Com. v. Archer, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTONIO D. ARCHER :
:
Appellant : No. 679 WDA 2020
Appeal from the Judgment of Sentence Entered February 12, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001740-2018
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED: MARCH 18, 2021
Appellant, Antonio D. Archer, appeals from the February 12, 2019
Judgment of Sentence entered in the Fayette County Court of Common Pleas
after a jury convicted Appellant of Terroristic Threats.1 Appellant challenges
several of the trial court’s evidentiary rulings as well as the discretionary
aspects of his sentence. Upon review, we affirm.
PROCEDURAL AND FACTUAL HISTORY
The relevant factual and procedural history is as follows. On or around
September 27, 2017, Fayette County Children and Youth Services (“CYS”)
caseworker Leigh Ann David, accompanied by college student Megan
Robinson, went to Appellant’s home to serve a Dependency Petition on
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2706(a)(1).
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Appellant and his wife (“Wife”). In her capacity as a CYS caseworker, Ms.
David had previously been to the home and met the family. When Ms. David
arrived at the home, two Pit Bull dogs were hanging out an open window and
barking. Wife came outside to meet Ms. David, and Ms. David served the
Petition on Wife. Appellant came outside, stood on the porch with one Pit
Bull by his side, screamed obscenities, directed Ms. David to leave his
property, and threatened to sic his dog on Ms. David. Ms. David immediately
left the property and contacted police, who subsequently arrested Appellant.
The Commonwealth charged Appellant with two counts each of
Aggravated Assault by Physical Menace, Recklessly Endangering Another
Person (“REAP”), and Terroristic Threats.2
On February 5, 2019, after hearing testimony from Ms. David,
Masontown Police Chief Joseph C. Ryan, and Appellant, a jury convicted
Appellant of one count of Terroristic Threats.3
On February 12, 2019, the trial court sentenced Appellant to a standard
range sentence of six to twenty-four months’ incarceration. Appellant filed a
timely Post-Sentence Motion for Modification of Sentence, averring that the
trial court imposed a harsh, severe, and excessive sentence at the top of the
standard range. The trial court denied the Motion on February 25, 2019.
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2 18 Pa.C.S. §§ 2702(a)(6), 2705, and 2706(a)(1), respectively.
3 Upon hearing an oral Motion from Appellant’s counsel, the trial court
dismissed one count of Aggravated Assault against Ms. Robinson because she
was not a CYS employee, which is an element of the offense. The jury
acquitted Appellant of the remaining charges.
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Appellant filed a Notice of Appeal on April 18, 2019, which this Court
subsequently quashed as untimely on June 5, 2019. On June 19, 2020, this
Court reinstated Appellant’s appeal rights nunc pro tunc after Appellant filed
a Post-Conviction Relief Act Petition alleging ineffective assistance of counsel
and a Motion to File Notice of Appeal Nunc Pro Tunc.
Appellant filed a timely appeal on July 9, 2020. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
ISSUES RAISED ON APPEAL
Appellant raises the following issues for our review:
1. Whether the court erred in failing to grant [counsel]’s objection
on the grounds of relevancy to the Commonwealth’s question
to [CYS] caseworker, [Ms.] David: “How did you feel when you
would hear these dogs or see these dogs?”
2. Whether the court erred in allowing [Ms.] David to testify as to
why CYS was involved with [Appellant]’s family?
3. Whether the court erred in failing to grant [counsel]’s objection
on the grounds of relevancy to the Commonwealth’s question
to Appellant: “Did you ever have a confrontation with CYS?”
4. Whether the court erred in failing to grant [counsel]’s objection
on the grounds of relevancy to the Commonwealth’s question
to Appellant: “What was the purpose of you having two Pit
Bulls?”
5. Did the court impose a harsh, severe, and manifestly
unreasonable and excessive sentence in light of the
circumstances surrounding the alleged incident?
Appellant’s Br. at 3.
Evidentiary Rulings
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In his first four issues, Appellant challenges several of the trial court’s
evidentiary rulings, which overruled counsel’s relevancy objections to portions
of Ms. David and Appellant’s testimony and allowed the jury to hear the
testimony. The admission of evidence is within the discretion of the trial court.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015). “An abuse of
discretion will not be found based on a mere error of judgment, but rather
occurs where the court has reached a conclusion that overrides or misapplies
the law, or where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will.” Id. An abuse of discretion by
the trial court, and a showing of resulting prejudice, constitutes reversible
error. Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012).
Instantly, Appellant avers that the trial court abused its discretion when
it allowed the Commonwealth to present irrelevant testimony to the jury that
had no probative value and was extremely prejudicial to Appellant.
Appellant’s Br. at 7. Appellant argues that the Commonwealth’s question
asking Ms. David how she felt when she saw the dogs intended to illicit
sympathy from the jury and had no probative value. Id. at 10. Appellant
contends that Ms. David’s testimony about why CYS was involved with
Appellant’s family had no probative value and was prejudicial to Appellant,
“paint[ing] Appellant as a bad person in the minds of the jury.” Id. Appellant
also asserts that the Commonwealth’s question regarding whether he ever
had a confrontation with CYS improperly implied that he had “some grudge”
with CYS and lacked probative value. Id. at 11. Finally, Appellant argues
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that the Commonwealth’s question asking Appellant what his purpose was in
having two Pit Bulls lacked probative value and implied to the jury that
Appellant had the dogs “for the purpose of terrifying other people with them,
while ignoring all of the other reasons why a person might want to keep two
[P]it [B]ulls.” Id.
Preliminarily, we must set forth the elements of the crimes the
Commonwealth charged Appellant with in order to evaluate whether the
admitted testimony was relevant. As stated above, the Commonwealth
charged Appellant with two counts each of Aggravated Assault by Physical
Menace, REAP, and Terroristic Threats. A person is guilty of Aggravated
Assault by Physical Menace if he attempts by physical menace to put a CYS
employee, while in the performance of duty, in fear of imminent serious bodily
injury. 18 Pa.C.S. § 2702(a)(6), (c)(35). A person commits the crime of
REAP if he “recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa.C. § 2705. Finally,
a person is guilty of Terroristic Threats if he communicates, either directly or
indirectly, a threat to “commit any crime of violence with intent to terrorize
another[.]” 18 Pa.C.S. § 2706(a)(1).
The overriding principle in determining if the trial court should admit
evidence involves “a weighing of the probative value versus prejudicial effect.
We have held that the trial court must decide first if the evidence is relevant
and, if so, whether its probative value outweighs its prejudicial effect.”
Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006). Generally, all
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relevant evidence is admissible. Pa.R.E. 402. “Evidence is relevant if it
logically tends to establish a material fact in the case, tends to make a fact at
issue more or less probable, or supports a reasonable inference or
presumption regarding the existence of a material fact.” Commonwealth v.
Minerd, 753 A.2d 225, 230 (Pa. 2000) (citation omitted); Pa.R.E. 401.
However, relevant evidence may be excluded “if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
The trial court explained why all of the above-referenced testimony was
relevant and probative:
Ms. David’s feelings when she heard and saw the dogs made a
fact at issue more or less probable: whether [Appellant] used his
dogs to indirectly communicate to others a threat to commit a
crime of violence.
This [c]ourt allowed Ms. David to testify as to why CYS was
involved with the Defendant’s family, because the testimony was
preliminary in nature and provided foundation: it established why
she was where she was when she saw what she saw.
This [c]ourt overruled [counsel]’s objection on the grounds of
relevance to the Commonwealth’s question to [Appellant]: “Did
you ever have a confrontation with CYS?” [] because the question
addressed [Appellant]’s state of mind at the time and therefore
ended to establish a material fact in the case: whether [Appellant]
intended to terrorize others.
This [c]ourt overruled [counsel]’s objection on the grounds of
relevance to the Commonwealth’s question to [Appellant]: “What
was the purpose of you having two [P]it [B]ulls?” [] because the
question addressed an issue that was within the scope of the case.
The [Appellant]’s purpose of owning two [P]it [B]ulls intended to
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establish a material fact: whether [Appellant] owned two [P]it
[B]ulls for the intended purpose of terrorizing others.
Trial Ct. Op., filed 10/20/20, at 2-3.
We agree with the trial court that the testimony challenged by Appellant
was relevant and probative. Upon review, we discern no abuse of discretion
with the trial court’s conclusion that the testimony was admissible, or more
probative than prejudicial. Accordingly, Appellant’s first four challenges fail.
Discretionary Aspects of Sentencing
In his fifth issue, Appellant avers that the trial court imposed a harsh,
severe, and manifestly excessive sentence. Appellant’s Br. at 12. Appellant
argues that the trial court should have sentenced him to a mitigated sentence
because of the nature of the offense, the circumstances surrounding the
offense, and the fact that being terrorized by two dogs is “very subjective
based on the person.” Appellant’s Br. at 14.
Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing are not automatically
reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136,
1144 (Pa. Super. 2001). Prior to reaching the merits of a discretionary
sentencing issue, we must determine: (1) whether appellant has filed a timely
notice of appeal; (2) whether the issue was properly preserved at sentencing
or in a motion to reconsider and modify sentence; (3) whether appellant’s
brief sufficiently addresses the challenge in a statement included pursuant to
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the
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sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Appellant complied with the first two requirements, but did not include
a separate Rule 2119(f) Statement in his Brief. The Commonwealth has not
objected to this defect and, thus, we decline to find that the defect is fatal.
Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010). We, thus,
proceed to consider whether Appellant has raised a substantial question for
our review.
Whether an appellant has raised a substantial question regarding
discretionary sentencing is determined on a case-by-case basis.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A
substantial question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Id. (citation and
quotation marks omitted).
Appellant has not identified which provision of the Sentencing Code or
fundamental norm underlying the sentencing process his sentence violates or
offends. His argument is that the trial court did not properly weigh allegedly
mitigating factors. Claims that the sentencing court did not adequately
consider mitigating factors generally do not raise a substantial question. See
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court
has held on numerous occasions that a claim of inadequate consideration of
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mitigating factors does not raise a substantial question for our review.”
(citation omitted); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.
2014) (“[W]e have held that a claim that a court did not weigh the factors as
an appellant wishes does not raise a substantial question.”). We conclude,
therefore, that Appellant has failed to present a substantial question in
challenging the discretionary aspects of his sentence and, thus, we lack
jurisdiction to review his claim.
In conclusion, the trial court did not abuse its discretion when it deemed
portions of testimony relevant and admissible. Moreover, because Appellant
has failed to present a substantial question, this Court has no jurisdiction to
review Appellant’s challenge to the discretionary aspects of his sentence.
Judgment of Sentence affirmed.
Judge Murray joins the memorandum.
Judge Strassburger did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2021
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