Com. v. Connor, W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WESLEY TARU CONNOR :
:
Appellant : No. 466 WDA 2017
Appeal from the Judgment of Sentence February 23, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003254-2016
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 05, 2018
Appellant, Wesley Taru Connor, appeals from the judgment of sentence
entered on November 8, 2016, as made final by the denial of his post-sentence
motion on February 23, 2017. We affirm.
The factual background of this case is as follows. In the early morning
hours of February 29, 2016, Appellant and his girlfriend, Shalawn Morgan
(“Victim”), left a bar and walked towards Victim’s home. When outside of
Victim’s apartment, Appellant and Victim engaged in a verbal altercation.
Appellant then punched Victim in the face which caused her to fall to the
ground. Once inside Victim’s apartment, Appellant struck Victim at least two
more times.
The procedural history of this case is as follows. On May 2, 2016 the
Commonwealth charged Appellant via criminal information with simple
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assault.1 Immediately prior to trial, the information was amended to charge
Appellant with harassment2 and disorderly conduct3 and to withdraw the
charge of simple assault. As the new charges were both summary offenses,
the case proceeded to a bench trial. The trial court found Appellant guilty of
both charges. On November 8, 2016, the trial court sentenced Appellant to
an aggregate term of 90 days’ probation. On February 23, 2017, the trial
court denied Appellant’s post-sentence motion. This timely appeal followed.4
Appellant presents two issues for our review.
1. Was the evidence insufficient as a matter of law to convict
[Appellant] of disorderly conduct . . . ?
2. Did the trial court violate [Appellant’s] federal and state
constitutional rights to confrontation and a fair trial by restricting
the scope of his cross-examination of [Victim] . . . ?
Appellant’s Brief at 5 (complete capitalization omitted).
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1 18 Pa.C.S.A. § 2701(a)(1).
2 18 Pa.C.S.A. § 2709(a)(1).
3 18 Pa.C.S.A. § 5503(a)(1).
4 On March 29, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 22, 2017, Appellant filed his concise statement.
On July 25, 2017, the trial court issued its Rule 1925(a) opinion. Both of
Appellant’s issues were included in his concise statement.
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In his first issue, Appellant argues that the evidence was insufficient to
convict him of disorderly conduct.5 “The determination of whether sufficient
evidence exists to support the verdict is a question of law; accordingly, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Edwards, 177 A.3d 963, 969 (Pa. Super. 2018) (citation
omitted). In assessing Appellant’s sufficiency challenge, we must determine
“whether viewing all the evidence admitted at trial in the light most favorable
to the [Commonwealth], there is sufficient evidence to enable the fact-finder
to find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Sweitzer, 177 A.3d 253, 257 (Pa. Super. 2017) (citation
omitted). “[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. . . . [T]he finder of fact, while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part, or none of the evidence.”
Commonwealth v. Davison, 177 A.3d 955, 957 (Pa. Super. 2018) (cleaned
up).
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5 We note the unique procedural posture of this case with respect to
Appellant’s sufficiency challenge. In its opinion denying Appellant’s post-
sentence motion, the trial court agreed that the evidence was insufficient to
convict him of disorderly conduct. Nonetheless, the trial court declined to
grant relief because it (incorrectly) believed that Appellant’s post-sentence
motion lacked an adequate prayer for relief. As noted above, we review a
sufficiency challenge de novo. Thus, we owe no deference to the trial court’s
procedural ruling or its conclusion that the evidence was insufficient to convict
Appellant of disorderly conduct.
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In order to convict a defendant of disorderly conduct, the
Commonwealth must prove that he or she “with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
engaged in certain enumerated activity. Relevant to the instant case, one
such activity is engaging in fighting or threatening, or in violent or tumultuous
behavior.” Commonwealth. v. Norley, 55 A.3d 526, 528 (Pa. Super. 2012)
(cleaned up). Appellant concedes that he engaged in violent behavior. He
argues, however, that he did not do so with the intent to cause public
inconvenience, annoyance, or alarm nor did he recklessly create a risk thereof.
Appellant’s argument that he did not recklessly create a risk of public
alarm is without merit. The Crimes Code defines “public” for purposes of the
disorderly conduct statute as “affecting or likely to affect persons in a place to
which the public or a substantial group has access; among the places included
are highways, transport facilities, schools, prisons, apartment houses, places
of business or amusement, any neighborhood, or any premises which are open
to the public.” 18 Pa.C.S.A. § 5503(c). Victim testified that Appellant punched
her while standing outside of her apartment. N.T., 10/25/16, at 10-11. The
plain language of section 5503(c) provides that apartment buildings are public
places for purposes of the disorderly conduct statute. Moreover, it is axiomatic
that public streets and sidewalks are public. Hence, the lack of evidence
regarding exactly where outside of Victim’s apartment she was punched is
immaterial when determining if Appellant recklessly caused a risk of public
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alarm. The punch created a risk of public alarm either in an apartment
building, a public place under the statute, or on a public street or sidewalk.
Under either scenario, Appellant’s punch recklessly created a risk of public
alarm.
Contrary to Appellant’s argument, his conduct did not just cause a risk
of inconvenience for Victim. See Appellant’s Brief at 25. Any member of the
public outside of Victim’s apartment, late at night, would have been alarmed
at the sight of a male striking a female. Appellant grossly deviated from the
standard for conduct a reasonable person would observe in Appellant’s
situation. See 18 Pa.C.S.A. § 302(b)(3) (defining reckless conduct). Thus,
even if Appellant’s conduct were only directed at Victim, it still constituted
disorderly conduct. See Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa.
2008) (citation omitted) (conduct directed at a single individual can constitute
disorderly conduct).
Appellant’s reliance on several cases in which this Court held that the
evidence was insufficient to sustain a disorderly conduct conviction is
misplaced. In those cases, the defendants verbally confronted other persons.
This Court determined that those brief, verbal outbursts were insufficient to
risk public inconvenience or alarm. See generally Commonwealth v.
Forrey, 108 A.3d 895 (Pa. Super. 2015); Commonwealth v. Maerz, 879
A.2d 126 (Pa. Super. 2005); Commonwealth v. Gilbert, 674 A.2d 284 (Pa.
Super. 1996). In this case, Appellant did not simply confront Victim verbally.
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Instead, he physically attacked her. A physical attack on a female early in the
morning is much more likely to cause public alarm than mere verbal sparring.
Although we agree with Appellant and the trial court that proceeding
with the original simple assault charge may have been the more prudent
action, that does not mean that Appellant was not also guilty of disorderly
conduct. The evidence presented at trial, viewed in the light most favorable
to the Commonwealth, was sufficient to sustain Appellant’s disorderly conduct
conviction. Accordingly, Appellant is not entitled to relief on his sufficiency
challenge.
In his second issue, Appellant argues that his Confrontation Clause
rights were violated when the trial court limited his cross-examination of
Victim.6 Whether Appellant's confrontation rights were violated is a question
of law; therefore, our standard of review is de novo and our scope of review
is plenary.7 Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013). As this
Court has explained, “the Sixth Amendment of the United States Constitution
provides that, ‘In all criminal prosecutions, the accused shall enjoy the right
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6 The Commonwealth argues, consistent with the trial court’s determination,
that Appellant waived this issue. We conclude that Appellant properly
preserved the issue and thus proceed to consider the merits of Appellant’s
argument.
7 Although we review a trial court’s ruling sustaining an objection to testimony
for an abuse of discretion, an error of law is an abuse of discretion. Hence,
we ultimately employ a de novo standard of review because Appellant only
raises a constitutional claim regarding the trial court’s ruling.
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to be confronted with the witnesses against him.’ U.S. Const. amend. VI. This
protection has been incorporated into the Fourteenth Amendment and thus is
applicable in state court prosecutions.” Commonwealth v. Brown, 139 A.3d
208, 212 (Pa. Super. 2016), aff’d, 2018 WL 2452643 (Pa. June 1, 2018)
(cleaned up).
This Court has explained that a defendant’s right to confrontation
means more than being allowed to confront the witness physically.
Indeed, the main and essential purpose of confrontation is to
secure for the opponent the opportunity of cross-examination. Of
particular relevance here, the Supreme Court of the United States
has recognized that the exposure of a witness’ motivation in
testifying is a proper and important function of the constitutionally
protected right of cross-examination. It does not follow, of
course, that the Confrontation Clause of the Sixth Amendment
prevents a trial judge from imposing any limits on defense
counsel’s inquiry into the potential bias of a prosecution witness.
On the contrary, trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, and prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant. The Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.
Commonwealth v. Akrie, 159 A.3d 982, 988 (Pa. Super. 2017) (cleaned
up).
Appellant’s Confrontation Clause claim focuses on a series of evidentiary
rulings made by the trial court with respect to the permitted scope of Victim’s
testimony. During cross-examination, Appellant’s counsel asked Victim, “You
had another altercation with [Appellant] yesterday; correct?” N.T., 10/25/16,
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at 26. The Commonwealth objected and the trial court sustained the
objection. Id. On redirect examination, the Commonwealth inquired as to
why Victim’s trial testimony differed substantially from her preliminary hearing
testimony. Id. at 30-31. Appellant objected to this line of questioning and
the trial court overruled that objection. See id. On recross-examination,
Appellant’s counsel again inquired into the confrontation between Victim and
Appellant that occurred the day before trial. Id. at 31-33. The trial court
permitted Victim to testify to the fact that she was involved in two altercations
with Appellant between the preliminary hearing and trial; however, the trial
court again sustained the Commonwealth’s objection to testimony detailing
the specifics of the second alteration. See id.
Appellant argues that Commonwealth v. Evans, 512 A.2d 626 (Pa.
1986) establishes that the trial court violated his Confrontation Clause rights
by sustaining the Commonwealth’s objections. Evans, however, is
distinguishable from the case at bar. In that case, our Supreme Court
explained that a Commonwealth witness’ pending charges must be made
known to the fact-finder. Id. at 631. It reasoned that:
Even if the prosecutor has made no promises, either on the
present case or on other pending criminal matters, the witness
may hope for favorable treatment from the prosecutor if the
witness presently testifies in a way that is helpful to the
prosecution. And if that possibility exists, the fact-finder should
know about it.
Id. at 631-632.
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In this case, Victim was not facing charges for the confrontation that
occurred the day before trial. Appellant did file a police report; however, the
record is devoid of any indication that formal charges were instituted by the
Commonwealth. Furthermore, Victim’s testimony was not “helpful” to the
prosecution. To the contrary, Victim testified in a manner inconsistent with
her preliminary hearing testimony. This raised serious questions regarding
Victim’s credibility and it forced the prosecutor to inform Victim of her right to
the assistance of counsel because of potential perjury charges resulting from
her inconsistent testimony. Thus, the possibility of Victim currying favor with
the Commonwealth did not exist in this case.
More importantly, Appellant’s counsel was permitted to question Victim
regarding her bias in the case. The trial court permitted Appellant’s counsel
to elicit testimony that Victim had two confrontations with Appellant between
the preliminary hearing and trial. The Commonwealth conceded this fact even
prior to Victim testimony,8 notifying the trial court of the impending
inconsistent testimony and placing on the record notice to Victim that she had
the right to be represented by an attorney during trial. Appellant’s counsel
was similarly permitted to argue that Victim changed her story as a result of
these confrontations and not for the reasons she explained during redirect
examination.
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8 As the trial court acted as fact-finder in this case, it learned of the
inconsistent testimony on multiple occasions.
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The trial court only prohibited Appellant’s counsel from asking Victim
about the details of the confrontation, which were of marginal relevance. This
evidence was also cumulative with respect to Victim’s alleged bias against
Appellant. Victim’s inconsistent testimony and the fact that she engaged in
two confrontations with Appellant between the preliminary hearing and trial
formed the core of Appellant’s bias claim. Based on our review of the certified
record, we are convinced that Appellant had ample opportunity to develop
these aspects of his defense. Hence, we conclude that the trial court did not
violate Appellant’s Confrontation Clause rights by limiting counsel’s cross-
examination of Victim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2018
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