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Commonwealth v. Mayfield

Superior Court of Pennsylvania

December 16, 2019


          Appeal from the Order Dated September 19, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006367-2016

          BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI [*] , J.


          GANTMAN, P.J.E.

         Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Philadelphia County Court of Common Pleas, which removed the Office of the Philadelphia District Attorney ("DA") and appointed a special prosecutor, in this revocation of probation case. For the following reasons, we transfer the appeal to the Supreme Court of Pennsylvania.

         The relevant facts and procedural history of this case are as follows. On June 15, 2016, police executed a search warrant at a suspected drug house in Philadelphia. During the search, police located Appellee, Demetrius Mayfield, sleeping in a bedroom. Police recovered a handgun from the bedroom. On May 15, 2018, Appellee entered a negotiated guilty plea to one count of persons not to possess firearms.[1] The court accepted Appellee's plea as knowing, intelligent, and voluntary, and imposed the negotiated sentence of 11½ to 23 months' imprisonment, plus three years' probation. The court awarded Appellee credit for time served and released him on immediate parole with the following conditions: seek and maintain legitimate employment, attend vocational training and parenting classes, submit to random drug/alcohol screens and home and vehicle checks for drugs and weapons, and stay away from the 5300 block of Lesher Street and any co-defendant(s). The court said the plea deal was "very generous" and cautioned Appellee "not [to] come back…." (N.T. Guilty Plea Hearing, 5/15/18, at 17; R.R. at 30a).

         On July 9, 2018, while Appellee was on parole, police approached a vehicle parked in the wrong direction on a one-way street. Appellee was in the driver's seat with a male passenger. Officers conducted a search of the vehicle and found drugs and two guns. The Commonwealth subsequently charged Appellee at docket No. CP-51-CR-0006274-2018, with various drug and firearms offenses ("new charges").

         The Adult Probation and Parole Department ("Department") issued a Gagnon I summary[2] on July 11, 2018, that stated Appellee's new charges constituted the only "potential direct violations" of his parole/probation and recommended a detainer. The Department issued a Gagnon II summary on July 26, 2018, expressly asking the trial court to wait until final disposition of the new charges before proceeding with a revocation hearing, with the detainer to remain. On August 2, 2018, the court appointed defense counsel and scheduled a "status of counsel" conference for August 31, 2018.

         The parties appeared before the court on August 31, 2018. Although the court listed the proceeding as a "status of counsel" conference, the court immediately directed the Commonwealth to file a motion to revoke Appellee's parole/probation, based on Appellee's new charges, and to subpoena the police officers involved with the new charges for a revocation hearing. The Assistant District Attorney ("ADA") informed the court a new internal policy required approval from a supervisor to file a motion for revocation prior to disposition of new charges. The ADA said she would subpoena the police officers to comply with the court's directive but confirmed she did not have the authority to file the revocation motion when the new charges were still pending. Notwithstanding the ADA's representations, the court directed her to file the motion and emphasized the "extremely generous" plea deal Appellee had received for "an extremely serious pistol whipping." (N.T. Hearing, 8/31/18, at 4-5; R.R. at 35a-36a). The ADA informed the court Appellee's case did not involve a "pistol whipping." The court conceded its error but still demanded the ADA to prepare for a revocation hearing on September 19, 2018. Regarding the revocation hearing, the court made clear it wanted to "knock this one out." (Id. at 4; R.R. at 35a).

         The parties appeared before the court again on September 6, 2018, at the Commonwealth's request. A different ADA represented the Commonwealth and attempted to clarify the recent policy requiring the ADA to seek approval to file a revocation motion before disposition of new charges. The ADA said his superior, the First Assistant of the DA's office, had denied the request in this case. The ADA explained prosecutorial discretion lies with the DA, not the court, to determine whether to proceed immediately to a revocation hearing or to defer revocation until disposition of the new charges. The court responded: "The underlying facts of this case were horrendous" and Appellee's negotiated sentence was "well below any guidelines that were applicable." (N.T. Hearing, 9/6/18, at 6; R.R. at 40a). The court emphasized the new charges were "very serious, very serious accusations and potentially very significant violations of [the court's] order of sentence." (Id. at 11-12; R.R. at 41a). The court also said it had the authority to grant or deny a request to defer a revocation proceeding pending disposition of new charges and would not wait until disposition of the new charges in this case. The court further stated it could decide whether Appellee had violated the terms of his parole/probation "independent of whether or not the Commonwealth decides to do [its] job." (Id. at 13; R.R. at 42a). Notwithstanding the ADA's requests to continue the revocation matter, pending disposition of the new charges, the court ordered the ADA to subpoena the police officers involved with Appellee's new charges and to appear for the revocation proceeding as scheduled for September 19, 2018.

         On September 19, 2018, the parties appeared for the scheduled revocation hearing. Defense counsel objected to going forward with the revocation hearing mainly because: (1) the Commonwealth did not file a request for revocation per Pa.R.Crim.P. 708 (requiring written request for revocation to be filed with clerk of courts), and the Department, defense counsel, and ADA agreed to defer the revocation proceeding until disposition of the new charges; (2) the court acted as an advocate for the Commonwealth instead of a neutral fact-finder; (3) the court improperly directed the Commonwealth to file a revocation motion and subpoena police officers, over the Commonwealth's objections; (4) defense counsel had not yet received the transcript for the preliminary hearing related to the new charges, so counsel would be unable to represent Appellee effectively at the revocation hearing; (5) Appellee retained private counsel to represent him concerning the new charges and wanted private counsel to represent him in the revocation proceedings as well; and (6) Appellee's co-defendant related to the new charges told police the guns and drugs belonged to him, but defense counsel would not be able to call the co-defendant as a witness in the revocation proceedings while an open case was still pending against the co-defendant, due to Fifth Amendment concerns.

         In response, the court indicated its order, directing the ADA to subpoena police officers and scheduling a revocation hearing, constituted sufficient written notice under Rule 708. The court also noted the different burden of proof at a trial on Appellee's new charges versus the lower burden of proof at a revocation hearing. The court further emphasized Appellee's right under Rule 708 to a revocation hearing held "as speedily as possible." Appellee expressly waived his right to a speedy revocation hearing, but the court told the Commonwealth to call its first witness concerning revocation. The hearing continued as follows:

[THE COMMONWEALTH]: Your Honor, despite my personal views and the propriety of this proceeding, I'm under very strict instructions from people who probably should be here themselves not to participate in this hearing.
[THE COURT]: When were you folks going to let me know that?
[THE COMMONWEALTH]: I apologize, your Honor. I thought that was the understanding.
[THE COURT]: Are you saying to me that the Commonwealth of Pennsylvania is not going to be represented by the District Attorney's Office of Philadelphia in this matter?
[THE COMMONWEALTH]: The police officers are here, your Honor.
[THE COURT]: No. No. No. Listen to my question, [counsel].
Are you saying that the Commonwealth of Pennsylvania is not going to be represented by the District Attorney's Office of Philadelphia at this revocation hearing; yes or no?
[THE COMMONWEALTH]: If I understand the question correctly, I believe that the answer would be no because-
[THE COURT]: Thank you. Have a seat.
I'm appointing a special prosecutor to represent the Commonwealth of Pennsylvania…. … The District Attorney's Office has removed itself.
* * *
Let the record reflect that the District Attorney's [Office] of Philadelphia has withdrawn its representation from the Commonwealth of Pennsylvania at the revocation hearing on this matter.

(N.T. Hearing, 9/19/18, at 46-48; R.R. at 56a). Immediately following the hearing, the Commonwealth filed a motion to reconsider in the trial court and a notice of appeal in this Court.

         The next day, the parties (including the court-appointed special prosecutor) appeared before the court. The Assistant Supervisor of the law division in the DA's office appeared to clarify that the DA's office had not "removed itself" from the proceedings but was exercising prosecutorial discretion to defer revocation until disposition of Appellee's new charges. The court informed the Commonwealth that deferring the revocation proceeding would infringe on Appellee's right to a speedy revocation hearing. Defense counsel reminded the court that Appellee had waived his right to a speedy revocation hearing. The hearing continued as follows:

[THE COURT]: I understand that [Appellee waived his right to a speedy revocation hearing]. And this court has a duty to proceed. And I can grant or deny the request to continue the case. This court's authority is what is at issue. Whether or not [Appellee] disobeyed the order of sentence in any way, shape or form or the terms of supervision therein. In this particular case, sir, it is my discretion to go forward. I have that discretion under the case law as I understand it.
* * *
Now, I do not need to wait for the disposition of his open case to make a fair determination as to what occurred there because that matter also had been held for court. A prima facie case has been demonstrated. So there is sufficient reason, number one, for detention. Number two, to proceed with a hearing. And I am not going to have you or anybody else from the District Attorney's Office sit there and think that because you refuse to do your job and represent the interests of the Commonwealth of Pennsylvania, which it includes public safety. I'm going to do my job, sir.
So since you have told me that you are not going to represent the Commonwealth of Pennsylvania at a revocation hearing that will be held in due course, sir; and I am not waiting for his open case to be resolved, I have to replace you with somebody else. Actually I'm not replacing. I'm putting someone in there since you are not going to do it.
So you may step back. Your petition for reconsideration is denied.
[THE COMMONWEALTH]: Your Honor, can I make our position clear for the record?
[THE COURT]: You did. You did. And so did [the other two ADAs]. Given the position of this office not to go forward in the matter as it should, you left the [ADA] standing before me without the ability to explain. That's not proper. That is disrespectful to him. Disrespectful to me and duly noted, sir.
What else do you want to tell me?
[THE COMMONWEALTH]: Just that we filed a notice of appeal under this court's order yesterday with the Superior Court which in due course to this court will receive a copy of our notice of appeal.
[THE COURT]: Okay.
[THE COMMONWEALTH]: And I just reiterate the grounds stated in the petition. Particularly emphasizing that the Supreme Court of this state has said that the preferred method of dealing with situations like this is ...

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