Com. v. Gadaleta, P.

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

PATRICIA E. GADALETA Appellant No. 373 EDA 2014

Appeal from the Judgment of Sentence November 30, 2012 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0000285-2011

BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.: FILED AUGUST 04, 2014 Appellant, Patricia E. Gadaleta, appeals from the November 30, 2012

following her conviction by a jury of identity theft, and two counts of forgery.1 After careful review, we affirm.

The trial court, in its March 17, 2014 memorandum opinion, has aptly summarized the factual and procedural history of this case, which we need not repeat in full here. In brief, Appellant was charged on September 19,

2011, with the aforementioned charges plus receiving stolen property and

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1 18 Pa.C.S.A. §§ 4120(a), 4101(a)(3), and 4101(a)(2), respectively. The

imposed the same day at trial court docket number CP-13-CR-0000975- 2011. This Court affirmed the judgment of sentence at CP-13-CR-0000975- 2011 at Commonwealth v. Gadaleta, 3502 EDA 2012 (unpublished memorandum, November 6, 2013), appeal denied, 955 MAL 2013 (Pa. May 28, 2014).

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verdict, Appellant filed post-trial motions, seeking judgment of acquittal as to the receiving stolen property charge and seeking a mistrial on the basis of infra. The trial court

conducted a hearing on the motions on November 16, 2012, and granted the motion for judgment of acquittal as to count three, receiving stolen property,

sentenced Appellant on November 30, 2012. Appellant filed timely post- sentence motions on December 10, 2012. Subsequently, Appellant filed a premature appeal, which this Court quashed and remanded for disposition of -sentence motions. Commonwealth v. Gadaleta, 3501 EDA 2012 (unpublished memorandum, November 6, 2013). After remand, ost-sentence motions on January 8, 2014.

Appellant filed a timely notice of appeal on January 23, 2014.2 On appeal, Appellant raises the following questions for our review.

1.

ability to defend herself at trial by advising her that her criminal record would be used against her without having filed a pre-trial motion to determine the admissibility of such record and by advising her that her prior convictions would be used against her at trial and that she could not take the stand without being prejudiced by the prior convictions and fail to explain to defendant that the crimes could only

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2 Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

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be used under the circumstances set forth in 42 Pa. C.S. § 5918(c) Commonwealth v.

Garcia, 551 Pa. 616, 712 A.2d 746 (1998)?

2.

because the sentences imposed in 285 CR 2011 and 975 CR 2011 when imposed consecutively are excessive and do not represent a sentence that is a just punishment or reflects the rehabilitative needs of the defendant?

3. Did the court err in failing to grant [Appellant]

a new trial because the jury foreman was unable to fully understand the evidence because he is illiterate?

trial counsel. 3

Under the standard and for the reasons set forth by the Honorable Joseph J. Matika, in his erudite ineffectiveness of counsel claims are premature and should properly be raised, if necessary, in a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We additionally note, our Supreme Court recently reaffirmed the holding of Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) in Commonwealth v. Holmes, 79 A.3d 562, (Pa. 2013).

deferred to PCRA review; trial courts should not entertain claims of

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3 In her appellate brief, Appellant combined the first two issues presented in her Rule 1925(b) concise statement of errors complained of on appeal into a single question. The trial court discussed both sub-issues together in its Rule 1925(a) opinion.

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ineffectiveness upon postverdict motions; and such claims should not be reviewed Id. at 576. The Holmes Court noted two

that a claim (or claims) of ineffectiveness is both meritorious and apparent

eview

Id. at 577-578.

Commonwealth v. Bomar,

826 A.2d 831 (Pa. 2003), that the Commonwealth and the trial court were obligated to develop a complete record on her ineffective assistance of counsel claim because she presented it in a timely post-sentence motion is Bomar, to the extent it had

direct appeal of a claim of ineffective assistance of counsel if the trial court made a determination based on a fully developed record. Id. at 855. It decidedly did not obligate a trial court to require development of the record or to make a determination. Accordingly, we agree with the trial court that

the instant sentence consecutively to the sentence imposed at trial court

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docket number CP-13-CR-0000975-

the seriousness of the offense and the societal impact without considering the other factors set for Id.

raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discre Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en banc) (internal quotations and citations omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).

The Rules of Appellate Procedure mandate that to obtain review of such claims, the appellant must include in his brief a Concise Statement of Reasons Relied Upon for Allowance of Appeal. See [Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007)]; see also Pa.R.A.P. 2119(f). The must, in turn, raise a

substantial question as to whether the trial judge, in imposing sentence, violated a specific provision of

See

[Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super. 2005)]; Commonwealth v. Ousley, 392 Pa.Super. 549, 573 A.2d 599, 601 (1990)

(citations and internal quotation marks omitted)

sentence are not to be granted as a matter of course, but ... only in exceptional circumstances where it can be shown in the 2119(f) statement that despite the multitude of factors impinging on the sentencing decisions, the sentence imposed

determination of whether a particular issue poses a substantial question is to be made on a case-by-case

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basis. See Fiascki, 886 A.2d at 263. If the Rule 2119(f) statement is absent or if the statement provided fails to demonstrate a substantial question, this Court may refuse to accept the appeal. See id.

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).

Instantly, Appellant preserved her issue in her post-sentence motion and included a Rule 2119(f) statement in her appellate brief. Appellant

comport with sentencing norms by

argument, however, reduces the issue to a mere one-paragraph assertion that the trial court erred in imposing the subject aggregate sentence consecutively to a second sentence Appellant received the same day at docket number CP-13-975-CR- rehabilitative needs. Id. at 15. This fails to raise a substantial question.

[A] bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question. See Commonwealth v.

Moury, 992 A.2d 162, 171 172 (Pa. Super. 2010)

concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).

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Here, the sentence was within the standard range of the guidelines and the trial court imposed the sentence after a full hearing and -sentence report. Appellant offers no development in her brief of any extreme circumstances particular to this This

Court has long recognized that we will not consider issues where Appellant fails to cite to any legal authority or otherwise develop the issue. Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). Further, we agree with the trial

wherein it explains why the particularized sentence entered in this case was appropriate, how it considered all the statutory factors including Appellant rehabilitative needs, and how the specific circumstances of Appellant and the instant offenses warranted the sentence imposed. Trial Court Opinion, 3/17/14, at 11-13.

In her final issue, Appellant argues that the trial court erred in denying her motion to declare a mistrial, alleging the jury foreperson was not a

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at 2, quoting N.T., 5/11/12, at 205.

Subsequently, Appellant filed a motion for mistrial.4

motion for mistrial is as follows:

A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014), quoting Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003) (internal citations and footnote omitted).

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4 Pennsylvania Rule of Criminal Procedure 605 provides as follows.

Rule 605. Mistrial

(B) When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

Pa.R.Crim.P. 605(B). Because we discern no error or abuse of discretion in r,

was timely. See Commonwealth v. Boring, 684 A.2d 561, 567-568 (Pa. Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997).

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Appellant references Section 4502 of the Judicial Code, which provides as follows.

§ 4502. Qualifications of jurors

(a) General rule.--Every citizen of this Commonwealth who is of the required minimum age for voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen:

(1) is unable to read, write, speak and understand the English language;

42 Pa.C.S.A. § 4502(a)(1).

Appellant argues that the trial court not only erred in denying its motion for mistrial, but should have acted sua sponte when it became

Brief at 24.

[The trial court] should not have allowed the reading of the Verdict Sheet to go forward and for any verdict to be returned in the case. Rather, some type of inquiry should have been undertaken to ascertain whether or not the foreperson truly could understand, comprehend and analyze the evidence, understand the law as dictated by this Court and truly arrive at an independent judgment concerning guilt or innocence of the Defendant. However, the Defendant reiterates her proposition that even if such inquiry had been undertaken, there simply is no way in which this Court could have concluded that the foreperson should have been entrusted with the responsibility of being a fact-finder in this case in light of the obvious inability of the foreperson to read even a single word appearing on the Verdict Sheet.

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Id. at 22.5

at which the trial court carefully performed a colloquy of the foreperson and determined that the foreperson, although able to read only at an 8th grade level, was able to independently review, understand, evaluate and determine the evidence and issues presented in this case. Trial Court Opinion, 3/17/14, at 15-16. Accordingly, the foreperson was not a disqualified juror under 42 Pa.C.S.A. § 4502(a)(1).

Further, even if appellant could show that a disqualified juror sat on his case, he has not identified any prejudice, and we will not, as urged by

fairness. Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988) (appellant fails

dire prejudiced him); see also United States v.

Silverman, 449 F.2d 1341 (2d Cir.1971) (inclusion in panel of a disqualified juror does not require reversal of a conviction unless there is a showing of actual prejudice).

Commonwealth v. Bullock, 558 A.2d 535, 537-538 (Pa. Super. 1989) (internal quotation marks and some citations omitted), appeal denied, 575 A.2d 561 (Pa. 1990). Accordingly, we conclude the trial court did not abuse

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5 Appellant has not alleged any error in connection with jury selection or the voir dire of the jury. Appellant has not asserted that the foreperson misled or was dishonest to the court relative to his ability to read. See e.g., Commonwealth v. Kelly, 609 A.2d 175 (Pa. Super. 1992) (finding per se prejudice where empanelled juror lied in voir dire about having a prior record), appeal denied, 617 A.2d 1272 (Pa. 1992)

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standard of review, discusses the relevant law and explains the basis for its conclusion that said claims lack merit. Instantly, we carefully reviewed the

and well-reasoned opinion of Judge Joseph J. Matika is in concert with our own views as addressed above. We conclude the trial court did not abuse its -trial motion for mistrial or her post-sentence motion, requesting reconsideration of sentence and raising premature issues of ineffective assistance of trial counsel. Accordingly, we adopt the opinion by the Honorable Joseph J. Matika as our own for purposes of further appellate review. See Trial Court Opinion, 3/17/14.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/4/2014

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