Com. v. Rhodes

• Decision Date: 31 December 2009
• Docket Number: No. 143 WDA 2009.,143 WDA 2009.
• Citation: 990 A.2d 732
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Teri RHODES, Appellant.
• Court: Pennsylvania Superior Court

990 A.2d 732

COMMONWEALTH of Pennsylvania, Appellee v. Teri RHODES, Appellant.

No. 143 WDA 2009.

Superior Court of Pennsylvania.

Argued September 22, 2009.

Filed December 31, 2009.

Philip B. Friedman, Erie, for appellant.

Elizabeth A. Hirz, Assistant District Attorney, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., ORIE MELVIN and BENDER, JJ.

OPINION BY BENDER, J.:

¶ 1 Teri Rhodes appeals the judgment of sentence imposed following her entry of an open plea of guilty to Voluntary Manslaughter, 18 Pa.C.S. § 2503(a), in the death of her infant daughter by neonaticide. Rhodes contends that the sentence imposed, of nine to eighteen years' incarceration, was manifestly excessive and the trial judge was motivated in imposing sentence by a pronounced bias that should have compelled him to recuse. Upon review, we concur in Rhodes's assessment. Because the record of these proceedings establishes that the trial judge acted substantially in derogation of the Pennsylvania Sentencing Code on the basis of evidence gathered ex parte, we conclude that the sentence imposed constitutes an abuse of discretion. We conclude further that the trial judge abused his discretion in refusing to grant Rhodes's request for recusal. Accordingly, we vacate the judgment of sentence and remand this matter for re-sentencing before another jurist.

¶ 2 This matter arises out of a tragic incident in which Teri Rhodes, an eighteen-year-old college student, gave birth to a full-term infant and, following labor, left her to die in a plastic bag. At the time of these events Rhodes was a sophomore at Mercyhurst College, a Catholic institution in the City of Erie, where she played as a member of the volleyball team. In August 2007, Rhodes returned to Mercyhurst from her home in Commerce Township, Michigan, to participate in varsity volleyball camp. On Friday, August 10, Rhodes underwent a team physical, during which the team doctor noted that she had a protuberant abdomen and had gained a substantial amount of weight. Although Rhodes denied that she was pregnant, the doctor suspected the contrary and ordered a sonogram for the following week.¹ In the interim, however, he cleared Rhodes to play volleyball. On Saturday, August 11, Rhodes completed two practices but at the conclusion of evening practice experienced severe abdominal cramping for which she took medication and went to bed early. On the following morning, Rhodes reported to practice but told her coaches that she was too ill to participate and excused herself to return to her apartment. Later that morning, she entered labor in her apartment bathroom and after several hours gave birth to a full-term baby girl delivered in the breech position. After the delivery, Rhodes placed the baby in a plastic bag and left her in the bathtub. Police later found the baby in that same location, dead. When Rhodes's assistant coach transported her to the hospital, Rhodes initially denied that she had been pregnant but ultimately acknowledged she had delivered a baby. An autopsy revealed that the baby's cause of death was asphyxiation.

¶ 3 Over a period of several days following Rhodes's delivery of the baby, Erie police conducted an investigation, interviewing her roommate and her coach and seizing her laptop computer for forensic examination. In a subsequent affidavit of probable cause, police alleged that Rhodes's roommate, Julia Butler, reported that she returned to the apartment at about 12:45 p.m. on the day in question and found Rhodes closed in the bathroom making noises suggestive that she was in pain. Upon inquiry by Butler of whether she was alright, Rhodes asked that Butler go to the drugstore for her and buy some Midol. Butler did as requested and, upon returning, noted that Rhodes was still in the bathroom, where she could hear the shower running and Rhodes groaning. She then noticed spots of blood on the carpet in the bedroom and called assistant volleyball coach Sarah King for assistance. King arrived shortly thereafter and transported Rhodes to the hospital.

¶ 4 During her own interview with police, Coach King reported that when she arrived at Rhodes's apartment, she saw blood on the floor outside the bathroom. When she asked what was wrong, Rhodes responded that she was having a heavy menstrual bleed but did not suggest that she had delivered a baby. During another police interview, hospital personnel reported that after initially denying the delivery of her baby, Rhodes acknowledged that she had given birth but stated that the baby had died and that she had left it in a dumpster, although she could not recall where the dumpster was. In addition, Rhodes's roommate reported that she later discovered a message from Rhodes on her voicemail suggesting that she avoid going into the bathroom as "it was a mess." In the affidavit of probable cause executed for Rhodes's arrest, the police attested that forensic examination of the cache in Rhodes's laptop computer revealed that sometime prior to giving birth² she had conducted internet searches on pregnancy and means to provoke a miscarriage or otherwise abort a pregnancy.

¶ 5 On September 18, 2007, the Commonwealth charged Rhodes with Criminal Homicide, Concealing the Death of a Child, Endangering the Welfare of a Child, Reckless Endangerment, and Abuse of a Corpse, 18 Pa.C.S. § 2501(a), 4303(a), 4304(a), 2705, 5510 (respectively). Following negotiations with Rhodes's counsel, Philip B. Friedman, Esquire, the District Attorney of Erie County agreed to accept an open plea of guilty to Involuntary Manslaughter in exchange for dismissal of the remaining charges. Thereafter, however, the trial judge, the Honorable William R. Cunningham, rejected the plea and, when asked why, declined to elaborate.³ Subsequently, defense counsel and the District Attorney renegotiated the proposed plea, agreeing that Rhodes would enter a plea to Voluntary Manslaughter. At the plea colloquy, convened on August 5, 2008, District Attorney Bradley Foulk⁴ appeared on behalf of the Commonwealth and explained the terms of the plea agreement, the legal elements of the charge and the factual basis for the plea.⁵ Mr. Foulk also explained that although the plea did not include a negotiated sentence, allowing the court to impose a sentence anywhere within the Guidelines ranges, he "did not believe that anyone here thinks that the aggravated range would apply." N.T., Plea Colloquy, 8/5/08, at 8. Mr. Foulk noted further that, pending a favorable pre-sentence report, the Commonwealth would have no objection or would recommend that the court make a downward departure from the standard range.⁶ Rhodes tendered her plea accordingly, following which Judge Cunningham clarified that "a judge can disregard or reject what the Commonwealth's position is and disregard or reject what your lawyer is saying on your behalf and impose whatever sentence the Judge thinks is appropriate."⁷ Id. at 22. Following Rhodes's confirmation of her understanding, Judge Cunningham reaffirmed with her that she was tendering her plea voluntarily, accepted her plea, and deferred sentencing pending the completion of the pre-sentence report.

¶ 6 At the subsequent sentencing proceeding, convened on October 27, 2008, Judge Cunningham acknowledged having received and reviewed some sixty-eight letters from Rhodes's family and friends as well as clergy, educators, counselors and charity leaders with whom Rhodes had studied or volunteered. N.T., Sentencing, 11/21/08, at 5. Every letter attested to Rhodes's character and good works and many pleaded that the court minimize Rhodes's jail time and see to her rehabilitation through community service. Sentencing Exhibits D1-D68. In support of their requests, ten of those who had written, including Rhodes's parish priest, appeared at the sentencing hearing and testified on Rhodes's behalf. N.T., Sentencing, 11/21/08, at 9-22. Rhodes then exercised her right of allocution, following which District Attorney Foulk noted for the record that following receipt of the pre-sentence report, approximately two days before sentencing, the court had initiated contact with the District Attorney's Office to obtain copies of police reports compiled by the Erie Police Department and Erie County detectives. Id. at 23-24.

¶ 7 The Commonwealth then presented a nuanced position on sentencing, noting the absence of any comparable case in Erie County, and detailing the extent to which Rhodes and the circumstances of her crime fit the profile for neonaticide compiled by the Behavioral Science Unit of the FBI. D.A. Foulk then followed with an explanation of the profile as follows, high-lighting the notable absence of motive and Rhodes's inexplicable denials in the face of certain discovery:

The profile for individuals that commit this type of crime are sic almost identical. They're almost solely within a particular age group that this defendant falls into. The crime is predominantly committed by middle—upper, middle or upper class women who are highly educated or in the process of being educated. Ninety-five percent of them, or higher, give the same scenarios, the same identical scenarios as we have in this particular case. ...

All are full term pregnancies. Unlike most crimes, what made this case particularly difficult from a prosecution standpoint, is that when you ponder why an individual commits a crime, usually you have a motive. In this particular case, as in all neonaticide cases, it's hard to judge what the motive would be. Additionally, lacking motive, in this particular case you had a denial following the crime, and a continued denial through the process for quite a period of time. Yet what we found is there's no motive. And in this particular case there was absolutely no possibility of this crime going undetected. It was an eventual outcome that the baby's body would be discovered, which would lead to the contact of the authorities.

Id. at 26-27. Mr. Foulk then continued...