Com. v. Byrne

• Decision Date: 23 September 2003
• Citation: 833 A.2d 729
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Andrew BYRNE, Appellant.
• Court: Pennsylvania Superior Court

833 A.2d 729

COMMONWEALTH of Pennsylvania, Appellee, v. Andrew BYRNE, Appellant.

Superior Court of Pennsylvania.

Submitted March 10, 2003.

Filed September 23, 2003.

Andrew Byrne, appellant, pro se.

Nicholas J. Casenta, Asst. Dist. Atty., West Chester, for Com., appellee.

Before: STEVENS and BOWES, JJ. and McEWEN, P.J.E.

BOWES, J.

¶ 1 Andrew Byrne appeals pro se from the November 20, 2002 order denying him PCRA relief. We conclude that Appellant voluntarily waived his statutory right to credit for time served and affirm.

¶ 2 On March 29, 1992, following a two-week jury trial, Appellant was convicted of first degree murder for the July 10, 1991 strangulation death of his wife, Leona Caramanica, who also was known as Leah. On August 5, 1994, the court sentenced him to life imprisonment. We affirmed, on appeal, Commonwealth v. Byrne, 451 Pa.Super. 646, 679 A.2d 843 (1996) (unpublished memorandum), and rejected his challenge to the sufficiency of the evidence supporting his conviction.

¶ 3 Upon further review, the Supreme Court granted a new trial based on the admission of hearsay statements by Appellant's wife to a third person that Appellant had shoved and pushed her and had a violent temper. Commonwealth v. Byrne, 548 Pa. 24, 693 A.2d 201 (1997).

¶ 4 At his retrial, Appellant was convicted of first degree murder by a jury and again was sentenced to life imprisonment. On appeal, we granted Appellant a new trial because the Commonwealth committed a discovery violation. Commonwealth v. Byrne, 742 A.2d 200 (Pa.Super.1999) (unpublished memorandum). Specifically, at Appellant's retrial, the Commonwealth had impeached him by using statements that he had given during a deposition in a civil proceeding but had failed to disclose that it intended to use those statements prior to trial despite a specific defense request.

¶ 5 On February 8, 2001, facing a third trial and the distinct possibility of another first degree murder conviction and term of life imprisonment, Appellant elected to plead guilty to a charge of third degree murder. In exchange for the Commonwealth's agreement to allow Appellant to plead guilty to a lesser degree of murder despite two successful prosecutions for first degree murder, Appellant agreed to accept credit for time served of only one year.

¶ 6 The guilty plea colloquy was comprehensive. Appellant stated that he was not under the influence of narcotics or alcohol and that he was able to understand the proceedings. Appellant acknowledged that he had been provided with various documents in advance of February 8, 2001, that he had reviewed the documents both by himself and with counsel, that he had sufficient time to review them, and that he executed them. In one of those documents, Appellant expressly, knowingly, and voluntarily agreed to waive all but one year of his statutory right to credit for time served. He executed each page of the following document and separately initialed each paragraph:

1. I understand that I was found guilty of first degree murder at two previous trials. [initials]

....

14. Pursuant to this plea agreement I understand that I am only receiving credit for one year I have served in prison: February 8, 2000 to February 8, 2001. [initials ]

15. Pursuant to this plea agreement, I understand that I am waiving my credit for all the other time I served in prison: August 8, 1991 to August 16, 1991; March 29, 1992 to June 5, 1997; and October 29, 1997 to February 7, 2001. [initials ]

16. I am waiving my right to credit for time I served excluding the year knowingly, voluntarily, and intelligently. [initials]

17. No one has used any force or threats against me in order for me to waive my credit for time served. [initials ]

18. No promises have been made to me in order to get me to enter this plea, other than what is set forth in the plea agreement, if any, on pages 3 and 4 of this guilty plea form. [initials ]

19. I have had sufficient time to discuss the issue of credit for time served with my attorney. [initials ]

20. My attorney has answered all of my questions concerning the issue of credit for time served. [initials]

21. I am waiving my right to receive credit for time served because I realize that it is in my best interest to accept the terms of the plea bargain rather than subject myself to a possible conviction on first degree murder and the penalty of a life sentence. [initials ]

Addendum "B" To Guilty Plea Colloquy, 2/8/01, at 1-3. In a similar fashion, Appellant waived his double jeopardy rights, acknowledging that his attorney had explained those rights to him and that he voluntarily and knowingly waived them. Id. at ¶¶ 7, 11-13.

¶ 7 The plea agreement itself was written and executed by Appellant and his attorney. The agreement contained a negotiated sentence. Appellant agreed to plead guilty to murder of the third degree in exchange for ten to twenty years imprisonment, no probation, and with credit for time served from February 8, 2000, to February 8, 2001. He also agreed to have no contact with the witnesses who had testified against him and the Caramanica family. Thus, the record irrefutably establishes, in accordance with the Commonwealth's position, that "having [Appellant] waive credit for time served for periods of time was a fundamental and integral term and condition of the plea agreement." Commonwealth's brief at 17.

¶ 8 The guilty plea was entered with this express acknowledgement by Appellant: "[A]cting on advice from my attorney that the likelihood of a conviction is great, I'm entering a plea of guilt to the charge of murder in the third degree and I shall accept the sentence of imprisonment set forth in the guilty plea agreement." N.T., 2/8/01, at 6-7.

¶ 9 In addition to being reduced to writing, the terms of the plea agreement were set forth at the time of the colloquy. The plea court was informed, "Basically the intent here of the parties is Mr. Byrne has served at this point eight years and three months in jail. Our intention is that he serve another nine years, for a total of 17 years and three months. On February 8th, 2010, he'd be up for parole." N.T., 2/8/01, at 10. The Commonwealth further agreed not to oppose parole and wrote a letter to the parole board indicating this agreement and belief that Appellant should be eligible for parole in seven years.

¶ 10 The plea court ascertained that Appellant understood that he could not obtain credit for time served prior to February 8, 2000:

THE COURT: Okay. On this point, Mr. Byrne, you understand that you are essentially giving up any time currently served; and that as I would understand it we are going to run the effective date of the sentence from February 8th, the year 2000.

Is that correct?

MR. DUFFY: One year ago today.

THE COURT: Okay. And that with regard to all of the time prior to February 8th of 2000, that you cannot in any manner claim credit for that against this sentence.

THE DEFENDANT: Yes.

N.T., 2/8/01, at 11-12.

¶ 11 The written factual basis for the guilty plea, which we now paraphrase, was extensive. It is partially grounded on the prior testimony of witnesses. Appellant claimed that on July 10, 1991, he returned to his apartment to find his wife dead, sitting slumped over the back of a chair. He told the first police officer to arrive at the scene that when he entered the apartment and found his wife's body, a bookshelf that he had moved earlier that day to vacuum was leaning against his wife's shoulder and that he thought the bookshelf had fallen on her. The expert witnesses in the case all agreed that Leah had been killed by strangulation and not by a falling bookshelf. The Commonwealth established that Appellant murdered his wife by strangulation and then staged an accident to explain her death, as follows.

¶ 12 Appellant and Leah lived at 257A Reston Drive, an apartment complex in Chester County. They had two children, Ari, who was two years old, and Travis, who was four months old. At 9:30 a.m. on July 10, 1991, Leah took Ari to a babysitter, Dorothy Ginty. Rose Pisano, a friend of the couple, telephoned the apartment at 12:05, spoke first with Appellant, and then spoke with Leah. The conversation ended at 12:40 p.m.

¶ 13 Maria Doughterty Litzenberger, a guest in the next door apartment, heard a baby cry in the apartment at 1:30 p.m. and heard no further noise, such as sounds of falling books or a bookshelf, between 1:30 p.m. and 3:00 p.m. At 3:01 p.m., Appellant banged on her apartment door. Todd Long and Kelly McAnany, who were occupants of that apartment, answered, and Appellant told them that something was wrong with his wife and to call an ambulance. There was a telephone in Appellant's apartment that he could have used to call an ambulance. Mr. Long told Ms. Litzenberger about Appellant's statement, and Ms. Litzenberger ran to Appellant's apartment, where she saw Leah on the ground, not in a chair, on top of books in the bedroom with Appellant at her waist screaming that they should do CPR, which they did. Ms. Litzenberger said that Leah was cold to the touch.

¶ 14 At 3:14, Sergeant Darren Stocker arrived at the scene of the crime. Appellant informed Sergeant Stocker that he had been vacuuming earlier that day and moved furniture, including a bookshelf. Appellant said that he found his wife seated in a chair with a bookshelf leaning against her and that he thought that the bookshelf had fallen on her. Appellant also told Sergeant Stocker that he had an argument with the decedent between 1:25 and 1:30 p.m. after he told her that he was having lunch with his mother and that Leah struck him in the shoulder during the argument. Finally, Appellant stated that he had removed his wife's body from the chair after he went to the next-door-neighbor's apartment. Appellant indicated that nothing was stolen from the apartment.

¶ 15 Paramedics John Felicetti and Clare Sterback arrived at 3:16 p.m. At that time, they observed lividity along Leah's back...