Com. v. Hogue, D.

Opinion

J-S32045-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

DON CARVICA HOGUE :

:

Appellant : No. 1049 EDA 2017

Appeal from the Judgment of Sentence March 3, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006741-2014

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J. MEMORANDUM BY MURRAY, J.: FILED AUGUST 05, 2019 Don Carvica Hogue (Appellant) appeals pro se from the judgment of sentence imposed after a jury convicted him of aggravated assault, possession of an instrument of crime (PIC), and recklessly endangering another person (REAP).1 Upon review, we affirm.

The charges in this case arise from an incident that occurred on March 16, 2014, in which Appellant “viciously stabb[ed] and nearly kill[ed] a man[.]” Trial Court Opinion, 6/28/18, at 1-2. The Commonwealth filed a criminal information on June 13, 2014. Thereafter, Appellant filed a suppression motion, seeking to preclude “the Commonwealth from playing the cell phone recording” made by his adult daughter, Rashada Siojo. Omnibus Pretrial

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a), 907(a), and 2705.

J-S32045-19

Motion, 4/25/16, at 1-3. After conducting a hearing on June 17, 2016, the trial court denied the motion. The case proceeded to trial. On December 16, 2016, a jury convicted Appellant of the above crimes.

At sentencing on March 3, 2017, the trial court determined that Appellant’s conviction of aggravated assault was his fifth crime of violence under Section 9714 of the Sentencing Code. See 42 Pa.C.S.A. § 9714(a) (mandatory minimum sentences for second and third convictions of crimes of violence). Accordingly, the trial court imposed a sentence of life imprisonment without parole. See 42 Pa.C.S.A. § 9714(a)(2) (“Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.”). The court further sentenced Appellant to 2½ to 5 years of imprisonment for PIC and 1 to 2 years of imprisonment for REAP, both consecutive to the life sentence.

Appellant, who was represented by Mark Adams, Esquire, did not file a post-sentence motion, but instead filed a pro se petition under the Post Conviction Relief Act.2 The trial docket reflects this “filing from a represented defendant not signed by attorney.”3 Trial Docket Entry, 3/16/17. On March

____________________________________________

2 42 Pa.C.S.A. §§ 9541-9546.

3 See Pa.R.Crim.P. 576(A)(4) (if a represented criminal defendant submits for filing a written motion that has not been signed by his attorney, the clerk of courts shall accept it for filing, and a copy of the time-stamped document shall

3

J-S32045-19

20, 2017, Attorney Adams filed a timely notice of appeal together with a motion to withdraw as counsel. On March 22, 2017, the trial court allowed Attorney Adams to withdraw, and James Lloyd, Esquire, entered his appearance on behalf of Appellant. On April 12, 2017, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and following two extensions for additional time, Attorney Lloyd filed a statement on behalf of Appellant on November 8, 2017.

Meanwhile, Appellant filed in Superior Court a pro se application to proceed pro se on appeal. By per curiam order dated October 10, 2017, this Court directed the trial court to conduct a Grazier4 hearing. The trial court conducted the hearing on November 13, 2017 — subsequent to Attorney Lloyd filing Appellant’s Rule 1925(b) statement — and thereafter granted Appellant’s motion to proceed pro se, along with permission for Attorney Lloyd to withdraw from representation. On December 7, 2017, Appellant filed an untimely pro se Rule 1925(b) statement, without first obtaining leave from the trial court to do so. The trial court issued an opinion on June 28, 2018.

On appeal, Appellant presents three multi-part issues for our review:

____________________________________________

be forwarded to the defendant’s attorney and the Commonwealth within 10 days); Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper response to any pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion.”).

4 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4

J-S32045-19

1. WERE APPELLANT’S FEDERAL FOURTH AND FOURTEENTH AMENDMENT RIGHTS VIOLATED AND DID THE LOWER COURT ERR AS A MATTER OF LAW AND/OR ABUSE DISCRETION IN DENYING APPELLANT’S MOTION TO SUPPRESS INTERCEPTED WIRE OR ORAL COMMUNICATION WHERE EXCEPTION NO. 17 OF THE WIRETAP ACT IS VOID FOR VAGUENESS ON ITS FACE AND AS-APPLIED TO APPELLANT’S CASE, AND/OR DESPITE THE SELF-

CONTRADICTORY TESTIMONY OF AN ASSISTANT DISTRICT ATTORNEY DURING THE SUPPRESSION HEARING, AND/OR DESPITE A SUPPRESSION RECORD REPLETE WITH EVIDENCE OF STATE ACTION BY THE ADA IN COLLUDING WITH APPELLANT’S [SIC] TO INTERCEPT APPELLANT’S WIRE AND ORAL COMMUNICATION?

2. WAS IT A DENIAL OF APPELLANT’S FEDERAL SIXTH AND FOURTEENTH AMENDMENT RIGHTS AND ARTICLE I, SECTION 9 STATE CONSTITUTIONAL RIGHT, AND WAS THE TRIAL COURT’S SUBJECT MATTER JURISDICTION NOT LAWFULLY INVOKED TO AUTHORIZE IT TO HEAR APPELLANT’S CASE BASED ON A FATALLY DEFECTIVE INFORMATION WHICH FAILED TO GIVE FORMAL AND SPECIFIC ACCUSATION OF JURISDICTIONALLY-REQUIRED ESSENTIAL FACTUAL ELEMENTS, I.E., MISCONDUCT, “TO WIT: BY STABBING THE VICTIM” AS MANDATED BY THE SIXTH AND FOURTEENTH AMENDMENTS, PA.R.CRIM.P. 560(B)(5), AND CLEARLY ESTABLISHED FEDERAL LAW, AS DETERMINED BY THE SUPREME COURT OF THE UNITED STATES AND PA. STATE SUPREME COURT, THEREBY ENABLING APPELLANT TO PREPARE A DEFENSE AND PLEAD DOUBLE JEOPARDY, AND FURTHER ENABLING THE TRIAL COURT (AND ANY SUBSEQUENT COURT) TO REVIEW FACTS FROM THE FACE OF THE INFORMATION SUFFICIENT TO SUPPORT A CONVICTION FOR AGGRAVATED ASSAULT?

3. WAS APPELLANT DEPRIVED ON HIS SIXTH, TENTH, AND FOURTEENTH AMENDMENT RIGHTS AND CONTRACT CLAUSE RIGHTS UNDER THE FEDERAL CONSTITUTION WHERE APPELLANT WAS NOT GIVEN NOTICE OF THE “THREE STRIKES” SENTENCING PROVISION IN THE INFORMATION, AND/OR WHERE THE IMPOSITION OF THE “THIRD STRIKE” LIFE SENTENCE WAS BASED ON A STATE STATUTE COERCED AND COMPELLED BY THE FEDERAL REGULATORY PROGRAM OF VOITIS, AND/OR WHERE 42 PA.C.S. § 9714 IS MODELED ON A DETERMINATE SENTENCING SCHEME WHICH MAKES A 25 YEAR MAXIMUM SENTENCE THE LEAST ONEROUS SENTENCE THAT CAN BE IMPOSED BASED ON

5

J-S32045-19

THE BARE STATUTORY ELEMENTS OF A “THIRD STRIKE”

OFFENSE, AND/OR WHERE THE LIFE SENTENCE IMPOSED WAS BASED ON OTHER SENTENCING FACTORS NOT CHARGED IN THE INFORMATION, SUBMITTED, AND PROVEN TO A JURY BEYOND A REASONABLE DOUBT AS REQUIRED BY THE SIXTH AND FOURTEENTH AMENDMENTS?

Appellant’s Brief at 2.

Throughout his first issue, Appellant presents an imprecise and often confusing argument regarding the court’s denial of his suppression motion. 5 For example, he argues that Subsection 17 of 18 Pa.C.S.A. § 5704, regarding exceptions to the prohibition of interception and disclosure of communications, is facially void for vagueness and ambiguity.6 Appellant’s Brief at 6-9. We note that generally, “no person shall disclose the contents of any wire, electronic or oral communication, or evidence derived therefrom, in any proceeding in any court[.]” 18 Pa.C.S.A. § 5721.1. However, Section 5704 sets forth several exceptions, including Subsection 17:

It shall not be unlawful and no prior court approval shall be required under this chapter for . . .

____________________________________________

5 We remind Appellant that “appellate briefs and reproduced records must materially conform to the requirements of the Pennsylvania Rules of Appellate Procedure,” and “[a]lthough this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing.” Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005) (some citations omitted).

6We recognize that a subpart of the Wiretap Act, not relevant to this appeal, has been preempted by the Federal Wiretap Act. Commonwealth v. Witmayer, 144 A.3d 939, 950 n.2 (Pa. Super. 2016); see also Bansal v. Russ, 513 F.Supp.2d 264 (E.D.Pa. 2007).

6

J-S32045-19

Any victim, witness or private detective licensed under the act of August 21, 1953 (P.L. 1273, No. 361), known as the Private Detective Act of 1953, to intercept the contents of any wire, electronic or oral communication, if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception.

18 Pa.C.S.A. § 5704(17).

Appellant’s challenge to the validity of this subsection was not raised in the timely, court-ordered Rule 1925(b) statement filed by Attorney Lloyd, and the trial court did not address the issue. Although Appellant included this issue in his subsequent pro se Rule 1925(b) statement, Appellant never asked the court for leave to file a supplemental statement. See Pa.R.A.P. 1925(b)(2) (“Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed.”). Thus, this claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”); see also Pa.R.A.P. 302(a) (issues not raised with the lower court are waived on appeal).

Also within his first issue, we discern the following claims: this Court should find that the Wiretap Act’s definition of an “electronic, mechanical or

7

J-S32045-19

other device” includes a telephone7; and the suppression court made improper credibility findings in denying suppression where “someone knowledgeable of the parameters of the Wire Tap Act advis[ed] Appellant’s daughter in the matter.” Appellant’s Brief at 9-13. With respect to the recorded telephone call, Appellant asserts “it is clear that ADA Nixon and Mark Gilson both engaged in ‘state action’ . . . and it is wholly unfathomable [that] neither one of them, especially ADA Nixon, did not tell Appellant’s daughter to get some proof.” Id. at 13-14. No relief is due.

Appellant first asks this Court to hold that for purposes of the Wiretap Act, the definition of an “electronic, mechanical or other device” includes a telephone. Appellant’s Brief at 11. “Statutory interpretation is a question of law, therefore our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013). Section 5702 defines “Electronic, mechanical or other device” as follows:

Any device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication other than:

(1) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law

____________________________________________

7See 18 Pa.C.S.A. § 5702 (defining “electronic, mechanical or other device” as used in the Wiretap Act).

8

J-S32045-19

enforcement officer in the ordinary course of his duties. . . .

18 Pa.C.S.A. § 5702 (emphasis added).

We deny Appellant’s request to find that a telephone is included in the Wiretap Act’s definition of an “electronic, mechanical or other device.” To the contrary, a plain reading8 of Section 5702 evidences the General Assembly’s clear intent to purposefully exclude telephones from the definition, and our Supreme Court has held the same. See Commonwealth v. Spence, 91 A.3d 44, 47 (Pa. 2014) (“The language of the statute states that telephones are exempt from the definition of device.”). Therefore, Section 5702’s definition of “electronic, mechanical or other device” excludes telephones.

Next, Appellant assails the trial court’s findings following the June 17, 2016 suppression hearing, with specific reference to the court’s credibility findings and its determination that there was no improper state action on the part of Assistant District Attorney Deborah Nixon and her colleague, Mark Gilson. Appellant’s Brief at 12-14.

Our review of the denial of a suppression motion “is limited to determining whether the factual findings are supported by the record and

____________________________________________

8“We will only look beyond the plain meaning of the statute when words are unclear or ambiguous, or the plain meaning would lead to “a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.[A.] § 1922(1). Therefore, when ascertaining the meaning of a statute, if the language is clear, we give the words their plain and ordinary meaning.” Commonwealth v. Torres-Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017) (some citations omitted).

9

J-S32045-19

whether the legal conclusions drawn from those facts are correct.” Commonwealth v. Soto, 202 A.3d 80, 90 (Pa. Super. 2018) (citation omitted). “When reviewing the denial of a suppression motion, this Court reviews only the suppression hearing record, and not the evidence elicited at trial.” Commonwealth v. Frein, 206 A.3d 1049, 1064 (Pa. 2019) (citation omitted). Further:

We may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Moreover, it is within the [trial] court’s province to pass on the credibility of witnesses and determine the weight to be given to their testimony.

Id. “The suppression court is free to believe all, some or none of the evidence presented at the suppression hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

Mindful of the foregoing, we recognize that “[t]he Fourth Amendment of the Federal Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d 889, 892 (Pa. Super. 2012). However, it is well-settled that the “proscriptions of the Fourth Amendment and Article I, § 8, do not apply to searches and seizures conducted by private individuals.” Commonwealth v. Shaffer, --- A.3d ---, 2019 WL 2509345, *11 (Pa. 2019) (citation omitted). “[A]t the core of the reasoning underlying this refusal to

10

J-S32045-19

extend application of the exclusionary rule to private searches is the concept of ‘state action,’ the understanding that the Fourth Amendment operates only in the context of the relationship between the citizen and the state.” Id. (citation omitted).

“In the absence of governmental action, the search or seizure in question cannot give [an a]ppellant ground for a claim of violation of constitutionally-protected interest under either the Federal or Pennsylvania Constitutions.” Commonwealth v. Johnson, 727 A.2d 1089, 1098 (Pa. 1999) (citation omitted). “To determine whether a particular search or seizure constituted governmental action, we must examine the purpose of the search, the party who initiated it, and determine whether the government acquiesced in it or ratified it.” Id. “Moreover, individual acts do not become imbued with the character of governmental action merely because they are later relied upon and used by the government in furtherance of their objectives.” Id.

Here, Appellant sought to suppress evidence from a telephone conversation recorded by his adult daughter, Rashada Siojo. At the suppression hearing, the Commonwealth presented testimony from Ms. Siojo and Ms. Siojo’s friend and assistant district attorney, Deborah Nixon. Appellant did not present any witnesses.

Ms. Siojo testified that on the morning after the stabbing, she spoke with her mother by telephone. Ms. Siojo’s mother was crying and she told her daughter that “there was some kind of altercation”; Ms. Siojo’s mother “was

11

J-S32045-19

afraid” and asked Ms. Siojo to pick her up. N.T., 6/17/16, at 19, 22. Ms. Siojo then called her friend, Ms. Nixon, “to tell her what was going on because [Ms. Nixon was her] friend” and Ms. Siojo was worried about her mother Id. at 19.

Later that day, while Ms. Siojo and her younger brother were driving to get their mother, Ms. Siojo engaged in a telephone call with her mother and Ms. Nixon, which began as a call between just Ms. Siojo and her mother. Id. at 22. Ms. Siojo described her mother during this call as “probably not sober,” and Ms. Siojo “heard a lot of yelling and arguing in the background . . . between [her mother and Appellant].” Id. at 24. Ms. Siojo testified that she added Ms. Nixon to the call because Ms. Nixon was her friend, not because Nixon was an assistant district attorney, and she wanted to let Ms. Nixon know where she was going because Ms. Siojo “didn’t know what [she] was going into.” Id. at 22-23. Ms. Siojo did not speak directly with Appellant during this call, and did not record the call.

After picking up her mother, and while driving with her mother and younger brother in the car, Ms. Siojo had a telephone conversation with Appellant, which was connected to the car’s Bluetooth.9 N.T., 6/17/16, at 25- 27. Ms. Siojo testified that she “borrowed” her brother’s telephone to record the conversation because she was afraid, “didn’t know what was true and . . .

____________________________________________

9 Ms. Siojo testified that she did not remember whether Appellant called her or she called him. N.T., 6/17/16, at 26.

12

J-S32045-19

needed to be safe.” Id. at 27-28. Ms. Siojo stated that she asked Appellant “what happened?” and “why did you do that to that man?”, and reiterated that she was afraid for herself and her mother. Id. at 26-28. She also testified repeatedly that no one instructed her to record the conversation, and Ms. Nixon was “absolutely not” aware that Ms. Siojo recorded the Bluetooth call with Appellant. Id. at 28-29, 34. Ms. Siojo also clarified that the earlier call between her, her mother, and Ms. Nixon was not recorded. Id. at 33.

The Commonwealth called Ms. Nixon, who has been employed as an assistant district attorney since 1992. Ms. Nixon testified that Ms. Siojo was her friend, and on the morning of March 17, 2014, Ms. Siojo called her and relayed that Ms. Siojo’s mother had told her that Appellant “admitted to her that he had stabbed a man,” that Ms. Siojo was “terrified for her mother,” and “there was a situation unfolding where there were threats of violence toward her mother.” N.T., 6/17/16, at 53-54. During the conversation, Ms. Nixon “calmed [Ms. Siojo] down . . . and told her I’d speak to her later.” Id. at 55.

Later that day, when Ms. Nixon was at work, she received a second phone call from Ms. Siojo, and could hear “chaos erupting.” N.T., 6/17/16, at 56. Ms. Siojo told Ms. Nixon, “I’m on my way to my mother’s and my mother’s in trouble”; Ms. Nixon told Ms. Siojo not to go and instead call the police. Id. Meanwhile, Ms. Nixon could hear “chaos,” “commotion,” and “yelling and screaming.” Id. at 55-56. Ms. Nixon heard a male and a female, but did not know the male voice and could not “make out what’s being said.” Id. at 56,

13

J-S32045-19

59, 61. Ms. Nixon then set her telephone on speaker mode so that her colleague Mark Gilson could hear the conversation. Ms. Nixon asked Mr. Gilson to “send the cops wherever the mother lives.” Id. at 57. Mr. Gilson used his own telephone to call 911 and request a police dispatch to the mother’s location. Id. at 57-58. Ms. Nixon testified that she “absolutely [did] not” advise Ms. Siojo to “make a recording of any of this,” and she never looked at the file for the criminal case against Appellant. Id. at 57-58. She emphasized:

My focus was on the domestic incident with [Ms. Siojo’s] mother and [Ms. Siojo] not getting involved with it at all. This young girl does not need to be pulled into some mess with her father and her mother, some violence with her father and mother.

N.T., 6/17/16, at 57-58.

During the suppression hearing, Appellant, who was represented by Attorney Adams, presented no evidence, but claimed that he had a reasonable expectation of privacy in the “family conversation” with Ms. Siojo’s mother, which was heard by Ms. Siojo during the three-way call between Ms. Siojo, her mother, and Ms. Nixon. N.T., 6/17/16, at 64-65. Appellant argued that the exception in the Wiretap Act, as stated in Subsection 5704(17) — allowing interception if the interceptor is under a reasonable suspicion that the intercepted party is committing, about to commit, or has committed a crime of violence — should be ruled unconstitutional. Id. at 65; see 18 Pa.C.S.A. § 5704(17).

The Commonwealth countered that Appellant’s argument was

14

J-S32045-19

“specious” because the unrecorded call in which Appellant is yelling in the background while Ms. Siojo is talking to her mother “and the daughter who happens to merge in Deb Nixon . . . is not protected under the Wiretap Act.” N.T., 6/17/16, at 68. The Commonwealth also argued that Ms. Siojo’s recording of her subsequent conversation with Appellant was squarely within the Wiretap Act exception at Section 5704(17). Id. at 66.

The trial court denied Appellant’s suppression motion, finding that the Commonwealth’s witnesses were credible and its argument persuasive. Appellant, on appeal, now askes “th[is] Court to find the lower court’s findings . . . are an abuse of discretion.” Appellant’s Brief at 13. Appellant claims that “ADA Nixon and Mark Gilson both engaged in ‘state action’”, asserting that it is “wholly unfathomable to neither one of them, especially ADA Nixon, did not tell the daughter to get some proof.” Id. at 14. Essentially, Appellant claims that Ms. Siojo improperly recorded the conversation with Appellant at the prompting of Ms. Nixon in her capacity as a district attorney. Id. This argument lacks merit.

As discussed, Ms. Siojo testified that she did not record the conversation between herself, her mother (in which Appellant could be heard in the background), and Ms. Nixon. Ms. Siojo stated that she added Ms. Nixon to the call because Ms. Nixon was a friend, and while on her way to get her mother, Ms. Siojo was concerned for the safety of her mother and herself. With regard to the conversation with Appellant that Ms. Siojo recorded on her

15

J-S32045-19

brother’s phone from her car’s Bluetooth, Ms. Siojo likewise testified that “nobody related to law enforcement” was “in on that call” — and she recorded the conversation with Appellant because she “needed to be safe” and “was afraid for me and my mother.” N.T., 6/17/16, at 27-28. Ms. Siojo testified repeatedly that no one told her to record the conversation, and Ms. Nixon was unaware that she was recording it. Id. at 28-29, 34. Ms. Nixon’s testimony corroborated Ms. Siojo’s, where Ms. Nixon stated that she did not advise Ms. Siojo to record her conversation with Appellant, was not involved in Appellant’s criminal case, and “her whole concern [was for] Ms. Siojo and her safety.” Id. at 57-59.

The burden of proof at a suppression hearing is on the Commonwealth to “establish[] that the challenged evidence was not obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581(H). “This does not, however, excuse the defendant from meeting the burden of persuasion[.]” Commonwealth v. Enimpah, 62 A.3d 1028, 1033 (Pa. Super. 2013). Appellant has not persuaded us of any error, and emphasize that “it is within the [trial] court’s province to pass on the credibility of witnesses and determine the weight to be given to their testimony.” Frein, 206 A.3d at 1064.

Instantly, the trial court stated, “I find specifically in terms of the findings of facts as testified to by the witnesses to be credible.” N.T., 6/17/16, at 69. The trial court further concluded that “there was no state action

16

J-S32045-19

involved through Ms. Nixon in any way, shape, or form.” Id. Upon review, we agree. Appellant’s first issue lacks merit.

In his second issue, Appellant argues that the trial court lacked subject matter jurisdiction and “Tenth Amendment sovereign state police power to hear [his] case,” because the criminal information lacked sufficiency. Appellant’s Brief at 14-15. He also claims the trial “court failed to address the assertion that the Commonwealth’s prosecution of Appellant under the federal mandates of the Violent Offender Incarceration and Truth In Sentencing (VOITIS) Incentive Grant Program, 12 U.S.C. § 12101 et seq., . . . was a violation of Appellant’s personal Tenth and Fourteenth Amendment rights.” Id. at 14. Appellant contends that the alleged “‘cutting or stabbing’ of the victim is an essential factual element of the [aggravated assault charge] establishing the essential mens rea/culpability element of malice,” but the information did not “charge any ‘acts,’ ‘facts,’ ‘conduct,’ or ‘misconduct’ to establish malice.” Id. at 17. Appellant thus concludes that he was deprived of his Sixth and Fourteenth Amendment rights to notice and due process.

In his third issue, Appellant argues that his rights under the United States and Pennsylvania Constitutions were violated when he was not given notice in the bill of information filed by the Commonwealth of its intention of prosecuting him under the “three strikes” mandatory minimum sentencing parameters in 42 Pa.C.S.A. § 9714(a). Appellant further asserts that Section 9714 provides for an illegal sentencing scheme in light of the United States

17

J-S32045-19

Supreme Court’s holding in Apprendi v. New Jersey, 120 S. Ct. 2348 (U.S. 2000) and its progeny.

Upon review of Appellant’s second and third issues, together with the record and prevailing legal authority, we conclude that the Honorable Ann Marie B. Coyle, sitting as the trial court, has authored a comprehensive opinion addressing and disposing of these issues. Accordingly, we adopt those portions of Judge Coyle’s opinion as our own. Trial Court Opinion, 6/28/18, at 12-15, 15-20.

We note that in addressing Appellant’s second issue, the trial court accurately states that the Commonwealth’s information “was signed by the District Attorney, contained a proper caption, the date of the offense, the name of the victim, the county where the offense took place, a plain and concise statement of the essential elements of each offense, and a proper concluding statement.” Trial Court Opinion, 6/28/18, at 15. The trial court thus concluded that the information was “sufficient for [Appellant] to address the charges and prepare a defense,” and accordingly, the court had proper subject matter jurisdiction over Appellant’s criminal prosecution. Id.; see also Pa.R.Crim.P. 560 (Information: Filing, Contents, Function).

In addressing Appellant’s third issue, the trial court referenced the notice requirements of 42 Pa.C.S.A. § 9714, and explained that Appellant received notice of the Commonwealth’s intent to pursue a “three strike” mandatory minimum sentence in its sentencing memorandum filed February

18

J-S32045-19

10, 2017 — well before Appellant’s sentencing nearly a month later in March 2017. Trial Court Opinion, 6/28/18, at 18; see also 42 Pa.C.S.A. § 9714(d) (“[R]easonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.”).

Further, in addressing the legality of Appellant’s sentence, the trial court accurately concludes that Appellant fails to state a viable claim for relief under Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne v. United States, 570 U.S. 99 (2013), and successive Pennsylvania cases. The trial court explained:

[Appellant’s] argument also fails as Apprendi and its progeny[]

all exclude prior convictions from what is required to be submitted to the jury when seeking to increase a sentence.

***

[T]he Superior Court has recognized that Alleyne does not invalidate mandatory minimum sentencing statutes that pertain to a defendant’s prior convictions. Section 9714 increases mandatory minimum sentences based on prior convictions.

Accordingly, this section is not unconstitutional under Alleyne.”).

Trial Court Opinion, 6/28/18, at 18-19 (citing Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013)). See also Apprendi, supra (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added).

In sum, Appellant’s claims do not merit relief, and we affirm the judgment of sentence. Because we have partially adopted the trial court’s

19

J-S32045-19

opinion, we direct the parties to include it in relevant future filings.

Judgment of sentence affirmed.

Judge Shogan joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/5/19 > :> , J Circulated 07/12/2019 02:38 PM

) I ,, l,.

IN THE COURT OF:COMMON PLEAS FIRST JUDICIAL .J)lSTRl(;T P�NNSYLV ANIA os CRIMINAL TRIAL DIVISION·

COMMONWEALTfJ.;..OF .CP�Sl-CR�000674J-20IA CP,;ii-CR·0000741,,0l.4 C:Offm • PENNSYLVANIA Opu"l"'

hO<Jl:�.Ooo C.wv,c.,

111 /II IIII IIIJ 111 /IIIJ 111 81.29940841 SUPERIOR COURT DON CARVICA HOGUE NO; 1049 EDA 20.17

OPIN�QN

·FI-LE.O

C.0.YLE,J. JUN-:2'8- 2018 JUNE 28_, 2018 A�ats/PoSt Trial

bffice-of·Judlcial Records

Appellant, Don Carvica Hogue, theabove-named Defendant.seeks review of.the, Order and J udgment of Sentence imposed on March 1, _20) 7 by the· Honorable Anne Maire Coyle, Judge of the Court of Common Pleas for the First JudicialDistrict Criminal Division. Within his· Statement of Matters Complained Of On AppealPursuant ·to Pa. R. P. -l 925(b), Appellant essentially asserted three claims of alleged. error. A full and fair review of the record reflected that each claim was without merit, I. FACTUAL AND PROCEDURAL HISTORY Ori March 18, 2014, the Defendant, o·o.n Carvica Hogue, was arrested and W&S charged with inter alia, Aggravated Assault', SimpleAssault', Recklessly Endangering Another Person', and

I

u Pa C.S:A. § 27.02:

·2 f1·g Pa.-:C.S.. A; .§'270 I

.. ·-·········-···-·---·-·- ··· "·--····------- -,, ···-····-········-·····-·····, .. • , __, __ ,

Possession of an Instrument of Crime" for viciously .s't�bbin$ and nearlykilling a man· fol lowing a. d\:sagt�ementov.er·the;use·-o.f a eigarette Iighter that occurred on'March, l 6, 20J 4, in the vicinlty of the 4'6.0Q 'hlock of Frankford Avenue 'in the City -and County of Philadelphia A jurytrial was conducted before this. Co;ii_r{ beginning on December 13, 2"01.o.

At.the conclusion of'trial, the Defendant ")'as found guiltyofA)$.grayated Assault, Recklessly

Endangering . . .

Another.Person, and Possession of ari Instrument of Crime. Sentencing was deferred

'pending .

a pre-sentencerepcrtandmental . .

health.evaluation. On March 3,.2017, after full and fairly

conducted hearing, this Court.pursuant to §9714,Jntposed. a sentence oflife imprisonment without the possibility of parole. on.the rfrst degree felonycharge ofAggravated Assault Asta the offense of Possessing.An Instrument of Crime, this Court imposed.. a consecutive sentence of'rwo and one half (27-t} years to five (5). years of incarceration, followed by one (1) year to two (2) years of .inoarceratiorrfor RecklesslyEndangering Another Person. TheCornmonwcaltb of Pennsylvania was -represented a during rre ...ttial motions, at trial andduring sentencing bythen District Attorney of Philadelphia, by and through his Assistant District Attorney Edward Grant; Esquire, Mark W. Adams, Esquire represented Appellantduring pre-trial mot ions, at trial and. during.sentencing.

Attorney Adams fileda Notice ofAppealand a Motion ta Withdraw as . Counse! onMarch.Zf), 2017:-5 Attorney Adams' .motiorrto witbdraw was granted on March 22, 2.017 and James Richard Lloyd; l LI, Esq uire, was appoin Ied .- A Statement of Errors Complained ofon Appeal purs uan t to P?.

j _rg Pa, �.C.A ·§"2705 4 18 Pa. C:S".A. §:_907·

5 On March I b, ·.20 ri, the Defendant filed a prose Post-Convictfon ReljefAcr(PCRA) petition. This i.o

petition. was subsequently.dismissed -as 'premature on Noy�mb�� 9, 1 _7. .. ·

2

--·---·-------------·-----·--·-----···--·· -- - - -.--..----·······. . ·····-···-····-········ ,. _,_,,,_.

R.A.P ...Rul� 1925 ·(b) was .Qcdeted by tbisCourt OJ) .Apdt 1..2,.-20-l 7:, The notes ·o·f testimony became available, and.a Statement of Errors Complained ofon Appeal was.again ordered by this Co.urt on November }, 20� 7. On November 8,-ZQl;, Attorney Lloyd filed a.Staterhenro.fError.s.Co�npl�ined · of on Appeal. On November. l ].> 2.0-17 .fheDefendant was permitted fr, P.recccfe prose ·and Attorney Lloyd was.permitted to formallywithdraw. OnDecember 7, 2017,, the Defendant filed a prose Statement.of Errors· Complained' of on Appeal,

fl. .IS.SU-ES ON.APPEAL In summary, Defendant (hereinafter "Appellant") raised the following-issues on appeal:

1. The-Court err.ed and abused its.discretionin denying Appellant's Motion to Suppress

illegallyand unconstitutionally intercepted wire and oral communications between Appellant; his r-

wife.andhis daughter which was overheard by Assistant District A Horney [Deborah] .Nixon when Appellant's daughter ·pur ADA Nixon on three-way calling/the Court erred ·by finding. ho. State .acfion when the.suppression record-is replete whh eviderrce-of.state action by the ADAi-n colluding with Appellant's -daughterto.i nterccpt AptieJ lant' s wire- ��:_1,:-br�l· communi cation without "his consen t.

2. A_J??etlant. wasdenied �.is .Sixth and Fourteenth Amendment ri,.ghb/aild. Article I, -Seotion 9 State· Constitutional d_g_ht as the trial .court lacked subject matter jurisdiction based on fatal It defective bills -of -inforrnatien; which failed. to give formal �ml specific j urisdictional accusations; .the 'pill ofinformation Jacked. essential factual elements of misconduct oh its. face thereby .rendering thebi ll.ofi nformati on insuff ci ent io support a convi ction of aggravated ass au It.

J. Appellant was deprived ·of his.Sixth, Tenth, and Fourteenth Amendment rights and Contract Clauserights under both the United States and Pennsylvania Constitutions where Appellant was not given notice of a p_os$ibl�·".threc strikes" sentence in the bil! .of inforrrtation.

A. Motion to Suppress the· appellate court's standard of'review of a denial of a motion to suppressis-to determine whether the record supports thetrial court's factual findings and whetherthe legal conclusions drawn ·therefrom are.free from error. Common\.vealth v. ·Mo.ye, ·836 A.Zd 973 (Pa. Super. 2003,) quoting Commonwealth v: McClease, 750A.2d 3-20, 32J.(Pa. Super. 2000). The.scopc-ofrcview is limited; the appellate court may considervonly the evidence of theprosecution and so much ofthe evidence for the defense as remains uncontradictedwhen readin . the.context of the record as a whole." .Id . .quoting Conunonwealth v. M�xon, 798 A.2.d "7.6-1, 765 (P.a. Super, 2002), Where the record supports the findingsof the.suppression court, the appellate coon is bound by those. facts and may reverse -only if thecourt erred in.reaching its legal conclusions based upon the: facts. Moye� supra; quoting MGC1ease1 750 A,2d- at 32:3-24 quoting ·�n thcJnterest .ol D:M., 56.0 P�. iss, 7.4'3 . .A-24 422, 424 (.1999).

In the.Instanrcase, Appellant argued that this Court erred and abused its discretion indenyirig his motion to suppress by finding that. there wasno State action performed by Assistant District Atti:irii"ey Deborah Nixon, Esquire (hereinafter 'iAbA -Nixon") whenshe. allegedly, in.violation .of the, Wiretap. AcJ, "illegally and unconstitutionally intercepted wire and onti communications" between Appellant; his wife, and his daughter which. was overheard by ADA Nixon when Appellant'sdaughterput ADA.Ni·xon on three-waycalling with them, According to Appellant, the Court' erred by finding that exception number I 7 ofthe Wiretap Act applied when, as alleged by

4.

... . ····-········--·--···--·--·····-···----·-·-··-· ·--·---··-·········--·-··-----························ - .

Appellant, ADA-Nixnn. "colluded" with A"ppellani's· daughter when Appellant's daughter culled ADA Nixon and placed . .ADANixQl1.en .a three .. way 'cal I while his· daughter '\\'!:IS 9.11: a call wiflrhe'( mother (and ADA. Nixon overheard an·atreg�d·argumcnt:'beiween Appellant and her mother). This argument. failedbecause iJ was 'factually and legally flawed.

The 'purpose of Pennsylvania's Wiretapping and Electtonic;Sur-.ieillance Control Act, 18

P.a . c.s. '§ 5:1QJ.,.e(seq'.)' is the protectionofprivacy, Commonwealth v. Spene.e, 63.1 A:2d 666 (Pa.

' ' '

.Su.per, 1993). · Th�: Act makes it unlawful for a· .person to intentionally int�rcept, endeavor to. 1 n tercept, or proeure any other person to fniercept .br to endeavor to in tercepr any wire, 'el ectroni c, or oral eommunication. 1.8 Pa.C.S·.A.. §.5703{.J): However.the statute.also contains specific exceptions to the prohibitions outlined in § 570}: In pertinentpart, ·":rt- shal I not be unlawful and no prior court. approval shall be requiredunder this chapter for:"

(17) Any victim, witness.or private detective. licensed under the act of August 21,_ 1953 (P .C. ·1273, No. 36.1)., known as the Private Detective Act of l.953, to intercept the contents of any wire; electronic or oral communication, 'if that 'person is under a, reasonable suspicion that the· intercepted partyis committing.uboutto commit or has. cornmi neda crimeof violence and there is .' reason to believe that . evidence oftlie crime of '

violence may be obtained from the-interception 1_8 ?a.C:S.A. §.5.704(17).

.Relying 'on Commonwealth v.. _Deck, .9 54 A.2d '603 ,· 607 (P'a. Super:2:008.), Appellan! argued that his daughter '(Rashada -S ioj o) ii I egally recorded th c.i r tel ephone conversat [on. withe tit his consent and the trial. court shouldhave granted his suppression motion, His reliance on Deck however is Inapposite. In Deck, the Superior.Courtinterpreted the Wiretap Actto preclude the admission of a conversation between a. sexual assault victim and the. defendant, which the former had recorded without the latter's consent. The Deck decision invo)v.ed.-no·mor.e fhan the atfirmatibnof the.trial court's stip.presSi�n.QfJl:le.reC.()rded'titephone conversation. It 'did ·1101 Spe.dfie.�lJ.y·d'i$CU.S.S·\,\iheth�r the sexual assault victim could testify about her conversation' v-tith the defendant.

In-Com:monwe�lfh Y- To'rres,.No. 2130 EDA'�OJ2,.'20'14,WL.J0917'6Tl (Pa,. Super, CL June so, 20l4) C.NQN:.. ,Pft:ECEO.ENTlA� DEC IS.ION):, the Superior Court found thatthe trial court did not-errinpermitting] J.13' ]'to testify.regardingthe contents ofa taped.conversation between [LR, }he victirn.jmdappellant] .in contravention ofthe Wiretapping and Electronic SurveiilanceConirol Act.Including threats against family members ..of [J.B. and 'thevictim]. Ti:)rtes at *2. The Torres Court found that the-recording ofa conversation made without [Appellant's] consent violated the Pennsylvania Wiretap-Act and was not admissible as evidence. '[l:8: PacC.S.A, § 5703], however while the recording.may not have· been used, there is no bar against participants of conversations testifying as to what they heard themselves. A statement offered against s;1 party that is the party's own statement in either an individual .or a representative capacity, i� an Admission by Party-Opponent and is 'an exception to the hearsay ru'l°e. _IP a. R.£.. 803(25)].

Therefore, although the.actual recording "��s nor admissible, J.H: couldstill test,i'fy as to the

threatsshe herselflieard.£Appet.Ianffmake underthe Admission-by Party-Opponent.exception . .. ' .

to the·

hearsay rule. j. B. 's testi rnony regardingAppellan t's threats 10. the ·)1 i ctirn .and J -,H. prior to the j ncident leading to. the- victim's death, was admissible.to prove the history and factual development of the case; and, in Ii ght of ,tB .'s testimony abo ut the bell tings Appe llarit in fl i cted.o Ii: both women, was not unduly prejudicial. See, e.g .. Commonwealth v,. .Antldormi, 2014 WL 255492 (Pa,Sµper:2014) {teiteratin:g·tbat courtsare not required to.sanitize a trial to eliminate all unpleasant facts from the

7

jury's consideration where those facts.are relevant, and form the history'and natural development of

. forwhich

.. .andoffenses the events . . the-. d.efendant is charged).

. Torres, supra.

. al ·j3,

.Jn.Cbmmonweal.th v . .Spence,_.625 Pa. ,&4; 87-8�,.9··1 A.3d 44., 46,(2.014), thePennsylvania Supreme Court unanimously found that the· Pennsylvania \Vfrv.t-apping,and. Electronic Surveillance Control Act, l � P�. C:$.A. §.§570·1 et seq., doesnot.prohibit the surreptitious interception of pri vate communications, so long asthe interception ls accomplished using a telephone." Speci fically, the Court concluded that telephones (whether srnartphones, mobile phones or landline phones), are excluded from the Act's defiriiuon .of electronic, mechanical or other devices because the Pennsylvania Wiretap Act onJy _pr9)1i.bits= the "interception" :of private communications using electronic; mechanical. or other devices, the Court reasoned that the Act does not prohibit or ·Qtherwise limitthe interception of'privatecommurucations using telephones. Furthermore, the Court

The Wiretap Act provides for exclusion of evidence derived-from intentional 'interception .of a "wire, electronic -ot oral cornmurrication" without' _prior approval under procedures not employed ·i·J? the. present case, 1·8: Pa . .C.S. §§:

.'5'7.'Q3, 571.l..L Th� Act defines �'io_t.e(�ep't[.io.n)" as rhe "acquisition of the.

:�bn!er:i�·: of [such] communication ihtbugh the use of any electronic, mechanical, or'other device.vl S Pa.0.S.. § 5702. The.. definiiionof'tcieetronic, mechanical, or- other. device" ,:in p·�nit:ie'l1·f part, is as. fol lows:

"Any device-or appararus .... that can be. used- to 'intercept a .comrnunicauon other than ... (I) Any telephone ... or any componentthereof furnished to

·<>- In Spence, a statetrooper used an.arrestee''s mobile phone tocall Spence (the.arrestee'sdrug supplier), then handed the phone toxhe arrestee and directed him lo activateits speaker function soIhe.troopcrcould eavesdrop OTI the. con versation 'between Spence and the -arrestee, During· the ·con versarion Spence 111ctim i rtated himself and was arrested and charged witli various. drug offenses. · · Following his �.rr.est, Spenceargued theevidence againsthim -should be suppressed because the state trooperwhosecretly [istened in. on· hiscell phone conversation did.so i11 violation of the Pennsylvania Wiretap Act: The Pennsylvania-Suprerne CoµJ1 however, found . thatthe way or. �Y. whom a telephone is used to record or otherwise intercept communications is· immaterial> the Act.does no.t:prohibi.t the use. of telephones to iritercept communications, period: ''th� languageof.the statute does not stare t.nat i!js the use to which the telephone being is put which determines if.fr isconsldered .a device." · ·

8

the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business .... "

18 Pa.C.S. § 5702 (emphasis supplied).

The Supreme Court's view was that the statutory exclusion of telephones from the Act's definition of"e!ectronic, mechanical or other device[ s ]" appears intended to convey only that when people use their telephones to communicate with others in the ordinary course of their business or day-to-day activities, they are not at risk of violating the Act. If the legislature intended otherwise, there would be little reason to carve out speci fie statutory exceptions for telephone marketers and utility providers who wish to record their telephone conversations. Moreover, following Deck, the Pennsylvania Legislature added exception 17 to the statute. See 2012 Pa. Legis. Serv. Act 2012-202

(H.B. 2400). As such, the recording Ms. Siojo made falls squarely within the exception and the 1 motion was properly denied. _J The second portion of Appellant's argument similarly failed. According to Appellant, the

Court erred by finding no State action when the suppression record is replete with evidence of state

action by the ADA in colluding with Appellant's daughter to intercept Appellant's wire and oral _, communication without his consent. Despite his argument to the contrary, the record belies

Appellant's allegations of "State Action" by ADA Nixon or anyone else in law enforcement in illegally and unconstitutionally intercepting his wire and oral communications. ADA Nixon was never on the telephone when Appellant was on the phone with his daughter, nor did she request Appellant's daughter to record her father's conversation.

The instant record revealed that on March 17, 2014, Rashada Siojo, Appellant's daughter, had secretly recorded a telephone conversation via Bluetooth speaker with her father, Appellant,

9

whileshe wa:� i.11 her c�r with her mother and her brother; ADA Nixon was- not listening in on the conversation, nor did.she instruot Ms. Siojo td record her conversation with Appejlantas evidenced below:

BY MR, GRANT: Q. Ti1at phone call that.you are. having -- were yt>U communicating with him on ·tbe. phone in yourhand? Was it on speaker'? Something else? ·

A. My phonewas connected to my Bluetooth in the car..

Q. Okay. \Vhiie you were having that conversation with )'OUr dad, what, if anything, di d you do'?

A, f borrowed my brother's phone and .Lrecorded our conversation, Q. Okay. While you were recording that' conversation, was anybody related to law enforcement at all in on tkat call?

-.i\. Oli; no, i1b.t at all-.

...

_Q; Okay: Ar q11y point lid anybody instructyou to make this recording?

A..-Absolutely.not.

Q. Did a-,;ybody even know tluu you were making the recording outside of the people in tlrat vehicle?

A.No�

* * •• BY MR..GRANT: Q.. That· second calf that y.ou made when yau- three-wayedDeband your mom -- at c�11y.p_of11i wasthat c/n,�4rs.dtia.n connected tothis recording in.tmy wa.t

A .. No.

Q. Thethird time Chat you made what we'll call 'th'e relative phone call that we talked about.today, the.one that you made to your dad, was.Deb .lnvolvedin thutcal] in any wayf A. Absolutely not. · Q. Did.Deb, toyour knowledge, know that you were making�-

that J(J"U were.having thnt.conversation[ A .. Not atall.

Q. To your knowledge, did Deb know that you were recording the con versation.tliatwas lu!i11g lzfuUli.e 'thirdtime with your father?

A. No.sh« did not, .

Q·.. Okay. The call -- the second c·�l!,lhe one thatwas the three-way call wijh Deb and )'.O.Ur. .mom -- at any point did your dad' actually get o.� that phone or was hlsvoice just bejng ovcrheaid ·ip- the.

background?

A. Yeah, he was-overheard.. Hewasn't on the phone.

(J'. Okay. At any point \V:as:any of,'. that information recorded?

A.}fo.

Q.� At- any point didMs .. Nixon tel l.you to .record anybody or anything? . .

A. M:,\.Nixo1i did not-ever tellme to.record anyo.ne or anything, for the record.

Q. Did anybody ever tell you to record anyone or anything?

A.·No one.told me. to record anyoneor anything,

.(N.T.,:6ll7ll6�.·pp)3-3.4}. [emphasisadded]

.... ·*

BY l\1S-. CO.ELHQ: Q.: .NOJ..V; once you merged your mother in, these things Mr.

Adams is asking youto speculate that you overheard -- you're overhearing .tfoit as commotion inthe background and not as a direct communication with you.

·MR. ADAMS: Leadingquestion, Vour Honor, Objection.

Ti{� COURT.: Sustained, · BY MS .. CO�LHQ·: Q·. ijust waitlto be clear When you merged-your mother's call s;

tn.siidyour fathergeton the p/1.one orwaslie Y<Jlling in the trackgroundt

A. He: was in the background.

Q. So lie -at no point in time was a patty-to thut conversation.

:1. Yeah,'! dQrtt recall speaking Ip �i m. l really don't, nota] the time. ·· Q •. 'So the only lime that you .spoke directly to him for sure is.the one t)J�t you actually recorded, A. Once· we left. 'Once I had my mother in the, car ..

:CJ.. And yqu Itad.nor merged. anybody in that 01�e?

A. Absoluietynot.

�:r.., 6/17/1 Q; pp. 49�50). (emphasis added]

As Ms. Nixon was· on· the telephone with Ms. Siojo, pursuant to the Supreme Court's determinationin CommohwealthV. Spe·nce! supra.. ;.JheAcldoes.not prohibit orotherwise limit the

JO

irnerception �fpriv.at�:comm��ications usmgtelephones .. Moreover, as:cvi�e�ced'above; at notime did.Ms, 'Nixon inientionally injercept.endeavor to intercept, or ·ptoo.u.reJrnyoH1er: person to intercept or t� endeavor to-intercept an.ywi're,.electr�mi�, or oral cornmunicatien. 18_'.Pa.C:S.A. §.S.70J(l'). Ms: Siojo, usingher.cell phone, onlyrnerged her telephone.call withher mother and ADA Nixon, there is

no· violation of the Wiretap Act· .:wpli�able to Appellant. At no time was Appellant's telephone conversation -intercepted,

Additionally, as testified to· qy. Ms. Nixon, when Ms .. :Siojo put her on three-way calling, she . only heard "chaos;" she could hear a man anda woman'svoice, but not what was being said. (N.T., 6/17/i.$,_pp..56�59., -� 1-·qJ). ... Shetestifiedthat she did. not ask Ms: Siojo to record any conversations with-Appellant, she.did not ask her-to gather informariorr.regarding the underlying case (ie., the

-assault on Eugene Kellam), - not was sheapartytothe

.

later-conversation between Appellant and his

. daughter that was recorded. (N;T._, 6/ 171.16, pp;-56�59).. According to N1s. Nix oh, she has a

friendship with Ms ... Siojo, who -used to be her hairdresser, that :is not related to her jab'; she \Vas speakingto.her as· her friend, net-as-anassistant district.attorney. (N .T.,, 6/,l 7/J 6, p. 5:2) .. Ms. Nixon

testified.that she was at work.when Ms. Siojo calied her and wasunaware of any :record'ings, until a ,p:r·oseclitor latet told. her; ·(N,t .. , fJ/Fl/16., :p,5:8).

BY MR. ADAMS: Q·. During. what W�S· characterized as the chaos conversation, rhe conversationthat had a lot of chaes going onandthat youwere three-

wayed 'into the conversation, you could hear· Rashada's voice.and a female's voice, correct?

A. I could hear Rashada's voice most dearly .. i could hear a female and lcould bear' a male.

Q; 'Okay . Could you understand i;tny ofthe words being said?

A, No.iand I wasn't trying to, to he honest. with you'.

Q; Hew long did the three-way conversation go on that you were listening to?

.�. I don't know. .. Long enough (or me to get the.police.to her home, You have to understand. I care .aboci her. I was nervous too.

Q . .So.it was.long euough for -- .

THE CQ.URt:· Can we.jus], confine ourselves to-thequestion, answer.

Moveforward.jilease.

M.R-ADAMS� Fair enough, Y.9u� Honor.

BY iYlR. APAMS: Q. Ji waslong enough for .)'OU togo Up the- . stairs .and speak to (he section chief, correct? · · A. Correct

Q:· And during that time, you then put the conversation on speakerphonc?

A. Correct.

Q. So the section chief and you are listening to the conversation;

correct?

MS'. COELHO:· Objection to. "conversation."

BYMR. ADAMS.: Q.·Ory.o.u could.hear thechaos going on --

THE couar- Overruled.

Did· you= hear the chaos?

:fHE. WITNESS·: Yes.

i�H E. comrr :.- Everybody listening. Everybody screaming.

Move on.

BY MR. ADAMS: Q� You could h ear. .a male vo Ice, a· fern ale voice, ,'1!1d Rashada's voice?

�. Correct.

Q_ .. ts: your. testimony that you can't understand any of.the words from 'the female"? ·

THE. CO.l,.1Rt:· Thal 's what's she said already; Sustai ned.

Moveon, please.

.!VI°R. ADAMS: Aii right.. I'have no further questions ..

(}l:.T,, .6/l 7/16,. pp. 6 l.-93.).

The. "conversation"

. . Ms. Nixonheard.when shewas brought . . in.onbythree-way

' . calling,

. wasa

telephonecallbejwecn.Ms. Siojo and' her mother, not Appellant, Moreover, she could not hear what was· being said - only yelling and screaming bya man and.a woman. This claim failed.

B. "Defc.ct-iv.e Bill of lnforrrialH:m Appellant next argued thathe was- denied hisSixth and Fourteenth Amendment rights and

.... - .. ··- ·--··-··-·-"·····. .. . . ,- ·--·· ·----···-·-· .- ·-·····--·· .. ···--· ··- .._. -······ ·-··-············-...-.-.----··--········ _ .

Article J, Section .9· �t�Ie Consfitutional rFght. as .t� trial court lacked.subject rninrer.Judsdictjon basedon fatally defective. biJJ5:.ofi.nfolJl')�ti'Q.n which failed to giveformal and sp�.ci fie jurisdictional

.accnsaticns; the' uu of information lacked essenfial factual. elements of misconduct 'on its face

therebyrendering the pill of information insufficient to support a conviction of �ggravat�d assault, This at(;'.ume·nt fails,

Appellant's challenge to the.trialcourt'ssubject matter jurisdiction presented a question of

law over whichthe Suj).eri.o{Coufr'.s.standa:rd·ofrevicw. is de nov.0,. See Commonwealth v. Seiders; l l A.3d 4.9S., :496-97 (Pa. Super. 2010) f'Juri·s.dictiori is· purely a question of law; the appellate

standard of reviewis-oe 110vo and the scope of review plenary.") (citation omitted).

The Pennsylvania Supreme.Court.hasheldthat subject matter jurisdiction requires.boththat the-co urt be competent to hear 'the case· and that the. defendant be provided with a formal and sped f c. accusation of'thecrimes charged, CommonwealthV. Hatchin, 709 A.2d 405, 408 (Pa. Super. i998), appeal denied, .?-.27 A.2d 128· (Pa. t99.8) (citation and quotation marks omitted). To satisfy the constitutional requirementsunder the SixthAmendmenrtothe Unite.d. States.Constitutionand Article I, :$e.Qtioo ·9 of' the.Pennsylvania Constitution, c,l. criminalInformation must. give a-defendant formal, specific notice ofthe charged crimes. Commonwealth v. Nischan, 9:28 A.2�. :3.49,.3:56 (Pa. Super, 20.07):,_:appeal-d'e'nied,/)36 A.2d 40 (Pa. ·2.097) (citation omitted).

The purpose · ofan Information or an Indictment is· to 'provide th� accused with 'sufficient notice to. prepare a defense, .and to ensure that he will hot be tried twice for the same act An Indictment or an Information-is sufficient if it.sets -forth theelements of the offense intended to be c)iarg�� with sufficient detail that the defendant is apprised ofwhat he must be prepared to meet, and .may plead double· jeopardy in. a 'future· prosecution based 'on- the same set of events. This may be accomplished through use of the words of the statute itself as long as those words of.themselves fully, directly, and expressly, without any uncertainty- or ambiguity; set forth al-I the elements, necessary to constitute the offense intended to. be punished. Commonwealth v. Chambers, 852 A.2d 1197? 1199 (Pa. Super.. 2004), appeal denied, 871 A-.2d 188 (Pa. 2005) (citations and quotation marks ·o�i tied): see also Pa,R. Crirn.P. 560(B)'.

Here, Appellant argues that this Courflacked subject matter jurisdiction over him becausethe criminal information was.insufficient. 'Specifically, he -,argues-thattheinformation was insufficient ·because it "failed to give formal and speci fie accusation ofjurisdioticnallyrequired essential factual .elements.ofthe misconduct·�o'cnable-Appellant.to:prepare:ad·efense.. andavoiddoublejeopardy.and further-enable the trial court; and this court to find facts on the face of.the information sufficientto support a conviction for aggravate assault." (n,.pro se I ?25(b) Statement, gated-August 13, 20.17).. Therefore, he· claims he did not have notice of the. nature and cause of the accusation against him.

Herc, the Information charges that in the City and County of Philadelphia, Pennsylvania, Appellant:

COUNT 1: Aggravated Assault - (Fl}

Offense Date: 03/ 16/2014 i 8 (Pa.O.S·. .] :} 2702' §.§; A Attempted to cause serious bodily injury to another! or caused. such injury intentionally, knowingly, orrecklessly under circumstances marjifes.th1� extreme indifference to the value of'hurnan life; and/or attemptedtocause, or intentionally, or knowingly did cause, bodily' injury toanother with a deadly weapon.

Notice is.hereby given that the Commonwealth intends toproceed under 42 Pa:C.S; §.

97 l 2 (relatingto sentences for offensescommitted with firearms), Victim: Eugene Kellam

...

All-of which rs against the ActofAssembly and the peace. and d4gnttj, of the Commonwealth of

14

. - .. -··-·--··-·--·-------- ...._ _.,. .,_. . " .. ·--- __ , _

Pennsylvania. (Information, 6/-13/14.) ..

Despite; Appellant's argument to the contrary, V1e information was sufficient for him to address the charges and prepare ·a defense. The information was signed l:!y the District. Attorney;

contained a proper caption, the date of theoffense, the name of the victim, the county where the offense took place, a plain and concise statement 'of thcessenfial elements of each offense, and a

proper concluding statement, ft. also contained the citations for each 'of the. statutes violated . (Information; 6/1.3/14). Through the criminalinformation, the' Commonwealth provided Appellant with a f6mfal and specific accusation of ori mes charged .. Ser? Harchin, supra af 408. The information Iully set forth the 'elements of the offenses charged with sufficient detai L:See Chambers,. supra -at 1199; see.. also Pa.RCrim.P. ;�.<,Q(B.). Therefore, Appellant's chaliengeto 'the Court's subject .matter jurisdiction is meritless.

C. Sentencing- ·Th.ree·Strikcs.

Appellant argues (hat he was deprived of his Sixth, Tenth, and Fourteenth Amendment rights· and Contract Clause rights under both the United States and Pennsylvania Constitutions becausehe was not given notice of a-possible "three strikes" sentence in the bill of information. Additionally, Appellant argues that 42 Pa.C.S.A. § 9714 is an illegal "Sentencing-scheme under Aoprem.li-linc of

Appellant concludes that the Court should not have imposed a Section 97 l 4(a} mandatory minimum sentence. Appellant's claim challenges thelegality of'hisscntence.. See Commonwcalthv .. Vasguez, 59_0.-Pa. 3'.& 1, 744A.2d 1280{�000) (stating application-of mandatory sentencing provisions implicates legality ofsentence), Issues relating to the legality of a sentence ate questions of law.

15:'

• • OO -· O ••- •--••> 00 --H•-•V#o••• -•...._..,, ,,..., ,. ••-••-..-

-----········· ·····-·····--·--······"·· ······-······ _

C6mmonwea1!h .v. · Dra·mond, ·945 A.2d 252., 1.56 {.Pa.:S�iper.2008), appeal denied, 598 Pa .. 755) ·9-5.5 A.2d 356 (2008), "The defendant or the.Commonwealth .mayappealas of.right the J'ega:Jity of the .

sentence." 42 'Pa.¢."S ..A,. § 978:-1.(a). S(J? also Comirion\vtfa�th v.. Edringtonr 7:°80 A:2a. 721

(P.a,Super:20.01)

. (maintaining legaHty-·ofsen.tenc;_e. claims' cannc] be waived.where reviewing court · '

hasproper jurisdiction). When the legality ofa.sentence is atissue on appeal.our "standard of'review over such questionsis denovo andour scopeof reviewis plenary." Diamond; supra al 256.lfno statutory authorization exists for .a 'particular ·senterr��. Ihat. sentence is illegal and subject to correction. An illegal.sentence must be.vacated. _Cotnmonwealth v. J>ombo, 26 A.3d 1155, 1157 (Pa.Super.Zfll I) quoting. Cmnmon\Vealth v. Bdwers�--25 A.3d 349, 352 (fia.Super.201 l); appeal denied. 61 �· P.a. 666.; ·5 r A.3d 8,37 (2.0J2).

Section :9714 provides, in. pertinent part-:

§. 97l4·. Sentencesforsecond and subsequent offenses

:(�}·-Mandatory sentence.e+ * *· *

(:2). Where th� person had aJ the· time of the commission of ·the current offense :pr.ev,·ousb: been 'eonvicted of· two 'or more such crimes .0f violence arising from 'separatecriminal transactiona.the person.shall be sentencedro.a minimumsentence pf at l���t.25 Jear.$ of total -�qn_fin·ement;.notJiths\anding_.any other provision o.f thi's title or other statute-lo the contrary. Proof that theoffender received notice qt' or otherwise knew or, should have ·}qlq.wh ofthepenaliies under thisparagraphshall .not be required, Upon conviction fora third or subsequent 'crime -of violence the court rnay, ff il determines that 25 years of total confinement fa: insufficient. to protect the public safety, sentencethe offender to life.imprisonment without parole.

** h

{o).Proofat sentencinge--Provlsiuns of thissection shall not bean elernerrtof the crime .and notice thereof to the defendant stialt 1101 be required prior to conviction, .but reasonable. notice of the. Commonwealth's intention to proceed under thissection shall beprovided after conviction and before sentencing. The .appHc;abil.ityqfthis_ sectionshall be determined at sentencing'. The sentencing court,

l 6°:

..•••••• ·-··-· - --· ·----···-- --·--·---·--···-·- ---. ,....,_ _ _,_. - ··-··· •• - ,. _.._.. J/V'� --,· - _ _ __,_

prior to imposing sentence.on anoffender under subsectionI a); shall have· a corn plete record of the.pr.evi"ous.cqnvictions of the offe·�ct.er> copies-of which shall be-furnished totheoffender, Ifthe offenderorthe attorney for the Commonwealth conteststhe -accuracy o.fthe record, the-court shall schedule. ahearing and direct rbe.offenderano the attorney to;:

the :Com·monwel:l.lth to. submit. evidence regarding the prevloos convictions-of the offender.. The court shall then· determine: by. a.preponderance of -t_be evidence, 'the previous: convictions of the offender and, if jhis .sectioc is applicable, shall impose.. sentence in accordance \�'ith this.section.

42 .P&;C.S.A.. § 97·14{aj(2 .), (tl) _(emphasi"sadded).· Theterm "crimeofviolence" includes robbery as

definedin 18.. -P�-. C -.S .. §. 3 70l (�Kl }(i), ·oo. or (iii) (relating to robbery} · 42 Pa.C. S.A. § 9714(g).

The. p Iain language o f�ectio_n 97 l 4{<1) ind ica tes that the sen t encing court:, by rev iewing the,

defendant's.criminal record atthe time.of.sentencingdetermi nes whether the defendant issubject to the (two or} three strikesprovision of subsection ·ca)(.2t Further, it becomes imperative thatthe facts relied upon by the sentencing court be accurate. Commohwcaith v. Medley, 725 A.2d 1225, 1229 (Pa.. SJJper.1999}, 'appeal denied. ·5.6.l Pi,L .67�. . ·749 A,2d 4q8 (2000) quoting Commonwealth v. Kerstetter; 580 A2'd ·11.14_; U 35. (Pa.Super.l g9·0), However; a proceeding held to determine .sentence is -not 'a trial, and the court .i:s not bound bythe: restrictive rules of evidence properly applicable to, trials. ·Rath.er, the court may receive anyrelevant information for 'the purposes of

Although sentencing proceedings must compor:t- with due process, the con victed defendant need not be-accorded the entire panoply of criminal trial procedural rights. In fact, the due process. clause should not be treated as a device forfreezlng.the evidential procedure of sentencing in the meld of trial procedure. M.ecflev-,.supta (irtterna] citations and quotation marks omitted). See also Commonweafth ·v.. Norris:,._8-19 A .. 2d .56-8,.574 (P.�.Super:2003). (explaining Section 9714(d) requires court to have, written records- detailing prior convictions; Commonwealth's oral account of

18

defendant's prior convictions, without written records, was insufficient for purposes of Section 97 l4(d)). Commonwealth v. Smith, 866 A.2d 1138 (Pa.Super.2005), appeal denied, 583 Pa. 682, 877 A.2d 462 (2005) (holding certain documents, including Dauphin County court records, FBI rap sheet, and National Crime Information Center rap sheet, supported finding that defendant had prior convictions for violent crimes).

Appellant's initial argument that he was deprived of his constitutional rights because he was not given notice of a possible "three strikes" sentence in the bill of information fails as the statute clearly and unequivocally states that failure to provide notice shall not render the offender ineligible to be sentenced under paragraph (2). See 42 Pa.C.S. § 9714 (a). Moreover, as required by statute, the Commonwealth provided notice of their intent to seek a mandatory sentence under section 9714 in their February l 0, 2017 Sentencing Memorandum to Appellant and this Court, prior to sentencing on March 2, 2017.

Finally, Appellant contends that the mandatory life sentence imposed on him is illegal in light of Apprendi [v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)) line of cases. This argument also fails as Apprendi and its progeny, all exclude prior convictions from what is required to be submitted to the jury when seeking to increase a sentence.

In Apprendi, supra., the United States Supreme Court, held that "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [emphasis added] With that exception, the Court endorse the statement of the rule set forth in the concurring opinions in that case: "[I)t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally

19

clear that such facts must be established by proof beyond a reasonable doubt." 526 U.S., at 252-253, 119S.Ct.1215(opinionofSTEVENS,J.);seealsoid.. at 253, I 19S.Ct. 1215(opinionofSCALIA, J.). Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000).

The Appellate Courts have continuously held that prior convictions are not facts that need to be submitted to a jury and proven beyond reasonable doubt in sentencing. See Alleyne v. United States, 133 S.Ct. 2151, 2160 n. l (2013). See also, Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015). In Alleyne, the Supreme Court of the United States held that the Sixth Amendment requires that any fact--other than a prior conviction-that increases a mandatory minimum sentence for an offense must be submitted co the jury and proven beyond a reasonable doubt. Importantly, Alleyne did not overturn prior precedent that prior convictions are sentencing factors and not clements of offenses. Alleyne, 133 S.Ct. at 2160 n. I; see also Alemendarcz-Torrcs v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998). Additionally, the Superior Court has recognized that Alleyne does not invalidate mandatory minimum sentencing statutes that pertain to a defendant's prior convictions. See Commonwealth v. Watlev, 81 J\.3d I 08, 117 (Pa. Super. 2013). Section 9714 increases mandatory minimum sentences based on prior convictions. See 42 Pa.C.S. § 9714(a)(I). Accordingly, this section is not unconstitutional under Alleyne. See Alleyne. supra; see also Commonwealth v. Akbar, 91 A.Jd 227, 239 n. 9 (Pa. Super. 2014), appeal granted and order vacated on other grounds, - Pa. --, 111 A .3d 168 (20 I 5).

In sum, Appellant's arguments failed to demonstrate that he is serving an illegal sentence.

IV. CONCLUSION In summary, this Court has carefully reviewed the entire record and found no harmful, prejudicial, or reversible error and nothing "to justify thegranting ofAppella[i(�·.rcq_u�s.t for relief in this case, For the reasons ,sef forth above, . Appellant's j udgrnent of sentenceshould be affirmed,

20

.. . .. .. .. .. . .. _ ·- ···-·-·····------· -·--··-----·---··-- ····--- ···----·· ····�-·----- ..