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Commonwealth v. Bethea

Superior Court of Pennsylvania

April 23, 2018


          Appeal from the Judgment of Sentence November 21, 2014 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0005123-2008

          BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J. [*]


          PLATT, J.

         Appellant, Hillard Bethea, appeals from the judgment of sentence imposed following his jury conviction of rape, aggravated assault, and related crimes. He claims the court erred in denying his pre-trial motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600(A)(2)(e). Appellant also challenges the trial court's grant of the Commonwealth's motion in limine to preclude his counsel's continued reference to him as "an innocent man" during voir dire. We affirm.

         We derive the facts of the case from the trial court's opinion and our independent review of the record. (See Trial Court Opinion, 11/23/15, at 4-6).

         The underlying facts are not in direct dispute in this appeal.[1] During the early morning hours of Thursday, March 13, 2008, Appellant left his home in Elkins Park, Montgomery County and drove a stolen van into the Kensington section of Northeast Philadelphia.[2] There, he solicited a prostitute, the victim. She agreed to provide a combination of oral and vaginal sex (with a condom), for forty dollars.[3] (See N.T. Trial, 11/03/10, at 6).[4] The two drove off in the stolen van, and after stopping at a store for Appellant to buy the condom, they went to a nearby parking lot.

         While having sex in the back of the van, Appellant removed the condom he was wearing and proceeded to urinate on the victim as well as continue vaginal intercourse, now unprotected. The victim protested these and other related acts and began to fight with Appellant. He punched her face with his fists. (See id. at 14-15). When they heard another car start up, the victim tried to get the attention of the other motorist by kicking and yelling loudly. Appellant tied a rope around her neck, knotted it, and pulled it from both sides, choking her. (See id. at 17-18).

         Appellant then ran to the front of the van and began to drive way. The victim followed him to the front of the van. She tried to get out, but the doors were locked. While driving erratically, Appellant pulled out a thirteen-inch serrated commercial grade kitchen knife and began stabbing at the victim over his right shoulder.[5] She suffered stab wounds to her left leg, thigh, calf, buttock, and palm, right arm, and face. Color photographs introduced by the Commonwealth as trial exhibits confirm that the stab injuries were numerous, deep, and severe. (See Commonwealth Exhibits C-9 through C-27; see also N.T. Trial, 11/03/10, at 20-22; 29-30). The victim testified that she thought she was going to die. (See N.T. Trial, 11/03/10, at 21; see also N.T. Trial, 1/28/14, at 14-15).

         Then the victim saw a ballpeen hammer on the floor of the van. She picked it up and began hitting Appellant with it in the area of his right eye, until he crashed the van into a pole. (See N.T. Trial, 11/03/10, at 22-23).[6]The victim, naked except for socks and sneakers, tried to retrieve her clothes, but Appellant would not let her, punching her in the face. He drove off, leaving her behind, naked and bleeding.

         Onlookers called the police, who found the van in an apartment parking lot and confirmed it was stolen. They then traced Appellant through the identification he had left in his wallet on the floor of the van. The victim also identified Appellant from a photo array. Cheltenham police arrested Appellant at his home in Elkins Park on a warrant from the Philadelphia police.

         On November 1, 2010, Appellant waived his right to a jury and proceeded to a bench trial. In the middle of the trial, on November 4, 2010, the parties agreed to a negotiated open plea in which Appellant would plead guilty to aggravated assault, possession of an instrument of crime, and unauthorized use of an automobile. In return, the Commonwealth agreed to withdraw the charges of attempted murder, rape, and aggravated indecent assault.

         On February 15, 2011, the trial court imposed an aggregate sentence of not less than seven nor more than twenty years of incarceration in a state correctional institution. Appellant was extremely upset, and had to be subdued by the sheriff staff.[7] Appellant filed a pro se motion to withdraw his plea of guilty on February 24, 2011. He claimed, inter alia, that he had not been properly informed of the maximum possible sentence, and in fact, had been assured of a lighter sentence, the sixty-four months' imprisonment. The trial court denied the motion to withdraw the plea. Appellant appealed.

         On July 11, 2012, a predecessor panel of this Court, noting discrepancies in the maximum length of sentence stated in the written and oral guilty plea colloquies, vacated Appellant's judgment of sentence and remanded for trial. (See Commonwealth v. Bethea, 55 A.3d 131 (Pa. Super. 2012) (unpublished memorandum)).[8]

         After remand, the trial court held a hearing on various motions, on May 2, 2013. These included a motion to dismiss pursuant to Pa.R.Crim.P. 600(A)(2)(e) and (D) for lack of a prompt trial, and a motion in limine to preclude reference to prior convictions. Appellant also filed a motion for recusal. After a lengthy discussion between the trial court judge, counsel, and Appellant, he refused a renewed plea offer from the Commonwealth and opted for a jury trial.[9] (See N.T. Motions Hearing, 5/02/13, at 18). The judge declined to recuse herself, noting that in a jury trial the jury, not she, would be the finder of fact. (See id. at 48).

         It bears noting, in light of Appellant's Rule 600 claims, that the trial court judge offered a trial date on the following Monday, (see id. at 13) ("So we can set it for trial for Monday, if you want"), which would have been May 6, 2013; or a month later, on June 3 (see id. at 49). Newly appointed defense counsel declined, asking for more time to review discovery. (See id. at 50-51).

         The trial court eventually set a tentative trial date of June 3 anyway, while recognizing that other trials might require a postponement. In fact, the June 3 trial did not occur. Because of other scheduled trials, the next available trial date was in January of 2014.

         On January 27, 2014, the trial court began voir dire. During voir dire, defense counsel introduced Appellant as "an innocent man." The Commonwealth made an oral motion in limine to preclude defense counsel from further reference to Appellant as an innocent man during voir dire. Defense counsel protested that the grant of the motion infringed on Appellant's constitutional presumption of innocence. The trial court granted the Commonwealth's motion.

         On February 4, 2014, a jury convicted Appellant of aggravated assault-attempt to cause serious bodily injury; aggravated assault-causing serious bodily injury; rape; possession of an instrument of crime; and unauthorized use of a motor vehicle.[10] (See Verdict Slip, 2/04/14).

         The trial court deferred sentencing several times for the completion of a pre-sentence investigation report as well as an assessment by the Sexual Offenders Assessment Board. On November 21, 2014, the trial court found Appellant to be a sexually violent predator (SVP), requiring lifetime registration, [11] and sentenced him to an aggregate term of not less than twenty-three and a half years nor more than forty-seven years of incarceration in a state correctional institution. (See Order of Sentence, 11/21/14).[12] Appellant timely appealed, on December 7, 2014.

         After receipt of trial transcripts, Appellant timely filed a statement of errors. The trial court filed an opinion on November 23, 2015. See Pa.R.A.P. 1925.

         Appellant raises two questions on appeal:

1) Whether the [t]rial [c]ourt erred by denying [A]ppellant's motion to dismiss pursuant to Rule 600(A)(2)(e) of the Pa. Rule[s] of Criminal Procedure?
2) Whether the [t]rial [c]ourt erred by prohibiting counsel for [A]ppellant from referring to [Appellant] as an innocent man during voir dire?

(Appellant's Brief, at 4).

         Appellant first contends that the trial court erroneously added thirty-two days to the adjusted run date of January 19, 2014, because that period was not attributed to the defense on the record. (See id. at 13-14). He also argues that the court did not certify on the record that its earliest available jury trial date was January 27, 2014. He maintains that the trial court erroneously extended the adjusted run date to February 20, 2014. He assumes the correct adjusted run date was still January 19, 2014. From this assumption, Appellant posits that he was not brought to trial within the time limits imposed by Rule 600. He argues his sentence should be vacated and the case against him dismissed. (See id. at 20). We disagree.

         We review Appellant's Rule 600 argument according to the following principles:

In evaluating Rule [600] issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record of the Rule [600] evidentiary hearing, and the findings of the [trial] court. An appellate court must view the facts in the ...

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