Com. v. Velez-Zaragoza, F.

Superior Court of Pennsylvania

Com. v. Velez-Zaragoza, F.

Superior Court of Pennsylvania·Decided December 19, 2023·No. 2476 EDA 2022·Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

FRANCISCO VELEZ-ZARAGOZA :

:

Appellant : No. 2476 EDA 2022

Appeal from the Judgment of Sentence Entered September 21, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000334-2021

BEFORE: BOWES, J., NICHOLS, J., and KING, J. MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2023 Appellant Francisco Velez-Zaragoza appeals from the judgment of sentence imposed after he pled guilty to rape of a child and related offenses. Appellant argues that the trial court abused its discretion by denying Appellant’s request for public funding to hire a defense expert for the sexually violent predator (SVP) hearing. We affirm.

We adopt the trial court’s facts and procedural history. See Trial Ct.

Op., 11/16/22, at 1-2. Briefly, Appellant entered a negotiated guilty plea to rape of a child, involuntary deviate sexual intercourse, and statutory sexual assault on January 28, 2022.1 The Honorable Diane E. Gibbons deferred sentencing for the Sexual Offenders Assessment Board (SOAB) to determine whether Appellant was an SVP.

1 18 Pa.C.S. §§ 3121(c), 3123(a)(7), and 3122.1(b), respectively.

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On June 1, 2022, Appellant filed a motion requesting that the trial court provide $2,000 in public funds for Appellant to use to hire an expert witness for the SVP hearing. In support of his request, Appellant made the following assertions:

4. [Appellant’s] family has been contacted requesting funds to hire a defense expert and various experts had been contacted for the purpose of retaining them.

5. [Appellant’s c]ounsel has been able to procure an expert who will review the [SOAB] file, write a report, and testify for a fee of $4,000.

6. [Appellant’s] family has gathered all available funds and [was]

able to come up with $2,000 to cover the cost of the expert.

7. [Appellant’s c]ounsel will be severely handicapped in cross examining the SOAB psychologist and presenting a defense to her finding if a defense expert cannot be retained.

Appellant’s Mot. for Public Funds, 6/1/22, at 1-2 (unpaginated).

Appellant did not attach an affidavit describing his inability to pay the proposed expert’s fee or any documentation regarding his financial status to his motion. The Honorable Raymond F. McHugh denied Appellant’s motion for public funds on July 25, 2022.

The Honorable Charissa J. Liller conducted Appellant’s sentencing and SVP hearing on September 21, 2022. Appellant objected to proceeding with the SVP hearing that day because Judge McHugh had denied his motion for public funds to hire an expert witness. The trial court overruled that objection. The Commonwealth presented the testimony of SOAB member Veronique N. Valliere, Psy.D., who concluded that Appellant met the criteria for an SVP

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pursuant to the Sexual Offenses Reporting and Notification Act 2 (SORNA II). Appellant did not call any witnesses for the SVP hearing. Ultimately, the trial court sentenced Appellant to the agreed-upon term of ten to twenty years’ incarceration pursuant to the negotiated plea agreement. The trial court also concluded that Appellant was an SVP.

Appellant filed a timely notice of appeal. Both Appellant and the trial court3 complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue:

Did the trial court abuse its discretion in denying Appellant’s motion for funds for expert witness without a hearing?

Appellant’s Brief at 8 (formatting altered).4 In his sole claim, Appellant argues that the trial court erred by denying his motion for public funds to hire an expert for the SVP hearing. Id. at 11- 18. Appellant contends that as an indigent defendant, he had a right to a public funds to hire an expert witness for the SVP hearing. Id. at 11-14 (citing, inter alia, Commonwealth v. Curnutte, 871 A.2d 839 (Pa. Super.

2 42 Pa.C.S. §§ 9799.10-9799.42.

3 Although Judge McHugh denied Appellant’s motion for public funds, Judge Liller was the sole author of the trial court’s Rule 1925(a) opinion.

4 We note that in his Rule 1925(b) statement, Appellant also argued that SORNA was unconstitutional. See Rule 1925(b) Statement, 10/14/22. Appellant has not raised this claim in his appellate brief; therefore, Appellant has abandoned this issue on appeal. See Pa.R.A.P. 2116(a), 2119(a); see also Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding waiver where the appellant abandoned claim on appeal).

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2005)). Appellant further claims that the trial court erred by denying his motion without first holding a hearing to determine whether Appellant was indigent. Id. at 15-17 (citing Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008)).

This Court has explained that “the provision of public funds to hire experts to assist in the defense against criminal charges is a decision vested in the sound discretion of the court and a denial thereof will not be reversed absent an abuse of that discretion.” Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016) (quoting Cannon, 954 A.2d at 1226) (some formatting altered).

It is well-established that indigent defendants have a right to access the same resources as non-indigent defendants in criminal proceedings. The state has an affirmative duty to furnish indigent defendants the same protections accorded those financially able to obtain them. Procedural due process guarantees that a defendant has the right to present competent evidence in his defense, and the state must ensure that an indigent defendant has fair opportunity to present his defense.

Id. (citations omitted and some formatting altered).

However, “the Commonwealth is not obligated to pay for the services of an expert simply because a defendant requests one.” Id. at 1020-21 (quoting Curnutte, 871 A.2d at 842) (some formatting altered). This Court has explained that when it reviews a trial court’s exercise of discretion in determining “indigency for the purpose of appointing an expert . . . we look for guidance to principles established for assessing indigency in determining

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whether a party may proceed in forma pauperis, or is entitled to the appointment of counsel.” Id. at 1020 (citing Cannon, 954 A.2d at 1226).

[A] party seeking to proceed in forma pauperis is required to file a petition and an affidavit describing in detail the inability to pay the costs of litigation, including the information from the applicant regarding, present or past salary and wages, other types of income within the preceding year, other contributions for household support, property owned, available assets, debts and obligations, and persons dependent for support. . . .

[When considering whether a defendant is indigent for the purposes of appointment of counsel, a]mong other factors that may be relevant to a defendant’s financial ability to hire private counsel are the probable cost of representation for the crime charged and the defendant’s liabilities.

* * *

[M]erely retaining private counsel does not, in itself, establish [that the defendant] was not indigent.

Id. at 1020-21 (citations omitted and formatting altered).

Additionally, “[a] mere averment of indigency and inability to pay is not sufficient to trigger the necessity for a hearing under Cannon. The defendant must make some specific showing of a financial hardship for the court to afford relief.” Id. at 1021. Because the defendant in Konias failed “to supply the trial court with, at a minimum, any financial information substantiating his inability to pay[]” for an expert, this Court affirmed the trial court’s order denying the defendant’s motion for public funds to hire experts. Id.

Here, after reviewing the record, the parties’ briefs, and the well-

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