J-S76010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CLINTON D. OXFORD                          :
                                               :   No. 1349 EDA 2017
                       Appellant               :

                  Appeal from the PCRA Order March 20, 2017
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001602-2014


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 11, 2018

        Clinton Oxford appeals from the order dismissing his petition pursuant

to the Post Conviction Relief Act (“PCRA”). He contends his trial counsel was

ineffective and he received an illegal sentence. Neither argument merits relief,

and we affirm.

        The Commonwealth charged Oxford with two counts of terroristic

threats, one count of stalking, and one count of harassment based upon his

behavior towards his probation officer. Specifically, he was charged with

sending multiple threatening e-mails and appearing at the home where he

believed she lived. The jury convicted him on all counts.


____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      During the jury trial, the trial court repeatedly admonished Oxford’s

counsel on his unprofessional demeanor, failure to follow instructions following

a ruling, and argumentative questioning of the victim. Most of these

admonishments occurred outside the presence of the jury.

      However, trial counsel’s conduct culminated in a confrontation at the

conclusion of his closing argument. In a side-bar, the trial court indicated its

displeasure at trial counsel’s failure to abide by a prior evidentiary ruling in

his closing argument:

      THE COURT: And I could not have been more clear that you were
      not to argue the existence of a manual. It is – that’s not in
      evidence and we have no idea if it exists. They’re getting a
      curative instruction about that part of your closing. If you choose
      to disregard my instructions over and over, then you leave me no
      choice.

                                          …

      Ladies and gentlemen of the jury, you’re instructed to completely
      disregard any mention of an employee manual that defense
      counsel made in his closing arguments.

      Defense counsel was specifically instructed by the [c]ourt in the
      robing room not to make any mention of an employee manual.
      That is not in evidence and that we have no knowledge of it even
      existing. He chose to willfully disregard my instruction.

      So I am instructing you to completely disregard any mention of
      the existence or nonexistence of an employee manual pursuant to
      his closing argument. Give it no consideration whatsoever.

      Also, do not hold it against the defendant, Clinton Oxford, that his
      counsel chose to disregard the instructions of the [c]ourt.

N.T., Jury Trial, 9/11/14, at 48-49.




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      In his counseled, amended PCRA petition, Oxford asserted counsel’s

behavior at trial constituted ineffective assistance of counsel.

      We start by determining whether the PCRA court’s factual findings are

supported by the record. See Commonwealth v. Ford, 44 A.3d 1190, 1194

(Pa. Super. 2012). In doing so, we read the record in the light most favorable

to the prevailing party. See id. If this review reveals support for the PCRA

court’s credibility determinations and other factual findings, we may not

disturb them. See id. See also Commonwealth v. Santiago, 855 A.2d 682,

694 (Pa. 2004). We, however, “afford no such deference to its legal

conclusions.” Ford, 44 A.3d at 1194 (citations omitted).

      Oxford’s argument is a claim of trial counsel’s ineffectiveness. We

assume counsel’s effectiveness and Oxford bore the burden of proving

otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super.

2017). To do so, Oxford was required to plead and prove the underlying issue

has arguable merit, counsel acted pursuant to an objectively reasonable

strategy, and actual prejudice resulted from counsel’s act or failure to act.

See Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super.

2012). A failure to satisfy any prong of the test will require rejection of the

entire claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      The PCRA court found Oxford had failed to establish he was prejudiced

by trial counsel’s behavior. “Prejudice is established if there is a reasonable

probability that, but for counsel’s errors, the result of the proceedings would


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have been different. A reasonable probability is probability sufficient to

undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d

701, 707 (Pa. Super. 2013) (en banc) (citations and internal quotation marks

omitted).

      Oxford contends the PCRA court’s focus in evaluating prejudice was too

narrow. Specifically, he asserts the court failed to consider “the probable effect

of [trial counsel’s] conduct on the jury throughout the course of the entire

trial.” Appellant’s Brief, at 14. He does not elaborate what he believes the

probable effect was. Presumably, he is arguing counsel’s conduct biased the

jury when it evaluated the veracity of the Commonwealth’s evidence.

      After reviewing the entirety of the transcript, we conclude Oxford cannot

establish a reasonable probability that the outcome of his trial would have

been different absent counsel’s conduct. The Commonwealth presented a

plethora of bizarre e-mails Oxford sent to the victim. See N.T., Jury Trial,

9/10/14, at 39, 60, 70-73, 83, 131, 133-134. These e-mails variously

professed Oxford’s love for the victim, his desire to end “society as we know

it,” his desire to harm those who stood in his way, and the fact that he had

been at her old home late at night. Furthermore, Oxford was seen peering into

a home where the victim’s child spent significant time. See id., at 101. The

victim testified that, given Oxford’s violent history, she felt threatened by this

conduct. See id., at 139, 158, 161.




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      This overwhelming evidence of Oxford’s guilt led to the jury’s verdict.

Since Oxford has failed to establish a reasonable probability that the verdict

would have been different if counsel had acted appropriately, this issue merits

no relief on appeal.

      Next, Oxford argues his sentence for stalking should have merged with

his sentences for terroristic threats. He believes the terroristic threats charges

constitute the sole incidents of threatening behavior that form the basis of the

stalking charge. He is mistaken.

      Oxford is correct in noting this claim presents a challenge to the legality

of his sentence. See Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.

Super. 2012). The claim is therefore not waived, even though it was raised

for the first time in his appellate brief. See Commonwealth v. Campbell,

505 A.2d 262 (Pa. Super. 1986) (en banc). Merger is appropriate only when

two distinct criteria are satisfied: “[(]1) the crimes arise from a single criminal

act; and [(]2) all of the statutory elements of one of the offenses are included

within the statutory elements of the other.” Commonwealth v. Baldwin,

985 A.2d 830, 833 (Pa. 2009).

      The crime of stalking requires, among other elements, a finding that the

defendant engaged in a course of conduct that places the victim in reasonable

fear of bodily injury or causes substantial emotional distress to the victim. See

18 Pa.C.S.A. § 2709.1(a)(2). In contrast, the crime of terroristic threats does




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not require a course of conduct; a single threat is sufficient. See 18 Pa.C.S.A.

§ 2706(a)(1).

      Here, the two terroristic threats charges are based upon two separate

e-mails sent by Oxford to the victim. While these e-mails are part of the basis

for the stalking charge, they are far from the only incidents that support the

jury’s verdict that Oxford engaged in a course of conduct that placed the victim

in reasonable fear of bodily injury or caused her substantial emotional distress.

A multitude of other weird and menacing e-mails were presented to the jury.

Additionally, the Commonwealth presented evidence that Oxford was

surveilling the house where he believed the victim lived, and the house where

her child lived. Thus, the factual basis for the charge of stalking is based upon

criminal acts beyond those necessary to establish the bare elements of the

two terroristic threats charges. See Commonwealth v. Orie, 88 A.3d 983,

1020 (Pa. Super. 2014). The charges do not merge.

      As we conclude neither of Oxford’s issues on appeal merit relief, we

affirm the order dismissing his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/18

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