Com. v. Graham, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROLAND GRAHAM :
:
Appellant : No. 2316 EDA 2022
Appeal from the Judgment of Sentence Entered September 7, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000634-2020
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 21, 2023
Appellant, Roland Graham, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for attempted murder, aggravated assault, carrying a firearm
without a license, carrying a firearm on public streets in Philadelphia, and
possessing instruments of crime (“PIC”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows:
On March 6, 2016 at approximately 5:00 p.m., [Appellant]
was eating at Church’s Chicken on North Broad Street and
West Erie Avenue in North Philadelphia. Lemuel Meyers and
his brother, Josiah Meyers, were working at Church’s
Chicken that evening. Lemuel went into the dining room to
clean tables. As he was spraying a table near [Appellant],
mist from the cleaning solution wafted towards [Appellant].
[Appellant] became upset and told Lemuel that he should
not be cleaning tables around people who were eating.
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1 18 Pa.C.S.A. §§ 901(a), 2502, 2702, 6106, 6108, and 907, respectively.
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Lemuel apologized, but [Appellant] cursed at him and an
argument ensued. [Appellant] left the restaurant but was
still arguing with Lemuel from outside. Lemuel took his
uniform shirt off and prepared to exit the store to fight
[Appellant], but he was stopped by a customer. At that
point, Josiah, who was working in the kitchen, became
aware of the altercation between Lemuel and [Appellant].
Josiah ran into the dining room and assisted the customer
in restraining Lemuel. [Appellant] continued to yell at
Lemuel and told him to “come outside,” but Lemuel put his
hands up and began to walk away. [Appellant] then
reentered the store with a gun and, apparently mistaking
Josiah for Lemuel, shot Josiah twice. [Appellant] then
paused, called Josiah a “mother-fucker,” and shot him twice
more as he was on the ground. Josiah was struck in the
neck, shoulder, arm, and chest. [Appellant] grabbed his
food and calmly exited the restaurant.
Upon their arrival at the scene, detectives collected video
surveillance footage from the restaurant, which showed the
incident in its entirety. Police made a compilation of the
surveillance footage and sent it to local news stations to
obtain tips on the suspect’s identity. Police immediately
began receiving tips from the public and, based on those
tips, prepared a photo array. The photo array was shown
to both Josiah and Lemuel. They both identified [Appellant]
as the shooter.
On the morning of March 10, 2016, SEPTA police officers
Michael Arlen and Thomas Messer, responding to a radio
call, found and arrested [Appellant] in the back of a SEPTA
bus. [Appellant] first identified himself to the officers as
Roland Brown before identifying himself as Roland Graham.
(Trial Court Opinion, filed 11/16/22, at 2-3) (internal footnote and record
citations omitted).
The court scheduled trial for June 2022. At the time, the Philadelphia
County Sheriff’s Department would not transport prisoners to court without a
negative COVID-19 test. (See N.T. Trial, 6/22/22, at 3). Pursuant to this
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policy, prisoners who refused testing would not receive transportation. The
court was aware of the policy and determined that it would proceed to trial
without Appellant if he refused to take a COVID-19 test on the date scheduled
for trial.2 (See Court Exhibit 1, Letter, dated 6/10/22). To confirm that
Appellant was aware of the consequences of a refusal, defense counsel sent a
letter to Appellant at the county jail on June 10, 2022. (See id.)
At the direction of the court, counsel also attempted to visit Appellant
at the county jail on June 21, 2022. (See N.T. Trial, 6/22/22, at 4). Appellant,
however, refused the visit.3 (Id. at 5). In response, counsel asked a
corrections officer to telephone Appellant’s unit, speak with Appellant, and
inform him that “this case would proceed if he refused the COVID test.” (Id.)
With counsel present, the officer telephoned Appellant and informed him “that
this trial would be proceeding without him should he refuse the COVID test
tomorrow[.]” (Id.)
Trial commenced on June 22, 2022, but Appellant refused to take the
COVID-19 test that morning and failed to appear. At the start of the
proceedings, the court made a specific finding that Appellant’s “refusal to take
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2 The court subsequently noted that Appellant refused COVID-19 testing prior
to the last three pretrial listings where the Sheriff’s Department had been
scheduled to transport Appellant to court. (See N.T. Trial, 6/22/22, at 3).
3Counsel informed the court that he had “been up to see [Appellant] before,”
and Appellant had “never refused” counsel’s visits. (See N.T. Trial, 6/22/22,
at 3).
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the test and not be brought down was an intentional act to voluntarily absent
himself from this trial.” (Id. at 6). The court also directed defense counsel
to communicate with Appellant and notify him that trial had begun, and
Appellant would lose the opportunity to testify if he did not appear. (Id. at
8). To comply with this directive, counsel sent another letter to Appellant.
(See Court Exhibit 2, Letter, dated 6/22/22). The letter reiterated that
Appellant would need to comply with the COVID-19 testing policy if he wished
to participate in the trial. (Id.)
Despite these warnings, Appellant failed to appear for any of the trial.
(See N.T. Trial, 6/23/22, at 3; N.T. Trial, 6/24/22 at 3). The jury convicted
Appellant of all counts on June 24, 2022. On September 7, 2022, the court
imposed an aggregate sentence of twenty-three and one-half (23½) to forty-
seven (47) years’ incarceration. Appellant did not file post-sentence motions.
Appellant timely filed a notice of appeal on September 8, 2022. On
September 9, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant timely filed
his Rule 1925(b) statement on September 13, 2022.
Appellant now raises the following issues for this Court’s review:
Whether the trial court erred in conducting [Appellant’s] trial
in absentia while he was being held in custody?
A. [Appellant’s] refusal to submit to a COVID test
prior to trial should not be deemed a willfully
failed to appear.
B. [Appellant’s] constitutional right to confront
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witnesses against him at trial was violated
under both the United States Constitution and
Pennsylvania Constitution.
C. [Appellant] was unable to present evidence of
self-defense at trial.
Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in
the light most favorable to the Commonwealth as verdict
winner, is insufficient to establish all elements of criminal
attempt—murder … beyond a reasonable doubt?
Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in
the light most favorable to the Commonwealth as verdict
winner, is insufficient to establish all elements of aggravated
assault … beyond a reasonable doubt?
Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in
the light most favorable to the Commonwealth as verdict
winner, is insufficient to establish all elements of firearms
not to be carried w/o license … beyond a reasonable doubt?
Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in
the light most favorable to the Commonwealth as verdict
winner, is insufficient to establish all elements of carry
firearms public in Phila … beyond a reasonable doubt?
Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in
the light most favorable to the Commonwealth as verdict
winner, is insufficient to establish all elements of [PIC] …
beyond a reasonable doubt?
(Appellant’s Brief at 7-8).
In his first issue, Appellant contends that the court erred in conducting
a trial in absentia while he was being held at the county jail. Appellant alleges
that his refusal to submit to COVID-19 testing was not an intentional act
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designed to keep him from appearing at trial. Appellant insists that a trial
may proceed in absentia only when a defendant “voluntarily, knowingly, and
without justification failed to be present at the designated time and place [.]”
(Id. at 14). Appellant maintains that his trial should not have proceeded in
absentia where his absence was not voluntary. Further, Appellant maintains
that the court erred by depriving him of his: 1) right to confront the witnesses
against him; and 2) his right to present evidence of self-defense. Appellant
concludes that a new trial is warranted. We disagree.
“A defendant has an absolute right to be present at his trial. It is a
right, however, which may be waived. It may be waived expressly, or waiver
may be implied by a defendant’s actions.” Commonwealth v. Sullens, 533
Pa. 99, 102, 619 A.2d 1349, 1351 (1992). “[W]hen a defendant is absent
without cause at the time his trial is scheduled to begin, he may be tried in
absentia[.]” Id. at 104, 619 A.2d at 1352. See also Pa.R.Crim.P. 602(A)
(stating: “The defendant’s absence without cause at the time scheduled for
the start of trial or during trial shall not preclude proceeding with the trial,
including the return of the verdict and the imposition of sentence”).
Unless the defendant is prevented from attending the
proceedings for reasons beyond his or her control, the
defendant is expected to be present at all stages of trial. A
defendant owes the court an affirmative duty to advise it if
he or she will be absent. If a defendant has a valid reason
for failing to appear, for example, if he or she has a medical
emergency or is called to leave because of a family
emergency, then the defendant can alert the court
personally or through counsel of the problem. When,
however, the defendant leaves the trial abruptly, without an
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explanation to either his lawyer or the court, this may be
regarded as an absence without cause.
Commonwealth v. Wilson, 551 Pa. 593, 600, 712 A.2d 735, 738 (1998)
(internal citations omitted).
Instantly, Appellant received notice of the consequences of a failure to
comply with the Sheriff’s Department’s COVID-19 testing policy. The June 10,
2022 letter from counsel to Appellant stated: “[S]hould you refuse the covid
test, the case will proceed in your absence.” (Court Exhibit 1, Letter, dated
6/10/22). On June 21, 2022, counsel went to the jail to communicate this
requirement in person. Appellant refused the visit, and counsel used a
corrections officer to notify Appellant that trial would start without him if he
failed to comply with the COVID-19 testing policy. (See N.T. Trial, 6/22/22,
at 5). After trial commenced, counsel delivered a second letter to Appellant
explaining that the trial would proceed in absentia if Appellant did not submit
to a COVID-19 test.4 (See Court Exhibit 2, Letter, dated 6/22/22).
Thereafter, the Sheriff’s Department offered COVID-19 testing to Appellant on
each day of the trial, but Appellant refused testing and did not appear.
The court evaluated these circumstances and determined that Appellant
knowingly failed to appear. (See Trial Court Opinion at 5). Our review of the
record supports this determination. Contrary to Appellant’s assertions, the
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4 Regarding Appellant’s ability to receive this letter, counsel stated, “He’ll get
it. There’s no reason he wouldn’t get it unless he refuses the envelope.” (N.T.
Trial, 6/23/22, at 3).
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court and counsel worked to inform Appellant of the consequences of his
failure to submit to a COVID-19 test. Therefore, it was reasonable for the
court to conclude that Appellant was absent from trial without cause, and
Appellant voluntarily waived his right to be present. See Wilson, supra;Sullens, supra.In his remaining issues, Appellant challenges the sufficiency of the
evidence supporting his convictions. For each issue, Appellant baldly asserts
that the “evidence in this case compels one to conclude that no probability of
fact can be drawn in favor of meeting the elements of this crime.” (Appellant’s
Brief at 22, 23, 24-25, 26). Appellant, however, fails to provide any additional
argument discussing the elements of each offense at issue. Absent more,
Appellant’s sufficiency challenges are waived.5 See Commonwealth v.
Taylor, 277 A.3d 577, 590-91 (Pa.Super. 2022) (reiterating that failure to
develop adequate argument in appellate brief may result in waiver of claim
under Pa.R.A.P. 2119). Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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5 The trial court also found these issues waived, albeit due to the lack of
specificity in Appellant’s Rule 1925(b) statement. (See Trial Court Opinion at
6).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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