Com. v. Rivera, E.

J-A28042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMILIO J. RIVERA :
:
Appellant : No. 1662 WDA 2018
Appeal from the Judgment of Sentence Entered October 23, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014290-2011
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 23, 2021
Emilio J. Rivera (Appellant) appeals from his judgment of sentence
imposed by the Court of Common Pleas of Allegheny County after his
convictions before a jury of burglary, robbery with serious bodily injury, four
counts of unlawful restraint, and four counts of reckless endangerment of
another person (REAP).1 He brings twenty-two claims of error. For the
reasons outlined infra, we affirm.2
A. Did the Commonwealth violate Appellant’s rights as
protected by Brady[3] and progeny when it failed to provide
exculpatory discovery which would have shown that Detective
1 18 Pa.C.S. §§ 3502, 3701(a)(1)(i), 2902(a) and (b), and 2705.
2 Appellant’s direct appellate rights were reinstated nunc pro tunc after the
trial court heard his initial, timely petition under the Post Conviction Relief Act,
42 Pa.C.S. §§ 9541-9546 (PCRA).
3 Brady v. Maryland, 373 U.S. 83 (1963).
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Sherwood promised favorable treatment to the Commonwealth’s
key witness, Mr. Sean Ball, who committed perjury at trial by
claiming he had not been promised leniency; given that numerous
individuals were identified as the suspect in this offense prior to
Appellant being targeted, and given that one of the victims in this
crime was a police officer, presumably heightening the
investigators’ eagerness to solve the crime, it is averred that Mr.
Ball’s testimony was critical to the prosecution’s theory, and thus
depriving the Defense of meaningful evidence shedding light on
Mr. Ball’s credibility and veracity constituted reversible error?
B. Did the trial court improperly admit evidence derived from
the illegal wiretap of Sean Ball, given that (a) Deputy District
Attorney failed to comply with the Wiretap Act by, inter alia, failing
to obtain the required authorization given that part of the
intercepted communications occurred inside [Appellant’s]
residence, triggering the requirements of 18 Pa.C.S. § 5704(2)(4)
and (b) the agents involved with the electronic surveillance were
not the authorized agents to do so? Where the Memorandum of
Request of August 1, 2011 specifically stated that the following
individuals would conduct the interception: Jason Binder, John
Love, Mike Feeney, and Thomas Foley, all with the Allegheny
County Police. However, the reports in this matter make clear
that other, not-authorized individuals were involved in some of
the interceptions, namely, Special Agent Ryan Rennig of the ATF,
Special Agent Frank Vezio of the DEA and Agent Robert Iuzzolino
of the Pennsylvania Office[ ] of the Attorney General. This
involvement of non-authorized agents to intercept
communications, an interception tightly regulated by applicable
statutory law, invalidated the seizure of the information derived
from these interceptions, requiring suppression of the evidence
obtained from those invalid interceptions and also tainting
subsequent investigation into this case[?]
C. Was the evidence presented at trial insufficient to prove
beyond a reasonable doubt that Appellant was guilty of burglary,
given that the evidence failed to prove beyond a reasonable doubt
that Appellant entered a building or occupied structure with the
intent to commit a crime therein?
D. Was the evidence presented at trial insufficient to prove
beyond a reasonable doubt that Appellant was guilty of Robbery
where insufficient evidence showed that the conduct occurred in
the course of committing a theft?
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E. Was the evidence presented at trial insufficient to prove
beyond a reasonable doubt that Appellant was guilty of Robbery
where insufficient evidence showed that he inflicted serious bodily
injury [(SBI)] upon another or threatening another with or
intentionally put[ting] him in fear of immediate [SBI]?
F. Was the evidence presented at trial insufficient to prove
beyond a reasonable doubt that Appellant was guilty of [REAP]
where insufficient evidence showed that he placed another person
in danger of death or [SBI]?
G. Was the evidence presented at trial insufficient to prove
beyond a reasonable doubt that Appellant was guilty of Unlawful
Restraint where insufficient evidence showed that he restrained
another unlawfully in circumstances exposing the alleged victim
to risk of [SBI]?
H. Were . . . Appellant’s convictions against the weight of
evidence, given that no [ ] forensic physical evidence – no DNA,
no weapon, no fingerprints – connected Appellant to the crimes,
given that the victim’s identification was ever-changing and
unreliable – in fact, she identified two other perpetrators in this
case prior to allegedly identifying Appellant – and given that the
keystone of the Commonwealth’s case was based [on] wiretap
evidence related to Sean Ball, although that wiretap evidence was
illegally obtained and the defense was not provided a full and fair
opportunity to cross[-]examine Mr. Ball during trial?
I. Did the trial court err in admitting Appellant’s incriminating
statements made after he requested counsel?
J. Did the trial court err in admitting Appellant’s prior
convictions at trial when said convictions improperly were used to
impeach the credibility of witness Brandy Balogh?
K. Did the trial court err in admitting a conversation between
[Appellant] and Mr. Ball which suggested that Appellant did not
want to go back to jail, which suggested he had been in jail before,
thus introducing prior bad acts into the trial in violation of
established evidentiary rules?
L. Should the cases of [Appellant] and [co-defendant Marcus]
Andrejco have been severed due to the prejudicial effect of
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allowing evidence in to support Mr. Andrejco’s defense which was
overly prejudicial to [Appellant’s] defense?
M. Was Appellant deprived of his constitutional right to fully
and effectively cross[-]examine Sean Ball at trial?
N. Did the trial court err in admitting the suppression hearing
testimony of Detective Langan, who was declared to be an
unavailable witness at trial (due to illness) despite the fact that
the Defense had not been given a full and fair opportunity to
cross-examine him?
O. Did Appellant receive an illegally enhanced sentence[ ]
pursuant to 42 Pa.C.S. § 9714, when both violent [charges] –
robbery and burglary – arose from a single criminal episode?
P. Did Judge Mariani improperly require Attorney Rachael
Santoriella to remove herself from the case which deprived
[Appellant] of the attorney of his choice?
Q. Did Judge Borkowski fail[ ] to recuse himself despite having
had an acrimonious relationship with Defense Attorney Gettleman
previously?
R. Did the sentencing judge give inadequate consideration to
the mandatory sentencing criteria, per 42 Pa.C.S. §§ 9721 and
9725?
S. Did the sentencing judge give [ ] disproportionate [ ] weight
to the nature and facts of the crime?
T. Did the sentencing judge give inappropriate consideration to
the harm incurred by Officer Kuzak given that the jury’s verdict
suggested that it did not believe that Appellant was involved in
shooting the officer?
U. Did the trial court improperly impose the sentences for
burglary and robbery to run consecutively?
V. Did the trial court impose a manifestly excessive aggregate
sentence?
Appellant’s Brief at 16-20.
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The trial court summarized the facts adduced at trial as follows:
On April 4, 2011, Tasha Grayson and Keith Mullen were
watching television at home while their two children slept upstairs,
at 858 Miller Avenue in the City of Clairton, Allegheny County. At
approximately 10:30 P.M., Grayson and Mullen heard a loud bang
in the kitchen, which Mullen investigated. While Mullen was
looking out the back window, a man started banging on the
kitchen door, yelling, “This is the FBI. Open up.” Mullen went to
the basement to get their dog and Grayson went upstairs to the
kids’ room.
As the man outside continued to knock, Mullen opened the
door, and Appellant and an accomplice pushed their way into the
home. Appellant and his accomplice turned Mullen around and
the accomplice put a gun to Mullen’s head. Appellant went
upstairs and brought Grayson and her children downstairs at
gunpoint. Appellant met his accomplice in the kitchen, and they
forced everyone down into the basement at gunpoint. Once in the
basement Appellant ordered everyone to [lie] on their stomachs.
Appellant and his accomplice looked around the basement for
drugs, knowing that Mullen sold cocaine from the house.
Appellant found Mullen’s bag of cocaine on top of the refrigerator,
but Appellant’s accomplice became agitated and demanded
money and more drugs. Mullen responded that was all he had,
and “I don’t have that stuff.” In response Appellant grabbed their
four year old daughter and put a gun to her head, asking Mullen,
“Do you love her?” Appellant next grabbed Grayson by the neck,
put the gun in her mouth, and asked Mullen, “Do you love her?”
Mullen again stated that he did not have what they wanted, but
Grayson told Appellant, “I have some money upstairs on the side
of my bed, take it and go.”
Appellant ran upstairs and searched the bedroom but
returned after a few minutes and Appellant and his accomplice
ordered everyone up to the children’s room. Appellant’s
accomplice hit Mullen in the head several times with his revolver
until Grayson yelled at him to stop and she would show them
where the money was. Appellant’s accomplice brought Mullen
back down to the basement at gunpoint. Appellant grabbed
Grayson by the shirt and took her to her bedroom where he made
her retrieve approximately $700 for him. They returned to the
children’s room and Appellant began to undress Grayson.
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The neighbors were able to hear struggling and yelling
through the walls of the duplex which comprised 858 and 860
Miller Avenue, and they eventually became alarmed and called the
police. In response to a possible home invasion call, City of
Clairton [P]olice [O]fficers James Kuzak, Matthew McDanel, and
Jonathon Steiner arrived on scene in separate vehicles and
proceeded to the residence. The three officers surrounded the
home. Officer Kuzak approached the rear door and knocked
loudly, prompting Appellant to bring Grayson downstairs to the
kitchen door. Officer Kuzak announced “this is Clairton police
open up.” Appellant told Grayson to tell the officer that everything
was okay and to go away, and she did so. Officer Kuzak
responded, “This is Clairton police. If you don’t open up, we’re
coming in.” Grayson again told Officer Kuzak that she was fine,
as instructed by Appellant, but the officer continued to knock and
attempt to gain entry. Appellant’s accomplice came up to the
kitchen from the basement and told Appellant that they were
going to have to shoot their way out, but Appellant wanted to wait
it out. Appellant then left Grayson and his accomplice in the
kitchen and briefly went into the living room.
Appellant’s accomplice placed his hand on the door handle,
counted to three, and then opened the door and shot Officer Kuzak
four to six times before jumping over Officer Kuzak’s fallen body
and running away. Appellant followed and both fled toward an
alley behind the house. Officers Steiner and McDanel both began
to pursue Appellant and his accomplice, but Officer McDanel
stopped in the backyard when he heard Officer Kuzak faintly state
that he was injured. Officer McDanel approached Officer Kuzak
and placed an “officer down” call for assistance. Officer Steiner
was unable to catch Appellant or his accomplice in the alley, and
returned to the scene. Officer Kuzak was unable to move and was
having difficulty breathing. Officer McDanel carried Officer Kuzak
to the front of the house to await the medics while Officer Steiner
provided cover.
Officer Kuzak was transported to Mercy Hospital where he
underwent several emergency surgeries that were ultimately
successful in saving his life. However, Officer Kuzak was shot
several times by Appellant’s accomplice: (1) one bullet struck him
in the hand which disarmed him; (2) two bullets struck him in the
center of his bulletproof vest; and, (3) one bullet struck him in the
upper chest above the bulletproof vest. The bullet that entered
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Officer Kuzak’s upper chest broke his spinal cord, causing
permanent paralysis.
Following witness interviews and information received through a
wire worn by a confidential informant, Appellant was interviewed
by police. Appellant gave a statement acknowledging his
involvement in the home invasion, but placed primary blame on
his accomplice.
Trial Court Opinion (TCO), 6/12/14, at 6-10 (citations to the record and
footnote omitted).
Appellant was tried jointly with a codefendant, Marcus Andrejco, who
was acquitted of all charges. N.T., 8/16/12, at 2-3. On November 15, 2012,
Appellant was sentenced to an aggregate term of 50 to 100 years’
incarceration. TCO at 3-5. Appellant’s timely post-sentence motion was
denied. Post-Sentence Motions, 11/26/12; Order, 2/19/13. He filed a timely
notice of appeal. Notice of Appeal, 3/21/13. This Court affirmed his conviction
after appellate counsel filed a motion to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago,
978 A.2d 348 (Pa. 2009). Commonwealth v. Rivera, 509 WDA 2013
(unpub. memo. at 1-2) (Pa. Super. 2015).4 Appellant did not file for allocatur.
4 This Court found that Appellant’s sufficiency and weight challenges were
waived, as the attorney who filed the Anders brief with the Court did not
frame them with enough specificity in Appellant’s Statement per Pa.R.A.P.
1925(b). See Rivera, 509 WDA 2013, at 10. That attorney also failed to
include a statement per Pa.R.A.P. 2119(f), thus waiving Appellant’s claim that
his sentence was excessive as well. See id. at 14. Thus, no issues were
preserved in his initial direct appeal. See id.
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On February 18, 2016, Appellant filed an initial, timely petition pursuant
to the PCRA. After the trial judge recused himself, Appellant’s ability to file
post-sentence motions and to pursue direct appellate review were reinstated
nunc pro tunc on June 12, 2018.5 Order, 6/12/18. On June 22nd, Appellant
filed post-sentence motions. On October 3, 2018, the Commonwealth filed to
disqualify Appellant’s counsel due to a conflict of interest; the
Commonwealth’s motion was granted and on November 15, 2018, the post-
sentence motions were denied.6 Appellant filed a timely notice of appeal and
made timely compliance with the trial court’s order per Pa.R.A.P. 1925(b).
5 The Commonwealth did not oppose nunc pro tunc reinstatement of
Appellant’s ability to pursue an appeal. Commonwealth’s Brief at 10. The
order does not specify that Appellant’s ability to file post-sentence motions
was also reinstated; however, all parties proceeded as if it was, and thus this
Court assumes it was merely an oversight.
6 Under Pa.R.Crim.P. 720, post-sentence motions are generally deemed
denied by operation of law after 120 days where the trial court has not denied
them prior. See Pa.R.Crim.P. 720(B)(3)(a). This would mean that Appellant’s
post-sentence motions would have been denied on Monday, October 22nd,
2018. However, in a hearing on October 9th, Appellant requested a ten-day
extension, which the trial court granted. We construe this grant of extension
as having been made under Pa.R.Crim.P. 720(B)(3)(b), which allows a trial
court to extend the decision period by thirty days (but does not offer any other
option, either shorter or longer than 30 days). The request was by Appellant’s
motion, and either the defense’s reasons presented or the prospect of the
appointed defense attorney’s disqualification both could reasonably have
constituted good cause. Thus, the criteria listed at Rule 720(B)(3)(b) that the
motion to extend time be made by the defense and granted where good cause
is shown, are satisfied. Therefore, the period for filing a notice of appeal was
extended thereby and the notice of appeal, filed on November 20th, was
timely filed, even though the trial court technically should have filed an order
deciding Appellant’s post-sentence motions by November 8th, 30 days after
the extension was granted. We note that this accords with Attorney
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A. Brady Claim
Appellant argues that the Commonwealth violated his rights as
protected by Brady and its progeny by failing to provide discovery indicating
the total benefits provided to key witness Sean Ball, and that among the
undisclosed benefits is that Detective Sherwood promised favorable treatment
to Ball, who claimed at trial he had not been promised leniency in exchange
for his testimony. Appellant’s Brief at 27-33. In support of his claim,
Appellant alleges that Ball received leniency in charges he faced, which
exposed him to five to ten years of potential incarceration, and that Ball
received $7,424 as part of a witness relocation program. Id. at 28. Appellant
asserts that the Commonwealth suppressed evidence that it had agreed to
drop charges against Ball in exchange for his testimony. Id. at 31. Appellant
asserts that Ball’s testimony was central to the Commonwealth’s case, and
without Ball’s testimony, arguably no direct evidence tied Appellant to the
charged crimes. Id. at 32.
Santoriella’s understanding as presented to the trial court. See N.T.,
10/29/18, at 13. We also note that the trial court’s order denying post-
sentence motions informed Appellant that he had 30 days to file an appeal,
and thus even if we did not apply Rule 720(B)(3)(b), this would constitute a
breakdown in court operations and we would exercise jurisdiction nonetheless;
see, e.g., Commonwealth v. Rodriguez, 174 A.3d 1130, 1138-39 (Pa.
Super. 2017), appeal denied, 186 A.3d 941 (Pa. 2018) (where facially
untimely appeal was tardy due to error of trial court’s clerk of courts, this
Court declines to quash).
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The Commonwealth claims that Appellant’s Brady claim is waived for
failure to establish it by record evidence, and that he has not carried his
burden of establishing by a preponderance of the evidence his eligibility for
relief (for the same reason). Commonwealth’s Brief at 20. The
Commonwealth’s Brief does not address whether Appellant’s accusation has
any a posteriori grounding. Brady requires that prosecutors “disclose all
favorable evidence that is material to the guilt or punishment of an accused,
even in the absence of a specific request by the accused.” Commonwealth
v. Bagnall, 235 A.3d 1075, 1085 (Pa. 2020).
To establish a Brady violation, a defendant must prove that: (1) the
evidence at issue was favorable to the accused, either because it is
exculpatory or because it impeaches; (2) the prosecution has suppressed the
evidence, either willfully or inadvertently; and (3) the evidence was material,
as prejudice must have ensued from the failure to disclose. Commonwealth
v. Burke, 781 A.2d 1136, 1141 (Pa. 2001). When the reliability of a witness’
testimony may be determinative of the jury’s verdict, nondisclosure of
evidence affecting credibility is incompatible with the “rudimentary demands
of justice” and can constitute a Brady violation. Giglio v. United States,
405 U.S. 150, 154 (1972), quoting Mooney v. Holohan, 294 U.S. 103, 112
(1935). Whether a potential Brady violation should trigger a new trial is a
question of law, for which our standard of review is de novo and our scope of
review is plenary. Bagnall, 235 A.3d at 1084.
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The trial court says that this is a bald allegation with no evidentiary
support and that the record indicates that Appellant knew, prior to trial, that
Ball would receive consideration for his testimony. Trial Ct. Op., 2/12/20, at
7-8. The notes of testimony from May 18 through 22, 2012, addressing
pretrial motions, reflect that defense counsel was informed by representatives
of the Commonwealth that a detective “may have provided consideration to
[Ball]” in the time period around Ball’s arrest. N.T. 5/18-22/12 at 79-80.
Defense counsel stated that when asked about it, Ball reported that Detective
Glick did, at some point, aid Ball. Id. at 80. The trial court summarized its
in camera review of Ball’s relationship with the Commonwealth, and asserted
that (without disclosing other persons involved in other cases), it disclosed in
its summary every incident of cooperation and potential consideration the
court reviewed. Id. at 81-83.
Ultimately, the trial court concludes, correctly, that without hard
evidence, we may not reach the conclusion that the Commonwealth
suppressed evidence. We are not a fact-finding, but an appellate, court. Thus,
this claim fails.
B. Wiretap Claim
Appellant argues that the trial court improperly admitted evidence
derived from the allegedly illegal wiretap of Sean Ball, and that the
Commonwealth failed to obtain the required authorization given that part of
the intercepted communications occurred inside Appellant’s residence,
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triggering the requirements of 18 Pa.C.S. § 5704(2)(4) and (b). He asserts
that the agents involved with the electronic surveillance were not the
authorized agents to do so and non-authorized individuals were involved in
some of the interceptions, including agents from the ATF, DEA, and
Pennsylvania’s OAG.7 Appellant’s Brief at 33-41.
The Commonwealth claims that this issue is waived as there was no
timely objection on these grounds, and that Appellant did not carry the burden
of establishing his eligibility for relief. Commonwealth’s Brief at 26.
Appellant relies on the language of 18 Pa.C.S. § 5709, which states that
applications for an order authorizing a wire interception shall be accompanied
with, inter alia, “a statement of the identity and qualifications of the
investigative or law enforcement officers or agency for whom the authority to
intercept a wire, electronic or oral communication is sought.” Appellant’s Brief
at 36-37, quoting 18 Pa.C.S. § 5709(2).
This Court cannot perceive that this claim of error was squarely
presented below, and therefore no relief may lie. The trial court opinion
analyzes only the general propriety of the warrant. See TCO, 6/12/14, at 8-
10. Though Appellant’s statement per Pa.R.A.P. 1925(b) includes this
7That is, the two federal entities the Bureau of Alcohol, Tobacco, Firearms
and Explosives; and the Drug Enforcement Administration; as well as
Pennsylvania’s Office of the Attorney General.
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complaint,8 it is far from plain that it was raised prior to the filing of that
statement. Thus, this Court may not proceed, as the ground has not first
been charted by the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in
the trial court are waived and cannot be raised for the first time on appeal.”).
This claim is waived.
C. Sufficiency: Burglary
Appellant argues that the evidence presented at trial was insufficient to
prove beyond a reasonable doubt that he was guilty of burglary, given that
the evidence failed to prove beyond a reasonable doubt that he entered a
building or occupied structure with the intent to commit a crime therein.
Essentially, he argues that the two men who conducted the home invasion
were let in, voluntarily, where “Mr. Mullen opened the door for the two men[,
o]ne man purportedly said, ‘Where’s the shit’ and Mr. Mullen responded that
it was in the basement.” Appellant’s Brief at 42.
The Commonwealth points to law establishing that consent obtained by
force or deception cannot be considered true consent. Commonwealth’s Brief
at 34-36. The trial court similarly cites evidence establishing that the two
men who committed the home invasion said “This is the FBI. Open up.” TCO,
6/12/14, at 12.
We apply our well-settled standard of review:
8 See Rule 1925(b) Statement, 4/29/19, at 2-3 (unpaginated).
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The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Frisbie, 889 A.2d 1271, 1274–75 (Pa. Super. 2005)
(citations and quotations omitted).
A person is guilty of burglary if they enter a building or occupied
structure with intent to commit a crime therein, unless the premises are at
the time open to the public or the actor is licensed or privileged to enter. See
18 Pa.C.S. § 3502(a) and (b). License or privilege to enter a premises
acquired by deception cannot support a defense to burglary.
Commonwealth v. Edwards, 903 A.2d 1139, 1144, 1148 (Pa. 2006)
(evidence sufficient for burglary where defendant gained entry by falsely
claiming to deliver money to satisfy a debt). Further, evidence that a
defendant forced their way into a residence supports a burglary verdict and
negates the defense of license or privilege. See, e.g., Commonwealth v.
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Hopkins, 747 A.2d 910, 912, 917 (Pa. Super. 2000) (evidence sufficient for
burglary where defendant, in ski mask, beat resident who answered door and
forced his way into residence brandishing gun).
We agree that there is ample evidence from which the factfinder could
conclude that Appellant was not properly admitted into the residence by the
property owner. Appellant’s dispute is with the facts as recognized by the
jury. This argument fails.
D. Sufficiency: Robbery
Appellant argues that robbery was not established with sufficient
evidence as the Commonwealth did not establish that the conduct occurred in
the course of committing a theft. Appellant’s Brief at 43-46. Substantially,
Appellant argues that the evidence instead showed that the intruders were
attempting to reclaim their own property, “an aim which Mr. Mullen apparently
and immediately understood as he appeared to know . . . that they were
referring to drugs or money, presumably which he owed to them.”. Id. at 44.
For purposes of 18 Pa.C.S. § 3701 (defining robbery), “[a] person is guilty of
theft if he unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.” See 18 Pa.C.S. §
3921(a).
The Commonwealth argues that its evidence established that the money
and drugs that were demanded by the intruders belonged to the homeowner.
Commonwealth’s Brief at 39-40. The Commonwealth correctly points to
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evidence that one of the residents was a drug dealer, and that therefore the
money and drugs were stolen rather than “recovered” by the intruders.
The trier of fact is free to believe all, part or none of the evidence
adduced at trial. Frisbie, 889 A.2d at 1274–75. Again, Appellant’s dispute
goes to the facts, and that is not this Court’s domain. Certainly, feigning to
be law enforcement and using guns to gain entry cannot be compatible with
this argument, any more than it could be compatible with a version of events
in which the home invaders were invited in. The jury’s verdict finds ample
support in the record. This claim is meritless.
E, F, and G. Sufficiency: Robbery/REAP/Unlawful Restraint with SBI
Appellant argues that insufficient evidence showed that he inflicted SBI
upon another or threatened another with or intentionally put another in fear
of immediate SBI. If true, this would invalidate his four convictions of robbery
under 18 Pa.C.S. § 3701(a)(1)(i) or (ii) and his four REAP convictions under
18 Pa.C.S. § 2705, as each necessitates that the Commonwealth establish
beyond a reasonable doubt that the accused engaged in conduct that places
or may place another in danger of death or SBI (REAP) or threatened another
or intentionally put another in fear of immediate SBI (robbery). See 18
Pa.C.S. § 3701(a)(1)(i) and (ii), 18 Pa.C.S. § 2705. Appellant argues that
because he was acquitted by the jury of attempted homicide, aggravated
assault, attempted rape, and conspiracy to commit rape, the jury must not
have believed that he was the assailant who carried a gun. Appellant’s Brief
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at 48-49. Further, he argues that because the Commonwealth did not
establish that he exposed the victims to risk of SBI, he cannot have been
guilty of unlawful restraint.9 Id. at 53-56.
The Commonwealth replies that “The threat posed by the appearance of
a firearm is calculated to inflict fear of deadly injury, not merely fear of ‘serious
bodily injury’ . . . . A factfinder is entitled to infer that a victim was in mortal
fear when a defendant visibly brandished a firearm.” Commonwealth’s Brief
at 44, quoting Commonwealth v. Ouch, 199 A.3d 918, 924 (Pa. Super.
2018) (citations omitted). The Commonwealth points out that under
Pennsylvania law, a defendant “is guilty of an offense if it is committed by his
own conduct or by the conduct of another person for which he is legally
accountable, or both.” Commonwealth’s Brief at 45 (emphasis omitted),
quoting 18 Pa.C.S. § 306(a).
The trial court emphasizes Appellant’s use of a firearm, and the fact that
the coconspirators pointed the gun repeatedly at the home’s residents,
including a young child, and struck one victim in the head with that gun. Trial
Ct. Op., 2/12/20, at 14.
Initially, while Appellant wishes this Court to infer that the jury must
have concluded that he was not the gunman, his codefendant was acquitted
9Unlawful restraint consists of restraining another unlawfully in circumstances
exposing that person to risk of SBI or holds another in involuntary servitude.
See 18 Pa.C.S. § 2902(a)(1) and (2).
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by the jury, so if this Court was to attempt to read the jury’s tea leaves, it
would be hard to conclude that the defendant that the jury convicted of
robbery and REAP was actually considered not guilty of those crimes by
the same jury. However, we need not speculate. Our Supreme Court’s
jurisprudence “overwhelmingly permit[s] inconsistent verdicts in a variety of
contexts.” Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014).
“[J]uries may issue inconsistent verdicts and [ ] reviewing courts may not
draw factual inferences in relation to the evidence from a jury’s decision to
acquit a defendant of a certain offense.” Id. at 1249.
Serious bodily injury consists of “[b]odily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S. § 2301. The evidence adduced at trial establishes that
the gunman shoved a handgun into one of the victims’ mouths, an act that
this Court has held to be sufficient to establish the intent to inflict SBI. See
Commonwealth v. Matthews, 870 A.2d 924, 933 (Pa. Super. 2005) (en
banc) (“The act of placing a loaded firearm against the victim’s throat and
continuing to point the loaded firearm at him . . . constituted a substantial
step toward the infliction of serious bodily injury.”). Because the evidence
more than surmounts what the law requires, and because Appellant
erroneously invites this Court to draw inferences from the jury’s split verdict,
this argument fails.
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Appellant also argues that the Commonwealth did not establish with
sufficient evidence that the firearm was operable, as is necessary to fulfill the
requirements of unlawful restraint, 18 Pa.C.S. § 2902(a)(1). Appellant’s Brief
at 54-56 (citing Commonwealth v. Schilling, 431 A.2d 1088 (Pa. Super.
1981)). In Schilling, this Court held that a pellet gun that is potentially
unloaded cannot support a conviction for unlawful restraint that exposes the
victim to the risk of serious bodily injury. Schilling, 431 A.2d at 1092.
More to the point, the Commonwealth correctly points out that even if
Appellant was not the shooter, accomplice liability would establish his
culpability for the acts of his partner. Commonwealth’s Brief at 53-55. One
of the home invaders shot a police officer during this incident, a fact that
significantly, indeed utterly, undermines Appellant’s argument. In Schilling,
this Court reversed because the Commonwealth did not establish exposure to
an actual danger of serious bodily injury. Schilling, 431 A.2d at 1092. Here,
the seriousness of the shooting cannot reasonably be contested, its
implications for the gun threats made immediately beforehand are plain, and
thus this argument is unavailing.
H. Weight of the Evidence
Appellant argues that his convictions are against the greater weight of
the evidence, as the evidence against him was circumstantial, one of the
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victims’ identification of him was unreliable, and the evidence related to Sean
Ball was unreliable.10 Appellant’s Brief at 56-68.
The Commonwealth replies that our standard of review must be
deferential, and that the trial court was in a much better position to gauge the
evidence than any court relying on a cold record can be. Commonwealth’s
Brief at 56-60. The Commonwealth also reports that, although the trial court
found Appellant’s weight claim at an earlier point in this litigation to be waived,
he also wrote that “[e]ven if [this Court] was to address Appellant’s claim, it
is clear that the verdict was not against the weight of the evidence, and
Appellant’s claim is without merit.” Id. at 61 (emphasis omitted).
The trial court also points out several factors that weigh against
Appellant’s attack: the jury’s careful verdict, which was neither a total
acquittal nor a total conviction, reflects its serious deliberation and desire to
reach the right conclusion. Trial Ct. Op., 2/12/20, at 17. Indeed, although
elsewhere Appellant challenges admission of his own statements against him,
once they were presented, the jury was entitled to take those statements
seriously. Id. at 18.
“A weight of the evidence challenge is addressed to the discretion of the
trial court, and appellate review of a weight claim is a review of the exercise
of discretion of the trial court in denying the claim, and not a review of the
10Appellant preserved the issue in his Post-Sentence Motion, 6/22/18, at 6,
11 (unpaginated).
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underlying question of whether the verdict is against the weight of the
evidence.” Commonwealth v. Wright, 865 A.2d 894, 915 (Pa. Super. 2004)
(citation omitted). “Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against the weight of
the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)
(citation omitted). Arguments based on weight of the evidence are among
“the least assailable reasons for granting or denying a new trial” because of
our deference to the trial judge, who witnessed the factual presentation. Id.Appellant focuses heavily on the lack of physical, “CSI-style” evidence
such as DNA, and on problems with witness identification, an argument that
necessarily occludes his incriminating statements (which we discuss in more
detail below). Assuming (as we must, at this point) that these statements
were properly admitted, their weight was for the jury to determine, and we
must defer to the trial court’s conclusion, made after a thorough review of the
record, that “the trial evidence was not so unreliable and/or contradictory that
the verdict in this case was speculative.” Trial Ct. Op., 2/12/20, at 18. This
claim fails.
I. Admission of Appellant’s Statements
Appellant argues that the trial court erred in admitting certain
incriminating statements he made while in custody and after he had requested
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to speak with a lawyer. Appellant’s Brief at 68-75. Those statements included
a thorough, accurate, and extremely revealing account of the home invasion,
an account that echoed what police had learned from the victims to a degree
that would be difficult to explain if Appellant had not been, at a minimum,
present during the event. See Commonwealth’s Brief at 65-70 (recounting
statement particulars, including twenty-two facts corroborated by other
evidence including witness and victim statements).
The Commonwealth argues that this claim is both waived and meritless.
Commonwealth’s Brief at 72-75. The Commonwealth points out that
Appellant’s brief fails to make reference to any point in the record where
Appellant made any offer of proof regarding his alleged request for an
attorney. Id. at 74.
Regardless of whether it is adequately preserved, we agree that
Appellant’s argument cannot support relief. This Court’s scope of review is
limited to the factual findings and legal conclusions of the suppression court.
In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). “Our standard of review is
restricted to establishing whether the record supports the suppression court’s
factual findings; however, we maintain de novo review over the suppression
court’s legal conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476
(Pa. 2010) (citation omitted). We consider only evidence from the victor along
with an appellant’s uncontroverted evidence. Id.- 22 -
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The trial court made findings and conclusions on March 30, 2012 in
which it found that Appellant’s Miranda11 waiver was properly executed and
that his statement to police was constitutionally obtained and therefore
admissible. N.T. Findings and Conclusions, 3/30/12, at 20-26. The trial judge
noted that he listened to the audio recording of Appellant’s confession, and
was attentive to what it reflected of Appellant’s demeanor at the time the
recording was made. Id. at 26. Without more than a bald assertion of a
different chain of events, this Court may not upset the trial court’s findings.
Based on its findings that Appellant consented and cooperated willingly, we
can reach no different legal conclusion than that of the trial court. Thus, this
claim fails.
J. Admission of Appellant’s Prior Convictions
Appellant argues that the trial court erred in allowing admission, through
a Commonwealth witness, of Appellant’s two prior convictions of carrying a
firearm while unlicensed. Appellant’s Brief at 76-78. Appellant accurately
reports that the judge gave a curative instruction, but asserts that
nevertheless, Pa.R.E. 404(b) forbids this prior bad acts evidence. Id. at 76-
77.
The Commonwealth responds that Pa.R.E. 405(a)(2) permits evidence
of prior convictions when relevant to character testimony. Commonwealth’s
11 Miranda v. Arizona, 384 U.S. 436 (1966).
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Brief at 77. Further, the Commonwealth points out that jurors are presumed
to follow the trial court’s instructions. Id. at 84. Because the court gave a
proper curative instruction instantly, any harmful impact was appropriately
ameliorated. Id.
The trial court also points out that while Pa.R.E. 404(b) evidence is not
admissible to prove that a defendant acted in conformity therewith, it is
admissible for other purposes, as it was here. Trial Ct. Op., 2/12/20, at 22.
The trial court cites the fact that during examination by Appellant’s attorney,
Appellant’s girlfriend, Brandy Balogh, testified, “Yeah, . . . I know there was
no guns in the house because we have a baby on the way, and [Appellant]
doesn’t – he has no involvement with them type of things. He’s not a violent
person at all.” Id. at 23. Because the witness strayed into the realm of
Appellant’s character, the trial court permitted rebuttal. Id.
While it is accurate that Balogh was a Commonwealth witness, she was
also apparently Appellant’s girlfriend at the time of trial. Trial Ct. Op.,
2/12/20, at 23. The trial court reports that she was “less than cooperative”
with the Commonwealth during her testimony. Id. The day after this
testimony was delivered, Appellant’s codefendant, through counsel, cross-
examined Balogh as to this assertion. N.T. Trial, 8/8/12, at 32-33. Counsel
asked Balogh if she was aware that Appellant had acquired two convictions for
carrying a firearm without a license. Id. at 32. The trial court gave a prompt
instruction that the evidence was before the jury for a limited purpose, to
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reflect the basis of the witness’ testimony or opinions, and that the jury must
not infer bad character or a propensity toward crime based thereon. Id. at
32-33. Appellant recorded no objection to this instruction. See id. at 33.
This Court agrees that the claim is meritless, as juries must be presumed
to follow the instructions of the court. See, e.g., Commonwealth v. Smith,
995 A.2d 1143, 1163 (Pa. 2010) (“The jury is presumed to follow the trial
court’s instructions”) (citation omitted).
K. Admission of “Back to Jail” Comment
Appellant gave a taped statement to police in which he said he
committed the home invasion with a man named Marc, who was the gunman.
In his statement, Appellant said that when he and Marc realized the house
was surrounded by police, Marc said, “I ain’t going back to jail” and Appellant
replied, “I’m not trying to go back to jail neither.” Commonwealth’s Exh. 149
at 2.12 In his testimony, Commonwealth witness Sean Ball recounted that
Appellant had told him that during the home invasion, in response to the
prospect of police outside the house, Appellant had said he wasn’t going back
to jail. N.T. Trial, 8/2/12, at 273.13
12The transcript of Appellant’s interview with police appears in the August 6,
2012, trial transcript, between pages 142 and 143, and was marked as
Commonwealth’s Exh. 149.
13“Q. Tell us as best you can recall what he said happened then, sir?” A. That
he was inside going through the house. That he heard a boom at the door.
He looked at his bro and told his bro that he wasn’t going back to jail. The
only way out of this was to shoot their way out of it.” N.T. 8/2/12, at 273.
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Appellant argues that the trial court erred in permitting admission of a
conversation captured via wiretap between Appellant and Sean Ball, in which
Appellant expressed his determination not to become incarcerated again, thus
revealing to the jury that he had been jailed before. Appellant’s Brief at 78-
79. Appellant argues that the trial court’s curative instruction against a
propensity assumption was ineffective and could not serve to dissuade the
jury from concluding that Appellant “had been and continued to be a criminal.”
Id. at 79.
The Commonwealth cites Rule 404(b), which allows admission of prior
bad acts for purposes other than establishing propensity. Commonwealth’s
Brief at 85-88. The Commonwealth notes that the trial court gave an
appropriate limiting instruction. Id. at 87-88. The Commonwealth argues
that the probative value of the statement outweighs its prejudicial effect, as
it tends to establish consciousness of guilt. Id. at 87. Likewise, the trial court
concludes that the evidence was properly admitted and the court’s limiting
instruction adequately defused any potential undue prejudice. Trial Ct. Op. At
25.
As discussed supra, juries are presumed to follow the trial court’s
instruction. For the same reasons Appellant’s complaint as to Balogh’s
testimony and rebuttal as to his prior convictions fails, this claim fails.
We note that there was no objection; the defense objected shortly thereafter
to the use of leading questions and the objection was sustained. See id.
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L. Severance
Appellant argues that his case should have been tried separately from
that of Andrejco, because Andrejco’s defense was overly prejudicial to
Appellant. Appellant asserts that because Andrejco was the shooter and
Andrejco’s actions were far more serious, the jury was incapable of separating
that evidence when considering Appellant’s guilt. Appellant’s Brief at 80-82.
The Commonwealth counters by arguing that Appellant’s argument on
severance is not preserved for appeal because it was not raised before the
trial court, and even if it were, the trial court correctly concluded that it is not
meritorious. Commonwealth’s Brief at 89-94. The trial court recounts that
when arguing his severance motion, Appellant’s counsel emphasized that it
was the wiretap statements that would make a joint trial impossible for
Appellant. “The trial court record reflects that, other than evidence of
[Appellant’s] prior firearms convictions . . . only portions of that statement
relating to the offenses of conviction were admitted at trial.” Trial Ct. Op.,
2/12/20, at 26. Because Appellant’s counsel acknowledged that the portions
admitted were admissible and the challenged statements were ultimately not
admitted, denial of severance was proper. Id.
Appellant argues that “Andrejco’s conduct at the crime scene was
significantly more egregious, as it was he who was identified as the shooter .
. . [T]he jury was incapable of separating the evidence and could not avoid
cumulating the evidence.” Appellant’s Brief at 81. Appellant’s argument is
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curious, inasmuch as it appears the jury was very willing to distinguish
between the Commonwealth’s case against Andrejco, who was acquitted, and
its case against Appellant.
“The decision to sever offenses is within the sound discretion of the trial
court and will be reversed only for a manifest abuse of that discretion.”
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (citation omitted).
“The critical consideration is whether the appellant was prejudiced by the trial
court’s decision not to sever. The appellant bears the burden of establishing
such prejudice.” Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super.
2010) (citation omitted). Under Pa.R.Crim.P. 582, joint trial is permitted
where codefendants “are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense
or offenses.” Pa.R.Crim.P. 582(A)(2). “Under Rule 583, the prejudice the
defendant suffers due to the joinder must be greater than the general
prejudice any defendant suffers when the Commonwealth’s evidence links him
to a crime.”14 Dozzo, 991 A.2d at 902.
Where the defendant moves to sever offenses not based on the
same act or transaction that have been consolidated in a single
indictment or information, or opposes joinder of separate
indictments or informations, the court must therefore determine:
[1] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; [2] whether such
evidence is capable of separation by the jury so as to avoid danger
14 “The court may order separate trials of offenses or defendants, or provide
other appropriate relief, if it appears that any party may be prejudiced by
offenses or defendants being tried together.” Pa.R.Crim.P. 583.
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of confusion; and, if the answers to these inquiries are in the
affirmative, [3] whether the defendant will be unduly prejudiced
by the consolidation of offenses.
Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark, 543 A.2d 491,
496–97 (Pa. 1988) for what has become known as “the Lark test”).
Appellant’s claim is predicated on the idea that the jury would have
formed “an unfavorable impression in their minds as to Appellant’s character
. . . based solely on the weightier evidence implicating [Andrejco].”
Appellant’s Brief at 82. Without reference to the record to support this
argument, however, this Court cannot so conclude. As the record does not
support it, this claim is properly denied.
M. Cross-Examination of Sean Ball
Here, Appellant again argues that he was deprived of Brady evidence
relating to Sean Ball and benefits he may have received in exchange for his
cooperation in securing Appellant’s conviction. Appellant’s Brief at 82-83.
“The defense could not waive an issue that only became evident post-trial.”
Id. at 83.
The Commonwealth argues that this claim is waived as improperly
developed, both before the trial court and on appeal. Commonwealth’s Brief
at 94-95. The trial court similarly concludes that this issue is not properly
developed for appellate review, citing Pa.R.A.P. 302(a). Trial Ct. Op.,
2/12/20, at 26.
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It may be that this issue will bear exploration in post-conviction
proceedings, but what is certainly true is that the issue is not properly before
us, for the reasons the trial court cites. The analysis at A, supra, applies with
equal force here, and thus we will not embark on a Confrontation Clause
analysis that is thwarted at the outset. This claim fails.
N. Detective Langan’s Testimony: Confrontation
Appellant argues that his right to confront his accusers under our state
and federal constitutions was violated by admission of Detective Langan’s
testimony from his suppression hearing after Langan was declared unavailable
at trial due to illness. Appellant’s Brief at 83-89.
The Commonwealth responds that the issue is not preserved for
appellate review, and that it lacks merit, as Detective Langan’s testimony was
relevant only against Andrejco. Commonwealth’s Brief at 95-96. Similarly,
the trial court concludes that because the testimony was admitted only against
Andrejco and because Appellant’s counsel did not object, the claim is both
meritless and waived. Trial Ct. Op., 2/12/20, at 26-27, citing Pa.R.A.P.
302(a).
Our independent review of the record reveals that trial counsel for
Appellant did not object, though counsel for Andrejco did lodge an objection.
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See N.T., 8/9/12, at 147-155.15 That being the case, the issue is waived and
we may not grant relief thereon. See Pa.R.A.P. 302(a).
O. Illegal Sentence
Appellant asserts that his sentence was illegally enhanced by erroneous
application of 42 Pa.C.S. § 9714, as both violent crimes (robbery and burglary)
arose from a single criminal episode.16 Appellant’s Brief at 89-94. The trial
court imposed ten-year sentences to five of the instant convictions, applying
Section 9714, the second strike law, and Appellant argues that only one of
those convictions should have triggered application of that law. Id.
The Commonwealth contends that, contrary to Appellant’s argument,
application of the second strike law was mandatory. Commonwealth’s Brief
at 104-108. The Commonwealth also cites Commonwealth v. Fields, 107
A.3d 738 (Pa. 2014),17 a case that was handed down after Appellant’s trial but
that clarifies rather than announcing a new rule; Fields holds that the second
strike law “requires that a second-strike offender be sentenced to the
15 Counsel for Appellant did inquire as to whether he could lodge an objection
to the testimony as it was being read, and the trial court answered in the
affirmative, while expressing the wish that counsel could have prepared such
that any potential dispute could have been handled beforehand. N.T., 8/9/12,
at 152.
1642 Pa.C.S. § 9714(a) mandates imposition of a minimum ten-year sentence
for subsequent convictions of crimes of violence.
17 Commonwealth’s Brief at 105.
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prescribed minimum term of incarceration for each conviction of a crime of
violence that is part of the second strike.” See Fields, 107 A.3d at 744. The
trial court concluded that the sentence imposed was consistent with Fields
and in no way improper. Trial Ct. Op., 2/12/20, at 29-30.
Appellant also cites Fields, which is appropriate and ethical, but
disagrees with the holding in that case. Thus Appellant has preserved the
argument if he pursues further review of it, but this Court is obviously not
empowered to part way with Fields. Appellant also argues that Fields should
not apply, as it was handed down on December 31, 2014, after his sentencing
hearing of November 15, 2012. Our review of Fields cannot support this
argument. In Fields, our Supreme Court applied the rules of statutory
construction to arrive at the proper application of the statute’s plain language.
See Fields, 107 A.3d at 743. The language of Section 9714 analyzed in
Fields was fully in force at the time Appellant committed the underlying crime
here.18 Fields applies the plain language of the statute; it does not change
that statute’s language or meaning. This claim fails. See also Kline v.
Travelers Personal Security Insurance Company, 223 A.3d 677, 689 (Pa.
Super. 2019) (“The general rule in Pennsylvania is that appellate courts apply
the law in effect at the time of appellate review.”).
18The version of Section 9714 analyzed in Fields was effective from February
20, 2001 to September 5, 2011. See 42 Pa.C.S. § 9714 (as amended
December 20, 2000). It has since been amended.
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P. Removal of Attorney Santoriella
Attorney Rachael Santoriella was initially appointed to represent
Appellant on the present appeal. However, because Attorney Santoriella had
previously been appointed to represent Sean Ball in another matter, the trial
court removed her.19 Appellant’s Brief at 95. Appellant asserts that he waived
any potential conflict and Attorney Santoriella was conferring with Ball through
his lawyer as to whether Ball would waive any potential conflict as well, when
Santoriella was disqualified. Id. at 95-96. Thus, the gravamen of Appellant’s
complaint is that disqualification was premature. He asserts his Sixth
Amendment right to counsel. Id. at 97.
The Commonwealth responds that indigent criminal defendants have a
right to counsel, but not to counsel of their choosing. Commonwealth’s Brief
at 98. “Clearly, the right to appointed counsel does not include the right to
counsel of the defendant’s choice.” Commonwealth v. Albrecht, 720 A.2d
19 Attorney Santoriella was appointed to an unrelated case in which Ball was
seeking time credit; she filed a letter of no merit and motion to withdraw in
that case. See N.T., 10/9/18, at 17. The motion to withdraw was granted on
6/27/18. See id. at 19. Santoriella’s allegation that Ball had given false
testimony about potential benefits provided in exchange for his testimony was
related to the prosecution of former homicide detective Margaret Anne
Sherwood. On August 2, 2019, Sherwood entered a nolo contendere plea to
two counts of hindering apprehension or prosecution, 18 Pa.C.S. § 5105(a)(5)
(providing false information) at CP-02-CR00002229-2018. Sherwood had
been accused of, among other acts, improperly seeking favorable treatment
for Ball. We note that the trial court credited Attorney Santoriella for acting
in good faith, although it ultimately rejected her argument. See N.T.,
10/29/18, at 17.
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693, 709 (Pa. 1998). The Commonwealth cites Albrecht for this proposition.
There is, however, a relevant distinction between the scenario in Albrecht –
in which a defendant felt his appointed counsel lacked sufficient capital
experience to render effective service – and the present scenario, where a
lawyer was appointed and had begun representing Appellant prior to removal
by the presiding judge. See id. at 709.
Although Sean Ball testified that he had not received promises of
preferential treatment for his cooperation in this case (in which he was not a
coconspirator), Attorney Santoriella asserted that Ball received such a promise
from a detective who was involved in a domestic violence prosecution against
Ball. Trial Ct. Op., 2/12/20, at 27. Attorney Santoriella had been appointed
to represent Ball in proceedings in which he sought time credit for a conviction.
Id. The trial court cited Rules of Professional Conduct 1.9(a) and 1.7 in
support of the decision to remove Attorney Santoriella from Appellant’s case.
Id. at 28. The trial court reports that Attorney Santoriella had announced her
intention to cross-examine Ball at a post-sentencing hearing to establish that
he had committed perjury at trial. Id. at 27.
Rule 1.9(a) requires that lawyers refrain from representations “in the
same or a substantially related matter in which that person’s interests are
materially adverse to the interests of [a] former client unless the former client
gives informed consent.” Pa.R.P.C. 1.9(a). Rule 1.7 governs conflicts
involving current clients, and forbids concurrent conflicts of interest. Pa.R.P.C.
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1.7(a). It also outlines four circumstances that must be present for a lawyer
to engage in a representation that may present a concurrent conflict: the
lawyer’s reasonable belief that they can represent each client with competence
and diligence; legality of the representation; absence of claims by one client
against another; and informed consent from each client. Pa.R.P.C. 1.7(b)(1)-
(4).
We agree with the trial court that Attorney Santoriella was in an
untenable position. Although her announced intention to attack Ball on the
stand was consistent with Appellant’s strategy, it was not consistent with her
ongoing duty of fealty to Ball. “Attorney Santoriell[a] provided no evidence
of record that Ball waived the conflict of interest.” Trial Ct. Op., 2/12/20, at
29, and as Appellant acknowledges on appeal, Ball had not given any such
waiver. See Appellant’s Brief at 95-96. This presented an irreconcilable
conflict of interest, and thus we cannot conclude that the trial court abused its
discretion. This claim fails.
Q. Recusal
Appellant contends that Paul Gettleman, Esq., Appellant’s trial counsel,
and the trial judge were involved in a physical altercation at an event, and
that the friction between Attorney Gettleman and the trial judge was “personal
and tangible and demonstrable.” Appellant’s Brief at 100-01. Appellant
asserts that the trial judge behaved unreasonably in failing to recuse himself
when such recusal was requested. Id. at 101.
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The Commonwealth asserts that the claim is waived for failure to cite
the record and general underdevelopment. Commonwealth’s Brief at 96-97.
Likewise, the trial court asserts that the claim is waived, as it was not raised
or developed in the record. Trial Ct. Op., 2/12/20, at 29.
This is a disturbing allegation, as this Court would hope that, should a
jurist have had such an intense encounter with another member of the bar
that the encounter led to violence or the threat of violence, that jurist would
at a minimum clear the air and offer the parties an opportunity to assess
whether they might want to lodge a responsive motion. Allegheny County is
gifted, as few other judicial districts are, with an abundance of jurists, such
that no matter the type of case, there should always be another option should
a serious recusal concern trigger any considerations under our Code of Judicial
Conduct20 or law on recusal.21
20 207 Pa. Code, Chapter 33, and more specifically, Section 15-4,
Disqualification and Recusal. That section quotes Comment (3) to Rule 2.7 of
the Pennsylvania Code, which states that “[a] judge should disclose on the
record information that the judge believes the parties or their lawyers might
reasonably consider relevant to a possible motion for disqualification or
recusal, even if the judge believes there is no proper basis for disqualification
or recusal.” See 207 Pa.Code § 15-4.
21The mere appearance of bias or of a lack of impartiality on the part of an
arbiter, tasked with neutrality, can violate a party’s due process rights under
Pennsylvania’s Constitutional Due Process guarantee. See Lyness v. Com.,
State Bd. of Medicine, 605 A.2d 1204, 1207 (Pa. 1992) (“There is a strong
notion under Pennsylvania law that even an appearance of bias and partiality
must be viewed with deep skepticism, in a system which guarantees due
process to each citizen”); Copeland v. Twp. of Newtown, 608 A.2d 601,
602 (Pa. Cmwlth. 1992) (“[T]he potential for bias and that appearance of non-
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However, given the underdeveloped nature of this argument, we cannot
predicate any grant of relief thereon. Thus, we agree with the trial court and
the Commonwealth that this claim is waived.
U. Merger
Appellant argues that his sentences for robbery and burglary “are
intertwined to a degree to require a merger of the sentences.” Appellant’s
Brief at 117. Appellant cites Commonwealth v. Diaz, 867 A.2d 1285 (Pa.
Super. 2005), in which this Court determined that remand for resentencing
was appropriate as under the circumstances, theft and burglary merged.
The Commonwealth responds that this Court has held otherwise, citing
Commonwealth v. Dockins, 326 A.2d 505, 507 (Pa. Super. 1974) (“Robbery
however is not a lesser-included offense of Burglary, nor is Burglary a lesser-
included offense of Robbery.”). Commonwealth’s Brief at 109.
This Court may not impose merger where separate sentence is imposed
“for two offenses that are based on a single criminal act unless all of the
statutory elements of one of the offenses are included in the statutory
elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 837
(Pa. 2009). Here, burglary is the broader statute, and thus if it includes all of
objectivity is sufficient to create a fatal defect under the Pennsylvania
Constitution.”) (citation omitted), overruled on other grounds, Harmon v.
Mifflin County Sch. Dist., 651 A.2d 681, 686 n.7 (Pa. Cmwlth. 1994) (en
banc).. Because the record is underdeveloped, any on-the-record exploration
of this potential issue must be relegated to post-conviction collateral review.
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the elements of robbery, merger would be proper. One commits robbery by,
in the course of committing a theft, they inflict SBI on another or threaten
another with or intentionally put another in fear of immediate SBI. 18 Pa.C.S.
§ 3701(a)(1)(i) and (ii). One commits burglary when, with the intent to
commit a crime therein, that individual enters a building or occupied structure,
or separately secured or occupied portions thereof, adapted for overnight
accommodation and with a person present, the individual commits, attempts
or threatens to commit a bodily injury crime therein. 18 Pa.C.S. §
3502(a)(1)(i). Burglary does not necessarily include theft, but robbery always
does. Thus, we cannot conclude that these crimes merge for sentencing
purposes. See also Commonwealth v. Dockins, 326 A.2d 505, 507 (Pa.
Super. 1974) (“Robbery . . . is not a lesser-included offense of Burglary, nor
is Burglary a lesser-included offense of Robbery.”). This claim fails.
R. Through V (Excepting U): Sentencing Considerations
We analyze these claims of error together, as they all pertain to
Appellant’s sentencing hearing and the sentence imposed. We note that on
page 102 of Appellant’s brief, there appears a statement per Pa.R.A.P.
2119(f), recognizing that review of the discretionary aspects of sentence is
not a matter of right but that Appellants must demonstrate that a substantial
question exists by advancing a colorable argument that the sentencing court
ran afoul of a specific provision of the sentencing code or otherwise violated a
fundamental norm at sentencing. Appellant’s Brief at 102. Appellant argues
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that the trial court failed to adhere to requirements imposed at 42 Pa.C.S. §§
9721 and 9725, raising a substantial question, because that court “gave
inadequate consideration to the mandatory sentencing criteria, as set out in”
those sections. Appellant’s Brief at 102. Appellant also argues that the trial
court gave disproportionate weight to the nature and facts of the crime. Id.
at 105-07. His next argument, though more specific, raises essentially the
same concern; he argues that the trial court, in imposing sentence, “gave
inappropriate consideration to the harm incurred by Officer Kuzak given that
the jury’s verdict suggested that it did not believe that Appellant was involved
in shooting the officer.” Id. at 108. Appellant also argues that the trial court
erred in imposing sentences for burglary and robbery to run consecutively, as
in light of the charges resulting in acquittal, such imposition is
disproportionate, and that under the circumstances, the crimes merge. Id.
at 111-17. Finally, Appellant argues that in the aggregate, the sentence
imposed is manifestly excessive. Id. at 117-23.
The Commonwealth responds that the trial court appropriately applied
the second strike sentencing enhancement at 42 Pa.C.S. § 9714, as the
statute and Fields, 107 A.3d at 744, require its imposition to each of the listed
violent crimes of which Appellant was convicted. Commonwealth’s Brief at
104-08. This Court agrees that Appellant’s arguments against Fields are
frivolous and contrary to law. See H, supra.
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Further, the Commonwealth points out that the sentencing court
reviewed the presentence report and guidelines, and had become familiar with
Appellant over the course of pretrial hearings and a long trial.
Commonwealth’s Brief at 114. Appellant’s sentence reflects the imposition of
several mandatory sentences, and because the trial court was bound to apply
those sentences, such imposition cannot represent an abuse of discretion.
Commonwealth’s Brief at 119.
This Court has outlined a four-part analysis for claims sounding in the
discretionary aspects of sentence, to determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
[the] issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [per Pa.R.A.P.
2119(f)]; and (4) whether the concise statement raises a
substantial question [as to whether] the sentence is appropriate
under the sentencing code. . . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(citation omitted). An appellant raises a “substantial question” when they
“set[ ] forth a plausible argument that the sentence violates a provision of the
[S]entencing [C]ode or is contrary to the fundamental norms of the sentencing
process.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
2010) (citation omitted).
Sentencing is a matter vested in the sound discretion of the
sentencing court, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion, which in this context, is not
shown merely to be an error in judgment; rather the appellant
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must establish by reference to the record, that the sentencing
court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Commonwealth v. Shull, 148 A.3d 820, 831 (Pa. Super. 2016) (citation
omitted). “Where a pre-sentence investigation report exists, we presume that
the sentencing judge was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Guth, 735 A.2d 709, 712 (Pa. Super.
1999) (citation omitted). To establish that the sentencing court abused its
discretion, an appellant “must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Commonwealth v. Williams, 69 A.3d 735, 741 (Pa.
Super. 2013) (citation omitted). Imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the sentencing court.
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005).
Although Appellant has cautiously attempted to unwind the skeins of law
and sentencing considerations that led to imposition of the sentence he is
serving, several of his arguments amount to an assertion that the trial court
was simply too harsh.22
22 Appellant does not help his cause in arguing that his sentence “is
disproportionately high compared to other sentences given to accused
individuals convicted of burglary and robbery, and more in line with those
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Appellant argues that the trial court was overcome by the harsher facts
underlying his conviction, especially the shooting of Officer Kuzak and his
permanent paralysis. However, the notes of testimony from Appellant’s
sentencing hearing do not reflect that the trial court had any undue fixation
on Officer Kuzak’s grave injury and its ongoing and permanent impact on his
life. Further, the trial court must apply 42 Pa.C.S. § 9721(b), which obliges
trial courts imposing sentence to take into account “the gravity of the offense
as it relates to the impact on the life of the victim and on the community,”
among other factors. 42 Pa.C.S. § 9721(b). We cannot find fault with
affording the impact on Officer Kuzak’s life, and on his community, due
consideration. Appellant cites several ugly aspects of the underlying crime,
but though they may be severe, they are far from irrelevant. Further, the
sentencing notes reveal that the trial court made a relatively deep study of
Appellant and his background prior to imposing sentence. See N.T. 11/15/12
at 16-18. It is not the trial court’s fault if that study did more to cause concern
sentences given to defendants who have committed a violent felony that
results in injuries.” See Appellant’s Brief at 109. Regardless of who was the
gunman, this was an armed home invasion, which is one of the most serious
and terrifying violent felonies we can contemplate. To attack and threaten a
person in their own home is deeply traumatic, and certainly this home invasion
resulted in a deeply serious injury that could easily have caused Officer
Kuzak’s death. Surely Appellant can advocate for himself without deprecating
the seriousness of these gruesome facts.
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than alleviate it; it is Appellant’s fault, squarely and utterly. We can find no
abuse of discretion.23
Judgment of sentence affirmed.
Judge Murray joins this Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2021
23 We do note that the trial court’s characterization of Appellant as
“incorrigible” gave this Court momentary pause; that word indicates an utter
inability to be reformed (or “corrected” in the parlance of our carceral regime).
However, this single adjective cannot surmount the strong presumption that
the trial court adhered to the sentencing considerations codified at 42 Pa.C.S.
§ 9721(b), which requires that in every case, a sentencing court consider “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” (emphasis added). Id.
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