J-S80024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MYRON M. COWHER, II :
:
Appellant : No. 3297 EDA 2016
Appeal from the Judgment of Sentence October 7, 2016
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000422-2014
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 06, 2018
Myron M. Cowher, II (“Appellant”) appeals from the judgment of
sentence imposed by the Court of Common Pleas of Pike County after a jury
found him guilty of multiple offenses related to an attempted election fraud.
We affirm.
This case arises out of Appellant’s fraudulent voting scheme in the
2014 Wild Acres Community Association election. Appellant and his co-
defendant, Dmitry Kuperschmidt,1 planned to cast ballots for historically
non-voting property owners of the Wild Acres Community in order to
influence the election results. Appellant went to trial in May of 2016 on 217
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1 Dmitry Kuperschmidt appealed his judgment of sentence at 3295 EDA
2016. We addressed his claims of error in a separate memorandum.
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counts, including forgery, identity theft, criminal use of a communications
facility, tampering with records or identification, criminal attempt, and
criminal conspiracy.2 The jury convicted Appellant on all 217 counts.
On August 11, 2016, the trial court sentenced Appellant to
incarceration for an aggregate term of eighteen months to four years. The
Commonwealth filed a motion for reconsideration. Following a hearing, the
trial court granted the Commonwealth’s request for an amendment of the
maximum sentence to fifty months to reflect the correct total of each
individual sentence; however, the trial court denied the Commonwealth’s
request for an additional sentence of probation. The trial court entered an
amended sentencing order on October 7, 2016, indicating the correct
maximum sentence of fifty months and affording Appellant credit for 143
days of time served.3 This appeal followed. Appellant and the trial court
complied with Pa.R.A.P. 1925.
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2 18 Pa.C.S. §§ 4101(a)(2), 4120(a), 7512(a), 4104(a), 901, and 903,
respectively.
3 The jury convicted Appellant on multiple counts of criminal attempt and
criminal conspiracy related to the substantive offenses of forgery, identity
theft, and tampering with records or identification. However, “[a] person
may not be convicted of more than one of the inchoate crimes of criminal
attempt, criminal solicitation or criminal conspiracy for conduct designed to
commit or to culminate in the commission of the same crime.” 18 Pa.C.S. §
906. Although the trial court originally sentenced Appellant on the attempt
and conspiracy convictions, it also amended the original sentencing order on
October 7, 2016, to remove the sentences for the conspiracy convictions as
to comply with 18 Pa.C.S. § 906. Order, 10/7/16, at 4–5.
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On appeal, Appellant states a single issue for our consideration:4
1. Did the lower court err when it refused to re-open the case in
order to allow [Appellant] to exercise his right to testify when
the request was made before closing arguments and where
the court failed to colloquy him before the defense rested,
refused to consider the substance of the proposed testimony
and otherwise failed to inquire as to whether a miscarriage of
justice would occur in the absence of his testimony?
Appellant’s Brief at 4. As this issue involves Appellant’s constitutional right
to testify, it is a question of law; thus, our standard of review is de novo,
and our scope of review is plenary. Commonwealth v. Baldwin, 58 A.3d
754, 762 (Pa. 2012) (citation omitted) (“Baldwin II”).
Our Supreme Court has explained that:
[a] criminal defendant’s right to testify has its source in the
Fifth, Sixth, and Fourteenth Amendments of the United States
Constitution, as well as Art. I, § 9 of the Pennsylvania
Constitution. This right is not unfettered, however, and there are
limitations on its exercise, such as the accommodation of
legitimate interests in the trial process. Accordingly, the
reopening of a case after the parties have rested, for the taking
of additional testimony, is within the trial court’s discretion; this
Court has couched the exercise of this discretion in terms of
preventing a failure or miscarriage of justice.
Baldwin II, 58 A.3d at 763 (internal brackets and citations omitted). See
also Commonwealth v. Tharp, 575 A.2d 557, 558–559 (Pa. 1990) (“[A]
trial court has the discretion to reopen a case for either side, prior to the
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4 Although Appellant presented six issues for the trial court’s review, he only
presents one issue on appeal to this Court. Thus, we consider the other five
issues waived. Commonwealth v. Yocolano, 169 A.3d 47, 53 n.7 (Pa.
Super. 2017).
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entry of final judgment, in order to prevent a failure or miscarriage of
justice.”)). Furthermore:
[w]e will deem a trial court to have abused its discretion only if
we determine that the trial court’s ruling exhibited manifest
unreasonableness, partiality, prejudice, bias or such lack of
support as to render it clearly erroneous. We will not condemn
a trial court’s ruling as an abuse of discretion merely
because we might have reached a different conclusion
had the decision been ours in the first instance.
Commonwealth v. Baldwin, 8 A.3d 901, 903–904 (Pa. Super. 2010)
(“Baldwin I”) (quoting Commonwealth v. Bango, 742 A.2d 1070, 1072
(Pa. 1999) (citation omitted) (emphasis in original)). Finally, “there is no
requirement that the trial court conduct an on-the-record colloquy when a
defendant waives his right to testify.” Id. at 907 n.5 (citing
Commonwealth v. Duffy, 832 A.2d 1132, 1137 n.3 (Pa. Super. 2003)
(citation omitted)).
The Baldwin II Court upheld this Court’s framework for reviewing the
denial of a defense request to reopen its case. Baldwin II, 58 A.3d at 763–
764. That framework involved weighing a defendant’s “right to testify after
the close of evidence against the need for order and fairness in the
proceedings” to determine if the trial court abused its discretion in allowing
the testimony. Baldwin I, 8 A.3d at 910. We considered several factors
specific to the facts of Baldwin I that are also present in the case at hand:
both cases were jury trials; the defense motions occurred after the trial
court had informed the jury that the defense had rested, the evidence was
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closed, and proposed instructions had been provided; the defense motions
occurred before closing arguments and the trial court’s final charge; and the
Commonwealth’s rebuttal witnesses were no longer available.5
Here, at the conclusion of the Commonwealth’s case-in-chief on Friday
afternoon, Appellant chose not to testify or to present any evidence. N.T.,
5/20/16, at 230. On the following Monday morning, defense counsel
addressed the trial court:
ATTORNEY BARON: . . . I will be making a Motion to Re-
open my case. My client is now requesting or I should say
demanding that he take the stand and testify. He indicated to
me that he was not in the right state of mind on Friday due to
the medications he was provided on Thursday. I guess over the
weekend he had the opportunity to adapt to his medicines or
come off those medications and apparently come to the right
state of mind. So that is my Motion Judge.
* * *
THE COURT: Okay well I will tell you what my decision will
be in a second but I have not had this specific scenario come up
before but is there any case law that you want to refer me to
because I just want to ask you before I make my decision.
ATTORNEY BARON: Judge I guess that I just—like I said I
found this out walking into Court this morning. I would just like
for the record to indicate that my client on Friday was on
Gabapentin, Cyclobenzaprine and prednisone my understanding
they are Neurontin, Flexural and Duratocin; those are the drugs
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5 Additionally, we considered that defendant Baldwin did not want to testify;
rather, he wanted to address the jury without being subject to cross-
examination in order to bolster his insanity defense. Baldwin I, 8 A.3d at
910. Moreover, defendant Baldwin “presented no excuse to explain his
change of tack.” Id.
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he was on, narcotics or whatever they are Your Honor. That is
all I have to say for the record.
THE COURT: Well what the Court will do is deny the
Motion. Suffice it to say I think that sufficient time has lapsed to
make that decision and the Court made it very clear when I
indicated that the evidence was closed and I think based upon
everything that the time has passed for Mr. Cowher to make that
decision and the prejudice that might result from the
Commonwealth in allowing the case to be reopened. I will deny
the Motion but it is noted of record.
ATTORNEY BARON: Thank you, Your Honor.
N.T., 5/23/16, at 3–5. Unlike defendant Baldwin, Appellant was “demanding
to testify,” and he explained his change of mind as the result of adapting to
new medications over the weekend. N.T., 5/23/16, at 3. Yet, at no time
before or on Friday, May 20, 2016, did Appellant identify his medications as
an impediment to testifying.
The trial court disposed of Appellant’s challenge as follows:
Under Pennsylvania law, it is within the Trial Court’s
discretion to reopen a case, “in order to prevent a failure or
miscarriage of justice.” Commonwealth v. Tharp, 575 A.2d 557,
558 (Pa. 1990). The [c]ourt’s decision will be upheld as long as
there is not an abuse of discretion. See Commonwealth v.
Baldwin, 58 A.3d 754, 759 (Pa. 2012) [(Baldwin II)].
* * *
[Appellant] argues that under [Baldwin II], this [c]ourt did
not make a sufficient inquiry into the value of [Appellant’s]
testimony or how the Commonwealth would be prejudice[d] by
the reopening of the case. [Appellant] further asserts that this
[c]ourt erred by failing to colloquy [Appellant] about his decision
not to testify prior to the close of evidence.
* * *
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We respectfully submit that under [Baldwin II] this [c]ourt
appropriately denied [Appellant’s] Motion to reopen the case.
The [c]ourt would particularly note that just as in [Baldwin II],
[Appellant] here asserted his right to testify after the jury had
been informed that the defense had rested and his assertion
came just before closing arguments were to begin on a Monday
after a weekend break. As in [Baldwin II], the [c]ourt had
already received requests for points for charge and had prepared
its final jury instructions. In addition, the [c]ourt had advised
the jury and the parties on the close of trial on the preceding
Friday that the testimony and evidence were closed and that trial
would resume on Monday with closing arguments and the
[c]ourt’s final charge. Further, there was an indication from
Assistant District Attorney Bruce DeSarro, Esq. that the
Commonwealth would be prejudiced by [Appellant’s] testimony
because rebuttal witnesses were no longer available. N.T.
05/23/14 at 3–4.
This [c]ourt also notes that, while certainly not dispositive
of [Appellant’s] request to reopen his case, ample
accommodation was made to the parties, including [Appellant],
to present testimony and evidence in this trial. The parties had
estimated that trial would last approximately three (3) days
when in fact, it went into a fourth day of trial with the time
between days three (3) and four (4) being an intervening
weekend. The case had been pending for almost two (2) years
before going to trial providing sufficient time to prepare including
deciding whether to present testimony. Further, the [c]ourt had
granted [Appellant’s] request to adjourn the end of the morning
session and the entire afternoon session of day two (2) of trial to
attend a medical appointment.
Although unlike in [Baldwin II], [Appellant] did provide a
reason for his failure to testify during the defense’s case, namely
that he was not in the “right state of mind” due to medications
that were prescribed the day before. Id. at 3. However, the
[c]ourt found this excuse to be dubious since no prior concerns
were raised about the issue of [Appellant’s] understanding of his
right to testify.
Finally, this [c]ourt would note that unlike in [Baldwin II],
no colloquy of [Appellant] was necessary here. The defendant in
[Baldwin II] asserted that he wished to address the jury without
cross-examination in order to bolster his insanity defense. Id. at
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764. Given this assertion the trial court determined that an on-
the-record colloquy of the defendant was a necessary measure
for insuring that the defendant was knowingly giving up his right
to testify. Id. at 756. Here, no such concerns existed and
therefore a colloquy of [Appellant] was not necessary to
determine that he understood his right to testify and the
implications of giving up that right.
Trial Court Opinion, 1/10/17, at unnumbered 15, 17–18.
Upon review, we discern no abuse of the trial court’s discretion, i.e.,
no manifest unreasonableness, partiality, prejudice, bias, or such lack of
support as to render the trial court’s ruling clearly erroneous. In denying
Appellant’s motion, the trial court considered that: (1) it had advised the
jury and the parties on the preceding Friday that the testimony and evidence
were closed and that closing arguments and the final charge would take
place on Monday; (2) it had already received requests for points for charge
and had prepared its final jury instructions; (3) re-opening the case would
cause prejudice to the Commonwealth; (4) Appellant had two years to
decide if he would testify; and (5) the trial court did not believe the reason
for Appellant’s change of mind about testifying. Trial Court Opinion,
1/10/17, at unnumbered 17–18. These factual findings are supported by the
record, N.T., 5/20/16, at 238; N.T., 5/23/16, at 2–5. Moreover, the trial
court’s legal conclusion is supported by this Court’s decision in Baldwin I:
[T]he potential for disruption or prejudice in the proceedings,
upon reopening the evidence to allow Appellant to testify, would
not be insignificant. . . . [R]eopening the evidence may have
confused the jurors, as the Appellant had expressly rested its
case in the presence of the jury. Also, through his testimony,
Appellant would have had the opportunity to raise issues
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warranting a response or follow-up from the Commonwealth.
The Commonwealth had previously presented its rebuttal
witness, rested its case and dismissed its witnesses. Thus,
allowing Appellant’s testimony could have resulted in potential
prejudice to the Commonwealth or significant delay in the trial
proceedings. . . . [T]he parties here had begun preparing jury
instructions, the jury was about to be given instructions,
summations were to begin, and potential rebuttal witnesses had
been released.
Baldwin I, 8 A.3d at 911 (internal citation omitted). Accord Baldwin II,
58 A.3d at 765 (“Likewise, we agree with the Superior Court’s conclusion
that the potential for disruption or prejudice in the proceedings outweighed
any value appellant’s testimony may have had.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/18
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