Com. v. Harris, M. ( 2022 )

J-S33045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL HARRIS :
:
Appellant : No. 2255 EDA 2020
Appeal from the Judgment of Sentence Entered October 20, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000081-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 11, 2022
Michael Harris appeals from the judgment of sentence entered following
his jury trial conviction for attempted sexual assault. 18 Pa.C.S.A. §§ 901,
3124.1. Harris challenges the discretionary aspects of his sentence. We affirm.
The trial court set forth the following factual and procedural history:
Harris, was arrested and was charged with attempted rape
and attempted sexual assault of the complainant, [M.G.], on
October 27, 2016. [M.G.] had been working with [Harris] as
a publicist and assistant organizing fundraising and speaker
events for him for approximately eight to ten months.
Evidence at trial revealed that on the evening in question,
[M.G.] had attended a client event with [Harris] and at the
end of the evening when he was driving her home; [Harris]
had isolated and secluded the complainant in Fairmount
Park instead of taking her home as she had repeatedly
requested. Instead of heeding her requests, [Harris] drove
her to a dark part of the park, parked his car, [and] forced
her out of the vehicle when she had stated that she had to
urinate. After she had alighted from the vehicle, he forced
himself upon her by approaching her from behind, putting
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both of his arms under her armpits and grabbing her away
from the street and past the bushes.
[Harris], a considerably larger individual, then bent [M.G.’s]
body facedown over a park bench, restrained her with one
hand on her neck and used his other hand to pull down her
pants and underwear. Once she had been pinned, he pulled
out his penis and attempted to insert it into her vagina. As
[Harris] restrained her, the complainant struggled,
screamed, and cried.
As she pleaded for him to stop, she reminded [Harris] that
she had been raped before and asked him how he could do
this to her as his friend. [Harris] finally stopped when his
penis went limp.
Frustrated, [Harris] then told the complainant that she had
“messed up” and that she “just made it harder” on herself
the next time. He claimed that the next time was going to
be more “volatile.” Scared that he was going to kill her,
[M.G.] got back in [Harris’s] car and he dropped her off at
a nearby home of her cousin. Later that same day, the
complainant told her mom what had happened and they
called the police to report what had happened. Two days
later, on October 29, 2016, [Harris] e-mailed the
complainant, “You okay? You okay?” The complainant did
not respond right away. When she did respond, she replied
that she had gotten his text messages and calls, but to
answer his questions, “No, I'm not okay;” “How dare you
have the audacity to act like nothing happened, that you
didn't try to rape me in the park. When you bent me over
the bench and told me it would be more volatile for me next
time. So to answer your question, No, Mike, I’m not okay.
Stop contacting me.” [Harris’s] response was not a denial;
he simply said that he had been joking. (N.T. 2/19/2020,
pp. 33 —119).
Trial Court Opinion, filed June 8, 2021, at 1-3 (footnotes omitted).
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On February 24, 2020, a jury convicted Harris of attempted sexual
assault.1 After receiving a presentence report and mental health evaluation,
the court sentenced Harris to a term of four to eight years’ incarceration
followed by three years’ reporting probation and designated Harris as a Tier
III sex offender. On October 13, 2020, Harris filed post-sentence motions
asserting that the jury verdict was against the weight of the evidence and
requesting reconsideration and modification of the sentence. On October 20,
2020, the trial court denied the motion seeking a new trial but granted the
motion to reconsider the sentence. After a hearing, the court re-sentenced
Harris to a reduced term of 3½ to 7 years’ incarceration followed by three
years of state supervised probation. Harris did not file a post-sentence motion
following his re-sentencing. Harris filed a timely notice of appeal.
Harris raises the following issues on appeal:
1. Whether the lower court erred and abused its discretion
in sentencing [Harris].
A. [Harris’s] sentence was manifestly extreme,
excessive, and clearly unreasonable.
B. The trial court improperly considered as aggravating
factors matters already considered by the standard
guideline range.
i. The trial court improperly sentenced [Harris] in the
aggravated range when the facts found by the jury did
not deviate from the norm contemplated by the
sentencing guidelines for Attempted Sexual Assault;
____________________________________________
1 The jury found Harris not guilty of attempted rape, 18 Pa.C.S.A. §
3121(a)(1).
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ii. The trial court, by sentencing [Harris] in the
aggravated range, penalized [Harris] for exercising
trial rights.
C. The trial court sentenced [Harris] out of partiality,
prejudice, bias and/or ill will.
D. The trial court’s findings and opinion of [Harris] at
sentencing is unsupported by the record, including but
not limited to, where the trial court opined that
[Harris] denigrated and stalked the victim and used
his position as a weapon, and that [Harris] had deep
seated issues and/or resentment with women.
i. Although [Harris] had juvenile adjudications and
this conviction, [Harris] otherwise lived a life of
positive mentorship and positive relationships, even
with women, in his family, community, and business,
as indicated by his character letters that the Trial
Court failed to properly weigh and consider.
E. The trial court improperly disregarding or failed to
properly weigh [Harris’s] character, family
relationships, rehabilitation efforts and amenability,
and remorse for the impact upon the victim, along
with mitigating statutory factors.
F. [Harris] believes that the trial court sentenced him out
of prejudice and more harshly misjudged him because
he is an African American male who showed pride in
his business and mentorships.
G. The trial court sentenced [Harris] in the aggravated
range with finding of facts under 18 Pa.C.S.A. § 3133,
sexual extortion, for which he was not charged or
convicted.[2]
H. The trial court sentenced [Harris] in the aggravated
range with finding of facts of attempted rape by
forcible compulsion and/or threat of force, 18
Pa.C.S.A. § 3121, and rape, 18 Pa.C.S.A. [§] 901(A),
____________________________________________
2 Although Harris included this issue in his statement of issues, he withdrew it
in the argument section of his brief. Harris’s Br. at 23.
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when the jury rejected those facts and acquitted
[Harris].
Harris’s Br. at 6-7.
Harris argues that the trial court abused its discretion when imposing
sentence. He claims it misapplied the law, imposed a manifestly excessive
sentence, and exercised judgment for reasons of partiality, prejudice, bias, or
ill-will. He asserts that running the term of probation consecutive to the term
of incarceration resulted in an excessive aggregate sentence. Further, he
claims the court failed to consider the mitigating facts before it, including the
trauma Harris endured as a child, his health problems and hospitalizations,
and his acceptance of responsibility and remorse. He argues this claim of
excessiveness coupled with failure to consider mitigating factors raises a
substantial question.
Harris further claims the court “improperly sentenced [him] in the
aggravated range when the facts found by the jury did not deviate from the
norm contemplated by the sentencing guidelines for Attempted Sexual
Assault.” Harris’s Br. at 13-14. He claims the court’s only basis for re-
sentencing him in the aggravated range was his decision to go to trial.
Harris next claims the court’s sentence could only have been out of
partiality, prejudice, bias, or ill will. He claims the court sentenced him more
harshly because he was an African American male who showed pride in his
business. He alleges the record does not support the court’s findings or its
opinion of Harris, including the court’s opinions that Harris denigrated and
stalked the victim, used his position as a weapon, and had deep seated issues
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with women. Harris further claims the court based the sentence on facts of
attempted rape by forcible compulsion, of which the jury acquitted him. The
use of such facts was therefore improper.
In his issues, Harris challenges the discretion aspects of his sentence.
There is no absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en
banc). Rather, we follow a four-part analysis before addressing a challenge to
discretionary aspects of sentence. We must determine whether the appellant:
(1) filed a timely notice of appeal; (2) properly preserved the sentencing issue
at sentencing or in a motion to reconsider or modify sentence; (3) included in
the appellate brief a concise statement of the reasons relied upon for
allowance of appeal; and (4) asserted a substantial question that the sentence
is not appropriate under the Sentencing Code. See Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa.Super. 2013); 42 Pa.C.S.A. § 9781(b). “[I]f the
appeal satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.” Austin, 66 A.3d at 808 (citation
omitted).
Here, Harris filed a timely notice of appeal. However, he did not file a
post-sentence motion following his re-sentencing and therefore waived the
claims. See Commonwealth v. Levy, 83 A.3d 457, 467 (Pa.Super. 2013)
(failure to file new post-sentence motion after resentencing waived
defendant’s appeal of discretionary aspects of sentence); Commonwealth v.
Kephart, 2021 WL 1716642, at *4 (Pa.Super. filed Apr. 30, 2021) (noting
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that if counsel failed to file a post-sentence motion following re-sentencing,
any challenge to the discretionary aspects of the appellant’s sentence would
be waived); see also Commonwealth v. Broadie, 489 A.2d 218, 220
(Pa.Super. 1985) (finding “[a] modified sentence constitutes a new sentence
from the date of which the time for filing a notice of appeal will begin to run
anew” and that “[i]f the party who filed the original motion is still dissatisfied
with the sentence, a second motion gives the sentencing court the first
opportunity to modify the new sentence”). Harris furthermore did not include
a concise statement of reasons relied upon for allowance of appeal in a
separately-titled section of the brief, and the Commonwealth has objected.
See Pa.R.A.P. 2119(f). Although he included in the body of his brief some
argument that the issues raised were substantial questions, because such
argument was not in a separate section, we cannot review the claims. See
Commonwealth v. Weir, 201 A.3d 163, 175 (Pa.Super. 2018);
Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa.Super. 2016).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2022
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