J-S66022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA


                    v.

QUINTEZ TALLEY

                         Appellant                No. 1917 MDA 2015


             Appeal from the Judgment of Sentence July 2, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001720-2014

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA


                    v.

QUINTEZ TALLEY

                         Appellant                No. 1918 MDA 2015


             Appeal from the Judgment of Sentence July 2, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001721-2014


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                      FILED OCTOBER 31, 2016

     Appellant, Quintez Talley, appeals from the judgment of sentence

entered on July 2, 2015, in the Court of Common Pleas of Centre County.

We affirm.

     The Commonwealth charged Talley in criminal informations with one

count each of aggravated harassment by prisoner, 18 Pa.C.S.A. § 2703.1.
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The counts arise from two separate incidents. The first stems from Talley’s

actions on June 5, 2014. On that date, the Commonwealth alleged that

Talley was an inmate at SCI Benner Township, housed in a psychiatric

observation cell. When Correctional Officer Thomas Suchta approached

Talley’s cell, Talley threw urine on him, soaking the officer from his head to

his toes. The other stems from Talley’s actions on June 18, 2014. On that

date, the Commonwealth alleged that Talley resided in the restricted housing

unit of the same correctional institution. When Correctional Officer Robert

Hewitt approached his cell, Talley splashed urine underneath the cell door,

soaking the officer’s boots, pants, and shirt.

      The case proceeded to pre-trial matters. The Commonwealth filed

notice of its intention to consolidate and try the separate informations

together. Talley acted in his own defense with standby counsel. Talley filed a

slew of motions, including motions in limine and a motion to sever. The trial

court scheduled a hearing on the motions. On the day of the hearing,

however, Talley refused to participate. Citing Talley’s refusal to participate in

his own case, his standby counsel indicated that he would only address the

motions if the Commonwealth “do[es] something flat out wrong or

egregious.” N.T. Hearing, 4/29/15, at 8. The trial court and then the

Commonwealth      then went through       Talley’s   motions.   The   trial   court

ultimately denied all eleven motions.




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      Immediately prior to trial, Talley again advanced argument on some of

his motions in limine. The trial court acted with incredible patience in dealing

with Talley. See N.T., Trial, 5/6/15, at 3-32. Frustrated that the proceedings

were not going his way, Talley voluntarily absented himself from the trial.

The jury trial proceeded in his absence.

      The Commonwealth presented the testimony of Correctional Officers

Suchta and Hewitt who both testified that Talley threw urine on them.

Correctional Officer Thomas Lykens testified that he observed Talley throw,

from a milk container, a liquid substance toward Correctional Officer Suchta.

He then heard Talley say to Correctional Officer Suchta, “I got you, man.”

N.T., Trial, 5/6/15, at 87. Talley asked Correctional Lykens if he got any on

him as his intended target was only Correctional Officer Suchta. And he

heard Talley taunt Correctional Officer Suchta later that day by asking him,

“[w]hy are you walking around with piss on your shirt[?]” Id., at 88. The

jury also saw surveillance footage of the incidents. And the Commonwealth

presented the testimony of Pennsylvania State Police forensic scientist

Gabriel Llinas who testified as an expert witness. Llinas stated that he

conducted tests on Correctional Officer Suchta’s pants and Correctional

Officer Hewitt’s shirt and obtained positive results for the presumptive

presence of urine on both items.

      The jury quickly (it took just thirteen minutes of deliberation) returned

a verdict of guilty to two counts of aggravated harassment by prisoner.


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      The trial court later imposed an aggregate sentence of 4½ to 9 years’

imprisonment. Talley filed a post-sentence motion and a supplemental post

sentence motion, which the trial court denied after a hearing. This timely

appeal followed.

      Talley first argues that the trial court erred in denying his motion to

sever.

      [A] motion for severance is addressed to the sound discretion of
      the trial court, and ... its decision will not be disturbed absent a
      manifest abuse of discretion. The critical consideration is
      whether [the] appellant was prejudiced by the trial court’s
      decision not to sever. [The a]ppellant bears the burden of
      establishing such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation

omitted) (alterations in original).

      To address Talley’s challenge, we must determine:

         [1] whether the evidence of each of the offenses would be
         admissible in a separate trial for the other; [2] whether such
         evidence is capable of separation by the jury so as to avoid
         danger of confusion; and, if the answers to these inquiries are in
         the affirmative; [3] whether the defendant will be unduly
         prejudiced by the consolidation of offenses.

Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation

omitted) (alterations in original). See also Pa.R.Crim.P. 582 and 583.

      Accordingly, our first step is to determine whether the evidence

regarding each incident would be admissible in a separate trial for the other.

It is impermissible to present evidence at trial of a defendant’s prior bad acts

or crimes to establish the defendant’s criminal character or proclivities. See


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Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). Such

evidence, however, may be admissible “where it is relevant for some other

legitimate purpose and not utilized solely to blacken the defendant’s

character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.

2007) (citation omitted). The Rules of Evidence specifically provide that

“[e]vidence of other crimes, wrongs, or acts may be admitted for other

purposes, such as proving … intent … [the] absence of mistake, or lack of

accident.” Pa.R.E. 404(b)(2).

      Here, we have little difficulty in concluding that the evidence of each

crime would be admissible in a separate trial for the other. The evidence of

each would be admissible as each incident was relevant to establish an

absence of mistake or accident by demonstrating that Talley intentionally

threw his urine on the correctional officers. Talley’s proposed defense to the

incident involving Correctional Officer Thomas Suchta was that he did this to

himself—that after urinating he “shook a little too hard.” N.T., Trial, 5/6/15,

at 10. See also id. (“Come on, he shook a little too hard.”) Evidence that

Talley also threw urine on Correctional Officer Hewitt would squarely refute

that defense.

      The Commonwealth alleged that each incident was preceded by

Talley’s displeasure with the correctional officers: that Correctional Officer

Suchta did not feed Talley and that Talley was annoyed when Correctional




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Officer Hewitt stopped by his cell to ask how he was. Thus, evidence of each

incident shows intent.

      And, importantly, the evidence was not admitted merely to show

Talley acted in conformity with a character trait.

      The next step is to determine whether joinder of the offenses for trial

posed a danger of confusing the jury. “Where a trial concerns distinct

criminal offenses that are distinguishable in time, space and the characters

involved, a jury is capable of separating the evidence.” Commonwealth v.

Collins, 703 A.2d 418, 423 (Pa. 1997) (citation omitted). Here, the crimes

occurred at different times and involved different victims; there was no

danger of confusing the jury with evidence of each crime.

      Finally, we must determine whether joinder of the offenses for trial

unfairly prejudiced Talley.

      The “prejudice” of which Rule [583] speaks is not simply
      prejudice in the sense that appellant will be linked to the crimes
      for which he is being prosecuted, for that sort of prejudice is
      ostensibly the purpose of all Commonwealth evidence. The
      prejudice of which Rule [583] speaks is, rather, that which would
      occur if the evidence tended to convict appellant only by showing
      his propensity to commit crimes, or because the jury was
      incapable of separating the evidence or could not avoid
      cumulating the evidence.

Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (citation

omitted).

      We can discern no unfair prejudice to Talley in joining the two offenses

for a single trial. In his brief, Talley methodically defines unfair prejudice and


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then simply concludes that “[i]t is difficult to overstate the prejudice caused

by exposing the same jury to two separate allegations of throwing urine on

another person.” Appellant’s Brief, at 13. This conclusion in no way

establishes unfair prejudice. The burden is squarely on Talley and he fails to

establish unfair prejudice.

       Talley next argues that the trial court erred in denying his motion in

limine to preclude the Commonwealth from presenting evidence that he

called correctional officer Hewitt a “fucking cracker.” Id.1

       In evaluating the denial … of a motion in limine, our standard of
       review is well-settled. When ruling on a trial court’s decision to
       grant or deny a motion in limine, we apply an evidentiary abuse
       of discretion standard of review. A trial court has broad
       discretion to determine whether evidence is admissible, and a
       trial court’s ruling regarding the admission of evidence will not
       be disturbed on appeal unless that ruling reflects manifest
       unreasonableness, or partiality, prejudice, bias, or ill-will, or
       such lack of support to be clearly erroneous. If the evidentiary
       question is purely one of law, our review is plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

       Talley maintains that this evidence, which he concedes was relevant,

see Appellant’s Brief, at 13, was unfairly prejudicial. Talley explained his

fear about this evidence:

____________________________________________


1
  For an explanation of the meaning of this homonym, we refer the reader to
“The Secret History of the Word ‘Cracker,’” National Public Radio, available
at   http://www.npr.org/sections/codeswitch/2013/07/01/197644761/word-
watch-on-crackers (accessed October 13, 2016).



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            I even have a motion where I just merely asked you can
      we [sic] exclude the part where the COs are going to say that he
      called them a cracker, and that was denied.

            So I don’t know. I guess at a later date I’ll be able to
      argue racial prejudice and all of that, but I don’t understand how
      that motion was denied.

           That’s a simple request where you’re going to have a CO
      come before an all white [sic] jury and say in this room he called
      me a cracker. Okay, lock him up.

             In all honesty, I’m a little distraught at this point. I’m
      coming before a white judge, a white jury, a white district
      attorney, white State troopers. It’s not rocket science; my black
      ass is about to get found guilty.

N.T., Trial, 5/6/15, at 8. In his brief, Talley states that evidence of the

epithet “fucking cracker” when he appeared “before an all-white jury” “was

particularly prejudicial.” Appellant’s Brief, at 13.

      “The court may exclude relevant evidence if its probative value is

outweighed by a danger of … unfair prejudice….” Pa.R.E. 403. “‘Unfair

prejudice’ means a tendency to suggest decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence

impartially.” Id., Comment.

      The Commonwealth presented overwhelming evidence in this case:

The two victims testified, an eyewitness testified, the jury watched

surveillance videos, and an expert testified to the presumptive presence of

urine. Against this evidentiary background we cannot conclude that the use

of the racial epithet resulted was unfairly prejudicial. The trial court did not




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abuse its discretion in permitting the Commonwealth to introduce evidence

of Talley’s use of the epithet.

       Lastly, Talley argues that the Commonwealth presented insufficient

evidence to sustain the convictions “or, alternatively,” 2 that the verdict was

against the weight of the evidence. Appellant’s Brief, at 13. We disagree.

       We begin with the sufficiency of the evidence.

       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 to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying [the above] test,
       we may not weigh the evidence and substitute our judgment for
       the fact-finder. In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant’s guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
       proving every element of the crime beyond a reasonable doubt
       by means of wholly circumstantial evidence. Moreover, in
       applying the above test, the entire record must be evaluated and
       all evidence actually received must be considered. Finally, the
       [trier] of fact while passing upon the credibility of witnesses and
       the weight of the evidence produced, is free to believe all, part
       or none of the evidence.



____________________________________________


2
  The “or, alternatively,” language is key as Talley combined these two
distinct legal concepts into one issue: “A true weight of the evidence
challenge concedes that sufficient evidence exists to sustain the verdict but
questions which evidence is to be believed.” Commonwealth v. Lewis, 911
A.2d 558, 566 (Pa. Super. 2006) (citation omitted).




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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted).

      Talley maintains that the Commonwealth failed to prove that the

substance thrown was urine as required for conviction under § 2703.1. Both

Correctional Officer Suchta and Correctional Officer Hewitt testified that

Talley threw a substance on them that, by smell, they immediately identified

as urine. See N.T., Trial, 5/6/15, at 77-79; 94-96. Correctional Officer

Thomas Lykens testified that he observed Talley throw, from a milk

container, a liquid substance toward Correctional Officer Suchta. See id., at

87. He then heard Talley say to Correctional Officer Suchta, “I got you,

man.”   Id.   Correctional   Officer   Lykens   testified   that   Talley   taunted

Correctional Officer Suchta by asking him, “[w]hy are you walking around

with piss on your shirt.” Id., at 88. Correctional Officer Lykens further

testified that Talley, who had no beef with him, expressed concern about

possibly hitting him in the attack, asking, “I didn’t get you, you sure I didn’t

get you[?]” Id., at 90. The jury watched surveillance footage of both

incidents. See id., at 80-82; 98-99. And the Commonwealth’s expert

witness testified that testing revealed the presumptive presence of urine on

Correctional Officer Suchta’s pants and Correctional Officer Hewitt’s shirt.

See id., at 121, 124.




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       We have very little difficulty in finding that the Commonwealth

presented sufficient evidence to sustain the convictions.3 We next address

Talley’s claim that the verdict is against the weight of the evidence.

       The finder of fact is the exclusive judge of the weight of the evidence

as the fact finder is free to believe all, part, or none of the evidence

presented     and     determines      the      credibility   of   the   witnesses.   See

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). As an

appellate court, we cannot substitute our judgment for that of the finder of

fact. See id. Therefore, we will reverse a jury’s verdict and grant a new trial

only where the verdict is so contrary to the evidence as to shock one’s sense



____________________________________________


3
  Talley argues in his brief that the Commonwealth failed to prove that the
substance was urine because the presumptive test “was arguably less
accurate than a PBT [preliminary breath test] (which can at least tell us that
alcohol, and not something else, was present)….” Appellant’s Brief, at 14.
There are serious flaws in this argument, which we need not address here.
Talley did not advance this argument, flawed as it is, in the court below. See
Pa.R.A.P. 302(a). He lodged no objection to the expert’s testimony. We find
this claim waived.

  This claim is at direct odds with Talley’s position in the trial court. In his
“Petition for Writ of Habeas Corpus/Motion to Quash,” filed when he was
proceeding pro se, Talley had no objection to the presumptive testing
procedure itself. For instance, Talley noted that such testing was the
“‘generally accepted’ standard” scientific test and that the presence of urine
“is usually proven by ‘presumptive testing.’” Motion, 4/23/15, at 2-3. He did
note that such testing had its “flaws,” which he did not detail. The final two
pages of his motion are a rambling discourse about how men urinate, what
was tested and what should have been tested, and the alleged late filing of
the serologist’s report, which he claimed warrants quashing of the evidence.



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of justice. See Commonwealth v. Passmore, 857 A.2d 697, 708 (Pa.

Super. 2004).

      A verdict is said to be contrary to the evidence such that it shocks

one’s sense of justice when “the figure of Justice totters on her pedestal,” or

when “the jury’s verdict, at the time of its rendition, causes the trial judge to

lose his breath, temporarily, and causes him to almost fall from the bench,

then it is truly shocking to the judicial conscience.” Commonwealth v.

Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d,

938 A.2d 198 (Pa. 2007).

      Furthermore,

      where the trial court has ruled on the weight claim below, an
      appellate court’s role is not to consider the underlying question
      of whether the verdict is against the weight of the evidence.
      Rather, appellate review is limited to whether the trial court
      palpably abused its discretion in ruling on the weight claim.

Champney, 832 A.2d at 408 (citation omitted).

      The trial court found that the verdict did not shock its sense of justice.

We find no abuse of discretion with this conclusion. The figure of Justice is

firmly rooted to her pedestal in this case.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2016




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