Opinion
J-S55035-16 No. 2202 EDA 2015
08-18-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES LEE MOODY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 16, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007262-2013 BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
James Lee Moody ("Appellant") appeals, pro se, from the judgment of sentence entered in the Court of Common Pleas of Montgomery County, which, following a bench trial, convicted Appellant of theft-related offenses relating to his employment as a consultant/bookkeeper for a church. Sentenced to serve an aggregate sentence of six to twenty-seven years' incarceration and pay over $150,000 in restitution, Appellant challenges various evidentiary rulings, the sufficiency of the evidence, and the constitutional adequacy of counsel's assistance. We affirm.
The trial court provides an apt summary of the factual and procedural history of the case as follows:
Victory Christian Fellowship ("VCF" or "the church"), located in Audubon, Montgomery County, retained defendant in 2010 as a consultant to provide bookkeeping duties. (N.T. 10/8/14 at pp. 22-23). His negotiated income was $18 per hour for an
anticipated annual income of $32,832. Id. at 24-25, 79. Unlike salaried VCF employees who received their pay through direct deposit, defendant received payment for his consulting services by check after submitting an invoice. Id. at 40.
At some point after his hiring, VCF became aware that defendant had a prior conviction arising from his employment with the Special Olympics. Id. at 40. Defendant did not disclose the prior conviction to VCF officials during the hiring process. Id. VCF did not terminate him at that time, wanting to give him a chance. Id. at 40-41.
Defendant's supervisor, Pastor Dan Cross, left his position in the summer of 2011 and no replacement was hired, leaving defendant essentially without direct supervision. Id. at 32. Defendant subsequently began acting as VCF's business administrator, managing its financial transactions, but he received no additional income. Id. at 35-36, 43. Although the VCF board discussed an increase in his pay, it was not approved because of church finances. Id. at 36, 96. Defendant, however, received a $1,000.00 bonus from VCF in recognition of his increased responsibilities. Id. at 65.
First Niagara Bank in Audubon eventually contacted VCF's senior pastor about the church's finances. Id. at 72. VCF officials learned of a number of insufficient fund fees. Id. A subsequent review of VCF's finances revealed that defendant had added himself without authorization to the church's payroll and was receiving income via direct deposit. Id. at 37-38, 87-88, 95; Exh. C-6. This income was in addition to the payments he was receiving by check after submitting invoices for his services. Id. at 38. VCF also learned that defendant had added himself, without authorization, to its health insurance plan. Id. at 97.
VCF officials decided to terminate defendant's services. He received a severance payment because the church wanted to part quickly with him and did not want to tip off defendant that it suspected wrongdoing on his part. Id. at 106. Police learned during a subsequent investigation that defendant had given VCF the social security number of a Delaware man and the driver's license number of a Montgomery County man when the church had requested his identifying information to conduct a background check. Id. at 135-137.
The matter proceeded to a trial by judge. The Commonwealth withdrew approximately 100 charges and proceeded with two counts of dealing in the proceeds of unlawful activity, one count of theft by unlawful taking, one count of receiving stolen property, two counts of securing execution of documents by deception, one count of theft by deception and two counts of identity theft. [The trial court] found defendant guilty of those counts.
Defendant subsequently fired his attorney and announced his desire to represent himself. After a hearing on February 6, 2015, [the trial] court permitted defendant to represent himself with appointed stand-by counsel.
[The trial] court sentenced defendant on March 16, 2015, to consecutive terms of imprisonment of two to ten years on count 1, two to seven years on count 109, one to five years on count 110 and one to five years on count 111. Restitution also was ordered in the amount of $156,041.75. (N.T., Sentencing, 3/16/15 at 39-41).
Defendant filed a post-sentence motion on March 25, 2015, which this court denied in an Order dated June 12, 2015. He filed a notice of appeal, which prompted [the trial] court to issue an Order dated July 22, 2015, granting defendant 21 days in which to file and serve on the undersigned a concise statement of errors in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). [The trial] court later granted defendant an extension until September 15, 2015, to produce a concise statement.
The Pennsylvania Superior Court subsequently directed [the trial] court to conduct a Grazier hearing regarding defendant's choice to represent himself on appeal. [The trial] court originally scheduled that hearing for September 30, 2015.
In the interim, defendant's concise statement was docketed on September 16, 2015. The certificate of service included with the concise statement indicates defendant mailed it only to the Montgomery County Clerk of Courts. The [trial court judge] has no record of being served with a copy of the concise statement, despite having ordered defendant to do so.
At the Grazier hearing ultimately held on October 6, 2015, [the trial] court advised defendant of the error he committed by not serving the undersigned with a copy of his concise statement. (N.T., Grazier Hrg., 10/6/15, at 3-4). [The trial] court did so to highlight for defendant the potential pitfalls of representing one's self. Id. at 5-6. Defendant, nevertheless, reiterated his desire to proceed pro se and, after a thorough colloquy, [the trial] court found defendant made a knowing, voluntary and intelligent decision to represent himself on appeal. Id. at 12.Trial Court's Pa.R.A.P. 1925(a) Opinion, filed October 20, 2015, at 1-5.
***
Defendant filed an 18-page statement of issues that appears to assert discovery violations and misconduct by the Commonwealth, trial court errors, ineffective assistance of trial counsel, challenges to the weight and sufficiency of the evidence and challenges to his sentence. Each area of contention contains numerous subparagraphs. [The trial court expressed its difficulties in discerning the discrete issues from Defendant/Appellant's Rule 1925(b) statement, but it identified 11 issues and addressed each one in its Rule 1925(a) opinion.].
In his pro se Appellate brief, Appellant presents the following questions for our review:
1. Was Appellant falsely convicted of criminal charges for a civil matter in accordance with Pennsylvania Civil Law—Contracts?
2. Were Appellant[']s rights under Pa.R.Crim.P. § 704 violated when the trial court denied him the opportunity to present information/evidence at sentencing?
3. Why did the trial court allow Commonwealth's evidence that was a contradiction to the material facts of parol evidence (implied-in-fact and express contracts), as well as relied on their evidence to support the verdict?
4. Is the premeditated, deliberate, deplorable and misrepresentation by Appellant's former counsel during pre-trial aspect of his case cognizable under the PCRA statue [sic]—way before a determination of his innocence? Could this be classified as Collateral Consequence?
5. Were Appellant's rights under the Sixth Amendment violated? Did the Appellant's claim of ineffective assistance meet all of the prongs under Strickland and Pierce ?Appellant's brief at 5.
6. Why did the trial court condone the prosecutorial misconduct, extraneous influence, former counsel legal malpractice—after receiving documented evidence that contradicted the guilty verdict? Also why didn't the trial court conduct an evidentiary hearing on these said matters, as well as conduct a hearing for after-discovered evidence?
Initially, we address the trial court's position that Appellant has waived his issues for appellate review by failing to serve the trial court with a copy of the concise statement despite having been ordered to do so. Rule 1925 generally requires that a court-ordered statement must be filed in the trial court and served on the trial judge. See Pa.R.A.P.1925(b), (b)(2); Forest Highlands Community Ass'n v. Hammer , 879 A.2d 223, 228-29 (Pa.Super. 2005). The failure to serve the trial judge may warrant waiver. See Forest Highlands , 879 A.2d at 228-29. However,
there are caveats to a finding of waiver. First, the trial court must issue a Rule 1925(b) order directing an [a]ppellant to file a response [in a timely manner]. Second, the Rule 1925(b) order must be filed with the prothonotary. Third, the prothonotary must docket the Rule 1925(b) order and record in the docket the date it was made. Fourth, the prothonotary shall give written notice of the entry of the order to each party's attorney of record, and it shall be recorded in the docket the giving of notice. If any of the procedural steps set forth above are not complied with, [an a]ppellant's failure to act in accordance with Rule 1925(b) will not result in a waiver of the issues sought to be reviewed on appeal.Id. at 227 (citation omitted); see also Commonwealth v. Hooks , 921 A.2d 1199, 1202 (Pa.Super. 2007)).
Here, the order directed Appellant to serve a copy of the concise statement upon the trial judge, the order was filed with the clerk of courts, the clerk of courts docketed the order and provided the date on which the order was made, and the order indicates that written notice of the order was given to each party. However, the docket does not contain an entry, mandated by Pa.R.Crim.P. 114, recording the giving of such notice to the parties. Accordingly, we decline to find Appellant's issues raised in this appeal waived based on a failure to serve his Pa.R.A.P. 1925(b) statement on the trial court. See Commonwealth v. Hooks , 921 A.2d 1199, 1202 (Pa.Super. 2007) (deeming Rule 1925 waiver unavailable where fourth requirement, docket indication of date and manner of service of order, was unmet).
Turning, therefore, to the merits of the present appeal, we are persuaded by our review of the record, party briefs, and the cogent expression of rationale in the Rule 1925(a) opinion to affirm judgment of sentence entered below for the reasons offered by the trial court. In this regard, we recognize the court's careful distillation of Appellant's protracted Rule 1925(b) statement into clearly identifiable issues which fairly represent Appellant's questions raised in both his concise statement and, ultimately, his pro se brief. The opinion correctly disposes of a majority of the issues by application of waiver doctrine for Appellant's failure to offer timely and specific objections before the trial court. So, too, does the record support the remaining instances where the trial court rejects claims as either belied by the record or contradicted by authority, and the court appropriately declines to review Appellant's ineffective assistance of counsel claims on direct appeal. Accordingly, discerning no merit to any issue raised in the present appeal, we affirm on the basis of the trial court's opinion.
Judgment of sentence is affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/18/2016
Image materials not available for display.