Commonwealth v. Prendes

• Decision Date: 22 July 2014
• Citation: 97 A.3d 337,2014 PA Super 151
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Dennis L. PRENDES, Appellant.
• Court: Pennsylvania Superior Court

97 A.3d 337
2014 PA Super 151

COMMONWEALTH of Pennsylvania, Appellee
v.
Dennis L. PRENDES, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 30, 2013.
Filed July 22, 2014.

[97 A.3d 342]

James A. Swetz, Stroudsburg, for appellant.

Rebecca J. Kulik, Asst. Dist. Atty., Easton, for Commonwealth, appellee.

BEFORE: GANTMAN, J., SHOGAN, J., and PLATT, J.^*

OPINION BY GANTMAN, J.:

Appellant, Dennis L. Prendes, appeals from the judgment of sentence entered in the Northampton County Court of Common Pleas, following his guilty plea to indecent assault of a person under thirteen (13) years old, endangering the welfare of children, and corruption of minors.¹ We affirm.

The relevant facts and procedural history of this case are as follows. Appellant was arrested on March 13, 2012, and charged with numerous offenses, including rape, involuntary deviate sexual intercourse, aggravated indecent assault of a person less than thirteen (13) years of age, indecent assault of a person less than thirteen (13) years of age, endangering the welfare of children, and corruption of minors, pertaining to the continued sexual assault of his niece over the period of eight years. The trial court opinion continues:

Pretrial Proceedings

On July 9, 2012, [Appellant] filed an Omnibus Pre-trial Motion which included the following motions: (1) a Petition for a Writ of Habeas Corpus, moving to quash the Information on the basis that the evidence presented did not establish a prima facie case; (2) a “Motion to Dismiss for Lack of Specific Dates”; (3) a motion challenging the competency of the victim, S.P., to be a witness; and (4) a motion seeking a psychiatric/psychological examination of S.P. On July 25, 2012, we presided over an evidentiary hearing pertaining to [Appellant's] motion challenging S.P.'s competency and his motion for a psychiatric/psychological examination of S.P. Thereafter, on August 24, 2012, we denied all of [Appellant's] motions contained in the Omnibus Pre-trial Motion.

On September 4, 2012, [Appellant] filed two (2) motions in limine: (1) a “Motion In Limine To Limit Cross–Examination of Defendant's Character Witnesses and Preclude Introduction of Rebuttal Evidence”; and (2) a “Motion In Limine To Exclude Alleged Prior Bad Acts Evidence.” On September 11, 2012, we denied [Appellant's] motion to preclude evidence of prior bad acts. On September 14, 2012, we granted [Appellant's] motion

[97 A.3d 343]

to limit cross-examination of character witnesses.

The Jury Trial

Following voir dire on September 10, 2012, a jury of twelve citizens and two alternates was selected, seated and sworn. From September 11, 2012 through September 17, 2012, the impaneled jury heard opening statements, testimony from fifteen witnesses, including S.P. and [Appellant], closing arguments, and the charge of the [c]ourt. On September 17, 2012, the jury deliberated for six hours. During deliberations, the jury presented the [c]ourt with two questions, which the [c]ourt answered in the presence of Appellant, his attorney, and the attorney for the Commonwealth. At approximately 7:30 p.m., the jury foreperson informed the court officer that the jury did not believe it could reach a unanimous verdict on some of the charges. The [c]ourt revealed this communication to the parties. After discussing this issue with the parties, the [c]ourt summoned the jury to the courtroom and confirmed with the jury foreperson that the jury was unable to reach a unanimous verdict on all of the charges. The [c]ourt then read to the jury Pennsylvania Standard Jury Instruction 2.09, “Deliberations and Verdict: Deadlocked Jury.”

Ladies and gentlemen of the jury, I remind you that in order to return a verdict on any charge you must agree unanimously on that specific charge. Each of you has a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to your individual judgment.

However, each of you must decide this case for yourself after an impartial consideration of the evidence with your fellow jurors. While you should not hesitate to reexamine your own views and change your opinion if you are convinced that your opinion is erroneous, do not feel compelled to surrender your honest belief as to the weight or effect of the evidence solely because of the opinion of your fellow jurors for the mere purpose of returning a verdict.

The [c]ourt asked the jury to return at 9:00 a.m. on September 18, 2012, to resume deliberations.

After the parties left the courtroom on September 17, 2012, but before the jury left the deliberation room to depart from the courthouse, the jury foreperson provided a note to the court officer. Upon determining that the note did not contain a question from the jury, the court officer returned the note to the jury foreperson. The court officer then informed the [c]ourt of the content of the note. Because the [c]ourt was informed of the content of the note, the [c]ourt instructed the court officer to retrieve the note from the jury foreperson at 9:00 a.m. on September 18, 2012.

At 9:00 a.m. on September 18, 2012, the [c]ourt met with counsel in chambers and allowed them to review the note, which set forth the jury's numerical split regarding all of the charges, as follows:

Charge	Guilty	Not Guilty
Rape	8	4
Rape of a Child	0	12
[IDSI]	8	4
[IDSI] With a Child	No Tally	No Tally
Aggravated Indecent Assault	10	2
Aggravated Indecent Assault of a Child	0	12
Indecent Assault	10	2
Endangering the Welfare of Children	10	2
Corruption of Minors	10	2

[97 A.3d 344]

The [c]ourt then read to the jury Pennsylvania Standard Jury Instruction 2.09, “Deliberations and Verdict: Deadlocked Jury,” and asked the jury to resume its deliberations. At approximately 10:00 a.m., the jury foreperson informed the court officer that the jury had reached a verdict on some of the charges but could not reach a verdict as to other charges. The [c]ourt informed counsel that the jurors would be brought into the courtroom and that the [c]ourt was prepared to take a partial verdict.

Upon being informed of this development, [Appellant] and his attorney requested a recess. Following the recess, [Appellant's] attorney and the attorney for the Commonwealth informed the [c]ourt that they had agreed upon both a plea and a sentence. The agreement provided that [Appellant] would plead guilty and allocute to the charges of (1) indecent assault of a person under 13 years old; (2) endangering the welfare of children; and (3) corruption of minors. The agreement further provided that [Appellant] would be sentenced to serve a term of imprisonment in a state correctional institution for a minimum period of 30 months to a maximum period of 60 months, followed by a period of 36 months of probation. The [c]ourt accepted both the plea agreement and the agreed-upon sentence. As a result of the plea agreement, the jury was discharged without rendering a verdict as to any of the charges.

The Guilty Plea Colloquy

[Appellant] completed a written guilty plea statement and a written addendum to the sentencing colloquy for registration of sexual offenders. The [c]ourt also engaged in a detailed verbal guilty plea colloquy with [Appellant]. As to the factual basis for the guilty plea, the following was placed on the record:

[COMMONWEALTH]: Your Honor, [Appellant] is the uncle of the victim in this matter, the victim being [S.P.], she's now 21. [Appellant], as her uncle, as [S.P.] was in the care of [Appellant] on various occasions throughout her life, primarily between the ages of 5, all the way up until she was 13, [Appellant] did have indecent contact, indecent sexual contact with the victim on numerous occasions throughout that period of time. [Appellant] also, in that indecent contact, did have contact with the victim's vaginal area with his hand.

THE COURT: Is that what happened, [Appellant]?

[APPELLANT]: That's what I'm being charged with and that's what I'm agreeing to, yes, Your Honor.

THE COURT: You have to do better than that. Is that what happened, [Appellant]? Did you do that? Did you touch [S.P.'s] vagina for the purpose of arousing sexual desire to yourself?

[APPELLANT]: Yes.

THE COURT: Are you sure?

[APPELLANT]: Yes.

[Appellant's] written guilty plea statement included the following questions:

Do you understand that even after your guilty plea is accepted by the [c]ourt, you will have the right to file a motion to withdraw your guilty plea at any time prior to the sentencing?

* * *

If the [c]ourt does not allow you to withdraw your guilty plea, you may appeal that decision to the Superior Court within thirty (30) days. Do you understand this?

[97 A.3d 345]

[Appellant] wrote “Yes” in answer to both of these questions. Both [Appellant] and his counsel signed and dated the guilty plea statement, and [Appellant] initialed each page. [Appellant] acknowledged on the record that he had signed the guilty plea statement, that he understood all of the questions, that he had answered all of the questions himself, and that he had initialed each page. [Appellant's] counsel acknowledged on the record that he had consulted with [Appellant] about completing the guilty plea colloquy and that he believed [Appellant] understood the rights he was waiving by pleading guilty. When the [c]ourt then asked [Appellant] whether he was satisfied with the service of his attorney, he answered, “Very much so, Your Honor.”

The [c]ourt accepted [Appellant's] guilty plea. The [c]ourt ordered that the Pennsylvania Sexual Offenders Assessment Board (“SOAB”) assess [Appellant] to determine whether he met the criteria to be classified as [a Sexually Violent Predator (“SVP”) ] within the meaning of section 9792 of Megan's Law, 42 Pa.C.S.A. § 9792.² The [c]ourt deferred sentencing in order to permit completion of the SOAB assessment.

Post–Trial Procedural History

On December 13, 2012, [Appellant] filed a motion to withdraw his guilty plea on the ground that he was factually innocent of all charges set forth in the...