Com. v. Howard, G. ( 2017 )

J-S43006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY DAVID HOWARD
Appellant No. 1285 WDA 2016
Appeal from the Judgment of Sentence entered October 1, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-CR-0005467-2014
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 25, 2017
Appellant, Gregory David Howard, appeals from the October 1, 2015
judgment of sentence imposing an aggregate 20 to 40 years of incarceration
for two counts of robbery, one count of aggravated assault, one count of
simple assault, one count of unlawful restraint, one count of theft by
unlawful taking, one count of receiving stolen property, and one count of
conspiracy.1 Also before us are Appellant’s pro se applications for
appointment of new counsel. We affirm the judgment of sentence and deny
the applications for appointment of new counsel.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3701(a)(1)(i) and (ii), 2702(a)(1), 2701(a)(1),
2902(a)(1), 3921(a), 3925(a), and 903(a)(1), respectively.
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The trial court summarized the pertinent facts:
The charges in this matter arise from an incident that
occurred on October 21, 2014, in West Newton, Westmoreland
County, Pennsylvania. The facts set forth herein are derived
from testimony presented at trial of this matter that occurred
between July 6 and July 9, 2015.
Codefendant Brandon Danilchak testified that two days
before the crime, he, [Appellant], and an individual named
Derrell Adams met at [Appellant’s] residence to discuss a
potential home invasion. Danilchak stated that [Appellant] and
Adams spoke with him about an older woman who had loaned
money to Adams. They believed that she would have a large
amount of cash inside her home.
Adams described the layout of the house, and that
[Appellant] had stated that he was familiar with the area where
the home was located. On the morning of October 21, 2014,
[Appellant] picked up Danilchak from his apartment at
approximately 5 a.m. Danilchak testified that he, [Appellant],
Lamont Dixon, and Darrell Adams all agreed that they would
commit the home invasion. Adams again instructed the group
regarding the layout of the home. [Appellant] supplied the
group with gloves to avoid leaving fingerprints at the crime
scene, and they departed in Dixon’s vehicle, a white Chevy
Malibu.
Frances Tekavec, a 91-year-old woman, was at her
residence in West Newton on October 21, 2014, at
approximately 6:30 a.m. when employees from Levin’s Furniture
arrived to deliver two mattresses that she had ordered. Roughly
five minutes after the deliverymen departed, a Caucasian male,
later identified as Brandon Danilchak, knocked on her door,
stating that he was from Levin’s furniture, and had forgotten to
have her sign a receipt. The man stepped in to her home, and
as Ms. Tekavec searched for a pen, another individual, described
as a tall African American male and later identified as Lamont
Dixon, entered her home wearing a black hoodie sweatshirt. As
he entered, he grabbed the victim’s shoulders and threw her
across the kitchen. Her head hit the refrigerator, and as she
landed on the ground on her back, he held a knife to her side
and demanded money. The victim stated that she had no
money except what was in her purse. The individual inquired as
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to the location of her purse, and when the victim indicated it was
in her bedroom, the individual dragged the victim into the
bedroom, as she could not walk due to the fall. The individual
removed approximately $30 from her purse. He then opened
her jewelry chest and emptied two drawers which were filled
with various types of jewelry. He also removed the victim’s
jewelry from her person. The first individual then approached
the victim’s wall safe, but was unsuccessful in opening it without
a key. When the victim informed him that she did not wish to
give him the key, he held a knife to the victim’s small dog and
said that if she did not give him the key, he would kill her dog.
The victim then noted that a third individual, a heavyset
African-American later identified by the victim as [Appellant],
entered her home. The victim noted that he was wearing a robe
and a mask. [Appellant] grabbed her and threw her on her bed.
He then threw a sheet over her face to impede her vision. The
victim’s wrists were bound with electrical cord, and her ankles
were bound with a surgical stocking. The victim noted that her
ankles and wrists were bound so tightly that her flesh was
removed. After the three individuals finished removing items
and cash from the safe and other items from her home, they
departed. It took the victim approximately 20 minutes to work
her bindings until she was able to call 9-1-1. The victim was
transported to the hospital, where she was diagnosed with a
broken neck and broken vertebrae in her back. She testified
that she still suffers from terrible pain, which limits her ability to
walk. The three individuals removed approximately $13,000
worth of items. The victim also noted that she had reported to
the police a strange vehicle outside of her home the day prior,
which she identified as a white sedan.
Bobbi Drudl testified that she was the girlfriend of
codefendant Lamont Dixon on the day of the crime. Drudl
testified that on the morning of October 21, 2014, she woke to
find that her car was missing, which she identified as a white
Chevy Malibu. Drudl stated that she was unnerved because she
needed the car to drive to work. She attempted to call Dixon,
but his phone was turned off. She stated that at roughly 8 a.m.,
Dixon finally contacted her using his uncle, [Appellant’s] cell
phone. Dixon stated that he was on his way back to Drudl’s
home. Drudl stated that when Dixon returned, he was wearing a
black hoodie sweatshirt. He left again for a few moments, and
when he returned, he handed Drudl two $100 bills and stated
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that she should use the money to pay his cell phone bill, keep
$40, and save $100. Drudl and Dixon then got into the car.
Drudl asked Dixon where the money came from. Dixon stated
that he had robbed somebody. When Drudl inquired further,
Dixon stated that he had robbed an old lady.
When the pair arrived at Dixon’s apartment, Dixon
removed jewelry and a few gold coins from his pockets and laid
them on Drudl’s front seat. Dixon told Drudl to keep the jewelry
in her purse. While Drudl was driving to work, she received a
call from [Appellant] asking where he could find Dixon. He
called twice more, each time asking the whereabouts of Dixon.
Soon after, Dixon called Drudl, using [Appellant’s] cell phone,
and told her to have a good day. That same day, Cindy
Danilchak testified that she received a call from [Appellant’s] cell
phone number inquiring whether she would be available to travel
to a nearby pawnshop to pawn some items.
On October 22, 2014, Dixon and Drudl read an article
online regarding the robbery. Dixon stated this was not how it
was supposed to happen.
Sergeant Scott Sokol of the Rostraver Township Police
Department testified that he responded to a report of a home
invasion at the victim’s home on October 21, 2014. Sergeant
Sokol noted footprints outside of the home in the snow, which
led to a tire burnout in the grass. Sergeant Sokol also
eventually recovered two pairs of latex gloves, and orange
garments that codefendant Dixon later stated they used to cover
their faces. Officer Michael Sethman, who responded to the call,
testified that the piece of paper that had been handed to the
victim by the first individual was actually a paystub for Bobbi
Drudl.
Bridget Ross testified that in the early morning hours of
October 23, 2014, Lamont Dixon began ‘beating’ on her back
door. She testified to her encounter with Dixon:
Ross: I was with, um, a guy that he came in to talk
and he beat on the door, he was crying, he
expressed that him and a couple individuals had did
a home robbery and he didn’t want to live no more
with his past background, that they were going to
give him 20 years to life, and he just wanted
somebody to give him a gun so he could just end his
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life now because he was in so much remorse. He
also stated that the other two individuals involved
were [Appellant] and Brandon Danilchak.
Trial Court Opinion, 6/9/16, at 1-5 (record citations omitted).
At trial, Appellant chose to represent himself with standby counsel
present. On July 9, 2015, a jury found Appellant guilty of the
aforementioned charges. Appellant filed a timely post-sentence motion,
which the trial court denied on June 9, 2016. Appellant did not file a timely
appeal, but appointed counsel successfully petitioned for the right to file this
nunc pro tunc direct appeal.
Appellant raises several pre-trial issues, including the Commonwealth’s
alleged failure to turn over exculpatory evidence and disclose a plea
agreement with one of Appellant’s codefendants. Appellant also argues he
was denied his right to a fair trial because the trial court did not provide
civilian clothes to his inmate defense witnesses. Appellant also argues he
was deprived of his right to a fair trial because he had a disciplinary
complaint pending against standby counsel. Finally, Appellant challenges
the sufficiency of the evidence in support of each of his convictions.
Appellant’s Brief at 5.
We have reviewed the parties’ briefs, the trial court opinion, the
applicable law, and the record. We conclude that the trial court’s June 9,
2016 opinion accurately addresses all of Appellant’s arguments. Concerning
Appellant’s assertions of various pretrial errors, we observe that Appellant
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withdrew all of his pretrial motions and thereby waived the issues he raised
therein. Trial Court Order, 4/22/14.
Concerning Appellant’s fair trial arguments, the record indicates that
Appellant never requested civilian clothes for his incarcerated defense
witnesses. Acting as his own attorney, Appellant had the duty to procure
civilian clothes for his witnesses or at least ask standby counsel to do so. He
failed to do so. This argument lacks merit. Appellant cites no law providing
that the trial court had an affirmative obligation to provide civilian clothes,
nor does Appellant cite any law providing that reversible error occurs where
defense witnesses (as opposed to the defendant himself) appear in court
wearing prison garb.
The trial court correctly notes that the record fails to support
Appellant’s contention that the Commonwealth failed to produce exculpatory
evidence or failed to disclose plea agreements with Appellant’s
codefendants. Both codefendants took the stand and denied any such
agreement. Appellant also argues his cell phone records were exculpatory.
As the trial court explains, Appellant’s cell phone records were examined
extensively at trial and the Commonwealth used them to corroborate the
testimony of prosecution witnesses. Appellant cannot satisfactorily explain
why his cell phone records would have exonerated him. He also does not
explain why he could not have subpoenaed them himself.
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Appellant’s argument that he was denied a fair trial because the
Commonwealth failed to call every investigating officer to the witness stand
fails because, as the trial court explains, the law does not require the
Commonwealth to do so. The prosecution is free to determine what
evidence is needed to prove its case beyond a reasonable doubt. Further,
Appellant could have subpoenaed any witness he believed could provide
exculpatory information.
Next, we observe that Appellant’s strained relationship with standby
counsel does not merit a new trial. Appellant does not identify any action or
inaction on standby counsel’s part that prejudiced Appellant’s case, nor does
he explain how any such action or inaction would entitle him to relief, given
his choice to proceed pro se.
The trial court properly rejected Appellant’s sufficiency of the evidence
arguments. As recited above, the record contains overwhelming evidence of
Appellant’s guilt. The jury was free to credit the testimony of the various
witnesses, including the codefendants, who implicated Appellant.
Finally, we deny Appellant’s pro se applications for appointment of new
appellate counsel. The record indicates Appellant’s persistent efforts, by
numerous letters, to control appellate counsel’s professional judgment.
Counsel’s brief was sufficient to facilitate our review of this case, and we
decline to delay this matter by remanding for new counsel and a new
briefing schedule.
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Judgment of sentence affirmed. Applications for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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Circulated 08/31/2017 10:25 AM