Com. v. Pham, C.

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2019
• Docket: 2207 EDA 2018
• Status: Unpublished

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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.

CUONG PHAM,

Appellant No. 2207 EDA 2018

Appeal from the PCRA Order Entered June 15, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014307-2011

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 07, 2019

Appellant, Cuong Pham, appeals pro se from the post -conviction court's

June 15, 2018 order dismissing his timely -filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the facts and procedural history of

Appellant's underlying convictions, and we need not reiterate that discussion

for purposes of this appeal. See PCRA Court Opinion (PCO), 11/21/18, at 1-

4. Appellant filed the pro se PCRA petition at issue herein on December 7,

2017. Counsel was appointed, but instead of filing an amended petition on

Appellant's behalf, counsel filed a Turner/Finley' 'no -merit' letter and

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J -S29015-19

petition to withdraw. On May 18, 2018, the court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant's petition without a hearing, to which

he filed a pro se response, as well as an amended PCRA petition. However,

on June 15, 2018, the PCRA court issued an order dismissing Appellant's

petition and granting counsel's request to withdraw.

Appellant filed a timely, pro se notice of appeal. The PCRA court ordered

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant, however, did not file any Rule 1925(b) statement but,

instead, he filed two additional, pro se amended petitions. On November 21,

2018, the PCRA court issued a Rule 1925(a) opinion.

Herein, Appellant presents twelve issues for our review in the

"Statement of the Questions" portion of his brief, yet he delineates only two

separate claims in his "Argument" section. See Appellant's Brief at 2-3

("Questions Presented for Review"); id. at 11-15 ("Argument").

Consequently, Appellant has failed to comply with Pa.R.A.P. 2119 ("The

argument shall be divided into as many parts as there are questions to be

argued; and shall have at the head of each part - in distinctive type or in type

distinctively displayed - the particular point treated therein, followed by such

discussion and citation of authorities as are deemed pertinent."). The two

claims set forth in Appellant's "Argument" section are the following:

[I.] Base[d] upon the legislative intent, foran individual to be convicted under the statue [sic] 18 Pa.C.S.[] § 5902(3), the individual must do more than make an offer to another person for sexual activity: the individual must undertake acts the [sic] demonstrate he has hired that person to perform a sexual act.

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[II.] [Appellant's] action of soliciting for ... sexual activity without money exchanging hands or him undertaking further action that would demonstrate he has hired an individual does not constitute "hire" under the statute 18 Pa.C.S.[] § 5902(e), and thus[,] the evidence proffered at trial was insufficient to sustain his conviction. See Appellant's Brief at 12, 13.

This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

In the case sub judice, we have reviewed the certified record, the briefs

of the parties, and the applicable law. Additionally, we have considered the

thorough opinion of the Honorable Daniel D. McCaffery of the Court of

Common Pleas of Philadelphia County. We conclude that Judge McCaffery's

well -reasoned opinion accurately disposes of the issues presented by

Appellant. Accordingly, we adopt his opinion as our own and affirm the order

dismissing Appellant's PCRA petition for the reasons set forth therein.

Order affirmed.

Judgment Entered.

J seph D. Seletyn, Prothonotary

Date: 8/7/19

-3 Circulated 07/19/2019 10:51 AM

IN THE COURT OF COMMON PLEAS PHILADELPHIA FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION-CRIMINAL SECTION

COMMONWEALTH OF PENNSYLVANIA : PHILADELPHIA COURT : OF COMMON PLEAS : CRIMINAL TRIAL DIVISION

v. CP·Sl-CR-0014307-2011

CUONG PHAM FILED r: ��:5�-CR-;\4�0�-;��1 ��-m. �- ��:.��u;o: · Opinion • Nov 21 201a

I IIIll 11111II111111111 Ofn�PeaJs!Post Trial OPINION 11 I of Jud/cfal Records .'-·--- --- 8192428381 ·- ---· --- --· MCCAFFERY, J

Cuong Pham (hereinafter "Appellant") appeals from an order denying him relief pursuant

to the.Post-Conviction Relief Act (hereinafter PCRA). 42 Pa.C.S. § 9541 et seq. For the reasons

set forth below, it is suggested that the order be affirmed.

PROCEDURAL HISTORY

On March 23, 2015, following a waiver trial, Appellant was found guilty of Patronizing

Prostitutes, graded as a misdemeanor of the third degree, pursuant to 18 Pa.C.S. § 5902(e).1

Following the verdict Appellant waived the preparation of pre-sentence reports: and this Court

imposed a sentence of time served to twelve months' incarceration. After the imposition of

sentence, Appel1ant filed a motion for reconsideration of sentence, which this Court denied on

May 22, 2015. Appellant then filed a notice of appeal. On November 22, 2016, the Superior

Court affirmed the judgment of sentence. Commonwealth v. Pham, 159 A.3d. 595 (Pa. Super.

2016). A petition for allowance of appeal followed and on September 8, 2017, the Pennsylvania

I Appellant was originally tried by a jury in June oF2012 and was convicted oFthe above offense. On April 22, 2014, the Superior Court granted him a new trial. Commonwealth v. Pham, 2583 EDA 2012. Supreme Court denied the petition. Commonwealth v. Pham, 170 A.Jd. l 033 (Pa. 2016).

On December 7, 2017, Appellant filed a prose PCRA petition. Counsel was appointed to /

represent him and on May 17, 2018, counsel filed a no-merit letter pursuant to Finley v.

Pennsylvania, 481 U.S. 551 (1987), and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

a Motion to Withdraw as Counsel. After this Court carefully and assiduously reviewed the entire

record, it sent Appellant a Pa.R.Crim.P. 907 Notice of Intent to Dismiss on May 18, 2018, upon

finding that Appellant could not obtain PCRA relief because he was no longer serving a

sentence. Appellant responded to the notice by letter dated May 29, 2018. In his letter he raised

issues involving the scheduling of the PCRA and asserted that he did not request the appointment

of PCRA counsel. On June 11, 2018, he filed an amended pro se PCRA petition wherein he

argued that he should be entitled to equitable post-conviction collateral relief because no one

explained to him that he could not obtain PCRA relief if his sentence had expired.

On June 15, 2018, after again reviewing the entire record, this Court issued an order

dismissing Appellant's PCRA petition without a hearing and granting PCRA counsel's motion to

withdraw. On June l 0, 2018, Appellant filed a pro se notice of appeal from the June 15, 2018

order. Although ordered to file a Pa.R.A.P. 1925(b) Statement of Matters Complained of on

Appeal, Appellant filed two pro se amended PCRA petitions on August 27, 2018, and September

7, 2018. As best that can be discerned, Appellant again argued that he never requested the

appointment of PCRA counsel and that he never signed a contract with appointed counsel. He

also claimed that he should have been granted relief because he is actually innocent, the evidence

was insufficient to sustain his conviction, counsel forced him to waive his right to a jury trial,

and there is a restraint on his liberty due to his inability to scrub the memory of his conviction

from his mind.

2 FACTUAL HISTORY

On December 9, 2010, at about 12:30 a.m., Philadelphia Police Officer Stephanie

Rosenbaum and other officers were in the 1800 block of East Sergeant Street investigating

activity related to prostitution because of a string of murders of prostitutes in the area. (N.T.

3/23/15, 12-13). Officer Rosenbaum's role was to act as a decoy. (N.T. 3/23/15, 12-13). While

doing so, a brown Nissan Maxima pulled up to her and the driver, the Appellant herein, told the

officer that he wanted a "blowjob." (N.T. 3/23/15, 13). Officer Rosenbaum asked Appellant

how much he was willing to pay and he said, "$20.00,, Id. Officer Rosenbaum contacted

members of her back-up team who placed Appellant under arrest.

Appellant testified in his own defense. He stated that on the night of the incident he

intended to visit a Vietnamese handyman who he wanted to hire to remove Appellant's property.

According to Appellant, while looking for a parking spot, a woman approached and asked him

what he wanted and if he had any money. (N.T. 3/23/15, 24-27, 39-40). He asked her what she

wanted and told her to leave. (N.T. 3/23/15, 12-13). Appellant denied that he was looking for

oral sex that night or that he asked the officer for a blowjob, (N.T. 3/23/J 5, 25, 39-40), adding

that his wife was in the car when the officer approached but had exited to meet the handyman

before he was arrested. (N.T. 3/23/15, 42).

Jane Huynh, Appellant's wife, also testified in his defense. She indicated that on the night

of her husband's arrest, she drove to the area where the incident occurred to meet her husband

who was planning to meet with a handyman. (N.T. 3/23/15, 61, 64). When Appellant arrived,

she entered the passenger side back seat of Appellant's car, which had a large coffee pot and

tools partially obscuring her. (N.T. 3/23/15, 61-62). While her husband was searching for a

parking spot, a woman approached the car and said something to Appellant. (N.T. 3/23/15, 63-

3 64). Ms. Huynh told her husband that she did not want to be involved in what was occurring and

told him to drive away. (N.T. 3/23/15, 64).

DISCUSSION

Instantly, Appellant failed to comply with this Court's order directing him to file a

1925(b) Statement of Matters. Consequently, he waived appellate review of any claim he raises

on appeal. Precedent in this Commonwealth firmly establishes that when an appellant is ordered

to file a Rule 1925(b) statement, he or she must comply with Rule 1925(b)'s requirement in

order to preserve issues for appeal, and that any appellate issues not raised in a compliant Rule

l 925(b) statement will be deemed waived. See, e.g., Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998). It is noted that the Superior Court has held that this principle applies in PCRA

proceedings. See Commonwealth v. Butler, 812 A.2d 63 l, 633 (Pa. 2002).

In a criminal case, however, Rule 1925 contemplates that not filing a timely Rule l 925(b)

Statement may be deemed to be "per se ineffective." Pa. R.A.P. 1925(b)(J). Nevertheless,

because Appellant represents himself on appeal that exception does not excuse Appellant's

failure to comply with this Court's order. The Pennsylvania Supreme Court has held that where

an individual insists on representing himself at any stage of criminal proceedings against him,

that individual cannot later assert his own ineffectiveness on appeal. See Commonwealth v.

Griffin, 644 A.2d 1167, 1171 (Pa. 1994) (adopting the Superior Court's standard with regard to

pro se criminal defendants who represent themselves). Accordingly, it is respectfully suggested

that the order appealed from be affirmed because Appellant waived appellate review by not filing

the ordered l 925(b) statement.

To the extent that Appellant might be claiming that the issues set forth in the two PCRA

petitions Appellant filed after this Court issued the 1925(b) order preserved the issues contained

4 therein for appellate review, he still would not be entitled to review. The law is clear that a

defendant may not file a subsequent PCRA petition while a PCRA appeal is pending.

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000). Therefore, the issues raised therein are a

nullity.

Finally, and most importantly, this Court's order should be affirmed because, at the time

Appellant filed his pro se PCRA petition, he no longer was serving a sentence. The Pennsylvania

Supreme Court has clearly and unequivocally held that a defendant cannot obtain PCRA relief

once his or her sentence has expired. Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997).

That rule applies even in so-called "short sentence" cases. In Commonwealth v. Turner, 80 A.3d

7 54 (Pa. 2013), the Pennsylvania Supreme Court explained that "due process does not require the

legislature to continue to provide collateral review when the offender is no longer serving a

sentence." Id. at 765. The Court explained its rationale as follows:

Because individuals who are not serving a state sentence have no liberty interest in and therefore no due process right to collateral review of that sentence, the statutory limitation of collateral review to individuals serving a sentence of imprisonment, probation, or parole is consistent with the due process prerequisite of a protected liberty interest. Of course, the legislature was free to extend a statutory right of collateral review to individuals like Petitioner who had completed their sentence and, had they done so, they would be constitutionally obligated to ensure that those rights were impacted only in accord with due process. However, the legislature did not do so. Rather, the General Assembly, through the PCRA, excluded from co11ateral review those individuals who were no longer subject to a state sentence, thereby limiting the statutory right of collateral review to those whose liberty was constrained.

The legislature was aware that the result of the custody or control requirement of Section 9543(a)(l)(i) would be that defendants with short sentences would not be eligible for collateral relief. Indeed, that was the apparent intent: to restrict collateral review to those who seek relief from a state

5 sentence. The legislature's exclusion from collateral relief of individuals whose liberty is no longer restrained is consistent with the eligibility requirements of habeas corpus review under the general state habeas corpus statute[.)

The PCRA provides eligibility for relief for cognizable claims, including claims of ineffective assistance of trial counsel, and is the sole means of obtaining collateral relief in Pennsylvania. Petitioners are required to satisfy, inter alia, the criteria for eligibility for relief, and the timeliness restrictions. By further limiting the eligibility for relief under the PCRA to petitioners serving sentences, our legislature chose not to create any statutory entitlement to collateral review for defendants who have completed their sentences.

Turner, 80 A.3d at 766-67 (citations omitted).

Under the above authorities, it is suggested that Appellant be denied appellate relief and

the order issued by this be affirmed.2

CONCLUSION

Based on the foregoing, it is respectfully suggested that the Order of this Court denying

Appellant PCRA relief be affirmed.

BY THE COURT,

Date: November 21, 2018

2 It is noted that Appellant did not raise as an issue a claim that he never complained about never having requested that PCRA counsel be appointed to represent him until after this Court sent him the 907 notice. He also never directly requested permission to represent himself. Also, it is noted that there is no equitable or "sympathetic" exception to the requirement that a defendant must be serving a sentence to obtain PCRA relief. Finally, the appointment of counsel has no effect on the finding that Appellant could not obtain PCRA relief because he was no longer serving a sentence.

6 CERTIFICATION OF SERVICE

I, James Molinari, Esquire, Law clerk to the Honorable Daniel D. Mccaffery hereby

certifies that on the 21st day of November, 2018, by first class mail, postage prepaid, a true and

correct copy of the attached opinion was served upon the following:

Cuong Pham, Pro Se 3218 N.45th Street Pennsauken, N.J. 08109

Lawrence J. Goode, Esquire Chief-Appeals Unit Office of the Philadelphia District Attorney Three South Penn Square Philadelphia, PA 19107