Com. v. Thomas, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARKUS THOMAS :
:
Appellant : No. 935 EDA 2020
Appeal from the Judgment of Sentence Entered February 21, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000164-2018
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 28, 2021
Markus Thomas appeals from his February 21, 2020 judgment of
sentence of forty to eighty years of imprisonment, which was imposed after a
jury found him guilty of multiple counts each of rape of a child, involuntary
deviate sexual intercourse (“IDSI”), aggravated indecent assault of a child,
indecent assault of a child, and endangering the welfare of a child. We affirm.
In an opinion authored pursuant to Pa.R.A.P. 1925(a), the trial court
provided an apt summary of the factual history of this case, as follows:
At trial, a jury concluded that the Commonwealth proved beyond
a reasonable doubt that Appellant sexually abused two children in
his care over the course of several years. The two children were
the granddaughters of his paramour. The abuse came to light
only after the stepmother of the children discovered a letter that
one of the girls had written and hidden away in a drawer. In the
letter, the [child] claimed that she had been raped but could not
tell anyone. Upon finding the letter, the stepmother told the
children’s father and they began to ask questions. Finally, the
child disclosed that [Appellant], to whom she referred as “Pop-
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pop,” had sexually abused her. The children viewed Appellant as
a grandfather figure because of his long-term relationship and
living arrangement with their grandmother. The other child
overheard the conversation in which her sister disclosed the abuse
and also revealed that she, too, had been abused by Appellant.
Their grandmother contacted the West Chester Police and an
investigat[ion] commenced.
At trial, the victims testified in great detail about the physical acts
of sexual abuse and the mental, emotional[,] and physical harm
it has caused [them]. The victims testified that the abuse
occurred regularly when they were [attending] first through fifth
grades. One of the victims said she never told anyone because
she didn’t want to hurt Appellant, whom she loved, or upset her
family.
Rule 1925(a) Opinion, 5/14/20, at 2-3. During the two-day trial, Appellant
was represented by Stewart Paintin, Esquire, of the Chester County Public
Defender’s office.1 In its case in chief, the Commonwealth introduced the
aforementioned letter into evidence without objection and referred to it
extensively in adducing testimony from the witnesses. See N.T. Trial, 4/9/19,
at 12. On April 10, 2019, the jury retired to consider its verdict.
While the jury was on lunch break that day, it submitted a request to
view the letter admitted as evidence by the Commonwealth. Without alerting
the attorneys or Appellant, the trial court granted the request and provided a
copy of the letter to the jury. See N.T. Trial, 4/10/19, at 57-58. Proceedings
reconvened that afternoon after the jury had reached a verdict, but before it
had been announced, at which time the trial court informed the parties of its
____________________________________________
1 Prior to trial, Appellant was represented by Nellie Verducci, Esquire, also of
the Chester County Public Defender’s office.
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response to the jury’s question. Id. No objections were entered by either
Appellant or the Commonwealth in response to this revelation.
Ultimately, the jury found Appellant guilty of the above-noted offenses.
Immediately after the guilty verdict was read, Appellant requested that the
jury be polled. See N.T. Trial, 4/10/19, at 64. The trial court granted
Appellant’s request and conducted a collective poll of the jury, wherein the
trial court went through each of the charges and asked the members of the
jury to verbally confirm in unison that the verdicts were individually correct
and unanimous. Id. at 64-68. No dissenting voices were evident, and the
jury members all expressed agreement in the verdicts as delivered. Although
an individual poll of the jurors was not taken, Appellant did not object to the
manner of the trial court’s polling. Id. at 68.
On May 31, 2019, Laurence Harmelin, Esquire, was appointed to replace
Attorney Paintin. Appellant filed a post-verdict motion for extraordinary relief
asserting that Attorney Paintin had rendered ineffective assistance of counsel
at trial. Additionally, Appellant alleged errors by the trial court that he claimed
necessitated a new trial, including: (1) the trial court’s purported failure to
conduct a proper poll of the jury under Pa.R.Crim.P. 648(G); (2) a violation of
Appellant’s right to be present during the proceedings under Pa.R.Crim.P.
602(A); and (3) the trial court’s refusal to issue a “prompt complaint” jury
instruction regarding the delayed disclosure of the sexual abuse by the victims
in this case. Ultimately, the trial court denied the motion in its entirety.
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On February 21, 2020, the trial court sentenced Appellant to an
aggregate term of forty to eighty years of incarceration, which included the
application of four consecutive ten-year mandatory minimum sentences.
Appellant filed a timely post-sentence motion seeking to reduce his sentence
and alleging a number of other grounds for relief, which was denied. See
Order, 3/3/20, at 1. On March 17, 2020, Appellant filed a timely notice of
appeal to this Court. Both he and the trial court have timely complied with
the mandates of Pa.R.A.P. 1925, by respectively filing a concise statement of
errors complained of and an opinion.
Appellant has raised seven issues for our consideration, as follows:
1. Whether the trial court erred in not adhering to Appellant’s
right under Rule 602(A) to be present at every stage of the trial.
2. Whether the trial court improperly sentenced Appellant under
mandatory minimum sentencing provisions, in violation of the
[Alleyne v. U.S., 133 S.Ct. 2151 (2013)] decision?
3. Whether the trial court erred when it failed to instruct the jury
on the witnesses’ lack of prompt complaints, and when evaluating
the testimony of complaining witnesses.
4. Whether the trial court erred in failing to require the
Commonwealth to fix, with certainty, the date(s) of the alleged
offenses, thereby denying Appellant due process, by being
substantially denied the opportunity to present an effective
defense.
5. Whether the trial court erred in not declaring a mistrial, after
a complaining witness was called to the stand, during the jury
trial, did not initially respond and later returned with the witness
in tears, in front of the jurors thereby prejudicing Appellant by
engendering sympathy for the witness and hostility and bias
toward Appellant in the minds of the jurors.
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6. Whether trial counsel erred by not reminding the trial court to
poll the jury, as had been requested on the record by Appellant in
violation of Rule 648(G).
7. Whether Appellant received ineffective assistance of counsel in
that trial counsel:
a. Failed to object, to move for a mistrial, or to seek a
curative instruction after the letter was sent out to the jury
during deliberations.
b. Stipulated to Appellant’s prior conviction [for a crimen
falsi offense] and failed to request a cautionary instruction .
...
c. Failed to poll the jury after being requested to do so by
Appellant in open court and on the record.
d. Failed to introduce evidence helpful to Appellant
regarding his defense.
e. Failed to place on the record the delayed, tearful
entrance of Appellant’s accuser/witness before the jury, and
to move for a mistrial, or, at a minimum, to request a
cautionary instruction.
Appellant’s brief at 4-6 (cleaned up).
Appellant’s first claim concerns the trial court’s response to the jury’s
request to view the victim’s letter. He asserts that the trial court’s decision to
not reconvene the parties and consider argument before allowing the jury to
see the letter violated the requirement that Appellant “be present at every
stage of the trial.” See Appellant’s brief at 18-24 (asserting that trial court
erred and violated Appellant’s right “to be present during deliberations and
during consideration of jury questions”).
Rule 602(A) provides that “[t]he defendant shall be present at every
stage of the trial including the impaneling of the jury and the return of the
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verdict, and at the imposition of sentence, . . . .” Pa.R.Crim.P. 602(A). This
Court has interpreted this rule as conferring upon defendants a “rule-based
right to be present for trial[.]” Commonwealth v. Tejada, 188 A.3d 1288,
1293 (Pa.Super. 2018). This Court has prevously held that alleged violations
of a defendant’s right to be present during trial proceedings present pure
questions of law. Accordingly, our standard of review is de novo. Id. at 1293.
Appellant is correct, insofar as the trial court’s response to the jury’s
request was received, considered, and consummated without the presence of
either party in this case. See N.T. Trial, 4/10/19, at 57-58. Accordingly, we
believe that this constitutes a violation of Appellant’s rule-based right to be
present under Rule 602(A). See Commonwealth v. Williams, 959 A.2d
1272, 1282-83 (Pa.Super. 2008) (concluding trial court violated Rule 602(A)
by ruling on jury’s request to view an exhibit without defendant present).
While the trial court in the instant case does not concede that a violation
occurred, it asserts that any legal error was harmless. We agree.
Harmless error exists where, inter alia, “the error did not prejudice the
defendant or the prejudice was de minimis.” Commonwealth v. Stokes, 78
A.3d 644, 654 (Pa.Super. 2013). As a general matter, “non-constitutional
violations of Rule 602(A)” are susceptible to harmless error analysis.2 Id. at
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2 Although Appellant mentions various constitutional provisions in his
discussion of Rule 602(A), he does not assert a separate violation of his
constitutional rights and did not advance any such claim in his post-verdict
motion. Accordingly, we confine our discussion to Rule 602(A).
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1283. Instantly, the gravamen of Appellant’s argument under Rule 602(A) is
that he was denied the opportunity to oppose the jury receiving a copy of the
at-issue letter. Specifically, Appellant argues that the trial court erred by not
allowing him to “make his objections known” before the exhibit was provided
to the jury. Appellant’s brief at 18. Pennsylvania law vests the trial court with
significant discretion to provide the jury with access to any exhibits that it
deems to be “proper.” See Pa.R.Crim.P. 646(A); Commonwealth v.
Barnett, 50 A.3d 176, 194 (Pa.Super. 2012) (“Whether an exhibit should be
allowed to go out with the jury during its deliberation is within the sound
discretion of the trial judge.”). Concomitantly, Rule 646(C) lists exhibits that
are prohibited from being set out with the jury during its deliberations, which
includes: (1) transcripts of any trial testimony; (2) a written or recorded
confession from the defendant; (3) copies of the information or indictment;
and (4) written jury instructions. Pa.R.Crim.P. 646(C)(1)-(4).
Preliminarily, we note that the letter is not of a category of evidence
that is explicitly foreclosed from being provided to the jury under Rule 646(C).
Furthermore, it was admitted into evidence and referred to extensively at trial
without objection by any party. Although the letter was not published to the
jury during the trial, its contents were thoroughly testified to by the witnesses.
Furthermore, the letter did not name the victim’s abuser, but merely stated
that the abuse took place. Accordingly, the letter contained no new or novel
allegations but was merely demonstrative of the evidence adduced at trial.
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Notably, Appellant has neglected to provide any basis upon which he could
have argued that the letter should not have been provided to the jury.
While we cannot endorse the trial court’s decision to issue a ruling on
the jury’s request to view the letter without first apprising the parties and
permitting an opportunity for objections and argument to be placed on the
record, we find that any such error was harmless. See Williams, supra at
1283 (finding trial court’s violation of defendant’s Rule 602(A) rights was
harmless error insofar as no prejudice was evident from the record).
Appellant’s first claim is without merit.
Turning to Appellant’s next four issues, we discern that the trial court
has authored a cogent and well-reasoned discussion of these issues in its
opinion articulating its response to Appellant’s claims for relief and arguing for
affirmance. See Rule 1925(a) Opinion, 5/14/20, at 6-13. The trial court’s
writing discusses applicable principles of law and aptly applies them to the
particular facts of this case. Furthermore, our independent review of the
certified record and relevant precedent has uncovered no issues within the
trial court’s analysis. Accordingly, we will adopt its reasoning as our own.
See Rule 1925(a) Opinion, 5/14/20, at 6-8 (explaining that the omission of a
“prompt complaint” jury instruction was not erroneous due to the age and
disposition of the victims), 8-10 (concluding that mandatory minimum
sentences were properly sought and imposed in Appellant’s case), 10-12
(finding that the Commonwealth fixed the date with “reasonable certainty”
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given the age of the victims and the ongoing nature of Appellant’s crimes),
12-13 (holding that Appellant did not seek a mistrial in connection with the
one victim’s crying on the stand, which did not necessitate a mistrial).
Appellant’s last two issues concern allegations that implicate the
effectiveness of Attorney Paintin as raised in Appellant’s post-verdict motions.
However, our Supreme Court has held that absent exceptional circumstances,
“claims of ineffective assistance of counsel are to be deferred to [Post-
Conviction Relief Act] review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should be
reviewed upon direct appeal.” Commonwealth v. Holmes, 79 A.3d 562,
576 (Pa. 2013). The two exceptions to this paradigm were identified by the
Supreme Court in Holmes as: (1) cases that involve claims of “primary
constitutional magnitude” that is “both meritorious and apparent from the
record so that immediate consideration and relief is warranted;” and (2)
“prolix” cases where a defendant waives PCRA review and proceeds
immediately to unitary review of ineffectiveness claims. Id. at 621-26.
Although Appellant baldly asserts that the first exception identified in
Holmes applies to this case, we strongly disagree. Besides parroting the
language of this precedent, Appellant has failed to state which of the
numerous grounds upon which he claims ineffectiveness satisfies the
“extraordinary” exception carved out in Holmes. Accordingly, we find these
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claims of ineffectiveness are premature and must await collateral review. See
Commonwealth v. Reid, 117 A.3d 777, 787 (Pa.Super. 2015).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2021
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