J-A05026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS EUGENE BEEBE, II :
:
Appellant : No. 247 WDA 2018
Appeal from the Judgment of Sentence January 31, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000880-2017
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 14, 2019
Appellant, Thomas Eugene Beebe, II, appeals pro se from the judgment
of sentence entered on January 31, 2018, in the Erie County Court of Common
Pleas. We affirm.
The relevant facts in this matter were set forth by the trial court as
follows:
On December 3rd, 2016, Kristen Ross and Amanda
Hutchings were at the Tamarack bar in Corry, Pennsylvania. (See
Notes of Testimony, Jury Trial, Day 2, Dec. 19, 2017, pg. 64:16-
23). Sometime during the evening, Appellant, who had an “on and
off” romantic relationship with Ms. Ross, entered the bar, spoke
with Ms. Ross, and Appellant and Ms. Ross exited the bar. (Id. at
65:14-19; 66:7-9; 89:8-13). Appellant and Ms. Ross talked for “a
while” outside “down a little ways up the road.” (Id. at 66:14-21;
70:24-71:1). Ms. Hutchings left the bar to check on Ms. Ross and
Appellant, who were standing three to four feet apart from each
other, and [Ms. Hutchings] observed Appellant remove a firearm
from inside his coat and discharge[] a single round away from the
bar. (Id. at 66:10-16; 71:4-72-4; 72:13-25). Ms. Hutchings then
entered the bar and notified the bartender, Sandra Vantassel, who
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locked down the bar for the safety of the patrons and called the
police (Id. at 72:16-17; 73:9-14; 73:24-74:1; 89:10-23; 90:17-
91:-6). Ms. Vantassel stated she heard a “pop” before Ms.
Hutchings reentered the bar. (Id. at 89:20-23; 90:12-16).
After Ms. Vantassel called the police, Officer Richard
Bayhurst of the Corry City Police Department arrived at the bar in
response to information regarding “shots fired outside the location
of the Tamarack Bar.” (Id. at 115:16-19). Officer Bayhurst arrived
at the bar and made contact with Ms. Ross and obtained a
statement from Ms. Ross, which was recorded with Officer
Bayhurst’s body camera. (Id. at 116:7-16). Officer Bayhurst
attempted to locate Appellant, but when unable to do so, he began
searching the area for evidence and recovered pieces of a
magazine for a Smith and Wesson [firearm] as well as a .380
caliber shell casing. (Id. at 117:5-18; 121:8-14; 125:4-9;
125:20-22). Officer Bayhurst later made contact with Steve
Holton, the owner of the Smith and Wesson, who reported the
same Smith and Wesson missing on November 8th, 2016. (Id. at
127:8-20; 132:8-12; 133:9-18). Ultimately, [on December 5th,
2016,] Deputy U.S. Marshall Brent Novak apprehended Appellant
in [Buffalo, New York. When the Marshall apprehended Appellant,
Appellant had the Smith and Wesson firearm and the firearm’s
magazine concealed on his person]. (Id. at 109:3-111:4; 132:18-
133:8).
On April 19th, 2017, the District Attorney’s Office filed a
Criminal Information, charging Appellant with: (1) Terroristic
Threats Causing Serious Public Inconvenience, in violation of 18
Pa.C.S. § 2706([a])(3); (2) Terroristic Threats With Intent to
Terrorize Another in violation of 18 Pa.C.S. § 2706([a])(1); (3)
Recklessly Endangering Another Person in violation of 18 Pa.C.S.
§ 2705; (4) Harassment in violation of 18 Pa.C.S. § 2709([a])(2);
(5) Discharging of a Firearm Inside City Limits in violation of [Local
Ordinance] 750(1); (6) Receiving Stolen Property in violation of
18 Pa.C.S. § 3925([a]); and (7) Firearms Not to Be Carried
Without a License in violation of 18 Pa.C.S. § 6106([a])(1).
On December 18th, 2017, a jury trial was held; however,
this [t]rial [c]ourt declared a mistrial shortly after the trial began.
Specifically, the Commonwealth called [Ms.] Ross as a witness to
testify, but the Commonwealth’s direct examination of Ms. Ross
prompted Appellant’s counsel to object and move for a mistrial
[because Ms. Ross stated that, at the time of the incident,
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Appellant was on probation and not permitted to be at the bar.] …
[The trial court granted Appellant’s motion for a] mistrial and a
new jury trial was rescheduled for the next day on December 19,
2017.
On December 19th, 2017, a new jury was selected and a
second jury trial [began]. During the Commonwealth’s case-in-
chief, Assistant District Attorney Grant T. Miller called Ms. Ross,
who testified that when she provided a statement to Officer
Bayhurst on December 3rd, 2016, she “did not tell the police the
truth” and specifically testified that she “told the police that
[Appellant] had a gun, but [she] . . . did not see a gun.” (See
Notes of Testimony, Jury Trial, Day 2, Dec. 19, 2017, pg. 32:4-
11). In order to impeach Ms. Ross’ testimony, ADA Miller played
to the jury the body camera video footage capturing Ms. Ross’
statements to Officer Bayhurst recorded on December 3rd, 2016.
After a portion of the body camera footage was played to the jury,
this [t]rial [c]ourt excused the jury. [Appellant’s trial counsel,]
Attorney [John M.] Bonanti then objected to the display of the
body camera footage and orally moved for a mistrial. (Id. at 33:8-
22). In essence, Attorney Bonanti articulated his objection as
follows:
Officer Bayhurst was trying to figure out where
Appellant lived and Officer Bayhurst is talking about
other drug criminals in Corry and Officer Bayhurst said
Appellant lives in an area where there’s a trade—drug
trade, and Appellant is making lots of money off the
trade. And there’s no relevance and it’s certainly not
unforeseeable that the jury takes that and makes an
inference—a nasty inference from it.
(Id. at 38:22-39:4). After a lengthy discussion outside the
presence of the jury on the record among Attorney Bonanti, ADA
Miller, and the undersigned judge, and after this [t]rial [c]ourt
reviewed the remainder of the video outside of the presence of
the jury, this [t]rial [c]ourt permitted ADA Miller to display the
remainder of the video footage to the jury for the limited purpose
of impeaching Ms. Ross with the aid of a carefully worded and
helpful curative instruction. (Id. at 47:14; 33:8-55:19; 58:11-
13). Specifically, this [t]rial [c]ourt issued the following curative
instruction to the jury before the remainder of the footage was
displayed:
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Hello, again, jurors. I have to give you a very
important cautionary instruction. And I’m going to
direct you to disregard anything on the tape said by
Patrol Officer Bayhurst. You are to totally disregard
anything Officer Bayhurst said on the tape. Officer
Bayhurst tried to infer things that are definitely untrue
and prejudicial and not relevant to this case. His
statements are not evidence of anything. You may
proceed.
(Id. at 55:22-56:5).[1] Again, Attorney Bonanti objected to the
curative instruction arguing the evidence was irrelevant and
“caused an improper taint or prejudice” despite this [t]rial [c]ourt
issuing a[] proper curative instruction. (Id. at 56:10-18).
Appellant was ultimately convicted of all criminal charges and on
January 31st, 2018, this [t]rial [c]ourt entered the following
Sentencing Order:
Count 1 - Terroristic Threats Cause Serious Public
Inconvenience - To be confined for a minimum period
of 2 Year(s) and a maximum period of 5 Year(s) at PA
Dept. of Corrections in the standard range.
Count 2 - Terroristic Threats With Intent To Terrorize
Another - To be confined for a minimum period of 1
Year(s) and a maximum period of 2 Year(s) at PA
Dept. of Corrections in the standard range and
consecutive to Count 1.
Count 3 - Recklessly Endangering Another Person - To
be confined for a minimum period of 6 Month(s) and
a maximum period of 2 Year(s) at PA Dept. of
Corrections in the standard range and consecutive to
Count 2.
Count 4 - Harassment - Follow In Public Place -A
determination of guilty without further penalty.
Count 5 - Discharge Any Firearm Within The City
Limits - A determination of guilty without further
penalty.
____________________________________________
1 Errant left-margin indentation omitted.
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Count 6 - Receiving Stolen Property - To be confined
for a minimum period of 18 Month(s) and a maximum
period of 4 Year(s) at PA Dept. of Corrections in the
standard range and consecutive to Count 3.
Count 7 - Firearms Not To Be Carried Without a
License - To be confined for a minimum period of 3
Year(s) and a maximum period of 6 Year(s) at PA
Dept. of Corrections in the standard range and
consecutive to Count 6.
Trial Court Opinion, 4/17/18, at 2-5 (emphasis omitted).
Appellant filed a timely notice of appeal on February 16, 2018. On
February 20, 2018, the trial court ordered Appellant to comply with Pa.R.A.P.
1925(b) and file a concise statement of errors complained of on appeal.
Appellant filed a counseled Rule 1925(b) statement on March 2, 2018.
On March 5, 2018, Appellant filed a pro se petition to waive his right to
counsel. On March 21, 2018, Appellant’s counsel filed a motion to withdraw
from representing Appellant and requested a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On April 4, 2018, the
trial court held a Grazier hearing, concluded that Appellant knowingly,
intelligently, and voluntarily waived his right to counsel, and permitted
Appellant to proceed on appeal pro se. Order, 4/4/18. The trial court also
granted counsel’s motion to withdraw. Id. On April 17, 2018, the trial court
filed its Rule 1925(a) opinion.
At the outset, we are constrained to point out the myriad deficiencies in
Appellant’s pro se brief. Appellant’s brief is merely an eight-page argument
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in narrative form with the trial court’s opinion appended. Appellant has
violated nearly every briefing requirement set forth in our Rules of Appellate
Procedure as he failed to include in his brief: a statement of jurisdiction
pursuant to Pa.R.A.P. 2114; the order in question pursuant to Pa.R.A.P. 2115;
a statement of the scope and standard of review pursuant to Pa.R.A.P.
2111(a); a statement of the questions involved pursuant to Pa.R.A.P. 2116;
a statement of the case pursuant to Pa.R.A.P. 2117; a summary of the
argument pursuant to Pa.R.A.P. 2118; and a copy of his Pa.R.A.P. 1925(b)
statement pursuant to Pa.R.A.P. 2111(d). We note that it is within our
discretion to quash this appeal due to these violations. See Commonwealth
v. Adams, 882 A.2d 496, 497 (Pa. Super. 2005) (“This Court may quash or
dismiss an appeal if the appellant fails to conform to the requirements set
forth in the Pennsylvania Rules of Appellate Procedure.”). However, our
further review reveals an additional error that precludes appellate review.
As noted above, Appellant filed a counseled Rule 1925(b) statement of
errors complained of on appeal on March 2, 2018. In that statement,
Appellant’s counsel raised the following issue: “The lower court erred in
admitting testimony by [Ms. Ross] indicating that [the] responding Police
Officer was in the area because he was looking for [Appellant] who was maybe
on probation and not allowed to be at the bar (scene of the offense).”
Pa.R.A.P. 1925(b) Statement, 3/2/18. However, in his pro se brief on appeal,
Appellant presents and argues a markedly different issue; he asserts the trial
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court erred in allowing into evidence the video and audio recording from the
arresting officer’s body camera. Appellant’s Brief at unnumbered 4-6.2
By failing to raise this issue in his Rule 1925(b) statement, Appellant
deprived the trial court of the opportunity to address Appellant’s claim of
error; it is well settled that issues not presented in a court-ordered Rule
1925(b) statement are waived on appeal. See Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005) (citing Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998)) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will
be deemed waived.”). Because Appellant failed to preserve any issue for
appellate review, we affirm Appellant’s judgment of sentence.3
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2 “Although this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant.”
Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super. 2018)
(citation omitted). “To the contrary, any person choosing to represent himself
in a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.” Id.
3 Were we to reach this issue, we would conclude that Appellant is entitled to
no relief. As noted by the trial court in its opinion, following the introduction
of the audio and video from Officer Bayhurst’s body camera, Appellant’s
counsel objected, and the trial court allowed the evidence only insofar as it
impeached Ms. Ross’s statement that she did not see a gun. Trial Court
Opinion, 4/17/18, at 4-5 (citing N.T. 12/19/17, at 38). The trial court then
gave a curative instruction and told the jury it was to disregard any statements
made by Officer Bayhurst on the body camera recording that was made during
his interaction with Ms. Ross. Id. at 5 (citing N.T. 12/19/17, at 55-56). The
admission of evidence is left to the sound discretion of the trial court, and such
a decision shall be reversed only upon a showing that the trial court abused
its discretion. Commonwealth v. Storey, 167 A.3d 750, 758 (Pa. Super.
2017) (citation omitted). In determining what evidence should be admitted,
the trial court must weigh the relevant and probative value of the evidence
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2019
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against any prejudicial impact. Id. Where the trial judge gives a curative
instruction, it is presumed that the jury will follow the instructions of the court.
Id. Because the audio and video from the body camera was used solely for
impeachment purposes, and because the trial court gave a curative instruction
as to how this evidence was to be considered, if we were to reach this issue,
we would discern no abuse of discretion in the trial court’s evidentiary ruling.
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