Com. v. White, H.

• Court: Superior Court of Pennsylvania
• Decided: July 1, 2021
• Docket: 1283 MDA 2020
• Status: Unpublished

Opinion

J-S10018-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HEIDI ANN WHITE : : Appellant : No. 1283 MDA 2020

Appeal from the Judgment of Sentence Entered December 9, 2019 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000184-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 01, 2021

Heidi Ann White appeals from the judgment of sentence entered

following her jury trial conviction for conspiracy to commit burglary,

conspiracy to commit theft by unlawful taking, and conspiracy to commit

receiving stolen property.1 White claims the trial court erred in permitting the

jury to have a copy of her written statement during jury deliberations and the

court erred when it sentenced her to a fine without considering her ability to

pay. White waived her claim that the court erred when it permitted the jury

to have her written statement by failing to lodge a timely objection below. We

find her inability-to-pay claim meritorious and vacate and remand for

resentencing.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 903, 3502(a)(2), 3921, and 3952. J-S10018-21

In January 2019, White was charged with conspiracy to commit burglary

and theft of jewelry and prescription narcotics from the victim’s home. During

deliberations at White’s December 2019 jury trial, the jurors asked to see two

pieces of evidence, one of which was White’s written statement.

THE COURT: So this is the question that they sent. Are we able to see the other pieces of evidence, the statements made to the police? . . . The next one is Commonwealth’s Exhibit 3. It’s captioned Pennsylvania State Police noncustodial written statement, made by Heidi Ann White with her address, the time and date, November 25, 12:55 . ..

And then it says I, Heidi Ann White, the undersigned, have been informed by Trooper Andrew Delkiewicz, an officer with the Pennsylvania State Police, that I am not detained, under arrest, or otherwise in custody.

...

And then under the narrative, in her handwriting, she writes, on Friday, November 16, 2018, I, Heidi White, picked up Devin Hoffman on Bridge Street in Williamsport. We were going to Francis Starr’s in Elimsport.

I, Heidi, was cleaning the house after we got Francis off the floor from being passed out. She, Francis, needed to go to the doctor’s office. I, Heidi, forgot my purse and got the key from Francis. Devin and I returned to the house. I, Heidi, got Francis’s phone and cord, underwear and socks. Devin asked about what jewels she had. I, Heidi, showed her. She got three necklaces, one ankle bracelet, and two rings. I, Heidi, saw Devin with a handful of pills. I, Heidi, don’t touch any; and she said they were Hydrocodone.

Is the information contained in this two-page statement true and correct to the best of your knowledge and belief? Yes. Was the statement given of your own free will and accord without any promises or threats? Yes. Are there any corrections in the statement that you wish to make? No. Will you now sign the statement and initial each of the two

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pages? Yes. She dates and signs them about ten minutes later.

Any objection from either counsel in sending out this written statement?

[ASSISTANT DISTRICT ATTORNEY]: No, Your Honor.

[DEFENSE COUNSEL]: Your Honor, as her defense counsel, I have to think about it, whether or not it’s more prejudicial to her. But it’s already been read into testimony that they heard so.

[THE COURT]: Yeah. Well, it’s the Defendant’s written statement.

[DEFENSE COUNSEL]: Yeah.

[THE COURT]: She’s acknowledged that it’s her written statement. She’s offered some explanation as to why her testimony today was different then the written statement. She’s raised questions about its voluntariness.

So the substance of the statement and the indications she’s noted on here that at the time she was indicating was voluntary certainly are relevant to that as well. So I’m not sure why it couldn’t go out. And the only objection, the basis for an objection, I hear you making is that it’s prejudicial.

[THE COURT]: But, you know, admissions tend to be, by their nature –

[DEFENSE COUNSEL]: And it’s an admission by a party opponent so, yeah, I understand it’s not hearsay so.

[THE COURT]: Okay.

[THE COURT]: So three and four will go out with the jury. Okay. Thank you. Counsel, do you agree there’s no reason to bring the jury in, we can just send this out, if I’m correct?

[DEFENSE COUNSEL]: Yes, Your Honor.

N.T., 12/19/19, at 151-52.

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The jury convicted White of the above-referenced offenses. The trial

court sentenced her to 27 to 240 months’ incarceration and ordered her to

pay restitution in the amount of $4,442 and a $5,000 fine. At the sentencing

hearing, the court reviewed the pre-sentence investigation report (“PSI”),2

including her prior convictions and education, and noted that she “ha[d] been

receiving disability benefits since 1994” and that she “report[ed] that she

receives her benefits due to a stroke.” N.T., 12/9/19, at 3-8. When imposing

sentence, the court found that White had the ability to pay the fine:

The Court would note that it finds that the Defendant is able to pay the 5,000-dollar fine during the approximately eight years of her anticipated parole supervision. Eight years of supervision would allow her to make payments on that 5,000 dollar fine at $625.00 a year or $52.00 a month, which assuming the Defendant continues to receive disability, appears to this Court to be affordable.

N.T., 12/9/19, at 19.

White filed an untimely post-sentence motion. In July 2020, White filed

a petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

The court appointed counsel, who filed an amended petition claiming

ineffective assistance of counsel for failing to file a direct appeal. The court

granted the petition and re-instated White’s appellate rights nunc pro tunc.

White then filed a timely notice of appeal.

White raises the following issues:

2 The PSI is not in the certified record.

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1. Whether the trial court committed reversible error by permitting the jury to have a copy of the [White’s] written confession during jury deliberations.

2. Whether the sentencing court abused its discretion when it imposed a fine in the amount of $5000.00 without making a determination of her financial resources and ability to pay.

White’s Br. at 6.3

In her first issue, White claims the court erred by permitting the jury to

have a copy of her written statement during jury deliberations. White cites

Pennsylvania Rule of Criminal Procedure 646(c)(2), which provides that

“[d]uring deliberations, the jury shall not be permitted to have . . . a copy of

any written or otherwise recorded confession by the defendant.” White’s Br.

at 10. She notes the underlying reason for the rule “is to prevent placing

undue emphasis or credibility on the material, and de-emphasizing or

discrediting other items not in the room with the jury.” Id. (quoting

Commonwealth v. Dupre, 866 A.2d 1089 (Pa.Super. 2005)). White argues

that counsel’s statement that it would be prejudicial to White amounted to a

timely objection. She also argues the error would be reversible even if counsel

did not object.

“Issues not raised in the trial court are waived and cannot be raised for

the first time on appeal.” Pa.R.A.P. 302(a). “[T]o preserve an issue for review,

a party must make a timely and specific objection.” Commonwealth v.

Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003) (quoting Commonwealth v.

3 The Commonwealth did not file a brief, instead relying on the trial courts Pa.R.A.P. 1925(a) opinion.

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Brown, 701 A.2d 252, 254 (Pa.Super.1997)). “[A]n appellant may not raise

a new theory for an objection made at trial on his appeal.” Id. (quoting

Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa.Super. 1996)). Even

issues of “constitutional dimension[] are waived if not raised in the trial court.”

Commonwealth v. Cline, 177 A.3d 922, 927 (Pa.Super. 2017) (quoting

Commonwealth v. Santiago, 980 A.2d 659, 666 (Pa.Super. 2009)).

Here, counsel did not object to sending White’s statement with the jury

during deliberations on the basis of Rule 646. Rather, counsel stated he had

to “think about” whether it would be prejudicial and, in discussing the

objection with the court, seemed to agree with the court that the statement

could be sent back with the jury. See N.T., 10/23/19, at 153-54. Because

there was no objection below based on Rule 646, White has waived the

argument on appeal.

Further, contrary to White’s contention, we cannot address this issue

even though counsel failed to object. The cases White cites for this proposition

addressed the issue as part of a claim that counsel was ineffective. See 42

Pa.C.S.A. § 9541-9546; see, e.g., Commonwealth v. Postie, 200 A.3d

1015, 1030-31 (Pa.Super. 2018) (finding counsel not ineffective for letting the

jury have a copy of the written statement during deliberations where counsel

had a reasonable basis); Commonwealth v. Karaffa, 709 A.2d 887, 890

(Pa. 1998) (finding counsel ineffective for failing to object to sending written

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jury instructions with the jury during deliberations).4 Here, because counsel

did not raise this objection at trial, we cannot review the merits of the claim

on direct appeal.

The trial court suggests in its Rule 1925(a) opinion that White also

waived any derivative ineffectiveness claim by failing to include it in the PCRA

petition seeking nunc pro tunc appellate rights. Trial Court Op., filed Oct. 22,

2020, at 2. We disagree. Because the court granted White the right to file a

direct appeal nunc pro tunc, any PCRA petition filed after this appeal will be

treated as a first PCRA petition, wherein she can raise any claim cognizable

on PCRA review, including ineffectiveness claims. Commonwealth v.

Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (holding “when a PCRA

petitioner’s direct appeal rights are reinstated nunc pro tunc in his first PCRA

petition, a subsequent PCRA petition will be considered a first PCRA petition

for timeliness purposes”).

In her second issue, White argues the trial court imposed an excessive

fine, and claims it did so without considering her ability to pay the fine. She

argues the “court did not consider [her] financial resources and ability to pay

before it imposed a $5[,]000 fine.” White’s Br. at 14. She notes that the court

held the amount was affordable to White “without any evidence in support of

that conclusion.” Id. She notes there “was no mention as to how much or ____________________________________________

4 Karaffa was superseded by Rule 646 “to the extent [it] would preclude that portion of the charge containing the elements of the offense charged, lesser included offenses, and defenses raised at trial from going to the jury.” Pa.R.Crim.P. 646, Comment.

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what type of disability benefits White receives nor was there any facts on the

record that would determine the nature of the burden that the fine would place

on White.” Id. Further, the fine was in addition to the $4,442 in restitution

White was ordered to pay. Id. She concludes that “the court made a

conclusory finding that the fine was affordable without any evidence to support

that finding.” Id.

White’s challenge to the imposition of the fine without considering her

ability to pay challenges the legality of the sentence. Commonwealth v.

Ford, 217 A.3d 824, 827 (Pa. 2019) (noting that a claim that a trial court

imposed a non-mandatory fine without conducting an ability-to-pay

determination “constitutes a nonwaivable challenge to the legality of the

sentence”). We review the trial court’s imposition of a fine to determine

whether it committed an error of law. Commonwealth v. Snyder, --- A.3d -

---, 2021 Pa.Super. 63, at *10 (Pa.Super. Apr. 9, 2021) (quoting

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa.Super. 2017)).

Generally, “the Pennsylvania Sentencing Code permits a trial court to

impose ‘[a] fine’ as one of several ‘alternatives’ available ‘[i]n determining the

sentence to be imposed.’” Id. (quoting 42 Pa.C.S.A. §§ 9721(a)(5), 9726(a)-

(b)). “However, the Sentencing Code also provides that ‘[t]he court shall not

sentence a defendant to pay a fine unless it appears of record that: (1) the

defendant is or will be able to pay the fine; and (2) the fine will not prevent

the defendant from making restitution or reparation to the victim of the

crime.’” Id. (quoting 42 Pa.C.S.A. § 9726(c) (emphasis removed)). “[T]rial

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courts are without authority to impose non-mandatory fines absent record

evidence that the defendant is or will be able to pay them.” Commonwealth

v. Ford, 217 A.3d 824, 829 (Pa. 2019).

In Commonwealth v. Thomas, when imposing the fine, the trial court

did not make “specific findings of [the defendant’s] ability to pay the fine

imposed,” but rather merely stated that “it had ‘all the appropriate

information.’” 879 A.2d 246, 264 (Pa.Super. 2005). This Court found the

record did not support the court’s “general finding that [the defendant] has or

will have the ability to pay a fine.” Id. It noted that the PSI was not in the

certified record and that it therefore did not know if it would “shed[] any light

on [the defendant’s] ability to pay.” Id. The Court remanded to the trial court

for a “re-sentencing after a determination of [the defendant’s] ability to pay a

fine.” Id.

Here, the trial court concluded that it considered White’s financial

resources and therefore did not err in imposing the fine:

[White’s] second matter alleges that the trial court did not consider [White’s] financial resources and ability to pay when assessing the five thousand dollar fine. The Court notes to the contrary that it did consider testimony that [White] has been receiving disability benefits since 1994 following a stroke. The $5,000 fine was assessed based on the Court’s finding that [White] was likely to continue receiving these benefits and, based on the income from the benefits alone, would be able to pay the fine over the ordered eight years of parole supervision, as payment would not exceed $52.00 a month.

1925(a) Op. at 3 (footnotes omitted).

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We conclude the court erred. Although the sentencing transcript

indicates that White has received disability payments since 1996, the record

does not contain information as to how much White received with each

disability payment or as to any liabilities White may have. Without such

information, the court could not determine that White had the ability to pay

$52.00 per month. See Ford, 217 A.3d at 829; Thomas, 879 A.2d at 264.

Further, when determining that White had the ability to pay, the court makes

no mention of the restitution award and whether the payment of the fine will

impact the restitution payments to the victim. See 42 Pa.C.S.A. § 9726(c)(2).

We remand for resentencing following an ability-to-pay determination.

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/01/2021

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