Com. v. Harris, S. ( 2020 )


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  • J-S24028-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    SONNY HARRIS                               :
    :
    Appellant               :   No. 3765 EDA 2016
    Appeal from the Judgment of Sentence Entered November 7, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0006470-2011
    BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
    MEMORANDUM BY McLAUGHLIN, J.:                              Filed: March 17, 2020
    Sonny Harris appeals from the judgment of sentence entered following
    his conviction for harassment. Counsel has filed an Anders1 brief and a
    petition to withdraw as counsel. We affirm and grant counsel’s petition to
    withdraw.
    The trial court set forth the relevant facts and procedural history of the
    case as follows:
    Between January 1, 2009 and March 1, 2011 [Harris]
    engaged in a continued course of harassment against
    Complainant Phyllis Gibson [“Complainant”]. He loitered on
    her property and called her names after she repeatedly
    asked him to leave, threatened her, shot BB guns at a sign
    outside her bedroom window and threw firecrackers into her
    yard at night. Notes of Testimony, 11/8/2014 at 14, 41, 49.
    [Complainant] was forced to keep the lights off in her
    ____________________________________________
    *    Former Justice specially assigned to the Superior Court.
    1   Anders v. California, 
    386 U.S. 738
    (1967).
    J-S24028-19
    apartment and move to the back bedroom of her home due
    to her fear of [Harris]. [Harris] was arrested on March 3,
    2011 and charged with Stalking as a felony in the third
    degree (18 § 2709.1 (A)(1)), Harassment as a misdemeanor
    in the third degree (18 § 2709 (A)(4)) and related charges.
    Following a jury trial held December 5, 2014 through
    December 12, 2014 before the Honorable Carolyn Nichols,
    [Harris] was found guilty of the Harassment as a
    misdemeanor in the third degree. The charge of Stalking as
    a felony in the third degree was set for retrial as the jury
    was unable to reach a unanimous decision as to the Stalking
    charge only. [Harris] was found not guilty of the remaining
    charges.[2]
    On November 7, 2016 the Commonwealth argued a Motion
    to Enter Nolle Prosequi on the Stalking Charge and it was
    granted by the Honorable Mia Roberts Perez. On the same
    day, this court granted a Petition to file an appeal nunc pro
    tunc on the companion charges [Harris] was initially
    convicted of on December 12, 2014.[3]
    Trial Ct. Op., 6/14/18 at 1-2 (citations omitted).
    Harris filed the instant appeal on December 2, 2016, and a Pa.R.A.P.
    1925(b) statement on September 8, 2017. Appointed counsel filed an Anders
    brief and Harris filed a pro se response.
    ____________________________________________
    2   Harris chose to represent himself at trial.
    3 In light of the unique procedural posture of this case, this Court issued a rule
    to show cause as to why the appeal should not be quashed as interlocutory
    because the appeal appeared to have been taken from the order entering nolle
    prosequi on the stalking charge, rather than from the judgment of sentence.
    However, upon review of the complete docket, we agree with Harris that
    judgment had already been properly entered in this case, regarding his
    harassment conviction, and he properly appealed following Judge Perez’s
    reinstating his direct appeal rights nunc pro tunc. The nunc pro tunc appeal
    was proper because the trial court did not inform Harris of his appeal rights
    when it sentenced him on the other charges.
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    Counsel’s Anders Brief identifies three issues, which we set forth
    verbatim:
    1. The evidence was insufficient to support the conviction
    for harassment under 18 Pa.C.S.A. § 2709(a)(4).
    2. The trial court erred when it denied [Harris’s] pre-trial
    discovery motions to turn over full discovery including
    Brady materials that centered on phone records.
    3. [Harris] was denied due process and a fair trial under the
    Pennsylvania and United States Constitutions as a result of
    the misconduct of the prosecutor throughout the trial, and
    the trial court’s failure to take the appropriate corrective
    actions.
    Anders’ Br. at 10, 19, 22.
    Before we assess the substance of counsel’s Anders brief, we must first
    determine whether counsel’s request to withdraw meets certain procedural
    requirements. See Commonwealth v. Goodwin, 
    928 A.2d 287
    , 290
    (Pa.Super. 2007) (en banc). An Anders brief that accompanies a request to
    withdraw must:
    (1) provide a summary of the procedural history and facts,
    with citations to the record;
    (2) refer to anything in the record that counsel believes
    arguably supports the appeal;
    (3) set forth counsel’s conclusion that the appeal is
    frivolous; and
    (4) state counsel’s reasons for concluding that the appeal is
    frivolous. Counsel should articulate the relevant facts of
    record, controlling case law, and/or statutes on point that
    have led to the conclusion that the appeal is frivolous.
    Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa. 2009). Counsel must
    also provide a copy of the Anders brief to the client, and a letter that advises
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    the client of the right to “(1) retain new counsel to pursue the appeal; (2)
    proceed pro se on appeal; or (3) raise any points that the appellant deems
    worthy of the court’s attention in addition to the points raised by counsel in
    the Anders brief.” Commonwealth v. Orellana, 
    86 A.3d 877
    , 880
    (Pa.Super.   2014)    (citation   omitted).   If   counsel   has   satisfied   these
    requirements, we then conduct “a full examination” of the record “to decide
    whether the case is wholly frivolous.” Commonwealth v. Dempster, 
    187 A.3d 266
    , 271 (Pa.Super. 2018) (en banc) (quoting 
    Anders, 386 U.S. at 744
    ).
    Here, in the Anders brief, counsel provides a procedural and factual
    history of the case, with citations to the record, discusses the issues arguably
    supporting the appeal, and explains why counsel concludes those issues are
    frivolous. Anders Br. at 5-15. Counsel served a copy of the Anders brief upon
    Harris, and his letter to Harris advised Harris that he could raise any additional
    issues before this Court pro se or with private counsel. Petition to Withdraw
    as Counsel, filed November 5, 2018. The Anders brief satisfies the necessary
    requirements. We will therefore address the issues counsel has identified.
    The first issue counsel identifies in the Anders brief is a challenge to
    the sufficiency of the evidence supporting Harris’s harassment conviction.
    Counsel maintains that such a challenge would be frivolous because the
    Commonwealth presented “more than sufficient evidence” to support the
    conviction. We agree.
    “The standard we apply in reviewing the sufficiency of the evidence is
    whether viewing all the evidence admitted at trial in the light most favorable
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    to the verdict winner, there is sufficient evidence to enable the fact-finder to
    find every element of the crime beyond a reasonable doubt.” Commonwealth
    v. Miller, 
    217 A.3d 1254
    , 1256 (Pa.Super. 2019) (quoting Commonwealth
    v. Bradley, 
    69 A.3d 253
    , 255 (Pa.Super. 2013)). We review the evidence de
    novo, but do not substitute our weighing of the evidence for that of the fact-
    finder, who is free to believe all, part, or none of the evidence.
    Commonwealth v. Hall, 
    199 A.3d 954
    , 960 (Pa.Super. 2018), appeal
    denied, 
    206 A.3d 1028
    (Pa. 2019). So long as the prosecution presented
    evidence of each element of the crime, we will not find the evidence
    insufficient unless it is “so weak and inconclusive that as a matter of law no
    probability of fact may be drawn from the combined circumstances.” 
    Miller, 217 A.3d at 1256
    .
    A defendant may be convicted of harassment if the Commonwealth
    proves the defendant, “with intent to harass, annoy or alarm another …
    communicate[d] to or about [the complainant] any lewd, lascivious,
    threatening or obscene words, language, drawings or caricatures[.]” 18
    Pa.C.S. § 2709(a)(4). Further, it is well settled that “an intent to harass may
    be inferred from the totality of the circumstances.” Commonwealth v. Lutes,
    
    793 A.2d 949
    , 961 (Pa.Super. 2002).
    In this case, the trial court found Complainant’s testimony to be credible
    regarding Harris’s act of explicitly telling Complainant he wanted to kill her,
    saying, “I’m going to fuck you up. Not today, but I’m going to get you.” N.T.,
    12/8/14 at 41. Complainant also testified that Harris routinely sent her emails
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    and text messages containing threatening language, and she detailed those
    threats in her testimony. 
    Id. at 68-70.
    The jury thus had ample evidence upon
    which to conclude that Harris had communicated with Complainant using
    threatening language with the intent to harass, annoy, or alarm her. See 18
    Pa.C.S. § 2709(a)(4); 
    Lutes, 793 A.2d at 961
    . The sufficiency claim is
    frivolous.
    The second issue presented in counsel’s Anders brief concerns Harris’s
    contention that the trial court abused its discretion by denying his pre-trial
    discovery motion. Counsel finds this issue to be frivolous because the
    Commonwealth had already provided Harris the evidence he sought, his phone
    records, and in any event, Harris had access to his own phone records. We
    agree that Harris’s second issue is frivolous.
    “We review a trial court's grant or denial of a discovery request for an
    abuse of discretion.” 
    Lutes, 793 A.2d at 959
    . “An abuse of discretion is more
    than just an error in judgment and, on appeal, the trial court will not be found
    to have abused its discretion unless the record discloses that the judgment
    exercised was manifestly unreasonable, or the result of partiality, prejudice,
    bias, or ill-will.” 
    Id. (citation omitted).
    The Commonwealth must provide a defendant all evidence requested if
    it is material to the case. See Pa.R.Crim.P. 573(B). If the Commonwealth fails
    to disclose the information requested, a defendant may seek to compel the
    same via a discovery motion. See Pa.R.Crim.P. 573(A). However, if the
    defendant has already received the requested materials, it is within the trial
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    court’s discretion to deny a discovery motion seeking those same materials.
    See Commonwealth v. Davido, 
    106 A.3d 611
    , 646 (Pa. 2014). In the case
    sub judice, Harris received copies of his phone records prior to trial. N.T.,
    12/5/14 at 160-61. Thus, his contention that the trial court abused its
    discretion by denying his bid to obtain these records lacks a factual foundation
    and is frivolous. See 
    Lutes, 793 A.2d at 959
    ; 
    Davido, 106 A.3d at 646
    .
    The third issue presented in counsel’s Anders brief contains vague
    assertions of prosecutorial misconduct. Without citation to the record, counsel
    makes two broad claims of prosecutorial misconduct: (1) “Throughout trial the
    prosecutor [] solicited [sic] answers from witnesses through prejudicial
    information which should not have been permitted and were not relevant to
    the charges”; and (2) “Throughout the closing argument, the prosecutor
    argued facts not presented in evidence, misrepresented facts, vouched for the
    credibility of witnesses, and made argument to inflame the passions of the
    jury.” Anders Br.at 22-23.
    To begin, as both the trial court and counsel’s Anders brief emphasize,
    Harris failed to preserve these issues for appellate review because, although
    he made objections at trial, he did not request a mistrial or a curative
    instruction. “Even where a defendant objects to specific conduct, the failure
    to request a remedy such as a mistrial or curative instruction is sufficient to
    constitute waiver.” Commonwealth v. Sandusky, 
    77 A.3d 663
    , 670
    (Pa.Super. 2013) (citation omitted). Thus, we agree that these claims are
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    waived. See Commonwealth v. Sasse, 
    921 A.2d 1229
    , 1238 (Pa.Super.
    2007).
    In any event, the trial court reviewed the record and did not find any
    evidence of prosecutorial misconduct, and we have done the same and
    reached the same conclusion. Our standard of review of a claim of
    prosecutorial misconduct is limited to whether the trial court abused its
    discretion. Commonwealth v. Rivera, 
    939 A.2d 355
    , 357 (Pa.Super. 2007).
    “[P]rosecutorial misconduct is evaluated under the harmless error standard.”
    Commonwealth v. Cousar, 
    928 A.2d 1025
    , 1042 (Pa. 2007).
    A prosecutor’s statements in closing argument do not merit a new trial
    unless they had the “unavoidable effect” of “prejudic[ing] the jury, forming in
    their minds fixed bias and hostility toward the defendant so they could not
    weigh the evidence objectively and render a true verdict.” Commonwealth
    v. Jaynes, 
    135 A.3d 606
    , 615 (Pa.Super. 2016). The prosecution may employ
    oratorical flair in arguing its version of the case to the jury and may advance
    arguments and inferences so long as they are supported by the evidence. 
    Id. Moreover, the
    prosecutor may fairly respond to points defense counsel made
    in closing. 
    Id. In this
    case, our independent review of the record confirms what the
    trial court determined: that the record does not contain evidence of any
    misconduct by the prosecutor at trial that would have had the “unavoidable
    effect” of preventing the jury from rendering a “true verdict.” See 
    id. at 615.
    Hence, the third issue is frivolous.
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    Having addressed the issues raised in counsel’s Anders brief, we turn
    to the three issues Harris raised in his pro se response. Harris presents all
    three issues without developing any cogent argument and without citing any
    legal authority. Therefore, this Court’s ability to review Harris’s issues is
    significantly hampered and we could therefore find his issues waived. See
    Commonwealth v. Delvalle, 
    74 A.3d 1081
    , 1086-1087 (Pa.Super. 2013)
    (failure to develop argument or provide any legal authority results in the
    waiver of appellate issues); Pa.R.A.P., 2119(a) (appellant’s brief shall contain
    “such discussion and citation of authorities as are deemed pertinent”).
    Nevertheless, we will address the issues Harris presents in his pro se
    filing, as best as we can discern. See Branch Banking & Trust v. Gesiorski,
    
    904 A.2d 939
    , 942 (Pa.Super. 2006) (stating that “this [C]ourt is willing to
    liberally construe materials filed by a pro se litigant[.]” (citation omitted)). To
    the extent Harris intended to assert additional or different issues than those
    we have identified, those issues are waived.
    Harris’s first issue consists of a single paragraph of argument wherein
    he contends that the trial court issued a “bad” jury instruction as evidenced
    by the jury’s question, “Do we have to vote him guilty even if we all believe
    he is not guilty?” The jury asked no such question. Rather, it asked two
    questions: (1) “Do we have to all agree on the same verdict even if we think
    he’s not guilty?” and (2) “[I]f we can’t agree on one charge can we still deliver
    a verdict on the rest of them?” N.T., 12/12/14, at 4. In response, the court
    re-administered the jury instructions that in order to reach a verdict on a
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    J-S24028-19
    charge, the jury must be unanimous, but if the jury could not reach a
    unanimous verdict on one charge, it could nonetheless return a verdict on
    another charge. 
    Id. at 4-17.
    This was a proper instruction, and indeed, the
    jury returned with a “split” verdict. This issue lacks a basis in fact or law.
    In his second issue, Harris presents a rambling factual dissertation
    regarding discovery and ostensibly the telephone records counsel refers to in
    the second issue in the Anders brief. As noted above, Harris received such
    records in pre-trial discovery and had access to his own telephone records.
    Thus, as we concluded above, this issue is frivolous.
    In his last issue, it appears that Harris attempts to raise a claim
    regarding his bail. However, he fails to develop this issue in any
    comprehensible fashion and fails to indicate when or how he raised this claim
    before the trial court. The issue is thus waived and frivolous. See 
    Delvalle, 74 A.3d at 1086-1087
    ; Pa.R.A.P. 302(a)(“Issues not raised in the lower court
    are waived and cannot be raised for the first time on appeal”).
    Accordingly, because we conclude that the issues raised in both
    counsel’s Anders brief and Harris’s pro se response have no merit, and our
    independent review of the record has not uncovered any non-frivolous issue,
    we affirm the trial court’s judgment of sentence.
    Judgment of sentence affirmed. Petition to withdraw as counsel granted.
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    J-S24028-19
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/17/20
    - 11 -
    

Document Info

Docket Number: 3765 EDA 2016

Filed Date: 3/17/2020

Precedential Status: Precedential

Modified Date: 3/17/2020