Com. v. Anderson-Myles, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ABDEL ANDERSON-MYLES :
:
Appellant : No. 3322 EDA 2019
Appeal from the Judgment of Sentence Entered August 22, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003553-2015
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 02, 2020
Abdel Anderson-Myles appeals from the judgment of sentence, entered
in the Court of Common Pleas of Delaware County, following his conviction
after a nonjury trial of two counts of indecent assault,1 and one count each of
rape,2 aggravated indecent assault,3 involuntary deviate sexual intercourse—
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3126(a)(1).
2 18 Pa.C.S.A. § 3121(a)(1).
3 18 Pa.C.S.A. § 3125(a)(1).
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forcible compulsion,4 corruption of minors,5 unlawful restraint—serious bodily
injury,6 and false imprisonment.7 Upon careful review, we affirm.
The victim in this matter, A.P., who was 17 years old at the time of the
incident, testified that Anderson-Myles raped her at his home in Upper Darby
on February 17, 2015. See N.T. Trial, 12/28/17, at 7, 9, 13. A.P. stated that
she met Anderson-Myles on Instagram and had known him for approximately
two to three weeks prior to the incident. Id. at 8, 10. A.P. testified that her
only previous interaction with Anderson-Myles had been through texting or
messaging on Instagram and that she had never met him in person prior to
February 17. Id. On that date, A.P. stated that Anderson-Myles suggested
they meet at his house. A.P. took a bus to his neighborhood; Anderson-Myles
met her at the bus stop and the two went to his house together. Id. at 13.
A.P. testified that, as she and Anderson-Myles arrived at the residence,
Anderson-Myles’ father was just leaving to go to the store. Id. at 14. She
heard the sounds of a video game, “like somebody was upstairs.” Id. A.P.
and Anderson-Myles sat down “right next to each other” on a two-seat couch,
and he turned on Netflix. Id. at 16.
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4 18 Pa.C.S.A. § 3123(a)(1).
5 18 Pa.C.S.A. § 6301(a)(1)(i).
6 18 Pa.C.S.A. § 2902(a)(1).
7 18 Pa.C.S.A. § 2903(a).
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As the two watched Netflix, they “sat a little closer to each other, [and]
got comfortable.” Id. at 17. A.P. testified that, at that point, Anderson-Myles
“tried to come on to [her]” and aggressively touched her. Id. He touched
her inner-thigh area and then attempted to kiss her, id., at which point she
half-heartedly pushed him away. Id. at 19 (“Once he tried to kiss me and
then you know how you reject someone but you don’t fully[,] like[,] push them
. . . but you, you know, you’re still pushing away.”). A.P. testified that
Anderson-Myles then stood up, pulled out his penis and “forced [her] to suck
it” while pulling on her hair. Id. at 20. Anderson-Myles then pushed her face
into the couch, causing A.P.’s contact lenses to fall out. Id. at 22. He then
pulled her leggings down and placed his penis in her vagina. Id. at 23.
When Anderson-Myles finished, A.P. stated that she pulled her leggings
up and went into the kitchen to put her contact lenses back in her eyes. Id.
at 25. A.P. testified that Anderson-Myles told her she “better not . . . tell
anyone.” Id. at 26. He also mentioned that his brother was upstairs and had
heard everything. Id. When A.P. went to leave Anderson-Myles’ house to go
to the store, he insisted on accompanying her and followed her around the
store while she shopped and checked out. Id. at 27-29. As she left the store,
he continued to follow her. Id. at 29. A.P. testified that she then saw her
bus coming, so she ran to catch it. Id.
After A.P. arrived home, at approximately 5:30 p.m. on the 17th, she
told her mother what had happened. Id. at 30. Her mother did not have a
car, so they waited for her grandfather to arrive, at which time he took A.P.
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to the hospital. Id. She subsequently gave a statement to police after
hospital staff encouraged her to do so. Id. at 32.
Anderson-Myles’ grandmother, Joan Marie Patterson, testified on his
behalf at trial. Patterson testified that she first met A.P. when A.P. visited
Patterson’s daughter’s house with Anderson-Myles. N.T. Trial, 3/9/18, at 7.
However, Patterson testified that she “didn’t really know her until she came
to [Patterson’s] house on a Sunday.8 Id. at 7-8. Patterson testified that, on
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8 It is unclear, based on Patterson’s responses to counsel’s questioning,
whether she met A.P. before or after the incident giving rise to the charges in
this matter. She initially testified that she met A.P. “about two years ago.”
N.T. Trial, 3/9/18, at 7. Defense counsel subsequently attempted to clarify
the timeline as follows:
Q: Did you see [A.P.] at your daughter’s house prior to any
[c]ourt proceedings or anything that started the [c]ourt
proceeding?
A: No. Prior, no. Not prior, no.
Id. at 12. Later, on cross-examination, Commonwealth counsel again sought
to clarify the issue:
Q: So I just want to clarify a few things that you just said.
A: Okay.
Q: [Defense counsel] had just said that you—I’ll just start over.
So, the first time that you saw [A.P.,] was that before or after the
first time you went to [c]ourt?
A: First time—no, it was the first—we never had went to [c]ourt
then.
Q: We hadn’t gone to [c]ourt yet?
A: No.
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that occasion, A.P. acted “like she didn’t want to be seen and kept her coat on
. . . like she felt uncomfortable.” Id. at 8. Later, while Patterson was making
dinner, A.P. and Anderson-Myles went upstairs, where A.P. came on to
Anderson-Myles and took off her clothes. Id. at 9. Patterson stated that she
“saw her[,] like[,] halfway clothed, she was almost clothed and then[,] like[,]
she was lying in the bed and I pulled the blanket up and she had no underwear
on.” Id. Patterson testified that she then asked A.P. to leave and A.P. got
angry with her. Id. at 9-10. Patterson stated that she saw A.P. one more
time at her daughter’s house, which “wasn’t too long after [Patterson] threw
her out” of her house. Id. at 12.
Tracy Nicole Mamadou, Anderson-Myles’ mother, also testified on his
behalf. She stated that A.P. was one of her son’s friends and that A.P. “visited
[Mamadou’s] house before and we all went out before.” Id. at 25. Mamadou
testified that she had met A.P. on three occasions prior to the incident in
question. Id. at 25. The first time she met A.P., Mamadou took her and
Anderson-Myles to the movies. Id. at 26. On their second meeting, A.P.
“came to [Mamadou’s] house with a friend and did [Mamadou’s] daughter’s
hair[.]” Id. at 26. On their third meeting, A.P. came to visit Anderson-Myles
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Q: Okay. That time, you had said was two years ago?
A: Maybe it was two, could have been more, I don’t—
Q: Okay. I gotcha, gotcha.
Id. at 14.
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at Mamdou’s home. Id. Mamadou testified that Anderson-Myles knew A.P.
from school. Id. at 27.
Finally, Gregory Garner, a close friend of Anderson-Myles, testified for
the defense. Id. at 31. Garner testified that he attended Upper Darby High
School with Anderson-Myles and knew A.P. through him. Id. Garner testified
that he had seen them together three times and each time “they were touchy,
you know, all up on each other. I seen [sic] them kiss multiple times.” Id.
at 33. Garner had also seen A.P. in the hallways at Upper Darby High School.
Id. at 36.
Anderson-Myles was arrested and charged with the above-named
offenses. He opted for a nonjury trial,9 after which the court convicted him of
all charges. On August 22, 2019,10 the court sentenced Anderson-Myles to an
aggregate term of 13 to 26 years’ incarceration. Anderson-Myles was also
designated a Tier III lifetime registrant under the Sexual Offender Registration
and Notification Act. He was deemed not to be a sexually violent predator.
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9The trial in this matter was bifurcated. The court heard testimony from the
Commonwealth’s sole witness, A.P., on December 28, 2017. The defense
presented its witnesses on March 9, 2018. After taking the matter under
advisement, the court rendered its verdict on March 19, 2018.
10 Sentencing was initially scheduled to be held on June 4, 2019. However,
Anderson-Myles failed to appear, and the court issued a bench warrant for his
arrest. Anderson-Myles was eventually apprehended on August 19, 2019, and
sentencing was held three days later.
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Anderson-Myles filed a post-sentence motion for reconsideration of
sentence, which the court denied. On November 18, 2019, he filed a timely
notice of appeal. On November 20, 2019, the trial court ordered Anderson-
Myles to file, within 20 days, a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On December 10, 2019, Anderson-Myles’ then-
counsel filed a statement, pursuant to Rule 1925(c)(4), of his intent to file a
brief pursuant to Anders11 and to seek permission to withdraw as counsel.
Accordingly, the trial court did not issue a Rule 1925(a) opinion.
Subsequently, Anderson-Myles retained private counsel, who entered
his appearance before this Court12 and filed an advocate’s brief raising the
following claim:
Whether [Anderson-Myles’] case should be remanded to the [trial]
court based on [after--]discovered evidence on social media
wherein the complainant stated “that judge and [district attorney]
was dumb enough to believe me” and that she filed a complaint
against [Anderson-Myles] because she was a jilted lover?
Brief of Appellant, at 2.
Anderson-Myles’ claim is based on an Instagram conversation between
his close friend, Garner, and A.P., which occurred a few days after Anderson-
Myles was convicted. Garner provided an undated statement, which is
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11 Anders v. California, 386 U.S. 738 (1967).
12The Delaware County Office of the Public Defender withdrew its appearance
on Anderson-Myles’ behalf.
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contained in the reproduced record submitted by Anderson-Myles and reads,
in relevant part, as follows:
Within a few days after [Anderson-Myles] had been convicted,
[A.P.] Instagrammed me. The attached Instagram posts reflect
the conversation I had with her. Basically, [A.P.] said that she
had [Anderson-Myles] arrested because he left her for another
woman. I responded that it was wrong for her to make up a lie
and say that [Anderson-Myles] had raped her and she responded:
“IDGAF [I don’t give a fuck] it is what it is and that Judge
and DA was dumb enough to believe me.”
(emphasis added). She also said:
“When he in jail and get convicted, Ima be like... yaw some
clown ass niggas.”
It is clear that she was trying to rub in my face that she was able
to get my good friend convicted and basically said that there was
nothing I could do about it.
After receiving this Instagram, I emailed Howard Anmuth,
Esquire, [Anderson-Myles’] trial attorney[,] to tell him I just
received this Instagram. I never heard back from him.
Garner Statement, at 1-2. Anderson-Myles asserts that this evidence reveals
A.P.’s motive for falsifying her accusation against him and, “when considered
along with other evidence not presented at trial, provides a compelling basis
for the grant of a new trial.” Brief of Appellant, at 18.
The “other evidence not presented at trial” consists of two text
messages, allegedly sent by A.P., that Anderson-Myles was aware of and
communicated to trial counsel at the time of trial. The first was purportedly
sent to Anderson-Myles’ mother, Tracey Mamadou, on April 15, 2016, and
reads as follows:
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Hey miss Tracey this [is A.P.] just tell ur fucking son to leave that
bitch and choose me and I’ll stop with all this if not I make sure
[Anderson-Myles] goes and rot in fucking jail . . . tell him to text
this number.
Brief of Appellant, at 12 (ellipses in original).
In his brief, Anderson-Myles describes the second text message, and its
attendant circumstances, as follows:
[A.P.] also had contacted Isaiah Gray, a friend of [Anderson-
Myles], [a fact] which was apparently unbeknownst to A.P. While
Mr. Gray cannot pinpoint the exact date of their communication,
based upon his age and his recollection that it happened before
the second trial date, it appears to have occurred sometime
between February 2, 2019, his 24th birthday[,] and the next trial
date, which was March 9, 2019.[13] The sum and substance of
their conversation is attached [in the reproduced record].
The critical part of this exchange occurred after they exchanged
pleasantries, including their ages, and where they lived. In
response to the fact that Gray said he lived in Lansdowne, [A.P.]
stated:
“I used to talk to some cornball ass nigga around there.”
After engaging in other small talk, [A.P.] wrote:
“yeah but the nigga I talked around there name was Abdel
I love him and all that but he had the nerve to cheat on me
multiple times then fuck my friend so I got his ass caught
up and lied to the cops about him raping me. Can you
believe . . . that shit . . . plus he did me dirty lma [sic] a lot
of other ways also what goes around comes around[.]
Id. at 13 (ellipses in original).
In his brief, Anderson-Myles’ counsel states the following:
While [c]ounsel has not included a [s]tatement from Mr.
Anderson-Myles about communicating these matters to [trial]
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13The second half of Anderson-Myles’ bifurcated trial actually occurred on
March 9, 2018.
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counsel, he has related to [appellate c]ounsel that the text to his
mother and the Instagram repartee between [A.P.] and Mr. Gray
were communicated to [trial] counsel[,] who chose neither to
confront [A.P.] with nor present them at trial. Because [c]ounsel
was sick for nearly a month in early April, is now working part-
time and the fact that Mr. Anderson-Myles has been quarantined
because he apparently tested positive for coronavirus, [c]ounsel
has not obtained a [s]tatement from him in time to include in the
[r]eproduced [r]ecord, but has proffered his conversation with Mr.
[Anderson-]Myles instead.
Brief of Appellant, at 14 n.5 (citation to reproduced record omitted).
Anderson-Myles now seeks a new trial based on after-discovered
evidence—specifically, A.P.’s Instagram communication with Garner.
Pennsylvania Rule of Criminal Procedure 720(C) requires that “[a] post-
sentence motion for a new trial on the ground of after-discovered evidence
must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C)
(emphasis added). “Accordingly, after-discovered evidence discovered during
the post-sentence stage must be raised promptly with the trial judge at the
post-sentence stage; after-discovered evidence discovered during the direct
appeal process must be raised promptly during the direct appeal process, and
should include a request for a remand to the trial judge[.]” Id., comment
(emphasis added).
Here, it appears from the available record that trial counsel was made
aware of the after-discovered evidence in question—the Instagram message
from A.P. to Gregory Garner—shortly after Anderson-Myles was convicted on
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March 19, 2018, and well in advance of his sentencing on August 22, 2019.14
Despite being informed of this potentially significant and exculpatory
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14 Although unclear, it seems possible that counsel was in possession of this
information even before the trial court announced its verdict on March 19,
2018. In court on that date, immediately after the trial court announced its
verdict, the following exchange occurred:
[DEFENSE COUNSEL]: Your Honor, at this point in time, I am
going to notify the Court that I am going to have a post-trial
motion for new evidence that was brought to my attention after
the final testimony was given and the new evidence came, I guess,
to a witness after that time period, but prior to the verdict.
THE COURT: All right.
[DEFENSE COUNSEL]: So I have to make a post-trial motion for
that, Your Honor.
THE COURT: And that would be to another [j]udge or to me?
[DEFENSE COUNSEL]: May I confer with counsel?
THE COURT: Yes.
[DISTRICT ATTORNEY]: It is—for a second. It is so new that I
think Howard and I should probably review it in full and get some
type of a way that we can get it onto paper. At this particular
point, I think it would probably go to Your Honor even though you
were the fact finder, there’s no way that you’d be prejudiced at
this particular point if you’re—if you use the information after the
decision was made. Although, I’ll still—we’ll still confer with our
Appeals Department. We still have to find a way to get this
information.
THE COURT: Okay. Because I don’t—
[DISTRICT ATTORNEY]: I still have not yet seen it.
THE COURT: —I do not want this—the [d]efendant to prejudiced
in any way. So if it’s something that needs to be, you know,
briefed—
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evidence, trial counsel did nothing with the information and, most importantly,
failed to promptly file with the trial judge a motion for a new trial on the basis
of after-discovered evidence as required by Rule 720(C). Accordingly, we are
constrained to find Anderson-Myles’ claim waived on appeal.15
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/20
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[DISTRICT ATTORNEY]: And we may, we may.
N.T. Trial, 3/19/18, at 6-7.
While counsel did not specify the nature of the after-discovered evidence in
question, it is reasonable to infer he was referring to the social media
exchange between A.P. and Garner that is the subject of Anderson-Myles’
instant claim.
15We can only speculate as to why, despite being aware of their existence at
the time of trial, trial counsel chose not to utilize the messages allegedly sent
by A.P. to Anderson-Myles’ mother and Isaiah Gray to impeach A.P.’s
testimony at trial. However, the proper venue for Anderson-Myles to
challenge counsel’s stewardship of his defense lies in proceedings under the
Post Conviction Relief Act. See 42 Pa.C.S.A. §§ 9541-9546.
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