Com. v. Harrold, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRYAN D. HARROLD, :
:
Appellant : No. 1168 WDA 2019
Appeal from the Judgment of Sentence Entered January 31, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0006216-2016
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 01, 2020
Bryan D. Harrold (“Harrold”) appeals from the judgment of sentence
entered following his convictions of rape of a child, involuntary deviate sexual
intercourse with a child (“IDSI”), aggravated indecent assault, endangering
the welfare of children, corruption of minors, and attempted rape.1 We affirm.
Harrold was charged with the above-mentioned crimes after his
paramour’s minor daughter accused Harrold of repeatedly sexually abusing
her when she was between the ages of 10 and 15. At the time, Harrold lived
with the victim’s mother in Westmoreland County, Pennsylvania. At the outset
of the abuse, the victim lived with her father and would visit her mother at
the residence that she shared with Harrold. The victim moved into the
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1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(a)(7), 3126(a)(7), 4304(a)(1),
6301(a)(1)(ii), 901(a).
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residence with Harrold and her mother when she was approximately 13 years
old. The victim accused Harrold of sexually abusing her several times a week
in the basement area of the home while her mother was at work or otherwise
not present. The abuse continued until the victim reported the abuse to her
mother in October 2015. Westmoreland County Children and Youth Services
initiated an investigation; the matter was referred to police; and Harrold was
arrested in December 2016.
Following a jury trial, Harrold was found guilty of the above-mentioned
offenses. The trial court deferred sentencing for the purposes of preparing a
pre-sentence investigation report (“PSI”). On January 31, 2019, the trial court
sentenced Harrold to a term of 15 to 30 years in prison for the rape of a child
conviction, and a consecutive term of 5 to 10 years in prison for the IDSI
conviction. Further, the trial court ordered Harrold to comply with the
registration provisions pursuant to the Sexual Offenders Registration and
Notification Act, 42 Pa.C.S.A. §§ 9799.10-9799.41.
Harrold filed post-sentence Motions to reconsider his sentence and for a
new trial. In his joint Motions, Harrold challenged the trial court’s sentence
as excessive and the trial court’s failure to grant his request for a mistrial, and
claimed that his trial counsel was ineffective. The trial court denied Harrold’s
Motions. Thereafter, Harrold filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal.
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Harrold raises the following questions for our review:
I. Did the [trial c]ourt abuse its [d]iscretion by [d]enying
[Harrold’s] Motion to [r]econsider [s]entence, imposing a
sentence that is contrary to the dictates of the Sentencing Code
and to the fundamental norms of the sentencing process?
II. Did the [trial c]ourt abuse its [d]iscretion by [d]enying
[Harrold’s] Motion for [m]istrial:
A. [w]hen the alleged victim suffered a “seizure” while
testifying in front of the jury on the witness stand[,]
and said event may have prejudiced the jury, thereby
depriving [Harrold] of a fair and impartial trial; and
B. [a]s [Harrold] believes that witnesses lacked
credibility and that any evidence was insufficient to
support the jury verdict of guilty?
Brief for Appellant at 4.
First, Harrold alleges that the trial court abused its discretion when it
denied his post-sentence Motion challenging the discretionary aspects of his
sentence. Id. at 13. Harrold argues that, even though his sentence falls
within the sentencing guidelines, it was nevertheless excessive. Id. at 15.
Harrold states that his sentence carried a mandatory minimum sentence of 10
years in prison, but he was instead sentenced to serve a minimum of 15 years
in prison. Id.
An appellant who challenges the discretionary aspects of his sentence
must first invoke this Court’s jurisdiction by satisfying a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
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substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation
omitted).
Our review of the record confirms that Harrold timely filed his Notice of
Appeal, and that he properly preserved the issues by including them in his
post-sentence Motion for reconsideration of his sentence. Additionally,
Harrold has included in his appellate brief a Statement pursuant to Pa.R.A.P.
2119(f). Consequently, we now review whether Harrold has presented a
substantial question for our review.
The determination of what constitutes a substantial question is
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks omitted).
Harrold’s 2119(f) Statement states, in relevant part, the following:
Harrold requests that this [] Court review the discretionary
aspects of his sentence as the herein issue presents “a substantial
question under the Sentencing Code.” Commonwealth v.
Pittman, 737 A.2d 272,[ ]274 (Pa. Super.[ ]1999). Our Supreme
Court has held that a substantial question exists when such an
allegation has been made and are [sic] clearly unreasonable.
Commonwealth v. Mouzon, 812 A.2d 617, 625[] (Pa. 2002).
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[] Harrold was a lifetime drug user. He was 51 years old with a
prior record score of “2” with no previous history of committing
any sexual offenses or crimes against children. While his
conviction for [r]ape of a [child] under 18 … carries a mandatory
minimum sentence of 10 years under § 9718(a)(3) of the
[S]entencing [C]ode, [Harrold] believes that his sentence imposed
of 15-30 years’ incarceration is not appropriate.
Brief for Appellant at 13.
We conclude that Harrold has not raised a substantial question for our
review. While Harrold lists in his Rule 2119(f) Statement several factors that
could be considered to be mitigating factors—his history of drug abuse, his
age, his prior record score, and his lack of any other convictions for sexual
offenses or crimes against children—he does not contend that the sentencing
court failed to adequately consider these mitigating factors in constructing his
sentence.
Moreover, the record reflects that the sentencing court had the benefit
of a PSI. “Where the sentencing court had the benefit of a [PSI], we can
assume that the sentencing court was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa. Super. 2010). Further, “where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Id. Because we conclude that Harrold has failed to
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raise a substantial question for our review, we afford him no relief in his
challenge to the discretionary aspects of his sentence.2
Second, Harrold claims that the trial court abused its discretion when it
denied his Motion for a mistrial. Brief for Appellant at 16. Harrold argues that
the victim’s seizure event, which took place as she testified against him at
trial, was inherently prejudicial and should have resulted in a mistrial. Id.Harrold alleges that the victim was faking the seizure, and claims that the
victim “lies[] to get attention” through the seizures. Id. Harrold claims that
the trial court’s remedy of interviewing each juror as to their ability to render
a fair and impartial verdict following the seizure was insufficient, as “the
damage to his case was already done.” Id. at 19.
Our review over a trial court’s denial of a motion for a mistrial is limited
to a determination of whether the trial court abused its discretion.
Commonwealth v. Savage, 602 A.2d 309, 312 (Pa. 1992). “The remedy of
a mistrial is an extreme remedy required only when an incident is of such a
nature that its unavoidable effect is to deprive the appellant of a fair and
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2 We note that even if Harrold had raised a substantial question for our review,
the sentence imposed upon him was reasonable, and we would discern no
abuse of the trial court’s discretion. As Harrold concedes in his brief, his
conviction carries a mandatory minimum sentence of 10 years in prison. See
42 Pa.C.S.A. § 9718(a)(3). Based upon the offense gravity score and
Harrold’s prior record score, the sentencing guidelines recommend a minimum
sentencing range of 8 years to 40 years in prison for the rape conviction.
Further, our review of the record reveals that the sentencing court ably
addressed its reasons for fashioning Harrold’s sentence on the record. N.T.
(Sentencing), 1/31/19, at 20-21.
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impartial tribunal.” Commonwealth v. Cornelius, 180 A.3d 1256, 1261 (Pa.
Super. 2018) (citation omitted). We will not readily find an abuse of discretion
where the trial court moves expeditiously to correct any prejudicial effect that
an unexpected courtroom event may have on a jury. Id.This Court and our Supreme Court have repeatedly affirmed trial courts’
refusal to grant a mistrial in similar incidents. In Commonwealth v.
Simmons, 662 A.2d 621 (Pa. 1995), during the appellant’s trial, the victim
fainted in the presence of the jury after completing her testimony against the
defendant for an attempted rape. Id. at 634. The trial judge immediately
ordered that the jurors be removed from the courtroom as the victim received
assistance, informed the jurors upon their return that the victim had
recovered, and was on her way home. Id. The defendant moved for a
mistrial, which the trial court denied. Id. at 635. Our Supreme Court
ultimately held that “given the brevity of the incident, the quickness in which
the trial court removed the jurors, and the promptness of the trial court in
informing the jurors that [the victim] was doing fine and on her way home,
we find that the appellant suffered no prejudice from this incident.” Id.
Further, in Commonwealth v. Turk, 407 A.2d 1308 (Pa. Super. 1979),
during the appellant’s trial, a witness for the Commonwealth experienced a
sudden illness and was removed from the courtroom in the presence of the
jury. Id. at 1309. Counsel for the defendant moved for a mistrial and, after
a conference, the trial court addressed the entire jury, asking if any members
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could no longer render an impartial verdict after the incident. Id. No jurors
answered in the affirmative; the trial court denied the motion for a mistrial;
and the defendant was convicted. Id. On appeal, this Court concluded that
the appellant did not experience prejudice as a result of the incident. Id. at
1310 (stating, “[w]e do not presume that the collapse of the witness in this
case could be ignored by the jury no matter how strong an admonition the
court might give. However, we conclude that the [trial] court properly handled
the situation by inquiring whether any juror felt upset in such a way as to
prevent the juror from carrying out his or her duty to render an impartial
verdict.”); see also Commonwealth v. Hawkins, 292 A.2d 302, 308-09
(Pa. 1972) (determining that a mistrial was not warranted where, midway
through defense counsel’s closing, the murder victim’s brother stood up and
shouted, “he murdered him. You are a bum.”); Commonwealth v.
Gonzalez, 112 A.3d 1232, 1240 (Pa. Super. 2015) (determining that a
mistrial was not warranted where a doctor, who was testifying as a
Commonwealth witness, attended to a juror after the juror fainted during a
doctor’s testimony).
In the instant case, the victim experienced a seizure event as she was
testifying against Harrold. N.T., 5/8/18, at 88. When the victim experienced
the seizure, the trial court dismissed the jury from the courtroom, instructed
the jury not to discuss the case with either other jurors or with any outside
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parties, and stated that they would be recalled as soon as possible. 3 Id.Approximately 20 minutes later, the trial court held a hearing in open court,
without the jury present, where defense counsel moved for a mistrial on the
basis of the seizure event. Id. at 88-91. The trial court requested for counsel
to provide the court with case law regarding the standard for granting a
mistrial in similar circumstances. Id. at 91-93. The trial court then recalled
the jury, and dismissed them until the next morning. Before proceeding with
the trial, the trial court provided the standard instructions for juror conduct
and stating that “[w]ith regard to the events of today, obviously, we had a
medical emergency. You are not to consider that at all beyond the fact that
it was a medical emergency.” Id. at 94. Thereafter, the trial court and
counsel met in private, where the parties discussed the relevant case law, and
the trial court determined that it would decide its course of action the next
morning, depending on the condition of the victim and whether the victim
would be able to continue her testimony against Harrold. Id. at 95-106.
The next morning, the trial court determined that it would individually
and separately question each juror before proceeding with the testimony, and
defense counsel objected on the grounds that a mistrial was warranted. Id.
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3The trial transcript does not indicate the precise amount of time that elapsed
between the victim’s seizure and the jury’s dismissal from the courtroom.
Counsel later stated that the incident involved the victim’s father and a
Commonwealth employee approaching the victim on the stand, while the jury
was still seated, as she experienced the episode. N.T., 5/8/18, at 96, 99-100.
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at 107-21. The trial court asked each juror the following question:
“[Y]esterday, you witnessed a medical emergency where the witness collapsed
on the witness stand. In view of this incident, do you believe that you can
render a fair and impartial verdict upon the conclusion of all of the evidence
in this case?” Id. at 121-33 (wherein the trial court questioned each individual
juror). None of the jurors indicated an inability to render a fair and impartial
verdict. At the conclusion of the questioning, the trial court denied Harrold’s
Motion, recalled the jury, and continued with the victim’s testimony. Id. at
133-34. Our review of the record thus confirms that the trial court acted
appropriately to remedy any potential prejudice against Harrold which might
have resulted from the incident. See Simmons, supra; Turk, supra. We
conclude that the trial court appropriately addressed the victim’s unexpected
seizure, and as a result, Harrold is not entitled to relief on this claim.
In his third claim, Harrold alleges that the evidence was insufficient to
support his guilty verdicts. Brief for Appellant at 20.4 Harrold claims that both
the victim and her mother, with whom he was involved in a romantic
relationship, were untruthful in their testimony against him. Id. at 20-21.
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4 We note that Harrold presents several additional arguments related to the
purported ineffective assistance of his trial counsel. Brief for Appellant at 21-
22. Harrold indicates in his brief that he will address these claims further in
a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546. However, ineffectiveness claims are not to be raised in the first instance
on direct appeal, but must await collateral review. Commonwealth v. Grant,
813 A.2d 726, 738 (Pa. 2002). As a result, we will not address Harrold’s
ineffectiveness claims on direct appeal.
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Harrold argues that additional witnesses should have been called to testify in
his favor, and that he should have been provided with additional evidence
that, he claims, would have helped demonstrate that the victim was not
credible. Id. at 21-22.
However, challenges to witness credibility generally implicate the
weight, not the sufficiency, of the evidence. See Commonwealth v. Price,
616 A.2d 681, 683 (Pa. Super. 1992) (explaining that, while a sufficiency
challenge asks whether the evidence exists on record to support conviction,
an argument that the witness’s account is not credible goes to the weight of
the evidence). Although Harrold characterizes his argument as a challenge to
the sufficiency of the evidence presented at trial, he actually presents a
challenge to the weight of the evidence. Brief for Appellant at 20-21.
We adhere to the following standard of review regarding claims to the
weight of the evidence:
Before a trial court may award a new trial on the ground that the
[verdict is against the weight of the evidence,] it must appear that
the verdict was so contrary to the evidence as to shock one’s
sense of justice and make the award of a new trial imperative.
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based upon
pure conjecture, these types of claims are not cognizable on
appellate review.
Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989) (citation
omitted). An allegation that the verdict is against the weight of the evidence
is addressed to the discretion of the trial court. Commonwealth v. Widmer,
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744 A.2d 745, 751-52 (Pa. 2000) (citation omitted). “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.” Id. at
753 (citation omitted). “A motion for new trial on the grounds that the verdict
is contrary to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no obligation to
view the evidence in the light most favorable to the verdict winner.” Id. at
751 (citations omitted).
Here, Harrold did not challenge the weight of the evidence presented at
trial at the sentencing hearing on in his post-sentence Motions. See
generally Motion to for [sic] a New Trial, 2/12/19, at ¶ 2(e). Because Harrold
has failed to properly raise his challenge to the weight of the evidence against
him before the trial court at sentencing or in his post-sentence Motion, we
deem this argument to be waived. See Pa.R.Crim.P. 607(A) (stating that
challenges to the weight of the evidence must be raised with the trial court
before sentencing or in a post-sentence motion); Pa.R.A.P. 302(a) (stating
that issues not raised before the trial court are waived and cannot be raised
for the first time on appeal); Commonwealth v. Sherman, 982 A.2d 483,
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495 (Pa. 2009) (holding that the appellant waived his weight of the evidence
claim by not raising it before the trial court).5
Harrold also asserts the existence of additional evidence that was not
presented at trial (i.e., the victim’s medical records, additional police records,
records from Children and Youth Services, and text messages from the
victim’s mother), which he claims would have changed the outcome of the
trial. However, Harrold does not bring to our attention any evidence of his
claims beyond his bald allegation that “th[e] new evidence would support the
fact that certain witnesses lied on the stand and that this evidence would
support his belief that the alleged victim did not have a seizure disorder.” Id.
at 21.
A trial court may grant a new trial on the basis of after-discovered
evidence only if it is demonstrated that the evidence (1) could not have been
obtained prior to the conclusion of the trial with reasonable diligence; (2) is
not merely corroborative or cumulative; (3) will not be used solely to impeach
the credibility of witnesses; and (4) would likely result in a different verdict if
a new trial was granted. Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa.
2008). However, it appears that Harrold intends to use the evidence in
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5 We note that, even if Harrold had properly preserved this issue for our
review, we would conclude that it lacks merit, for the reasons stated in the
Opinion of the trial court. See Trial Court Opinion, 9/20/19, at 4-5. Further,
we find no indication in the record that the verdict shocks the conscience of
this Court. See Hunter, supra.
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question solely to impeach the credibility of the witnesses who testified against
him. Consequently, he has failed to satisfy the third prong of the after-
discovered evidence test, and his argument is without merit. See
Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016) (stating
that “a defendant seeking a new trial must demonstrate he will not use the
alleged after-discovered evidence solely to impeach a witness’s credibility.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/2020
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