Com. v. Quinn, R.

J-A21016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBERT ROY QUINN,

Appellant No. 2 WDA 2017

Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000147-2016

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

JUDGMENT ORDER PER CURIAM : FILED SEPTEMBER 18, 2017

Appellant, Robert Roy Quinn, appeals pro se from the judgment of

sentence entered on August 3, 2016 in the Criminal Division of the Court of

Common Pleas of Cambria County, as made final by the denial of

post-sentence motions on October 4, 2016. We affirm.

At the conclusion of trial on June 10, 2016, a jury found Appellant

guilty of stalking, 18 Pa.C.S.A. § 2709.1(a)(2). Thereafter, the trial court

sentenced Appellant to incarceration in county prison for a period of 12

months less one day to 24 months less one day.

Appellant filed timely pro se post-sentence motions on August 12,

2016, which the trial court denied on October 4, 2016. Because the October

4 order was not forwarded to Appellant, the court, on November 22, 2016,

reinstated Appellant’s direct appeal rights and allowed him to file an appeal
J-A21016-17

within 30 days. Appellant filed a timely notice of appeal on December 20,

2016 together with a concise statement pursuant to Pa.R.A.P. 1925(b).

Appellant’s concise statement raised seven claims, which the trial court

addressed in an opinion issued on March 24, 2017.

We have carefully reviewed the submissions of the parties, the opinion

of the learned trial court, and the certified record prepared in this case. In

its opinion, the trial court determined that Appellant was not entitled to relief

because he failed to preserve his claims for appellate review or,

alternatively, his claims lacked merit. See generally Trial Court Opinion,

3/24/17, at 1-36. We wholly concur in the trial court’s assessments and

conclude that the court thoroughly, adequately, and accurately addressed

each of the issues Appellant raises on appeal.1 Accordingly, we shall affirm

for the reasons expressed by the trial court and adopt its opinion as our

____________________________________________

1
We note that Appellant’s brief does not comply with the Pennsylvania Rules
of Appellate Procedure in many ways which, as the Commonwealth points
out, makes it difficult to identify the various issues and arguments raised on
appeal. These defects alone support dismissal. See Pa.R.A.P. 2101 (appeal
may be dismissed where defects in appellant’s brief are substantial); Kern
v. Kern, 892 A.2d 1, 5-6 (Pa. Super. 2005) (dismissal appropriate where
failure to conform to appellate rules hampers this Court’s ability to discern
contested issues), appeal denied, 903 A.2d 1234 (Pa. 2006). Here,
however, the trial court’s opinion addresses all of the claims raised in
Appellant’s concise statement and, as such, discusses all of the issues
Appellant appears to raise in his brief. For this reason, we have elected to
forgo dismissal and, instead, deny relief on the merits for the sound reasons
set forth by the trial court.

-2-
J-A21016-17

own. The parties are hereby instructed to include a copy of the trial court’s

opinion in all future filings relating to our disposition of this appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2017

-3-
 Circulated 08/25/2017 11:33 AM

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[N tHE COURT ()F COMMON PLEAS O:F CAMI,lRIA qouNTYt PENNSYLVANIA
CRIJVIINAL DIVISION ;\
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Bernstein •. ~Il Robert Quinn {Quinn): -:appeals from a.:gi:dJty verdict rendered following jll;~'.

trial on Jone &-JO, ,'20i6. Q1,1~nn was found :gujhy of Couni 11 Stalking at 18 P.a.C.S'.A.

.§2709. l(a)(2),
. . and Nm Guilty pf Count 1,.Terro\istkThreats at l 8 Pa.C.S.A. § 2706(a)(J).
'
On January .J., 20 L:$ Quinn ,,·as arrested.and charged. with one count of Stalking and

one- count of' Terroristic. threats. The Affidavit: of Probable Cause, filed by Poi-ice Officer

Charles, Cypher (Cypher), alleged that. Barbara Labarko (Labnrko) told police that she _and

j Quinn had 'formerly ·been engaged and that Quinn had not been raking the break up_ well-.

DOCKET No ... 147<2016, Pouca CRIM.INAL CO~·IPLAINT At-FIDA VIT Of PROBABLE Ciwse

[':A.fFIDA-\1lT'l 'Labarko told 'police .that Quinn had been h arassirrg and threatening her,

... her residence.~ and.' lift more 'than
drivins- .bv . I PO voicernails
. . .. . and text messazes .on Labarko' s
' ' ' ' "'"(·

phone in rwc days. Id. Labarko further-stated that Quirin had been following her around Planet

Page I o.f 36

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•.,,,.
__
 jl
I

I
·'
Fitness ..and. herplace of.employrnent, Applebees. id. Labarko i}t.tiiJmJely to.id· the police that,
l

as aresult of these actions; she was infear for her life.. id.

As a result, charges were hl~d and Quinn's· pr.e:liminan' hearing was set for January

·26; 2016. There is no i ndication that Quinn was represented ht counsel a, the time of his

· Preliminary Hearing. Quinn executed and 'signed portions of .ihe ''Not'ice of Arraignment,

· Preliminary. Conference, .and. Trial. Form," and no. ·a~romey entered ah appearance on this

Notice. NQTICE bf .A.R:RAidNMENT; PRSL.fr,,1fNARY CONFE;RENCE,. AND TRIAL F.'ILEQ FOR ..RECORD

O~ J.~N.LJAR~· 2-9-, 20.16, Thus, Quinn proceeded pro se at hi? 'Preliminary Hearing. and all

charges were. waived, holding them for court, Quirm also signed Section 5 of the Notice,

·Cf!titl.ed; "Notice of DjstrictAuomey's Preliminary Conference ·and Tn~.1 Dare." id. However,

the spaces where the date for such conference is usually placed. was empty. Id. Nonetheless,

Quinn.still signed the section.that indicated he received notice of his Prel i'fnin~· 'Conference.

The. Record
. also
. contains-
. '
a· form
. ,, ' Pre I I rninarv.. C-o nference
en ti ti. ed... "Di stric .t A nornev's

' Form." DISTR,{(;T Af:l:ORi\'E)'·'s P~EllM.!~A'RY CON.FERENCE .FOR;,,i. FILED FOR' RECORD ON M·~,Y
I

1 1:9, 40)6 ["Confore·nce Form"]. This Conference Fann was signed by- Assisram District

Anorney Wayne Langerholc (Langerholcj .and dared May 17~. 2017. The Conference Form

indicates 'that the case was set for a jury trial and Ju1;• selection was to be held on June 2,

.2016. Id: However, neither Qui'n~ nor an attorney acting on hi_:; behalfsigned the. Conference

'Form. Id..
Jury selection was. held on June 2; 20l6 ..at Which time Quinn continued 10 proceed pro

'se. N:t..JURY SELECT10~16/2/.2016, pgs .. 4-6: At theoutset, and without .thejury poet present,

the trial court indicated to Quinn that this jurist, in: her previous capacity as. an Assistant
I' .. ,,

.Districi Attorney, had been involvedwith an indirect criminal contempt regarding . a Protection .

.. , ,.,.. , ,..,.. . , _.,,~ _ ., ,,,, ,,,,,, ·-.' '""''••-··---·-·- _.,. .. , ,,., _ _ ,,,.,.,.,
............ .,, _ ,,,- _ ~,--·--
 From Abuse [f'PF N:] order against
.
Quinn. The Court dctcm1inel:iI that thisjurist should not.be
I
disqualified from rhis matter and did not .recuse.The trial court.stated,

I want to begin, Mr: Quinn.I didn't remember tbe case, but it "Vas broughtro
my attention apparently in 10 l3 or 2014 when I was an ussistant.districr attorney there
V,'!iS a. Pf A indirect criminal contempt, and l was the. assistant DA on that. case. I
believe thatthe case was dismissed.

I don't have any independent recollection of me. ...ase and, because (his is a jury
trial, and in reviewing the rules, I hace no opinion. I have no recollection of it and I
determined, since this is a Jury trial: the fact finders arc the jurors and not the court,
ru1d that i do not believe there is any conflict. I did want to disclose that to you,
however.just for complete transparency.

kl. at 3.

Next, the trial court questioned Quinn as to whether he· wanted counsel .appointed or

I wished to continue pro se. Id. at 4. Quinn indicated that he would proceed pro se and. so the

I trial court had Quinn execute a WAIVE~ .OF CO\JNSEL,.DATED JiiNJ;:. 2,.1016, and conducted an

\ oral colloquy of Quinn rega~ding his decision to waive his right. to counsel. NT. JURY
' .
SELECTION, 6/2/2016, pgs. 5..,8. After conducting the colloquy and finding that Quinn

knowingly and. voluntarily waived his right to counsel, the trial court appointed standby

. .. Anornev. .• John Lovette.. UL kl at 9-10 ..
counsel.
.

When .the jury pool was. brought into the courtroom, the trial courr proceeded to

instruct the pool on what, would happen during the jury selection process. The victim, Barbara ·

Labarko (Labarko), was also present in the courtroom and sat behind ADA Langerholc.

During the trial court's instructions; the Court asked Langerholc to, "give .a very brief .
summary of the alleged facts .or the. case," and further reiterated that, "again, these are just

allegations." Id.. at 46. Langerholc then gave the jury pool the summary of' the alleged facts as

requested by .thc trial court:
 The defendant and victim wereinvolved in a. relationship. She ended the relationship ..
And on or aboutDecembcr-Zu l S 're January 1-t 2016,·the-de~ndant stalked the victim,
sent thousands. of text messages when the victirndid norwant themand sent over 200
voicemails threatening:.,,.demea:ning, placing her in. fear, then fellowed her 10 Planet.
'Fhuess; approached her, kissed her on \he cheek, \Vc!S taken into custody .shortlv
thereafter, Charges were filed as a.result. ·

Jury .selecrion continued and the Court asked the jury panel, "Have you: an).' member

of yo.urlamily· or any close friends been a victim of a crime: or have you been present when

any crime was. cornmiued?" id: at. "4:7. In response to the Court' s question, Panelist # 19

approached at sidebar:

The Court: Okav. l am . sorrvto hearthat. Where. waa tmu.wha; countv?
. . • !' ~ • • •.

Panelist #19: Cambria.

The Court: And what. year?
I
•l

If i>\indi's·r #l9-; Honestly, 1-·-.
I

. C· Col
Th .. O.~rt:. I S h?
· ..

Panelist #19: Lare '90s;:.early 2000s. r don't rernember,

The Court: That helps ... Now, obviouslv that's a. very differeru thing .from what we are
dealing ·\\'i.th today. · ls there an ~'think abou; (hat ex perience which \\'OU Id. not ·all ow you
lO sir:and be fair and impartjal.In this case?

P~nel~$t·i:09:_ The fear in that girl's eyes over there.

The Court: Pardon me?

Panelist #19: J. seen the. "tear inthat little gitFs· eyes sirring over there.

The Court: A.Rd what are you telling me then? Do you think you cari befair and·
impartial. in this case?

Panelist #19:.· I don't know honestly.
Page 4 ofJ6

II
..... _...,.._,,.. - -..-.. ,- _.._.,.. __ -.-- -.- --· ·-··-- ------· - ----·-·-- ---· --· - . ---· - ·-·-·· -·-
 ,·
I•

l
·1
tf
_i:

The Court: I'm aoinu.to. go a . lirtle funher. whicb. i·s·oka!}. J asked several others the
same question. \\.'ha/i-·~ asking youis - - tvlr.. Quinn. is tfi.~:o~e:faci11g charges. They
are allegations a\ this point .. So l'm.·asting, would you beable to sit, listen to the ·
\\'i mess. oh the. stand and gain the fa~ts .frorn the witnesses, and then f will giveyou rhe
law that Y.Dl! are to apply, and you and your fellow jurors \VQ1,1ld .go back lo .. deliberate.
Are you able io.do that lairly impanially? and
., Panelist #19; Yes.
I. The Court: Okay. Any followup-questionsbased upon that?
l
The Defendant: \\'h~t,;num.berwas that?

Attorney Langerholc: Nineteen.

[d. at 5°7 -59. At the' dose of the tdai: court's questions for jurors, Quinn and Langerholc were

· gi vcn the chance to move to strike any panelist for cause. Quinnmoved. to strike Panelist #19.,

· "who ind:k.Mc.d rha: he- .saw 'fear in: the girl's -eyes." Jd, at ·8JJ, Langerhole argued tha: he

! believed Panelist #J 9 ~lrimaie.Jy stated tha't. he could be: fair and impartial. The trial c.ourt

ruled,

.1 am going to deny it based upon the. factthat the court's notes also indicate
that, .although he.made that statement early, as the court questioned him about the facts·
.of the case, the· fact that you were !ii separate -issue than his daughter who was
molested, that was the original discussion, he indicated after the discussion about. his
role as. a.juror that he believed he can be fair· and impartial.

So 'your strike for cause is denied .. And just - - Mr. Quinn, obviously you .will
h ave fi ve .:cihaJ lerrges, $0 you' 11 ha ve that, ·

.Id.'

.As the. selection process ccntinued, .. and· while. Quinn arrd Langerholc exercised, their

.chalfonges by ·. passing-. a binder back-and-forrh, Panelist #39 got up from
.. . . his. seat-and. walked.

?age 5 ·of-3.6 .

.1

.... ····-··· ··-- ,_,_, -·· ·-··· ·-··-· .. ····-····· - _ ,- ,. -.,, ,-. -_ . .., ,,.,,...,,, ,,_,,, ,,_, ···········- "·-·· ··········- ~- .
 The .Court: l'rn sorry .. Excuse .me. Jurors; jurors, .srop. Excuse me, sir. Noone. can
leave their seat area please so·- - . · · · ·'.

Attorney Langerholc: That Juror came up - -.
I The Court: l understand. That's okav, sir. Evervbcdv ·hf1s rostav in their aeneral .seai
l
Ii
area. AJl rigln. Y.~u can go ahead. \v;ire good. ,A·nm,:;ey Langerhclc and ,vt~. Quinn, ff
you could' come forward, please. .Everyone's okay .. We're good. .lf you have any other·

l questions for the court, -raise your hand and I can have one of my staff members bring
you downro me.

SJDE BAR DISCUSSION:
r;\Ttorrtey· Langerholc: Just for the- record, that juror \Y~-, askihg [Labarko] .a question
which she didn't respond to. ·

th·c Court; \Vho?

AttQrney Lan gerhnlc: My victim.

The Cou rt: What number is he?

I Attorney Langerholc: He's irr the back; 29 I think e- 39. .

. 1 The Court: Thank you.
I
Attorney Langerhorc; l don't know what :ne said.

Th~ Court: Mr. Quinn, .I 'mgoing to strike that individua] for ta use.

The Defendant: I Was going.to strike him, yeah.

The Court: He. keeps· moving and nobody responds; i want to clari-..fy, juror number
39., \Vhi}e l gave the- oppornmity for the· jurors to. stretch, came :do:-.,'T'I on his own
accord and started trying to speak to the victim, The cci.u_;t asked him to step away, He
. . .. ~ not . has he -since that. . umc
had. ·.not ·inforacted wi.ih· anvbodv. - the court . will
. . . .... .and . strike
. ..
that.individual for cause.

Attorney Lovette (Lovette) was appointed by the .Court -as standby- counsel prior to

jury selection and continued. to.. act as. such through trial. Quinn proceededjs-s- se throughout
the trial w\t_h Levene seated behind him. Lovette. did nm participate in the trial _and it is
Page 6 o[J6

--- . . ---..,._------- .... ----··· ·-----
....- ...... ------------· - --------·-------·- --- ------ ... -·-·-·-· ·-. ·-- .... -·· ... -·-·-·--·- ......
 .:,

unclear from the record whether Quinn
.
consulted Lovette outsid.e
1
the. trial. However: after the
I
!

jury rendered its verdict of nor guilty .as to Terroristic Threci'cs and guilty as to Stalking,

Lovette began to act as Quinn's counsel by speaking to the Court, on Quinn's behalf. N.T.

JURY TRI,\ L, 6/l 0/2016, pg. 8 7.

lmmediarely following the verdict, this Court consider ed the arguments of counsel

regarding bond pending sentencing. 'me trial court held that Quinn could be released if he was

placed on a home. monitor in his apartment at 803 Edwards Hills,. Id. at 97-98. Quinn indicated

that he would be able to s1a~' at this apartment and the trial court allowed such release as,

among other facts, the apartment was not located rrear the residence of the victim.

However, at a laterhearing, probation officer Richard Rok [R0k] testified that Rok had

contacted Quinn: s landlord who indicated that Quinn had not paid rent on the apanmem for

over .a year and owed $4;092 in back-rent N;T. BOND REVOCATION J-ltARfN.G, 6/16/2016, pg.

4. R6.k stared that the landlord had not yet evicted Quinn because; the landlord had never been

able to serve Quinn. .ld. Rok further stated that he had looked into setting up an in-home

monitor ~t Qui.nn's mother home, but she did not have; a landline, thus making it impossible to

\ ser up monitoring atthat residence.

The trial court reviewed the statutory factors required when considering bail andfound

that Quinn had been decepti ve and attempted to mis!ead (he Court by stating that he was .able

to reside at the 803 Edwards Hill apartment when he had not paid rent in over a year and

would have. been evicted if the. landlord had
. . been
. able
. to
. locate Quinn
. to serve him, with

notice of eviction. Id. at 24-25. As such, the Court revoked Qui1/s hail and remanded him to

the Cain bria .Counry Prison pending his sentencing.
·1
I.'j
I
l '!
At sentencing, held on August 3, 2016, Quinn cominucd to be represented by Attorney
.
John Lovette. Attorney Lovette correctly stated that Ouinn 's standard guidelines for

sentencing were three to fourteen months. N.T. SE~TEN<:ll\'GHtARrN.G, 2/28/2017, pg. 6. The

trial court then considered testimony presented and evidence of record and sentenced Quinn to

undergo imprisonment for not less than "one year less a day, 'nor more than two years less a

·• day" in the Cambria Countv Prison .. SENTENCING. ORDER·DATE!> Auousr 3, 2016. Quinn was

further sentenced to urider'$o a. period of probation for three years under the supervision of (he

Cambria CountyProbation Bureau, consecutive to.the term ofin,carceratiori.Jd. The trial court
further ordered that, asconditions of Quinn's sentence, he undergo a psychological evaluation

\I with Dr.
. . Scotilla
.' .. follow anv. recommended
- treatment. .- and
. have no'. contact
. . with
. the. victim.
. •

Labarko, for the period of his .sentcnce. Id.

On August 16, 2016 Quinn filed Post-seruence Motions. POST-SENTENCE MOTIONS

FILED FOR RECORD ON AUGUST i 6, 2016 ["POST~SENTENC:E MOT!ONS'l A hearing was held on

the Post-irial Motions. cm September 27, 2016 where Quinn again. elected to proceed prose.

N.T. posT,SENTENCE MOTIONS HEARING: 9/27/2016, pg. 11. At the outset of the hearing;

· Attorney Lovette gave a brief summary of tile everns that had. taken place between the

sentencing hearing on August ~, ~Oi6 and the Post-sentence i\fotions hearing on September

27, 2019:

Attorney Lovette: Your Honor, before we proceed, I \V,,ITTted to put a couple things. on
the record. As the Court is aware, Mr. Quinn decided t(1 represent himself'all .the way
through trial until the verdict was tendered •. At that. time he asked the Court to provide
standby counsel for him, which I - - well, I was appointed standby counsel and i did sit
through the trial, but at the time that the jury verdict came in he asked .that.l step in.and
go ahead and represent him. · ·

I did represent him during a motion for bond pending sentencing: I did represent him
for a motion to revoke. .hrs bond. that
. . . was
. filed bv., the Commonwealth.
. , . and
. .. .. : l did

Page 8 of36
 ,·
•
!
represent him at his sentencing. Thereafter he was sentenced to a term of incarceration.
He told me. in court. that day via letter that ne wished tc{file an appeal; so on August
I ih I did visit him .ar the prison to meet with him about the appeal that I was going to
be filing for him, specifically post-sentence motions. ·

At that. time Mr. Quinn .adviscd me and did show 'me a ropy of post-sentence motions
that he wished to file on his own. We. had a lengthy conversation, and ar.thar time he.
stated chat he again wanted to represent. himself and he felt that his post-sentence
motions were the ones that were appropriate and that he wanted to file. At that time I
tooka copy ofhis post-sentence .motion 10 the Clerk of Courts to file those for him in a
timely manner to preserve his appeal rights. As the Court is aware; there is a law and a
rule in place that you are not entitled to dual representation. You can't represent
yourself and have an attorney represent you at the same ti me.

So in order tu file his motion that he wanted filed at the Clerk of Courts, the Clerk of
Couns informed me that l. would have to withdraw as. counsel, which I did do on that
day, August 12'h. And then l filed his post-sentence rnotitin that.he instructed metodo.
And we are here today for the hearing where Mr. Quinn is again, at least at this time,
representing himself. And that's all> I wanted to do, Your Honor, isjust build the
record andlet the Court know whattranspired after his sentencing. ·

id. at 2.:J .. After Attorney Lovenes summary, Quinn indicated to the trial court that he wished

to proceed pro se and the trial court subsequently conducted a colloquy of Quinn to be sure

that Quinn understood his. right ro representation before. he proceeded. id. at s-n. Aft~r
completing such, the trial court heard argument from Quinn and ihe Commonwealth regarding

Quinn's Post-sentence motions.

I Quinn raised five substantive issues in his Post-trial motions. First: Quinn argued that
I
J he should have been placed in the diversionary program of Mentitl Health Court since he has. a
I
history of mental illness. Id. Second, Quinn asserted that this jurist should have recuscd

herself based on her involvement with a Protection From Abuse indirect criminal contempt
filed against Quinn in rnisjurisr' s. past capacity as an Assistant District Attorney. Thi rd, Quinn

requested a new trial as the jury panel was poisoned by Langerholc' s summary ofthe alleged

Page 9 of.36
 crimes committed. Id: Founh, Quinn requested a modification ,, ipf sentence so that.he could

serve his sentence on house arrest or by reporting to CambriaCounty's Day Reporting Center.

I, Fifth ... Quinn .
asserted .
that the costs and fines. assessed . him
to . af a result of. his trial were too
high as he had been found indigent by Judge Linda Rovder Flemming in March 2015 in

connection with child custody proceedings. kl.

This Court denied Quinn's Post-trial Motions in an Order dated October 3i 2016'.

ORD.ER DENYl?-!G DErENDA,'ff'S POST-TRI.AL MOTIONS FIL.ED f;'.)ft B,ECORO ON QCTOBER 4,
!
I 201.6. Iu ihis Order, the trial court advised Quinn that .he had 30 days to file an appeal with the

Superior Court of Pennsylvania. However, due to an oversight on the part of the Clerk of

l Courts., a, .copy of such order was never sent .to Quinn. Instead, the order was .seru 10 Lovette.

who ha·d withdrawn on-record as Quinn's Counsel. As. such, Quinn was unaware that the.

Court had denied .his Post-trial Motions and did .not file hj's. appeal to the Superior Coon

within 30 days. On November 22, 2016, upon learning of this error,' this Coun directed the

Clerk of Courts to send Quinn a copy M the Order denying his Post-trial Motions and

reinstated his appeal rights for an additional 30 days.

Quirin then filed,a timely Notice of Appeal and .Concise Statement of Matters

· Complained of on Appeal (Concise Statement) pursuant to Pennsylvania Rule of Appellate

Procedure S l 925(b). Quinn's concise. Statement raises seven allegations of error, m<>SL of

which contain sub-issues;

i} Did the Court err by denying Defendant his. Due Process Rights?

2) Was there sufficient evidence presented at trial to sustain the jury's verdict?

3) Whether the trial court erred by revoking.Defendant' s bail pending
sentencing? .

Page 10 of)~
·1

I 4) ··whether Defendant was prejudiced by the a¢tii:)"ns of Assistant District
Attorney Langerholc whc>.~a.llegedly held a \'Cri\len;;i. agains; Defendant?

I -5.) Did (ht; Coon err bv failing to recuse itself'?

I 6) Was srandbv•. counsel ineffective?
' ,,,

I. 7)

For in~ reasons discussed herein there is no merit jo any allegation of error and the appeal

should bedeniedandthe Coun\order affirmed,

DISCUSSlON

l. rn-d the Court err by denying Defendant hi1., due process rights?

raised before the trial court. ln thi:s Opinion, where an: issue was raised on appeal but was not

raised or .preserved at trial, the trial, court will .only set .out the facts surrounding the 'issue and. ·

note that the: issue was neitherraised nor preserved.

In. order for qp appellate court to undertake art analysis and review of the. merits, an

appellant must have properly preserved the issue for appeal. Pa.R.A,P. 302(a); ··rhoma.f.

Jefferson Univ. v.. Wcipner./2006 P.A. Super 15.6, 903 A.2d . .56.;5 CP:it Super. ¢t. '.20.06) .. An issue

ts ,Pro.perly. preserved c,mly if rh.e :appellant saised the objection before the· trial court and the

objection was timely and specific. Com. v. rrehiOn, 324 Pa.Super .. 39"5,. 47.-l A.2d ..8-9:7.(.1984),

Dennis v, Se. Pennsylvania Transp. .Autli -, , 813. A.2.d 348 (Pa.Crnwlth. 2003). Finally, ruiy

issue nm properly .raised 'before the trial courr is deemed wai ved: .and C8!1li0.l be raised for· the

first time en· appeal. Pa·.R.A.P. 3;02(a).

Page ll' of 36

.......... ' - ···················- .., _, __ ,,_,,,,, ,_,,,, ,,---·-··· ................... ,_,,,,,,,,,_,_ _ -···-·- .., , __ ..
 i
.~
!

Quinn cites numerous instances in which his due proceslr,f rights
.
were violated:
i~

L \Vhe.ther due process r1Rhts \~·ere vieiated .\\~hen the nolit~'!criminalcomplaint
I. contained n,;o .diff erem charnes. "communication. suil kin1z:, at §2709 .l (A)(2) and
''venue stalkin!!~' at S?709.HB)(2)? CONCISE-Sn:r£i\'IEN1::.Ifil:-1
I. Specifically, Quinn asserts in Section L,\. ofhis Concise Statement.that, "The Police

Criminal Complaint provided to the Defendant lists two 4istini.:tive1y different lead charges,

namely 2709.l(a)(2) and 2709.l(h)(2)/: Quinn further states that, as a result of this alleged

discrepancy, his ability to. mount a.defense. was Clearly prejudiced. CONCISE STATEMENT, pg.

2.

Although this issue was never raised at trial the trial court will surnrnarilv address the
I issue
• -· • • • • • • .~ • • • • • • • l, •• • • ••

here as Quinn's. argument manifests a dear misreading of 18 Pa.C.S.A. § 2709,.1 -

Stalking: First, the Police Criminal Complaint arid the: Criminal Infcrmation, Amended

6/2/2016, dearly list Count 1 as Stalking at 18 Pa.CS.A. § 2'709.l(a)(2). However, Quinn

. mav
... : .be.
. .makinu
..... ref ere
. .nee
.. . to. the section
. entitled.
. . . "Acrs
. . of
.
:· the accused associated
. ... · with this

offense," inthe Police Criminal Complaint. There, 18 Pa.C.S.A. !? 2709. l(b)(2) is mentioned.

Quinn's assertion that he was prejudiced by a mention of sections Ja)(2),and (b )(2) has

no merit as section (b)(2) does. 11ot list a separate charge or offense, bur merely clarifies the

offense listed in subsection (a). Subsection (a) is titled "Offense Defined" and states that: a

I person can "" " "" ~f Stal~~1g by con~mitting the "' listed .i.n eith~r "" or
(a)(2): Subsection (b) rs titled "Venue, .. and (b)(2J merely clarifies that; "Acts indicating a

course bJ conduct which occur in one jurisdiction may he. used by any otherjurisdiction in

which an act occurred as evidence ofa continuing pattern of conducr or a course of conduct,"

18 Pa.C.S'.f\.. § 2709.l (b)(2) .. Clearly, (b)(2) is .not a separate offense or even an alternative

classification of actions constitution the crime of Stalking. This subsection provides,
Page 12 of 36
 "
'·

generallv, that ·acts occurring in different jurisdictions. can. still~
,,,
be considered
.
evidence of

"course ofconduct" i·n. the other-jurisdiction. thus, although Q?1inn failed raisethis issue at

trial :an~i, asdiscussed supra; waived ii forappeal, his argument lacks merit as .it is. based on a
misreading of the starute.

2.. Whether due process rielits were violated when Defendan~ was ·.not-noti'fied .of.n
Prcliminarv Conference: and did ·h0t ha:ve·the chanc·e to an end a Preiim1narv
Conference with the Di·strict Attomev's O.ffice?.CONC!SE}TATEM'ENT. 02.s. 2-3.

Quinn nexi asserts that he was never notified of a: Prelirninary Conference and did nor

have the chance toartend the same. Asstared supra, an 'issue not raised before the trial court is

deemed waived and cannot be considered for the firs; time.on appeal. Pa.R.A.P. 302(a).

Here; Quinn failed to raise the issue oflack of notice. of a-Preliminary Conference or

his absence at such Preliminary' Conference before the' trial .coun. A review of the record;

including
.. . transcripts · of the Jury trial .and ali hearings, .as we II.
', '
-as Quinn'. s Post-sentence
.

motions, .shows that Quinn failed to raise this 'issue prior to· or during trial, Thus, the issue of

whether Quinn was .notified .of or afforded ~· Preliminary Conference should be deemed

waived and canner be ..raised on. appeal.

.3. \\ihether.due process ri2.hts wetc··violat'ed when Dcfcndani;:\vas:neve;:-.-gi,;en an.
opporiunirv ro· read the orif!inal rexrmessages .or hear the ~iaice:mails? CONCISE
.STATEMENT. pu. 3:. ·

-Quinn next asserts that, "The . Commonwealth never provided. 'the Defendant an

opportunity \~ read the original text- messages or 'hear the original voicernails despite' the·

Defendant's . request to do so, which violated 'Best Evidence' rule s of procedure." A review of

therecord by tue trial 'eourt indicates Quinn was provided.said messages. FurthermoreQuinn

never- cxplicirly objected to these recordings, but rather he stated that he· was concerned that

they would not be played in their entirety; Pennsylvania Rule of Evidence 1002 -
Page .13. of 36

. . . -- -.. -
,,.- _..,...,,.,,. __ __.__ ,,.,..,.,. _
_. _,_,.,.__.... __ --
,.., _., ,•.. _,,. ,,_, ..
, __ __
,, . , ,,.,,_ ...
I
j Requirement of the Original, provides that, "An original wri,tin:~' recording, or photograph is
;

required in 'order to prove its content unless these rules, other rules prescribed by the Supreme

Court, or a statute provides otherwise:" the voicernails and testimony at trial. satisfy the

requirements of Pa.R.E .. 1002 .

Prior to bringing the jury into the courtroom on the. first d~y of trial, the trial court

spoke to Quinn and theCommonwealth to address.anypre-trial 1:ao\fons orquestions:

The Court: Are there any other questions procedurally about what is going to take
place?

Attorney Lerrgerholc: Just we had provided. a. copy +)!' voicernails sent from this.
Defendant to the victim. We intend to play' those for the jury, and. l have Detective
Hinterliter here to testifv as to chain of custodv. I-le tock those voice mails from the
phone to the CD; \\•hid.; has been provided. to the Defendant, Just procedurally that's
tlk . . .

The Court:
. . Are vou
. .
able ro authenticate
. the voice mails through the witnesses?

Attorney Langcrholc: Yes.

The Court: Assuming there is authentication and rhe chain of custody is established,
then that would be admis.sible,

The Defendant, Robert Quirin: The only issue that I have, I hadn't had an
,ap,!s,J had it on my laptop, and
opportunity yet to review those. I tried to listen to the
for some reason the DVD wouldn't load inromy laptop. I am not sure whether they are
timestamped an~t dated,

I personally don't actually recall making those specific voicemails io
question, but 1.
know that over the course. of,· as J saidr. six months of arguments and back and fonh
messages between us( I am not sure that those messages were made on that date, andI
would just like, at this point, to establish that I intend to .object of they are n.01
timestamped or otherwise.

Attorney Langerholc: They are' timestamped.

The Court: Again; whomever is introducinz evidence. thcv have a burden of makinu
s
sure that it's r;lev~i and authenticated, arid assuming that- that' s done, i( admitted,
hut \\~e Will rule on thatas it comes in.

-
Page 14 of 36 .
.
 l
The Defendant, Robert Quinn: Also, Your Honor.r I would ask that the Best
Evidence Rule applies.also wirh regard to: those voice rri;:;i.is-. ! am not certain, J believe
they are 'edited and they could, .J believe they may be edited in a way to paint a picture
· that doesn't establish thecomplete picture. ·

! f there. is a three-minute
voice mail .and theycut 20 seconds out, J would ask the entire
voiccrnail be played. Irhlnk it goes to: a major part of my argument in this case, \\ h1c.h 1

is intent. · · ·

The DA needs· to prove intent, what was my .intent? If .I did, in fact, send these
messages, was it. to harass Miss Labarko? Was it to cause her emotional distress or
was ·it to ascertain.facts?
The Court: Your objection then ·; s best evidence, you l;iefieve it has been edited, what
rs your response· to· that, Attorney Langerhelc?

Atto rney Langcrholc: They have not been edited, Detective Hinterliter can testify to
that., If' he warns her {Q pJay them directly off her- telephune, 'we are fine .doing that as.
well.

The Cou rt; In terms-of what is being played from, if there Is.testimony that· the CD i.s·
.the same information.as the phone, the ·cpµrt will 'permit »itherto be .played,

With. regard to .the Best.Evidence Rule, if.you ate playin g-thern. in 'rheir entirety, then
that isthe best-evidence, ·

Attorney Langerholc: The voice mails .rhat were downloaded or recorded to this
.audio, have not 'been e~fi.ted ·and a-re the- voice mails in their entirety, -haven't been
touched or doctored or.cut off or anything with re$ard to that.

The -Cou rt: Y ourwitness.carr test] fyto that, at this· point, 'if that" s established· it will ;be
admitted •. If that's. not established, you can make . an objection and come tosidebar to
argue chat.

N.T. JURY TRIAL, ·6./8/201(), pgs. l.3::-L5.. Quinn later objected to the admission of one

voicemail.
. . .-· that
. sratinc . "it'sobviouslv
. .. been edited.". Id. :a( 20.1.
.

l It was later established that the voicemails sounded as if tll~'v had been cm off because·
I
.!
there wasa rime limit on thelength of voicemails accepted by La.~arko's iphone. N.T. JURY

I TRIA.L, . .~/.8/201:6, .Pg: ~3. Therefore, if Quinn continued to talk after -the time expired, the· •

recording would have been cut off .at ·-rhe. expiration of time. Quinn again objected to the'
Page rs of 36

.. - --··· ~.,. _ _.., ,,,_,.. ..,, ,---···--···· ~---- ..~-·,..-····- ,.,. ...,_ .,, - -.._·--- ..- _..__ , .. .,,,. , , , ,.,._,,._,,..
 ~
i
playing of the voicemails that sounded like they had beeucut offfd, at 201 ~01. The trial court

overruled his objection, stating that testimony from Labarko and Hi nterliter showed that the

voicernails had 1101 been edited.

Qufon1s assertions are meritless for two reasons. First, although Quinn states in his

Concise Statement that he was never provided with the messages, the record clearly shows the.

contrary. Quinn clear! y stated. that the Commonweal th turned over the. CD containing the

messages, bui Quinn was unable lo get .his computer to play the rnessages. No further

objections were raised by .Quinn as. to failure by the . Commonwealth to disclose messages.

Next,. Quinn asserts error based the "Best Evidence Rule" - Pa. Rule of Evidence

I 002. However, the record shows (hat. while Quinn objected ro the admission of the.

voiccmails as they sounded edited; these messages were not edited by Labarko or Hinterliter.

Rather, Quinn's messages exceeded the length allowed by Labarkos phone. His message

stopped recording when the time .limir was reached. Detective Hinterliter established that

these voiccrnail recordings had been taken from Labarko's phone, were sent from Quinn's

phone number, and contained the entire voicemail recorded. Based on the testimony' of

Labarko and Hinterliter, the trial court overruled Quinn's objection, stating thci.i. evidence

showed no editing had occurred. Id. at 202 . .Therefore, the voicernailsplayed satisfied. Pa.R.E:.

1002 since the recording contained the entirety of the. voicemail messages on Labarkos

. phone. Thus, there is no merit to this. allegation of error and the trial court 's-ruling should be

affirmed ..

Page l.6of 36
r
I ·, ~
I
.!

,\
4. Whether due process riuhts. \~ere. violated wheri Defendatitwas not provided \i,•ith a
.copv of the elements of the crim~ umil the second dav OD.trial?

Next, Quinn states that he was not provided a copy ofthe elements of the crime until
I
I the secondday
I .
oftria] and, "Even then, that document was substantially edited the following.
I - . .
day.just moments before· the Defense had ro make closing argumerua+Corccrse STATEMENT,

pg. 3. To be clear, it is believed that Quinn is referring to. a written copy of the elements of

the offenses provided by the trial court to jury. The trial court and parties had discussed and
agreed that the trial. court would send a copy of the written elements with thejury to. aid · iri

their deliberation. On the morning of June IO, 2016, ihe trial court provided copies of the

I written elernerus 10 both Quirin and the Commonwealth for review so that either party could.

obj ect to the format or contents of the elements, A review of the record shows rhat a copy of

the. wrirterr clements was never entered as evidence. However, the trial court obtained such

elements from
. . . ...
the Pennsvlvania . Standard
. .. . Criminal Jurv
..... .Instructions
. . - Third. Edition. .

Specifically, the trial . court included Instruction # .I 5.2709.1 -~ Stalking and Instruction #

l5:2706Terroristic Threats. Neither party took. issue with or objected to the contents or form

of such w1:itten elements, In giving its charge to the jury., the trial coun read. from these written

demerits. verbatim:

Coum l, Stalking. The defendant has been charged with stalking. to find the
de fend ant i.'mih,· of this offense. vou must find that each , ,t the followina elements has
been proven beyond a reasortabl; doubt; . "'

First; thatthe def eridanr engaged in a course of conduct! that is, commirted ..more
than one act over a. period of time, however short, that conveyed to Barbara
Labarko chat such conduct would continue; or repeatedly committed, ans; or
repeatedlycommunicated to Barbara Labarko. By communicate, I mean that the
defendant conveyed a message without intent of legitimate communication or
addressed by oral; nonverbal, .wrirten, or electronic means, including telephone,
rext message, email, internet, or similar transmission; and

Pag~ 17 of36

i
 Second.
. . .. that 'the. defendant
. . . .. . so under
did . tircurmftances
., that demonstrated he
intended to put Barbara Labarko in reasonable fear 6ir bodily injury, or intended to
cause her substantial emotional distress. Emotional distress means a temporary or
permanent· state of mental anguish. Bodily injur~, means any impairment of
physical condition or substantial pain.

lf you are satisfied that the. two elements of stalking have been proven beyond a
reasonable doubt, you should find the.defendant guilty. Otherwise, you mus: find
the defendant not~uilty. · · ·

Count 2: Terroristic Threats. The defendant has been charged with the offense of
terroristic threats. To find the defendant suihv of this offense.
\'OU must find insuhe
following elements hav~ bene pro ven bey~ml; reasonabl e doubt:

First; that the defendant communicated, either directly or indirectly, a threat. The
term communicate means CQ[]Vey in person, Of by written Or electronic means;
including telephone, rexr message, email, internet, or similar. transmission.

Second, the defendant communicated the threat to commit any crime of violence
with intent to terrorize . another. If you are satisfied that the two elements of
terroristic threats have been . proven beyond a reasonable doubt, you should find
the defendant guilty. Otherwise, you must find the defendantnot guilty.

· N .T; JURY TRIAL, 6/10/2016, pgs.. 73-75.

As. the .record reflects, Quinn failed· to object to the form. or contents of the wriuen

elements and the oral recitation ofsuch b'y the trial court. Furthermore, the trial court could

find nostanne or case !h;;.v requiring the trial court to provide a delendam with the clements of

the crimes charged where the def endant had already been pro vi dcd the criminal information

and Complaint. Even so, and as stated in Section.l, supra: Quinr, has waived any objection in

this matter and cannot raise this issue for the first time on appeal.

5. Whether due process riuhts were violated when the prose,~ution was afforded what
.amounted to an openina: statement prior tOjurv selection ,yheti asked bv the Courno
uive. a summarv of the alleged facts? CONCISE STATEMENr p!!: 4 e .

Quinn further alleges error and prejudice arising.Jrom Assistant District Attorney

Langerhol c 's summary of the case given to the jury pool .. During the voir dire process, the.

Page 1$. of 36
 i.

lrial court
.
asked
. .
Lanzeraholc.
·- . ._. ·"
"to aive
-·
a verv• briefsummarv·ns:Q(the·
I Superior Court that areto the contrary. For-these. reasons, we do not believe· there is a
need to create. a. "short sentence" exception to. the. general rule announced ·in Grant,
5 72 Pa. 48, Indeed. we fear ·doing so would underrnirie the verv reasons that le'd ·1o··our.
decision in Gram, 572 P~. 48 in the 11r~t irt.sJc;11~e: . ,· • .

Similarly: in .. Com. :v. Simmons, 2904.PA Super 71,:8'46 A.2d· l42, 144 (Pa. Super. C~·-

2004), the Court considered wneiher a defendant 'could raise the issue of ineffective assistance

of counsel on direct appeal when the defendant was sentenced ro .a term .of incarceraiion of

····- , .. _.,
, ,.. , , , ----· ---·,.···-·--·-,, ....., , ,_,, .. .,_ ,_, ,,-- ""',., -- ..~-- -., ,.., _
 .. ~
;

,;

~!
· eleven and one-half months to iwenry-three mouths foil owed by ·,., term of probation. Based on
!

that length of sentence, the Court held that: "Appellant will .have ample opportunity to

challenge his counsel' s effectiveness in .h collateral attack. Accordingly, we find that the

'Saltsbury exception does not apply to the Appellant ls inef.foct1ve assistance of counsel claim

and the claim must be dismissed pursuant to Chant. Id.

Here, Quinn was sentenced to a term of imprisonment for "not less than one year less a

day, nor more than 2 years less a day," The minimum of Quinr.-s sentence is approximately

one-halfof a month longer than the sentence ofthe defendant in.Stmmons, 2004 PA Super 71.

Thus, because Quinn's
. sentence . provides ample time to raise
. ineffectiveness
. of counsel. on

collateral review, and since the record is void of any determination of the trial court as to the
matter, the trial court declines 1:0 address the issue of lneffe.ctiveness of counsel in this

Opinion.

\;IL Wherhet the Court's sentence was inappropriate?

Quinn; s final issue allegationof'error is that;

The sentence of the court was inappropriate and .the jud·~e allowed the prosecution to
assen that a non-violent crime such as this is worse char, violence: which ignores Jaws
which provide aggravating circumstance when violence is. involved. The sentencing
range was 3"14 months but the court sentenced the .Appehatejsic] to l 2 months minus
a day to 24 months minus a .day.

CONCISE STATEMENT: PG .. 13 -,

204 PA.CODE§ 303.1. requires that, "The court shall consider the. sentencing guidelines

in determining the appropriate sentence for offenders convicted of, or pleading ~uilty or nolo

contendere to, felonies and misdemeanors.': To determine the guideline sentence applicable in

a given case the law provides:

The procedure for determining the.guideline sentence. shall be as. follows:
Page 34 of36
 ~
(.i) Determine the Offense Gravity Score asj.desdibed. in s 30l3 and.§.
. .

303. lS:
(2}. Determine the Prior Record Score as described in §.'~03.4~--§ J03.8.
(3) Determine the guideline. sentence recomrnerrdarion as described in §
· 303.9--§ 303.14,. including. Deadly · Weapon Enhancement,
Youth(SchoolE.n.bancem.ent, Criminal Gnng Enhancement, 'and Third
Degree: Murder bf a Victim Younger than Age J..3 Enhancement (§
303: -: fO), and aggravatirrgor mitigating ·cir9umstanc~s.f§ 303-.15),

2,04 Pa.Cede §' 303 .. 2 .. For exam pk, a guideline .senrence. may be 3QA2 months. According t¢

statute, "All numbers in sentence recomrriendations suggest months of minimum confinement

pursuantto 4'2 P,tC.S·.A . ·§. 97-,S(b) (partial confinemenijand § ~n5.${b). (total confinement)."
.

J · 204 Pa. Colic § 3 OJ. 9( e). Therefore, in the case e fa g~ idel i ne sentence of J 0-4 2 months, the

guidelines would. recommend a rnrmrnurn sentence between JO ·and.42 months. Importantly,

the minimum -sentence cannot :e~ieed half of The maximum sentence· length. 42 Pa ..C.S:,A. .. §·

9754.(b)()),

lnitiall«, 'the trial court ..agrees jhai Quinnls guideline runge for seniencirrg was :3-14

rnoruhs. 111e trial coun imposed a. sentence of imprisonment fot one year .tess a day to two

..vears less
.. a dav.
., This-sentence -
.. . . clearlv.... falls within the cuideline
. -
ranze of. J-L4
. months ... as the
,,

minimum sentence imposed was. 12· months ..Jess a day. In facr, a sentence-of 14-2-8 months

-still would have. fallen withinthe.guideline range, The issue rai:'ied. byQuinn manifests a clear

misunderstanding ofthe use and application of the. guideline sentence range in Pennsylvania.

It seems ~hat -Quinn believes that the complete seritcnce, including. minimum and maximum,

rnusr foll within the guideline -range. However, this is 1lqt· in accordance with the applicable:

starurory law discussed supra. Thus, because the. minimum 'term of imprisonment imposed b}'

the trial court falls squarely within Quinn's .guideline tange, the :trial court did Rot err by

applying an aggravated range and sentencing Quinn outside of his 'guideline range.
Page 35 !)[36

- .......,--·-· .. --·--·-----··-- ..-·-----------··--- ... --............_.,.... .,.,....__, _
 . I .

Accordingly, as thereis no merit to. this or .' any allegation q.f error the appeal must be
;I

dismissed and Quinn's. conviction -iµi:d sentence affirmed.

lv1arch'24, 2017

. CQPlESiTO:·
P5gpeF. a cs F··
f5 ~PA O SHERIFF
Q ATTY. Q OTHER
O PO
o ro
Q JAIL
0.JUD.GE
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