Com. v. Merceir, R.

J-S07009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RACQUEL MERCEIR :
:
Appellant : No. 2809 EDA 2019
Appeal from the Judgment of Sentence Entered July 30, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005880-2018
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 11, 2020
Appellant Racquel Merceir appeals from the judgment of sentence
following her bench trial convictions for criminal mischief, harassment, and
disorderly conduct.1 Appellant contends that the trial court erred by denying
her request to enforce a subpoena for a witness to testify at trial. We affirm.
The trial court summarized the relevant facts of this case as follows:
Mrs. Allison Jordan [(Complainant)] testified that for some time
prior to June 16th, 2018, her husband Elliott [(Mr. Jordan)], was
having a relationship with [Appellant]. On the 15th, [Mr. Jordan]
came back to their marital residence and told [Complainant] he
wanted to work things out. [Complainant] believes [Appellant]
found out that [Mr. Jordan] wanted to reconcile with her and got
mad. At approximately 1:30 in the morning on June 16th, 2018,
[Appellant] came to their house and was banging loudly on the
door. [Complainant] went downstairs and saw a woman standing
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3304(a)(2), 2709(a)(3), and 5503(a)(4), respectively.
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at the door. [Complainant] opened the door and made an in-court
identification of [Appellant], as the woman who was banging on
her door. When [Complainant] opened the door, [Appellant]
asked if [Mr. Jordan] were home. [Complainant] replied, “yes,
who are you[?]” [Appellant] said “I’m Racquel”. [Complainant]
then slammed the door and locked it. [Complainant] had found
out a week to 10 days earlier that her husband was having an
affair with a woman named Racquel. [Appellant] then began
screaming and smashed the window panels in the front door of
the residence. [Complainant] went upstairs to get her cell phone
and called the police. [Complainant] doesn’t remember
everything [Appellant] said, but she was screaming loudly enough
that [Complainant’s] kids woke up and became very upset. In
addition to br[e]aking the two glass panels on the front door,
[Appellant] then smashed the front door with a hard object which
[Complainant] believes was a screwdriver. [Complainant] then
heard tires popping and air coming out of the tires. [Complainant]
discovered all four of the tires on her 2016 Toyota Camry had
been slashed and the back window and both side mirrors were
broken, and the car had been scratched. . . . When the police
arrived five to ten minutes later, [Appellant] was gone.
Trial Ct. Op., 11/14/19, at 1-3 (record citations omitted).
The trial court conducted a bench trial on June 27, 2019. At the
beginning of trial, Appellant informed the trial court that she had subpoenaed
Mr. Jordan and that he did not appear for trial. N.T. Trial, 6/27/19, at 5.
Appellant then requested that the trial court issue a material witness warrant
for Mr. Jordan. Id. The trial court asked for an offer of proof, and Appellant’s
counsel stated:
Your Honor, the offer of proof would be -- well, one, some actual
testimony, since he was a witness there. There’s no statements
given [by Mr. Jordan]. There’s nothing here. He was actually
engaged in a relationship with my client at that time, and I’d like
him to come in and testify to that nature, as well as to the
happenings of that evening. I don’t believe he’d testify in the
same manner as with [Complainant], and that’s why I ask for
his purpose [sic] here.
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Id. at 5-6 (emphasis added).2 The Commonwealth responded that
[t]here’s nothing indicating that Mr. Jordan was actually
downstairs when [Appellant] arrived at the residence. He doesn’t
establish the identification. He doesn’t establish any material fact
necessary in this case, doesn’t disprove any of those facts
* * *
I don’t see how he’s a material witness for the [d]efense.
Id. at 6. The trial court denied Appellant’s request for a material witness
warrant, stating: “All right. Well, he didn’t come, so we’ll go forward.” Id.
Complainant was the sole witness for the Commonwealth and testified
consistently with the trial court’s summary of the facts. Appellant was the
sole witness for the defense. Appellant testified that Mr. Jordan stayed at her
home on the evening of June 14, 2018, and that he was still in her home when
she left for work on June 15, 2018, at 2:30 p.m. Id. at 43-44, 51. Appellant
then testified that she got off from work at 11:30 p.m. that evening, and that
she returned home around 1:30 a.m. on June 16. Id. at 46-47. She testified
that she was expecting Mr. Jordan to come over and sent him a text message
around 3:00 a.m. to ask if he was still coming over. Id. at 46-47, 50.
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2The parties filed a stipulation to correct the notes of testimony on November
4, 2019, and the trial court entered an order correcting the notes that same
day. We have quoted the corrected notes of testimony.
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Appellant further testified that Complainant had been sending her
harassing text messages since June 4, 2018, when Complainant learned that
Appellant and Mr. Jordan were in a relationship. Id. at 41-43.
After both parties rested, the trial court took the verdict under
advisement. Id. at 66. Later that same day, the trial court issued a written
verdict finding Appellant guilty of criminal mischief, harassment, and
disorderly conduct. Verdict, 6/27/19.
The trial court deferred sentencing for the preparation of a pre-sentence
investigation report (PSI). Order, 6/27/19. On July 30, 2019, the trial court
imposed an aggregate sentence of two years’ probation and ordered Appellant
to pay $1,100 in restitution to Complainant. Appellant filed a timely post-
sentence motion on August 9, 2019 seeking a judgment of acquittal. Following
a hearing on August 26, 2019, the trial court denied Appellant’s post-sentence
motion. N.T. Post-Sentence Mot. Hr’g, 8/26/19, at 5.
Appellant filed a timely notice of appeal on September 24, 2019.
Appellant timely filed a Pa.R.A.P. 1925(b) statement on November 4, 2019,
challenging the trial court’s refusal to enforce her subpoena, among other
claims.3
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3 In her Rule 1925(b) statement, Appellant presented the following issues: (1)
the trial court erred in refusing to enforce her subpoena issued to the
Complainant’s husband, (2) the evidence was insufficient to sustain the
conviction for criminal mischief because the Commonwealth failed to prove
she intentionally or recklessly tampered with tangible property of another, or
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The trial court filed a responsive Rule 1925(a) opinion. Relevant to this
appeal, the trial court explained that it “did not abuse its discretion in refusing
to enforce a subpoena for a witness whose testimony would not have
benefitted the defense.” Trial Ct. Op., 11/14/19, at 9 (citing Commonwealth
v. Douris, 766 A.2d 1276, 1279 (Pa. Super. 2001), and Commonwealth v.
Lahoud, 488 A.2d 307, 311 (Pa. Super. 1985)). The trial court concluded
that “[Appellant] was unable to articulate how the witness’[s] testimony would
have been favorable to the defense and therefore the court did not abuse its
discretion in refusing to enforce the subpoena.”4 Id. at 10.
Appellant raises a single issue for review:
Whether the [trial] court erred when it refused to enforce the
defense subpoena issued to [Mr. Jordan,] [C]omplainant’s
husband, especially where defense counsel proffered that [Mr.
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that her alleged tampering endangered person or property, (3) the evidence
was insufficient to sustain the conviction for criminal mischief, graded as a
misdemeanor of the second degree, because the Commonwealth failed to
prove she caused damages in excess of $1,000, and (4) the restitution order
was illegal because the Commonwealth failed to prove she caused $1,100 in
damages. Rule 1925(b) Statement, 11/4/19, at 1-2 (unpaginated).
4 In Douris, we found that the trial court did not abuse its discretion in
quashing a witness subpoena when the defendant intended for the witness to
authenticate a letter the witness had written when the trial court allowed the
defendant to introduce the letter without the witness’s authentication because
the letter went to the defendant’s state of mind. Douris, 766 A.2d at 1279.
We further observed that because the witness who authored the letter was
not present when the crime was committed, the witness’s testimony could not
have affected the outcome of the trial. Id. To the extent that the trial court
erred in relying on Douris, we “may affirm on any legal basis supported by
the certified record.” Commonwealth v. Torres, 176 A.3d 292, 297 n.5 (Pa.
Super. 2017) (citation and quotation marks omitted).
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Jordan] was an important witness who was present during the
alleged incident and would contradict [C]omplainant’s version of
events?
Appellant’s Brief at 5.
Appellant contends that the trial court’s refusal to enforce her subpoena
to compel the appearance of Mr. Jordan, Complainant’s husband, violated her
due process right to offer witnesses in her defense. Id. at 12-19 (citing, inter
alia, Commonwealth v. Terry, 393 A.2d 490, 492 (Pa. Super. 1978) (per
curiam)). Appellant argues that she was entitled to compel the appearance
of Mr. Jordan as a witness of her trial when her proffer established that his
testimony would have been favorable and material to her defense. Id. at 12
(citing Commonwealth v. McKenzie, 581 A.2d 655, 657 (Pa. Super. 1990)).
According to Appellant, Mr. Jordan’s testimony would have contradicted
Complainant’s testimony, which would have resulted in the trial court finding
Complainant not credible. Id. at 15-16, 18-19. Appellant argues that Mr.
Jordan’s testimony was critical to her defense, because this case “hinged on a
credibility determination between [C]omplainant and [Appellant] . . . .” Id.
at 15. Appellant further contends that the trial court abused its discretion in
refusing to enforce the subpoena solely on the grounds that Mr. Jordan had
not voluntarily appeared. Id. at 16-17. Appellant concludes that “[s]ince the
[trial] court’s stated reason was manifestly unreasonable, the only conceivable
explanations remaining for the court’s refusal to enforce [Appellant’s]
subpoena involve improper motives personal to the judge.” Id. at 19.
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The Commonwealth responds that Appellant’s offer of proof did not
establish that Mr. Jordan’s testimony would have been both favorable and
material. Commonwealth’s Brief at 11-13. The Commonwealth contends that
Appellant’s offer of proof was vague because it did not state if Mr. Jordan had
first-hand knowledge about the crimes of which Appellant was accused and
provided no details about what Mr. Jordan would say if he testified. Id. at 12.
According to the Commonwealth, Appellant failed to establish that Mr. Jordan’s
testimony would both contradict Complainant’s testimony and be favorable to
Appellant. Id. at 12. The Commonwealth concludes that the trial court did
not abuse its discretion in denying Appellant’s request to enforce the
subpoena. Id. at 13.
We review a trial court’s decision to enforce or quash a subpoena for an
abuse of discretion. See Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa.
Super. 2012); see also McKenzie, 581 A.2d at 657-58. “An abuse of
discretion is not a mere error in judgment. Rather, discretion is abused when
the law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by
the evidence or the record.” Commonwealth v. Akhmedov, 216 A.3d 307,
316 (Pa. Super. 2019) (en banc) (citations and quotation marks omitted),
appeal denied, No. 422 EAL 2019 (Pa. Feb. 4, 2020). This Court “may affirm
on any legal basis supported by the certified record.” Commonwealth v.
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Torres, 176 A.3d 292, 297 n.5 (Pa. Super. 2017) (citation and quotation
marks omitted).
This Court has observed that
under both our state and federal constitutions, a criminal
defendant has a right of compulsory process to obtain witnesses
in his favor. The right to compulsory process encompasses the
right to meet the prosecution’s case with the aid of witnesses, and
the right to elicit the aid of the Commonwealth in securing those
witnesses at trial, both of which are fundamental to a fair trial.
Just as an accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony, he has
the right to present his own witnesses to establish a defense. This
right is a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967). The
constitutional right, though fundamental, is not, however,
absolute. In order to compel the attendance of a witness at
trial, it must be shown that the information possessed by
the witness is material, i.e., capable of affecting the
outcome of the trial, and that it is favorable to the defense.
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).
McKenzie, 581 A.2d at 657 (some citations and quotation marks omitted)
(emphasis added); see also Commonwealth v. Banks, 946 A.2d 721, 725
(Pa. Super. 2008) (holding that, to establish a violation of his or her right to
compulsory process, “the defendant must make some plausible showing of
how the witnesses’ testimony would have been both material and favorable to
the defense.” (citation and some formatting omitted)).
A defendant seeking to compel the attendance of a witness is “not
relieved of the burden of showing that the missing witness would have given
favorable [and material] testimony merely because the defense did not have
prior access to the witness.” Lahoud, 488 A.2d at 311. “In such
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circumstances it is of course not possible to make any avowal of how a
witness may testify. But the events to which a witness might testify, and the
relevance of those events to the crime charged, may well demonstrate either
the presence or absence of the required materiality.” Id. (citation and
quotation marks omitted).
In Terry, the defendant was charged with assault by a prisoner after he
had an altercation with a guard while incarcerated in Allegheny County Jail.
Terry, 393 A.2d at 491. At trial, the defendant called one correctional officer
and four current or former Allegheny County Jail inmates as witnesses at trial.
Id. at 492. The defendant subpoenaed an additional inmate witness, Robert
Saunders, who was not present at trial because he had been transferred to
the federal penitentiary in Lewisburg, Pennsylvania. Id. The trial court
declined to enforce the subpoena for Saunders because “[h]is testimony would
have been cumulative at best and as such of questionable probative value.”
Id. at 493. On appeal, this Court held that the trial court erred in denying the
defendant’s request to enforce Saunders’ subpoena by “making the value
judgment that Robert Saunders’ testimony would be cumulative at best and
have little, if any, probative value.”5 Id. at 493.
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5 Unlike later cases, the Terry Court did not address the requirement that a
defendant must establish the materiality of the requested witness’s testimony
in order to obtain relief.
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In McKenzie, the defendant was accused of a non-fatal shooting
involving three victims on Weaver Street in Philadelphia. McKenzie, 581 A.2d
at 656. One of the victims had been driving a Cadillac, but fled on foot when
he saw the defendant approaching with a gun. Id. It was the defendant’s
position that the driver of the Cadillac was the actual shooter, and that the
defendant was not on Weaver Street at the time of the shooting. Id. at 657.
One of the eyewitnesses who the defendant subpoenaed failed to appear for
trial. Id. at 656. The defendant asked the trial court to compel this witness’s
appearance, and made an offer of proof that in a prior statement the witness
stated that he was on corner of Weaver and Williams Streets at the time of
the incident and saw the driver of the Cadillac retrieve something from the
trunk of the Cadillac and begin firing. Id. at 656-57. The trial judge then
compelled the witness to appear. Id. at 657.
The trial judge then questioned the witness in the presence of counsel.
Id. at 657. “At that time, the witness confirmed that he had observed the
driver of the white Cadillac stop his vehicle, open the trunk, and remove
something. This time, however, he said he did not know what the person had
done thereafter.” Id. at 657. The trial court concluded that the witness’s
testimony “was inconsistent with the [defendant’s] offer of proof and because
the witness now said that he had not observed the driver doing the shooting,
the trial court quashed the subpoena and refused to allow the witness to be
called by the defense.” Id. This Court reversed, finding that
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[i]t was not the function of the trial court to determine whether
the witness had been truthful and accurate when he gave a
statement to the defendant’s investigator. The witness’s
credibility was an issue for the jury. It was enough that [the
witness] had been an eyewitness to the shooting and had supplied
[the defendant’s] investigator with information favorable to the
defense. Because the witness in this case had information which
was relevant and which appeared to be favorable to the defense,
the trial court erred when it denied [the] defendant the right to
call the witness. This error requires a new trial.
Id. at 657-58 (footnote omitted).
In Lahoud, the defendant was charged with attempting to sell narcotics
to undercover officers and a paid police informant. Lahoud, 488 A.2d at 309.
The Commonwealth alleged that the defendant and his partner discussed
selling hashish with the informant and undercover officers and that the
defendant’s partner provided a sample of hashish to the informant. Id. Prior
to trial, the informant was sentenced on unrelated state charges, but was
remanded to federal custody as part the federal government’s witness
protection program. Id. The Commonwealth did not call the informant as a
witness, so the defendant served a writ of habeas corpus ad testificandum
directing the United States Marshal’s Office to produce the informant for trial.
Id. The Marshal refused to comply unless the county paid for the costs of
transportation and security for the witness. Id. at 309-10. After hearing the
questions defense counsel intended to ask the informant,6 the trial court
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6These questions are not repeated in the opinion, but earlier in the opinion,
we noted that defendant claimed that his actions were the result of duress
and/or entrapment. Lahoud, 488 A.2d at 309.
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denied the defendant’s request to order production of the informant as a
witness and pay costs of doing so to the Marshal. Id. at 310-11. This Court
concluded that
[t]he witness . . . was a paid police informant. He was also a
witness which the Commonwealth had intended to use in
establishing [the defendant’s] guilt. Although he clearly was in
possession of information relevant to the issue of [the
defendant’s] guilt, the record reveals no basis for believing that
his testimony would have been favorable to the defense. [The
defendant’s] trial counsel propounded questions which she would
have liked to ask [the witness], but there is no basis for believing
that the answers of the witness would have been favorable to the
defense. The Commonwealth had decided to forego the presence
of the witness. Defense counsel, if the witness had been present
under the circumstances, would not have been entitled to call the
witness as of cross-examination. If he were called as a defense
witness, the defense would be required to vouch for his veracity.
When viewed in this light, the record fails to demonstrate that [the
witness] was material to the defense or that he had information
favorable to [the defendant].
Id. at 311. As a result, we affirmed the trial court’s denial of the defendant’s
request to have the informant produced as a witness on the basis that, while
the informant’s testimony was material, the defendant had failed to
demonstrate that the informant’s testimony would have been favorable to the
defense. Id. at 312.
Banks involved an inmate accused of assaulting a guard while
incarcerated. Banks, 946 A.2d at 722. On the first day of trial, the defendant
requested, for the first time, that the trial court order four inmates to be
transported from the prison to the courthouse to testify as witnesses. Id. at
422. The defendant claimed that these inmates were witnesses to the
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altercation and that they could substantiate the defendant’s claim of self-
defense. Id. The trial court denied the request unless the defendant proffered
an affidavit or sworn statement summarizing the witnesses’ proposed
testimony. Id. at 723. Later that same day, the defendant submitted an
affidavit in support of his request to have the inmates brought to court to
testify. Id. The trial court denied the request, reasoning that the handwritten
affidavit “[was unintelligible and] does not establish that their testimony is
going to be helpful to the defense.” Id. at 723, 725 (record citation and
quotation marks omitted). The defendant renewed his request with a second,
typed, affidavit indicating that two of the prospective witnesses “observed the
altercation.” Id. The trial court again denied the request to produce the
inmate witnesses. Id. (record citation omitted).
On appeal, the Banks Court affirmed, holding that the defendant “was
unable to demonstrate that the proposed testimony was either material or
favorable to his defense. Essentially, the proposed testimony failed to
substantiate [the defendant’s] self-defense claim or exculpate him, where the
proposed testimony did not concern the cause of the fight.” Id. at 725.
Lastly, we noted that even on appeal, the defendant had not “argue[d] the
proposed testimony would have addressed the cause of the fight or suggest
the inmate-witnesses would have testified to anything other than observing
the fight.” Id. at 726.
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Turning to the present case, Appellant initially argues that the trial
court’s denial of Appellant’s request to enforce the subpoena at trial evidenced
an abuse of discretion. Regardless of the trial court’s terse statement denying
Appellant’s request due to Mr. Jordan’s failure to appear at trial, however,
Appellant bore the burden of establishing the witness’s testimony would be
material and favorable. See Banks, 946 A.2d at 724; McKenzie, 581 A.2d
at 657. Specifically, Appellant was required to make a proffer regarding the
events to which a witness might testify, and the relevance of those events to
the crime charged to demonstrate the required materiality. See Lahoud, 488
A.2d at 311. Therefore, we consider Appellant’s proffer.
Instantly, Appellant proffered that “[t]here’s no statements given [by
Mr. Jordan].” N.T. Trial, 6/27/19, at 5-6. Nevertheless, Appellant, through
counsel, claimed that she did not “believe [Mr. Jordan would] testify in the
same manner as with [Complainant].” Id. at 6. Appellant did not provide
any information in support of her belief that Mr. Jordan would offer testimony
contradictory to that of Complainant’s expected testimony. Nor did Appellant
indicate any other facts she believed Mr. Jordan would testify to if he were
compelled to appear and testify.
We conclude that Appellant’s proffer is akin to those in Lahoud and
Banks. As in Lahoud, nothing in Appellant’s proffer established that Mr.
Jordan’s testimony would have been favorable to her. See Lahoud, 488 A.2d
at 311. Additionally, like in Lahoud, Appellant did not establish the
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materiality of Mr. Jordan’s testimony by explaining what events Mr. Jordan
might testify about, and the relevance of those events to the crimes charged.
Like in Banks, Appellant’s proffer did not provide a sufficient factual
background for the trial court to believe that the proposed witness’s testimony
would have been material and favorable to Appellant’s defense. See Banks,
946 A.2d at 725-26.
Furthermore, Appellant’s reliance on McKenzie and Terry is unavailing.
The facts of this case are unlike those of McKenzie, in which the defendant’s
proffer included that the witness viewed the incident and previously gave a
statement indicating that someone other than the defendant was the shooter.
See McKenzie, 581 A.2d at 656-57. To the extent Appellant contends that
her proffer provided equal or more detail than the proffer in Terry, we note
that Terry was silent as to the potential substance of the missing witness’s
testimony. However, as discussed in Banks, Terry does not stand for the
proposition that there is an “‘absolute’ right to compel the attendance at trial
of any and all witnesses.” Banks, 946 A.2d at 726.
In sum, Appellant did not sufficiently explain the substance of Mr.
Jordan’s proposed testimony such that the trial court could determine if it was
material and favorable to the defense. All Appellant told the trial court was
that she believed that Mr. Jordan would contradict Complainant’s version of
events without offering any specifics. See N.T. Trial, 6/27/19, at 5-6.
Appellant did not present any information to the trial court about Mr. Jordan’s
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potential testimony except the unsubstantiated belief that his testimony would
contradict Complainant’s testimony. Appellant acknowledged that Mr. Jordan
had never given any statements that would demonstrate his trial testimony
would contradict Complainant’s account of events. Appellant’s offer of proof
was wholly speculative. Accordingly, she failed to demonstrate that Mr.
Jordan’s testimony would have been both material and favorable. Therefore,
the trial court did not violate Appellant’s due process right to offer witnesses
in her defense.
Based on the foregoing reasons herein, we affirm the judgment of
sentence. See Banks, 946 A.2d at 724; McKenzie, 581 A.2d at 657.
Judgment of sentence affirmed.
Judge King joins the memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/20
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