J-S74007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYAINA FINCH

Appellant No. 898 EDA 2016

Appeal from the Judgment of Sentence February 19, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002763-2015

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 12, 2016

Appellant Tyaina Finch appeals the judgment of sentence entered in 

the Court of Common Pleas of Delaware County on February 19, 2016, 

following her non-negotiated guilty plea to one count each of third degree 

murder and terroristic threats1for the killing of her boyfriend, an off-duty 

police officer with the Darby Borough Police Department. We affirm, albeit 

for reasons other than those relied upon by the trial court. 

The trial court related the factual and procedural history herein as 

follows: 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c) and 2706(a), respectively. 
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On November 13, 201[5], Appellant entered an open guilty 

plea to Count 2: Murder in the Third Degree (F1).[2] At the 

hearing, this [c]ourt explained to Appellant that an open guilty 

plea meant there was no agreement between her counsel and 

counsel for the Commonwealth as to a recommended sentence 

and that the sentencing would be completely within this Court's 

discretion. [N.T., 11/13/2015 p. 4, 14]. This [c]ourt explained to 

Appellant the guideline ranges for Murder in the Third Degree. 

[N.T., 11/13/2016 p.5]. Appellant confirmed that she went over 

the guilty plea statements with her attorney, that she 

reads/writes/ and understandings [sic] the English language, and 

was not under the influence of any drugs or alcohol. [N.T., 

11/13/2015 p. 7]. Appellant also stated that she understood her 

right to have a trial by judge or jury and that entering a guilty 

plea would mean she was not having a trial and that her counsel 

would not be filing any pre-trial motions. [N.T., 11/13/2015 p. 9, 

14]. Counsel and this Court both explained to Appellant that her 

plea would limit the issues she could raise on appeal. [N.T., 

11/13/2016 p. 10].[3] Appellant told this [c]ourt that her plea 

was a result of her own free will and that no one had coerced or 

forced her or promised her anything in return. [N.T., 11/13/2016 

p. 11].

Sentencing was set for January 7, 2016, and presentence, psychiatric, and psychological evaluations were 

ordered. Counsel for the Commonwealth and counsel for 

Appellant were ordered to provide sentencing memorandums.

On December 31, 2015, counsel for Appellant filed a 

Motion for Funds for Psychological Expert. The motion requested 

that the County pay for a specialized domestic violence 

evaluation to determine the nature and impact of her experience 

of being abused by Mr. Hudson as well as other persons in her 

past." 1 Appellant further contended she shot Mr. Hudson during 

____________________________________________

2

In exchange for Appellant’s guilty plea, the Commonwealth dismissed 

charges for first degree murder, aggravated assault, and possessing 

instruments of crime. See 18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), and 

907(a), respectively. 

3 Specifically, Appellant was informed that she could challenge the trial 

court’s jurisdiction, the legality of her sentence, trial counsel’s effectiveness 

or whether she had entered her plea unwillingly. N.T. Guilty Plea, 11/13/15, 

at 9-10. 
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a "boisterous physical altercation during which [Appellant] felt 

the need to defend herself.2"

On the scheduled sentencing date of January 7th, this 

[c]ourt addressed the motion, denying counsel's request for the 

County to pay for the expert but allowing counsel additional time 

in which to have Appellant evaluated on her own accord. [N.T., 

1/7/2016 p. 5]. Appellant failed to avail herself of this 

opportunity. Sentencing was re-scheduled for February 19, 

2016.

On February 19th, the Commonwealth presented several 

individuals who spoke on Officer Hudson's behalf. Chief Smyth, 

Chief of the Darby Police Department for the past thirty-two 

years, told this Court that Officer Hudson was a special person 

who was loved by all, had a vibrant personality, and [a] young 

man who put himself through the police academy and had a 

promising career ahead of him. [N.T., 2/19/2016 p.6].

Chief Jeffries, Chief of the Yeadon Fire Department for the 

past eighteen years, told this [c]ourt that Officer Hudson started 

with their Department as a junior fireman and excelled in all of 

his training and eventually became Lieutenant with 

responsibilities that included teaching and training new 

members; also serving on the Executive Board for several years. 

[N.T., 2/19/2016 p. 8-9]. In 2008, due to his dedication and 

hard work, Officer Hudson was awarded the Chief’s Award. [N.T., 

2/19/2016 p. 9].

Paul Andrews Jr., Officer Hudson's best friend, told this 

[c]ourt that he had known Officer Hudson for ten years and that 

Officer Hudson was a positive influence in his life and that he 

always knew Officer Hudson to be caring towards Appellant and 

how much he wanted Appellant as his girlfriend. [N.T., 

2/19/2016 p. 11]. Mr. Andrews also told this [c]ourt that Officer 

Hudson told him on several occasions that Appellant was very 

aggressive towards him and that she argued with him a lot and 

that Officer Hudson's way of handling that was to leave the 

situation or to call him and talk about it. [N.T., 2/19/2016 p. 

12].

On behalf of his family, Officer Hudson's cousin, Tiffany 

Settles, told this [c]ourt that Appellant came on their family 

vacation to Virginia and Appellant told her that she really didn't 

have any family or any connection with them as she was 

originally from Hawaii and then adopted by a family in 

Philadelphia who already had many other children. [N.T., 

2/19/2016 p. 14]. In response to Appellant's statement in her 

evaluation that she was not free to leave, Ms. Settles testified 
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that she personally observed instances at Officer Hudson's home 

where Appellant came and left freely. [N.T., 2/19/2016 p. 15]. 

Officer Hudson's father, Alfred Hudson, told this [c]ourt that his 

son was young, vibrant, and loved and respected by many; was 

a great writer; a noble man and that not a day goes by that the 

[sic] does not grieve for the loss of his son. [N.T., 2/19/2016 p. 

16]. 

The last individual to speak was Officer Hudson's mother, 

Karen Hudson, who gave this [c]ourt a very emotional and 

harrowing account of what her family has been through since the 

loss of Officer Hudson. [N.T., 2/19/2016 p. 17-21].

In addition to the testimony, the Commonwealth also 

admitted C-4, a copy of the Protection From Abuse (PFA) Order 

signed by Judge Cartisano against Appellant, where Officer 

Hudson was the victim. The Commonwealth also admitted C-5, a 

video of Appellant as she was being walked into [c]ourt to be 

processed shortly after being arrested, which depicts Appellant 

staring directly into the camera and saying, "do you want me to 

smile." Counsel for the Commonwealth also pointed out to this 

[c]ourt that Appellant's first version of the events that transpired 

that evening blamed her actions on the dog, stating that she was 

trying to remove the gun from the dog's mouth when it 

accidentally went off. The medical examiner told Officers that 

Officer Hudson was probably lying or kneeling down at the time 

he was shot as the trajectory of the bullet was a downward 

angle, which prompted Appellant to give another bogus 

statement to police. It wasn't until Appellant's third statement to 

police that she began telling them a story of Officer Hudson's 

abuse and that on the day of the shooting, Officer Hudson was 

abusing her and throwing her around the rooms yet the house 

was virtually undisturbed in crime scene photos. [N.T., 

2/19/2016 p 40].

On behalf of Appellant, Fred Grant, told this [c]ourt that 

Appellant is his foster daughter, and that she was different, had 

ups and downs but that she was helpful around the house and 

with her church ministry. [N.T., 2/19/2016 p. 26]. Robin Grant, 

also adopted by Fred Grant, grew up with Appellant and told this 

[c]ourt that she was close with Appellant when she was younger 

but that she moved away and didn't stay in contact often, but 

that she randomly ran into Appellant at the mall one day while 

Appellant was with Officer Hudson but that she didn't know much 

about their relationship. [N.T., 2/19/2016 p. 29]. Edward Ray, 

Appellant's biological father, told this [c]ourt that all he knew 

about his daughter was that she liked children and took part-
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time jobs to go to school. [N.T., 2/19/2016 p. 30]. Appellant told 

this [c]ourt that she wanted to apologize to Officer Hudson's 

family, that her actions were senseless and that she loved 

Officer Hudson. [N.T., 2/19/2016 p. 37]. In addition, Appellant 

told this [c]ourt that Officer Hudson's mother was very nice to 

her. [N.T., 2/19/2016 p. 37].

After listening to the testimony, reviewing the presentence investigation report, the drug and alcohol evaluation, 

and the psychiatric evaluation, taking into account the 

guidelines, the nature of the crime, the impact on the victim and 

society and Appellant's rehabilitative needs, this [c]ourt 

sentenced Appellant to 18-to-36 years in a state correctional 

facility. Appellant was also sentenced on a separate transcript, 

2766-2015 to five years' probation for terroristic threats 

consecutive to the third degree murder sentence. [N.T., 

2/19/2016 p. 48]. In that case, Appellant was charged with 

terroristic threats for another incident involving Officer Hudson, 

where Officer Hudson had locked himself in the bedroom, called 

911, and Appellant answered the door holding an eight inch 

steak knife, telling the responding officer that she was tired of 

him yelling and wanted him dead.3

Counsel for Appellant filed a notice of appeal on March 18, 

2016 as well as a 1925(b) Statement and an Application to 

Appoint Counsel, as Appellant was no longer able to retain his 

services. This [c]ourt appointed the Delaware County Office of 

the Public Defender who was given an extension of time in which 

to file a new 1925(b) Statement, which was timely filed on May 

18, 2016.

__

1 See Motion for Funds for Psychological Expert, Paragraph 3, 

filed December 31, 2015,

2 See Motion for Funds for Psychological Expert, Paragraph 2, 

filed December 31, 2015.

3 See Affidavit of Probable Cause transcript 2766-2015. This case 

is not on appeal.

Trial Court Opinion, filed 5/20/16, at 1-5. 

At the guilty plea hearing, Appellant asked for a deferred sentencing 

date so that a presentence investigation report (PSI) and a mental health 
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evaluation could be completed and to enable counsel to prepare for 

sentencing. N.T. Guilty Plea, 11/13/15, at 4. The trial court granted 

Appellant’s request to hold the sentencing hearing in early 2016 and 

scheduled the same for January 7, 2016. Id. at 4, 17-18. The trial court 

further indicated it would be ordering a PSI along with a psychiatric 

evaluation for diagnosis and treatment after the Commonwealth informed 

the court it already was in possession of a psychological examination. Id. at 

18-19. Appellant never requested public funds to obtain an additional 

evaluation, and she indicated that she had no further questions for the trial 

court before the termination of the proceedings. Id. at 20.

On December 31, 2015, Appellant filed her Motion for Funds for 

Psychological Expert wherein she requested what she termed a “Domestic 

Violence Evaluation” in order “to determine the nature and impact of 

[Appellant’s] experience of being abused by Mark Hudson, as well as other 

persons in her past, and whether [Appellant’s] history of abuse is relevant 

for purposes of mitigation, which defense counsel is ethically required to 

present to the court at a sentencing hearing.” See Motion for Funds for 

Psychological Expert, filed 12/31/15, at ¶ 3. Appellant also baldly averred 

that she was “without funds to hire a psychologist/mitigation expert to assist 

counsel in preparation of the sentencing phase of this matter” despite the 

fact that counsel had been privately retained. Id. at ¶ 12-13. Appellant 

posited that “[a]lthough a plea has been agreed upon, it does mean the 

entire story has been proffered.” Id. at ¶ 16. 
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In her brief, Appellant presents the following Statement of the 

Question Involved:

Whether the lower court erred in denying the defense 

motion for funding to hire a psychological expert for sentencing 

purposes since the refusal to provide funding, or to even conduct 

a hearing on the need for funding, precluded a defendant who 

asserted indigence from exploring or developing mitigation 

issues?

Brief for Appellant at 5. 

Appellant states that “[r]ather than litigate the case at trial, it was her 

plan to prepare for a thorough sentencing hearing.” Brief of Appellant at 6. 

Appellant maintains that the trial court’s denial of her motion to obtain public 

funding to pay for the requested examination deprived her of her right to 

due process because such an evaluation “could have helped her uncover, 

understand and develop valuable mitigation evidence” which she otherwise 

could not obtain as an indigent defendant. Id. at 9. Appellant avers it is 

reasonably likely that a domestic abuse expert’s psychological evaluation 

would have impacted the sentence in that the trial court’s mistaken belief it 

could not provide funding for such a study is evidenced in the fact that it 

continued the sentencing hearing to enable Appellant to hire an expert. Id. 

at 11. Appellant posits that the United States Supreme Court’s decision in 

Ake v. Oklahoma, 470 U.S. 68 (1985) (finding that where his sanity will be 

an issue at trial, a capital defendant is entitled to court-appointed mental 

health expert) and this Court’s holding in Commonwealth v. Curnutte, 

871 A.2d 839 (Pa.Super. 2005) (holding an indigent defendant subject to an 
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SVP hearing under the provisions of Megan's Law II has a procedural due 

process right to a court-appointed psychological expert) are dispositive 

herein and urges this Court to vacate her judgment of sentence and remand 

for new sentencing hearing. Id. at 11. 

In finding no merit to the aforementioned arguments, the trial court 

first observed that the proper venue in which to raise a justification for the 

killing would have been at trial, although Appellant opted not to have one. 

The trial court related that it had the benefit of psychiatric, psychological and 

drug/alcohol evaluations prior to sentencing, none of which indicated 

domestic violence may have played a part in the murder. The trial court 

highlighted that Appellant accepted responsibility for the murder when she 

tendered her guilty plea and explained it provided her with additional time 

prior to sentencing to obtain an evaluation at her own expense. The trial 

court noted Appellant’s versions of events changed three times, and the first 

two did not include any reference to her abuse at the hands of Officer 

Hudson. The trial court found most relevant that Officer Hudson had 

obtained a PFA order against Appellant and that the medical examiner’s 

report did not support the position that Appellant shot Officer Hudson in a 

“boisterous physical altercation” as she averred in her motion. Trial Court 

Opinion, filed 5/20/16, at 6-7. 

While its observations are sound, the trial court fails first to 

acknowledge that when a defendant enters a guilty plea, she waives her 

right to challenge on direct appeal all non-jurisdictional defects except the 
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legality of her sentence and the validity of her plea. Commonwealth v. 

Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008). Herein, Appellant 

neither asserts her plea was not entered knowingly, voluntarily and 

intelligently nor that her sentence was illegal. To the contrary, as the trial 

court stated, in her Motion for Funds for Psychological Expert, Appellant 

stated she “has accepted responsibility for the death of Mark Hudson, who 

was shot once while in the couple’s bedroom during a boisterous physical 

altercation during which [Appellant] felt the need to defend herself.” See

Motion for Funds for Psychological Expert, at ¶ 2; Trial Court Opinion, filed 

5/20/16, at 6. Appellant echoed this admission when she stated she took 

“full responsibility” for her “senseless act” and for her “actions” at the time 

of sentencing. N.T. Sentencing, 2/19/16, at 32-33, 37-38; Trial Court 

Opinion, filed 5/20/16, at 6. In fact, at no time either at her guilty plea 

hearing or during her sentencing hearing did Appellant maintain she had 

been subjected to abuse at the hands of Officer Hudson or that such abuse 

prompted her to kill him. 

As stated above, the trial court had the benefit of a PSI report and the 

results of psychiatric and psychological examinations prior to rendering its 

sentence, the legality of which Appellant does not challenge herein. 

Therefore, we find Appellant waived the issue she raises before this Court 

when she entered her guilty plea. Accordingly, we affirm Appellant’s 

judgment of sentence. Commonwealth v. Moore, 594 Pa. 619, 638, 937 

A.2d 1062, 1073 (2007) (citations omitted) (“an appellate court may affirm 
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a valid judgment based on any reason appearing as of record, regardless of 

whether it is raised by appellee”). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2016