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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SONNY HARRIS :
:
Appellant : No. 3765 EDA 2016
Appeal from the Judgment of Sentence Entered November 7, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006470-2011
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: Filed: March 17, 2020
Sonny Harris appeals from the judgment of sentence entered following
his conviction for harassment. Counsel has filed an Anders1 brief and a
petition to withdraw as counsel. We affirm and grant counsel’s petition to
withdraw.
The trial court set forth the relevant facts and procedural history of the
case as follows:
Between January 1, 2009 and March 1, 2011 [Harris]
engaged in a continued course of harassment against
Complainant Phyllis Gibson [“Complainant”]. He loitered on
her property and called her names after she repeatedly
asked him to leave, threatened her, shot BB guns at a sign
outside her bedroom window and threw firecrackers into her
yard at night. Notes of Testimony, 11/8/2014 at 14, 41, 49.
[Complainant] was forced to keep the lights off in her
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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apartment and move to the back bedroom of her home due
to her fear of [Harris]. [Harris] was arrested on March 3,
2011 and charged with Stalking as a felony in the third
degree (18 § 2709.1 (A)(1)), Harassment as a misdemeanor
in the third degree (18 § 2709 (A)(4)) and related charges.
Following a jury trial held December 5, 2014 through
December 12, 2014 before the Honorable Carolyn Nichols,
[Harris] was found guilty of the Harassment as a
misdemeanor in the third degree. The charge of Stalking as
a felony in the third degree was set for retrial as the jury
was unable to reach a unanimous decision as to the Stalking
charge only. [Harris] was found not guilty of the remaining
charges.[2]
On November 7, 2016 the Commonwealth argued a Motion
to Enter Nolle Prosequi on the Stalking Charge and it was
granted by the Honorable Mia Roberts Perez. On the same
day, this court granted a Petition to file an appeal nunc pro
tunc on the companion charges [Harris] was initially
convicted of on December 12, 2014.[3]
Trial Ct. Op., 6/14/18 at 1-2 (citations omitted).
Harris filed the instant appeal on December 2, 2016, and a Pa.R.A.P.
1925(b) statement on September 8, 2017. Appointed counsel filed an Anders
brief and Harris filed a pro se response.
____________________________________________
2 Harris chose to represent himself at trial.
3 In light of the unique procedural posture of this case, this Court issued a rule
to show cause as to why the appeal should not be quashed as interlocutory
because the appeal appeared to have been taken from the order entering nolle
prosequi on the stalking charge, rather than from the judgment of sentence.
However, upon review of the complete docket, we agree with Harris that
judgment had already been properly entered in this case, regarding his
harassment conviction, and he properly appealed following Judge Perez’s
reinstating his direct appeal rights nunc pro tunc. The nunc pro tunc appeal
was proper because the trial court did not inform Harris of his appeal rights
when it sentenced him on the other charges.
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Counsel’s Anders Brief identifies three issues, which we set forth
verbatim:
1. The evidence was insufficient to support the conviction
for harassment under 18 Pa.C.S.A. § 2709(a)(4).
2. The trial court erred when it denied [Harris’s] pre-trial
discovery motions to turn over full discovery including
Brady materials that centered on phone records.
3. [Harris] was denied due process and a fair trial under the
Pennsylvania and United States Constitutions as a result of
the misconduct of the prosecutor throughout the trial, and
the trial court’s failure to take the appropriate corrective
actions.
Anders’ Br. at 10, 19, 22.
Before we assess the substance of counsel’s Anders brief, we must first
determine whether counsel’s request to withdraw meets certain procedural
requirements. See Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). An Anders brief that accompanies a request to
withdraw must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must
also provide a copy of the Anders brief to the client, and a letter that advises
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the client of the right to “(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court’s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (citation omitted). If counsel has satisfied these
requirements, we then conduct “a full examination” of the record “to decide
whether the case is wholly frivolous.” Commonwealth v. Dempster, 187
A.3d 266, 271 (Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, in the Anders brief, counsel provides a procedural and factual
history of the case, with citations to the record, discusses the issues arguably
supporting the appeal, and explains why counsel concludes those issues are
frivolous. Anders Br. at 5-15. Counsel served a copy of the Anders brief upon
Harris, and his letter to Harris advised Harris that he could raise any additional
issues before this Court pro se or with private counsel. Petition to Withdraw
as Counsel, filed November 5, 2018. The Anders brief satisfies the necessary
requirements. We will therefore address the issues counsel has identified.
The first issue counsel identifies in the Anders brief is a challenge to
the sufficiency of the evidence supporting Harris’s harassment conviction.
Counsel maintains that such a challenge would be frivolous because the
Commonwealth presented “more than sufficient evidence” to support the
conviction. We agree.
“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
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to the verdict winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt.” Commonwealth
v. Miller, 217 A.3d 1254, 1256 (Pa.Super. 2019) (quoting Commonwealth
v. Bradley, 69 A.3d 253, 255 (Pa.Super. 2013)). We review the evidence de
novo, but do not substitute our weighing of the evidence for that of the fact-
finder, who is free to believe all, part, or none of the evidence.
Commonwealth v. Hall, 199 A.3d 954, 960 (Pa.Super. 2018), appeal
denied, 206 A.3d 1028 (Pa. 2019). So long as the prosecution presented
evidence of each element of the crime, we will not find the evidence
insufficient unless it is “so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined circumstances.” Miller,
217 A.3d at 1256.
A defendant may be convicted of harassment if the Commonwealth
proves the defendant, “with intent to harass, annoy or alarm another …
communicate[d] to or about [the complainant] any lewd, lascivious,
threatening or obscene words, language, drawings or caricatures[.]” 18
Pa.C.S. § 2709(a)(4). Further, it is well settled that “an intent to harass may
be inferred from the totality of the circumstances.” Commonwealth v. Lutes,
793 A.2d 949, 961 (Pa.Super. 2002).
In this case, the trial court found Complainant’s testimony to be credible
regarding Harris’s act of explicitly telling Complainant he wanted to kill her,
saying, “I’m going to fuck you up. Not today, but I’m going to get you.” N.T.,
12/8/14 at 41. Complainant also testified that Harris routinely sent her emails
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and text messages containing threatening language, and she detailed those
threats in her testimony. Id. at 68-70. The jury thus had ample evidence upon
which to conclude that Harris had communicated with Complainant using
threatening language with the intent to harass, annoy, or alarm her. See 18
Pa.C.S. § 2709(a)(4); Lutes, 793 A.2d at 961. The sufficiency claim is
frivolous.
The second issue presented in counsel’s Anders brief concerns Harris’s
contention that the trial court abused its discretion by denying his pre-trial
discovery motion. Counsel finds this issue to be frivolous because the
Commonwealth had already provided Harris the evidence he sought, his phone
records, and in any event, Harris had access to his own phone records. We
agree that Harris’s second issue is frivolous.
“We review a trial court's grant or denial of a discovery request for an
abuse of discretion.” Lutes, 793 A.2d at 959. “An abuse of discretion is more
than just an error in judgment and, on appeal, the trial court will not be found
to have abused its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.” Id. (citation omitted).
The Commonwealth must provide a defendant all evidence requested if
it is material to the case. See Pa.R.Crim.P. 573(B). If the Commonwealth fails
to disclose the information requested, a defendant may seek to compel the
same via a discovery motion. See Pa.R.Crim.P. 573(A). However, if the
defendant has already received the requested materials, it is within the trial
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court’s discretion to deny a discovery motion seeking those same materials.
See Commonwealth v. Davido, 106 A.3d 611, 646 (Pa. 2014). In the case
sub judice, Harris received copies of his phone records prior to trial. N.T.,
12/5/14 at 160-61. Thus, his contention that the trial court abused its
discretion by denying his bid to obtain these records lacks a factual foundation
and is frivolous. See Lutes, 793 A.2d at 959; Davido, 106 A.3d at 646.
The third issue presented in counsel’s Anders brief contains vague
assertions of prosecutorial misconduct. Without citation to the record, counsel
makes two broad claims of prosecutorial misconduct: (1) “Throughout trial the
prosecutor [] solicited [sic] answers from witnesses through prejudicial
information which should not have been permitted and were not relevant to
the charges”; and (2) “Throughout the closing argument, the prosecutor
argued facts not presented in evidence, misrepresented facts, vouched for the
credibility of witnesses, and made argument to inflame the passions of the
jury.” Anders Br.at 22-23.
To begin, as both the trial court and counsel’s Anders brief emphasize,
Harris failed to preserve these issues for appellate review because, although
he made objections at trial, he did not request a mistrial or a curative
instruction. “Even where a defendant objects to specific conduct, the failure
to request a remedy such as a mistrial or curative instruction is sufficient to
constitute waiver.” Commonwealth v. Sandusky, 77 A.3d 663, 670
(Pa.Super. 2013) (citation omitted). Thus, we agree that these claims are
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waived. See Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa.Super.
2007).
In any event, the trial court reviewed the record and did not find any
evidence of prosecutorial misconduct, and we have done the same and
reached the same conclusion. Our standard of review of a claim of
prosecutorial misconduct is limited to whether the trial court abused its
discretion. Commonwealth v. Rivera, 939 A.2d 355, 357 (Pa.Super. 2007).
“[P]rosecutorial misconduct is evaluated under the harmless error standard.”
Commonwealth v. Cousar, 928 A.2d 1025, 1042 (Pa. 2007).
A prosecutor’s statements in closing argument do not merit a new trial
unless they had the “unavoidable effect” of “prejudic[ing] the jury, forming in
their minds fixed bias and hostility toward the defendant so they could not
weigh the evidence objectively and render a true verdict.” Commonwealth
v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016). The prosecution may employ
oratorical flair in arguing its version of the case to the jury and may advance
arguments and inferences so long as they are supported by the evidence. Id.
Moreover, the prosecutor may fairly respond to points defense counsel made
in closing. Id.
In this case, our independent review of the record confirms what the
trial court determined: that the record does not contain evidence of any
misconduct by the prosecutor at trial that would have had the “unavoidable
effect” of preventing the jury from rendering a “true verdict.” See id. at 615.
Hence, the third issue is frivolous.
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Having addressed the issues raised in counsel’s Anders brief, we turn
to the three issues Harris raised in his pro se response. Harris presents all
three issues without developing any cogent argument and without citing any
legal authority. Therefore, this Court’s ability to review Harris’s issues is
significantly hampered and we could therefore find his issues waived. See
Commonwealth v. Delvalle, 74 A.3d 1081, 1086-1087 (Pa.Super. 2013)
(failure to develop argument or provide any legal authority results in the
waiver of appellate issues); Pa.R.A.P., 2119(a) (appellant’s brief shall contain
“such discussion and citation of authorities as are deemed pertinent”).
Nevertheless, we will address the issues Harris presents in his pro se
filing, as best as we can discern. See Branch Banking & Trust v. Gesiorski,
904 A.2d 939, 942 (Pa.Super. 2006) (stating that “this [C]ourt is willing to
liberally construe materials filed by a pro se litigant[.]” (citation omitted)). To
the extent Harris intended to assert additional or different issues than those
we have identified, those issues are waived.
Harris’s first issue consists of a single paragraph of argument wherein
he contends that the trial court issued a “bad” jury instruction as evidenced
by the jury’s question, “Do we have to vote him guilty even if we all believe
he is not guilty?” The jury asked no such question. Rather, it asked two
questions: (1) “Do we have to all agree on the same verdict even if we think
he’s not guilty?” and (2) “[I]f we can’t agree on one charge can we still deliver
a verdict on the rest of them?” N.T., 12/12/14, at 4. In response, the court
re-administered the jury instructions that in order to reach a verdict on a
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charge, the jury must be unanimous, but if the jury could not reach a
unanimous verdict on one charge, it could nonetheless return a verdict on
another charge. Id. at 4-17. This was a proper instruction, and indeed, the
jury returned with a “split” verdict. This issue lacks a basis in fact or law.
In his second issue, Harris presents a rambling factual dissertation
regarding discovery and ostensibly the telephone records counsel refers to in
the second issue in the Anders brief. As noted above, Harris received such
records in pre-trial discovery and had access to his own telephone records.
Thus, as we concluded above, this issue is frivolous.
In his last issue, it appears that Harris attempts to raise a claim
regarding his bail. However, he fails to develop this issue in any
comprehensible fashion and fails to indicate when or how he raised this claim
before the trial court. The issue is thus waived and frivolous. See Delvalle,
74 A.3d at 1086-1087; Pa.R.A.P. 302(a)(“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal”).
Accordingly, because we conclude that the issues raised in both
counsel’s Anders brief and Harris’s pro se response have no merit, and our
independent review of the record has not uncovered any non-frivolous issue,
we affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/20
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