J-S43006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREGORY DAVID HOWARD

                            Appellant                 No. 1285 WDA 2016


        Appeal from the Judgment of Sentence entered October 1, 2015
           In the Court of Common Pleas of Westmoreland County
               Criminal Division at No: CP-65-CR-0005467-2014


BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 25, 2017

        Appellant, Gregory David Howard, appeals from the October 1, 2015

judgment of sentence imposing an aggregate 20 to 40 years of incarceration

for two counts of robbery, one count of aggravated assault, one count of

simple assault, one count of unlawful restraint, one count of theft by

unlawful taking, one count of receiving stolen property, and one count of

conspiracy.1      Also before us are Appellant’s pro se applications for

appointment of new counsel. We affirm the judgment of sentence and deny

the applications for appointment of new counsel.

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3701(a)(1)(i) and (ii), 2702(a)(1),          2701(a)(1),
2902(a)(1), 3921(a), 3925(a), and 903(a)(1), respectively.
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     The trial court summarized the pertinent facts:

           The charges in this matter    arise from an incident that
     occurred on October 21, 2014, in    West Newton, Westmoreland
     County, Pennsylvania. The facts     set forth herein are derived
     from testimony presented at trial   of this matter that occurred
     between July 6 and July 9, 2015.

           Codefendant Brandon Danilchak testified that two days
     before the crime, he, [Appellant], and an individual named
     Derrell Adams met at [Appellant’s] residence to discuss a
     potential home invasion. Danilchak stated that [Appellant] and
     Adams spoke with him about an older woman who had loaned
     money to Adams. They believed that she would have a large
     amount of cash inside her home.

           Adams described the layout of the house, and that
     [Appellant] had stated that he was familiar with the area where
     the home was located. On the morning of October 21, 2014,
     [Appellant] picked up Danilchak from his apartment at
     approximately 5 a.m. Danilchak testified that he, [Appellant],
     Lamont Dixon, and Darrell Adams all agreed that they would
     commit the home invasion. Adams again instructed the group
     regarding the layout of the home. [Appellant] supplied the
     group with gloves to avoid leaving fingerprints at the crime
     scene, and they departed in Dixon’s vehicle, a white Chevy
     Malibu.

           Frances Tekavec, a 91-year-old woman, was at her
     residence in West Newton on October 21, 2014, at
     approximately 6:30 a.m. when employees from Levin’s Furniture
     arrived to deliver two mattresses that she had ordered. Roughly
     five minutes after the deliverymen departed, a Caucasian male,
     later identified as Brandon Danilchak, knocked on her door,
     stating that he was from Levin’s furniture, and had forgotten to
     have her sign a receipt. The man stepped in to her home, and
     as Ms. Tekavec searched for a pen, another individual, described
     as a tall African American male and later identified as Lamont
     Dixon, entered her home wearing a black hoodie sweatshirt. As
     he entered, he grabbed the victim’s shoulders and threw her
     across the kitchen. Her head hit the refrigerator, and as she
     landed on the ground on her back, he held a knife to her side
     and demanded money. The victim stated that she had no
     money except what was in her purse. The individual inquired as


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     to the location of her purse, and when the victim indicated it was
     in her bedroom, the individual dragged the victim into the
     bedroom, as she could not walk due to the fall. The individual
     removed approximately $30 from her purse. He then opened
     her jewelry chest and emptied two drawers which were filled
     with various types of jewelry. He also removed the victim’s
     jewelry from her person. The first individual then approached
     the victim’s wall safe, but was unsuccessful in opening it without
     a key. When the victim informed him that she did not wish to
     give him the key, he held a knife to the victim’s small dog and
     said that if she did not give him the key, he would kill her dog.

           The victim then noted that a third individual, a heavyset
     African-American later identified by the victim as [Appellant],
     entered her home. The victim noted that he was wearing a robe
     and a mask. [Appellant] grabbed her and threw her on her bed.
     He then threw a sheet over her face to impede her vision. The
     victim’s wrists were bound with electrical cord, and her ankles
     were bound with a surgical stocking. The victim noted that her
     ankles and wrists were bound so tightly that her flesh was
     removed. After the three individuals finished removing items
     and cash from the safe and other items from her home, they
     departed. It took the victim approximately 20 minutes to work
     her bindings until she was able to call 9-1-1. The victim was
     transported to the hospital, where she was diagnosed with a
     broken neck and broken vertebrae in her back. She testified
     that she still suffers from terrible pain, which limits her ability to
     walk. The three individuals removed approximately $13,000
     worth of items. The victim also noted that she had reported to
     the police a strange vehicle outside of her home the day prior,
     which she identified as a white sedan.

            Bobbi Drudl testified that she was the girlfriend of
     codefendant Lamont Dixon on the day of the crime. Drudl
     testified that on the morning of October 21, 2014, she woke to
     find that her car was missing, which she identified as a white
     Chevy Malibu. Drudl stated that she was unnerved because she
     needed the car to drive to work. She attempted to call Dixon,
     but his phone was turned off. She stated that at roughly 8 a.m.,
     Dixon finally contacted her using his uncle, [Appellant’s] cell
     phone. Dixon stated that he was on his way back to Drudl’s
     home. Drudl stated that when Dixon returned, he was wearing a
     black hoodie sweatshirt. He left again for a few moments, and
     when he returned, he handed Drudl two $100 bills and stated


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     that she should use the money to pay his cell phone bill, keep
     $40, and save $100. Drudl and Dixon then got into the car.
     Drudl asked Dixon where the money came from. Dixon stated
     that he had robbed somebody. When Drudl inquired further,
     Dixon stated that he had robbed an old lady.

            When the pair arrived at Dixon’s apartment, Dixon
     removed jewelry and a few gold coins from his pockets and laid
     them on Drudl’s front seat. Dixon told Drudl to keep the jewelry
     in her purse. While Drudl was driving to work, she received a
     call from [Appellant] asking where he could find Dixon. He
     called twice more, each time asking the whereabouts of Dixon.
     Soon after, Dixon called Drudl, using [Appellant’s] cell phone,
     and told her to have a good day.          That same day, Cindy
     Danilchak testified that she received a call from [Appellant’s] cell
     phone number inquiring whether she would be available to travel
     to a nearby pawnshop to pawn some items.

           On October 22, 2014, Dixon and Drudl read an article
     online regarding the robbery. Dixon stated this was not how it
     was supposed to happen.

            Sergeant Scott Sokol of the Rostraver Township Police
     Department testified that he responded to a report of a home
     invasion at the victim’s home on October 21, 2014. Sergeant
     Sokol noted footprints outside of the home in the snow, which
     led to a tire burnout in the grass.        Sergeant Sokol also
     eventually recovered two pairs of latex gloves, and orange
     garments that codefendant Dixon later stated they used to cover
     their faces. Officer Michael Sethman, who responded to the call,
     testified that the piece of paper that had been handed to the
     victim by the first individual was actually a paystub for Bobbi
     Drudl.

           Bridget Ross testified that in the early morning hours of
     October 23, 2014, Lamont Dixon began ‘beating’ on her back
     door. She testified to her encounter with Dixon:

           Ross: I was with, um, a guy that he came in to talk
           and he beat on the door, he was crying, he
           expressed that him and a couple individuals had did
           a home robbery and he didn’t want to live no more
           with his past background, that they were going to
           give him 20 years to life, and he just wanted
           somebody to give him a gun so he could just end his

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            life now because he was in so much remorse. He
            also stated that the other two individuals involved
            were [Appellant] and Brandon Danilchak.

Trial Court Opinion, 6/9/16, at 1-5 (record citations omitted).

      At trial, Appellant chose to represent himself with standby counsel

present.    On    July 9, 2015, a jury found         Appellant guilty of    the

aforementioned charges.        Appellant filed a timely post-sentence motion,

which the trial court denied on June 9, 2016. Appellant did not file a timely

appeal, but appointed counsel successfully petitioned for the right to file this

nunc pro tunc direct appeal.

      Appellant raises several pre-trial issues, including the Commonwealth’s

alleged failure to turn over exculpatory evidence and disclose a plea

agreement with one of Appellant’s codefendants. Appellant also argues he

was denied his right to a fair trial because the trial court did not provide

civilian clothes to his inmate defense witnesses.    Appellant also argues he

was deprived of his right to a fair trial because he had a disciplinary

complaint pending against standby counsel.       Finally, Appellant challenges

the sufficiency of the evidence in support of each of his convictions.

Appellant’s Brief at 5.

      We have reviewed the parties’ briefs, the trial court opinion, the

applicable law, and the record.     We conclude that the trial court’s June 9,

2016 opinion accurately addresses all of Appellant’s arguments. Concerning

Appellant’s assertions of various pretrial errors, we observe that Appellant



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withdrew all of his pretrial motions and thereby waived the issues he raised

therein. Trial Court Order, 4/22/14.

      Concerning Appellant’s fair trial arguments, the record indicates that

Appellant never requested civilian clothes for his incarcerated defense

witnesses.    Acting as his own attorney, Appellant had the duty to procure

civilian clothes for his witnesses or at least ask standby counsel to do so. He

failed to do so. This argument lacks merit. Appellant cites no law providing

that the trial court had an affirmative obligation to provide civilian clothes,

nor does Appellant cite any law providing that reversible error occurs where

defense witnesses (as opposed to the defendant himself) appear in court

wearing prison garb.

      The trial court correctly notes that the record fails to support

Appellant’s contention that the Commonwealth failed to produce exculpatory

evidence     or   failed   to   disclose    plea   agreements   with   Appellant’s

codefendants.     Both codefendants took the stand and denied any such

agreement. Appellant also argues his cell phone records were exculpatory.

As the trial court explains, Appellant’s cell phone records were examined

extensively at trial and the Commonwealth used them to corroborate the

testimony of prosecution witnesses. Appellant cannot satisfactorily explain

why his cell phone records would have exonerated him. He also does not

explain why he could not have subpoenaed them himself.




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      Appellant’s argument that he was denied a fair trial because the

Commonwealth failed to call every investigating officer to the witness stand

fails because, as the trial court explains, the law does not require the

Commonwealth to do so.          The prosecution is free to determine what

evidence is needed to prove its case beyond a reasonable doubt. Further,

Appellant could have subpoenaed any witness he believed could provide

exculpatory information.

      Next, we observe that Appellant’s strained relationship with standby

counsel does not merit a new trial. Appellant does not identify any action or

inaction on standby counsel’s part that prejudiced Appellant’s case, nor does

he explain how any such action or inaction would entitle him to relief, given

his choice to proceed pro se.

      The trial court properly rejected Appellant’s sufficiency of the evidence

arguments. As recited above, the record contains overwhelming evidence of

Appellant’s guilt. The jury was free to credit the testimony of the various

witnesses, including the codefendants, who implicated Appellant.

      Finally, we deny Appellant’s pro se applications for appointment of new

appellate counsel.   The record indicates Appellant’s persistent efforts, by

numerous letters, to control appellate counsel’s professional judgment.

Counsel’s brief was sufficient to facilitate our review of this case, and we

decline to delay this matter by remanding for new counsel and a new

briefing schedule.


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     Judgment of sentence affirmed. Applications for relief denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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