J-S24028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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