Com. v. Quinn, R. ( 2017 )

J-A21016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT ROY QUINN,
Appellant No. 2 WDA 2017
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000147-2016
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
JUDGMENT ORDER PER CURIAM : FILED SEPTEMBER 18, 2017
Appellant, Robert Roy Quinn, appeals pro se from the judgment of
sentence entered on August 3, 2016 in the Criminal Division of the Court of
Common Pleas of Cambria County, as made final by the denial of
post-sentence motions on October 4, 2016. We affirm.
At the conclusion of trial on June 10, 2016, a jury found Appellant
guilty of stalking, 18 Pa.C.S.A. § 2709.1(a)(2). Thereafter, the trial court
sentenced Appellant to incarceration in county prison for a period of 12
months less one day to 24 months less one day.
Appellant filed timely pro se post-sentence motions on August 12,
2016, which the trial court denied on October 4, 2016. Because the October
4 order was not forwarded to Appellant, the court, on November 22, 2016,
reinstated Appellant’s direct appeal rights and allowed him to file an appeal
J-A21016-17
within 30 days. Appellant filed a timely notice of appeal on December 20,
2016 together with a concise statement pursuant to Pa.R.A.P. 1925(b).
Appellant’s concise statement raised seven claims, which the trial court
addressed in an opinion issued on March 24, 2017.
We have carefully reviewed the submissions of the parties, the opinion
of the learned trial court, and the certified record prepared in this case. In
its opinion, the trial court determined that Appellant was not entitled to relief
because he failed to preserve his claims for appellate review or,
alternatively, his claims lacked merit. See generally Trial Court Opinion,
3/24/17, at 1-36. We wholly concur in the trial court’s assessments and
conclude that the court thoroughly, adequately, and accurately addressed
each of the issues Appellant raises on appeal.1 Accordingly, we shall affirm
for the reasons expressed by the trial court and adopt its opinion as our
____________________________________________
1
We note that Appellant’s brief does not comply with the Pennsylvania Rules
of Appellate Procedure in many ways which, as the Commonwealth points
out, makes it difficult to identify the various issues and arguments raised on
appeal. These defects alone support dismissal. See Pa.R.A.P. 2101 (appeal
may be dismissed where defects in appellant’s brief are substantial); Kern
v. Kern, 892 A.2d 1, 5-6 (Pa. Super. 2005) (dismissal appropriate where
failure to conform to appellate rules hampers this Court’s ability to discern
contested issues), appeal denied, 903 A.2d 1234 (Pa. 2006). Here,
however, the trial court’s opinion addresses all of the claims raised in
Appellant’s concise statement and, as such, discusses all of the issues
Appellant appears to raise in his brief. For this reason, we have elected to
forgo dismissal and, instead, deny relief on the merits for the sound reasons
set forth by the trial court.
-2-
J-A21016-17
own. The parties are hereby instructed to include a copy of the trial court’s
opinion in all future filings relating to our disposition of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
-3-
Circulated 08/25/2017 11:33 AM
. . . ij . . . .. . .
[N tHE COURT ()F COMMON PLEAS O:F CAMI,lRIA qouNTYt PENNSYLVANIA
CRIJVIINAL DIVISION ;\
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Bernstein •. ~Il Robert Quinn {Quinn): -:appeals from a.:gi:dJty verdict rendered following jll;~'.
trial on Jone &-JO, ,'20i6. Q1,1~nn was found :gujhy of Couni 11 Stalking at 18 P.a.C.S'.A.
.§2709. l(a)(2),
. . and Nm Guilty pf Count 1,.Terro\istkThreats at l 8 Pa.C.S.A. § 2706(a)(J).
'
On January .J., 20 L:$ Quinn ,,·as arrested.and charged. with one count of Stalking and
one- count of' Terroristic. threats. The Affidavit: of Probable Cause, filed by Poi-ice Officer
Charles, Cypher (Cypher), alleged that. Barbara Labarko (Labnrko) told police that she _and
j Quinn had 'formerly ·been engaged and that Quinn had not been raking the break up_ well-.
DOCKET No ... 147<2016, Pouca CRIM.INAL CO~·IPLAINT At-FIDA VIT Of PROBABLE Ciwse
[':A.fFIDA-\1lT'l 'Labarko told 'police .that Quinn had been h arassirrg and threatening her,
... her residence.~ and.' lift more 'than
drivins- .bv . I PO voicernails
. . .. . and text messazes .on Labarko' s
' ' ' ' "'"(·
phone in rwc days. Id. Labarko further-stated that Quirin had been following her around Planet
Page I o.f 36
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•.,,,.
__
jl
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I
·'
Fitness ..and. herplace of.employrnent, Applebees. id. Labarko i}t.tiiJmJely to.id· the police that,
l
as aresult of these actions; she was infear for her life.. id.
As a result, charges were hl~d and Quinn's· pr.e:liminan' hearing was set for January
·26; 2016. There is no i ndication that Quinn was represented ht counsel a, the time of his
· Preliminary Hearing. Quinn executed and 'signed portions of .ihe ''Not'ice of Arraignment,
· Preliminary. Conference, .and. Trial. Form," and no. ·a~romey entered ah appearance on this
Notice. NQTICE bf .A.R:RAidNMENT; PRSL.fr,,1fNARY CONFE;RENCE,. AND TRIAL F.'ILEQ FOR ..RECORD
O~ J.~N.LJAR~· 2-9-, 20.16, Thus, Quinn proceeded pro se at hi? 'Preliminary Hearing. and all
charges were. waived, holding them for court, Quirm also signed Section 5 of the Notice,
·Cf!titl.ed; "Notice of DjstrictAuomey's Preliminary Conference ·and Tn~.1 Dare." id. However,
the spaces where the date for such conference is usually placed. was empty. Id. Nonetheless,
Quinn.still signed the section.that indicated he received notice of his Prel i'fnin~· 'Conference.
The. Record
. also
. contains-
. '
a· form
. ,, ' Pre I I rninarv.. C-o nference
en ti ti. ed... "Di stric .t A nornev's
' Form." DISTR,{(;T Af:l:ORi\'E)'·'s P~EllM.!~A'RY CON.FERENCE .FOR;,,i. FILED FOR' RECORD ON M·~,Y
I
1 1:9, 40)6 ["Confore·nce Form"]. This Conference Fann was signed by- Assisram District
Anorney Wayne Langerholc (Langerholcj .and dared May 17~. 2017. The Conference Form
indicates 'that the case was set for a jury trial and Ju1;• selection was to be held on June 2,
.2016. Id: However, neither Qui'n~ nor an attorney acting on hi_:; behalfsigned the. Conference
'Form. Id..
Jury selection was. held on June 2; 20l6 ..at Which time Quinn continued 10 proceed pro
'se. N:t..JURY SELECT10~16/2/.2016, pgs .. 4-6: At theoutset, and without .thejury poet present,
the trial court indicated to Quinn that this jurist, in: her previous capacity as. an Assistant
I' .. ,,
.Districi Attorney, had been involvedwith an indirect criminal contempt regarding . a Protection .
.. , ,.,.. , ,..,.. . , _.,,~ _ ., ,,,, ,,,,,, ·-.' '"''••-··---·-·- _.,. .. , ,,., _ _ ,,,.,.,.,
............ .,, _ ,,,- _ ~,--·--
From Abuse [f'PF N:] order against
.
Quinn. The Court dctcm1inel:iI that thisjurist should not.be
I
disqualified from rhis matter and did not .recuse.The trial court.stated,
I want to begin, Mr: Quinn.I didn't remember tbe case, but it "Vas broughtro
my attention apparently in 10 l3 or 2014 when I was an ussistant.districr attorney there
V,'!iS a. Pf A indirect criminal contempt, and l was the. assistant DA on that. case. I
believe thatthe case was dismissed.
I don't have any independent recollection of me. ...ase and, because (his is a jury
trial, and in reviewing the rules, I hace no opinion. I have no recollection of it and I
determined, since this is a Jury trial: the fact finders arc the jurors and not the court,
ru1d that i do not believe there is any conflict. I did want to disclose that to you,
however.just for complete transparency.
kl. at 3.
Next, the trial court questioned Quinn as to whether he· wanted counsel .appointed or
I wished to continue pro se. Id. at 4. Quinn indicated that he would proceed pro se and. so the
I trial court had Quinn execute a WAIVE~ .OF CO\JNSEL,.DATED JiiNJ;:. 2,.1016, and conducted an
\ oral colloquy of Quinn rega~ding his decision to waive his right. to counsel. NT. JURY
' .
SELECTION, 6/2/2016, pgs. 5..,8. After conducting the colloquy and finding that Quinn
knowingly and. voluntarily waived his right to counsel, the trial court appointed standby
. .. Anornev. .• John Lovette.. UL kl at 9-10 ..
counsel.
.
When .the jury pool was. brought into the courtroom, the trial courr proceeded to
instruct the pool on what, would happen during the jury selection process. The victim, Barbara ·
Labarko (Labarko), was also present in the courtroom and sat behind ADA Langerholc.
During the trial court's instructions; the Court asked Langerholc to, "give .a very brief .
summary of the alleged facts .or the. case," and further reiterated that, "again, these are just
allegations." Id.. at 46. Langerholc then gave the jury pool the summary of' the alleged facts as
requested by .thc trial court:
The defendant and victim wereinvolved in a. relationship. She ended the relationship ..
And on or aboutDecembcr-Zu l S 're January 1-t 2016,·the-de~ndant stalked the victim,
sent thousands. of text messages when the victirndid norwant themand sent over 200
voicemails threatening:.,,.demea:ning, placing her in. fear, then fellowed her 10 Planet.
'Fhuess; approached her, kissed her on \he cheek, \Vc!S taken into custody .shortlv
thereafter, Charges were filed as a.result. ·
Jury .selecrion continued and the Court asked the jury panel, "Have you: an).' member
of yo.urlamily· or any close friends been a victim of a crime: or have you been present when
any crime was. cornmiued?" id: at. "4:7. In response to the Court' s question, Panelist # 19
approached at sidebar:
The Court: Okav. l am . sorrvto hearthat. Where. waa tmu.wha; countv?
. . • !' ~ • • •.
Panelist #19: Cambria.
The Court: And what. year?
I
•l
If i>\indi's·r #l9-; Honestly, 1-·-.
I
. C· Col
Th .. O.~rt:. I S h?
· ..
Panelist #19: Lare '90s;:.early 2000s. r don't rernember,
The Court: That helps ... Now, obviouslv that's a. very differeru thing .from what we are
dealing ·\\'i.th today. · ls there an ~'think abou; (hat ex perience which \\'OU Id. not ·all ow you
lO sir:and be fair and impartjal.In this case?
P~nel~$t·i:09:_ The fear in that girl's eyes over there.
The Court: Pardon me?
Panelist #19: J. seen the. "tear inthat little gitFs· eyes sirring over there.
The Court: A.Rd what are you telling me then? Do you think you cari befair and·
impartial. in this case?
Panelist #19:.· I don't know honestly.
Page 4 ofJ6
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..... _...,.._,,.. - -..-.. ,- _.._.,.. __ -.-- -.- --· ·-··-- ------· - ----·-·-- ---· --· - . ---· - ·-·-·· -·-
,·
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tf
_i:
The Court: I'm aoinu.to. go a . lirtle funher. whicb. i·s·oka!}. J asked several others the
same question. \\.'ha/i-·~ asking youis - - tvlr.. Quinn. is tfi.~:o~e:faci11g charges. They
are allegations a\ this point .. So l'm.·asting, would you beable to sit, listen to the ·
\\'i mess. oh the. stand and gain the fa~ts .frorn the witnesses, and then f will giveyou rhe
law that Y.Dl! are to apply, and you and your fellow jurors \VQ1,1ld .go back lo .. deliberate.
Are you able io.do that lairly impanially? and
., Panelist #19; Yes.
I. The Court: Okay. Any followup-questionsbased upon that?
l
The Defendant: \\'h~t,;num.berwas that?
Attorney Langerholc: Nineteen.
[d. at 5°7 -59. At the' dose of the tdai: court's questions for jurors, Quinn and Langerholc were
· gi vcn the chance to move to strike any panelist for cause. Quinnmoved. to strike Panelist #19.,
· "who ind:k.Mc.d rha: he- .saw 'fear in: the girl's -eyes." Jd, at ·8JJ, Langerhole argued tha: he
! believed Panelist #J 9 ~lrimaie.Jy stated tha't. he could be: fair and impartial. The trial c.ourt
ruled,
.1 am going to deny it based upon the. factthat the court's notes also indicate
that, .although he.made that statement early, as the court questioned him about the facts·
.of the case, the· fact that you were !ii separate -issue than his daughter who was
molested, that was the original discussion, he indicated after the discussion about. his
role as. a.juror that he believed he can be fair· and impartial.
So 'your strike for cause is denied .. And just - - Mr. Quinn, obviously you .will
h ave fi ve .:cihaJ lerrges, $0 you' 11 ha ve that, ·
.Id.'
.As the. selection process ccntinued, .. and· while. Quinn arrd Langerholc exercised, their
.chalfonges by ·. passing-. a binder back-and-forrh, Panelist #39 got up from
.. . . his. seat-and. walked.
?age 5 ·of-3.6 .
.1
.... ····-··· ··-- ,_,_, -·· ·-··· ·-··-· .. ····-····· - _ ,- ,. -.,, ,-. -_ . .., ,,.,,...,,, ,,_,,, ,,_, ···········- "·-·· ··········- ~- .
The .Court: l'rn sorry .. Excuse .me. Jurors; jurors, .srop. Excuse me, sir. Noone. can
leave their seat area please so·- - . · · · ·'.
Attorney Langerholc: That Juror came up - -.
I The Court: l understand. That's okav, sir. Evervbcdv ·hf1s rostav in their aeneral .seai
l
Ii
area. AJl rigln. Y.~u can go ahead. \v;ire good. ,A·nm,:;ey Langerhclc and ,vt~. Quinn, ff
you could' come forward, please. .Everyone's okay .. We're good. .lf you have any other·
l questions for the court, -raise your hand and I can have one of my staff members bring
you downro me.
SJDE BAR DISCUSSION:
r;\Ttorrtey· Langerholc: Just for the- record, that juror \Y~-, askihg [Labarko] .a question
which she didn't respond to. ·
th·c Court; \Vho?
AttQrney Lan gerhnlc: My victim.
The Cou rt: What number is he?
I Attorney Langerholc: He's irr the back; 29 I think e- 39. .
. 1 The Court: Thank you.
I
Attorney Langerhorc; l don't know what :ne said.
Th~ Court: Mr. Quinn, .I 'mgoing to strike that individua] for ta use.
The Defendant: I Was going.to strike him, yeah.
The Court: He. keeps· moving and nobody responds; i want to clari-..fy, juror number
39., \Vhi}e l gave the- oppornmity for the· jurors to. stretch, came :do:-.,'T'I on his own
accord and started trying to speak to the victim, The cci.u_;t asked him to step away, He
. . .. ~ not . has he -since that. . umc
had. ·.not ·inforacted wi.ih· anvbodv. - the court . will
. . . .... .and . strike
. ..
that.individual for cause.
Attorney Lovette (Lovette) was appointed by the .Court -as standby- counsel prior to
jury selection and continued. to.. act as. such through trial. Quinn proceededjs-s- se throughout
the trial w\t_h Levene seated behind him. Lovette. did nm participate in the trial _and it is
Page 6 o[J6
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....- ...... ------------· - --------·-------·- --- ------ ... -·-·-·-· ·-. ·-- .... -·· ... -·-·-·--·- ......
.:,
unclear from the record whether Quinn
.
consulted Lovette outsid.e
1
the. trial. However: after the
I
!
jury rendered its verdict of nor guilty .as to Terroristic Threci'cs and guilty as to Stalking,
Lovette began to act as Quinn's counsel by speaking to the Court, on Quinn's behalf. N.T.
JURY TRI,\ L, 6/l 0/2016, pg. 8 7.
lmmediarely following the verdict, this Court consider ed the arguments of counsel
regarding bond pending sentencing. 'me trial court held that Quinn could be released if he was
placed on a home. monitor in his apartment at 803 Edwards Hills,. Id. at 97-98. Quinn indicated
that he would be able to s1a~' at this apartment and the trial court allowed such release as,
among other facts, the apartment was not located rrear the residence of the victim.
However, at a laterhearing, probation officer Richard Rok [R0k] testified that Rok had
contacted Quinn: s landlord who indicated that Quinn had not paid rent on the apanmem for
over .a year and owed $4;092 in back-rent N;T. BOND REVOCATION J-ltARfN.G, 6/16/2016, pg.
4. R6.k stared that the landlord had not yet evicted Quinn because; the landlord had never been
able to serve Quinn. .ld. Rok further stated that he had looked into setting up an in-home
monitor ~t Qui.nn's mother home, but she did not have; a landline, thus making it impossible to
\ ser up monitoring atthat residence.
The trial court reviewed the statutory factors required when considering bail andfound
that Quinn had been decepti ve and attempted to mis!ead (he Court by stating that he was .able
to reside at the 803 Edwards Hill apartment when he had not paid rent in over a year and
would have. been evicted if the. landlord had
. . been
. able
. to
. locate Quinn
. to serve him, with
notice of eviction. Id. at 24-25. As such, the Court revoked Qui1/s hail and remanded him to
the Cain bria .Counry Prison pending his sentencing.
·1
I.'j
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At sentencing, held on August 3, 2016, Quinn cominucd to be represented by Attorney
.
John Lovette. Attorney Lovette correctly stated that Ouinn 's standard guidelines for
sentencing were three to fourteen months. N.T. SE~TEN<:ll\'GHtARrN.G, 2/28/2017, pg. 6. The
trial court then considered testimony presented and evidence of record and sentenced Quinn to
undergo imprisonment for not less than "one year less a day, 'nor more than two years less a
·• day" in the Cambria Countv Prison .. SENTENCING. ORDER·DATE!> Auousr 3, 2016. Quinn was
further sentenced to urider'$o a. period of probation for three years under the supervision of (he
Cambria CountyProbation Bureau, consecutive to.the term ofin,carceratiori.Jd. The trial court
further ordered that, asconditions of Quinn's sentence, he undergo a psychological evaluation
\I with Dr.
. . Scotilla
.' .. follow anv. recommended
- treatment. .- and
. have no'. contact
. . with
. the. victim.
. •
Labarko, for the period of his .sentcnce. Id.
On August 16, 2016 Quinn filed Post-seruence Motions. POST-SENTENCE MOTIONS
FILED FOR RECORD ON AUGUST i 6, 2016 ["POST~SENTENC:E MOT!ONS'l A hearing was held on
the Post-irial Motions. cm September 27, 2016 where Quinn again. elected to proceed prose.
N.T. posT,SENTENCE MOTIONS HEARING: 9/27/2016, pg. 11. At the outset of the hearing;
· Attorney Lovette gave a brief summary of tile everns that had. taken place between the
sentencing hearing on August ~, ~Oi6 and the Post-sentence i\fotions hearing on September
27, 2019:
Attorney Lovette: Your Honor, before we proceed, I \V,,ITTted to put a couple things. on
the record. As the Court is aware, Mr. Quinn decided t(1 represent himself'all .the way
through trial until the verdict was tendered •. At that. time he asked the Court to provide
standby counsel for him, which I - - well, I was appointed standby counsel and i did sit
through the trial, but at the time that the jury verdict came in he asked .that.l step in.and
go ahead and represent him. · ·
I did represent him during a motion for bond pending sentencing: I did represent him
for a motion to revoke. .hrs bond. that
. . . was
. filed bv., the Commonwealth.
. , . and
. .. .. : l did
Page 8 of36
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represent him at his sentencing. Thereafter he was sentenced to a term of incarceration.
He told me. in court. that day via letter that ne wished tc{file an appeal; so on August
I ih I did visit him .ar the prison to meet with him about the appeal that I was going to
be filing for him, specifically post-sentence motions. ·
At that. time Mr. Quinn .adviscd me and did show 'me a ropy of post-sentence motions
that he wished to file on his own. We. had a lengthy conversation, and ar.thar time he.
stated chat he again wanted to represent. himself and he felt that his post-sentence
motions were the ones that were appropriate and that he wanted to file. At that time I
tooka copy ofhis post-sentence .motion 10 the Clerk of Courts to file those for him in a
timely manner to preserve his appeal rights. As the Court is aware; there is a law and a
rule in place that you are not entitled to dual representation. You can't represent
yourself and have an attorney represent you at the same ti me.
So in order tu file his motion that he wanted filed at the Clerk of Courts, the Clerk of
Couns informed me that l. would have to withdraw as. counsel, which I did do on that
day, August 12'h. And then l filed his post-sentence rnotitin that.he instructed metodo.
And we are here today for the hearing where Mr. Quinn is again, at least at this time,
representing himself. And that's all> I wanted to do, Your Honor, isjust build the
record andlet the Court know whattranspired after his sentencing. ·
id. at 2.:J .. After Attorney Lovenes summary, Quinn indicated to the trial court that he wished
to proceed pro se and the trial court subsequently conducted a colloquy of Quinn to be sure
that Quinn understood his. right ro representation before. he proceeded. id. at s-n. Aft~r
completing such, the trial court heard argument from Quinn and ihe Commonwealth regarding
Quinn's Post-sentence motions.
I Quinn raised five substantive issues in his Post-trial motions. First: Quinn argued that
I
J he should have been placed in the diversionary program of Mentitl Health Court since he has. a
I
history of mental illness. Id. Second, Quinn asserted that this jurist should have recuscd
herself based on her involvement with a Protection From Abuse indirect criminal contempt
filed against Quinn in rnisjurisr' s. past capacity as an Assistant District Attorney. Thi rd, Quinn
requested a new trial as the jury panel was poisoned by Langerholc' s summary ofthe alleged
Page 9 of.36
crimes committed. Id: Founh, Quinn requested a modification ,, ipf sentence so that.he could
serve his sentence on house arrest or by reporting to CambriaCounty's Day Reporting Center.
I, Fifth ... Quinn .
asserted .
that the costs and fines. assessed . him
to . af a result of. his trial were too
high as he had been found indigent by Judge Linda Rovder Flemming in March 2015 in
connection with child custody proceedings. kl.
This Court denied Quinn's Post-trial Motions in an Order dated October 3i 2016'.
ORD.ER DENYl?-!G DErENDA,'ff'S POST-TRI.AL MOTIONS FIL.ED f;'.)ft B,ECORO ON QCTOBER 4,
!
I 201.6. Iu ihis Order, the trial court advised Quinn that .he had 30 days to file an appeal with the
Superior Court of Pennsylvania. However, due to an oversight on the part of the Clerk of
l Courts., a, .copy of such order was never sent .to Quinn. Instead, the order was .seru 10 Lovette.
who ha·d withdrawn on-record as Quinn's Counsel. As. such, Quinn was unaware that the.
Court had denied .his Post-trial Motions and did .not file hj's. appeal to the Superior Coon
within 30 days. On November 22, 2016, upon learning of this error,' this Coun directed the
Clerk of Courts to send Quinn a copy M the Order denying his Post-trial Motions and
reinstated his appeal rights for an additional 30 days.
Quirin then filed,a timely Notice of Appeal and .Concise Statement of Matters
· Complained of on Appeal (Concise Statement) pursuant to Pennsylvania Rule of Appellate
Procedure S l 925(b). Quinn's concise. Statement raises seven allegations of error, m<>SL of
which contain sub-issues;
i} Did the Court err by denying Defendant his. Due Process Rights?
2) Was there sufficient evidence presented at trial to sustain the jury's verdict?
3) Whether the trial court erred by revoking.Defendant' s bail pending
sentencing? .
Page 10 of)~
·1
I 4) ··whether Defendant was prejudiced by the a¢tii:)"ns of Assistant District
Attorney Langerholc whc>.~a.llegedly held a \'Cri\len;;i. agains; Defendant?
I -5.) Did (ht; Coon err bv failing to recuse itself'?
I 6) Was srandbv•. counsel ineffective?
' ,,,
I. 7)
For in~ reasons discussed herein there is no merit jo any allegation of error and the appeal
should bedeniedandthe Coun\order affirmed,
DISCUSSlON
l. rn-d the Court err by denying Defendant hi1., due process rights?
raised before the trial court. ln thi:s Opinion, where an: issue was raised on appeal but was not
raised or .preserved at trial, the trial, court will .only set .out the facts surrounding the 'issue and. ·
note that the: issue was neitherraised nor preserved.
In. order for qp appellate court to undertake art analysis and review of the. merits, an
appellant must have properly preserved the issue for appeal. Pa.R.A,P. 302(a); ··rhoma.f.
Jefferson Univ. v.. Wcipner./2006 P.A. Super 15.6, 903 A.2d . .56.;5 CP:it Super. ¢t. '.20.06) .. An issue
ts ,Pro.perly. preserved c,mly if rh.e :appellant saised the objection before the· trial court and the
objection was timely and specific. Com. v. rrehiOn, 324 Pa.Super .. 39"5,. 47.-l A.2d ..8-9:7.(.1984),
Dennis v, Se. Pennsylvania Transp. .Autli -, , 813. A.2.d 348 (Pa.Crnwlth. 2003). Finally, ruiy
issue nm properly .raised 'before the trial courr is deemed wai ved: .and C8!1li0.l be raised for· the
first time en· appeal. Pa·.R.A.P. 3;02(a).
Page ll' of 36
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i
.~
!
Quinn cites numerous instances in which his due proceslr,f rights
.
were violated:
i~
L \Vhe.ther due process r1Rhts \~·ere vieiated .\\~hen the nolit~'!criminalcomplaint
I. contained n,;o .diff erem charnes. "communication. suil kin1z:, at §2709 .l (A)(2) and
''venue stalkin!!~' at S?709.HB)(2)? CONCISE-Sn:r£i\'IEN1::.Ifil:-1
I. Specifically, Quinn asserts in Section L,\. ofhis Concise Statement.that, "The Police
Criminal Complaint provided to the Defendant lists two 4istini.:tive1y different lead charges,
namely 2709.l(a)(2) and 2709.l(h)(2)/: Quinn further states that, as a result of this alleged
discrepancy, his ability to. mount a.defense. was Clearly prejudiced. CONCISE STATEMENT, pg.
2.
Although this issue was never raised at trial the trial court will surnrnarilv address the
I issue
• -· • • • • • • .~ • • • • • • • l, •• • • ••
here as Quinn's. argument manifests a dear misreading of 18 Pa.C.S.A. § 2709,.1 -
Stalking: First, the Police Criminal Complaint arid the: Criminal Infcrmation, Amended
6/2/2016, dearly list Count 1 as Stalking at 18 Pa.CS.A. § 2'709.l(a)(2). However, Quinn
. mav
... : .be.
. .makinu
..... ref ere
. .nee
.. . to. the section
. entitled.
. . . "Acrs
. . of
.
:· the accused associated
. ... · with this
offense," inthe Police Criminal Complaint. There, 18 Pa.C.S.A. !? 2709. l(b)(2) is mentioned.
Quinn's assertion that he was prejudiced by a mention of sections Ja)(2),and (b )(2) has
no merit as section (b)(2) does. 11ot list a separate charge or offense, bur merely clarifies the
offense listed in subsection (a). Subsection (a) is titled "Offense Defined" and states that: a
I person can " " " ~f Stal``1g by con~mitting the "' listed .i.n eith~r " or
(a)(2): Subsection (b) rs titled "Venue, .. and (b)(2J merely clarifies that; "Acts indicating a
course bJ conduct which occur in one jurisdiction may he. used by any otherjurisdiction in
which an act occurred as evidence ofa continuing pattern of conducr or a course of conduct,"
18 Pa.C.S'.f\.. § 2709.l (b)(2) .. Clearly, (b)(2) is .not a separate offense or even an alternative
classification of actions constitution the crime of Stalking. This subsection provides,
Page 12 of 36
"
'·
generallv, that ·acts occurring in different jurisdictions. can. still~
,,,
be considered
.
evidence of
"course ofconduct" i·n. the other-jurisdiction. thus, although Q?1inn failed raisethis issue at
trial :an~i, asdiscussed supra; waived ii forappeal, his argument lacks merit as .it is. based on a
misreading of the starute.
2.. Whether due process rielits were violated when Defendan~ was ·.not-noti'fied .of.n
Prcliminarv Conference: and did ·h0t ha:ve·the chanc·e to an end a Preiim1narv
Conference with the Di·strict Attomev's O.ffice?.CONC!SE}TATEM'ENT. 02.s. 2-3.
Quinn nexi asserts that he was never notified of a: Prelirninary Conference and did nor
have the chance toartend the same. Asstared supra, an 'issue not raised before the trial court is
deemed waived and cannot be considered for the firs; time.on appeal. Pa.R.A.P. 302(a).
Here; Quinn failed to raise the issue oflack of notice. of a-Preliminary Conference or
his absence at such Preliminary' Conference before the' trial .coun. A review of the record;
including
.. . transcripts · of the Jury trial .and ali hearings, .as we II.
', '
-as Quinn'. s Post-sentence
.
motions, .shows that Quinn failed to raise this 'issue prior to· or during trial, Thus, the issue of
whether Quinn was .notified .of or afforded ~· Preliminary Conference should be deemed
waived and canner be ..raised on. appeal.
.3. \\ihether.due process ri2.hts wetc··violat'ed when Dcfcndani;:\vas:neve;:-.-gi,;en an.
opporiunirv ro· read the orif!inal rexrmessages .or hear the ~iaice:mails? CONCISE
.STATEMENT. pu. 3:. ·
-Quinn next asserts that, "The . Commonwealth never provided. 'the Defendant an
opportunity \~ read the original text- messages or 'hear the original voicernails despite' the·
Defendant's . request to do so, which violated 'Best Evidence' rule s of procedure." A review of
therecord by tue trial 'eourt indicates Quinn was provided.said messages. FurthermoreQuinn
never- cxplicirly objected to these recordings, but rather he stated that he· was concerned that
they would not be played in their entirety; Pennsylvania Rule of Evidence 1002 -
Page .13. of 36
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,,.- _..,...,,.,,. __ __.__ ,,.,..,.,. _
_. _,_,.,.__.... __ --
,.., _., ,•.. _,,. ,,_, ..
, __ __
,, . , ,,.,,_ ...
I
j Requirement of the Original, provides that, "An original wri,tin:~' recording, or photograph is
;
required in 'order to prove its content unless these rules, other rules prescribed by the Supreme
Court, or a statute provides otherwise:" the voicernails and testimony at trial. satisfy the
requirements of Pa.R.E .. 1002 .
Prior to bringing the jury into the courtroom on the. first d~y of trial, the trial court
spoke to Quinn and theCommonwealth to address.anypre-trial 1:ao\fons orquestions:
The Court: Are there any other questions procedurally about what is going to take
place?
Attorney Lerrgerholc: Just we had provided. a. copy +)!' voicernails sent from this.
Defendant to the victim. We intend to play' those for the jury, and. l have Detective
Hinterliter here to testifv as to chain of custodv. I-le tock those voice mails from the
phone to the CD; \\•hid.; has been provided. to the Defendant, Just procedurally that's
tlk . . .
The Court:
. . Are vou
. .
able ro authenticate
. the voice mails through the witnesses?
Attorney Langcrholc: Yes.
The Court: Assuming there is authentication and rhe chain of custody is established,
then that would be admis.sible,
The Defendant, Robert Quirin: The only issue that I have, I hadn't had an
,ap,!s,J had it on my laptop, and
opportunity yet to review those. I tried to listen to the
for some reason the DVD wouldn't load inromy laptop. I am not sure whether they are
timestamped an~t dated,
I personally don't actually recall making those specific voicemails io
question, but 1.
know that over the course. of,· as J saidr. six months of arguments and back and fonh
messages between us( I am not sure that those messages were made on that date, andI
would just like, at this point, to establish that I intend to .object of they are n.01
timestamped or otherwise.
Attorney Langerholc: They are' timestamped.
The Court: Again; whomever is introducinz evidence. thcv have a burden of makinu
s
sure that it's r;lev~i and authenticated, arid assuming that- that' s done, i( admitted,
hut \\~e Will rule on thatas it comes in.
-
Page 14 of 36 .
.
l
The Defendant, Robert Quinn: Also, Your Honor.r I would ask that the Best
Evidence Rule applies.also wirh regard to: those voice rri;:;i.is-. ! am not certain, J believe
they are 'edited and they could, .J believe they may be edited in a way to paint a picture
· that doesn't establish thecomplete picture. ·
! f there. is a three-minute
voice mail .and theycut 20 seconds out, J would ask the entire
voiccrnail be played. Irhlnk it goes to: a major part of my argument in this case, \\ h1c.h 1
is intent. · · ·
The DA needs· to prove intent, what was my .intent? If .I did, in fact, send these
messages, was it. to harass Miss Labarko? Was it to cause her emotional distress or
was ·it to ascertain.facts?
The Court: Your objection then ·; s best evidence, you l;iefieve it has been edited, what
rs your response· to· that, Attorney Langerhelc?
Atto rney Langcrholc: They have not been edited, Detective Hinterliter can testify to
that., If' he warns her {Q pJay them directly off her- telephune, 'we are fine .doing that as.
well.
The Cou rt; In terms-of what is being played from, if there Is.testimony that· the CD i.s·
.the same information.as the phone, the ·cpµrt will 'permit »itherto be .played,
With. regard to .the Best.Evidence Rule, if.you ate playin g-thern. in 'rheir entirety, then
that isthe best-evidence, ·
Attorney Langerholc: The voice mails .rhat were downloaded or recorded to this
.audio, have not 'been e~fi.ted ·and a-re the- voice mails in their entirety, -haven't been
touched or doctored or.cut off or anything with re$ard to that.
The -Cou rt: Y ourwitness.carr test] fyto that, at this· point, 'if that" s established· it will ;be
admitted •. If that's. not established, you can make . an objection and come tosidebar to
argue chat.
N.T. JURY TRIAL, ·6./8/201(), pgs. l.3::-L5.. Quinn later objected to the admission of one
voicemail.
. . .-· that
. sratinc . "it'sobviouslv
. .. been edited.". Id. :a( 20.1.
.
l It was later established that the voicemails sounded as if tll~'v had been cm off because·
I
.!
there wasa rime limit on thelength of voicemails accepted by La.~arko's iphone. N.T. JURY
I TRIA.L, . .~/.8/201:6, .Pg: ~3. Therefore, if Quinn continued to talk after -the time expired, the· •
recording would have been cut off .at ·-rhe. expiration of time. Quinn again objected to the'
Page rs of 36
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~
i
playing of the voicemails that sounded like they had beeucut offfd, at 201 ~01. The trial court
overruled his objection, stating that testimony from Labarko and Hi nterliter showed that the
voicernails had 1101 been edited.
Qufon1s assertions are meritless for two reasons. First, although Quinn states in his
Concise Statement that he was never provided with the messages, the record clearly shows the.
contrary. Quinn clear! y stated. that the Commonweal th turned over the. CD containing the
messages, bui Quinn was unable lo get .his computer to play the rnessages. No further
objections were raised by .Quinn as. to failure by the . Commonwealth to disclose messages.
Next,. Quinn asserts error based the "Best Evidence Rule" - Pa. Rule of Evidence
I 002. However, the record shows (hat. while Quinn objected ro the admission of the.
voiccmails as they sounded edited; these messages were not edited by Labarko or Hinterliter.
Rather, Quinn's messages exceeded the length allowed by Labarkos phone. His message
stopped recording when the time .limir was reached. Detective Hinterliter established that
these voiccrnail recordings had been taken from Labarko's phone, were sent from Quinn's
phone number, and contained the entire voicemail recorded. Based on the testimony' of
Labarko and Hinterliter, the trial court overruled Quinn's objection, stating thci.i. evidence
showed no editing had occurred. Id. at 202 . .Therefore, the voicernailsplayed satisfied. Pa.R.E:.
1002 since the recording contained the entirety of the. voicemail messages on Labarkos
. phone. Thus, there is no merit to this. allegation of error and the trial court 's-ruling should be
affirmed ..
Page l.6of 36
r
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4. Whether due process riuhts. \~ere. violated wheri Defendatitwas not provided \i,•ith a
.copv of the elements of the crim~ umil the second dav OD.trial?
Next, Quinn states that he was not provided a copy ofthe elements of the crime until
I
I the secondday
I .
oftria] and, "Even then, that document was substantially edited the following.
I - . .
day.just moments before· the Defense had ro make closing argumerua+Corccrse STATEMENT,
pg. 3. To be clear, it is believed that Quinn is referring to. a written copy of the elements of
the offenses provided by the trial court to jury. The trial court and parties had discussed and
agreed that the trial. court would send a copy of the written elements with thejury to. aid · iri
their deliberation. On the morning of June IO, 2016, ihe trial court provided copies of the
I written elernerus 10 both Quirin and the Commonwealth for review so that either party could.
obj ect to the format or contents of the elements, A review of the record shows rhat a copy of
the. wrirterr clements was never entered as evidence. However, the trial court obtained such
elements from
. . . ...
the Pennsvlvania . Standard
. .. . Criminal Jurv
..... .Instructions
. . - Third. Edition. .
Specifically, the trial . court included Instruction # .I 5.2709.1 -~ Stalking and Instruction #
l5:2706Terroristic Threats. Neither party took. issue with or objected to the contents or form
of such w1:itten elements, In giving its charge to the jury., the trial coun read. from these written
demerits. verbatim:
Coum l, Stalking. The defendant has been charged with stalking. to find the
de fend ant i.'mih,· of this offense. vou must find that each , ,t the followina elements has
been proven beyond a reasortabl; doubt; . "'
First; thatthe def eridanr engaged in a course of conduct! that is, commirted ..more
than one act over a. period of time, however short, that conveyed to Barbara
Labarko chat such conduct would continue; or repeatedly committed, ans; or
repeatedlycommunicated to Barbara Labarko. By communicate, I mean that the
defendant conveyed a message without intent of legitimate communication or
addressed by oral; nonverbal, .wrirten, or electronic means, including telephone,
rext message, email, internet, or similar transmission; and
Pag~ 17 of36
i
Second.
. . .. that 'the. defendant
. . . .. . so under
did . tircurmftances
., that demonstrated he
intended to put Barbara Labarko in reasonable fear 6ir bodily injury, or intended to
cause her substantial emotional distress. Emotional distress means a temporary or
permanent· state of mental anguish. Bodily injur~, means any impairment of
physical condition or substantial pain.
lf you are satisfied that the. two elements of stalking have been proven beyond a
reasonable doubt, you should find the.defendant guilty. Otherwise, you mus: find
the defendant not~uilty. · · ·
Count 2: Terroristic Threats. The defendant has been charged with the offense of
terroristic threats. To find the defendant suihv of this offense.
\'OU must find insuhe
following elements hav~ bene pro ven bey~ml; reasonabl e doubt:
First; that the defendant communicated, either directly or indirectly, a threat. The
term communicate means CQ[]Vey in person, Of by written Or electronic means;
including telephone, rexr message, email, internet, or similar. transmission.
Second, the defendant communicated the threat to commit any crime of violence
with intent to terrorize . another. If you are satisfied that the two elements of
terroristic threats have been . proven beyond a reasonable doubt, you should find
the defendant guilty. Otherwise, you must find the defendantnot guilty.
· N .T; JURY TRIAL, 6/10/2016, pgs.. 73-75.
As. the .record reflects, Quinn failed· to object to the form. or contents of the wriuen
elements and the oral recitation ofsuch b'y the trial court. Furthermore, the trial court could
find nostanne or case !h;;.v requiring the trial court to provide a delendam with the clements of
the crimes charged where the def endant had already been pro vi dcd the criminal information
and Complaint. Even so, and as stated in Section.l, supra: Quinr, has waived any objection in
this matter and cannot raise this issue for the first time on appeal.
5. Whether due process riuhts were violated when the prose,~ution was afforded what
.amounted to an openina: statement prior tOjurv selection ,yheti asked bv the Courno
uive. a summarv of the alleged facts? CONCISE STATEMENr p!!: 4 e .
Quinn further alleges error and prejudice arising.Jrom Assistant District Attorney
Langerhol c 's summary of the case given to the jury pool .. During the voir dire process, the.
Page 1$. of 36
i.
lrial court
.
asked
. .
Lanzeraholc.
·- . ._. ·"
"to aive
-·
a verv• briefsummarv·187 F.Supp.2d 260, 307 (W.b,
Pa. 2002). The Pennsylvania Supreme Court has held that, "it ~·muld be-unrealistic to expect
jurors to be free from all prejudices, a failing common to all human beings." Com. v, Johnson,
452 Pa, 130, ~05 .A.2d. 5, S ( 1973). Instead, jurors are required to "to put aside those
prejudices in the performance of the it duty, the determination c .r guil; or i nnoccnce. '' Id As
the Pennsylvania Supreme Court has consistently reiterated, ;'We therefore do. not expect a
tabula. rasa bur merely a mind sufficiently conscious of its sworn responsibility and willing to
i
l
attempt to reach a decision solely on the facts presented, assiduou;sly avoiding the influence of
irrelevant facrors," Id
Therefore, even if Quinn had preserved this issue for appeal, his contention that error
exists based on the failure to strike jurors for cause who Qnly, "initially claimed bjas" would
i
\I be in clear contention With the raws of Pennsylvania. However: because Quinn neither
objected to the trial court's decisions regarding strikingjurors for cause nor raised said issue
in .his Post-sentence motions, this. issue has been waived and cannot be raised for the first time
on appeal:
8. Whether due ot:ocess rinhts were .violated when the trial c,,mrt allo:1.ved the admission
of the follcm•in!t statements:
a. Statement ht Labarko that Quinn did not have custody of his. children
when they met butrather supervised-visits .
. First, Quinn challenges the admission of Labarkos statement that Quinn was only
allowed supervised visitation with his children when he and Labarko first met .. CONCISI::
STATEMENT; pg. 5'.; N.1", JVRY TRIAL, 6/8/2016, pg, 59. Quinn first objected that this
statement. was hearsay. H.earsay is defined as a "statement that the. declararn does not make.
while testifying at the currenttrial or heating; and~ party offers in .evidence to prove the truth
of the. matter asserted in the statement:" Pa.R:E. 801. Hearsay is not admissible except as
provided by certain delineated exceptions set out. by the Pennsylvania Rules of Evidence,
P,i.R.E .. 802.
Herc; Langerholc responded 10 Quinn's hearsay objection hy stating that Labarko's
statement was not hearsay as she was testifying that she personally observed that Quinn only
.. had supervised visitation with his kids. the trial court overruled Quinn's hearsay objection as
Page 22 of 36
'!
'
.. 1 .
Labarko
. . was . - as
not. testifvina to an out of . court -srarenient, . butrather
... , ........ she observed
something
.
·i
~i
first hand.N:T._.JlJRYTR:IAL, 61.8/20!'6; .pg. 5·9'·o0.
Quinn then objected to the same statement based on lack of foundation. The 'trial court
considered .Quinn''s second objection and .:allowed Langerholc to explore whether Labarko had
direct knowledge 'or had .. observed -thar :Quinn only had .supervised visitation with his kid's.
I
II
Langerholc questioned Labarko and Labarko answered, ;;I personally
.
watched [Quin»] in the
·,
.ACRJl downtown Johnstown. He had one hour. He took a.bac o:f rovs
.. and aarnes
. and
.. told me - ,, - ,,
that he l1ad supervised visitation." Id. at 6 I, Thus, because the ..•:rial :~ourt ·prop.edr overruled
Quinn' s hearsay objection and allowed the .statemenr after Langcrholc laid a foundation, there
is no merit to-this allegation of error and the trial court' s nning should be affirmed .
. b. Staremcn ts at trial which Quin ii failed 'to object ·to'.
Quinn lists four other statements made at trial that he alleges were improperly
admitted:
tl) Statement.by that .Quinn .assaulted LabGlt~.o in the past.
(2.) Statement b,y Labarko thar Quinn had stalked her at PlanetFuness.
(3) Statements ·by prosecution thatQuinn threw a table while meeting with Labarko at the.
hospital in January.
'(4) Statement b)' Labarko that Quinn had been hospitalized.
COl'l,CISE STA TEMEJ\.'T,.'pgs. 5-6. The record indicates rhat, while .such statements were made,
Quinn. did hot dbjed toany of the four statements listed above: As stated: in 'Seetion I, supra,
ah issue not raised: before the trial courtis deemed waived and cannot beconsidered for the.
first time on .appeal. Pa:R..A,P. ,302(a}. Thus, because Quinn failed . to make timely objections;
Page 23-of J6-
, _,, .... w .... ,,.,.,.-.,.,.,.
.. ,.,.,_,...,_.,, ,......_......,,.,.,, ,_, ,,_,, ,....,~,,-.-.,,-,,..,
• .,,,_,_.,...,,_
.. ,_,.,..,_....,.,_,.,.,
__ .,..,,,_,.,......,
... , •_•,
f
to these .staternents, the· issues were not preserved and. cannot \ie raised for the first lime on.
appeal.
9.. Whether the trial court erred bV predudi-mz Quinn fmrn 'introdmiinu. evidence that-:
Labark0 requested. pavmenr. of $)_000 to "dr-0p the· <:h~rQ:es'; and had ptevioush··
I
l
received. a pavment of S9·;ooo from another :person ro drop a separate e,rirriinal:cnarn:.e.
'Quinn next alleges that the: .tr·1al court erred by precluding testimony regarding
· Labarko's request of S-5,000 from Quinn to drop 'the charges and' a separate instance where
Labarko received $9,000 from. another person to drop a separate.criminal
. case. However, the
record· (}lead.~· shows that the- trial court, never precluded .such testimony and, even i.f it had,
J
I Quinn never raised an objectionto the alleged preclusion cf such.
Quinn. first refers to an alleged offer QY Labarko repay Qu.i·nn to·"ctrop the charges'tin.
his opening statement:
And finally, ladies and .gentlemen, the evidence is goirrg to show that [Labarko]
attempted to get $5,000' .O_l.lt of me to drop the charges. I don't know that that was her
primary motivation, 1 wouldn't :£0 through. all of rhis tor ~5,.000, 'but that' s another
aspect ofthis case that the evidence is gci1iTg to ShO\\'.
· N:t. iURY. "t.'R1AL, .6/8(2016, p.g. 57. No objections were made· to Quinn's mention of the·
alleged ..offer of $5,000 in his opening sratemern and the trial court took no action to preclude
pr strike Quin's statement.
Barbara Labarko and the direct examination of Hren Labarko. During cross examination,
Quinn asked Barbara Labarko, "Do you recall contacting me by phone February ·9lh or
February 1·01h2" Id. at 186- Barbara Labarko begins to answer, "My PFA " Id. at 187.
Langerholc then objected,
A ttorn.cy Langcrho lc: 'Objection, is that February ofJanuarv?
I
I
I
I
II
.. ',,..,,,,,,,, . . ,. .. -~· ,-,., ,_,_
-- ._ __ ,.. _ .. .,....,..,. ,,, ,.,_._ .__,,, ,.-- ····--··-- ,.,_ ' ·-· . .. .
i
•
The Defendant, Robert Quinn: February:
The Court: Let's approach.
Id. In his pre-trial morions, Quinn had requested that evidence o La previous PFA against him
.· and protecting Barbara Labarko be.excluded and the Court granted such motion: but cautioned
Quinn that if he opened the door to introduction ofsuch evidence, then evidence of the. PF A
\VQU]d be admissible. Id. at 3,.ro.
After the· parties approached at sidebar, the trial court advised Quinn that he. had
"opened the door" by asking about.the contact with Labarko during a .timewhich she had a·
PF A against Quinn. The ~T~ai concluded by telling Quinn. ~hat he could continue: his 'cross-
examination of Labarkc, but· If .he opened the door to inrroducrion of the PFA then the trial
court would allow such -evidence. Id. at I 87. 'Quinn decided to end his cross-examination 'of
! Labarko.
l .
I· -Srill arsidebar, Langerholc advised.the trial court and Qt1.inn that the-Cornmcnwealths
I next w1lness would be Brett LabarkovBarbara Labarkc'sbroihet. The following conversafion
Quinn: You] Honor, .Perb~ps with regards to Brett' S restirnorry, l would like 10·
question him as 'to basically he told me at one point if Ipaid his· sister she would drop
the charges. ·,
The Court: \Vho told you that?
Quinn: Bren; (sic) in.a phone cal] «,
The,(;our:t: I thought this was Brett?
Langerholc: He: called him Brent, it's her brother ..
Quinn: \Vhat l am concerned about, J can raise the issue as part of my - -
. . . You are indicatina-·· he
The. Court: called. '-; -
vou and offered ·to zive .....vournonev.. ...
Page ::ZS of J6
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. ·. I
I•.. . . .
Quinn: He offered me,. he approached me in person at the: Geistown Countrv~ Club.
;
The Court: What areyou going to ask him, did hesay this?
Quinn: wen, the one tiling, l.wanted ro clarify: I asked hirn,T am sure he will deny it,
because that' s after the. rimeframe of the PFA to make sure that is not opening the door
for that. .
The Court: You can ask if there was money offered and you live with the answer.
Langerhnlc: Can 1 just have a minuie to tell [Brent just to reiterate to him that he's
nm to testify as to the PF A because l have not talked.to htrn.
id. at .188-89. Atthis point in {he trial, Quinn was concerned that he ma)' Open the door to
testimony regarding a PtA against him by asking. Breu Labarko . about an alleged offer to drop
·. the charges in exchange for a ss,oop payment. The tria! coun instructed Quinn that he ,vas
I
permitted to. ask Brett Labarko about the $5,000, but that if this line of questioning led to
testimony about the PFA, Quinn would have opened the door End testimony about the PFA
would be admissible. Quinn .cominued \vith direct .exaniinauon of Bren Labarko and asked,
"Do you recall jelling me in April that ff I gave.. your sister S5,000., she would drop the
charges?". Id -. at 196,.. Bren Labarko answered, "I don't recallthut." Id. Quinn then ended his
direct examination.
Additionally, Quinn asserts error with regard to preclusion of evidence that Barbara
Labarko received a payment of $9:000 in the past from Jackie Long In exchangefor dropping
criminal charges. The· record indicates that Quinn never artempred to. offer .evidence of such a
payment. Quinn briefly mentions Jackie. Long during his direci examination b.y staring that
Long and Labarko got into.a fight at a country ciub which Jed to Labarko contacting the police
I and fi1 ing assault charges .against Long. ~/,T. Ju RY TKJAL, Ci/9/21)16, pg. 9 \, Langerholc
t objected as .to the relevance of Quinn's testimony regarding the fighJ and ensuing criminal
i Page 26 of36
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I
;
I
charges against Long. The trial. court sustained Langerolc's obj``tion as to relevance. Quinn
. ·, .
. never again mentioned. the charges against Jackie tong and nei1er testified or attempted to
· testify thatJackie Long had paid Labarko S9!000.
Although Quinri asserts in ms Concise- Statement that the trial court erred by not
allowing him lo offer evidence of payment of S9 ,000 and .an offer to pay $5:000 in exchange
fqr dropping charges, the record reveals that such an allegation ii: clearly false . In fad;· Quinn
referred to the '.£5,0.0b pnym~nt in his Opening; Statement and questioned Bren. Labarko about
the offer. The trial court never made a ruling that precluded Quinn from. offering evidence of
· either offer and, as such, Quinn could not object.to such at trial. Thus.ibccause the tdal court
never ruled that Quinn could notpresent evidence of .a payment of S9,000 or .an offerto pay
Labarko $5,000 and, consequently, Quinn could have never objected, this allegation of error is
rneritless as it mischaracterizes the .record and docs.not present an action by the trial court that
can be reviewed on appeal;
IJ, Was there sufficient evidence presented at trial to sustain the jury's verdict?
Quinn's second main issue raised on appeal is whether the verdict was against the
weight of the evidence presented at trial. Pa.R:Crim.P. 607 provides ihat, "A claim _that. the
verdict was against the weight ofthe evidence shall be raised with the trial judge in a motion
for a new trial: ( l) orally, on the record, at anr time .before sentencing; (2) by \\TI tien motion .
at anytime before sentencingj.or (3) in.a post-sentence morion:'
the Pennsylvania Supreme Court hasheld.that,
It is well settled that a defendant must present his cfo1ll'engc to the weight of the
evidence to the trial court for a review in the first instance, See Pa.R'..Cri111.P. 607(A);
'Com. \'. Griffin, 20B PA Super 70: 65 A.3d 932, 939 (Pa. Super; Ct. 2013).
Thereafter, 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
Page 27 of 36
lj
II ,,'
l evidence. Because the trial judge has had the opportu!1i.tS{ to heat and see the evidence
i presented, an appellate court wil.l give the gravest con~fdern:tion to the findings and' ·
reasons advanced by the trial judge when reviewing a tf,ic:ll court's determination that
the verdict is against the weighr of the evidence .. One of the least assailable reasons Tor
. -
-·zrantina or
. ·. denvinz
. ·-
a .new
. . trial
. . . is the lower
. . court's
. conviction
. . .. . . the verdict was or
that
was not against the weight of the evidence and that a new trial should be granted in the.
interest of'justice.
Com.». Widmer, 560Pa. 308, 744 A2d 745:. 753(2000) (ciiations omitted), Furthermore,
inclusion pf a challenge ro the suffi1::iency of the evidence ip an appellant's. Rule 1925(b)
Statement is insufficient 10 preservethe ..issue for appeal where it was not previously jaised
before the trial
. . court. . Griffiil, 65 A.3d at 938.
l
Here, Quinn raises his weight of the. evidence claim frn' 'the first time in his Rule
192S(b) statement. He failed to raise such either orally or by written motion before sentencing
and. did not include this issue in his Post-sentence motion. Thus, because Quinn raises his
challenge io the weight of the evidence for the first time in his r.~ule 1925{b) statement, he has
waived this issue for. purposes of appeal.
UL Whether the Court erred by revoking Defendant's bail pending sentencing?
Quinn's next issue raised on appealis whether the trial c;1,u11 erred PY revoking his bail
following thejury verdict and prior to sentencing. CONCISE St.•\T.EMENT; pgs. 4-5 .. However:
an -order revoking bail is an inrerlocutory order, which is non-uppealable. Com, v, Colleran,
313 Pa.Super. l , 469 A.2d 1130, 1131 (198.3). The Courts have held that, "The proper method
to challenge an order of a trial court refusing or revoking bai I is by means. of a petition for
review pursuant [to the Rules of Appellate Procedure]." ld.; See also Pa.R.A.P. 312. Thus,
because Quinn utilized improper procedure by raising this issue on direct appeal rather than
by means of a petition for review; the appeal as ro the issue of bail revocation should be
quashed.
Page 28 of 36
i
fV. WhetherDefendant was pr~judiced by the aftions{1f Assistant District
Attorney's Langerholc who allegedly held a vendetta against Defendant?
The fourth issue presented on appeal is whether Quinn was prejudiced by· the actions
of Langerholc who, allegedly, had a vendetta against Quinn, Quinn asserts that Langerholc
\ had a vcndena against Quinn based upon Quinn and Langerholc' s relationships. with a third
\ party. These focts wen; never introduced by Quinn at trial and no such allegation was ever
I .
raised before the trial court. Quinn also states that such a vendena was manifested by
statements made by Langerholc fit trial, such as referring to Quinn as, "God's gift." CONCISE'
STATEMENT, ~g, 8. However, Quinn never objected ro such statements bi Langerholc .
. As. stated in Section 'l, supra, an issue not .raised before the trial court is. deemed
waived and cannot be considered forthe first time on appeal. Pa.R.A:P. 302(a). thus, because
I Qui nri nei ther rai scd thee issue of Langcrholc' s alleged personal vendetta nor .objected to
1
Langerholcs statements which evidenced. such prejudice, these Issues were not preserved and
cannot be raised for the firsttime oh appeal
V. Did the Court err by foiling fo recuse itself?
Qui n's next allegation of error is :that the Court failed to recuse itself based on this
jurist's prior role as. an assistant district attomey during which time this jurist was involved
with an indirect criminal contempt proceeding involving a Protection from Abuse (PF A) order
between Quinn and his ex-wife. Quinn alleges that this jurist was involved in such
proceedings in approximately 2009. Furthermore, Quinn asserts that his. eX-'\\;ifo posted on her
Faccbook, page during this jurist's campaign that this jurist had been helpful in the PfA
process.
Page 29 of 36
lj
lnitiallv.
. . the trial
. court . observes. that
. no: Motion to Recuse
'i . was made
. at anv. time
. .
before or during the trial. In fact, priorto jury selection, the trial ~;qurtstated to Quinn:
I warn to begin, Mr. Quinn, I didn't remember the case, but .it was brought to my
attention apparently in 2013 or 20.1 ~ when I was an assistant district attorney there was
a PFA indirect. criminal contempt; and I was the assistant DA on- the case. I believe
rhat the case was-dismissed.
I don't have ~Y independent is
recollection of the case and, because this, a Jury trial,
and in reviewing "the rules; I have no opinion. l have no recollection of it; arid l
determined, since this .is a jury trial, the fact finders are the jurors and not this court,
that I do not believe there is any conflict: I did want to cltsclose thet to you;. however,
just for complete transparency,
N:T. Ji.my SEL.Ec:noN,. 6/2/2016, pgs. 3-4. After this disclosure by the trial court, Quinn made
no Morion ro Recuse at that time and a review of the. complete transcripts of the proceedings
in this case reveal that no such motion was ever made be-fore or during trial.
However, after. the jury rendered its verdict, Quinn did rnise the issue of rccusal in his
I p.ost-se.1tence motions. 11,e. trial court b.e gan the hearing on Quinn's po it-sentence motions by
statrng,
I understand [recusal is] one of your issues that you can argue, but because the Court
has made its decision on this, previously _on the record the Court colloquied you prior
lo the beginning of the proceedings, before the trial, beforejury selection regarding my
involvement, and you waived that conflict. lt does not mean that you can't' address that
again, but forthe purposes of going forward for today's hearing I am going ro remain
on ehecase. · ·
N. T. PosT.:.S ENTENCE i\iiOTIOl'JS, 912712()16, pg. 8. Quinn responded,
Your Honor: if I might just for the. record, I would di sagree wi lb your characterization
thatl waived my right to. object to your hearing the caje:As I recall, it was prior to
jury selection, and -as the Call of the List was before Judge Kiniry .. He issued jury
selection. Icame ro the Court that day expecting 10 see Judge Kiniry. When you came
to the stand; I believe the very first issue you raised, and no one had raised or l had
said anything to my knowledge, perhaps theProsecution has, but you basically made a
ruling on it, which IO me there was, as novice pr« se, there was .nc reason for me to
object because ~'.OU -had already ruled and. basically you came to the court. You raised.
the issue that you had prosecuted me previous! y op a !'FA~ alleged PFA violation and
Page J,O of36
that because vou were not the finder of fact vou felt no r&1ason co recuse «ourself from
• ' ' .... • ·". •• • • J • .,
the matter. At that po int, again my. understanding.as. a novice, was there was no reason.
to qbJe·ct. because you had: just ruled ion the issue . .-J never· :i-r:itencion;3-Jly waivedthat as- .
an objectionable 'issue. ·
Id. at 8~9.
It is well-settled that, "a party -seeking recusal 'or di!:'-q·ualifica:ti-on must raise the·
-!
objection at the earliest possible moment, or that party will suffer the consequences of being
·. rime barred:" Com. v. Si-afford, .2000 PA Super '76,. 74.9 A.2d 4·89~ 5.01 (PaSuper. CL 2000).
Furthermore, . where ~ defendant' chooses to proceed pro ~-11, the. defendant still must adhere to
the rule.s ofCrirnina! Procedure and Evidence. It is no cxcusethut a pro se defendant was.not
aware· of the proper procedure to raise objections and preserve issues for appeal.
Additionally, the Pennsylvania Supreme Court has explained the issue.of'recusal:
The standards for recusal are well established. lt is the burden of rhe parry requesting
recusal to produce evidence establishing .bias, prejudice or
unfairness which raises a.
substantial doubt as to the jurist's. ability to-preside Trnr,artial]y; i\~a general rule, 'a
motion for recusal is ini-tiJi.lb' directedto and decided bi·'1he_jurist whose irnpanialityis
being challenged .. In considering a . recusal request, rhe jurist must first make :a
.conscientious determination of his or het ability to assess the case in an impartial
manner, free of personal ·:bias OJ Inreresr in the outcome .. The jurist must them consider
whether his or her continued involvement · in· the case creates an appearance of·
impropriety and/or would tend JQ undermine public confidence in the judiciary. This is
a .personal · and unreviewable decision that- orily the jur1s.t. can make. Where- a jurist
rules that he er she can hear and dispose of a case fairly-and without prejudice, that
decision wi 11 not be overruled. on appeal but for an abuse .of discretion. In
reviewing a
denial ofa.disqualificaticn motion, we recognize rhaiour judges are honorable, fair
and competent ·
'Com. y A'b11-J.a1;1dl; 5~3 Pa ..-485, 720 A.2d 79-: :s9 (1998:)_-(citat-i_C;nS·'Orriined.}. See also, Com. .v,
O'SJ~ea,. 523 -Pa. J84, 567 A.2d·.'l023, 1.034 (19M); Com: v. Bonds, 2005, .PA S1,1per432, 890
A.2d 414 (Pa. Super. Ct. 2005). The· rule is simply that "disqualification of a judge is.
mandated whenever 'a .significant rninority of the. lay community. .. could reasonably question
.
Pag_c-.H-df36·
.
.r
the court's impartiality'." Com. r. Bryani; .3.~B Pc}.SUP.er. J, ;p6 .A.2d 422: -425 :(19.84)
•j
i
.?'
(citations omitted) .
As noted above, this rnarter was not raised bi: ,•,:?y of ·a. motion :until Quinn's Post-
Sentence Motions. The· trial.courr raised the issue and, in the interest of transparency, stated
that this j.urist believed she could be fair .and impartialin this man er. At that 6mc/Qui1U1 could
l have. easily objected and made a Morion. Ior .Re_C\:ISaL lnstead, Quinn said nothi'ng and
I proeeeded to jury setection. Quinn's lack of knowledge of thi'~ rules of procedure arc no
excuse for h°is failure to make a 'Motion for Recusal until after a Jury verdict had: been
rendered. Thus, because Quinn failed- to object to this jurist's _preisi;ofng over the case Qr make
a Kfotion forRecusal until his.Post-Sentence Motions, this issue is time barred and . waived for
appeal.
'Vl, ·Wa$ standby counsel Ineffective?
Quinn's next issue raised on appeal is -vhether his' standby counsel was- ineffective?
CON.clSE STATEMENT, pg. I l. He raises this issue i'ri 'both Sections . .\(and.VU. ;Of.his Concise
-Staterneru. However, the trial court .dcclines to address Quinn's d~im of ineffective counsel in
-this Qp_inion.
In Com. v. Grant, 572 Pa. 48; S.L3 A.2d '71.G:. (2002), ..cl.ar{fi~qon denial of,redr.g11i11eht,
5?3 Pa. 14·L, '82l A..2d: IJ46 (2003), holding med_ified-b). Com. v. Bethea, 5)4 Pa .. lOO,, .828
1
. A.2d' I 0.66 (200J); the Pcnnsytvania'Supreme Court arrrtounced. :i new generalrule concerning
the time and manner for raising claims 'of .ineffective assisranc ~ of counsel. The. Court held
thar ·'1a. defendant 'should wait to raise claims of .ineffective .assistance . of trial counsel until
collateral review.?"· Corn. ,,. 'Bomar, 5i3 Pa. 426, &26 A..2d 831, 8.5} (2003).. (quoting· C.1:a11f,.
826 A2d at 738).. Raising a claim of ineffective.assistance of counsel at collateral review
Page 32 of36
-· -----·--------·------·--·~--- _
r
rather 'than on ·direct appeal gives' the petitioner the "time necess\/f)' ... lo discover .and fully
develop claims related to trial counsel .incffeciivcness." Grant, '572 Pa -. 4& .. The Court
determined that, since "appellate courts do; nor normally consider issues that were norraised
and developed in the court. below," Id.; "deferring review of trial counsel ineffectiveness.
claims until ihe eollateral review Stage Of theproceedingsoffers .. a.peritioner the best avenue 'CO
effect. his :S:i~th Amendment right to counsel.': Com: v. WC:Jt'i'.on, 200} PA Super 410, 835 A2d
786, 79"2 (Pa, Super. Ci. 2003} (quoring Grant; 572 Pa. ,it 738). More recently, the
) Pennsylvania Supreme Court has' reaffirmed. that holding in Grant. 572 Pa. 4:S., stating, ·«we
reaffirm Graht and hold that, absent [certain exceptions'], claims.of ineffective assistance of
counsel are to be deferred ro PCRA review; trial courts shi,uld not entertain claims of
ineffectiveness .. upon post-verdict motions; and such claims· .sl101,1Jd not be reviewed upon.
direct appeal." Com. v, Holmes, 621 Pa; 595, 79 A.Jd 56:2°,. 576 r!OB}
Although some case law indicated rhat the courts had created an exception to 'this-
aeneral
~ role such that a defendant
. could. raise an .ineffective
. . assistance of counsel claim ori
,, .
. directappeal, the PennsylvaniaSupreme Court in Com. 'i•. O'Be:g,584 Pa. ·1.1, S80 .A.2d S97,
· 1602{Zoo'5), overruled any cases recognizing such 'an exceptiorr, l'he.:Court held that,
As a. zeneral rule. claims of ineffective assistance .of counsel wil! not be entertained on
direct appeal.. Moreover, we take this opportunity ·10 disapprove' of any decis1(>ns:Q(the·
I Superior Court that areto the contrary. For-these. reasons, we do not believe· there is a
need to create. a. "short sentence" exception to. the. general rule announced ·in Grant,
5 72 Pa. 48, Indeed. we fear ·doing so would underrnirie the verv reasons that le'd ·1o··our.
decision in Gram, 572 P~. 48 in the 11r~t irt.sJc;11~e: . ,· • .
Similarly: in .. Com. :v. Simmons, 2904.PA Super 71,:8'46 A.2d· l42, 144 (Pa. Super. C~·-
2004), the Court considered wneiher a defendant 'could raise the issue of ineffective assistance
of counsel on direct appeal when the defendant was sentenced ro .a term .of incarceraiion of
····- , .. _.,
, ,.. , , , ----· ---·,.···-·--·-,, ....., , ,_,, .. .,_ ,_, ,,-- "',., -- ..~-- -., ,.., _
.. ~
;
,;
~!
· eleven and one-half months to iwenry-three mouths foil owed by ·,., term of probation. Based on
!
that length of sentence, the Court held that: "Appellant will .have ample opportunity to
challenge his counsel' s effectiveness in .h collateral attack. Accordingly, we find that the
'Saltsbury exception does not apply to the Appellant ls inef.foct1ve assistance of counsel claim
and the claim must be dismissed pursuant to Chant. Id.Here, Quinn was sentenced to a term of imprisonment for "not less than one year less a
day, nor more than 2 years less a day," The minimum of Quinr.-s sentence is approximately
one-halfof a month longer than the sentence ofthe defendant in.Stmmons, 2004 PA Super 71.
Thus, because Quinn's
. sentence . provides ample time to raise
. ineffectiveness
. of counsel. on
collateral review, and since the record is void of any determination of the trial court as to the
matter, the trial court declines 1:0 address the issue of lneffe.ctiveness of counsel in this
Opinion.
\;IL Wherhet the Court's sentence was inappropriate?
Quinn; s final issue allegationof'error is that;
The sentence of the court was inappropriate and .the jud·~e allowed the prosecution to
assen that a non-violent crime such as this is worse char, violence: which ignores Jaws
which provide aggravating circumstance when violence is. involved. The sentencing
range was 3"14 months but the court sentenced the .Appehatejsic] to l 2 months minus
a day to 24 months minus a .day.
CONCISE STATEMENT: PG .. 13 -,
204 PA.CODE§ 303.1. requires that, "The court shall consider the. sentencing guidelines
in determining the appropriate sentence for offenders convicted of, or pleading ~uilty or nolo
contendere to, felonies and misdemeanors.': To determine the guideline sentence applicable in
a given case the law provides:
The procedure for determining the.guideline sentence. shall be as. follows:
Page 34 of36
~
(.i) Determine the Offense Gravity Score asj.desdibed. in s 30l3 and.§.
. .
303. lS:
(2}. Determine the Prior Record Score as described in §.'~03.4~--§ J03.8.
(3) Determine the guideline. sentence recomrnerrdarion as described in §
· 303.9--§ 303.14,. including. Deadly · Weapon Enhancement,
Youth(SchoolE.n.bancem.ent, Criminal Gnng Enhancement, 'and Third
Degree: Murder bf a Victim Younger than Age J..3 Enhancement (§
303: -: fO), and aggravatirrgor mitigating ·cir9umstanc~s.f§ 303-.15),
2,04 Pa.Cede §' 303 .. 2 .. For exam pk, a guideline .senrence. may be 3QA2 months. According t¢
statute, "All numbers in sentence recomrriendations suggest months of minimum confinement
pursuantto 4'2 P,tC.S·.A . ·§. 97-,S(b) (partial confinemenijand § ~n5.${b). (total confinement)."
.
J · 204 Pa. Colic § 3 OJ. 9( e). Therefore, in the case e fa g~ idel i ne sentence of J 0-4 2 months, the
guidelines would. recommend a rnrmrnurn sentence between JO ·and.42 months. Importantly,
the minimum -sentence cannot :e~ieed half of The maximum sentence· length. 42 Pa ..C.S:,A. .. §·
9754.(b)()),
lnitiall«, 'the trial court ..agrees jhai Quinnls guideline runge for seniencirrg was :3-14
rnoruhs. 111e trial coun imposed a. sentence of imprisonment fot one year .tess a day to two
..vears less
.. a dav.
., This-sentence -
.. . . clearlv.... falls within the cuideline
. -
ranze of. J-L4
. months ... as the
,,
minimum sentence imposed was. 12· months ..Jess a day. In facr, a sentence-of 14-2-8 months
-still would have. fallen withinthe.guideline range, The issue rai:'ied. byQuinn manifests a clear
misunderstanding ofthe use and application of the. guideline sentence range in Pennsylvania.
It seems ~hat -Quinn believes that the complete seritcnce, including. minimum and maximum,
rnusr foll within the guideline -range. However, this is 1lqt· in accordance with the applicable:
starurory law discussed supra. Thus, because the. minimum 'term of imprisonment imposed b}'
the trial court falls squarely within Quinn's .guideline tange, the :trial court did Rot err by
applying an aggravated range and sentencing Quinn outside of his 'guideline range.
Page 35 !)[36
- .......,--·-· .. --·--·-----··-- ..-·-----------··--- ... --............_.,.... .,.,....__, _
. I .
Accordingly, as thereis no merit to. this or .' any allegation q.f error the appeal must be
;I
dismissed and Quinn's. conviction -iµi:d sentence affirmed.
lv1arch'24, 2017
. CQPlESiTO:·
P5gpeF. a cs F··
f5 ~PA O SHERIFF
Q ATTY. Q OTHER
O PO
o ro
Q JAIL
0.JUD.GE
-0 CA .
• ~ . .,-.,d.,, ·"··•~•, '••'•"'' -·-•"'"•'••"'•"U• •"·.,~, .....
. -------- - _ ,.., __ - --
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