Commonwealth v. Devries, 326 EDA 2014

• Decision Date: 20 March 2015
• Docket Number: No. 326 EDA 2014,326 EDA 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Nicole Dolores DEVRIES, Appellant.
• Court: Pennsylvania Superior Court

112 A.3d 663

2015 PA Super 58

COMMONWEALTH of Pennsylvania, Appellee

v.Nicole Dolores DEVRIES, Appellant.

No. 326 EDA 2014

Superior Court of Pennsylvania.

Submitted Aug. 11, 2014.

Filed March 20, 2015.

Jason R. Ohliger, Milford, for appellant.

Raymond J. Tonkin, Assistant District Attorney, Milford, for Commonwealth, appellee.

BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

Opinion

OPINION BY OTT, J.:

Nicole Dolores Devries appeals from the judgment of sentence entered on December 20, 2013, in the Court of Common Pleas of Pike County. Devries was tried by a jury and convicted on charges of escape, resisting arrest, two counts of reckless endangerment, driving under the influence (DUI), and possession of drug paraphernalia.¹ She received an aggregate sentence of 25–60 months' incarceration. Relevant to this timely appeal, the deadly weapon enhancement was applied to her escape sentence. Devries raises three issues; she claims the trial court erred in: (1) denying her motion for change of venue, (2) denying her motion for acquittal on the charge of escape, and (3) improperly applying the deadly weapon enhancement. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm in part, vacate in part, and remand for resentencing in accordance with this decision.

We relate the factual history as stated in the trial court's Pa.R.A.P. 1925(a) opinion.

The criminal information was filed for this case on March 4, 2013 alleging that [Devries], on November 9, 2012, unlawfully removed herself from official detention by fleeing from two Pike County Probation Officers, Jennifer Tamblyn and Jeffrey Baker, after she had been told numerous times that she was under arrest. As testimony at trial established, the Parole and Probation Officers had gone to [Devries'] home in order to do a drug test as part of [Devries'] probation supervision.

During this drug testing, [Devries] tested positive for some drug use which she maintained was a Vicodin

pill she had

taken for a toothache. After the two officers informed her that she would be placed under arrest and taken to jail for the violation, [Devries] bolted for her car outside her home and tried to flee. The officers followed her to her vehicle, where a brief struggle ensued that resulted with Officer Baker being dragged a short distance by the car before managing to free himself.

Trial Court Opinion, 3/27/2014, at 1–2.

In Devries' first issue, she argues the trial court erred in failing to grant her motion for change of venue based on the fact the alleged victims were employees of Pike County. “The standard of review for a denial of a motion for change of venue is whether there has been an abuse of discretion on the part of the trial judge.” Commonwealth v. Johnson, 417 Pa.Super. 636, 612 A.2d 1382, 1384–85 (1992) (citation omitted). Pursuant to the rules of criminal procedure, “Venue or venire may be changed by that court when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending.” Pa.R.Crim.P. 584(A). Further, pursuant to Rule 584(B), when a change of venue is granted, unless otherwise ordered by our Supreme Court, a trial judge from the original venue will preside over the trial. This provision of the rules reinforces the fact that a change of venue addresses a problem with the location, while recusal addresses an issue with a specific judge or judges.

Here, Devries' challenge to venue was based upon the suggestion that because the complaining witnesses were employees of the county court, the unrealized possibility of prejudice was sufficient to warrant the change. However, the motion for change of venue provided only vague allegations of prejudice, noting the work relationship between the complaining witnesses and the county court. The motion did not allege that the trial judge would be unfair in any way and there is no indication of how or why jurors would be unable to be fair and impartial.

Devries cites Com. ex rel Armor v. Armor, 263 Pa.Super. 353, 398 A.2d 173 (1978) to support her position. However, that case provides no aid to Devries. In Armor, one of a divorced couple remarried a Montgomery County trial judge. The other ex-spouse filed a petition to modify child support in Montgomery County, which had been the proper venue. A counter petition was filed seeking to increase child support. A panel of our Court determined the appearance of conflict was too great, having a Montgomery County trial judge ruling on a matter that directly affected a fellow Montgomery County trial judge. The problem in Armor was not with venue, it was with the trial judges and the appearance of impropriety, not with the Montgomery County location itself.

Armor might be relevant to provide support for Devries had she claimed the judges of Pike County could not be fair because the complaining witnesses were employees of the court. Such a claim of judicial bias was specifically denied by Devries. The trial court quoted defense counsel at the hearing on the motion:

This motion is styled as a Motion to Change Venue rather than a request for recusal for a very specific reason. It has nothing to do with a conflict that I believe you or Judge Chelak have in this case as individuals.

Trial Court Opinion, 3/27/2014, at 5, quoting N.T. Hearing, 6/4/2013, at 2.²

The vast majority of case law regarding change of venue addresses the issue of pre-trial publicity. “[I]n reviewing a trial court's decision [as to a change of venue] the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant's] guilt or innocence as a result of pre-trial publicity.” Commonwealth v. Boring, 453 Pa.Super. 600, 684 A.2d 561, 566 (1996) (citation omitted). We see no reason why this line of inquiry does not apply in the current situation. Devries has provided no evidence that any juror formed a fixed opinion of her guilt because of the complaining witnesses being employees of Court of Common Pleas of Pike County. Accordingly, she is not entitled to relief on this issue.

In her second claim, Devries argues the trial court erred in denying her motion for acquittal because there was insufficient evidence to support her conviction of escape in that the evidence failed to demonstrate she was under “official detention” at the time she fled. In relevant part, the statutory definition of escape is:

A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

18 Pa.C.S. § 5121(a).

Additionally, relevant to our inquiry:

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.

Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa.Super.2014) (citation omitted).

The standard of review for claims of insufficient evidence is well-settled. With respect to such claims, we consider the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa.Super.2005). In that light, we decide if the evidence and all reasonable inferences from that evidence are sufficient to establish the elements of the offense beyond a reasonable doubt. Id. We keep in mind that it was for the trier of fact to determine the weight of the evidence and the credibility of witnesses. Id. The jury was free to believe all, part or none of the evidence. Id. This Court may not weigh the evidence or substitute its judgment or that of the factfinder. Id.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super.2006).

Official detention is defined as:

Arrest, detention in any facility for custody of persons under charge of conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole.

18 Pa.C.S. § 5121(e).

The relevant aspect of this definition is “any other detention for law enforcement purposes.” Here, the evidence demonstrated that Devries was under supervision of probation. Her probation officer and a co-worker went to Devries' residence to conduct a routine home visit. As part of such supervision, Devries would be required to supply a urine sample to demonstrate she was drug free. Devries was informed if she failed her drug test, she could be taken before a judge and her supervision might be terminated. SeeN.T. Trial, 11/7/2013, at 39. Further, while in the bathroom, immediately after she supplied the specimen and there was a preliminary indication of opiate use, Devries was told “due to her violation and testing positive that my supervisor had already predetermined if she was to test positive, she would be arrested and taken to jail.” Id. at 46. Subsequent to this, Devries repeatedly asked not to be taken to jail because she did not want to leave her daughter. Probation Officer Tamblyn testified she repeatedly told Devries she was going to be placed under arrest or was under arrest. Id. at 48. Officer Tamblyn testified she did not place Devries in handcuffs while in the residence because she did not want the daughter to see her mother in handcuffs. Id. at 49–50. Finally, Officer Tamblyn told Devries, “[L]et's go, it's time to go, we have to get out of here.” Id. at 50. She allowed Devries to retrieve her wallet, but at the same time, Devries grabbed her car keys and fled. Id. at 50–51.

Our review of the certified record supports the trial court's determination that Devries was under official detention at the time she fled. Devries was informed of the specific consequences of a failed urine test, specifically that she would be arrested, taken to jail, and brought before a judge. Devries knew, having failed the drug test, that she was in the...