Com. v. Carroll, A., Jr. ( 2017 )

J-S19044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTIS CARNEL CARROLL JR. :
:
Appellant : No. 88 MDA 2016
Appeal from the Judgment of Sentence December 1, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001537-2015,
CP-36-MD-0000769-2015, CP-36-MD-0000797-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 29, 2017
Appellant, Artis Carnel Carroll, Jr., appeals pro se from the judgment
of sentence entered in the Court of Common Pleas of Lancaster County
following his conviction by a jury on one count of defiant trespass, 18
Pa.C.S.A. § 3503(b)(1)(i).1 We affirm.
____________________________________________
1
We note that, while the instant matter was pending, Appellant was twice
found to be in violation of his parole. With regard to the second violation,
which resulted in his parole being revoked and the imposition of a prison
term on July 12, 2016, Appellant filed an appeal, which is docketed in this
Court at 1256 MDA 2016. We shall address Appellant’s issues related to the
July 12, 2016, sentence entered after the revocation of his parole in a
separate decision.
*
Former Justice specially assigned to the Superior Court.
J-S19044-17
The relevant facts and procedural history are as follows: On March 27,
2015, Appellant was arrested and charged with one count of defiant trespass
on Millersville University (“Millersville”) property. The charge was docketed
at 36-CR-0001541-2015, and following his arraignment, Appellant was
released on bail with a condition that he not return to Millersville.
On March 31, 2015, Appellant sat for a class at Millersville, and police
arrested him on site. Appellant was charged with a second count of defiant
trespass, which was docketed at CP-36-CR-0001537-2015, and his bail was
revoked with regard to the prior charge.
The cases were consolidated in the trial court, and on December 1,
2015, Appellant proceeded to a jury trial with Assistant Public Defender
Phillip Michael as standby counsel. At the conclusion of the trial, on
December 1, 2015, the jury acquitted Appellant of the defiant trespass
charge in connection with the March 27, 2015, incident; however, the jury
convicted Appellant of one count of defiant trespass for the March 31, 2015,
incident.
Appellant proceeded immediately to a sentencing hearing, at the
conclusion of which the trial court imposed a sentence of time served to
twelve months in prison. Due to the amount of time Appellant had already
served awaiting trial, the trial court indicated Appellant would be paroled
immediately without petition. N.T., 12/1/15, at 420. Additionally, as a
condition of his sentence, the trial court directed Appellant to undergo a
-2-
J-S19044-17
mental health evaluation, pay a fine of $300.00, perform fifty hours of
community service, and “have absolutely no contact with any employee of
Millersville, [ ] have absolutely no contact with [Millersville] whatsoever.” Id.
at 421. The trial court clarified that if Appellant needed to communicate with
Millersville regarding any pending legal matters, he was permitted to have
contact only through Millersville’s legal counsel. Id. The trial court further
clarified that Appellant was to remain off of Millersville’s property. Id. at
421-22.
On December 15, 2015, Appellant, who was no longer in prison, filed a
pro se document entitled “Objection to Triple Jeopardy.” The trial court
treated this document as an untimely post-sentence motion and denied it.
On December 21, 2015, Appellant filed a timely pro se appeal from his
December 1, 2015, judgment of sentence. The trial court ordered Appellant
to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and on
March 21, 2016, the trial court filed a Pa.R.A.P. 1925(a) opinion.
Appellant presents the following “Statements of Questions Involved,”
which we set forth verbatim:
[1.] Did [the] Trial Court err and abuse its discretion by
excluding the audio recording from March 25, 2015, and the
video recording from March 26, 2015, without satisfying the
prerequisites of an oral communication Wiretap Violation claim?
[2.] Was the Appellant’s Fifth Amendment right to protection
from double jeopardy violation [sic] [?]
[3.] Did Millersville University violate the Appellant’s Fourteenth
Amendment right by suspending him before a Judicial Affairs
hearing?
-3-
J-S19044-17
[4.] After the jury acquitted the Appellant of the March 27, 2015,
trespass, does there remain any other evidence to support the
trespass conviction on March 31, 2015?
[5.] Was counsel ineffective in regards to not knowing the
recordings were obtain[ed] legally and by not turning over the
recordings to the Commonwealth as per [Appellant’s] request
and Judge Reinaker[’s] September 14, 2015, order?
[6.] Was the Appellant’s right to Due Process violated during the
process of when District Court 02-2-06 withdrew and reopen[ed]
the Summary Offense without notice and allegedly tried the case
without giving notice, to at the time of counsel, of trial date,
sentence, and appellate rights?
Appellant’s Brief, Statement of Questions Involved.2
Initially, we note that, although he has set forth six issues in his
“Statement of Questions Involved,” Appellant has presented an argument
permitting review as to a single claim; namely, whether the evidence was
sufficient to support his conviction of one count of defiant trespass for the
incident occurring on March 31, 2015. In all other respects, Appellant has
set forth no argument relating to the issue or, as in the case of his first issue
regarding the trial court’s exclusion of audio and video recordings, he has
set forth insufficient argument to permit meaningful review.3
____________________________________________
2
We note Appellant’s brief is not paginated.
3
As to Appellant’s challenge to the trial court’s exclusion of audio and video
recordings, Appellant’s entire appellate argument is as follows:
TRIAL COURT ERRED AND ABUSED ITS DISCRETION.-By
[d]enying the audio recordings and video recordings to be
introduce[d] as evidence. Especially the audio recording from
March 25, 2015, and video recording from March 26, 2015.
[Appellant] argues he recorded his whereabouts for protection
(Footnote Continued Next Page)
-4-
J-S19044-17
A case such as this one brings to mind several interrelated principles
which, while both obvious and already made plain by case law, are
nonetheless worth noting. Assuming an appellant states the intended legal
issues, this Court could, at least in theory, set forth the applicable law,
construct arguments on behalf of the appellant, analyze the relative merits
of the argument we have constructed, and reach a decision. However, doing
so would be improper. Commonwealth v. Fry, 41 A.3d 605, 613
(Pa.Super. 2012) (“It would be improper for this Court to act as counsel for
a party. That is, we must not write a party’s brief and develop the analysis
necessary to support the party’s position.”) (citations omitted).
Additionally, while we acknowledge Appellant has filed this appeal pro
se, we note the following:
_______________________
(Footnote Continued)
against the foreseen false allegations, and the people in the
recordings have no expectation to privacy. The recordings were
done in a place open to the public. [Appellant] could not
reference the recordings to the Jury in any way. The recordings
are evidence that proves Millersville University gave [Appellant]
a disciplinary record without due process because he is asking
for his Student Records. The recordings also prove [Appellant]
never preached [sic] the peace and that Millersville University
Police Department is corrupt.
Appellant’s Brief (bold in original). As is evident, Appellant has not
presented a coherent argument with citation to relevant authority.
Accordingly, we decline to address this issue further. See Commonwealth
v. Miller, 721 A.2d 1121, 1124 (Pa.Super. 1998) (“When issues are not
properly raised and developed in briefs,...a court will not consider the merits
thereof.”) (citations omitted).
-5-
J-S19044-17
While this Court is willing to liberally construe materials
filed by a pro se litigant, we note that Appellant is not entitled to
any particular advantage because [he] lacks legal training. As
our Supreme Court has explained, any layperson choosing to
represent [himself] in a legal proceeding must, to some
reasonable extent, assume the risk that [his] lack of expertise
and legal training will prove [his] undoing.
Consequently, [w]e decline to become the appellant’s
counsel. When issues are not properly raised and developed in
briefs...a Court will not consider the merits thereof.
Commonwealth v. Greenwalt, 796 A.2d 996, 997 (Pa.Super. 2002)
(quotation and quotation marks omitted). See Wilkins v. Marsico, 903
A.2d 1281, 1284 (Pa.Super. 2006) (holding that, although this Court is
willing to liberally construe materials filed by a pro se litigant, pro se status
confers no special benefit upon the appellant). Thus, while we are not
insensitive to the fact Appellant is proceeding pro se, we find all of his issues
to be waived, with the exception of his issue related to the sufficiency of the
evidence supporting his conviction.
Appellant contends the evidence was insufficient to convict him of
defiant trespass for the incident occurring on March 31, 2015. Specifically,
he alleges (1) there is insufficient evidence that Appellant was given notice
of a suspension from Millersville, and (2) the jury’s verdict is improperly
inconsistent.
When examining the sufficiency of the evidence,
the standard we apply...is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the factfinder to find every
element of the crime beyond a reasonable doubt. In applying
[this] test, we may not weigh the evidence and substitute our
-6-
J-S19044-17
judgment for the fact-finder. In addition, we note that the facts
and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the factfinder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all the evidence actually received must be considered. Finally,
the [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. Houck, 102 A.3d 443, 448 (Pa.Super. 2014) (citations
omitted).
A person commits the offense of defiant trespass, “[i]f knowing that he
is not licensed or privileged to do so, he enters or remains in any place as to
which notice against trespass has been given by actual communication to
the actor.” 18 Pa.C.S. § 3503(b)(1)(i). Therefore, “in order to establish a
violation it is necessary to prove that [Appellant]: 1) entered or remained
upon property without a right to do so; 2) while knowing that he had no
license or privilege to be on the property; and 3) after receiving direct or
indirect notice against trespass.” Commonwealth v. Namack, 663 A.2d
191, 194 (Pa.Super. 1995) (citations omitted). Additionally, we note that
the “crime of defiant trespass thus includes an element of intent or mens
rea. This element of intent, like every other element of the crime, must be
proven beyond a reasonable doubt if the conviction is to survive a challenge
to the sufficiency of the evidence.” Id. (citations omitted).
-7-
J-S19044-17
With regard to the consistency of verdicts, we have previously stated
that:
[c]onsistency in verdicts in criminal cases is not necessary. This
Court has stated, [w]hen an acquittal on one count in an
indictment is inconsistent with a conviction on a second count,
the court looks upon [the] acquittal as no more than the jury's
assumption of a power they had no right to exercise, but to
which they were disposed through lenity. Thus, this Court will
not disturb guilty verdicts on the basis of apparent
inconsistencies as long as there is evidence to support the
verdict.
Commonwealth v. Swann, 635 A.2d 1103, 1104 (Pa.Super. 1994)
(citations, quotation marks, and quotations omitted). Moreover, inconsistent
verdicts “are not considered mistakes and do not constitute a basis for
reversal.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.Super.
2015) (quotation omitted). Further, as our Supreme Court has held: “a[n]
acquittal cannot be interpreted as a specific finding in relation to some of the
evidence,” and a “long line of cases from both [the Pennsylvania Supreme]
Court and the United States Supreme Court...unequivocally permit
inconsistent jury verdicts and prohibit drawing inferences from a jury's
verdict of acquittal.” Commonwealth v. Moore, 628 Pa. 103, 103 A.3d
1240, 1250 (2014).
In the case sub judice, in addressing Appellant’s sufficiency claim, the
trial court aptly indicated the following:
Presently, the cases against Appellant were a consolidation
of two dockets that were based on two separate incidents
occurring four days apart. Testimony established that the defiant
trespass incident underlying docket number 1541-2015, for
-8-
J-S19044-17
which Appellant was acquitted, occurred on March 27, 2015,
when Appellant went to Millersville for a scheduled meeting with
the director of judicial affairs. At that meeting, Appellant was
told he was suspended from school and he was served with a no-
trespass letter.[4] Following the meeting, while being escorted
out of the director’s office by Millersville police, Appellant
repeatedly stated he was not going to comply with the no-
trespass letter and refused to leave campus. Thus, Appellant
was arrested for defiant trespass.
The defiant trespass at docket number 1537-2015, for
which Appellant was convicted and is now appealing, occurred on
March 31, 2015. On that date, while still suspended from
Millersville and prohibited from being on campus, Appellant re-
appeared on campus and was arrested for trespassing....[T]here
was sufficient evidence to support Appellant’s conviction for
defiant trespass at 1537-2015, notwithstanding Appellant’s
acquittal on [the defiant trespass charge at docket number]
1541-2015.10
___________________________________________________
10
[T]he Commonwealth presented overwhelming evidence
to establish that Appellant entered onto Millersville property on
March 31, 2015, after being given notice against trespass by
actual communication on March 27, 2015, knowing he did not
have permission from an authorized person to enter onto
Millersville property on March 31, 2015, thus defying an order
personally communicated to him by an authorized person not to
return to Millersville. As such, each material element of the
crime of defiant trespass was proven beyond a reasonable doubt
[as to the March 31, 2015, incident.] See 18 Pa.C.S.A. §
3503(b)(1)(i).
Trial Court Opinion, filed 3/21/16, at 7-8 (citations to record and footnote
omitted) (footnote added). We find no error in the trial court’s analysis and
____________________________________________
4
On March 10, 2015, Appellant became angry and disruptive when he did
not receive records he was seeking from Millersville’s Registrar’s Office.
Appellant was prohibited from returning to the Registrar’s Office; however,
he continued to return to the Office, which resulted in the meeting and
suspension at issue. See Trial Court Opinion, filed 3/21/16, at 1 n.2.
-9-
J-S19044-17
agree that the evidence was sufficient to sustain Appellant’s conviction for
defiant trespass docketed in the lower court at CP-36-CR-0001537-2015.5, 6
For all of the forgoing reasons, we affirm Appellant’s December 1,
2015, judgment of sentence.7
____________________________________________
5
With regard to Appellant’s ineffective assistance of trial counsel claim,
even if he had properly developed the claim on appeal, we note that we
generally defer such claims without prejudice to the appellant’s right to raise
the issue in a collateral attack under the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Arrington, 624 Pa. 506,
86 A.3d 831 (2014).
6
Although not included in his “Statement of Questions Involved,” Appellant
presents the following undeveloped claim in the argument portion of his
brief:
CHALLENGE TO DISCRETIONARY ASPECT OF SENTENCE
Trial court imposed an illegal and unconstitutional sentence
which is unwaivable. Sentencing [Appellant] to the maximum
for an [sic] misdemeanor in the third degree after he already
served more than the sentencing guidelines call for with
aggravated factors. The mental health evaluation was offensive
and inappropriate, it’s a violation of [Appellant’s] right to privacy
and reputation. There is no evidence from March 31, 2015, to
support the Commonwealth suggesting, and the Court ordering,
a mental health evaluation, [Appellant] was simply going to class
under a[n] unlawful suspension as he did the previous day with
no problem.
Appellant’s Brief (bold in original). As is evident, Appellant has not
presented a coherent argument with citation to relevant authority, and thus,
we decline to address his claim to the extent it challenges the discretionary
aspects of sentencing. See Miller, supra. Further, we note that there is no
indication that Appellant’s sentence was illegal. 18 Pa.C.S.A. § 1104
(indicating the maximum statutory sentence for defiant trespass, which is a
misdemeanor of the third degree, is one-year in prison).
7
On February 18, 2016, Appellant filed in this Court a pro se “Application for
Emergency Relief” in which he sought an order from this Court permitting
(Footnote Continued Next Page)
- 10 -
J-S19044-17
Affirmed; Appellant’s Application for Emergency Relief filed on
February 18, 2016, is DENIED; Appellant’s Application for Writ of Mandamus
filed on June 14, 2016, is DENIED; Appellant’s Application for Relief filed on
February 27, 2017, is DENIED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
_______________________
(Footnote Continued)
him to communicate with Millersville for unspecified reasons. We deny the
application.
On June 14, 2016, Appellant filed a pro se “Application for Writ of
Mandamus” requesting we direct his immediate release from prison for
unspecified crimes. We deny this application.
On February 27, 2017, Appellant filed in this Court a pro se
“Application for Relief” in which he alleged, inter alia, that the trial court had
no jurisdiction in this case. We deny this application.
- 11 -