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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JERMAINE TERRELL MILLER, :
:
Appellant : No. 2157 MDA 2015
Appeal from the Judgment of Sentence September 2, 2015
in the Court of Common Pleas of Franklin County,
Criminal Division, at No(s): CP-28-CR-0000626-2014
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 08, 2016
Jermaine Terrell Miller (Appellant) appeals pro se from the judgment of
sentence entered on September 2, 2015, following his convictions for
terroristic threats, simple assault, and disorderly conduct. We affirm.
The charges in this matter stem from an incident that occurred on
March 13, 2014, when Appellant, believing that his mother had stolen his
identity, made threatening and harassing phone calls to his mother, sister,
and brother. In particular, Appellant threatened to kill his mother if she did
not confess to his accusations of identity theft. The situation escalated when
Appellant arrived at his mother’s home later that afternoon. A physical
altercation ensued when Appellant’s brother attempted to remove Appellant
from the property. Once Appellant’s brother had Appellant restrained, he
instructed Appellant to leave. However, upon being freed, Appellant
*Retired Senior Judges assigned to the Superior Court.
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grabbed a kitchen knife and chased his brother out of the house, slashing at
him and threatening to kill him. The family called police who arrived and
observed Appellant throw the knife across the street. Appellant was
subsequently arrested and charged with the aforementioned offenses.
The matter proceeded to a jury trial, at which Appellant chose to
represent himself. On August 3, 2015, Appellant was found guilty of all
charges. On September 2, 2015, Appellant was sentenced to an aggregate
term of 40 to 84 months’ incarceration.1 Appellant timely filed a post-
sentence motion, which was denied on October 9, 2015.2 This timely-filed
appeal followed. Both Appellant and the trial court have complied with the
mandates of Pa.R.A.P. 1925.
1
The trial court applied the deadly weapon (used) enhancement (DWE),
which increased the applicable range of sentences available for each charge.
204 Pa. Code § 303.17(b). Accordingly, at Count 1, terroristic threats,
Appellant was sentenced to 22 to 48 months’ incarceration. At Count 2,
simple assault, Appellant was sentenced to a term of 12 to 24 months’
incarceration to run consecutively to that imposed at Count 1. At Count 3,
disorderly conduct, Appellant was sentenced to a term of incarceration of 6
to 12 months to run consecutively to Count 2.
2
Appellant’s post sentence motion was received by the trial court two days
after the September 14, 2015 filing deadline. The envelope in which the
motion was mailed was not date stamped by the post office or the clerk of
courts; however, because Appellant was incarcerated at the time his motion
was filed, we may assume that Appellant placed his motion in the hands of
prison authorities on or before September 14, 2015. Thus we hold that his
motion is timely-filed under the prisoner mailbox rule. See Commonwealth
v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (holding that even without a
postmark definitively noting the date of mailing, this Court may find an
incarcerated appellant’s filing timely where the date of receipt indicates that
appellant placed the document in the hands of prison authorities in advance
of the applicable filing deadline).
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Appellant first argues that the trial court erred in denying his requests
for subpoenas, which in turn violated his right of compulsory process under
the Sixth Amendment. Appellant’s Brief at 6. This issue presents a question
of law for which our standard of review is de novo and our scope of review is
plenary. See Commonwealth v. Gatlos, 76 A.3d 44, 63 (Pa. Super.
2013).
A defendant has the right to present his own witnesses to
establish a defense. This right is a fundamental element of due
process of law. [This] constitutional right, though fundamental,
is not absolute. In order to compel the attendance of a witness
at trial, it must be shown that the information possessed by the
witness is material, i.e., capable of affecting the outcome of the
trial, and that it is favorable to the defense.
Commonwealth v. Douris, 766 A.2d 1276, 1279 (Pa. Super. 2001)
(citation and quotation marks omitted).
In his brief, Appellant fails to explain whom he sought to subpoena
and what material information those persons possessed. However, in its
opinion, the trial court explained that, at multiple times prior to trial,
Appellant “requested subpoenas for the FBI, the IRS, and ‘expert witnesses
for government agencies.’” Trial Court Opinion, 10/9/2015, at 4. The court
noted that Appellant alleged no basis as to why these requests were
necessary to his defense, failed to identify specifically the individuals he
wished to call to testify, and failed to explain what information possessed by
the listed government entities was material to his case. Id. The court
surmised that Appellant wished to litigate his underlying claims of identity
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theft, but determined that “any testimony provided on that topic would not
be relevant for the purposes of [Appellant’s trial]; even if his identity was
stolen, it provides no defense or justification to the conduct for which he was
arrested and charged.” Id. at 4-5.
We agree with the trial court’s analysis. Appellant has failed to
convince us that the court denied him the right to call witnesses who held
information material to the assault and harassment charges that was
capable of affecting the outcome of his trial. Douris, 766 A.2d at 1279.
Thus, we hold that Appellant is not entitled to relief on this issue.
Appellant also makes a claim that the absence at trial of arresting
officer Sergeant Richard E. Morrissette is a violation of his 6 th Amendment
right to confrontation. Appellant’s Brief at 7. Appellant’s argument on this
point misapprehends the purpose of the Confrontation Clause. It is well-
settled that
[t]he Confrontation Clause provides that in all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him. … At its most basic
level, the Sixth Amendment’s Confrontation Clause seeks to
ensure that the trial is fair and reliable by preserving an
accused’s right to cross-examine and confront the witnesses
against him.
Commonwealth v. Collins, 888 A.2d 564, 575 (Pa. 2005) (internal
quotation marks and citations omitted; emphasis added).
The record reflects that the Commonwealth called as witnesses Officer
Joseph McGhee, as well as Appellant’s mother, brother, and sister. Sergeant
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Morrissette was not called as a witness against Appellant. As Collins
explains, the Confrontation Clause requires that an appellant be afforded the
opportunity to confront those witnesses called to offer evidence against him.
The record is clear that Appellant was permitted to do so herein. However,
the Confrontation Clause does not mandate that the Commonwealth call
every potential witness in a case and we reject Appellant’s assertion that
failure to present every witness to his alleged crimes somehow renders his
verdict constitutionally infirm. Commonwealth v. Gasiorowski, 310 A.2d
343, 344 (Pa. Super. 1973) (citations omitted) (holding that “it is not the
obligation of the prosecutor in a criminal case to call all the material
witnesses to the case, nor even to call the victim”).
Appellant next claims that the trial court erred in denying his motion
for a new trial where the Commonwealth repeatedly refused to “disclose the
written statements of the victim and witnesses that were favorable to [him]”
in violation of Pa.R.Crim.P. 573(B) and Brady v. Maryland, 373 U.S. 83
(1963).3 Appellant’s Brief at 4. Appellant also claims that the
3
Rule 573 of the Pennsylvania Rules of Criminal Procedure, which was
promulgated in response to Brady, mandates disclosure by the
Commonwealth of the following items.
(a) Any evidence favorable to the accused that is material either
to guilt or to punishment, and is within the possession or control
of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement, and
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Commonwealth withheld dashboard camera footage related to the incident.
Id. at 7
To establish a Brady violation, appellant must demonstrate: (1)
the prosecution concealed evidence; (2) the evidence was either
exculpatory or impeachment evidence favorable to him; and (3)
he was prejudiced. To establish prejudice, appellant must
demonstrate a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different. Impeachment evidence[,] which goes to the
credibility of a primary witness against the accused[,] is critical
evidence and it is material to the case whether that evidence is
merely a promise or an understanding between the prosecution
and the witness.
Commonwealth v. Treiber, 121 A.3d 435, 460-61 (Pa. 2015) (citations
and quotation marks omitted). The burden rests with the appellant to
the identity of the person to whom the confession or inculpatory
statement was made that is in the possession or control of the
attorney for the Commonwealth;
(c) the defendant’s prior criminal record;
(d) the circumstances and results of any identification of the
defendant by voice, photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions, and
written or recorded reports of polygraph examinations or other
physical or mental examinations of the defendant that are within
the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence; and
(g) the transcripts and recordings of any electronic surveillance,
and the authority by which the said transcripts and recordings
were obtained.
Pa.R.Crim.P. 573(B)(1).
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“prove, by reference to the record, that evidence was withheld or
suppressed by the prosecution.” Commonwealth v. Porter, 728 A.2d 890,
898 (Pa. 1999).
In his brief, Appellant concedes that he received two packets of
discovery from the Commonwealth, Appellant’s Brief at 7, including a written
verification from the assistant district attorney that “to the best of the
knowledge, information, and belief of the Commonwealth, no dash cam
footage exists of [the] incident.” Defendant’s Exhibit 8. Nonetheless,
Appellant maintains that the Commonwealth failed to turn over witness
statements and a dash cam video in its control. Such speculation does not
satisfy Appellant’s burden under Brady. Simply put: Appellant has not
convinced us that the Commonwealth withheld any evidence at all, much
less evidence material to his guilt or innocence, or that the trial court erred
in rejecting his Brady claim. Accordingly, Appellant is not entitled to relief
on this issue.
Appellant next argues that his verdict is “racially prejudiced” because
his jury was made up entirely of Caucasian persons and his case involved a
Caucasian arresting officer, district attorney and judge. Appellant’s Brief at
4, 7. To the extent that Appellant takes issue with the composition of his
jury, we are bound by the following principles.
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“[T]he accused has no right to demand that specific minority groups or
even members of his own race be included in his jury.” Commonwealth v.
Sanchez, 36 A.3d 24, 58 (Pa. 2011).
To establish a prima facie violation of the requirement that
a jury array fairly represent the community, [a defendant] must
show that: (1) the group allegedly excluded is a distinctive group
in the community; (2) the representation of this group in venires
from which juries are selected is not fair and reasonable in
relation to the number of such people in the community; and (3)
this underrepresentation is due to systematic exclusion of the
group in the jury selection process. “Systematic” means caused
by or inherent in the system by which juries were selected.
Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003). (internal
quotation omitted). However, the Rules of Criminal Procedure provide that
[u]nless opportunity did not exist prior thereto, a challenge
to the array shall be made not later than 5 days before the first
day of the week the case is listed for trial of criminal cases for
which the jurors have been summoned and not thereafter, and
shall be in writing, specifying the facts constituting the ground
for the challenge.
Pa.R.Crim.P. 625(b)(1).
Appellant fails to indicate where in the record he made his timely
challenge to the jury array. Accordingly, this issue is waived.
Commonwealth v. Davis, 406 A.2d 1087 (Pa. Super. 1979) (holding that,
because he failed to adhere to the timeliness requirements provided by the
Rules of Criminal Procedure in relation to objecting to a jury array, Davis
waived his claim that he was denied a fair trial due to the absence of African
Americans on the jury panel.)
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To the extent that Appellant’s argument can be construed as a claim
that the district attorney exhibited racial bias in jury selection under Batson
v. Kentucky, 476 U.S. 79 (1986), he holds the burden of making a prima
facie showing that “the circumstances give rise to an inference that the
prosecutor struck one or more prospective jurors on account of race.”
Commonwealth v. Ligons, 971 A.2d 1125, 1142 (Pa. 2009) (citations
omitted). If the prima facie showing is made, “the burden shifts to the
prosecutor to articulate a race-neutral explanation for striking the juror(s) at
issue. [T]he trial court must then make the ultimate determination of
whether the defense has carried its burden of proving purposeful
discrimination.” Id.
Our Supreme Court has held that
Batson’s burden-shifting formula makes sense when
applied to an objection raised sufficiently promptly that the
attorney exercising the challenges can reasonably be expected to
remember the reasons for the challenges. On the other hand, it
would be altogether unreasonable to shift the burden of
explanation if the objection is so tardily made that the
challenging attorney cannot be reasonably expected to
remember. Additionally in cases involving an unpreserved claim
of discrimination in jury selection, this Court has generally
enforced a requirement of a full and complete record of the
asserted violation. We have held that, under such circumstances,
the defendant must present a record identifying the race of the
venirepersons stricken by the Commonwealth, the race of
prospective jurors acceptable to the Commonwealth but stricken
by the defense, and the racial composition of the final jury
selected.
Id. at 1142-43 (citations and quotation marks omitted).
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Instantly, Appellant does not indicate where in the record his Batson
challenge is preserved. As explained above, in the absence of a properly
preserved challenge, it is an appellant’s burden to present a complete record
supporting his claim. Instantly, Appellant’s brief argument on this point fails
to discuss the voir dire process at all, but asks us to presume prejudice
based solely on the race of the jurors selected. Appellant’s Brief at 7. This
allegation, standing alone, is insufficient to establish any actual, purposeful
discrimination on the part of the prosecutor during jury selection. “[Our
Supreme] Court has repeatedly rejected Batson claims based on
generalized claims of bias or discrimination.” Ligons, 971 A.2d at 1145
(citations omitted). Accordingly, we hold that Appellant’s claim merits him
no relief.
Next, Appellant contends that his sentence is excessive because the
trial court erred in applying the DWE. Appellant’s Brief at 4. This claim
implicates the discretionary aspects of sentencing. Commonwealth v.
Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010).
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
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; and (4) whether the concise statement raises a
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substantial question that 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. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
While Appellant did timely file a post-sentence motion, nowhere in that
document does he mention, or take issue with application of, the DWE.
Moreover, in his brief, Appellant fails to satisfy the third and fourth
conditions of the above analysis. It is well-settled that “claims relating to the
discretionary aspects of a sentence are waived if an appellant does not
include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party
objects to the statement’s absence.” Commonwealth v. Brougher,
978 A.2d 373, 375 (Pa. Super. 2009) (emphasis added). Here, the
Commonwealth did not file a brief and, thus, did not object to the absence of
a 2119(f) statement. However, even though we decline to find waiver on this
basis, Appellant fails to raise a substantial question that the imposed
sentence is inappropriate under the sentencing code. Thus, because
Appellant has failed to invoke this Court’s jurisdiction, we may not review his
claim. See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).4, 5
4
Nonetheless, even if Appellant’s claim were preserved properly, he would
not be entitled to relief. To determine whether the DWE should apply, the
Sentencing Code provides as follows:
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Finally, to the extent that Appellant complains that his counsel was
ineffective, we reiterate that such claims are not cognizable on the instant
direct appeal. It is well-settled that, absent circumstances not present in the
When the [c]ourt determines that the offender used a deadly
weapon during the commission of the current conviction offense,
the [c]ourt shall use the DWE/Used Matrix. An offender has used
a deadly weapon if any of the following were employed by the
offender in a way that threatened or injured another individual;
(i) any firearm, (as defined in 42 Pa.C.S. § 9712) whether
loaded or unloaded, or (ii) any dangerous weapon (as defined in
18 P.S. § 913) or (iii) any device, implement, or Instrumentality
capable of producing death or serious bodily injury.
204 Pa.Code § 303.10(a)(2). A “deadly weapon” is any device designed as a
weapon and capable of producing death or serious bodily injury, or any other
device or instrumentality which, in the manner in which it is used or
intended to be used, is calculated or likely to produce death or serious bodily
injury.” 18 Pa.C.S. § 2301. Serious bodily injury is defined as “[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.” Id. The record in this matter reflects that Appellant
slashed at his brother with a five-inch long knife while threatening to kill
him. Clearly, slashing someone with a knife while making deadly threats is
an action calculated or likely to produce serious bodily injury. Contrary to
Appellant’s protestations, it is immaterial here that his brother was not
actually injured. Accordingly, we find no error in the trial court’s application
of the deadly weapon enhancement in the instant case.
5
“Under Pennsylvania law, pro se defendants are subject to the same rules
of procedure as are represented defendants. Although the courts may
liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon a litigant, and a court cannot be expected to become a
litigant’s counsel or find more in a written pro se submission than is fairly
conveyed in the pleading.” Commonwealth v. Blakeney, 108 A.3d 739,
766 (Pa. 2014).
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instant case, claims of ineffective assistance of counsel are to be deferred to
PCRA review. Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).
For all of the foregoing reasons, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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