Com. v. Sanders, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DIJUAN SANDERS :
:
Appellant : No. 252 EDA 2021
Appeal from the Judgment of Sentence Entered December 21, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001576-2020
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: Filed: September 30, 2021
Appellant, Dijuan Sanders, appeals from the judgment of sentence
entered on December 21, 2020, following his jury trial convictions for
terroristic threats, simple assault, and unlawful dissemination of intimate
image.1 On this direct appeal, Appellant's court-appointed counsel has filed
both a petition for leave to withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant's counsel
has complied with the procedural requirements necessary to withdraw.
Moreover, after independently reviewing the record, we conclude that the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(1), and 3131(a), respectively.
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instant appeal is wholly frivolous. We, therefore, grant counsel's petition for
leave to withdraw and affirm Appellant's judgment of sentence.
We briefly summarize the facts of this case as follows. On May 25, 2020,
the victim and Appellant engaged in a domestic dispute over the parties’
10-month-old child. Appellant struck the victim numerous times, bit her, and
threatened to kill her if she spoke with police. The victim ultimately took her
child, fled the home the parties shared, and went to a family member’s house
where she called the police. At police request, the victim took photographs of
her injuries, which included bruises and bite marks. Later, the victim
discovered that, without her consent, Appellant posted a video to Facebook of
the parties having sex.
On November 5, 2020, following a two-day trial, a jury convicted
Appellant of the aforementioned crimes. On December 21, 2020, the trial
court sentenced Appellant to concurrent terms of eight to 23 months of
incarceration for the simple assault and terroristic threats convictions, plus a
consecutive term of two years of probation for unlawful dissemination of
intimate image. Appellant did not file post-sentence motions. This timely
appeal resulted.2
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2 Counsel for Appellant filed a notice of appeal on January 20, 2021. On
January 21, 2021, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925. On February
10, 2021, counsel for Appellant filed a statement of intent to file an Anders’
brief pursuant to Pa.R.A.P. 1925(c)(4). On February 17, 2021, the trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a), stating that because there
were no issues for it to address, it was transmitting the record for this Court
to examine any potential claims pursuant to Anders.
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Before reviewing the merits of this appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw stating that, after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which
counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel's conclusion that the appeal is frivolous; and (4) state[s]
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.
Santiago, 978 A.2d at 361; see also Commonwealth v. Smith, 700 A.2d
1301, 1304 (Pa. Super. 1997) (“[C]ounsel seeking to withdraw under Anders
is required to flag any issues that the defendant wishes to raise, as well as
any other claims necessary to the effective appellate presentation of those
issues.”). Finally, counsel must furnish a copy of the Anders brief to his or
her client and advise the client “of [the client's] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court's attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
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If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
Here, counsel complied with all of the above procedural obligations.
Furthermore, Appellant has not responded to the petition to withdraw or
Anders’ brief. We must, therefore, review the entire record and analyze
whether this appeal is, in fact, wholly frivolous. In his Anders’ brief, counsel
flags the following issues3 Appellant wishes to raise:
I. Whether Appellant’s convictions were against the weight
and sufficiency of the evidence?
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3 We have paraphrased the issues presented.
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II. Whether the trial court abused its discretion at sentencing?
III. Whether two evidentiary rulings were erroneous and require
a new trial?
Anders’ Brief at 10-18.
When examining a challenge to the sufficiency of evidence, our standard
of review is as follows:
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 to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the [fact-finder] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011), appeal
denied, 32 A.3d 1275 (Pa. 2011).
“A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to [] commit any crime of
violence with intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1). “[A]
person is guilty of [simple] assault if he [] attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another[.]” 18 Pa.C.S.A.
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§ 2701(a)(1). “[A] person commits the offense of unlawful dissemination of
intimate image if, with intent to harass, annoy or alarm a current or former
sexual or intimate partner, the person disseminates a visual depiction of the
current or former sexual or intimate partner in a state of nudity or engaged in
sexual conduct.” 18 Pa.C.S.A § 3131(a).
Our review of the record reveals the following. On the day in question,
when the parties were fighting about their crying baby, Appellant told the
victim that “if [she said] something else, [he was] gonna punch [her] in [her]
fucking face.” N.T., 11/4/2020, at 22-23. When the victim responded,
Appellant punched her in her right eye. Id. at 24. Appellant then slapped the
victim four times across the face with his open hand. Id. at 25-26. Appellant
“started punching [the victim] on [her] side and on [her] legs.” Id. at 27.
Appellant dragged the victim through the hallway. Id. at 30. When the victim
said she would call the police, Appellant called the police himself, turned out
the lights in the house when police arrived, and told the victim “that if [she]
tried to get those cops, that he would kill [the victim], [her] son, and [the
victim’s] grandmother.” Id. at 37-39. The victim testified that she was
scared and that she believed Appellant. Id. at 40. Appellant demanded that
the victim hand their baby over to him. Id. at 42. The victim stated that she
would die before she gave Appellant their son and Appellant responded,
“[W]ell, bitch, get ready to die.” Id. When the victim tried to kick Appellant,
he got on top of her, bit her left shoulder, and struck her in the back of the
head multiple times. Id. at 43-44. Appellant went to answer his cellular
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telephone in another room and the victim took their baby and drove to a family
member’s house. Id. at 47-49. The victim called the police. Id. at 50. The
police told the victim to photograph her alleged injuries. Id. The victim’s
family member took photographs of the victim’s shoulder, legs, and arms. Id.
at 50-51. The victim reported the incident the next day in person at the police
station and gave a written statement. Id. at 51-52. The police took additional
photographs of the victim’s injuries. Id. at 52. All of the photographs were
admitted into evidence and shown to the jury. Id. at 52-59. Additionally,
when the victim refused to answer Appellant’s telephone calls after the
incident, Appellant sent the victim a text message that said, “You can answer
the phone or I can go live and let the world see what kind of slut you are[.]”
Id. at 63. Sometime later, Appellant posted a video to his Facebook account
of him having sex with the victim. Id. at 66. The victim did not give Appellant
permission to post that video on-line. Id. Portions of the video were entered
into evidence and shown to the jury. Id. The family member whom the victim
stayed with after the incident also testified, confirmed the injuries the victim
sustained, and verified the photographs she took. N.T., 11/5/2020, at 66-70.
The family member testified that when the victim first arrived on the evening
in question, she was shaking, crying, could not talk, and was not wearing
shoes. Id. at 63-64. The victim called 911 and a police officer called her
back. The victim started talking, but then began crying uncontrollably and
was breathing heavily, so she handed the telephone to the family member
who spoke to police. Id. at 70. The family member relayed to the police that
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the victim said that “there was an altercation.” Id. at 72. The police officer
who took photographs of the victim confirmed her injuries and identified the
Facebook video at trial. Id. at 124-133. Appellant testified on his own behalf,
admitted to posting the video on Facebook, and stated that he was “trying to
hurt [the victim] the way she was hurting” him. Id. at 175. Appellant denied
striking or threatening the victim.
Based upon the foregoing and viewing the evidence in the light most
favorable to the Commonwealth, as our standard requires, we conclude that
there was sufficient evidence to sustain Appellant’s convictions. Here,
Appellant directly communicated threats to commit violent crimes against the
victim with the intent to terrorize her. More specifically, Appellant threatened
to assault the victim, told her that he would kill her if she contacted police,
and further stated that she should prepare to die. As such, the Commonwealth
presented sufficient evidence to support Appellant’s conviction for terroristic
threats. Appellant also caused bodily injury to the victim, which included
bruises to her face and body and a bite to her shoulder. Photographic evidence
and testimony from several witnesses confirmed the victim’s injuries. As such,
there was sufficient evidence of simple assault. Finally, Appellant admitted to
posting an on-line video of himself engaging in sexual conduct with the victim,
an intimate partner, in order to harass, alarm, or annoy her. Hence,
Appellant’s conviction for dissemination of intimate image was proper.
Accordingly, Appellant’s challenge to the sufficiency of the evidence
supporting his convictions is frivolous.
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We turn now to Appellant’s contention that the evidence was against the
weight of the evidence presented at trial. Initially, we note that counsel
concedes that a challenge to the weight of the evidence would be frivolous
because Appellant did not preserve a weight claim pursuant to Pennsylvania
Rule of Criminal Procedure 607(A). See Anders’ Brief at 10. Nonetheless,
Anders requires this Court to consider issues otherwise waived and assess
whether they, too, are frivolous. Commonwealth v. Lilley, 978 A.2d 995,
998 (Pa. Super. 2009) (citation omitted). Our standard of review of a weight
of the evidence claim is as follows:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
The weight of the evidence is exclusively for the finder of fact who
is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact. Thus,
we may only reverse the lower court's verdict if it is so contrary
to the evidence as to shock one's sense of justice.
Commonwealth v. Bohlen, 236 A.3d 1123 (Pa. Super. 2020) (internal
citations omitted).
Here, the jury was free to believe all, part, or none of the evidence
presented and to determine the credibility of the witnesses. We may not
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substitute our judgment for the jury’s determination. Based upon our review
of the record and our analysis above pertaining to the sufficiency of the
evidence, Appellant’s convictions do not shock one’s sense of justice and were
not against the weight of the evidence. Accordingly, Appellant’s weight of the
evidence claim is also frivolous.
With regard to Appellant’s sentencing claim, we initially note that
counsel states that Appellant did not file post-sentence motions and did not
preserve a challenge to the discretionary aspects of sentencing. Likewise, the
Anders brief fails to set forth a separate section setting forth a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence as required by Pa.R.A.P. 2119(f). As
previously mentioned, however, Anders requires this Court to examine issues
otherwise waived and assess the merits of such claims. Lilley, supra
(addressing discretionary sentencing claims in an Anders’ brief despite a
defective Rule 2119(f) statement).
Our standard of review is as follows:
An appellate court will not disturb the sentencing court's judgment
absent a manifest abuse of discretion.
In order to constitute an abuse of discretion, a sentence must
either exceed the statutory limits or be so manifestly excessive as
to constitute an abuse of discretion. To demonstrate that the
sentencing court abused its discretion, the appellant must
establish, by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision. As long as the trial court's reasons
demonstrate that it weighed the [s]entencing [g]uidelines with the
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facts of the crime and the defendant's character in a meaningful
fashion, the court's sentence should not be disturbed.
Commonwealth v. Morgan, 2021 WL 2934137 (Pa. Super. 2021) (internal
citations and quotations omitted).
Furthermore, this Court has determined:
There is no absolute right to appeal when challenging the
discretionary aspect of a sentence. Rather, an appeal is permitted
only after this Court determines that there is a substantial
question that the sentence was not appropriate under the
sentencing code.
A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the
sentencing code or is contrary to the fundamental norms of the
sentencing process.
Commonwealth v. Dodge, 2013 PA Super 253, 77 A.3d 1263, 1268–69
(2013) (internal citations, quotations, and footnote omitted).
Additionally, we have stated:
To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a substantial
question.
In determining whether a substantial question exists, this
Court does not examine the merits of whether the sentence
is actually excessive. Rather, we look to whether the
appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the merits of
whether the sentence is clearly unreasonable.
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Id. at 1270 (internal citations, quotations, and footnote omitted; emphasis
added); see also Commonwealth v. Moury, 992 A.2d 162, 171–172 (Pa.
Super. 2010) (“The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment.”).
Here, the trial court sentenced Appellant to concurrent terms of eight to
23 months of incarceration for his simple assault and terroristic threats
convictions, plus a consecutive term of two years of probation for unlawful
dissemination of intimate image. There is no dispute that none of Appellant’s
sentences exceeded the statutory maximum for each separate offense.
Anders’ Brief at 15. Each individual sentence was also within the standard
guideline range. Id. Furthermore, the trial court’s decision to sentence
Appellant to a consecutive term of probation for dissemination of intimate
image does not raise the aggregate sentence to, what appears upon its face
to be, an excessive level in light of the criminal conduct in this case.
Appellant’s bald claim that his aggregate sentence was excessive does not
forward a plausible argument that his guideline sentences were clearly
unreasonable. Hence, Appellant has not raised a substantial question for our
review. Therefore, Appellant’s sentencing claim is frivolous.
Finally, counsel for Appellant points to two potentially erroneous
evidentiary claims. Our standard of review is well-settled:
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The admission of evidence is solely within the discretion of the
trial court, and a trial court's evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. 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.
To constitute reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the complaining
party. An evidentiary error of the trial court will be deemed
harmless on appeal where the appellate court is convinced,
beyond a reasonable doubt, that the error could not have
contributed to the verdict.
Commonwealth v. Manivannan, 186 A.3d 472, 479–480 (Pa. Super. 2018)
(internal citations, quotations, and brackets omitted).
First, Appellant challenges the testimony given by the victim’s family
member wherein she told the police that the victim said there had been an
altercation. Anders’ Brief at 16. Counsel suggests that “[i]t could be argued
that this testimony was double hearsay without a valid exception, and should
have been excluded” from trial. Id. Appellant asserts that it was error to
allow testimony from the victim’s family member who interceded and spoke
with the police when the victim was crying and breathing heavily. He claims
that when the family member told police that the victim said there had been
an altercation with Appellant, it constituted “double hearsay.” Id.Our Supreme Court has stated:
Hearsay is an out-of-court statement offered to prove the truth of
the matter asserted in the statement. An out-of-court declaration
containing another out-of-court declaration is double hearsay. In
order for double hearsay to be admissible, the reliability and
trustworthiness of each declarant must be independently
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established. This requirement is satisfied when each statement
comes within an exception to the hearsay rule.
Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001) (internal citations
and quotations omitted).
Here, the statements the victim made to her family member and the
statements the family member made to the investigating police officer were
clearly made out of court. As such, we will examine each of the statements,
in turn, to determine admissibility. First, as to the statements that the victim
made to her family member, for the reasons that follow, we conclude that the
statements qualified under the excited utterance exception to the rule against
hearsay. This Court has previously determined:
Rule 803(2) of the Pennsylvania Rules of Evidence permits the
admission of an excited utterance as an exception to the general
rule that hearsay evidence is inadmissible. The Rule defines an
excited utterance as: “A statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event.” […T]his Court has held that for
a statement to be considered an excited utterance, it must be
made spontaneously and without opportunity for reflection:
A spontaneous declaration by a person whose mind has
been suddenly made subject to an overpowering emotion
caused by some unexpected and shocking occurrence,
which that person has just participated in or closely
witnessed, and made in reference to some phase of that
occurrence which he perceived, and this declaration must
be made so near the occurrence both in time and place as
to exclude the likelihood of its having emanated in whole or
in part from his reflective faculties.... Thus, it must be
shown first, that the declarant had witnessed an event
sufficiently startling and so close in point of time as to
render her reflective though processes inoperable and,
second, that her declarations were a spontaneous reaction
to that startling event.
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[…T]his Court [has] further held that there is no clear-cut rule as
to the time sequence required for a statement to qualify as an
excited utterance, but rather that fact-specific determination is to
be made on a case-by-case basis.
Additionally, in assessing a statement offered as an excited
utterance, the court must consider, among other things whether
the statement was in narrative form, the elapsed time between
the startling event and the declaration, whether the declarant had
an opportunity to speak with others and whether, in fact, she did
so. Our Courts have not established a bright line rule regarding
the amount of time that may elapse between the declarant's
experience and her statement. Rather, the crucial question,
regardless of time lapse, is whether, at the time the statement is
made, the nervous excitement continues to dominate while the
reflective processes remain in abeyance. It is the spontaneity of
an excited utterance that is the source of reliability and the
touchstone of admissibility.
Commonwealth v. Gray, 867 A.2d 560, 570–571 (Pa. 2005) (internal
citations, quotations, original brackets, and original ellipses omitted).
In this case, the excited utterance exception to hearsay was satisfied.
There was a startling event. The victim participated in that event. The
victim’s subsequent statements to her family member related to the event.
The statements were made almost immediately after the event while the
stress of the event persisted and the nervous excitement continued to
dominate while the victim’s reflective processes remained in obeyance.
Accordingly, we conclude that the statements the victim made to her family
member qualified as an excited utterance and an exception to the rule against
hearsay.
Next, with regard to the statements the family member made to the
police officer, this Court has previously determined:
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“hearsay is an out of court statement offered for the truth of the
matter asserted and is inadmissible unless it falls within an
exception to the hearsay rule.” Commonwealth v. Mosley, 114
A.3d 1072, 1084 (Pa. Super. 2015); see also Pa.R.E. 801, 802.
Such exceptions include statements that would establish motive,
the existence of a plan, or would similarly “complete the story.”
See Commonwealth v. Mayhue, 639 A.2d 421, 434 (Pa. 1994);
see also Commonwealth v. Levanduski, 907 A.2d 3, 13 (Pa.
Super. 2006).
Specifically, “[s]ometimes, out-of-court statements are offered
not to prove the truth of the matter asserted but, for example, to
explain the course of conduct undertaken by an investigating
police officer. Such statements are not hearsay.”
Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super. 2007)
(citation omitted); accord Commonwealth v. Chmiel, 889 A.2d
501, 532–533 (Pa. 2005); Commonwealth v. Dent, 837 A.2d
571, 579 (Pa. Super. 2003) (“It is, of course, well established that
certain out-of-court statements offered to explain a course of
police conduct are admissible. Such statements do not constitute
hearsay since they are not offered for the truth of the matters
asserted; rather, they are offered merely to show the information
upon which police acted.” (citations omitted)).
Manivannan, 186 A.3d at 482–483. Here, the statements from the family
member to the police officer were not offered to prove the truth of the matter
asserted or that “an altercation” occurred. Instead, they were offered to
explain the course of police conduct in investigating the matter and to show
the information upon which the officer acted. As such, we do not deem the
statements at issue constituted hearsay. Further, assuming there was trial
court error in admitting the evidence, this Court is convinced, beyond a
reasonable doubt that the alleged error could not have contributed to the
verdict or was harmful or prejudicial to Appellant. Upon review of the record,
Appellant himself described the event as “an altercation” when he testified on
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his own behalf. See N.T., 11/5/2020, at 173. The investigating officer also
testified that the incident “was a domestic assault.” Id. at 124. Moreover,
the victim testified at length about the night in question and the jury was
permitted to hear the recorded 911 call with the victim and the police
dispatcher. In light of this other cumulative, properly admitted evidence, we
deem Appellant’s first allegation of evidentiary error without merit, but
otherwise harmless.
Next, Appellant argues that it was trial court error to permit a police
officer “to testify as to whether [the victim’s] testimony at trial was coherent
or hysterical.” Anders’ Brief at 17. Counsel for Appellant contends that “[i]t
could be argued that this testimony should have been excluded, based on the
strong and well litigated principle that witnesses are not allowed to opine on
another witness’s testimony.” Id. (citations omitted). Upon review of the
record, we discern no abuse of discretion. The Commonwealth’s line of
questioning was in fair response to defense questioning about the victim’s
demeanor when interacting with the police after the night in question. At trial,
defense counsel questioned a police officer about why the victim was calm and
coherent when she initially called 911, but then became hysterical when she
spoke with that officer later in a separate telephone call. See N.T., 11/5/2020,
at 90-109. More specifically, the police officer testified that he “wasn’t really
able to gather what had happened with [the victim] because of her hysterical
state, [so he] ascertained from [the victim’s family member] whether or not
she was safe there.” Id. at 91. The police officer agreed with defense counsel
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that the 911 call made earlier by the victim was “coherent,” but the victim
was “hysterical” a short time later when the officer called her back. Id. at
97-98. The Commonwealth later asked the officer to clarify “coherent” from
“hysterical” in relation to the victim’s demeanor on the witness stand at trial.
Id. at 108-109. More specifically, the following exchange occurred:
[The Commonwealth]: [Officer, y]ou were in court for the past
two days. How would you describe [the
victim’s] demeanor in her testimony for
yesterday afternoon and most of this
morning?
[Officer]: Well, I saw her answering questions
coherently, then I also saw her crying as
she was being questioned.
[The Commonwealth]: When she was crying, was that similar in
nature in any way to how she sounded on
that phone call?
[Officer]: It was similar, but she was a little worse
when I spoke to her.
[The Commonwealth]: Little worse when what?
[Officer]: When I spoke to her.
Id. at 109.
As the foregoing testimony reveals, the Commonwealth did not question
the officer about the victim’s credibility. Instead, the officer was asked to
clarify his description of the victim’s demeanor immediately following the
alleged crimes as compared to her conduct at trial. We discern no abuse of
discretion in permitting the testimony. Moreover, the jury was able to assess
the victim’s credibility at trial. Lastly, in light of the cumulative evidence
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presented and as set forth at length above, including the testimony of the
victim, her family member, and the police, the recorded telephone
conversation between the victim and 911 dispatcher, and the photographs of
the victim’s injuries, we deem this allegation of evidentiary error harmless
because it could not have contributed to the verdict.
Finally, after independent review of the record, we discern no additional,
non-frivolous issues overlooked by counsel. See Commonwealth v.
Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017) (“After determining that
counsel has satisfied the[] technical requirements of Anders and Santiago,
this Court must then conduct an independent review of the record to discern
if there are any additional, non-frivolous issues overlooked by counsel.”)
(citation and internal quotations omitted). Accordingly, we affirm Appellant’s
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/21
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