Com. v. Harrison, O.

J-A19016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR S. HARRISON :
:
Appellant : No. 2130 EDA 2019
Appeal from the Judgment of Sentence Entered March 25, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007067-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: Filed: November 25, 2020
Omar Harrison appeals from the judgment of sentence entered after a
jury found him guilty of two counts of Involuntary Deviate Sexual Intercourse
(person less than 16 years of age) and one count each of Statutory Sexual
Assault, Institutional Sexual Assault, Indecent Assault, and Corruption of
Minors.1 Harrison challenges the sufficiency of the evidence, trial court
evidentiary rulings, prosecutorial statements, and the discretionary aspects of
his sentence. We affirm.
Harrison, a dean at a charter elementary school, was charged with
crimes related to his relationship with, and assault of, a student, Z.R, including
an encounter that occurred at an Econo Lodge on June 12, 2017.
____________________________________________
1 18 Pa.C.S.A. §§ 3123(a)(7), 3122.1, 3124.2, 3126(a)(8), and
6301(a)(1)(ii), respectively.
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Prior to trial, Harrison filed motions in limine, including: (1) a motion to
preclude the Commonwealth from using the term “grooming,” as the
Commonwealth did not intend to provide expert testimony on “grooming”; (2)
a motion to preclude the testimony of a motel manager, who intended to
testify that the front desk clerk that was working at the motel on June 12,
2017, was fired later that summer for renting hotel rooms without
documentation; and (3) a motion to admit a prior conviction of Z.R.’s mother
as a crimen falsi conviction. The court denied the motions.
The court held a jury trial. Both the Commonwealth and the defense
mentioned “grooming” in their opening statements. The Commonwealth
stated:
Now, you all are going to be able to see why we have these
laws, and you’re going to personally see what it’s like for
someone who’s in an authority position, an adult, to groom,
to sexualize, and to monopolize on the vulnerabilities of a
child for their own sexual gratification.
N.T., 10/31/18, at 27.
Harrison stated:
Ladies and gentlemen, you’re going to hear the term was
used during the course of the argument “grooming,” that
Mr. Harrison groomed [Z.R.]. Let’s talk about this because
part of the issue you’re going to have to decide through the
course of this trial is – it’s 2018. Can an individual of a
certain age have any kind of interaction with someone who’s
much younger? That’s part of your decision here. And you’re
going to hear where Mr. Harrison explains exactly what was
going on as far as his relationship with [Z.R.], that he
checked her. When she would become sexual in terms of
her conversations, he stepped back. You’re going to hear
the information that, well, Mr. Harrison was grooming [Z.R.]
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for this sexual activity. The Commonwealth presented a
PowerPoint, the map, all right? You’re going to see that
[Z.R.] lived approximately half a mile from the house [sic].
Well, you know what, Mr. Harrison, over the course of a few
months, gave [Z.R.] rides to school. You’re not going to hear
about anything regarding what took place during the course
of those rides to school. You’re not going to hear anything
about any inappropriate touching, any inappropriate
contact, [or] inappropriate escalation of the relationship.
When you talk about it – when you’re going to hear about
grooming, what is the whole purpose of grooming? To
ultimately get them to the point -- get the juvenile to the
point of sexual interaction and they control -- conceal the
relationship, the sexual aspect of it so that they continue.
What’s the problem with this? Graduation’s the problem. Six
months later is a problem. A single incident is the problem.
If this is supposedly grooming, this is not a one-and-done
situation. This is something that is designed to be carried
forth and to go forward, keeping it concealed to whatever
date, and that’s part of the problem here, ladies and
gentlemen, if this is that, one time.
Id. at 37-38.
Z.R. testified at trial and said that Harrison was the dean of the
elementary school she attended. Id. at 48. She testified that she met him
when she was in the seventh grade and that at first he “was a father figure,”
but the relationship turned sexual. Id. at 50. She testified that when she was
in the eighth grade, Harrison would drive her to school when her mother was
unable to do so due to her work schedule. Id. at 51-52. He also sometimes
drove her home from school. Id. at 53. She said they communicated through
Instagram and on her house telephone, and that Harrison would pull her from
her classes and they would have conversations in his office. Id. at 54-55.
Z.R. testified that Harrison “would come on to me and tell me how good
I look and things like that,” and that he told her that she was better than his
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wife. Id. at 75. She stated that Harrison told her that he wanted to have
threesomes with other students in the school. Id. at 76. She explained that
he would pull her out of class and have her log into her Instagram account
from his phone to make sure she had deleted the messages they exchanged.
Id. She also said he also showed her pictures of his penis and of naked
females. Id. at 76-77.
Z.R. testified that one day “at the end of [her] eighth-grade year before
graduation,” which was on June 23, 2017, Harrison got her to tell her mother
that she would be attending a boxing class after school. Id. at 80. He then
drove her to a motel, an Econo Lodge. Id. at 85. She waited in the car while
Harrison rented a room. Id. at 86. After they went in the room, Z.R. went into
the bathroom to freshen up and to take off her clothes, and when she came
out, Harrison was naked. Id. at 87. She testified that she and Harrison then
had sex, where his “penis went inside” her, and after they had intercourse, he
“ate her vagina and [she] sucked his penis.” Id. at 89, 91. She testified that
“his tongue was on [her] vagina, and it was moving,” and that he licked the
lips of her vagina. Id. at 91-92.
Z.R. also testified that Harrison told her he had rented a room for them
on the day of her graduation, but they did not go to the motel. Id. at 99. She
said she and Harrison continued to communicate after she graduated from the
elementary school. Id. at 102-04.
Z.R. testified that following her graduation, in October 2017, her mother
discovered that Z.R. had an Instagram account and saw messages exchanged
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between Z.R. and Harrison. Id. at 48. She stated that, when her mom asked
her about it, “I kept denying it to protect him because I was in love with him.”
Id. at 57. Her mom went to the school to confront Harrison, and she called
the police. Id.
The messages included the following, which Z.R. and Harrison
exchanged in October 2017:
[Z.R.] [I]’m coming up there Wednesday after school…when
you gonna to take us out?
[Harrison]: Maybe this weekend. Whatchu have goin’ on??
[Z.R.]: iont got nothing going my per[io]d gonna be off then
yayy lol
[Harrison]: “[Laugh, cry face emoji] i wasn’t talking bout
that, lol
[Z.R.]: Oohh i was thinking we could slide that in
[Harrison]: Haaaa! #Maybe
Commonwealth Exh. C2.
The following exchange also occurred in October 2017:
[Z.R.] You a weirdo bye boy you a whore lol
[Harrison]: And u being w the dean over there makes u a
what??? [laugh face emoji]
[Z.R.]: [numerous laugh face emojis] Wallahi I don’t talk to
him lol he is fine, but I’m over here chillin’ and he not fucking
me so I’m not a whore dummy I’m a baby thot there’s a
difference, duhh [four laugh face emojis]
[Harrison]: Ever!! [three laugh, cry face emojis]
[Harrison] You my baby thot right?
[Z.R.]: Ever the baby Thot dh [four laugh face emojis].
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[Z.R.] Naw but I’m ya baby lol [heart emoji, laugh face
emoji]
Id. Z.R. testified that “thot” was slang for “that ho over there.” N.T.,
10/31/18, at 71.
The prosecution also presented the testimony of Sergeant James Young
Simpkins, Jr. He stated that after Z.R. reported the relationship to the police,
he spoke with Harrison. Sergeant Simpkins said that Harrison told him he took
Z.R. to Econo Lodge once, but was there to meet another girl, whom he did
not want to involve in the investigation. Id. at 173-75. Sergeant Simpkins
further testified that the police determined from cell phone records that the
incident at the Econo Lodge occurred on June 12, 2017. N.T., 11/5/18, at 12-
13.
The general manager of the Econo Lodge, Prad Sayal, testified that the
Econo Lodge had records for Harrison for three dates in 2017, but not for June
12. N.T., 10/31/18, at 240. He said that on June 12, 2017, a former employee
of the Econo Lodge was working the front desk, and he explained that in
August 2017, the former employee was fired because he had been selling
rooms without paperwork and pocketing the money. Id. at 244-48. On cross-
examination, Harrison’s counsel asked if there was any other reason for the
employee’s firing, and Sayal answered, “No.” Id. at 252.
Z.R.'s mother, A.G., testified next. Id. at 259. She stated that Harrison
worked at the school, and sometimes drove Z.R. to school. Id. at 262. She
further testified that Harrison spoke on the phone with Z.R. and another
student. Id. at 263. She said that in October 2017, she was looking on the
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tablet Z.R. used and discovered Instagram messages between Z.R. and
Harrison. Id. at 267-68. She retrieve a bat and she and Z.R. drove to the
school. Id. at 269. Z.R. then told the police about the relationship. Id.
Following the encounter, A.G. and Harrison exchanged text messages, where
he claimed he and Z.R. never had sex.
The Commonwealth and Harrison stipulated that “[o]n the day of the
offense at issue, . . . Harrison was 41 years old[ and Z.R.] was 14 years old.”
N.T., 10/31/18, at 45.
In his closing argument, Harrison again mentioned grooming:
I submit to you, ladies and gentlemen, the term His Honor
already talked about a little bit -- grooming. This is not
consistent behavior if that is the case. All right. This is a
single incident. Now, if someone is grooming someone it’s
for prolonged period of time, done in such a way as to avoid
discovery. You’re not going to do it in an open school. You're
not going to do it where there – you’re surrounded by
professionals, trained, dedicated, who are obligated under
the law to report that. You’re not going to do -- and one
time and done over the summer? Free time for everybody.
Nothing further. New school year, nothing further.
N.T., 11/5/18, at 29-30.
The jury convicted Harrison of the above-referenced offenses. At
sentencing, the court heard from Z.R. and A.G., and also from Harrison and
Harrison’s mother. The trial court imposed an aggregate sentence of 12¾ to
25½ years’ imprisonment. It provided the following reasons:
Now the [c]ourt wants to put on the record numerous
factors. First of all, the [c]ourt has heard from both the
defense and from the Commonwealth, the various
witnesses, the victim impact statements. The [c]ourt notes
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that as reflected from the county PSI the background of Mr.
Harrison. He has two prior adult arrests in Philadelphia in
2013, both guilty verdicts from trials from jury verdicts, one
for Recklessly Endangering Another Person and another one
for Possessing an Instrument of Crime. I did study his
employment history. He was a teacher’s assistant at Don
Guanella for a little bit and then became Dean of Students
at . . . the school that’s the subject of this case. During Mr.
Harrison’s allocution during his statement to the [c]ourt, the
[c]ourt is struck by the fact and has read in the PSI that
again Mr. Harrison seems to -- he doesn’t seem to
understand, doesn’t seem to get it. After 12 jurors found
him guilty, 12 jurors found him guilty, he still denies
culpability. He doesn’t take responsibility. His comments to
the [c]ourt today are that again first in the PSI he blamed
the police for setting him up as for some reason there was
some crazy rationale that the police, who did an excellent
job in this case who were just investigating what they were
told as if they were at fault. Then after that he blames his
attorney because he didn’t do a good job. And then he
seemed to blame the victim and the family for a lot of
coaching going on. During his allocution he mentioned this
is a huge misunderstanding. However, this is not a huge
misunderstanding. This is a huge crime. You don’t seem to
understand what’s going on here. You’re either in complete
denial of what’s happened here or you're the most arrogant
bluster of a pathological liar I’ve even seen. All 12 people
found you guilty of this, not 1, not 2, not 3, all 12 people
found you guilty of all the charges. As [Z.R.] testified, you
destroyed and wrecked a very important part of her life
which she can never get back. You were in a position of
authority. You were the Dean of Students and you ended up
being the Dean of Deception for [Z.R.] and her family.
You’ve taken absolutely no responsibility for this. You were
in a position of authority and you destroyed her. You
violated every decent professional moral standard that
anybody would hold. The [c]ourt must respect the jury’s
verdict. I have a duty. This [c]ourt has a duty for protection
of the public, the gravity of the offense, these are felonies,
felony 1’s, most of them, and relation to the impact of the
victim, . . . and her family, and the rehabilitative needs of
[Harrison]. But as this report states the rehabilitative needs
of [Harrison] are almost useless if [Harrison] is in a
complete state of denial or pathologically lying about what
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happened here. Mr. Harrison would ask this [c]ourt to
completely disregard the verdict of the jury because Mr.
Harrison knows better where the [c]ourt should have
listened to [Harrison] and not the 12 jurors. Again, this is
the height of arrogance and it’s unbelievable to th[e]
[c]ourt. Th[e] [c]ourt does not relish or enjoy sentencing
people, and I know your family is broken and so is [Z.R.’s]
family, and the only person who took a hammer to
everybody’s life was you, Mr. Harrison. So in relation to all
those factors the [c]ourt is going to sentence as follows.
Count 1, Statutory Sexual Assault, 24 to 48 months. Count
2, Involuntary Deviate Sexual Intercourse, 57 to 114
months. That will be consecutive to Count 1. Count 3,
Involuntary Deviate Sexual Intercourse, 57 to 114 months.
That will be consecutive to Counts 1 and 2. Count 4,
Institutional Sexual Assault, that will be 12 to 24 months
consecutive to Counts 1, 2 and 3. Count 5, Indecent Assault,
merges with the other counts I have mentioned, 1, 2, 3 and
4. And Count 6, Corruption of Minors, 3 to 6 months. This
runs consecutive to all the other counts. It's a total of 153
months to 306 months for an aggregate of 12.75 years to
25-1/2 years. That’s the sentence. That’s the reason for the
sentence. And I’m sorry for everybody here in the
courtroom, both your family and [Z.R.’s] family. Perhaps
time will heal some wounds but this is an appropriate
sentence considering all the factors mentioned in this court
and in this case. Thank you. That’s it.
N.T., 3/25/19, at 40-44.
Harrison filed a post-sentence motion, which the trial court denied.
Harrison filed a timely appeal. Harrison raises the following issues:
[1.] Whether the evidence was insufficient to sustain the
verdict of guilty of Involuntary Deviate Sexual Intercourse
on the allegation that Mr. Harrison performed oral sex on
the complainant because the Commonwealth did not prove
beyond a reasonable doubt that [Harrison] engaged in
deviate sexual intercourse with a complainant who is less
than 16 years of age and [Harrison] is four or more years
older than the complainant and the complainant and
[Harrison] were not married to each other?
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[2.] Whether the evidence was insufficient to sustain the
verdict of guilty of Statutory sexual assault because the
Commonwealth did not prove that Mr. Harrison and the
complainant were not married to each other?
[3.] Whether the evidence was insufficient to sustain the
verdict of guilty of Indecent assault because the
Commonwealth did not prove that Mr. Harrison and the
complainant were not married to each other?
[4.] Whether the Trial Court erred when it allowed the
Commonwealth to use the term “grooming” in opening and
closing when that term is a term of art reserved for use by
expert witnesses. The term inflamed the jury, suggested
that there would be evidence that was more prejudicial than
probative, and the term suggested evidence that was
irrelevant to the case at hand?
[5.] Whether the Trial Court erred when it allowed the
Commonwealth to elicit testimony that a hotel clerk was
fired five months after the allegations arose for
surreptitiously renting rooms in the hotel in question, to
cover the Commonwealth’s failure to prove that the
allegations could have materialized in the hotel?
[6.] Whether the Trial Court erred when it disallowed
Defense Counsel to cross examine Commonwealth witness
Alisha Gambrell using a prior crimen falsi conviction?
[7.] Whether the Trial Court erred when it denied Mr.
Harrison’s motion for reconsideration challenging the
discretionary aspects of his sentence because the sentence
is harsh and excessive under the circumstances?
Harrison’s Br. at 11-12.
In his first three issues, Harrison argues the Commonwealth failed to
present sufficient evidence to support the verdict. “When reviewing a
sufficiency of the evidence claim, we must determine whether, when viewed
in the light most favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom are sufficient for the trier of fact to find that
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each element of the crime charged is established beyond a reasonable doubt.”
Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019). “The
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.” Id.(quoting Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc)). “[T]he
uncorroborated testimony of a sexual assault victim, if believed by the trier of
fact, is sufficient to convict a defendant.” Commonwealth v. Charlton, 902
A.2d 554, 562 (Pa.Super. 2006) (quoting Commonwealth v. Davis, 650
A.2d 452, 455 (Pa.Super. 1994)).
Harrison first claims that the Commonwealth failed to prove penetration
sufficient to establish one of the convictions for IDSI. He claims that Z.R.
answered “no” when asked if Harrison’s tongue penetrated her vagina. He
claims that, although the testimony stated there was contact “on” the victim’s
vagina and “on the lips of [her] vagina,” the testimony did not establish
penetration. He claims that the testimony did not establish he “entered in the
labia,” or that he engaged in acts of oral or anal intercourse that involved
penetration, however slight. Harrison’s Br. at 24.
A person commits IDSI with a Person Less Than 16 Years of Age when
the person engages in deviate sexual intercourse with a complainant “who is
less than 16 years of age and the person is four or more years older than the
complainant and the complainant and the person are not married to each
other.” 18 Pa.C.S.A. § 3123(a)(7). “Deviate sexual intercourse” includes
“intercourse per os or per anus between human beings.” 18 Pa.C.S.A. § 3101.
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“In addition to its ordinary meaning,” sexual intercourse “includes intercourse
per os or per anus, with some penetration however slight[.]” Id. “[A] person
can penetrate by use of the mouth or the tongue.” Commonwealth v.
Wilson, 825 A.2d 710, 714 (Pa.Super. 2003) (quoting Commonwealth v.
L.N., 787 A.2d 1064, 1070 (Pa.Super. 2001)). However, IDSI does not require
penetration of the vagina; oral contact with the labia is sufficient.
Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa.Super. 1992).
Z.R. testified that Harrison’s “tongue was on [her] vagina, and it was
moving,” and that he licked the lips of her vagina. N.T., 10/31/18, at 83-84.
This was sufficient to establish, beyond a reasonable doubt, penetration. In
Interest of J.R., 648 A.2d 28, 33 (Pa.Super. 1994) (finding penetration
occurred where defendant licked victims vagina).
Harrison next claims that the Commonwealth failed to prove Harrison
committed IDSI, statutory sexual assault or indecent assault because it failed
to prove that Harrison and Z.R. were not married. He argues that there was
no testimony about the absence of marriage of Z.R. and Harrison, and,
although there was testimony about Harrison’s wife, that alone does not prove
the absence of marriage to Z.R., as he could have been referring to an ex-
wife.
A person commits a crime of IDSI at the statutory provision relevant
here where the person engages in deviate sexual intercourse with a
complainant “who is less than 16 years of age and the person is four or more
years older than the complainant and the complainant and person are not
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married to each other.” 18 Pa.C.S.A. § 3123(a)(7). Further, the crime of
statutory sexual assault occurs where the person “engages in sexual
intercourse with a complainant under the age of 16 years and that person is
11 or more years older than the complainant and the complainant and the
person are not married to each other.” 18 Pa.C.S.A. § 3122.1(b). “A person is
guilty of indecent assault if the person has indecent contact with the
complainant, causes the complainant to have indecent contact with the person
or intentionally causes the complainant to come into contact with seminal
fluid, urine or feces for the purpose of arousing sexual desire in the person or
the complainant and . . . (8) the complainant is less than 16 years of age and
the person is four or more years older than the complainant and the
complainant and the person are not married to each other.” 18 Pa.C.S.A. §
3126(a)(8). Therefore, to establish the convictions for IDSI, statutory sexual
assault, and indecent assault, the Commonwealth had to prove Harrison and
Z.R. were not married.
Here, the testimony established that Z.R. and Harrison lived at different
residences, that Harrison was the dean at Z.R.’s school, and that A.G. was
unaware of the extent of the relationship. Further, Z.R. was 14, and Harrison
was 41, and Z.R. testified that Harrison mentioned his wife to Z.R. This was
sufficient to establish, beyond a reasonable doubt, that the 14-year-old victim
was not married to Harrison. The Commonwealth presented sufficient
evidence to establish the elements of the crimes beyond a reasonable doubt.
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Harrison next claims that the court erred when it allowed the
Commonwealth to use the term “grooming” in its opening statement. He
argues the term is a term of art reserved for experts, and that it inflamed the
jury and suggested evidence that was irrelevant. He claims that “[d]riving a
student is not grooming, nor is texting, nor is conversing.” Harrison’s Br. at
31. He argues “[g]rooming is driving a complainant to an adult bookstore or
saloon, texting sexually explicit material or language, talking to a complainant
about sex or plans to have sex of the complainant’s history regarding same.”
Id. He claims “[n]either cunning diction nor cross examination can cure the
error here because what was promised in opening never appeared in the
record.” Id. at 32.
We review a trial court’s decision to overrule an objection to a
prosecutor’s statements for an abuse of discretion. Commonwealth v.
Mollett, 5 A.3d 291, 311 (Pa.Super. 2010). “In reviewing prosecutorial
remarks to determine their prejudicial quality, comments cannot be viewed in
isolation but, rather, must be considered in the context in which they were
made.” Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006)
(quoting Commonwealth v. Correa, 664 A.2d 607, 609 (Pa.Super. 1995)).
“Generally, comments by the district attorney do not constitute reversible
error unless the unavoidable effect of such comments would be to prejudice
the jury, forming in their minds fixed bias and hostility toward the defendant
so that they could not weigh the evidence objectively and render a true
verdict.” Id. (quoting Correa, 664 A.2d at 609).
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The trial court found that the “Commonwealth’s usage of the term
‘grooming’ was merely to add more color to their argument, as permitted
under Sampson.” Trial Court Opinion, filed Nov. 15, 2019, at 7 (“1925(a)
Op.”). It reasoned there was “no indication that the Commonwealth’s use of
the term negatively impacted the jury against [Harrison],” and that there was
“no evidence that the jury, upon hearing the term, [was] unable to fairly weigh
all of the evidence and render a verdict based upon the evidence presented.”
Id. This was not an abuse of discretion. We further note that Harrison was
able to present his definition of grooming, and argue that the conduct here
did not constitute grooming.
In his next two issues, Harrison challenges the trial court’s evidentiary
rulings. We review a trial court ruling on admission of evidence for an abuse
of discretion. Commonwealth v. Talley, 236 A.3d 42, 55 (Pa.Super. 2020).
“An abuse of discretion is not merely an error of judgment, but if in reaching
a conclusion the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.” Id. (quoting
Geise v. Nationwide Life and Annuity Co. of America, 939 A.2d 409, 417
(Pa.Super. 2007)). Further, “for a ruling on evidence to constitute reversible
error, it must have been harmful or prejudicial to the complaining party.” Id.(quoting Geise, 939 A.2d at 417).
Harrison claims the court erred when it allowed the Commonwealth to
elicit testimony that a motel clerk was fired months after the allegations arose.
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He argues the Commonwealth was not able to prove Harrison was at the hotel,
because there were no record showing his presence. He claims the court used
its “discretion by filing the hole in the Commonwealth’s case with the
testimony of the . . . firing allowing the Commonwealth a location of the
allegations.” Harrison’s Br. at 33-34. He notes that the manager did not know
Harrison and did not know whether the former employee rented a room to
Harrison. He claims the evidence was more prejudicial than probative because
it “proved nothing, but the prejudiced was overwhelming.” Id. at 34-35.
Relevant evidence is admissible, unless otherwise provided by law.
Pa.R.Evid. 402. Evidence is relevant if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Pa.R.Evid. 401. “The court may
exclude relevant evidence if its probative value is outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.Evid. 403. Further, Pennsylvania Rule of Evidence
602 provides: “A witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may consist of the witness’s
own testimony.” Pa.R.Evid. 602. On cross-examination, a party may question
a witness about matters raised during direct examination, and “any facts
tending to refute inferences arising from matters raised during direct
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testimony.” Commonwealth v. Ogrod, 839 A.2d 294, 322 (Pa. 2003)
(quoting Commonwealth v. Begley, 780 A.2d 605, 627 (Pa. 2001)).
The trial court concluded it did not err, reasoning:
At trial, counsel argued that due to a lack of documentation,
there was no indication as to what the employee in question
was actually fired for. In response, th[e] [c]ourt held that
the testimony concerning the reason for the employee’s
firing would be permitted and that [Harrison’s] remedy
would be to cross-examine the witness in question. Defense
counsel did cross-examine the witness and asked if there
was any other reason, bedside the ex-employee selling
rooms under the table, that he was fired, to which the hotel
manager answered “no.” There is no case law to suggest
that a hotel manager, who has firsthand knowledge, cannot
testify to the reasons an employee was fired without
documentation.
1925(a) Op. at 7-8 (internal citations omitted).
The trial court did not abuse its discretion. The manager had personal
knowledge as to why the employee was fired and the testimony that the
former employee, who was working on the day of the incident, was fired for
selling rooms without documentation was relevant to the case. Further, any
prejudicial effect did not outweigh the testimony’s probative value.
Harrison next claims the court erred in precluding him from using A.G.’s
prior conviction during cross-examination. He alleges the conviction was a
crimen falsi conviction. He argues that, pursuant to Commonwealth v.
Cascardo, 981 A.2d 245 (Pa.Super. 2009), a federal conviction for tampering
with a witness is a crimen falsi conviction. He maintains that A.G.’s conviction
is similar and therefore is a crimen falsi conviction.
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Pennsylvania Rule of Evidence 609 provides that crimen falsi crimes may
be used to attack the credibility of the witness:
(a) In General. For the purpose of attacking the credibility
of any witness, evidence that the witness has been
convicted of a crime, whether by verdict or by plea of guilty
or nolo contendere, must be admitted if it involved
dishonesty or false statement.
Pa.R.Evid. 609(a). A crimen falsi crime “involves the element of falsehood,
and includes everything which has a tendency to injuriously affect the
administration of justice by the introduction of falsehood and fraud.”
Cascardo, 981 A.2d at 253 (quoting Commonwealth v. Jones, 5 A.2d 804,
805 (Pa. 1939)).
The criminal docket for A.G. attached to Harrison’s motion in limine
provides that A.G. pled guilty to retaliation against a witness, 18 Pa.C.S.A. §
4953(a), and harassment, 18 Pa.C.S.A. § 2709(a)(4). Motion in Limine, filed
Oct.29, 2018, at Exh. B. Although she was charged with intimidation of a
witness, that charge was nolle prossed. Id. In his appellate brief, Harrison
argues that A.G. had a prior conviction for intimidation of a witness. At the
hearing on the motion in limine, the court noted “[t]he third issue is a
conviction for one of the . . . prosecution witnesses about a prior conviction
for retaliation against a witness.” N.T., 10/31/18, at 8-9. When denying the
motion, the court stated, “counsel had indicated he wishes to impeach the
witness with a prior conviction for intimidation of a witness.” N.T., 10/31/18,
258. Similarly, in its opinion issued pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), it stated that it “[could not] find any case law that would
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indicate that a conviction for intimidation of a witness would satisfy the
requirements of R. Evid. 609(a).” 1925(a) Op. at 8.2
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2 Retaliation against a witness provides:
(a) Offense defined.--A person commits an offense if he
harms another by any unlawful act or engages in a course
of conduct or repeatedly commits acts which threaten
another in retaliation for anything lawfully done in the
capacity of witness, victim or a party in a civil matter.
18 Pa.C.S.A. § 4953(a). Intimidation of a witness provides:
(a) Offense defined.--A person commits an offense if,
with the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or attempts
to intimidate any witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning
any information, document or thing relating to the
commission of a crime.
(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.
(3) Withhold any testimony, information, document or thing
relating to the commission of a crime from any law
enforcement officer, prosecuting official or judge.
(4) Give any false or misleading information or testimony or
refrain from giving any testimony, information, document or
thing, relating to the commission of a crime, to an attorney
representing a criminal defendant.
(5) Elude, evade or ignore any request to appear or legal
process summoning him to appear to testify or supply
evidence.
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It is unclear what crime—retaliation against a witness or intimidation of
a witness—the trial court considered when addressing this motion, and the
record includes evidence of a conviction for retaliation against, but not
intimidation of, a witness.3 We conclude that we need not address whether
the conviction should have been precluded because, even if the court erred in
not permitting Harrison to question A.G. regarding her prior conviction, the
error would be harmless.
An error is harmless where:
(1) the error did not prejudice the defendant or the
prejudice was de minimis; (2) the erroneously admitted
evidence was merely cumulative of other untainted evidence
which was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict.
Commonwealth v. Ballard, 80 A.3d 380, 398-99 (Pa. 2013) (quoting
Commonwealth v. Fears, 836 A.2d 52, 69 n.18 (Pa. 2003)). Here, Z.R.
testified as to Harrison’s conduct, Sergeant Simpkins testified regarding the
investigation, including Harrison’s statement that he brought Z.R. to the Econo
Lodge, and A.G. testified about finding messages exchanged between Harrison
and Z.R. Harrison cross-examined all witnesses, including A.G. Further, the
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(6) Absent himself from any proceeding or investigation to
which he has been legally summoned.
18 Pa.C.S.A. § 4952(a).
3 We note that in its brief the Commonwealth also states the crime at issue is
intimidation of a witness.
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Commonwealth entered into evidence some of the messages exchanged
between Harrison and Z.R. Considering the overwhelming evidence presented
at trial, the failure to question A.G as to the prior conviction did not result in
prejudice to Harrison.
Harrison next raises three challenges to the discretionary aspects of his
sentence: (1) his sentence was harsh and excessive, and the court failed to
mention the guidelines or Harrison’s rehabilitative needs, including that he
was an educator with two misdemeanors; (2) the court improperly considered
his failure to take responsibility for the conduct; and (3) the court failed to
consider whether a sentence of total confinement was necessary.
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before
reviewing the merits of Harrison’s claim, we must determine whether: “(1)
the appeal is timely; (2) the appellant has preserved his issue; (3) his brief
includes a concise statement of the reasons relied upon for allowance of an
appeal with respect to the discretionary aspects of his sentence; and (4) the
concise statement raises a substantial question whether the sentence is
inappropriate under the Sentencing Code.” Commonwealth v. Green, 204
A.3d 469, 488 (Pa.Super. 2019).
Harrison filed a timely appeal, and included a concise statement of
reasons relied upon for allowance of appeal. We must therefore determine
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whether he raised the issues in a post-sentence motion and whether he has
raised a substantial question for our review.
Harrison first claims that the sentence is harsh and excessive, and the
court failed to consider his background and rehabilitative needs. He raised this
issue in his post sentence motion. Further, the issue raises a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super.
2015) (en banc) (claim of excessiveness coupled with failure to consider
rehabilitative needs raises substantial question). We will therefore address it.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Luketic, 162 A.3d 1149, 1162-63
(Pa.Super. 2017) (quoting Commonwealth v. Bricker, 41 A.3d 872, 875
(Pa.Super. 2012)). “[T]o establish that the sentencing court abused its
discretion, [the defendant] 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.” Id. (quoting Commonwealth v. Williams, 69 A.3d
735, 741 (Pa.Super. 2013)) (alteration in original). “Where the sentencing
court had the benefit of a presentence investigation report (‘PSI’), we can
assume the sentencing court ‘was aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.’” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.
2010) (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
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The court considered the PSI, the testimony from the sentencing hearing
and Harrison’s allocution. The court stated its reasons for the sentence
imposed, and did not abuse its discretion in imposing the sentence. This issue
is meritless.
In his appellate brief, Harrison also claims the court erred because the
trial court “expressed surprise that Mr. Harrison maintained his innocence, a
stance that Mr. Harrison cannot be forced by the government to yield.”
Harrison’s Br. at 26.
Harrison failed to include this claim in his post-sentence motion and
therefore waived the claim. See Commonwealth v. Cartrette, 83 A.3d
1030, 1043 (Pa.Super. 2013) (en banc) (finding discretionary aspect of
sentence claim waived where not raised in post-sentence motion). Further,
even if he had preserved the claim, we would conclude it lacks merit.
This Court has concluded that it is “undoubtedly appropriate for a trial
court to consider a defendant’s lack of remorse as a factor at sentencing,
provided that it is specifically considered in relation to protection of the public,
the gravity of the offense, and the defendant’s rehabilitative needs.”
Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa.Super. 2009). We
further held that “silence at sentencing may not form the basis of finding that
a defendant failed to take responsibility for his crimes, and that silence at
sentencing may not be the sole basis for finding that a defendant lacked
remorse.” Id. at 1127.
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Here, Harrison did not remain silent at sentencing. Rather, he addressed
the court and continued to blame others for his crimes. The court did not use
his silence, but rather his allocution and his statements contained in the PSI,
when determining that he lacked remorse and failed to take responsibility.
Further, the court considered Harrison’s failure to take responsibility and lack
of remorse in relation to protection of the public, the gravity of the offense,
and his rehabilitative needs. The court did not an abuse its discretion.
Harrison further “demands the protection” of the total confinement
sentencing provision, and argues the court made no statements as to whether
he had been convicted for another crime, whether he would be likely to commit
another crime if not incarcerated, or whether incarceration was required to
vindicate the authority of the court.
Harrison did not raise this claim in his post-sentence motion and
therefore waived the claim. See Cartrette, 83 A.3d at 1043. Further, even if
he had raised it, we would conclude it lacks merit.
Section 9725 provides:
The court shall impose a sentence of total confinement if,
having regard to the nature and circumstances of the crime
and the history, character, and condition of the defendant,
it is of the opinion that the total confinement of the
defendant is necessary because:
(1) there is undue risk that during a period of probation or
partial confinement the defendant will commit another
crime;
(2) the defendant is in need of correctional treatment that
can be provided most effectively by his commitment to an
institution; or
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(3) a lesser sentence will depreciate the seriousness of the
crime of the defendant.
42 Pa.C.S.A. § 9725.
In imposing the sentence of total confinement, the court considered the
PSI, and the testimony and allocution at the sentencing, when imposing
sentence. Further, Harrison fails to explain why a sentence of anything but
total confinement would have been appropriate for the convictions in this case.
The court did not abuse its discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
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