Com. v. Hamilton, A.

J-A19034-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY HAMILTON :
:
Appellant : No. 3159 EDA 2018
Appeal from the Judgment of Sentence Entered July 12, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002821-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED OCTOBER 21, 2020
Anthony Hamilton (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, after his jury
conviction of intimidation of a witness.1 On appeal, Appellant challenges the
sufficiency of the evidence, the trial court’s supplemental jury instruction, and
the discretionary aspects of his sentence. For the reasons below, we affirm.
On February 22, 2017, Appellant was arrested at the Criminal Justice
Center in Philadelphia, and charged with intimidation of a witness and criminal
conspiracy.2 The case proceeded to a jury trial commencing on December 5,
____________________________________________
1 18 Pa.C.S. § 4952(a)(2).
2 18 Pa.C.S. § 903.
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2017. The evidence presented during trial was aptly summarized by the trial
court as follows:
Complainant, Leona Morrison, testified that she came to the
Criminal Justice Center in Philadelphia on February 22, 2017 to
testify as a Commonwealth witness at the preliminary hearing of
[A]ppellant’s friend, Karl Howard. Howard had been charged with
murder in the shooting death of another man inside Kelli’s Bar on
September [4], 2016. [Morrison], who was working as a
bartender that night at the bar, had witnessed the shooting and
had given the police a statement. She also had identified the
shooter from a police photo array. She was subpoenaed to testify
on February 22, 2017 at Howard’s preliminary hearing in
Courtroom 306.
[Morrison] testified that when she arrived at the courthouse
[that morning] she took the elevator to the third floor. As she
exited the elevator to go to the courtroom, she observed two men
standing outside the elevator together, one of whom she
recognized as [A]ppellant. She had seen [A]ppellant a “couple”
times at Kelli’s Bar and had seen him there a few weeks before
the shooting with Howard. As she passed the two men, “one of
them started hissing” at her and one of them called her a “rat”
and “snake.” [Morrison] continued walking past the men and
upon entering the courtroom she alerted detectives about what
had just occurred. The detectives accompanied [her] back to the
elevator bank area where she identified [A]ppellant as one of the
two men who had hissed and called her a rat and snake. The
detectives then arrested [A]ppellant, who was subsequently
charged . . . with intimidation of a witness and conspiracy to
intimidate a witness. The individual who was with [A]ppellant was
later identified as Keddrick Dix.
The Commonwealth then played for the jury a video
recording of the incident and asked [Morrison] to identify and
describe what was occurring on the screen. [Morrison] again
testified that one of the men hissed and that the other said the
words “snake” and “rat.” [Morrison] was unable to remember
whether [A]ppellant was the one who hissed or said the words
snake and rat. When asked what she took the hissing and the
words snake and rat to mean she responded “That I am a rat that
I am telling on him, on someone.”
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[Morrison] testified further that after being hissed at and called
a rat and a snake, she felt “more scared” and that it made her
consider not testifying at the Howard murder trial although she
did so because she “thought it was right.” She stated that she did
not want to testify at [A]ppellant’s trial because she was “fearful.”
When asked what effect [A]ppellant’s actions had on her she
testified as follows:
“It is a nightmare. I have had nightmares since I got the
phone call saying that I had to come back and do this all
again. It has been a nightmare, I do not want to go to work
no more.”
On cross-examination [Morrison] stated that after she heard
[Appellant and Dix] say the words “rat” and “snake” she turned
and looked at them in the face. [Morrison] acknowledged that
when she testified on March 28, 2017[,] before the Indicting
Grand Jury she stated that she was looking at [A]ppellant when
he said the words “rat” and “snake” and then heard the other man
hissing at her.
The Commonwealth next called Detective John Bartol who
testified as follows. He was assisting his partner, Detective
Whalen, in the September [4], 2016 murder investigation at Kelli’s
Bar and [Morrison], who was a witness in that case, had given him
a statement and had made an identification. Both [ ] Morrison
and he were subpoenaed to court on February 22, 2017 to testify
at the preliminary hearing of . . . Howard. The Commonwealth
then played for the jury a video recording of the 3rd floor elevator
area on the morning of the incident beginning at 8:45 a.m. and
continuing to 9:24 a.m. Detective Bartol identified both
[A]ppellant and [ ] Dix as standing outside the elevators during
this entire period with [A]ppellant intermittently holding his cell
phone to his ear. He further identified [Morrison] exiting the
elevator and then at 9:24 a.m. walking past the elevator bank
turning right towards Courtroom 306 where Howard’s preliminary
hearing was scheduled to take place.
Detective Bartol stated that he was already in Courtroom 306
when [Morrison] entered the courtroom that day and informed
him and Detective Whalen about what had occurred when she was
exiting the elevators. He described her demeanor at that time as
“excited” and “upset.” She stated to them that “It was starting
already. I came off the elevator and they are out there. I was
called a rat and a snake and they were hissing at me.” Detective
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Bartol testified that he and Detective Whalen, together with
several uniformed police officers, escorted [Morrison] from the
courtroom and into the hallway to the elevator area where
[A]ppellant and [ ] Dix were still located at 9:27 a.m. [Morrison]
then positively identified both men as those who had hissed at her
and called her a rat and a snake. Detective Bartol then testified
that he had seen [A]ppellant earlier that morning when Detective
Bartol had exited the same elevator shortly before 9:00 a.m. and
witnessed [A]ppellant, who was standing outside the elevator,
look at a woman and [say] “Good morning, ma’am.” Detective
Bartol testified that it was his belief that [A]ppellant was standing
there making eye contact to see “exactly every person that was
walking by.”
The Commonwealth next called Detective Patrick Whalen who
testified as follows. He was the assigned detective to a homicide
that happened at Kelli’s bar on September 4, 2016[ and] was
subpoenaed to testify . . . at the preliminary hearing of defendant
Howard. When Detective Whalen exited the elevator on the 3rd
floor that morning, [A]ppellant was standing outside the elevator
and said “Good morning” to him. Detective Whalen stated that he
was in the anteroom of Courtroom 306 when [Morrison] entered .
. . “visibly shaken” and informed him and Detective Bartol that as
she was exiting the elevators she was called a rat and a snake by
two people and that one of them was hissing at her. [Morrison]
agreed to be interviewed about what happened[,] gave Detective
Whalen a statement and later testified before the Indicting Grand
Jury.
The Commonwealth then introduced into evidence by way of a
stipulation the prison visitor logs for defendant Howard from
Curran-Fromhold Correctional Facility which showed that
[A]ppellant visited Howard in person for a half an hour on
February 16, 2017. The Commonwealth then rested.
Appellant only presented the testimony of Ms. Tajanee Glover
who . . . is [A]ppellant’s fiancée[,] has known [A]ppellant for over
five (5) years and knows Karl Howard through [A]ppellant. She
testified that [A]ppellant and Karl Howard have known each other
“a long time.” On February 22, 2017, she and [A]ppellant dropped
her daughter off at school and then came to the Criminal Justice
Center at 8:30 a.m. to attend defendant Howard’s preliminary
hearing. She was not aware of what charges Howard was facing,
or even where the murder took place. She denied knowing any
“witness” that may be testifying against Howard. She testified
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that she went directly into the courtroom but that [A]ppellant
waited out in the hallway for the rest of Howard’s family to arrive,
including Howard’s “girlfriend or baby mom and . . . sister.” [ ]
Glover then identified a still picture taken that morning at 9:31
a.m. of Howard’s girlfriend and sister at the courthouse.
On cross-examination, [ ] Glover acknowledged that she had
not attempted to contact anyone in the Defender Association or
the Philadelphia Police Detective Division to tell them what she
testified to in court today. On redirect, she agreed that when she
first met [A]ppellant’s current counsel from the Defender’s
Association she told her that she was at the courthouse the day
[A]ppellant was arrested for witness intimidation and identified
herself on the video.
Trial Ct. Op., 10/30/19, at 4-8 (record citations omitted).
At the conclusion of trial, the jury found Appellant guilty of intimidation
of a witness, but not guilty of conspiracy. Appellant filed a pre-sentence
motion for extraordinary relief seeking a judgment of acquittal or new trial.
The court denied the motion on July 12, 2018. That same day, the trial court
sentenced Appellant to a term of 7½ to 20 years’ imprisonment, a sentence
within the standard guidelines range. Appellant filed a timely post-sentence
motion, which the court denied on September 28, 2018. This timely appeal
follows.3
Appellant raises the following four issues on appeal:
____________________________________________
3 On November 16, 2018, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied with the court’s directive and filed a concise statement on
November 26, 2018, which was docketed the following day. In addition,
Appellant sought an extension of time to file a supplemental statement once
the notes of testimony were transcribed. The court granted the petition, and
Appellant filed a supplemental Rule 1925(b) statement on January 15, 2019.
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1. Was not the evidence insufficient to establish
[A]ppellant’s guilt for intimidation, in violation of [A]ppellant’s
federal and state constitutional rights, where the Commonwealth
failed to prove beyond a reasonable doubt that [A]ppellant uttered
the words “rat, snake”?
2. Was not the evidence insufficient as a matter of law to
establish the elements of intimidation beyond a reasonable doubt,
in violation of [A]ppellant’s federal and state constitutional rights,
where the acts of uttering the words “rat, snake” or hissing do
not, in and of themselves, satisfy the requisite intent necessary to
constitute an act of intimidation under 18 Pa.C.S. § 4952?
3. Did not the trial court err as a matter of law by giving the
jury an erroneous supplemental instruction in response to the
jury’s question regarding the intimidation charge by expanding
the actus reus for which [A]ppellant had been tried?
4. Did not the court err as a matter of law and violate the
discretionary aspects of sentencing when it imposed a manifestly
excessive and unreasonable sentence of 7½ to 20 years of
incarceration, the maximum sentence allowable by law, the basis
for which lacked sufficient support in the record and was based on
impermissible factors; and the court failed to give individualized
consideration to [A]ppellant’s personal history, rehabilitative
needs and background, and was in excess of what was necessary
to address the gravity of the offense, the protection of the
community and [A]ppellant’s rehabilitative needs?
Appellant’s Brief at 4-5.
In his first two issues, which we address together, Appellant challenges
the sufficiency of the evidence supporting his conviction. First, he argues the
Commonwealth failed to prove beyond a reasonable doubt that he uttered the
words “rat” and “snake” to Morrison as she exited the elevator. Appellant’s
Brief at 22. Alternatively, Appellant maintains the mere act of uttering the
words “rat” and “snake” or hissing is insufficient to establish his intent to
intimidate Morrison. See id. at 25.
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Our review of a challenge to the sufficiency of the evidence is well-
established:
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused’s guilt is to be resolved by the fact-finder. As
an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not
disturb the verdict 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.
Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017)
(citation omitted). Further, we emphasize the “fact finder is free to believe
all, part, or none of the evidence.” Commonwealth v. Sexton, 222 A.3d
405, 416 (Pa. Super. 2019) (citation omitted).
In order to secure a conviction for intimidation of a witness, the
Commonwealth must prove beyond a reasonable doubt that the defendant
with the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, . . . intimidates or attempts to
intimidate any witness or victim to: . . .
(2) Give any false or misleading information or testimony
relating to the commission of any crime to any law
enforcement officer, prosecuting official or judge.
18 Pa.C.S. § 4952(a)(2). As our Supreme Court has explained:
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[I]ntimidation may be accomplished with no words at all, for a
mere look or posture can bully, threaten, coerce, frighten, or
intimidate beyond question. [Moreover,] people may purposely
intimidate in any number of ways, without manifesting bullying or
fearsome words, and if they do so with the requisite mens rea,
the crime is made out.
Commonwealth v. Doughty, 126 A.3d 951, 957 (Pa. 2015) (citation
omitted).
Appellant first argues the evidence was insufficient to support his
conviction because, during trial, Morrison could not identify which man —
Appellant or Dix — called her a rat and a snake, and which man hissed at her.
Appellant’s Brief at 22, citing N.T., 12/6/17, at 35. Appellant insists that the
Commonwealth proceeded on the theory that Appellant said the words rat
and snake, and, specified so in its opening statement. Id. at 23-24. Since
accomplice liability was not charged, Appellant maintains he “could, in fact,
only be guilty for the specific actus reus for which he was tried.” Id. at 24.
Thus, “because he cannot be held responsible for acts committed by [ ] Dix in
the absence of an accomplice liability charge,” Appellant contends his
conviction must be reversed. Id. at 25.
No relief is warranted. First, we note that while Morrison was unable to
specify at trial which man spoke the words to her and which man hissed,4
she identified Appellant as the person who spoke the words during the
indicting grand jury proceedings. N.T., 12/6/17, at 44. This testimony was
read during Appellant’s cross-examination of Morrison, when defense counsel
____________________________________________
4 Morrison unequivocally testified at trial that “[o]ne hissed and one said,
‘Snake and rat.’” N.T., 12/6/17, at 35.
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was attempting to discredit her. At trial, Morrison testified that she “turned
and looked at” Appellant and Dix after she heard one of them call her a rat
and a snake. Id. at 43. Upon cross-examination, defense counsel questioned
Morrison about her grand jury testimony:
[Appellant’s Counsel:] Do you remember testifying . . . “I looked
at the light-skinned boy [Appellant] in the face as he was saying
it. I just about to pass them.”
Do you remember testifying to that?
[Morrison:] Yes.
[Appellant’s Counsel:] Once he says it, and you are looking at
him as he says it, you also noticed that the other person that you
do not recognize is hissing, right?
[Morrison:] Yes.
Id. at 44 (emphasis supplied). Thus, the jury was free to credit Morrison’s
testimony during the grand jury proceedings, which was closer in time to the
event, when she identified Appellant as the speaker. Moreover, we emphasize
Morrison’s prior testimony was introduced by Appellant’s counsel, and
neither party challenged its admission. See Commonwealth v. Gray, 867
A.2d 560, 567 (Pa. Super. 2005) (explaining that “[i]n evaluating the
sufficiency of the evidence, we do not review a diminished record [and] the
law is clear that we are required to consider all evidence that was actually
received, without consideration as to the admissibility of that evidence or
whether the trial court’s evidentiary rulings are correct.”) (citation omitted).
Nevertheless, as we will discuss infra, Appellant’s conviction may be
affirmed if all he did was simply hiss at Morrison. Appellant’s actus reus claim
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is specious. Relying on cases in which the Commonwealth belatedly requested
to amend an information or delinquency petition,5 Appellant asserts he may
be convicted only for the specific act “for which he was tried,” that is for
saying the words rat and snake, and not for hissing.6 See Appellant’s Brief at
24. However, what Appellant fails to recognize is that he was convicted of the
act for which he was charged — intimidating a witness. Neither Appellant’s
grand jury indictment, nor his criminal information, specified how or by what
means Appellant intimidated Morrison. See Appellant’s Indictment, 3/20/17,
at Count 1; Appellant’s Information, 4/12/17, at Count 3. As the
Commonwealth notes in its brief, Appellant “cites no caselaw indicating the
Commonwealth must establish the precise version of events as alleged in its
opening.” Commonwealth’s Brief at 12. Accordingly, this argument fails.7
Appellant also argues the evidence was insufficient to support his
conviction because “the mere acts of uttering ‘rat, snake’ or making a hissing
____________________________________________
5See Appellant’s Brief at 24-25, citing Commonwealth v. DeSumma, 559
A.2d 521 (Pa. 1989); In Interest of Becker, 536 A.2d 1370 (Pa. Super.
1988).
6 Appellant bases this assertion on the fact that in its opening and closing
arguments, the Commonwealth stated that Appellant was the person who
called Morrison a rat and a snake. See Appellant’s Brief at 9-10, citing N.T.,
12/6/17, at 21; N.T., 12/7/17, at 25, 37, 39.
7 Appellant’s focus on the lack of an accomplice liability charge is similarly
misplaced. See Appellant’s Brief at 24; Appellant’s Reply Brief at 3. As we
will discuss infra, Appellant’s conviction is rooted in his own actions – either
by calling Morrison a rat and a snake, or hissing at her as she walked by.
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sound, in the absence of any other actions or conduct, are insufficient to
[establish] the requisite intent to intimidate under 18 Pa.C.S. § 4952.”
Appellant’s Brief at 25. He asserts “[w]ords or acts that are not alone
inherently intimidating require proof of additional conduct from which the
intent to intimidate may be inferred.” Id. at 27.
Appellant insists the “totality of the circumstances” present in his case
do not support the guilty verdict. Appellant’s Brief at 29. He notes: the
incident lasted a few “brief seconds;” the video of the encounter did not show
“any type of reaction” by any of the persons involved; and there was no
evidence of prior or subsequent contact between Appellant and Morrison. Id.
Rather, Appellant contends the facts of his case are similar to those in Von
Evans, in which this Court held that a “single pecuniary offer to a victim
‘without more,’ is insufficient to establish a defendant intended to ‘intimidate’
a witness.” Von Evans, 163 A.3d at 28.
Moreover, Appellant maintains that what occurred in the present case
was “name-calling and nothing more.” Appellant’s Brief at 34. He explains:
While the acts alleged here could be used to provoke a reaction or
a feeling from a person, they are not, on their own, sufficient to
indicate an intent to intimidate one into altering their behavior or
testimony. It cannot be the law that every time someone calls
someone a bad name, it would be sufficient to evidence a threat
conclusive of an intent to intimidate.
Id. at 35. Further, while insisting he is not raising a First Amendment
challenge, Appellant cites First Amendment case law as “instructive” in
determining whether his actions — either calling Morrison a rat and a snake
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or hissing at her — constituted a “true threat” under the First Amendment.
See id. 36-41.
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we conclude the evidence was sufficient to support the
jury’s verdict. See Von Evans, 163 A.3d at 983. As noted above, in order
to convict Appellant of witness intimidation, the Commonwealth was required
to prove that Appellant, with the intent to impede the administration of justice,
attempted to intimidate a witness (Morrison) into giving false or misleading
testimony. See 42 Pa.C.S. § 4952(a)(2).
Here, the evidence established that Appellant had known Howard for
“[a] long time,” that Morrison had seen Appellant and Howard together in the
bar a few weeks before the shooting, and that Appellant visited Howard in
prison on February 16, 2017, less than a week before Howard’s preliminary
hearing. See N.T., 12/6/17, at 32, 76-77, 79. Detective Bartol testified that
on the morning of Howard’s preliminary hearing — February 22, 2017 — he
arrived at the courtroom at 8:45 a.m., and observed Appellant standing in the
hallway. Id. at 53. The detective testified that he noticed Appellant look at
each person as they walked by, and it was his “belief that [Appellant] was
standing there looking and making eye contact to see exactly every person
that was walking by.” Id. at 61. The surveillance video from the hallway
confirmed that Appellant and Dix were standing by the elevator from 8:59
a.m. until Morrison arrived at 9:24 a.m. See id. at 53-57.
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Morrison testified that as she exited the elevator and walked past
Appellant and Dix, one of them called her a rat and a snake and the other man
hissed. N.T., 12/6/17, at 31. At the grand jury proceeding, Morrison
positively identified Appellant as the speaker. Id. at 44. Morrison proceeded
to the courtroom, where she immediately notified Detectives Bartol and
Whalen what had occurred. Id. at 35. Detective Bartol testified that Morrison
told him, “It is starting already. I just came off the elevator and they are out
there. I was just called a rat and snake and they were hissing at me.” Id. at
58. Detective Whalen described Morrison’s demeanor as “visibly shaken.” Id.
at 70-71. Morrison testified the incident made her feel “more scared” and she
considered not testifying against Howard, although she ultimately decided to
do so because “it was right.” Id. at 38. She further explained that she now
has nightmares as a result of the incident. Id. at 39.
Although Appellant emphasizes he did not overtly threaten Morrison or
follow her into the courtroom, we conclude that the totality of the
circumstances supports the jury’s determination that Appellant either called
Morrison a rat and a snake or hissed at her with the intent to intimidate her
so that she would decline to identify his longtime friend as a murderer.
Contrary to Appellant’s characterization, he did not simply engage in name-
calling in an effort to provoke a reaction. See Appellant’s Brief at 35.
Appellant and his cohort waited outside the courtroom on the morning of
Howard’s preliminary hearing until Morrison arrived. Then, as Morrison made
her way to the courtroom, where she intended to testify against Appellant’s
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friend, Appellant and Dix called her a rat and a snake and hissed at her. If a
stranger on the street called Morrison a rat or hissed at her, we would agree
that such behavior likely constituted simple name-calling. However, in the
present case, context is key. The incident took place in the courthouse,
minutes before Morrison was scheduled to testify against Appellant’s friend
Howard, who was charged with murder. The surveillance video showed
Appellant and Dix waiting by the elevator for half an hour, and Detective Bartol
testified he noticed Appellant look at each person as they walked by. Although
Appellant’s fiancée testified that he was waiting for Howard’s family, the jury
was free to disregard that testimony. See Sexton, 222 A.3d at 416.
Furthermore, we do not agree that this Court’s decision in Von Evans
compels a different result. In that case, the appellant was incarcerated and
awaiting trial in a rape case, when he asked his girlfriend to contact the victim
and “offer to pay her not to testify.” Von Evans, 163 A.3d at 981-82.
Although the appellant’s girlfriend was unable to contact the victim, the
appellant was subsequently charged with, inter alia, criminal solicitation to
intimidate a witness. Id. at 982. At his rape trial, the appellant admitted to
the above facts, but testified his intention was “not to hurt anyone,” but rather
“give her the money, [so that] all of this could go away.” Id. at 982-83.
The appellant was later convicted of solicitation to intimidate a witness.
On appeal, this Court vacated the sentence, concluding the evidence
demonstrated the appellant “merely intended to ‘induce’ the victim not to
testify,” rather than intimidate her. Von Evans, 163 A.3d at 981. Relying on
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the Pennsylvania Supreme Court’s decision in Doughty, the Von Evans Court
observed:
[T]he fact-finder cannot infer “intimidation” from the mere offer
of a pecuniary benefit not to testify. Rather, there must be other
evidence from which the fact-finder can infer intimidation, such as
a prior relationship between the defendant and victim or the
manner in which the defendant made the pecuniary offer not to
testify[.]
Id. at 984, citing Doughty, 126 A.3d at 957. The Court noted that in
Doughty, the jury was able to infer the appellant’s intent to intimidate based
upon prior contact between the appellant and the victim (his wife),
particularly, his history of threatening her, and the “strong invective” he
expressed when he made the pecuniary offer. Id. at 984-85. However, the
Von Evans Court found no such other circumstances in the case before it:
Although we are horrified by the brutality of [the a]ppellant’s
actions in the underlying [rape], . . . in this case there was no
evidence of a history of violent interactions between the
[a]ppellant and the victim and no invective conversation making
the pecuniary offer to the victim. Rather, the Commonwealth's
only evidence was a conversation between the [a]ppellant and a
third party to make a pecuniary offer. We conclude that this,
without more, is evidence merely of an intention to “induce,” and
not to “intimidate” a witness from not testifying.
Id. at 985.
The facts in the present case are distinguishable. First, Appellant did
not simply make a pecuniary offer to Morrison in an attempt to induce her not
to testify. Rather, he and a cohort waited for her arrival at Howard’s
preliminary hearing. When she stepped off the elevator, he and his cohort
immediately called her a rat and a snake and hissed at her. Morrison knew
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Appellant was, at the very least, an acquaintance of Howard. Thus, the
evidence demonstrated that she interpreted the incident as it was intended –
an attempt to “intimidate” her not to testify at Howard’s preliminary hearing.
The Doughty Court made clear that “people may purposely intimidate
in any number of ways, without manifesting bullying or fearsome words, and
if they do with the requisite mens rea, the crime is made out.” Doughty, 126
A.3d at 957. Indeed, “intimidation may be accomplished with no words at all,
for a mere look or posture can bully, threaten, coerce, frighten or
intimidate[.]” Id. Here, the totality of the circumstances surrounding the
incident — which occurred in the courthouse immediately before Morrison was
scheduled to identify his friend as a murderer — provided a sufficient basis for
the jury to conclude Appellant intended to intimidate Morrison not to testify
when he and Dix called her a rat and a snake and hissed at her.
Appellant’s reliance on First Amendment law is similarly misplaced.
Indeed, he concedes he “does not raise a claim under the First Amendment.”
Appellant’s Brief at 36. Nevertheless, Appellant insists that states are only
permitted to “ban a “true threat” under the First Amendment.” Id., citing
Watts v. United States, 394 U.S. 705 (1969) (government may criminalize
true threats against the president, but not simply political hyperbole). He
further argues “because ‘rat, snake’ and hissing are words indicating a
personal opinion or expression, uttering ‘rat, snake’ or hissing is not always a
‘true threat’ indicating an intent to intimidate[.]” Appellant’s Brief at 37.
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Accordingly, he insists “it is not prima facie evidence of intent to intimidate.”
Id.Preliminarily, we note any First Amendment argument is waived because
Appellant did not raise such a claim in the trial court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Nevertheless, Appellant fails to acknowledge that his
prosecution involved more than mere name-calling. As discussed above, the
totality of the circumstances surrounding the incident provided the jury with
a sufficient basis to conclude Appellant intended to intimidate Morrison.
Accordingly, Appellant’s first two claims warrant no relief.
In his third issue, Appellant challenges the trial court’s supplemental
jury instruction, which was provided in response to a jury question.
Appellant’s Brief at 42. It is well-settled that “[w]e review jury charges,
including supplemental jury charges, for an abuse of discretion.”
Commonwealth v. Greer, 951 A.2d 346, 354 (Pa. 2008) (citation omitted).
Moreover,
when evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, “[i]t is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration.” “Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.”
Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super. 2007)
(citations omitted).
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By way of background, we note the trial court initially instructed the jury
that in order to find Appellant guilty of intimidation of a witness, it must find,
first, “that [Appellant] intimidated or attempted to intimidate Leona Morrison
by calling her a rat and a snake.” N.T., 12/7/17, at 53 (emphasis added).
During their deliberations, the jury asked the court, “[F]or the intimidation
charge, to find guilty, do we need to find that [Appellant] said rat or snake or
is it enough to find he hissed?” Id. at 61. During the ensuing discussion with
counsel, the trial court stated that its answer to the question would be “yes,
because . . . that is conspiracy[.]” Id. at 62. Appellant’s counsel urged the
court to simply “reread the charge and not give an opinion one way or the
other to this question.” Id. Conversely, the prosecutor argued that the court
should answer “yes,” because “the conspiracy covers actions by either of
them.” Id. After further discussion, the following exchange occurred:
[THE COURT]: I don’t have an issue with clarifying it. That’s
what the allegations are is that somebody said rat and snake and
somebody hissed. So, they would have to find that both things
happened to find [Appellant] guilty of intimidation and conspiracy,
not that he would have had to have done both things.
[Commonwealth]: That is the spirit of the whole trial, that’s
okay with me.
THE COURT: Let me clarify it that way and explain it that
way, is that all right?
[Appellant’s counsel]: That is fine.
Id. at 66.
When the jury returned to the courtroom the trial court gave the
following supplemental charge:
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As to [your] question to the intimidation charge, to find
guilt, do you need to find that [Appellant] said rat or snake or is
it enough to find he hissed?
You need to find that [Appellant] or the codefendant,
Keddrick Dix, needed to say rat or snake and [Appellant] or
Keddrick Dix hissed. So, one can do one and one can do the other.
You need to find that, and you need to find that [Appellant] was
one of those two people. I hope that answers your question.
N.T., 12/7/17, at 71-72. Appellant’s counsel raised no objection. Thereafter,
the jury found Appellant guilty of intimidation of a witness, and not guilty of
conspiracy. See id. at 77-80.
On appeal, Appellant argues the supplemental charge “was erroneous
as it expanded the actus reus for which [Appellant] could be found guilty
beyond that for which he had been tried.” Appellant’s Brief at 43. Rather
than clarifying the instruction for the jury, as the trial court indicated it would,
Appellant insists the court’s supplemental charge “changed the conduct for
which [Appellant] has been tried and completely altered the original jury
instruction.” Id. at 48. Moreover, Appellant maintains the prejudice is
“apparent” because, based upon the original instruction, the jury could not
find him guilty if it did not believe he called Morrison a rat and a snake, but
under the supplemental instruction, it could if it believed he was the person
who hissed. Id. at 50.
The Commonwealth contends, however, that this issue is waived.
Commonwealth’s Brief at 13-14. We agree. Pennsylvania Rule of Criminal
Procedure 647 mandates, in pertinent part:
(C) No portions of the charge nor omissions from the charge may
be assigned as error, unless specific objections are made thereto
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before the jury retires to deliberate. All such objections shall be
made beyond the hearing of the jury.
Pa.R.Crim.P. 647(C). See also Pa.R.A.P. 302(b) (“A general exception to the
charge to the jury will not preserve an issue for appeal. Specific exception
shall be taken to the language or omission complained of.”).
The Pennsylvania Supreme Court’s decision in Commonwealth v.
Edmondson, 718 A.2d 751 (Pa. 1998), is dispositive. In that case, during
deliberations, the jury asked the trial court what would happen if it could not
reach a verdict on one of the crimes charged. Id. at 752. The trial court
provided a supplemental instruction, which a panel of this Court found to be
“coercive” on direct appeal. Id. Accordingly, the panel reversed and
remanded the case for a new trial. Id. The Pennsylvania Supreme Court,
however, concluded the claim was waived because defense counsel failed to
object to the supplemental instruction when it was given. Id. The Court
opined:
Requiring a timely, specific objection to be lodged in the trial court
ensures that the trial judge has a chance to correct alleged trial
errors and eliminates the possibility that the appellate court will
be required to expend time and energy reviewing points on which
no trial ruling has been made.
Here, even though the jury instruction in question may have
been coercive, as determined by the Superior Court, [the
defendant] failed to object to the trial court’s supplemental
instruction when it was given. This failure deprived the court of
the opportunity to give a curative instruction if it felt that one was
appropriate. Pennsylvania Rule of Criminal Procedure 1119[8]
____________________________________________
8Rule 1119 was renumbered as Rule 647 in March of 2000. See Pa.R.Crim.P.
647 (“Credits”).
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clearly requires that a timely objection be lodged in order to
preserve error in the original instructions. The fact that [the
defendant] raised this issue in post-trial motions and in his
statement of matters complained of on appeal and the trial court
addressed the issue does not change the result.
Id. at 753 (citations and footnoted omitted).
Edmondson compels the same result here. When Appellant failed to
object after the trial court issued its supplemental instruction, he waived any
challenge to that instruction on appeal. Thus, no relief is warranted.
In his final claim, Appellant challenges the discretionary aspects of his
sentence. It is well-established that such a challenge does not entitle an
appellant to “review as of right.” Commonwealth v. Caldwell, 117 A.3d
763, 768 (Pa. Super. 2015) (en banc) (citation omitted). Rather,
[b]efore this Court can address such a discretionary challenge, an
appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must 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 substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Id.In the present case, Appellant filed a timely notice of appeal, and
preserved his claim in a timely-filed post-sentence motion. See Appellant’s
Post Sentence Motions and Motion to Reconsider Sentence, 7/14/18, at 9-10
(unpaginated). In addition, he has included in his brief the requisite concise
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statement of reasons relied upon for appeal pursuant to Pa.R.A.P. 2119(f).
See Appellant’s Brief at 17-20. Accordingly, we must now consider whether
Appellant’s claim raises a substantial question.
An appellant “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. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (citation
omitted), appeal denied, 206 A.3d 1029 (Pa. 2019).
In determining whether a substantial question exists, “[o]ur
inquiry must focus on the reasons for which the appeal is sought
in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Additionally, we cannot
look beyond the statement of questions presented and the
prefatory 2119(f) statement to determine whether a substantial
question exists.
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(citations omitted).
In the present case, Appellant argues the sentence imposed by the trial
court was manifestly excessive and unreasonable. Appellant’s Brief at 17. He
contends the trial court focuses solely on the seriousness of his crime, while
failing to consider the remaining factors listed in Section 9721 of the
Sentencing Code. Id. at 18. See 42 Pa.C.S. § 9721(b) (“The court shall
follow the general principle that the sentence imposed should call for total
confinement that is consistent with . . . the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.”). Appellant also
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maintains that the trial court imposed the maximum sentence allowable by
relying on “inappropriate” factors, namely, “a litany of uncharged conduct and
unadjudicated arrests, including disciplinary reports from school and prison,
as well as inadmissible hearsay statements from the complainant dating back
to before trial.” Appellant’s Brief at 19. Allegations that the trial court failed
to consider the relevant factors set forth in Section 9721(b), and imposed a
“manifestly excessive and unreasonable sentence,” both raise a substantial
question for our review. See Commonwealth v. Roane, 204 A.3d 998, 1002
(Pa. Super. 2019). Moreover, a claim that “the sentencing court relied on
‘impermissible factors’” also raises a substantial question. Commonwealth
v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). Thus, we may proceed
to a review of Appellant’s claims.9
Preliminarily, we note:
Sentencing is the responsibility of the trial court and we will not
disturb the sentence unless there is a manifest abuse of discretion.
To establish a manifest abuse of discretion, the appellant must
____________________________________________
9 We note the Commonwealth insists Appellant’s sentencing claims are waived
because his Rule 1925(b) statement was not “specific enough to permit
meaningful review.” Commonwealth’s Brief at 16. Indeed, in both his original
and supplemental statements, Appellant asserted the court’s sentence was
“based on inappropriate reasons.” See Appellant’s Statement of Errors
Complained of on Appeal, 11/26/18, at 3 (unpaginated); Appellant’s
Supplemental Statement of Errors Complained of on Appeal, 1/15/19, at 3
(unpaginated). While we agree Appellant should have been more explicit, we
decline to find waiver here as his post-sentence motion specified the trial court
relied upon prior bad conduct and hearsay statements in imposing his
sentence. See Appellant’s Post-Sentence Motions and Motion to Reconsider
Sentence at 9.
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show a misapplication of the law, or partiality, prejudice, bias, or
ill will that led to the unreasonable decision.
Commonwealth v. Knox, 219 A.3d 186, 199 (Pa. Super. 2019) (citations
omitted). Before imposing sentence, a trial court must consider the relevant
sentencing guideline ranges, as well as “the factors set out in 42 Pa.C.S. §
9721(b), that is, the protection of the public, gravity of offense in relation to
impact on victim and community, and rehabilitative needs of the defendant.”
Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa. Super. 2011)
(citation omitted). When the sentence falls within the standard range of the
guidelines, an appellate court is authorized to vacate the sentence only if “the
case involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2). Section 9781 further
provides that when reviewing the record, an appellate court should consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d)(1)-(4).
Here, the trial court acknowledged that the sentencing guidelines called
for a standard range minimum sentence of 72 to 90 months’ imprisonment
based upon Appellant’s prior record score of five and the offense gravity score
of 11. N.T., 7/12/18, at 51, 107. See 204 Pa.Code 303.16(a). Thus, the
minimum sentence imposed — 7½ years’ imprisonment — fell within the upper
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end of the standard range. The trial court made the following comments
before imposing sentence:
I have considered all the evidence in this case; trial evidence,
presentence, mental health, the prior record score reports, all of
the testimony presented at the sentencing hearing today, all of
the reports that have been previously submitted by both counsel
as well as . . . what [Appellant] has to say and the sentencing
guidelines, the sentencing code, and the factors I’m supposed to
consider which are the need for the protection of the public, the
gravity of the offense, and rehabilitative needs of [Appellant.]
* * *
Your case had to go to what we call an indicting grand jury[, which
was] created because of the rampant witness intimidation in
Philadelphia and other places. . . .
* * *
[W]hen people try to intimidate witnesses, you’re putting a knife
through the heart of the criminal justice system; the [C]rimes
[C]ode, all the [R]ules of [C]riminal [P]rocedure that they cited,
all the case law today, it means nothing. My robe might as well
be ripped up and thrown away. Because if witnesses are fearful
about coming in to testify, we have no criminal justice system.
* * *
We don’t just convict people on police reports or summaries
or the DA’s allegations. And so when people start intimidating
witnesses it’s like destroying our system. This building becomes
irrelevant because of what’s going on in the streets, but when it
actually happens in the building as somebody gets off an elevator
to go to testify in a preliminary hearing and the irony of all of this
is that Mr. Howard was found not guilty, despite the witnesses[’]
testimony at trial.
* * *
[Y]ou know, there are threats and then there are the context of
when threats are made. It’s one thing in anger that somebody
yells at somebody over a parking space, but it’s another thing
when somebody is in the Criminal Justice Center outside of an
elevator on the floor of the preliminary hearing who was involved
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[in] what you were convicted of. And I didn’t convict you, the jury
did. The jury heard all the evidence.
I can’t rewind the tape of what happened to you when you
were growing up and I’m not here to dispute that you had a hard
childhood. Many people in front of me have hard childhoods. Very
few I’ve ever seen come into this building, and stay outside of a
homicide preliminary hearing room and try to intimidate
witnesses; usually this goes on on the street, but the boldness in
this building of doing it? That’s why we have cameras in the
hallway. . . . Fortunately, the cameras caught this. That’s why
they installed them; to stop this behavior which goes right to the
heart of what our democracy and our justice system is about.
This is not Iraq or Syria or some other uncivilized country
where you get the justice on the street and they kill each other.
And that’s how justice goes on. The courts are a joke. This is the
United States of America. You’ve been afforded all these
protections in all the cases you had, and then you come into this
building and do this?
. . . Based on my review of everything that I have stated, the
sentence on the intimidation is as follows; seven-and-a half to 20
years[.] . . . [T]he guidelines are what they are because of the
kind of damage that these crimes do in society. And what
happened here is wrong on so many levels. They didn’t ever need
to happen, but you decided that day you were going to do what
you did. . . .
N.T., 7/12/18, at 100-08.
Furthermore, in its opinion, the trial court elaborated that it found “very
little evidence of mitigation” benefiting Appellant. Trial Ct. Op. at 17. Indeed,
while the trial court acknowledged it had reviewed a mitigation packet
prepared by the defense, as well as the testimony of Raymond Moore, a social
worker from the Public Defenders’ Office, it found “Appellant’s background
demonstrated a persistent disturbing pattern of drug use and dealing,
aggressive and physical interactions with police and teachers, possession of
illegal firearms and now intimidation of a witness in a homicide trial while in
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the courthouse.” Id. at 18. Thus, the court maintained that its sentence of
7½ to 20 years’ imprisonment did not constitute an abuse of discretion. Id.
at 19.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we detect no basis to disturb the trial court’s standard
range sentence. While we agree the trial court emphasized the seriousness
of the crime of witness intimidation,10 we disagree the court did so to the
extent that it failed to give proper consideration to the remaining Section
9721(b) factors. As noted above, the trial court was well aware of Appellant’s
background and rehabilitative needs, through the memoranda prepared
before sentencing and the comprehensive testimony of the social worker from
the Defender’s Office. See N.T., 7/12/18, at 59-76. Although Mr. Moore
testified that Appellant would benefit from “trauma-informed therapy” and
“intensive” outpatient mental health treatment, and that he would remain in
“close contact” with Appellant if he was on supervision, he also acknowledged
that Appellant had been discharged from a juvenile facility in 2008 for
“aggressive and unruly behavior,” and he was unaware of “any programs
[Appellant had] taken advantage of from his previous incarceration
episodes[.]” Id. at 64, 67, 73, 75. Therefore, the court’s failure to embrace
Appellant’s call for leniency does not constitute an abuse of discretion. See
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (“We
____________________________________________
10 See Appellant’s Brief at 55-56.
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cannot re-weigh the sentencing factors and impose our judgment in the place
of the sentencing court.”).
We also reject Appellant’s claim that, in imposing his sentence, the trial
court “improperly relied upon unadjudicated arrests and conduct,” as well as
“inadmissible hearsay in the form of statements made by the complainant to
the prosecutor.” Appellant’s Brief at 56, 58. Specifically, he notes that the
Commonwealth “listed every arrest and conviction of [Appellant’s] replete with
a summary of facts for each[, and] introduced into evidence [his] disciplinary
records and referenced a litany of conduct involving teachers at school, for
which he was not arrested.” Appellant’s Brief at 57. Moreover, Appellant
emphasizes the trial court also permitted the prosecutor to relay statements
the victim made to them regarding her fear of testifying in the underlying
case, and the reason she did not appear for sentencing. See id. at 58.
First, we remind Appellant:
The conduct of a sentencing hearing differs from the trial of the
case. To determine an appropriate penalty, the sentencing court
may consider any evidence it deems relevant. While due process
applies, the sentencing court is neither bound by the same rules
of evidence nor criminal procedure as it is in a criminal trial.
Commonwealth v. King, 182 A.3d 449, 455 (Pa. Super. 2018) (citations
omitted). Moreover, this Court has approved a sentencing court’s
consideration of uncharged criminal conduct when imposing sentence, so long
as there is an “evidentiary link between the defendant and the uncharged prior
conduct.” Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa. Super. 2006).
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Here, the Commonwealth’s discussion of Appellant’s prior arrests and
disciplinary records was in direct response to the following arguments by
defense counsel, attempting to minimize both this crime and Appellant’s prior
record: (1) Appellant did not “physically attack” the victim or “hurt her in any
way intimidate the victim, rather, he simply “said something inappropriate[;]”
(2) Appellant is “not a violent person[;]” (3) Appellant’s two juvenile
adjudications for robbery were not “physical;” and (4) Appellant is not a
“criminal mastermind, who is escalating and violent and [who] we should be
more and more worried about[.]” N.T., 7/12/18, at 53-54, 56, 57. In
response, the Commonwealth referred to information in its sentencing
memorandum, as well as Appellant’s school disciplinary records. See id. at
78-80. When Appellant’s counsel protested that many of the incidents
referred to were over 10 years old, when Appellant was a juvenile, the trial
court stated:
Yes, and you brought up a lot of other things, too, about his
juvenile past. I’ll take it for whatever weight is appropriate.
They’re not convictions but it’s part of a presentence presentation.
Id. at 84.
Furthermore, with regard to hearsay statements by the victim, we note
Morrison testified at trial that she has had “nightmares” since the incident and
does not “want to go to work[.]” N.T., 12/6/17, at 39. Thus, the prosecutor’s
statement that she is “extremely upset” and “still wets her bed at night” was
nothing more than an exaggerated rehash of testimony the court already
heard. See N.T., 7/12/18, at 86. Moreover, the trial court did not refer to
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this testimony, or Morrison’s failure to appear for sentencing, in its statement
before imposing sentence or in its opinion. Thus, we reject Appellant’s claim
that the trial court relied on inappropriate factors in imposing his sentence.
Therefore, because we conclude Appellant is entitled to no relief, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2020
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