For instance, in
United States v. Escobedo, 757 F.3d 229, 231 (5th Cir. 2014), the Fifth
Circuit analyzed under Mezzanatto whether the Government could
introduce in its case-in-chief “the record statements to which Escobedo
agreed in his plea agreement[.]” Id. at 231 (emphasis added). To assess
whether the Government could introduce those statements, the Court looked
to “[t]he language . . . contained in a section of the plea agreement entitled
“Breach of Plea Agreement.” Id. at 233. Thus, even if Appellant had
actually agreed to waive his Rule 410 rights as part of the actual plea, that
agreement would only permit introduction of statements made during the
plea, not any statements made during discussions leading to the plea. See
Pa.R.E. 410(a)(3) (barring the use of statements made during, inter alia,
guilty plea proceedings).
Finally, I agree that the phrase “[o]r everything goes away” is
inherently ambiguous.3 See Majority memorandum at 11 (concluding that
any ambiguities must be resolved against the Commonwealth). However, I
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3
I note that Appellant states that he “did not get the benefit of his
substantial compliance.” Appellant’s brief at 27. Apparently, Appellant also
views the propriety of introducing his statements as one of contract law, in
that he substantially complied with the plea agreement. However, Appellant
properly alleged that Rule 410 barred the introduction of his statements,
which, as I have stated, poses a question of law.
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am not convinced it is proper to assess any ambiguities in the first instance,
as that suggests we may be inclined to permit introduction of statements
made during plea negotiations even if the waiver was not explicit. I am
troubled by the idea the Commonwealth may introduce statements made
during plea discussions on anything less than a showing that the defendant
was directly informed of the consequences. Compare Mezzanatto, supra
at 198 (“[T]he prosecutor indicated that respondent would have to agree
that any statements he made during the meeting could be used to impeach
any contradictory testimony he might give at trial”); Widmer, supra at
1026 (“So you understand that what you say, if you decide at some point
after you do this proffer with us, that you no longer wish to do it, anything
that's on record here will be used against you.”) (quoting transcript); C.f.
Commonwealth v. Burno, 154 A.3d 764, 773-74 (Pa. 2017) (in first plea
negotiation the defendant was informed that “if the negotiations fell through
or broke down for any reason, any statements that Burno had made would
be used against him at a future trial”). For the foregoing reasons, I concur
in the decision to award a new trial.
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