Commonwealth v. Bethea

J-S61044-17

2018 PA Super 93

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

HILLARD BETHEA,

Appellant No. 3454 EDA 2014

Appeal from the Judgment of Sentence November 21, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0005123-2008

BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

OPINION BY PLATT, J.: FILED APRIL 23, 2018

Appellant, Hillard Bethea, appeals from the judgment of sentence

imposed following his jury conviction of rape, aggravated assault, and

related crimes. He claims the court erred in denying his pre-trial motion to

dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600(A)(2)(e).

Appellant also challenges the trial court’s grant of the Commonwealth’s

motion in limine to preclude his counsel’s continued reference to him as “an

innocent man” during voir dire. We affirm.

We derive the facts of the case from the trial court’s opinion and our

independent review of the record. (See Trial Court Opinion, 11/23/15, at 4-

6).
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The underlying facts are not in direct dispute in this appeal.1 During

the early morning hours of Thursday, March 13, 2008, Appellant left his

home in Elkins Park, Montgomery County and drove a stolen van into the

Kensington section of Northeast Philadelphia.2 There, he solicited a

prostitute, the victim. She agreed to provide a combination of oral and

vaginal sex (with a condom), for forty dollars.3 (See N.T. Trial, 11/03/10, at

6).4 The two drove off in the stolen van, and after stopping at a store for

Appellant to buy the condom, they went to a nearby parking lot.

____________________________________________

1 At trial, however, Appellant and the victim presented diametrically opposed
versions of the incident. The victim testified that she was a prostitute
brutally attacked by an aggressive, violent first-time customer. Appellant
claimed he already knew the victim as the relative of an acquaintance. He
testified that she lured him with the offer of sex into an armed robbery by a
“Spanish dude” and an African American. (N.T. Trial, 1/29/14, at 90).
When he fended them off, Appellant claimed, the victim came to their
assistance, and he had to fight her back in self-defense. (See also,
generally, id. at 69-192).

2 At the time of these crimes, Appellant was apparently on parole and
restricted to home confinement at his Mother’s house for a prior unrelated
conviction of vehicular homicide.

3 At the first trial, the victim admitted that she initially lied to the police
detectives of the Special Victims Unit, reporting that she had only accepted a
free ride from Appellant, on her way home after visiting a girlfriend. (See
N.T. Trial, 11/03/10, at 30-32). The victim claimed she lied because she
was embarrassed about being a prostitute and fearful of arrest. (See N.T.
Trial, 11/04/10, at 7).

4 Several of the trial transcripts are inconsistently dated, e.g., as both
November 3, 2010 and November 3, 2013. Where the dates are ambiguous,
we have tried to adopt the date that seems most logical and probable in
context.

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While having sex in the back of the van, Appellant removed the

condom he was wearing and proceeded to urinate on the victim as well as

continue vaginal intercourse, now unprotected. The victim protested these

and other related acts and began to fight with Appellant. He punched her

face with his fists. (See id. at 14-15). When they heard another car start

up, the victim tried to get the attention of the other motorist by kicking and

yelling loudly. Appellant tied a rope around her neck, knotted it, and pulled

it from both sides, choking her. (See id. at 17-18).

Appellant then ran to the front of the van and began to drive way. The

victim followed him to the front of the van. She tried to get out, but the

doors were locked. While driving erratically, Appellant pulled out a thirteen-

inch serrated commercial grade kitchen knife and began stabbing at the

victim over his right shoulder.5 She suffered stab wounds to her left leg,

thigh, calf, buttock, and palm, right arm, and face. Color photographs

introduced by the Commonwealth as trial exhibits confirm that the stab

injuries were numerous, deep, and severe. (See Commonwealth Exhibits C-

9 through C-27; see also N.T. Trial, 11/03/10, at 20-22; 29-30). The

victim testified that she thought she was going to die. (See N.T. Trial,

11/03/10, at 21; see also N.T. Trial, 1/28/14, at 14-15).

____________________________________________

5DNA testing later confirmed that blood found on the knife retrieved by the
police matched the DNA of the victim.

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Then the victim saw a ballpeen hammer on the floor of the van. She

picked it up and began hitting Appellant with it in the area of his right eye,

until he crashed the van into a pole. (See N.T. Trial, 11/03/10, at 22-23).6

The victim, naked except for socks and sneakers, tried to retrieve her

clothes, but Appellant would not let her, punching her in the face. He drove

off, leaving her behind, naked and bleeding.

Onlookers called the police, who found the van in an apartment

parking lot and confirmed it was stolen. They then traced Appellant through

the identification he had left in his wallet on the floor of the van. The victim

also identified Appellant from a photo array. Cheltenham police arrested

Appellant at his home in Elkins Park on a warrant from the Philadelphia

police.

On November 1, 2010, Appellant waived his right to a jury and

proceeded to a bench trial. In the middle of the trial, on November 4, 2010,

the parties agreed to a negotiated open plea in which Appellant would plead

guilty to aggravated assault, possession of an instrument of crime, and

unauthorized use of an automobile. In return, the Commonwealth agreed to

withdraw the charges of attempted murder, rape, and aggravated indecent

assault.

____________________________________________

6Notably, Appellant lost his right eye as a result of the confrontation. (See
N.T. Trial, 11/04/10, at 16; N.T. Trial, 1/29/14, at 125).

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On February 15, 2011, the trial court imposed an aggregate sentence

of not less than seven nor more than twenty years of incarceration in a state

correctional institution. Appellant was extremely upset, and had to be

subdued by the sheriff staff.7 Appellant filed a pro se motion to withdraw his

plea of guilty on February 24, 2011. He claimed, inter alia, that he had not

been properly informed of the maximum possible sentence, and in fact, had

been assured of a lighter sentence, the sixty-four months’ imprisonment.

The trial court denied the motion to withdraw the plea. Appellant appealed.

On July 11, 2012, a predecessor panel of this Court, noting

discrepancies in the maximum length of sentence stated in the written and

oral guilty plea colloquies, vacated Appellant’s judgment of sentence and

remanded for trial. (See Commonwealth v. Bethea, 55 A.3d 131 (Pa.

Super. 2012) (unpublished memorandum)).8

____________________________________________

7 Sentencing proceedings were delayed due to the emergency. Appellant
confronted his attorney, and apparently threw his artificial eye (ocular
prosthesis) across the courtroom. (See Trial Ct. Op., at 2 n.1; see also
N.T. Sentencing, 2/15/11, at 40-41). It is not clear from the transcript
whether Appellant physically attacked counsel or only threatened him.
Appellant claimed he was told he would get no more than sixty-four months’
imprisonment. (See N.T. Sentencing, 2/15/11, at 38-41). Counsel replied
that he had only “hoped” Appellant would get sixty-four months. (Id. at
38).

8 Both the written and the oral colloquies incorrectly indicated that Appellant
faced a maximum sentence of thirteen and a half years of incarceration.
The predecessor panel rejected the trial court’s reasoning that other
statements in the colloquies both directly and by inference correctly advised
Appellant of the possibility of a much higher sentence. The trial court judge
(Footnote Continued Next Page)

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After remand, the trial court held a hearing on various motions, on

May 2, 2013. These included a motion to dismiss pursuant to Pa.R.Crim.P.

600(A)(2)(e) and (D) for lack of a prompt trial, and a motion in limine to

preclude reference to prior convictions. Appellant also filed a motion for

recusal. After a lengthy discussion between the trial court judge, counsel,

and Appellant, he refused a renewed plea offer from the Commonwealth and

opted for a jury trial.9 (See N.T. Motions Hearing, 5/02/13, at 18). The

judge declined to recuse herself, noting that in a jury trial the jury, not she,

would be the finder of fact. (See id. at 48).

It bears noting, in light of Appellant’s Rule 600 claims, that the trial

court judge offered a trial date on the following Monday, (see id. at 13) (“So

we can set it for trial for Monday, if you want”), which would have been May

6, 2013; or a month later, on June 3 (see id. at 49). Newly appointed

defense counsel declined, asking for more time to review discovery. (See

id. at 50-51).
(Footnote Continued) _______________________

accepted responsibility for the misstatements about maximum sentencing
contained in the colloquies. (See N.T. Motions Hearing, 5/02/13, at 21-22)
(“It’s my mistake that I didn’t see it”; see also id. at 41).

9 In an apparent effort to avoid a claim of double jeopardy, after protracted
discussion, at the suggestion of the trial court, defense counsel moved for a
mistrial (of the prior bench trial), which the court granted with the
understanding that all double jeopardy arguments were waived. (See Trial
Ct. Op., at 2; see also N.T Motions Hearing, 5/02/13, at 47-48). The trial
court judge also denied a motion for recusal. (See N.T. Motions Hearing,
5/02/13, at 48).

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The trial court eventually set a tentative trial date of June 3 anyway,

while recognizing that other trials might require a postponement. In fact,

the June 3 trial did not occur. Because of other scheduled trials, the next

available trial date was in January of 2014.

On January 27, 2014, the trial court began voir dire. During voir dire,

defense counsel introduced Appellant as “an innocent man.” The

Commonwealth made an oral motion in limine to preclude defense counsel

from further reference to Appellant as an innocent man during voir dire.

Defense counsel protested that the grant of the motion infringed on

Appellant’s constitutional presumption of innocence. The trial court granted

the Commonwealth’s motion.

On February 4, 2014, a jury convicted Appellant of aggravated

assault−attempt to cause serious bodily injury; aggravated assault−causing

serious bodily injury; rape; possession of an instrument of crime; and

unauthorized use of a motor vehicle.10 (See Verdict Slip, 2/04/14).

The trial court deferred sentencing several times for the completion of

a pre-sentence investigation report as well as an assessment by the Sexual

Offenders Assessment Board. On November 21, 2014, the trial court found

Appellant to be a sexually violent predator (SVP), requiring lifetime

____________________________________________

10 The jury acquitted Appellant of attempted murder.

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registration,11 and sentenced him to an aggregate term of not less than

twenty-three and a half years nor more than forty-seven years of

____________________________________________

11 It bears noting that the trial court adjudicated Appellant to be a Tier III
SVP under Megan’s Law, not the Sex Offender Registration and Notification
Act, 42 Pa.C.S.A. §§ 9799.10–9799.41 (SORNA). The sentencing
proceeding and SOAB assessment are not included in the record before us.
Nevertheless, the relevant docket entry and sentencing order confirm the
trial court’s reliance. (See docket entry at 11/21/14; see also Order of
Sentence, 11/21/2014, at 1; Order, 12/03/14; Trial Ct. Op., 11/23/14, at
3). Briefly summarized for purposes of our review, Megan’s Law I was
enacted on October 24, 1995 and became effective 180 days later. Megan’s
Law II was enacted on May 10, 2000 after Megan’s Law I was held
unconstitutional in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).
Some parts of Megan’s Law II were held unconstitutional in
Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003). The
General Assembly responded by enacting Megan’s Law III on November 24,
2004. Megan’s Law III was also struck down by our Supreme Court, for
violating the single subject rule of Article III, Section 3 of the Pennsylvania
Constitution. See Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa.
2013). The United States Congress expanded the public notification
requirements of state sexual offender registries in the Adam Walsh Child
Protection and Safety Act of 2006, 42 U.S.C. §§ 16901–16945. The
Pennsylvania General Assembly responded by passing SORNA, with the
stated purpose of “bring[ing] the Commonwealth into substantial compliance
with the Adam Walsh Child Protection and Safety Act of 2006.” 42 Pa.C.S.A.
§ 9799.10(1).

We recognize that recently, in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017) (Opinion Announcing the Judgment of the Court), our
Supreme Court decided that SORNA, as applied retroactively to Muniz, was
unconstitutional under the ex post facto clauses of the United States and
Pennsylvania constitutions. See id. at 1192. In reliance on the holding in
Muniz, a panel of this Court subsequently decided that registration
requirements under SORNA are unconstitutional. See Commonwealth v.
Butler, No. 1225 WDA 2016 (Pa. Super. Oct. 31, 2017). However, since the
trial court here did not rely on SORNA, we conclude that neither Muniz nor
Butler apply to nor control our disposition. Moreover, our General Assembly
has provided that: “To the extent practicable and consistent with the
requirements of the Adam Walsh Child Protection and Safety Act of 2006,
(Footnote Continued Next Page)

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incarceration in a state correctional institution. (See Order of Sentence,

11/21/14).12 Appellant timely appealed, on December 7, 2014.

After receipt of trial transcripts, Appellant timely filed a statement of

errors. The trial court filed an opinion on November 23, 2015. See

Pa.R.A.P. 1925.

Appellant raises two questions on appeal:

1) Whether the [t]rial [c]ourt erred by denying
[A]ppellant’s motion to dismiss pursuant to Rule
600(A)(2)(e) of the Pa. Rule[s] of Criminal Procedure?

2) Whether the [t]rial [c]ourt erred by prohibiting
counsel for [A]ppellant from referring to [Appellant] as an
innocent man during voir dire?

(Appellant’s Brief, at 4).

Appellant first contends that the trial court erroneously added thirty-

two days to the adjusted run date of January 19, 2014, because that period

was not attributed to the defense on the record. (See id. at 13-14). He

also argues that the court did not certify on the record that its earliest

(Footnote Continued) _______________________

this subchapter shall be construed to maintain existing procedures regarding
registration of sexual offenders who are subject to the criminal justice
system of this Commonwealth.” 42 Pa.C.S.A. § 9799.10(4). Finally, we
take judicial notice that nothing in the record before us suggests that
Appellant received an enhanced sentence based on an SVP designation, or
that his tier assignment (Tier III) would change one way or the other based
on the Muniz/Butler rationale.

12 The trial court also filed a formal order finding Appellant to be a sexually
violent predator on December 3, 2014.

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available jury trial date was January 27, 2014. He maintains that the trial

court erroneously extended the adjusted run date to February 20, 2014. He

assumes the correct adjusted run date was still January 19, 2014. From this

assumption, Appellant posits that he was not brought to trial within the time

limits imposed by Rule 600. He argues his sentence should be vacated and

the case against him dismissed. (See id. at 20). We disagree.

We review Appellant’s Rule 600 argument according to the
following principles:

In evaluating Rule [600] issues, our standard of
review of a trial court’s decision is whether the trial court
abused its discretion. Judicial discretion requires action in
conformity with law, upon facts and circumstances
judicially before the court, after hearing and due
consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the
record, discretion is abused.

The proper scope of review is limited to the evidence
on the record of the Rule [600] evidentiary hearing, and
the findings of the [trial] court. An appellate court must
view the facts in the light most favorable to the
prevailing party.

Additionally, when considering the trial court’s ruling,
this Court is not permitted to ignore the dual purpose
behind Rule [600]. Rule [600] serves two equally
important functions: (1) the protection of the accused’s
speedy trial rights, and (2) the protection of society. In
determining whether an accused’s right to a speedy trial
has been violated, consideration must be given to society’s
right to effective prosecution of criminal cases, both to
restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of
Rule [600] was not designed to insulate the criminally

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accused from good faith prosecution delayed through no
fault of the Commonwealth.

So long as there has been no misconduct on the
part of the Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule
[600] must be construed in a manner consistent
with society’s right to punish and deter crime. In
considering [these] matters . . ., courts must carefully
factor into the ultimate equation not only the prerogatives
of the individual accused, but the collective right of the
community to vigorous law enforcement as well.

Commonwealth v. Wendel, 165 A.3d 952, 955–56 (Pa. Super. 2017)

(case citation omitted) (emphases added).

In pertinent part, Rule 600 provides:

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed
to commence on the date the trial judge calls the case to
trial, or the defendant tenders a plea of guilty or nolo
contendere.

(2) Trial shall commence within the following time
periods.

* * *

(e) When an appellate court has remanded a case to
the trial court, the new trial shall commence within 365
days from the date of the written notice from the appellate
court to the parties that the record was remanded.

Pa.R.Crim.P. 600(A)(2)(e).

To summarize, the courts of this Commonwealth employ
three steps . . . in determining whether Rule 600 requires
dismissal of charges against a defendant. First, Rule 600(A)
provides the mechanical run date. Second, we determine
whether any excludable time exists pursuant to Rule 600(C).

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We add the amount of excludable time, if any, to the mechanical
run date to arrive at an adjusted run date.

* * *

Rule 600[ ] encompasses a wide variety of circumstances under
which a period of delay was outside the control of the
Commonwealth and not the result of the Commonwealth’s lack
of diligence. Any such period of delay results in an
extension of the run date. Addition of any Rule 600[ ]
extensions to the adjusted run date produces the final Rule
600 run date. If the Commonwealth does not bring the
defendant to trial on or before the final run date, the trial court
must dismiss the charges.

Wendel, supra at 956 (citation omitted) (emphases added).

It is long-established that judicial delay may serve as a
basis for extending the period of time within which the
Commonwealth may commence trial where the Commonwealth
is prepared to commence trial prior to the expiration of the
mandatory period but the court[,] because of scheduling
difficulties or the like[,] is unavailable.

Commonwealth v. Malgieri, 889 A.2d 604, 607–08 (Pa. Super. 2005)

(citation and internal quotation marks omitted); see also Commonwealth

v. Wroten, 451 A.2d 678, 681 (Pa. Super. 1982) (“A judicial delay is a

justifiable basis for an extension of time if the Commonwealth is ready to

proceed.”) (citation omitted).

Here, in an abbreviated argument, aside from the recitation of general

principles, Appellant presents only one assertion of error in the calculation of

the final run date. (See Appellant’s Brief, at 13-14). Specifically, he states

that the trial court erred in adding thirty–two days to arrive at an adjusted

run date of February 20, 2014.

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The pertinent docket entry confirms that this Court returned the record

on November 29, 2012. Therefore, the Commonwealth had one year, until

November 29, 2013, to commence trial (the mechanical run date). There is

no dispute about a series of intervening continuances. Appellant agrees with

the trial court that as of February 7, 2013, the adjusted run date was

January 19, 2014. (See Trial Ct. Op., at 6; Appellant’s Brief, at 13).

However, Appellant asserts that there is no certification in the record

that January 27, 2014, was the trial court’s earliest available trial date.

Therefore, he posits, the trial court was not entitled to add thirty-two days

(from the May 2, 2013 hearing date to the June 3, 2013 scheduled trial

date) to the adjusted run date. (See Appellant’s Brief, at 14).

Appellant offers no authority for this assumed requirement of judicial

certification. Instead, he merely cites and quotes Pa.R.Crim.P.

600(C)(3)(a)(ii), which on its face applies to continuances requested by a

party and is therefore irrelevant to the proposition for which it is cited.13

____________________________________________

13 Rule 600 provides, in pertinent part:

(3)(a) When a judge or issuing authority grants or denies a
continuance:

* * *

(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for granting or
denying the continuance. The judge also shall record to which
party the period of delay caused by the continuance shall be
(Footnote Continued Next Page)

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Moreover, Appellant’s assertion ignores our standard and scope of

review, which require us to view the facts in the light most favorable to the

Commonwealth as the prevailing party, construing the rule in a manner

consistent with society’s right to punish and deter crime. See Wendel,

supra at 955–56.

In any event, the record confirms that the postponement was plainly

attributable to the schedule limitations of the trial court. Judicial delay is

excludable and not chargeable to the Commonwealth. See Malgieri, supra

at 607–08; Wroten, supra at 681. Appellant’s first claim does not merit

relief.

In Appellant’s second claim, he complains that the trial court’s grant of

the Commonwealth’s motion to preclude repeated reference to him as an

innocent man undermined his presumption of innocence. (See Appellant’s

Brief, at 15-20). We disagree.

We start our analysis with the general principle that the
purpose of the voir dire system is to ensure the empaneling of a
fair, competent, impartial, and unprejudiced jury. To this end,
the scope of a voir dire examination is within the sound
discretion of the trial court; absent a palpable error, we will not
disturb a court’s decision.

(Footnote Continued) _______________________

attributed, and whether the time will be included in or excluded
from the computation of the time within which trial must
commence in accordance with this rule.

Pa.R.Crim.P. 600(C)(3)(a)(ii) (emphases added).

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Commonwealth v. Merrick, 488 A.2d 1, 3 (Pa. Super. 1985) (citations

omitted).

Appellant cites numerous cases in two string citations for general

principles of voir dire. (See Appellant’s Brief, at 15). Nevertheless, he fails

to relate any of them to his specific argument, that the trial court’s

restriction on reference to Appellant as an “innocent man” in voir dire

undermined his constitutional presumption of innocence. (See id., at 15,

19). On that basis alone, Appellant has failed to develop an argument based

on controlling authority in support of his claim, and it is, accordingly,

waived. See Pa.R.A.P. 2119(a), (b).

Moreover, the claim would not merit relief. Appellant fails to prove

any prejudice to his constitutional rights. The trial court explicitly advised

counsel he could argue the presumption of innocence in his opening

statement, and assured counsel she would remind the panel of the

presumption of innocence in her own remarks. (See N.T. Trial, 1/27/14,

Vol. 2, at 15, 17).

Appellant argues that his counsel’s reminder that he is an innocent

man “counter balances the persuasive impact of the allegations against

him[.]” (Appellant’s Brief, at 19). This assertion is not only unsupported by

any authority, it is a misreading of the scope and purpose of voir dire. The

purpose of voir dire is to ensure the empaneling of a fair, competent,

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impartial, and unprejudiced jury. See Merrick, supra at 3. It is not to

counter-balance the negative impact of the charges brought against him.

Finally, it is long-settled that questions on voir dire encompassing legal

principles such as the presumption of innocence are improper. See

Commonwealth v. Kingsley, 391 A.2d 1027 (Pa. 1978) (“The singular

purpose of voir dire examination is to secure a competent, fair, impartial and

unprejudiced jury”) (citation omitted).14

If it is improper for counsel to ask questions about legal principles in

voir dire, it is even more inappropriate for counsel to assume or insinuate

legal principles in voir dire, particularly in verbal shorthand, without proper

context or explanation. It is the function and duty of the trial court, not

counsel, to instruct jurors on the law. See Commonwealth v.

Cunningham, 9 A.2d 161, 164 (Pa. Super. 1939). The trial court did not

abuse its discretion. Appellant’s second claim fails.

____________________________________________

14 See also Commonwealth v. England, 375 A.2d 1292, 1295 (Pa. 1977)
(latitude permitted on voir dire, but inquiry should be strictly confined to
disclosing qualifications or lack of qualifications and “whether or not
the juror had formed a fixed opinion in the case as to the accused’s guilt or
innocence.”) (citations omitted) (emphases added); Commonwealth v.
Richmond, 462 A.2d 1362, 1365 (Pa. Super. 1983) (well-settled that
questions encompassing principles of law such as presumption of innocence
are improper); Commonwealth v. Bright, 420 A.2d 714, 717 (Pa. Super.
1980) (questions regarding juror understanding of specific principles of law
such as presumption of innocence and burden of proof are improper);
Commonwealth v. Everett, 396 A.2d 645, 646 (Pa. Super. 1978)
(questions in nature of legal instruction prohibited).

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Although our reasoning differs somewhat from that of the trial court,

we may affirm on any basis provided that the court’s decision is legally

correct. See Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d

1034, 1049 (Pa. Super. 2015).

Judgment of sentence affirmed.

Judge Lazarus joins the Opinion.

Judge Ransom files a Concurring Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/23/18

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