Com. v. Green, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARNELL GREEN :
:
Appellant : No. 2280 EDA 2018
Appeal from the Judgment of Sentence Entered February 12, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012283-2014
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED: APRIL 23, 2021
Appellant, Carnell Green, appeals from the judgment of sentence
entered on February 12, 2018. Following a jury trial, Appellant was found
guilty of rape of a child, involuntary deviate sexual intercourse with a child,
unlawful contact with a minor, endangering the welfare of a child, indecent
assault of a person less than thirteen years of age, and indecent exposure. 1
After careful review, we affirm the judgment of sentence.
The trial court set forth the following factual recitation:
During the course of a two-day trial, Appellant’s
stepdaughter, A.E., testified to a protracted pattern of sexual
abuse by Appellant–a series of events that began when A.E. was
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3121(c), 3123(b), 6318(a)(1), 4304(a)(1), 3126(a)(7) and
3127(a), respectively.
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about eight years old and continued until she was eleven. (N.T.
8/16/17 at 20, [63]). A.E. described several occasions when
Appellant took A.E. to the bathroom and forced her to perform
oral sex on him. (Id. at 55-58). On one occasion, when A.E. was
ten, Appellant’s behavior escalated; A.E. testified that Appellant
went into her bedroom, undressed her, and tried to force his penis
into her vagina. (Id. at 59-60, 76). A.E. explained that the incident
was very physically uncomfortable and caused her to feel
“pressure and pain” in her vaginal area. (Id. at 59, 61). At some
point, when A.E. was eleven years old, Appellant moved out of her
family’s home. (Id. at 63). Shortly after he moved, Appellant
called A.E. on her mother’s cellphone. (Id.). During their
conversation, Appellant told A.E. that he was going to book a hotel
room for the two of them; he also asked her whether she
“remembered what he taught her” and told her that he wanted
her “to show him what he taught her.” (Id. at 25, 63-64). A.E. did
not see or hear from Appellant after that phone call. Eventually
A.E. disclosed the abuse to a school teacher. (Id. at 64-66). School
officials contacted the authorities, and Appellant was arrested
shortly thereafter.
Trial Court Opinion, 10/9/20, at 3-4.
The trial court set forth the following procedural history:
On August 17, [2017], following a jury trial, [Appellant] was
convicted of rape of a child, involuntary deviate sexual intercourse
with a child, unlawful contact with a minor, endangering the
welfare of a child, indecent assault of a person less than thirteen
years of age, and indecent exposure. On February 12, 2018,
Appellant received an aggregate sentence of fifteen to thirty years
of incarceration, followed by fifteen years of reporting probation.
Following a filing error by Appellant’s appointed trial counsel,
Appellant’s appellate rights were reinstated nunc pro tunc by this
court on July 10, 2018. (Order Jul. 10, 2018). Appellant filed a
notice of appeal on July 12, 2018 and an amended notice of appeal
on July 20, 2018. On July 24, 2018, this court ordered Appellant
to file a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). On August 15, 2018, Appellant filed
a motion for an extension of time to file his statement, which this
court granted on August 16, 2018. Appellant filed a timely
statement on February 14, 2019, raising the following issues:
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1. At trial the evidence presented against Appellant was
very vague and sketchy, including not a single specific
date or time of any incident, and lacking in particularity
to justify the prosecution.
2. The lack of specificity prevented Appellant from
locating alibi witnesses or to present [sic] an adequate
defense.
In its opinion dated March 14, 2019, this court found that all
issues on appeal were waived, as Appellant’s 1925(b) statement
was facially insufficient and failed to raise any claim that could be
meaningfully addressed by this court. The Superior Court agreed.
See Commonwealth v. Green, No. 2280 EDA 2018, 2020 WL
1079263, at *3 (Pa. Super. Ct. Mar. 6, 2020). In its opinion dated
March 6, 2020, the Superior Court (1) found that appellate
counsel’s woefully imprecise 1925(b) statement constituted per se
ineffectiveness and (2) remanded the case for the appointment of
new counsel. The Superior Court further ordered new appellate
counsel to file a 1925(b) statement “within twenty-one days of
appointment.” Id.On March 9, 2020, this court issued the following order:
AND NOW this 9th day of March 2020, pursuant
to the Superior Court’s opinion and order, IT IS
ORDERED that new counsel is to be appointed for
Defendant-Appellant in the above caption matter. It is
further ordered that new counsel shall filed a new
Pa.R.A.P. 1925(b) statement within twenty-one (21)
days of appointment.
(Order Mar. 9, 2020). For reasons that are not apparent to this
court, the First Judicial District Court Appointments Unit did not
appoint counsel, Mark D. Mungello, Esq., until July 23, 2020.
By September 11, 2020, fifty days after counsel’s
appointment, counsel had neither sought an extension of time nor
filed a new 1925(b) statement. Consequently, this court (in the
interests of expediency and fairness to Appellant) issued a second
order granting counsel an additional twenty-one days to file a
statement:
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AND NOW, this 11th day of September 2020,
Carnell Green, through counsel, is hereby ORDERED
to immediately comply with this court’s 1925(b)
Order, dated March 9, 2020. Appellant must file a
Statement of Errors Complained of on Appeal no later
than twenty-one days (21) days from the date
of this Order’s entry on the docket, in compliance
with Pennsylvania Rule of Appellate Procedure
1925(b). Failure to timely file a Rule 1925(b)
Statement of Matters Complained of on Appeal will
result in the issuance of a Lord opinion.
(Order Sept 11, 2020) (footnote omitted).
On October 1, 2020, appellate counsel filed a statement of
errors, asserting the following claims:
1. The evidence presented by the Commonwealth was
insufficient to convict Appellant of the crimes that he
was found guilty of.
2. The verdict that was rendered against Appellant was
against the weight of the evidence.
3. Appellant’s attorney, Shawn K. Page, was ineffective
in his opening argument by implying to the jury that
Appellant might be guilty of a “heinous” crime, the
rape of a child.
4. Appellant reserves the right to present additional
errors to be presented on appeal once his court
appointed attorney, Mark D. Mungello, Esquire, who
did not represent Appellant at trial, has been granted
an additional twenty-one (21) days to further review
the entire record of this matter.
On October 2, 2020[,] twenty-one days after this court filed a
second 1925(b) order appellate counsel also filed a request for an
extension of time to file a 1925(b) statement. Counsel’s sole
justification for his request was that he could not “explain how he
lost track of his appointment in this case.” (Mot. Extension Time at
¶ 2).
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Trial Court Opinion, 10/9/20, at 1-3 (emphases in original) (footnote omitted).
The trial court filed an Order and Opinion on October 9, 2020, addressing the
issues raised in Appellant’s Pa.R.A.P. 1925(b) statement and denying
Appellant’s request for an extension of time. Id. at 4.
After seeking and receiving multiple extensions to file his appellate brief
with this Court, Appellant filed it on January 22, 2021. Appellant presents the
following questions for our review:
1. Whether undersigned counsel should be granted permission to
withdraw this issue where it was determined that corroboration
is not necessary to convict an individual such as [Appellant,]
even though the Commonwealth failed to present any such
proof, and where the evidence was otherwise sufficient to
enable the jury to find him to be guilty of all charges.
2. Whether the trial court committed an abuse of discretion where
the verdict rendered against [Appellant] of his being found
guilty of all charges was against the weight of the evidence
presented by the Commonwealth.
3. Whether undersigned counsel should be granted the permission
of this Honorable Court to withdraw from arguing that
[Appellant’s] trial attorney committed ineffective assistance of
counsel in his opening argument by stating to the jury that
[Appellant] might be guilty of a “heinous” crime, the rape of
[A.E.], and then later in that same opening argument told the
jury … “the nature of the charges we all frown. We all– none of
us wants to deal with this. The nature of the charges are
beyond disgusting.” As a result of undersigned counsel’s being
given that permission, [Appellant] will be able to raise this
issue and any others of arguable merit in a later proceeding
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. Section
9141, et seq without causing [Appellant] to suffer a waiver of
any such issues.
Appellant’s Brief at 4.
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Appellant’s counsel seeks permission from this Court to withdraw his
first and third issues presented for our review, relating to sufficiency of the
evidence and trial counsel’s ineffectiveness.2 Appellant’s Brief at 4. Appellant
is not required to seek leave to withdraw an issue he included in his Pa.R.A.P.
1925(b) statement but does not intend to present in his brief before this
Court.3 Pursuant to Pa.R.A.P. 2116(a), “No question will be considered unless
it is stated in the statement of questions involved or is fairly suggested
thereby.” See also Commonwealth v. J.F., 800 A.2d 942, 946 n.10 (Pa.
Super. 2002) (finding that where the appellant raised an issue in his statement
of questions involved but did not discuss it in his brief on appeal, the issue will
be deemed waived.). On this basis, we conclude that despite including issue
one in his Rule 1925(b) statement, Appellant has waived this issue for failure
to present argument on it in his brief. As to issue three, we agree with
Appellant’s counsel that ineffective assistance of counsel claims are, subject
to limited exceptions not present here, properly raised in a Post Conviction
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2
Specifically, Appellant seeks to withdraw his first issue, relating to the
sufficiency of the evidence, because it lacks merit. Appellant’s Brief at 13. As
for the third issue, relating to ineffective assistance of Appellant’s trial counsel,
Appellant seeks to withdraw it so he can present it on collateral appeal.
Appellant’s Brief at 25.
3
If counsel were seeking to withdraw as Appellant’s counsel on direct appeal,
he would have to follow the dictates of Anders v. California, 386 U.S. 738(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which
govern withdrawal from representation in a direct appeal.
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Relief Act (“PCRA”) petition. Thus, we grant Appellant’s request to withdraw
issue three without prejudice to raise it in a PCRA petition.
The only remaining issue before this Court is Appellant’s second issue,
in which he argues that the verdict was against the weight of the evidence.
Appellant’s Brief at 14. Before we reach the merits of his appeal, we must
again address the deficiencies in Appellant’s Rule 1925(b) statement. It is
well established in this Commonwealth that “a Concise Statement which is too
vague to allow the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.” Commonwealth v. Reeves, 907
A.2d 1, 2 (Pa. Super. 2006) (quoting Lineberger v. Wyeth, 894 A.2d 141,
148 (Pa. Super. 2006)).
As discussed supra, we found Appellant’s first Pa.R.A.P. 1925(b)
statement so deficient that it constituted ineffectiveness per se, and we
remanded this case for appointment of new counsel and the filing of a new
Rule 1925(b) statement. Commonwealth v. Green, 229 A.3d 327, 2280
EDA 2018 (Pa. Super. filed March 6, 2020, at *1) (non-precedential decision).
The Rule 1925(b) statement filed by Appellant’s new counsel contained the
following question relating to the weight of the evidence, “The verdict that
was rendered against [Appellant] was against the weight of the evidence.”
Statement of Matter to be Complained of on Appeal Pursuant to Rule 1925(b),
10/20/20. Like Appellant’s first Rule 1925(b) statement, this statement is too
vague to permit review. Commonwealth v. Freeman, 128 A.3d 1231,
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1248-1249 (Pa. Super. 2015) (finding waiver where the appellant’s Rule 1925
statement stated “the verdict was against the weight of the evidence.”);
Commonwealth v. Siebert, 799 A.2d 54, 62 (Pa. Super. 2002) (finding
waiver where “Appellant merely stated ‘the verdict was against the weight of
the credible evidence as to all of the charges.’”); Commonwealth v. Lemon,
804 A.2d 34, 36-37 (Pa. Super. 2002) (finding waiver where the appellant’s
Rule 1925 statement stated, “the verdict of the jury was against the evidence”
because the appellant failed to discuss which of his five crimes he was
appealing or the specific reason for the appeal). Thus, we find Appellant has
waived the issue for purposes of this appeal.
Even if we did not find waiver on those grounds, however, Appellant
would be due no relief. “A weight of the evidence claim must be preserved in
a post-sentence motion, by a written motion before sentencing, or orally prior
to sentencing.” Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super.
2013) (citing Pa.R.Crim.P. 607). In the instant case, Appellant fails to provide
citation to the portion of the record where he raised his weight-of-the-
evidence claim before the trial court. A review of the relevant transcripts
makes clear that Appellant did not raise a weight-of-the-evidence issue orally
before sentencing. Further, Appellant did not file written motions before
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sentencing nor did he file post-sentence motions.4 Thus, Appellant failed to
preserve the issue for appeal, and we would find the issue waived even if his
Rule 1925(b) statement was not deficient. See Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009) (finding waiver of weight-of-
evidence claim, where the appellant failed to raise it before the trial court,
because the trial court was unable to exercise its discretion and determine
whether to grant the appellant a new trial).
Finally, we note that even if we were able to reach the merits of
Appellant’s weight-of-the-evidence argument, he would be due no relief.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. [Commonwealth v.
Brown, 648 A.2d 1177, 1189 (Pa. 1994)]. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. Commonwealth v. Farquharson, 467 Pa. 50,
354 A.2d 545 (1976). One of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of
justice. Brown, supra.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). This Court has
summarized the limits of discretion as follows:
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4
Although the docket in this case includes an entry described as a post-
sentence motion filed by Appellant on February 27, 2018, docket entry 124,
Appellant actually filed his notice of appeal at that entry. Appellant did not
file post-sentence motions.
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The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused
when the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Id. (citation omitted).
Our review of Appellant’s weight-of-the-evidence argument makes clear
that Appellant is arguing that A.E.’s testimony was not credible and that the
Commonwealth did not call any witnesses to strengthen or corroborate it.
Appellant’s Brief at 14, 17-18, and 21-22. A challenge to the credibility of a
witness does not provide a basis to grant relief on weight-of-the-evidence
grounds. Widmer, 744 A.2d at 754. In Widmer, the Supreme Court of
Pennsylvania upheld our reversal of a trial court’s grant of a new trial based
upon its finding that the verdict was against the weight of the evidence.
Specifically, the Supreme Court affirmed our reversal because “the trial court’s
proffered reasons to support the grant of a new trial offer nothing more than
its assessment of the credibility of the witnesses and lacks the necessary
foundation for the required concomitant finding of a serious miscarriage of
justice.” Id. Further, we have held that “[r]esolving contradictory testimony
and questions of credibility are matters for the factfinder.” Commonwealth
v. Cramer, 195 A.3d 594, 601 (Pa. Super. 2018) (finding the appellant was
due no relief on his weight of the evidence claim where “[a]ppellant essentially
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asks us to reassess the credibility of the Victim and reweigh the evidence
presented at trial. We cannot do so.”). See also Commonwealth v.
Talbert, 129 A.3d 536, 546 (Pa. Super. 2015) (“Here, [the appellant]
requests that we re-weigh the evidence and assess the credibility of the
witnesses presented at trial, a task that is beyond our scope of review.”).
In the instant case, the jury found A.E.’s testimony to be credible.
Appellant has failed to show that the verdict is so contrary to the evidence so
as to warrant a new trial. Thus, even if we did not find waiver, we would find
that Appellant is due no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/21
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