Com. v. Cannon

• Decision Date: 06 August 2008
• Docket Number: No. 66 EDA 2008.,66 EDA 2008.
• Citation: 2008 PA Super 178,954 A.2d 1222
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James P. CANNON, III, Appellant.
• Court: Pennsylvania Superior Court

954 A.2d 1222

2008 PA Super 178

COMMONWEALTH of Pennsylvania, Appellee v.James P. CANNON, III, Appellant.

No. 66 EDA 2008.

Superior Court of Pennsylvania.

Submitted April 21, 2008.

Filed August 6, 2008.

John R. Merrick, Public Defender, West Chester, for appellant.

Nichols J. Casenta, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: MUSMANNO, DONOHUE and KELLY, JJ.

OPINION BY DONOHUE, J.:

¶ 1James P. Cannon, III("Cannon") appeals from the judgment of sentence of 29 to 59 months of imprisonment followed by 12 years of probation.Upon review, we affirm.

¶ 2 On February 17, 2006, Cannon entered an open guilty plea to twenty-five counts of possession of child pornography,¹ two counts of solicitation to prostitution,² two counts of solicitation to indecent assault,³ and one count of corruption of minors.⁴The factual basis for the plea follows:

In July 2005, the West Whiteland Police were contacted regarding an incident involving a 14 year old boy.The boy's mother called the police to report that her son had been chatting online with a man later identified as defendant, 39 year old James Cannon.

On July 4th, 2005 the victim had gone to the area of Pierce Middle School to meet [Cannon].[Cannon] had been chatting online with the victim for several months.The victim was using the screen name of Alley Hopping and [Cannon] was using the screen name of Agent 975.Over the course of time [Cannon] chatted with the victim and learned that the boy was 14 years old.During these online computer chats [Cannon] engaged in conversations with the victim in which he requested that the victim and [Cannon] meet for the purpose of engaging in sexual acts.

On July 4th, 2005[Cannon] instant messaged, or IMed, the victim, and once against [sic] asked him sexually related questions and offered to give the boy money in exchange for the acts.

On July 4th, 2005 during this online chat [Cannon] arranged to meet the boy in the area of Pierce Middle School at approximately 5:30 p.m.The victim arrived in the area of the middle school and [Cannon] arrived in the vehicle.The boy got in the car and spoke with [Cannon] for approximately 15 minutes.[Cannon] would provide only his first name to the victim.

The victim would testify that [Cannon] requested masturbation and oral sex from the victim.[Cannon] drove the boy to Wawa where he purchased cigarettes for the boy.The victim declined to engage in any sexual acts and left the vehicle.

The victim told police after he left the vehicle he walked around for 15 minutes, then contacted his mother who contacted the police.The West Whiteland Police and Chester County Detectives created a photographic lineup from which the victim was able to identify [Cannon].

A search warrant was then executed at [Cannon's] residence in West Whiteland Township in Chester County.The computer equipment was seized and searched.Over 100 images of child pornography were located on the computer along with several web cam videos of teenage boys masturbating.He admitted to IMing the victim on several occasions, but less than a year, unquote.Initially [Cannon] told the police he met the victim for the purpose of buying him cigarettes.[Cannon] denied asking for sexual acts for money.However, the information from the computer showed discussions consistent with what the victim had disclosed to the police.

These conversations clearly showed that [Cannon] was offering the victim money for sexual acts.

N.T. Guilty Plea Hearing, 2/17/06, at 4-6.

¶ 3The trial court ordered the Sexual Offender's Assessment Board("SOAB"), to assess whether Cannon was a sexually violent predator ("SVP") and also ordered a pre-sentence report.Id. at 19-20.In the interim, on August 3, 2006, Cannon filed a motion for a court-appointed psychological expert, claiming that he could not afford one.Following an evidentiary hearing, the trial court denied the motion because it determined that Cannon was not indigent.N.T. Motion Hearing, 8/9/06, at 7-9.A Megan's Law hearing was held on September 18, 2006.The court heard testimony from SOAB assessor Dr. Bruce Mapes.After extensive discussion of the basis for his decision in accordance with the dictates of the pertinent statutory framework, Dr. Mapes concluded that Cannon was an SVP.N.T. SVP Hearing, 9/18/06, at 4-86.The court subsequently accepted that testimony and determined that Cannon was an SVP.Id. at 87-90.

¶ 4The case proceeded to sentencing that same date, where Cannon was sentenced to an aggregate sentence of 34 to 68 months of imprisonment followed by 12 years of probation.Post-sentence motions were filed on October 10, 2006; and the sentence was vacated by order entered October 18, 2006.⁵On October 27, 2006, the trial court re-sentenced Cannon to an aggregate sentence of 29 to 59 months of imprisonment followed by 12 years of probation.This timely appeal followed.The trial court ordered Cannon to file a statement pursuant to Pa.R.A.P.1925(b) and a timely statement was filed on June 19, 2007, after an extension was granted.

¶ 5 Cannon presents the following issues for our review:

I.Did the [trial court] err in denying [his] motion for Psychiatric Examination?

II.Was the evidence presented at the Sexually Violent Predator Hearing held pursuant to 42 Pa.C.S.A. § 9795.4 sufficient to support the conclusion that [Cannon] should be classified as a Sexually Violent Predator?

III.Did the [trial court] abuse its discretion when reimposing sentence?

Appellant's Briefat 6.

¶ 6 Initially, Cannon contends the trial court erred in denying his motion for a psychiatric examination,⁶ citing Commonwealth v. Curnutte,871 A.2d 839(Pa.Super.2005).In Curnutte,this Court ruled that 42 Pa.C.S.A. § 9795.4(e)(2) provides all defendants with the right to call expert witnesses and to an expert assessment other than that conducted by the Sexual Offenders Assessment Board.Id. at 842.In so ruling, we concluded that it would "be fundamentally unfair to afford a defendant those rights but then preclude him from exercising them simply because he is indigent.Likewise, it would be unfair to allow a wealthy defendant those rights but to deny them to one who is indigent."In Curnutte, there was no dispute that the defendant was indigent, and we further noted that "[i]t is true that the Commonwealth is not obligated to pay for the services of an expert simply because a defendant requests one."Id. at 842.

¶ 7This case is clearly distinguishable from Curnutte because here the trial court found as a matter of fact that Cannon was not indigent and denied the motion on that basis.N.T. Motion Hearing, at 8-9.While ruling that the denial of the motion was without prejudice and could be revisited at a later date if warranted, the trial court expressed concern with Cannon's failure to utilize his assets to obtain an expert, and to instead use his assets to further his own separate purposes.Id. at 8.

¶ 8 Cannon nevertheless claims he should not be required to exhaust his assets prior to obtaining a court-appointed expert.After a review of the record, we find no error in the trial court's determination in this matter.Our standard of review, as it relates to the appointment of a defense expert in a criminal matter, is as follows:

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. Albrecht,554 Pa. 31, 58, 720 A.2d 693, 707(1998), citingCommonwealth v. Carter,537 Pa. 233, 643 A.2d 61(1994).

¶ 9 Cannon does not cite and we have not found any appellate case law discussing the factors a trial court must consider in exercising its discretion when making a determination of indigency for the purpose of appointing an expert.As such, this Court relies upon principles in analogous contexts for guidance.We are assisted by the established processes for assessing indigency in determining whether a party: (1) may proceed in forma pauperis, or (2) is entitled to the appointment of counsel.

¶ 10"A party who is without financial resources to pay the costs of litigation is entitled to proceed in forma pauperis."Pa.R.C.P. 240(b).That party is required to file a petition and an affidavit describing in detail the inability to pay the costs of litigation.Pa.R.C.P. 240(c).The Rule expressly prescribes the form of the affidavit requiring, inter alia, the following information from the applicant: 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.Pa.R.C.P. 240(h).

¶ 11 In determining in forma pauperis status, the trial court must,

satisfy itself of the truth of the averment of an inability to pay the costs of litigation.[In re Adoption of B.G.S.,418 Pa.Super. 588, 614 A.2d 1161(1992)].If it believes the petitioner's averments, there is no requirement that the court conduct an evidentiary hearing.The trial court has considerable discretion in determining whether a person is indigent for purposes of an application to proceed in forma pauperis.However, in making that determination, it must focus on whether the person can afford to pay and cannot reject allegations in an application without conducting a hearing.Crosby Square Apartments v. Henson,[666 A.2d 737, 738(Pa.Super.1995)].

Amrhein v. Amrhein,903 A.2d 17, 19(Pa.Super.2006).

¶ 12 Likewise, our Supreme Court has analyzed what constitutes indigency in relation to a defendant's request for the appointment of counsel.Notably, in deciding whether a party is indigent and thereby entitled to counsel, the Supreme Court has opined "[a]mong other factors that may be relevant to a defendant's financial ability to hire private counsel...