J-S41016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ADRIEN JACKIE ROBINSON                     :
                                               :
                       Appellant               :   No. 83 MDA 2019

       Appeal from the Judgment of Sentence Entered December 10, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007286-2017


BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 09, 2019

        Adrien Jackie Robinson (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of strangulation, simple assault,

terroristic threats, and intimidation of a witness.1 Appellant challenges the

denial of his request during trial to dismiss one count of intimidation of a

witness; the weight of the evidence presented in support of his strangulation

and terroristic threats convictions; and the denial of his motion to sever

charges. Upon review, we affirm.

        This case arises from Appellant’s physical assault of his wife, Louisa

Robinson (Wife), and subsequent telephone calls Appellant made to Wife while

____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1), 2706(a)(1), 4952(a)(1), (3).
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he was in prison.

      The trial court summarized Wife’s trial testimony:

      On September 30th, 2017, [Wife] got into an argument with
      [Appellant], with whom she resided. While in the bedroom of their
      residence, [Appellant] got angry with [Wife], accusing her of
      talking to another man. This argument in the bedroom never
      escalated beyond loud yelling. The two moved to the kitchen at
      which point the argument turned physical.

            During their interaction in the kitchen, [Appellant] was
      repeatedly pushing [Wife], all while yelling at her. [Appellant]
      then put his hands on [Wife’s] neck and choked her. With his
      hands around her throat, [Appellant] applied pressure and choked
      [Wife]. [Appellant] choked her with his right hand wrapped
      around her throat while pushing her back into the sink. [Wife]
      testified that while [Appellant] had his hand around her neck, she
      felt like she could not breathe, and that this lasted for about a
      minute. She also testified that while [Appellant] was choking
      [her], he said he was going to kill her.

           [Wife] eventually left the residence and went outside, where
      [Appellant] followed her and slapped her across the face with an
      open hand. [Wife] got into her car and drove around the block to
      get away from [Appellant]. When she got back to the house,
      [Appellant] came up to her vehicle, reached through the open
      window and opened the door, pulled [Wife] out of the car, then
      got inside the vehicle and drove off. After this, [Wife] encountered
      the police who had been called to her residence by a neighbor,
      and told them [Appellant] had taken her vehicle and had slapped
      her. The police told her to go back into her home and went to find
      [Appellant] and returned a few times to the residence before
      taking [Appellant] into custody there. [Wife] stated that as a
      result of her injuries, she had redness on her face and neck, and
      pain in her throat, head and chest from pressure being applied.

Trial Court Opinion, 4/30/19, at 4-5 (citations to notes of testimony and

footnote omitted).

      York City Police Officer Matthew Tunall responded to the reports of the

domestic incident that night. The trial court stated:

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      Officer Tunall testified that on September 30th, 2017, he was
      dispatched at 11:07 PM to [Appellant and Wife’s residence] for a
      domestic incident call. Within five minutes of arriving, the officers
      made contact with [Wife], who appeared to be upset, fearful and
      concerned. [Appellant] was not present[.] Officer Tunall took
      information from [Wife] that a domestic disturbance had occurred,
      gave her some information, and left the residence. Officer Tunall
      was dispatched to [the residence] again that night at 11:51 P.M.
      Officer Tunall was dispatched again because the police had
      received a call that [Appellant] had returned to the residence. The
      police searched the residence upon arrival for [Appellant], but
      once again he was not located.

           Officer Tunall was dispatched a third time to the residence
      that night at 12:42 A.M. Again, the officers were told [Appellant]
      had returned to the residence, and again he was not present when
      they arrived. Instead of leaving the scene this time, Officer Tunall
      set up a vantage point of the residence and waited for [Appellant]
      to return, which he subsequently did. Officer Tunall and other
      police officers entered the residence to contact [Appellant], but
      could not find him inside, until Officer Tunall located [Appellant]
      on the roof of the home. After [Appellant] was located, he was
      taken into custody.

Trial Court Opinion, 4/30/19, at 3.

      Appellant was detained at the York County Prison. That evening, on

October 1, 2017 — less than 24 hours after his arrest — Appellant telephoned

Wife twice from the prison, at 8:11 and 8:32 p.m. N.T. Trial, 9/11/18, at 240,

243. The following afternoon, October 2nd, Appellant called Wife four more

times.   These calls were recorded and played at trial.         The trial court

recounted:

      On the first call[, Appellant], expressed his anger that [Wife]
      called the cops on him and was going to testify against him, and
      stated to her that she was “playing a dangerous game.” [Wife
      testified] that [Appellant] made her use aliases to refer [to]
      herself since the calls were being recorded, and he would use the
      third person when referring to her. The recordings of the phone

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      calls were played in open court, and the Commonwealth admitted
      into evidence transcripts of what was recorded. Among the
      various statements [Appellant] made to [Wife] were, “if she does
      go through with it, I am going to make her life a living hell[,]”
      and, “I don’t give a fuck where you go in the United States, bitch,
      I’m on your ass[,]” and further, that he was going to “make her
      pay.” [Appellant] also repeatedly told [Wife] to “make it right”
      and “fix the situation[,]” and further instructed her that, “I need
      you to go down there and probably like holler at the DA or
      something, man. Like take her down there, let them know like
      they persuaded her[.]”

Trial Court Opinion, 4/30/19, at 5-6.

      Appellant was charged with strangulation, simple assault, and terroristic

threats. On April 23, 2018, the Commonwealth amended the information,

upon motion, to add two counts of intimidation of a witness — under 18

Pa.C.S.A. § 4952(a)(1) (refrain from reporting) and (a)(3) (withhold

testimony) — based on the prison telephone calls. Thereafter, Appellant filed

a motion to sever the latter charges of intimidation of a witness from the

former charges of strangulation, simple assault and terroristic threats. The

trial court denied the motion.

      The   case   proceeded     to   trial   on   September   11,   2018.   The

Commonwealth presented the testimony of Wife and Officer Tunall.             The

Commonwealth also called Preston Eger, an inmate, who testified he: (1)

observed Appellant on the phone at the prison talking about his case, where

Appellant appeared to be in an aggressive, agitated state, telling the other

person on the line that they were “playing a dangerous game”; and (2)

overheard Appellant telling another person that he put his hands on his wife,


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that he was upset she was going to testify against him, and he was going to

try to keep her from doing so. See Trial Court Opinion, 4/30/19, at 2, citing

N.T. Trial, 9/11/18, at 157-158, 160-161.

       Following the Commonwealth’s case in chief, Appellant demurred to the

charge of intimidation of a witness—refrain from reporting, and moved for

dismissal. N.T. Trial, 9/11/18, at 309-310. The trial court denied the request.

Id. at 326.

       Appellant then called York City Police Officer Joseph Colahan to testify.

Officer Colahan, like Officer Tunall, responded to reports of the domestic

incident at Appellant’s residence on September 30, 2017. N.T. Trial, 9/11/18,

at 347. Officer Colahan testified that Wife told him Appellant stole her car

when she returned home to get a spare house and car keys. Id. at 348.

       As noted, the jury found Appellant guilty of strangulation, simple

assault, terroristic threats, and two counts of intimidation of a witness. On

December 10, 2018, the trial court sentenced Appellant to an aggregate term

of 10 to 20 years of imprisonment.2

       Appellant did not file a post-sentence motion, but filed this timely

appeal. Both the trial court and Appellant have complied with Pennsylvania

____________________________________________


2 The individual sentences were: (1) 2½ to 5 years for strangulation; (2) a
concurrent 1 to 2 years for simple assault; (3) a consecutive 2½ to 5 years
for terroristic threats; (4) a consecutive 5 to 10 years for intimidation of a
witness—refrain from reporting; and (5) a concurrent 5 to 10 years for
intimidation of a witness—withhold testimony.



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Rule of Appellate Procedure 1925.

        Appellant presents three issues for our review:3

        1. Did the Trial Court err by refusing to grant Appellant’s Motion
        to Dismiss Count 6, where the evidence was insufficient to convict
        Appellant of Intimidation of witnesses/victim?

        2. Did the Trial Court err by holding that the verdict is not against
        the weight of the evidence as to Strangulation and Terroristic
        threats?

        3. Did the Trial Court err by denying Appellant’s motion to sever
        the original charges from the subsequent charges, which resulted
        in prejudice to Appellant?

Appellant’s Brief at 5.

        Appellant argues the trial court erred in “denying a demurrer and

permitting” the charge of intimidation of a witness—refrain from reporting, to

go to the jury. Appellant’s Brief at 25. Appellant underscores that he made

the telephone calls to Wife after she had already informed law enforcement

of the alleged assault and Appellant was arrested for the assault. Id. at 26.

This issue is waived.

        “[W]hen a defendant does not rest following denial of a demurrer, but

instead presents a defense, the correctness of the ruling on the demurrer is

not preserved for appellate review; the proper procedure is to challenge the

sufficiency of the evidence.” Commonwealth v. Johnson, 192 A.3d 1149,

1154 (Pa. Super. 2018) (citation omitted); see also Pa.R.Crim.P. 606(A)(1)


____________________________________________


3   We have reordered Appellant’s issues.


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(“A defendant may challenge the sufficiency of the evidence to sustain a

conviction of one or more of the offenses charged in . . . a motion for judgment

of acquittal at the close of the Commonwealth’s case in chief.”) (emphasis

added).

         The trial court accurately observed that Appellant, in his Rule 1925(b)

statement, averred that he “was improperly charged with two counts of

Intimidation of Witnesses or Victims. Count 6 should have been dismissed,

as was requested in [Appellant’s] Motion in limine.” See Trial Court

Opinion, 4/30/19, at 9; Appellant’s Statement of Matters Complained of on

Appeal, 1/18/19, at 1-2 (emphasis added).             The court pointed out that

Appellant’s motion in limine “made no such request” and “further, a motion in

limine is the improper method of obtaining this relief.”           See Trial Court

Opinion, 4/30/19, at 9; Appellant’s Motion in Limine, 9/6/18, at 1-2 (sole issue

was whether the recorded prison telephone calls should be admitted).

Nevertheless, the trial court noted that Appellant “did make a motion for

judgment of acquittal at the close of the Commonwealth’s case in chief,” and

thus construed Appellant’s claim as a challenge to the sufficiency of the

evidence. See Trial Court Opinion, 4/30/19, at 9-10.

         Appellant does not address the trial court’s discussion of this issue in his

brief.    Although the heading of his argument reads: “The evidence was

insufficient as a matter of law to convict Appellant of Count 6, Intimidation of

a witness or victim,” Appellant makes no further reference to the sufficiency


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of the evidence, but instead argues that “Count 6 must be dismissed.”

Appellant’s Brief at 25-29. Accordingly, we consider Appellant’s claim to be

what he presents in his statement of questions involved and develops in his

argument — i.e., that the trial court erred in denying Appellant’s request

during trial to dismiss the intimidation charge. See id. at 5, 25-29.

      As stated above, Appellant demurred and moved for dismissal of the

intimidation of a witness charge following the Commonwealth’s case in chief.

N.T. Trial, 9/11/18, at 309-310. After the trial court denied relief, Appellant

presented testimony from Officer Colahan. Accordingly, because Appellant

did not rest, but presented a defense, he has not preserved the dismissal

issue, and his challenge to the trial court’s ruling is waived. See Johnson,

192 A.3d at 1154.

      In his second issue, Appellant challenges the weight of the evidence

attendant to his convictions of strangulation and terroristic threats. Appellant

maintains that the Commonwealth presented no evidence to corroborate

Wife’s testimony that he put his hands on her neck, and that the police did

not document any evidence of injury. Appellant asserts Wife “only reported

that [he] threatened her and put his hands on her throat after the police told

her she could not make a stolen vehicle report against her husband.”

Appellant’s Brief at 30 (emphasis in original).

      The Commonwealth responds that this issue is waived because

Appellant did not file a post-sentence motion challenging the weight of the


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evidence. Commonwealth Brief at 21. We agree.

      Pennsylvania Rule of Criminal Procedure 607 provides:

      (A) A claim that the verdict was against the weight of the evidence
      shall be raised with the trial judge in a motion for a new trial:

           (1) orally, on the record, at any time before sentencing;

           (2) by written motion at any time before sentencing; or

           (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). “Failure to properly preserve [a weight of the

evidence] claim will result in waiver, even if the trial court addresses the issue

in its opinion.” Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012).

      Appellant has not stated that he challenged the weight of the evidence

before the trial court as required by Pa.R.A.P. 2117(c)(1) and (3) (“Where . .

. an issue is not reviewable on appeal unless raised or preserved below, the

statement of the case shall . . . specify” the place in the record “and the

manner in which the questions sought to be reviewed were raised,” as well as

“[t]he way in which they were passed upon by the court.”). In addition, our

review of the record reveals that Appellant did not orally challenge the weight

of the evidence following the jury’s verdict or file a post-trial motion. See,

e.g., N.T. Trial, 9/11/18, at 400-402 (no challenge by Appellant after jury

rendered the verdict). The certified record does not include the sentencing

transcript, and the trial docket indicates that Appellant did not request it.

Thus, we are unable to review whether Appellant raised an oral challenge at

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the sentencing hearing. See Pa.R.Crim.P. 607(A)(1). Accordingly, we agree

with the Commonwealth that the issue is waived.                See Pa.R.Crim.P.

607(A)(1)-(3); Lofton, 57 A.3d at 1273.

        Finally, Appellant claims the trial court erred in denying his motion to

sever the two intimidation of a witness charges4 from the strangulation, simple

assault and terroristic threat charges. In support, Appellant contends: (1)

“[t]here was a substantial break” between the attacks at the home and the

telephone calls, which were made at the prison “almost 24 hours after the

start of the loud argument”; (2) evidence of the telephone calls was neither

necessary nor admissible at the trial on the initial charges, where the two

events “were separated by time and space”; and (3) evidence of the telephone


____________________________________________


4   Appellant was convicted under the following subsections:

             (a) Offense defined. — A person commits an offense if,
        with the intent to or with the knowledge that his conduct will
        obstruct, impede, impair, prevent or interfere with the
        administration of criminal justice, he intimidates or attempts to
        intimidate any witness or victim to:

                (1) Refrain from informing or reporting to any law
            enforcement officer, prosecuting official or judge concerning
            any information, document or thing relating to the
            commission of a crime.

                                       *       *    *

                 (3) Withhold any testimony, information, document or
            thing relating to the commission of a crime from any law
            enforcement officer, prosecuting official or judge.

18 Pa.C.S.A. § 4952(a)(1), (3).

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calls confused the jury, where “[t]he telephone calls were so verbally abusive

that a jury was give[n] no choice but to conclude that Appellant was also

physically assaultive.” Appellant’s Brief at 22-23. Appellant asserts that he

was prejudiced by the consolidation of the charges, where Wife “was

repeatedly and successfully impeached,” but that impeachment “was

swallowed whole by the admission of Appellant’s telephone calls.” Id. at 24.

We disagree.

      We review a trial court’s decision to join or sever indictments for abuse

of discretion. Commonwealth v. Brookins, 10 A.3d 1251, 1255 (Pa. Super.

2010). “The court may order separate trials of offenses . . . or provide other

appropriate relief, if it appears that any party may be prejudiced by offenses

. . . being tried together.” Pa.R.Crim.P. 583. “The critical consideration is

whether [the] appellant was prejudiced by the trial court’s decision. . . . [The

a]ppellant bears the burden of establishing such prejudice.” Brookins, 10

A.3d at 1255 (citation omitted).

          Where the defendant moves to sever offenses not based
          on the same act or transaction . . . the court 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.

                                   *     *      *

      “Evidence of crimes other than the one in question is not
      admissible solely to show the defendant’s bad character or

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      propensity to commit crime.”       See Pa.R.E. 404(b)(1) . . . .
      Nevertheless:

            [E]vidence of other crimes is admissible to demonstrate
            (1) motive; (2) intent; (3) absence of mistake or
            accident; (4) a common scheme, plan or design
            embracing the commission of two or more crimes so
            related to each other that proof of one tends to prove the
            others; or (5) the identity of the person charged with the
            commission of the crime on trial. Additionally, evidence
            of other crimes may be admitted where such evidence is
            part of the history of the case and forms part of the
            natural development of the facts.

Brookins, 10 A.3d at 1256 (some citations omitted).

      Here, as to the first prong, the trial court found that the evidence “for

the assaultive charges for the incident on September 30th, 2017 would be

admissible in a trial for the intimidation charges, as [Appellant] was trying to

intimidate [Wife] from reporting information and testifying about the incident

on September 30th, 2017.” Trial Court Opinion, 4/30/19, at 7-8.

      With regard to the second prong, the trial court determined:

      [T]he jury could reasonabl[y] separate the evidence to avoid
      confusion. [T]he interactions between [Appellant and Wife] for
      the intimidation counts versus the assaultive counts occurred on
      separate days and in separate locations, and further, one
      interaction was in person face to face, and the other was over the
      phone[.] There is no risk of confusing the two incidents.

Id. at 8.

      Finally, the court found “it is clear [Appellant] would not be prejudiced

by the consolidation,” and “[t]he jury could reasonably separate and avoid

cumulating the evidence as it is from two distinct events[.]” Id. The trial

court reasoned:

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      [S]everance was not necessary for the charges in [Appellant’s]
      case as his conduct in all counts was part of one continuous
      abusive and assaultive interaction with [Wife]. These events all
      occurred within a 48 hour period and all concerned [Appellant]
      exercising abusive power and dominance over his spouse, without
      a clean break, to make her comply with his demands. His
      recorded telephone conversations with [Wife] were so intrinsically
      intertwined with his actions on the night of September 30th, 2017,
      that there was no separation in time or occurrence that created
      prejudice in having the jury hear the evidence together. To have
      artificially severed this continuous course of events would, in fact,
      have prejudiced the Commonwealth, as the threatening and
      assaultive behavior at [Wife]’s home provided the motive for
      [Appellant] to engage in witness tampering and intimidation from
      jail in order to avoid accountability.

Trial Court Opinion, 4/30/19, at 9.     Upon review, we discern no abuse of

discretion by the trial court in denying Appellant’s motion to sever the charges.

See Brookins, 10 A.3d at 1255-1256.

      In sum, Appellant’s first two claims are waived, and his third claim does

not merit relief. We thus affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2019




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