J-A21016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT ROY QUINN,

                        Appellant                    No. 2 WDA 2017


          Appeal from the Judgment of Sentence August 3, 2016
            In the Court of Common Pleas of Cambria County
           Criminal Division at No(s): CP-11-CR-0000147-2016


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

JUDGMENT ORDER PER CURIAM :                   FILED SEPTEMBER 18, 2017

     Appellant, Robert Roy Quinn, appeals pro se from the judgment of

sentence entered on August 3, 2016 in the Criminal Division of the Court of

Common Pleas of Cambria County, as made final by the denial of

post-sentence motions on October 4, 2016. We affirm.

     At the conclusion of trial on June 10, 2016, a jury found Appellant

guilty of stalking, 18 Pa.C.S.A. § 2709.1(a)(2).   Thereafter, the trial court

sentenced Appellant to incarceration in county prison for a period of 12

months less one day to 24 months less one day.

     Appellant filed timely pro se post-sentence motions on August 12,

2016, which the trial court denied on October 4, 2016. Because the October

4 order was not forwarded to Appellant, the court, on November 22, 2016,

reinstated Appellant’s direct appeal rights and allowed him to file an appeal
J-A21016-17



within 30 days. Appellant filed a timely notice of appeal on December 20,

2016 together with a concise statement pursuant to Pa.R.A.P. 1925(b).

Appellant’s concise statement raised seven claims, which the trial court

addressed in an opinion issued on March 24, 2017.

       We have carefully reviewed the submissions of the parties, the opinion

of the learned trial court, and the certified record prepared in this case. In

its opinion, the trial court determined that Appellant was not entitled to relief

because     he   failed    to   preserve   his   claims   for   appellate   review   or,

alternatively, his claims lacked merit.          See generally Trial Court Opinion,

3/24/17, at 1-36.         We wholly concur in the trial court’s assessments and

conclude that the court thoroughly, adequately, and accurately addressed

each of the issues Appellant raises on appeal.1 Accordingly, we shall affirm

for the reasons expressed by the trial court and adopt its opinion as our



____________________________________________


1
  We note that Appellant’s brief does not comply with the Pennsylvania Rules
of Appellate Procedure in many ways which, as the Commonwealth points
out, makes it difficult to identify the various issues and arguments raised on
appeal. These defects alone support dismissal. See Pa.R.A.P. 2101 (appeal
may be dismissed where defects in appellant’s brief are substantial); Kern
v. Kern, 892 A.2d 1, 5-6 (Pa. Super. 2005) (dismissal appropriate where
failure to conform to appellate rules hampers this Court’s ability to discern
contested issues), appeal denied, 903 A.2d 1234 (Pa. 2006).              Here,
however, the trial court’s opinion addresses all of the claims raised in
Appellant’s concise statement and, as such, discusses all of the issues
Appellant appears to raise in his brief. For this reason, we have elected to
forgo dismissal and, instead, deny relief on the merits for the sound reasons
set forth by the trial court.



                                           -2-
J-A21016-17



own. The parties are hereby instructed to include a copy of the trial court’s

opinion in all future filings relating to our disposition of this appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




                                       -3-
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                      Bernstein •. ~Il          Robert        Quinn {Quinn): -:appeals from a.:gi:dJty verdict rendered following jll;~'.

                     trial on Jone &-JO, ,'20i6. Q1,1~nn was found :gujhy of Couni 11 Stalking at 18 P.a.C.S'.A.

                     .§2709.             l(a)(2),
                                             .   . and Nm Guilty pf Count 1,.Terro\istkThreats at l 8 Pa.C.S.A. § 2706(a)(J).
                                                                       '
                                         On January .J., 20 L:$ Quinn              ,,·as arrested.and             charged. with one count of Stalking and

                     one- count of' Terroristic. threats. The Affidavit: of Probable Cause, filed by Poi-ice Officer

                     Charles, Cypher (Cypher), alleged that. Barbara Labarko (Labnrko)                                                      told police that she _and

                 j    Quinn had 'formerly ·been engaged and that Quinn had not been raking the break up_ well-.

                      DOCKET No ... 147<2016,                     Pouca CRIM.INAL CO~·IPLAINT At-FIDA VIT Of PROBABLE Ciwse

                      [':A.fFIDA-\1lT'l           'Labarko        told 'police .that Quinn had been h arassirrg and threatening her,

                                 ... her residence.~ and.' lift more 'than
                      drivins- .bv                                      .  I PO voicernails
                                                                                  . . .. . and text messazes .on Labarko' s
                                                                                                                       '   '         '          '                   "'"(·




                      phone in rwc days. Id. Labarko further-stated that Quirin had been following her around Planet




                                                                                           Page     I    o.f 36




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                                        I




                                                                                                                                                                           I
                                                                                                                                                                      ·'
                                                 Fitness ..and. herplace of.employrnent, Applebees. id. Labarko i}t.tiiJmJely to.id· the police that,
                                                                                                                                                                           l

                                                 as aresult of these actions; she was infear for her life.. id.

                                                            As   a   result, charges were hl~d and Quinn's· pr.e:liminan' hearing was set for January

                                                 ·26; 2016. There is no i ndication that Quinn was represented ht counsel a, the time of his

                                             · Preliminary Hearing. Quinn executed and 'signed portions of .ihe ''Not'ice of Arraignment,

                                            · Preliminary. Conference, .and. Trial. Form," and no. ·a~romey entered ah appearance on this

                                                 Notice.    NQTICE      bf   .A.R:RAidNMENT;             PRSL.fr,,1fNARY CONFE;RENCE,. AND TRIAL F.'ILEQ FOR ..RECORD


                                                 O~ J.~N.LJAR~· 2-9-, 20.16, Thus, Quinn proceeded pro se at hi? 'Preliminary                                                                                   Hearing. and all

                                                 charges were. waived, holding                         them        for court, Quirm also signed Section 5                                                        of    the Notice,

                                                 ·Cf!titl.ed; "Notice of DjstrictAuomey's                           Preliminary Conference ·and                                 Tn~.1 Dare." id. However,

                                                 the spaces where the date for such conference is usually placed. was empty. Id. Nonetheless,

                                                 Quinn.still      signed the section.that indicated he received notice of his Prel i'fnin~· 'Conference.

                                                            The. Record
                                                                   .    also
                                                                         .   contains-
                                                                                  . '
                                                                                       a· form
                                                                                             .    ,,                               ' Pre I I rninarv.. C-o nference
                                                                                               en ti ti. ed... "Di stric .t A nornev's

                                                 ' Form."   DISTR,{(;T Af:l:ORi\'E)'·'s P~EllM.!~A'RY                             CON.FERENCE .FOR;,,i. FILED FOR' RECORD ON M·~,Y
                                             I



                                            1 1:9,    40)6       ["Confore·nce              Form"].      This Conference                        Fann           was signed                    by- Assisram                     District

                                                  Anorney Wayne Langerholc (Langerholcj .and dared May 17~. 2017. The Conference Form

                                                  indicates 'that the        case       was set for a jury trial and Ju1;• selection was to be held on June 2,

                                                 .2016.    Id:   However, neither Qui'n~ nor an attorney acting on hi_:; behalfsigned                                                                            the. Conference

                                                  'Form. Id..
                                                            Jury selection was. held on June 2; 20l6 ..at Which time Quinn continued                                                                              10   proceed      pro

                                                 'se. N:t..JURY SELECT10~16/2/.2016,                           pgs ..      4-6:    At theoutset, and without .thejury poet present,

                                                 the trial court indicated                    to Quinn that this jurist,                        in: her previous capacity as. an Assistant
                                                                                                                                                                           I'           ..                ,,




                                                 .Districi Attorney, had been involvedwith an indirect criminal contempt regarding . a Protection .




.. ,   ,.,.. ,   ,..,..   . ,   _.,,~                                        _          ., ,,,,           ,,,,,,    ·-.'    '""''••-··---·-·-    _.,. ..   ,   ,,.,   _ _        ,,,.,.,.,
                                                                                                                                                                                             ............ .,,             _      ,,,-     _ ~,--·--
    From Abuse [f'PF N:] order against
                                .
                                       Quinn. The Court dctcm1inel:iI that thisjurist should not.be
                                                                                  I
    disqualified from rhis matter and did not .recuse.The trial court.stated,

                      I want to begin, Mr: Quinn.I didn't remember tbe case, but it "Vas broughtro
            my attention apparently in 10 l3 or 2014 when I was an ussistant.districr attorney there
            V,'!iS a. Pf A indirect criminal contempt, and l was the. assistant DA on that. case. I
            believe thatthe case was dismissed.

                       I don't have any independent recollection of me. ...ase and, because (his is a jury
              trial, and in reviewing the rules, I hace no opinion. I have no recollection of it and I
              determined, since this is a Jury trial: the fact finders arc the jurors and not the court,
              ru1d that   i do not believe there is any conflict. I did               want to disclose   that to you,
              however.just for complete transparency.

    kl. at 3.

                Next, the trial court questioned Quinn as to whether he· wanted counsel .appointed or

I wished        to continue pro se. Id. at 4. Quinn indicated that        he would proceed pro se          and. so the

I    trial court had Quinn execute a WAIVE~ .OF CO\JNSEL,.DATED                 JiiNJ;:. 2,.1016, and conducted an

\ oral    colloquy of Quinn rega~ding his decision                 to waive his        right. to counsel. NT. JURY
'                                                                         .
     SELECTION, 6/2/2016,        pgs. 5..,8. After conducting          the colloquy and finding that Quinn

     knowingly      and. voluntarily     waived his right to counsel, the trial court appointed               standby

           . .. Anornev. .• John Lovette.. UL kl at 9-10 ..
     counsel.
       .


                When .the jury pool was. brought into the courtroom,                   the trial courr proceeded to

     instruct the pool on what, would happen during the jury selection process. The victim, Barbara                      ·

     Labarko (Labarko), was also present in the courtroom                     and sat behind ADA Langerholc.

     During      the trial court's     instructions;   the Court asked Langerholc            to, "give   .a very brief .
     summary of the alleged facts           .or the. case,"   and further reiterated that, "again, these are just

     allegations." Id.. at 46. Langerholc then gave the jury pool the summary of' the alleged facts as

     requested by .thc trial court:
                       The defendant and victim wereinvolved in a. relationship. She ended the relationship ..
                       And  on or aboutDecembcr-Zu l S 're January 1-t 2016,·the-de~ndant stalked the victim,
                       sent thousands. of text messages when the victirndid norwant themand sent over 200
                        voicemails threatening:.,,.demea:ning, placing her in. fear, then fellowed her 10 Planet.
                       'Fhuess; approached her, kissed her on \he cheek, \Vc!S taken into custody .shortlv
                       thereafter, Charges were filed as a.result.                                     ·



                       Jury            .selecrion continued and the Court asked the jury panel, "Have you: an).' member

        of yo.urlamily· or any close friends been a victim of a crime: or have you been present when

        any crime was. cornmiued?" id: at. "4:7.                                               In   response to the Court' s question, Panelist                               # 19

        approached                 at sidebar:

                       The Court: Okav. l am . sorrvto hearthat. Where. waa tmu.wha; countv?
                                       .   . •                   !'                  ~                                                 •                    • •.




                       Panelist #19: Cambria.

                        The Court: And                                what. year?
 I
•l

If                      i>\indi's·r #l9-; Honestly, 1-·-.
 I

                       . C· Col
                       Th   .. O.~rt:. I S h?
                                            · ..


                        Panelist #19: Lare '90s;:.early 2000s.                                      r don't     rernember,

                       The Court: That helps ... Now, obviouslv that's a. very differeru thing .from what we are
                       dealing ·\\'i.th today. · ls there an ~'think abou; (hat ex perience which                                                      \\'OU Id.   not ·all ow you
                       lO sir:and be fair and impartjal.In this case?


                        P~nel~$t·i:09:_                      The fear in that girl's             eyes over there.

                       The Court: Pardon me?

                        Panelist #19: J. seen the. "tear inthat little gitFs· eyes sirring over there.

                       The Court: A.Rd what are you telling me then? Do you think you cari befair and·
                       impartial. in this case?

                       Panelist #19:.· I don't know honestly.
                                                                                                Page 4 ofJ6



                                                                                                                                                                                     II
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                                                                                                                                                 ,·
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                                                                                                                                            l
                                                                                                                                                ·1
                                                                                                                                                tf
                                                                                                                                           _i:

                                 The Court: I'm aoinu.to. go a . lirtle funher. whicb. i·s·oka!}. J asked several others the
                                 same question. \\.'ha/i-·~ asking youis - - tvlr.. Quinn. is tfi.~:o~e:faci11g charges. They
                                  are allegations a\ this point .. So l'm.·asting, would you beable to sit, listen to the ·
                                  \\'i mess. oh the. stand and gain the fa~ts .frorn the witnesses, and then f will giveyou rhe
                                  law that Y.Dl! are to apply, and you and your fellow jurors \VQ1,1ld .go back lo .. deliberate.
                                  Are you able io.do that lairly      impanially?           and
               .,                 Panelist #19; Yes.
               I.                 The Court: Okay. Any followup-questionsbased upon that?
               l
                                  The Defendant: \\'h~t,;num.berwas that?

                                  Attorney Langerholc:                              Nineteen.

                        [d. at   5°7 -59. At the' dose                       of the tdai: court's questions                 for jurors, Quinn and Langerholc were

                    · gi vcn the chance to move to strike any panelist for cause. Quinnmoved. to strike Panelist #19.,

                       · "who ind:k.Mc.d rha: he- .saw 'fear in: the girl's -eyes." Jd, at ·8JJ, Langerhole argued tha: he

                   !    believed Panelist #J 9 ~lrimaie.Jy stated tha't. he could be: fair and impartial.                                                                The         trial c.ourt

                        ruled,

                                             .1 am going to deny it based upon the. factthat the court's notes also indicate
                                   that, .although he.made that statement early, as the court questioned him about the facts·
                                  .of the case, the· fact that you were !ii separate -issue than his daughter who was
                                  molested, that was the original discussion, he indicated after the discussion about. his
                                   role as. a.juror that he believed he can be fair· and impartial.

                                            So 'your strike for cause is denied .. And just - - Mr. Quinn, obviously you .will
                                  h ave fi ve .:cihaJ lerrges, $0 you' 11 ha ve that,  ·

                       .Id.'

                                 .As the. selection process ccntinued, .. and· while. Quinn arrd Langerholc exercised, their

                       .chalfonges            by ·. passing-. a binder back-and-forrh, Panelist #39 got up from
                                                                                                           .. . . his. seat-and. walked.




                                                                                                         ?age 5 ·of-3.6 .




               .1




....   ····-··· ··--     ,_,_,    -·· ·-···   ·-··-· .. ····-·····   -   _     ,-   ,.   -.,, ,-.   -_             .        ..,   ,,.,,...,,,         ,,_,,,   ,,_,   ···········-         "·-·· ··········-   ~-   .
              The .Court: l'rn sorry .. Excuse .me. Jurors; jurors, .srop. Excuse me, sir. Noone. can
              leave their seat area please so·- - .                                 ·         ·           · ·'.

              Attorney     Langerholc:          That Juror came up - -.
  I           The Court: l understand. That's okav, sir. Evervbcdv ·hf1s rostav in their aeneral .seai
  l
 Ii
              area. AJl rigln. Y.~u can go ahead. \v;ire good. ,A·nm,:;ey Langerhclc and ,vt~. Quinn, ff
              you could' come forward, please. .Everyone's okay .. We're good. .lf you have any other·

  l           questions for the court, -raise your hand and I can have one of my staff members bring
              you downro me.

              SJDE BAR DISCUSSION:
              r;\Ttorrtey· Langerholc: Just for the- record, that juror \Y~-, askihg [Labarko]                                       .a   question
              which she didn't respond to.                                          ·

              th·c Court;      \Vho?

              AttQrney Lan gerhnlc: My victim.

              The Cou rt: What number is he?

  I           Attorney Langerholc: He's irr the back; 29 I think                                  e-   39. .

. 1           The Court: Thank you.
  I
              Attorney Langerhorc; l don't know what :ne said.

              Th~ Court:       Mr. Quinn, .I 'mgoing to strike that individua] for ta use.

              The Defendant: I Was going.to strike him, yeah.

              The Court: He. keeps· moving and nobody responds; i want to clari-..fy, juror number
              39., \Vhi}e l gave the- oppornmity for the· jurors to. stretch, came :do:-.,'T'I on his own
              accord and started trying to speak to the victim, The cci.u_;t asked him to step away, He
                                              . . .. ~ not . has he -since that. . umc
              had. ·.not ·inforacted wi.ih· anvbodv.                                             - the court . will
                                                                                   . . . .... .and             .    strike
                                                                                                                     . ..
              that.individual for cause.



              Attorney Lovette (Lovette) was appointed                                  by the .Court -as standby- counsel prior to

      jury selection and continued. to.. act as. such                  through trial. Quinn proceededjs-s-                    se throughout
      the trial w\t_h Levene seated behind him. Lovette. did nm participate                                       in the trial _and it is
                                                                  Page 6 o[J6




                         --- . . ---..,._------- .... ----··· ·-----
                              ....-                                     ......   ------------· - --------·-------·-   --- ------ ... -·-·-·-· ·-. ·--   .... -··   ... -·-·-·--·- ......
                                                                      .:,

unclear from the record whether Quinn
                                 .
                                      consulted Lovette outsid.e
                                                              1
                                                                 the. trial. However: after the
                                                                        I
                                                                        !

jury rendered its verdict of nor guilty .as to Terroristic Threci'cs and guilty as        to   Stalking,

Lovette began to act as Quinn's counsel by speaking to the Court, on Quinn's behalf. N.T.

JURY TRI,\ L, 6/l 0/2016, pg. 8 7.

          lmmediarely     following the verdict, this Court consider ed the arguments      of counsel

regarding bond pending sentencing. 'me trial court held that Quinn could be released if he was

placed on a home. monitor in his apartment at 803 Edwards Hills,. Id. at 97-98. Quinn indicated

that   he would be able to s1a~' at this apartment and the trial court allowed such release as,

 among other facts, the apartment was not located rrear the residence of the victim.

           However, at a laterhearing, probation officer Richard Rok [R0k] testified that Rok had

 contacted Quinn: s landlord who indicated that Quinn had not paid rent on the apanmem for

 over .a year and owed $4;092 in back-rent N;T. BOND REVOCATION J-ltARfN.G, 6/16/2016, pg.

 4. R6.k stared that the landlord had    not yet evicted   Quinn because; the landlord had never been

 able to serve Quinn. .ld. Rok further stated that he had looked into setting up an in-home

 monitor    ~t   Qui.nn's mother home, but she did not have; a landline, thus making it impossible to

\ ser up monitoring atthat residence.

           The trial court reviewed the statutory factors required when considering bail andfound

 that Quinn had been decepti ve and attempted to mis!ead (he Court by stating that he was .able

 to    reside at the 803 Edwards Hill apartment when he had not paid rent in over a year and

 would have. been evicted if the. landlord had
                                           . . been
                                                .   able
                                                       . to
                                                         .  locate Quinn
                                                                   .               to   serve him, with

 notice of eviction. Id. at 24-25. As such, the Court revoked Qui1/s hail and remanded him to

  the Cain bria .Counry Prison pending his sentencing.
·1
I.'j
  I
  l                                                                                  '!
                At sentencing, held on August 3, 2016, Quinn cominucd to be represented by Attorney
                                                                                      .
       John Lovette. Attorney Lovette correctly              stated that Ouinn 's standard           guidelines for

       sentencing were three      to   fourteen months. N.T. SE~TEN<:ll\'GHtARrN.G, 2/28/2017, pg. 6. The

        trial court then considered testimony presented and evidence of record and sentenced Quinn to

        undergo imprisonment for not less than "one year less a day, 'nor more than two years less a

       ·• day" in the Cambria Countv Prison .. SENTENCING. ORDER·DATE!> Auousr 3, 2016. Quinn was

        further sentenced    to urider'$o   a. period of probation for three years under the supervision of (he

        Cambria CountyProbation Bureau, consecutive to.the term ofin,carceratiori.Jd. The trial               court
        further ordered that, asconditions       of Quinn's sentence, he undergo a psychological evaluation

       \I with Dr.
                . . Scotilla
                       .'    .. follow anv. recommended
                             -                               treatment. .- and
                                                                           .   have no'. contact
                                                                                          . .    with
                                                                                                  .   the. victim.
                                                                                                            .      •



        Labarko, for the period of his .sentcnce. Id.

                 On August 16, 2016 Quinn filed Post-seruence Motions.                    POST-SENTENCE    MOTIONS

        FILED FOR RECORD ON AUGUST             i 6, 2016 ["POST~SENTENC:E MOT!ONS'l A hearing            was held   on

         the Post-irial Motions. cm September 27, 2016 where Quinn again. elected to proceed prose.

         N.T.   posT,SENTENCE      MOTIONS HEARING:         9/27/2016,   pg.    11. At the outset of the hearing;

       · Attorney     Lovette gave a brief summary of tile everns that had. taken place between the

         sentencing hearing on August ~, ~Oi6 and the Post-sentence                   i\fotions hearing on September

         27, 2019:

                 Attorney Lovette: Your Honor, before we proceed, I \V,,ITTted to put a couple things. on
                 the record. As the Court is aware, Mr. Quinn decided t(1 represent himself'all .the way
                 through trial until the verdict was tendered •. At that. time he asked the Court to provide
                    standby counsel for him, which I - - well, I was appointed standby counsel and i did sit
                    through the trial, but at the time that the jury verdict came in he asked .that.l step in.and
                    go ahead and represent him.                                · ·

                    I did represent him during a motion for bond pending sentencing: I did represent him
                    for a motion to revoke. .hrs bond. that
                                                        . . . was
                                                               .  filed bv., the Commonwealth.
                                                                                  . , .          and
                                                                                              . .. .. : l did

                                                           Page 8 of36
                                                                             ,·
                                                                              •
                                                                               !
                represent him at his sentencing. Thereafter he was sentenced to a term of incarceration.
                He told me. in court. that day via letter that ne wished tc{file an appeal; so on August
                I ih I did visit him .ar the prison to meet with him about the appeal that I was going to
                be filing for him, specifically post-sentence motions.                                    ·

                At that. time Mr. Quinn .adviscd me and did show 'me a ropy of post-sentence motions
                that he wished to file on his own. We. had a lengthy conversation, and ar.thar time he.
                stated chat he again wanted to represent. himself and he felt that his post-sentence
                motions were the ones that were appropriate and that he wanted to file. At that time I
                tooka copy ofhis post-sentence .motion 10 the Clerk of Courts to file those for him in a
                timely manner to preserve his appeal rights. As the Court is aware; there is a law and a
                rule in place that you are not entitled       to dual representation. You can't represent
                yourself and have an attorney represent you at the same ti me.




                 So in order tu file his motion that he wanted filed    at the Clerk   of Courts, the Clerk of
                 Couns informed me that l. would have to withdraw as. counsel, which I did do on that
                 day, August 12'h. And then l filed his post-sentence rnotitin that.he instructed metodo.
                 And we are here today for the hearing where Mr. Quinn is again, at least at this time,
                 representing himself. And that's all> I wanted to do, Your Honor, isjust build the
                 record andlet the Court know whattranspired after his sentencing.    ·

        id. at 2.:J .. After   Attorney Lovenes summary, Quinn indicated to the trial court that he wished

        to proceed pro se and the trial court subsequently conducted a colloquy of Quinn to be sure

        that Quinn understood his. right ro representation before. he proceeded. id. at            s-n.   Aft~r
        completing such, the trial court heard argument from        Quinn and ihe Commonwealth regarding

        Quinn's Post-sentence motions.

    I            Quinn raised five substantive issues in his Post-trial motions. First: Quinn argued that
    I
J he should          have been placed in the     diversionary program of Mentitl Health Court since he has. a
I
        history of mental illness. Id. Second, Quinn asserted           that this jurist should have recuscd

        herself based on her involvement          with a Protection From Abuse indirect criminal     contempt
        filed against Quinn in rnisjurisr' s. past capacity as an Assistant District Attorney. Thi rd, Quinn

        requested a new trial as the jury panel was poisoned by Langerholc' s summary ofthe alleged


                                                         Page 9 of.36
    crimes committed. Id: Founh, Quinn requested a modification ,,              ipf sentence     so that.he could

    serve his sentence on house arrest or by reporting to CambriaCounty's Day Reporting Center.

I, Fifth ... Quinn      .
                     asserted                           .
                              that the costs and fines. assessed  . him
                                                                 to  . af a result of. his trial were too
    high as he had been found indigent by Judge Linda Rovder Flemming in March 2015                              in


    connection with child custody proceedings. kl.

             This Court denied Quinn's Post-trial           Motions   in an Order dated October 3i 2016'.

    ORD.ER DENYl?-!G DErENDA,'ff'S POST-TRI.AL MOTIONS FIL.ED f;'.)ft B,ECORO ON QCTOBER 4,
!
I 201.6. Iu ihis Order, the trial court advised Quinn         that .he had 30   days   to   file an appeal with the

    Superior Court of Pennsylvania.         However,    due   to an oversight on the part of the Clerk of

l Courts., a, .copy of such order was never sent .to Quinn. Instead, the order was .seru 10 Lovette.

    who ha·d withdrawn          on-record as Quinn's Counsel. As. such, Quinn was unaware that the.

    Court had denied .his Post-trial Motions and did .not file hj's. appeal to the Superior Coon

    within   30    days.   On   November 22, 2016, upon learning of this error,' this Coun directed the

    Clerk of Courts to send Quinn a copy M the Order denying his Post-trial                           Motions and

    reinstated his appeal rights for an additional 30 days.

             Quirin then filed,a     timely Notice of Appeal and .Concise Statement of Matters

    · Complained     of on Appeal (Concise Statement) pursuant to Pennsylvania               Rule of Appellate

     Procedure S l 925(b). Quinn's concise. Statement raises seven allegations of error, m<>SL of

     which contain sub-issues;

              i}           Did the Court err by denying Defendant his. Due Process Rights?

             2)            Was there sufficient evidence presented at trial to sustain the jury's verdict?

             3)             Whether the trial court erred   by revoking.Defendant' s bail pending
                           sentencing?                                                                   .

                                                       Page 10 of)~
·1


 I                 4)            ··whether Defendant was prejudiced by the a¢tii:)"ns of Assistant District
                                   Attorney Langerholc whc>.~a.llegedly held a \'Cri\len;;i. agains; Defendant?


     I             -5.)          Did (ht; Coon err bv failing to recuse itself'?


     I              6)           Was srandbv•. counsel ineffective?
                                     '       ,,,




     I.             7)

          For   in~ reasons     discussed herein there is           no merit                      jo any allegation of error and the appeal

          should bedeniedandthe Coun\order affirmed,

                                                       DISCUSSlON

                          l.       rn-d the Court err by denying Defendant hi1., due process rights?




          raised before the trial court. ln thi:s Opinion, where an: issue was raised on appeal but was not

          raised or .preserved at trial, the trial, court will .only set .out the facts surrounding the 'issue and. ·

          note that the: issue was neitherraised         nor preserved.

                     In. order for qp appellate court to undertake art analysis and review of the. merits, an

          appellant must have properly preserved                                the issue for appeal. Pa.R.A,P.                                                        302(a); ··rhoma.f.

          Jefferson Univ. v.. Wcipner./2006 P.A. Super 15.6, 903 A.2d . .56.;5                                                CP:it        Super.                  ¢t. '.20.06) .. An issue

          ts ,Pro.perly. preserved c,mly if rh.e :appellant saised the objection before the· trial court and the

          objection was timely and specific. Com. v. rrehiOn, 324 Pa.Super .. 39"5,. 47.-l A.2d ..8-9:7.(.1984),

          Dennis v,       Se.   Pennsylvania Transp. .Autli -, , 813. A.2.d 348 (Pa.Crnwlth. 2003). Finally, ruiy

          issue nm properly .raised 'before the trial courr is deemed wai ved: .and                                                                    C8!1li0.l       be raised for· the

          first time en· appeal. Pa·.R.A.P. 3;02(a).


                                                                               Page ll' of 36




                                    .......... '   -    ···················-   .., _, __   ,,_,,,,,     ,_,,,,   ,,---·-··· ...................   ,_,,,,,,,,,_,_             _            -···-·- ..,   ,   __ ..
                                                                                                         i
                                                                                                        .~
                                                                                                         !




                  Quinn cites numerous instances in which his due proceslr,f rights
                                                                               .
                                                                                    were violated:
                                                                                                        i~

            L \Vhe.ther due process r1Rhts \~·ere vieiated .\\~hen the nolit~'!criminalcomplaint
I.            contained n,;o .diff erem charnes. "communication. suil kin1z:, at §2709 .l (A)(2) and
              ''venue stalkin!!~' at S?709.HB)(2)? CONCISE-Sn:r£i\'IEN1::.Ifil:-1
 I.              Specifically, Quinn asserts in Section L,\. ofhis Concise Statement.that, "The Police

       Criminal Complaint provided to the Defendant lists two                                      4istini.:tive1y different lead charges,

       namely 2709.l(a)(2) and 2709.l(h)(2)/:                       Quinn further states that, as a result of this alleged

      discrepancy,         his ability to. mount a.defense. was Clearly prejudiced. CONCISE STATEMENT, pg.

       2.

                 Although this issue was never raised at                           trial the trial court will surnrnarilv address the
     I issue
                  •         -·   •   •   •                          •   •      •          .~   •             •    •   •   •      •   •   l,   ••   •     •   ••




                here as Quinn's. argument manifests a dear misreading of 18 Pa.C.S.A. § 2709,.1 -

       Stalking:        First, the Police             Criminal   Complaint                arid the: Criminal Infcrmation, Amended

       6/2/2016, dearly list Count 1 as Stalking at 18 Pa.CS.A. § 2'709.l(a)(2). However, Quinn

      . mav
         ... : .be.
                 . .makinu
                         ..... ref ere
                                   .   .nee
                                         .. .     to.   the section
                                                               .    entitled.
                                                                     . .  .   "Acrs
                                                                                .   . of
                                                                                      .
                                                                                     :·  the accused                           associated
                                                                                                                                 .    ... ·            with this

       offense," inthe Police Criminal Complaint. There,                                  18 Pa.C.S.A.           !? 2709. l(b)(2) is mentioned.

                      Quinn's assertion that he was prejudiced by a mention of sections Ja)(2),and (b )(2) has

       no merit as section (b)(2) does. 11ot list a separate charge or offense, bur merely clarifies the

       offense listed in subsection (a). Subsection (a) is titled "Offense Defined" and states that: a

      I person can ""                        "   ""      ~f   Stal~~1g by con~mitting the "'                              listed .i.n eith~r ""                   or
       (a)(2): Subsection (b) rs titled "Venue, .. and (b)(2J merely clarifies that; "Acts indicating a

       course bJ conduct which occur in                       one jurisdiction may                 he. used by any otherjurisdiction in

        which an act occurred as evidence ofa continuing pattern of conducr or a course of conduct,"

        18 Pa.C.S'.f\.. § 2709.l (b)(2) .. Clearly, (b)(2) is .not a separate offense or even an alternative

        classification of actions constitution                     the crime of Stalking.                             This subsection provides,
                                                                            Page 12 of 36
                                                                                                                              "
                                                                                                                                '·




generallv, that ·acts occurring in different jurisdictions. can. still~
                            ,,,
                                                                                                                                     be considered
                                                                                                                                          .
                                                                                                                                                   evidence                     of

"course ofconduct" i·n. the other-jurisdiction.                                      thus, although Q?1inn failed raisethis issue at

trial :an~i, asdiscussed supra; waived ii forappeal, his argument lacks merit as .it is. based on                                                                                a
misreading of the starute.

     2.. Whether due process rielits were violated when Defendan~ was ·.not-noti'fied .of.n
         Prcliminarv Conference: and did ·h0t ha:ve·the chanc·e to an end a Preiim1narv
         Conference with the Di·strict Attomev's O.ffice?.CONC!SE}TATEM'ENT. 02.s. 2-3.

               Quinn nexi asserts that he was never notified of a: Prelirninary Conference and did nor

have the chance toartend the same. Asstared supra, an 'issue not raised before the trial court is

deemed waived and cannot be considered for the firs; time.on appeal. Pa.R.A.P. 302(a).

               Here; Quinn failed to raise the issue oflack of notice. of a-Preliminary                                                               Conference or

his absence at such Preliminary' Conference before the' trial .coun. A review of the record;

including
 ..      . transcripts · of the Jury trial .and ali hearings, .as we II.
                       ',         '
                                                                                                                                      -as   Quinn'. s Post-sentence
                                                                                                                                                             .


motions, .shows that Quinn failed to raise this 'issue prior to· or during trial, Thus, the issue of

whether Quinn was .notified .of or afforded ~· Preliminary Conference should                                                                                  be       deemed

waived and          canner be ..raised       on. appeal.

         .3.    \\ihether.due process ri2.hts wetc··violat'ed when Dcfcndani;:\vas:neve;:-.-gi,;en an.
                opporiunirv ro· read the orif!inal rexrmessages .or hear the ~iaice:mails? CONCISE
               .STATEMENT. pu. 3:.                                                             ·

               -Quinn next asserts that, "The . Commonwealth                                                       never provided. 'the Defendant an

 opportunity \~ read the original text- messages or 'hear the original voicernails despite' the·

 Defendant's . request to do so, which violated 'Best Evidence' rule s of procedure." A review of

 therecord by tue trial 'eourt indicates Quinn was provided.said messages. FurthermoreQuinn

 never- cxplicirly objected to these recordings, but rather he stated that he· was concerned that

 they would           not be played              in their entirety; Pennsylvania                                                     Rule of Evidence                   1002 -
                                                                          Page .13. of 36




   . .    .                           -- -.. -
                                          ,,.-      _..,...,,.,,.   __   __.__   ,,.,..,.,.    _
                                                                                              _.   _,_,.,.__....          __ --
                                                                                                                   ,.., _.,   ,•..             _,,.    ,,_,        ..
                                                                                                                                                                   ,    __ __
                                                                                                                                                                           ,,        .   ,   ,,.,,_   ...
I
j Requirement of the Original, provides that, "An original wri,tin:~' recording, or photograph is
                                                                        ;



    required in 'order to prove its content unless these rules, other rules prescribed by the Supreme

    Court, or a statute provides otherwise:" the voicernails and testimony at trial. satisfy the

    requirements   of Pa.R.E .. 1002 .

            Prior to bringing the jury into the courtroom on the. first d~y of trial, the trial court

    spoke to Quinn and theCommonwealth to address.anypre-trial 1:ao\fons orquestions:

            The Court: Are there any other questions procedurally           about what is going to take
            place?

            Attorney Lerrgerholc: Just we had provided. a. copy +)!' voicernails sent from this.
            Defendant to the victim. We intend to play' those for the jury, and. l have Detective
            Hinterliter here to testifv as to chain of custodv. I-le tock those voice mails from the
            phone to the CD; \\•hid.; has been provided. to the Defendant, Just procedurally that's
            tlk                   .                                          .    .

            The Court:
                . .    Are vou
                            .   .
                               able ro authenticate
                                               .    the voice mails through the witnesses?

            Attorney Langcrholc:         Yes.

            The Court: Assuming there is authentication and rhe chain of custody is established,
            then that would be admis.sible,

            The Defendant,          Robert Quirin: The only issue that I have, I hadn't had an
                                                                ,ap,!s,J had it on my laptop, and
            opportunity yet to review those. I tried to listen to the
             for some reason the DVD wouldn't load inromy laptop. I am not sure whether they are
            timestamped an~t dated,

             I personally don't actually recall making those specific voicemails       io
                                                                                     question, but 1.
             know that over the course. of,· as J saidr. six months of arguments and back and fonh
             messages between us( I am not sure that those messages were made on that date, andI
             would just like, at this point, to establish that I intend to .object of they are n.01
             timestamped or otherwise.

             Attorney Langerholc: They are' timestamped.

             The Court: Again; whomever is introducinz evidence. thcv have a burden of makinu
                                                                                              s
             sure that it's r;lev~i and authenticated, arid assuming that- that' s done, i( admitted,
             hut \\~e Will rule on thatas it comes in.


                                                     -
                                                  Page 14 of 36 .
                                                     .
                                                                                                                                                    l
               The Defendant, Robert Quinn: Also, Your Honor.r I would ask that the Best
               Evidence Rule applies.also wirh regard to: those voice                                                                            rri;:;i.is-. ! am not certain, J believe
                they are 'edited and they could, .J believe they                                                                       may   be edited in a way to paint a picture
              · that doesn't establish thecomplete picture.                                                                                                                ·

               ! f there. is a three-minute
                                         voice mail .and theycut 20 seconds out, J would ask the entire
               voiccrnail be played. Irhlnk it goes to: a major part of my argument in this case, \\ h1c.h                                                                                   1

               is intent.                                 ·                                          ·                                                  ·

               The DA needs· to prove intent, what was my .intent? If .I did, in fact, send these
               messages, was it. to harass Miss Labarko? Was it to cause her emotional distress or
               was ·it to ascertain.facts?
              The Court: Your objection                                                     then ·; s best evidence, you l;iefieve it has been edited, what
               rs your response· to· that, Attorney Langerhelc?

               Atto rney Langcrholc: They have not been edited, Detective Hinterliter can testify to
               that., If' he warns her                                 {Q      pJay them directly off her- telephune, 'we are fine .doing that as.
               well.

               The Cou rt; In terms-of what is being played from, if there Is.testimony that· the CD i.s·
              .the same information.as the phone, the ·cpµrt will 'permit »itherto be .played,

               With. regard to .the Best.Evidence Rule, if.you ate playin g-thern. in 'rheir entirety, then
               that isthe best-evidence,                                                                                     ·

               Attorney Langerholc: The voice mails .rhat were downloaded or recorded to this
              .audio, have not 'been e~fi.ted ·and a-re the- voice mails in their entirety, -haven't been
               touched or doctored or.cut off or anything with re$ard to that.

               The -Cou rt: Y ourwitness.carr test] fyto that, at this· point, 'if that" s established· it will ;be
               admitted •. If that's. not established, you can make . an objection and come tosidebar to
               argue chat.

      N.T. JURY TRIAL, ·6./8/201(), pgs. l.3::-L5.. Quinn later objected to the admission of one

      voicemail.
       .             .   .-· that
                 . sratinc    .   "it'sobviouslv
                                         .       .. been edited.". Id. :a( 20.1.
                                                                            .

 l             It was later established that the voicemails sounded as if tll~'v had been cm                                                                                        off because·
 I
.!
      there wasa rime limit on thelength of voicemails accepted by La.~arko's iphone. N.T. JURY

 I    TRIA.L, . .~/.8/201:6, .Pg: ~3. Therefore, if Quinn continued to talk after -the time expired, the· •

      recording would have been cut                                                   off .at ·-rhe. expiration of time. Quinn                                again objected to the'
                                                                                                         Page           rs   of 36




 ..       -    --···   ~.,.   _   _..,   ,,,_,..   ..,,       ,---···--····   ~---- ..~-·,..-····-       ,.,.   ...,_            .,,   - -.._·--- ..-          _..__   ,       ..    .,,,.       ,   ,   ,   ,.,._,,._,,..
                                                                         ~
                                                                         i
playing of the voicemails that sounded like they had beeucut offfd, at 201 ~01. The trial court

overruled his objection, stating that testimony from Labarko and Hi nterliter showed that the

voicernails had   1101 been   edited.

         Qufon1s assertions are meritless for two reasons. First, although Quinn states in his

Concise Statement that he was never provided with the messages, the record clearly shows the.

contrary. Quinn clear! y stated. that the Commonweal th turned over the. CD containing the

messages, bui Quinn       was unable lo get .his computer         to   play the rnessages. No further

objections were raised by .Quinn as. to failure by the . Commonwealth to disclose messages.

         Next,. Quinn asserts error based the "Best Evidence Rule" - Pa. Rule of Evidence

 I 002. However, the record shows (hat. while Quinn objected                  ro   the admission of the.

voiccmails as they sounded edited; these messages were not edited by Labarko or Hinterliter.

Rather, Quinn's messages exceeded the length allowed by Labarkos phone. His message

stopped recording when the time .limir was reached. Detective                Hinterliter   established that

these voiccrnail recordings had been taken from Labarko's phone, were sent from Quinn's

 phone number, and contained            the entire voicemail recorded. Based        on the   testimony' of

 Labarko and Hinterliter, the trial court overruled Quinn's objection, stating thci.i. evidence

 showed    no editing had occurred.     Id. at 202 . .Therefore, the voicernailsplayed satisfied. Pa.R.E:.

 1002 since the recording contained the entirety of the. voicemail messages on Labarkos

. phone. Thus, there is no merit to this. allegation of error and the trial court 's-ruling should be

 affirmed ..




                                                  Page l.6of 36
r
I                                                                                      ·, ~
                                                                                         I
                                                                                        .!



                                                                                        ,\
         4. Whether due process riuhts. \~ere. violated wheri Defendatitwas not provided \i,•ith a
               .copv of the elements of the crim~ umil the second dav OD.trial?

               Next, Quinn states that he was not provided a              copy ofthe elements of the crime until
I
I the secondday
I                     .
                           oftria] and, "Even then, that document was substantially edited the following.
I                     - .     .
     day.just moments before· the Defense had ro make closing argumerua+Corccrse                              STATEMENT,

     pg. 3. To be clear, it is believed that Quinn is referring to. a written copy of the elements of

     the offenses provided by the trial court to jury. The trial court and parties had discussed and
     agreed that the trial. court would send a copy of the written elements with thejury to. aid · iri

     their deliberation.       On the morning of June IO, 2016, ihe trial court provided copies of the

    I written elernerus      10 both   Quirin and the Commonwealth for review so that either party could.

     obj ect   to the format or contents of the elements, A review of the record shows rhat a copy of

     the. wrirterr clements was never entered as evidence. However,                           the trial court obtained such

     elements     from
                     .              .  . ...
                             the Pennsvlvania   .   Standard
                                                      .  .. .   Criminal    Jurv
                                                                               .....    .Instructions
                                                                                          .       .      - Third. Edition. .

     Specifically,        the trial . court included Instruction    # .I 5.2709.1 -~ Stalking and Instruction #

      l5:2706Terroristic        Threats.    Neither party took. issue with or objected              to the contents   or form

     of such w1:itten elements, In giving its charge to the jury., the trial coun read. from these                    written

     demerits. verbatim:

                Coum l, Stalking. The defendant has been charged with stalking. to find the
                de fend ant i.'mih,· of this offense. vou must find that each , ,t the followina elements has
                been proven beyond a reasortabl; doubt;                                      . "'

                     First; thatthe def eridanr engaged in a course of conduct! that is, commirted ..more
                     than one act over a. period of time, however short, that conveyed to Barbara
                     Labarko chat such conduct would continue; or repeatedly committed, ans; or
                     repeatedlycommunicated to Barbara Labarko. By communicate, I mean that the
                     defendant conveyed a message without intent of legitimate communication or
                     addressed by oral; nonverbal, .wrirten, or electronic means, including telephone,
                     rext message, email, internet, or similar transmission; and


                                                           Pag~ 17 of36




                                                                                                                                i
            Second.
            .  .    .. that 'the. defendant
                                   . . .       .. . so under
                                              did       .    tircurmftances
                                                                    .,      that demonstrated he
            intended   to put   Barbara Labarko in reasonable fear 6ir bodily injury, or intended to
            cause her substantial emotional distress. Emotional distress means a temporary or
            permanent· state of mental anguish. Bodily injur~, means any impairment of
            physical condition or substantial pain.

            lf you are satisfied that the. two elements of stalking have been proven beyond a
            reasonable doubt, you should find the.defendant guilty. Otherwise, you mus: find
            the defendant not~uilty.            ·                 ·            ·

        Count 2: Terroristic Threats. The defendant has been charged with the offense of
        terroristic threats. To find the defendant suihv of this offense.
                                                                      \'OU         must find insuhe
        following elements hav~ bene pro ven bey~ml; reasonabl e doubt:

             First; that the defendant communicated, either directly or indirectly, a threat. The
             term communicate means CQ[]Vey in person, Of by written Or electronic means;
             including telephone, rexr message, email, internet, or similar. transmission.

             Second, the defendant communicated the threat to commit any crime of violence
             with intent to terrorize . another. If you are satisfied that the two elements of
             terroristic threats have been . proven beyond a reasonable doubt, you should find
             the defendant guilty. Otherwise, you must find the defendantnot guilty.

· N .T; JURY TRIAL, 6/10/2016, pgs.. 73-75.

        As. the .record reflects, Quinn failed· to object to the form. or contents of the wriuen

 elements and the oral recitation ofsuch b'y the trial court. Furthermore, the trial court could

 find nostanne or case !h;;.v requiring the trial court to provide a delendam with the clements of

 the crimes charged where the def endant had already been pro vi dcd the criminal information

 and Complaint. Even so, and as stated in Section.l, supra: Quinr, has waived any objection in

 this matter and cannot raise this issue for the first time on appeal.

     5. Whether due process riuhts were violated when the prose,~ution was afforded what
        .amounted to an openina: statement prior tOjurv selection ,yheti asked bv the Courno
         uive. a summarv of the alleged facts? CONCISE STATEMENr p!!: 4 e .

         Quinn further alleges error and prejudice arising.Jrom Assistant District Attorney

 Langerhol c 's summary of the case given to the jury pool .. During     the voir dire process, the.

                                                Page 1$. of 36
                                                                              i.


lrial court
      .
            asked
              . .
                  Lanzeraholc.
                     ·- . ._. ·"
                                 "to aive
                                     -·
                                          a verv• briefsummarv·<!.. ofihe
                                                                       ~1 alleged
                                                                              ~ (acts of this case.
                                                                              ~.
. And again, these are just-allegations."     N.T. JURY SELECTIONi ~/2/2016, pg. 46. Langerholc

 responded,

          Thank you, Your Honor. The defendant and victim were involved in a relationship.
          She ended the relationship .. And ori or about .Decernber of 2015. to January 14'11 of
          2016, the defendant. stalked the vicrim, sent thousands of text messages when the
          victim did not want them and sent over 200 voice mails threateninz. derneanina.
          placfrtg: her i~ fear: then followed her (Q. Plan~t Fitness, approached h~/kissed her              o;
          the cheek, was taken into custody shortly thereafter. Charges were filed as a result.
 Jd. at 46-4 7. The trial ~04n then asked the jury pool, "Have any ofyou heard or read anything

 concerning       this alleged incident? If   so,   please rise. Let the record reflect no. jurors rose hi

  response tothis question." Id:

          Quinn
           .    also raised a related issue, asserting. that these statements by Langerholc
                                                                                     .      caused

 .one juror to state that. he could not be fair and impartial in thiscase. CoNci~E ST.:..i'E~·t6iT,pg.

  4;   N.r,    JUR)' SELECTION,     6/2/2016, pgs. 5.T-58. Specifically,           Panelist #19 stated' that his

  daughter had previously been molested. The trial court then questioned Pane iist # 19:

          The Court: Now, obviously that's a very different thing from what we're dealing \Vith
          today, ls there anything about that experience which would not allow you to.sit and be
          fair and impartial. in this case?

           Pan elist # 19: The fear in that girl's eyes over there.

          The Court: Pardon me?

              Panelist #19.: I seen the fear in that linlc girl's eyes sirring over there.

              The Court: And what are you re Hing me then? Do         you think you can be fair and
              impartial in this case?

              Panelist #19: I don't know    honestly,

              The Court: l'rn soinz to !!O a little further, which is okay. l asked several. others (he
                                                                         Is
              same question. \\'har f"in ~king you is - - Mr. Q~inn ihe one facing charges. The)~
              are allegations at this. point. So I'm asking, would you be able to sit, listen to the
                                                      Pag~ 19 of36
                 wi mess on the stand and gain the facts. from the witnesses, and then I will give you .the
                 law that .you are-to apply, and you and your fellow jurors';would go backto deliberate.
                 Are you able to do ihat fairly and impartial ly?            t


                 Pane:Iist.#1-9.: Yes:

                 The Court: Okay. Any follow up questionsbased. upon that?

                 Mtorney Langerholc: 'No.Thank                you,   sir.

                 The Defendant: What .nurnber was'that?

                 Attorn~~; Langcrholc: Nineteen.

     N.T. JURY·SE!,.E~T!Oi\,.'672/2016-,_Pg.            58:

                 Quinn later moved to strike Panelist f{J 9 for -cause, but               the   trial court ·denied such

    stat] rig,

                 l recognize YD\Li' {TJOJiop to strike, l am going. to deny ii; based upon. the fact that the
                 court's notes also indicate that, although he made that statement early, as . the COUrt
                 questioned himabout (he (acts of the case.jhe fact that you were a separate issue· than
                 his dauahter who was molested. that was the: orizinal .rliscussion. he indicated after
                 d1scussi~n about his role as a juror that he .belicv~·d -:-he can be fair and.imparrial.

                 So.your strike for cause is denied. Andjust - Mr, Quinn, obviously you will have five
                 challenaes.                 that.
                        -~· : so. .vou'Il have . ..                      ·

    Jd: at   80 ... A.s Quinn correctly notes in his. Concise Statement, although Panelist #.19 was not

    stricken for cause at that time, Panelist #19 was: not ultimately selected as. either a juror or

    alternate.

                 A review      . . record
                        . . of the.  ..   indicates . that
                                                 •,•,  .   Quinn
                                                            . .  did
                                                                   . not
                                                                     . . objectto
                                                                           .   .  Lanzerholcs
                                                                                     ,-                       summarv,,: of

     the tacts at -that .tjrne or· at any time 'until          raising the issue· here on appeal, As .s_uch, and as

    stated in Section 1,.      supra, Qui rm has.waived this issue and cannot rai sc \1 for the first time. on

    appeal.




                                                              Page 20        of 36




-        --- ..·-·----·--· ..-·---··· ..-...-·---                    ...........     ..                    ..,.,              ,.   __
          6. Whether due process ri1.dus were violated when the victi111. Labarko. ,.,..as aUc.w/ed to sit
               behind the pi;osecutor durinQ jurv selecticnl?

               Next, Quinn asserts error and prejudice based on the presence ofthe victim, Labarko,

    at    J1,1ry selection.     Again, arid as stated     in Section   1= supra! Quinn 'failed · ro object                10    or
    otherwise raise this issue during.rria]. Thus, Quinn has waived this issue and cannot raise it for

    the first time     01i    appeal;

           7. Whether due process ritthrs· "'ere Violated when the trial coun refused to remove iurors
                foi' cause who iriidalh· claimed bias but        later stated the..;, «ould be tainmd impartialat
                Quinn's trial?                                                          .

                The next. issue raised. by Quinn is. whether the trial coun .erred by, "regularly refusing

     to remove jurors who initialJy claimed bias." lt is initially noted that Quinn made no

     objections
       .        based on the trial court's. failure         to removejurors for cause.
                                                             .    .                 .                  He· neither specifically

     objected, expressed disagreement with the trial court's decisions as to striking jurors for

     cause, nor raised any such issue in his Post-sentence             motions.

    I .         However, even if an objection had been made, law does not require removal for cause

\ of ever~, juror who "initially clairnjs] bias:" Under Pennsylvania law, "jurors are nor required
i                                                                               .
     to be free from bias, but orily to seek to put aside those prejudices in the performance of their

     duty, the determination            of guilt orinnocence." Pursell   V.   Horn, 187 F.Supp.2d 260, 307 (W.b,
     Pa. 2002). The Pennsylvania Supreme Court has held that, "it ~·muld be-unrealistic                                to expect

     jurors to be free from all prejudices, a failing common to all human beings." Com. v, Johnson,

     452 Pa, 130, ~05 .A.2d. 5,              S ( 1973).   Instead, jurors are required to "to put aside those

     prejudices in the performance of the it duty, the determination                        c   .r guil; or i nnoccnce. '' Id   As

     the Pennsylvania Supreme Court has consistently reiterated, ;'We therefore do. not expect a

     tabula. rasa bur merely a mind sufficiently conscious of its sworn responsibility and willing to
                                                                                   i
                                                                                   l
    attempt to reach a decision solely on the facts presented, assiduou;sly avoiding the influence of

    irrelevant facrors," Id

            Therefore,    even if Quinn had preserved this issue for appeal, his contention that error

    exists based on the failure   to   strike jurors for cause who Qnly, "initially claimed bjas" would
i
\I be in clear contention With the raws of Pennsylvania. However: because Quinn neither

    objected to the trial court's decisions regarding strikingjurors for cause nor raised said issue

    in .his Post-sentence motions, this. issue has been waived and cannot be raised for the first time

    on appeal:

        8. Whether due ot:ocess rinhts were .violated when the trial c,,mrt allo:1.ved the admission
           of the follcm•in!t statements:

                  a. Statement ht Labarko that Quinn did not have custody of his. children
                     when they met butrather supervised-visits .

             . First, Quinn challenges the admission of Labarkos statement that Quinn was only

     allowed supervised visitation with his children when he and Labarko first met .. CONCISI::

     STATEMENT;        pg. 5'.; N.1", JVRY TRIAL, 6/8/2016,             pg,   59. Quinn first objected that this

     statement. was hearsay.     H.earsay is defined as a "statement that the. declararn does not make.

     while testifying at the currenttrial or heating; and~ party offers in .evidence to prove the truth

     of the. matter asserted in the statement:" Pa.R:E. 801. Hearsay is not admissible except as

     provided    by certain delineated     exceptions    set out. by the Pennsylvania        Rules of Evidence,

     P,i.R.E .. 802.

              Herc; Langerholc responded 10 Quinn's hearsay objection hy stating that Labarko's

     statement was not hearsay as        she was testifying    that she personally observed that Quinn only

     .. had supervised visitation with   his kids. the trial court overruled Quinn's hearsay objection as


                                                        Page 22 of 36
                                                                                                                                    '!
                                                                                                                                     '
                                     ..                                                                                             1                                       .
         Labarko
             . . was                   . - as
                            not. testifvina              to an out of . court -srarenient, . butrather
                                                                                             ... ,             ........ she observed
                                                                                                       something
                                                                                                       .
                                                                                                                                    ·i
                                                                                                                                    ~i
         first hand.N:T._.JlJRYTR:IAL, 61.8/20!'6; .pg. 5·9'·o0.

                  Quinn then objected              to the same statement based on lack of foundation. The 'trial court

         considered .Quinn''s second objection and .:allowed Langerholc                                                        to        explore whether Labarko had

         direct knowledge 'or had .. observed -thar :Quinn only had .supervised                                                              visitation                with his kid's.

     I
    II
         Langerholc questioned Labarko and Labarko answered, ;;I personally
              .
                                                                                                                                                watched [Quin»] in the
    ·,
         .ACRJl downtown Johnstown.                       He had one hour. He took a.bac o:f rovs
                                                                                               .. and aarnes
                                                                                                          .  and
                                                                                                              .. told me       -                  ,,       -           ,,




         that he l1ad supervised visitation." Id. at 6 I, Thus, because the ..•:rial :~ourt ·prop.edr overruled

         Quinn' s hearsay objection and allowed the .statemenr after Langcrholc laid a foundation, there

         is no merit to-this allegation of error and the trial court' s nning should be affirmed .

                       . b. Staremcn ts at trial which Quin ii failed 'to object ·to'.

                  Quinn lists four other statements made at trial that he                                                  alleges were                 improperly

         admitted:

             tl) Statement.by that .Quinn .assaulted LabGlt~.o in the past.

             (2.) Statement b,y Labarko thar Quinn had stalked her at PlanetFuness.

             (3) Statements ·by prosecution thatQuinn threw a table while meeting with Labarko                                                                                           at the.
                  hospital in January.

             '(4) Statement b)' Labarko that Quinn had been hospitalized.

         COl'l,CISE   STA TEMEJ\.'T,.'pgs.         5-6. The record indicates rhat, while .such statements were                                                                            made,

         Quinn. did hot dbjed toany of the four statements listed above: As stated: in 'Seetion I,                                                                                        supra,
         ah issue     not   raised: before the trial courtis deemed waived and cannot beconsidered for the.

         first time on .appeal. Pa:R..A,P. ,302(a}. Thus, because Quinn failed . to make timely objections;




                                                                                          Page 23-of J6-




,                                     _,,   .... w .... ,,.,.,.-.,.,.,.
                                                                    .. ,.,.,_,...,_.,,   ,......_......,,.,.,,   ,_,   ,,_,,                ,....,~,,-.-.,,-,,..,
                                                                                                                                                             • .,,,_,_.,...,,_
                                                                                                                                                                            .. ,_,.,..,_....,.,_,.,.,
                                                                                                                                                                                                __ .,..,,,_,.,......,
                                                                                                                                                                                                                  ... ,   •_•,
                                                                                                                                                        f
                                     to         these .staternents, the· issues were not preserved and. cannot \ie raised for the first lime on.

                                     appeal.

                                                   9.. Whether the trial court erred bV predudi-mz Quinn fmrn 'introdmiinu. evidence that-:
                                                        Labark0 requested. pavmenr. of $)_000 to "dr-0p the· <:h~rQ:es'; and had ptevioush··
                             I
                             l
                                                        received. a pavment of S9·;ooo from another :person ro drop a separate e,rirriinal:cnarn:.e.

                                                        'Quinn     next alleges that the: .tr·1al court erred by precluding testimony                                                     regarding

                                     · Labarko's request of S-5,000 from Quinn to drop 'the charges and' a separate instance where

                                     Labarko received $9,000 from. another person                                        to   drop    a separate.criminal
                                                                                                                                           .                           case. However, the

                                     record· (}lead.~· shows that the- trial court, never precluded .such testimony                                                    and, even i.f it had,
                                 J
                                 I Quinn never raised an objectionto the alleged preclusion cf such.

                                                        Quinn. first refers to an alleged offer QY Labarko repay Qu.i·nn to·"ctrop the charges'tin.

                                     his opening statement:

                                                        And finally, ladies and .gentlemen, the evidence is goirrg to show that [Labarko]
                                                        attempted to get $5,000' .O_l.lt of me to drop the charges. I don't know that that was her
                                                        primary motivation, 1 wouldn't :£0 through. all of rhis tor ~5,.000, 'but that' s another
                                                        aspect ofthis case that the evidence is gci1iTg to ShO\\'.

                                     · N:t. iURY. "t.'R1AL, .6/8(2016, p.g. 57. No objections were made· to Quinn's mention of the·

                                     alleged ..offer of $5,000 in his opening sratemern and the trial court took no action to preclude

                                     pr strike Quin's statement.



                                      Barbara Labarko and the direct examination of Hren Labarko. During cross examination,

                                      Quinn asked Barbara Labarko, "Do you recall contacting me by phone February ·9lh or

                                     February              1·01h2"    Id.   at   186- Barbara Labarko begins to answer, "My PFA                                                   "   Id. at 187.

                                     Langerholc then objected,

                                                        A ttorn.cy Langcrho lc: 'Objection, is that February ofJanuarv?

                                 I
                                 I
                                 I
                                 I
                             II

..   ',,..,,,,,,,,   .   .                ,.   .. -~·      ,-,.,     ,_,_
                                                                                   -- ._ __   ,..   _ ..   .,....,..,.        ,,,    ,.,_._   .__,,,   ,.--   ····--··--   ,.,_       '    ·-·   .   ..   .
                                                                                     i
                                                                                     •
              The Defendant, Robert Quinn: February:
              The Court: Let's approach.

      Id. In his pre-trial morions, Quinn had requested that evidence o La previous PFA against him

     .· and protecting Barbara Labarko be.excluded and the Court granted such motion: but cautioned

      Quinn that if he opened the door to introduction ofsuch evidence, then evidence of the. PF A

     \VQU]d   be admissible. Id. at 3,.ro.

              After the· parties approached     at   sidebar, the trial court advised Quinn that                 he.   had

      "opened the door" by asking about.the contact with Labarko during a .timewhich she had a·

      PF A against Quinn. The ~T~ai concluded         by telling Quinn. ~hat he could continue: his 'cross-

      examination of Labarkc, but· If .he opened the door to inrroducrion                     of the PFA then the trial

      court would allow such -evidence.      Id. at I 87. 'Quinn decided to end his cross-examination 'of

    ! Labarko.
l              .
I·            -Srill arsidebar, Langerholc advised.the trial court and Qt1.inn that the-Cornmcnwealths

I     next w1lness would be Brett LabarkovBarbara Labarkc'sbroihet.                      The following conversafion




              Quinn: You] Honor, .Perb~ps with regards to Brett' S restirnorry,                       l would like 10·
              question him as 'to basically he told me at one point if Ipaid his· sister she would drop
              the charges.           ·,

              The Court: \Vho told you that?

              Quinn: Bren; (sic) in.a phone cal] «,

              The,(;our:t: I thought this was Brett?

              Langerholc: He: called him Brent, it's her brother ..

              Quinn: \Vhat l am concerned about, J can raise the issue               as part of my - -

                    . . . You are indicatina-·· he
              The. Court:                            called.   '-;                        -
                                                                 vou and offered ·to zive .....vournonev.. ...
                                                     Page ::ZS of J6
I
I                                                                                     ·i
                                                                                       l
                                        .                       ·.                     I
                                                                                      I•..            .        .   .
                       Quinn: He offered me,. he approached me in person at the: Geistown Countrv~ Club.
                                                                                       ;




                       The Court: What areyou going to ask him, did hesay this?

                       Quinn: wen, the one tiling, l.wanted ro clarify: I asked hirn,T am sure he will deny it,
                       because that' s after the. rimeframe of the PFA to make sure that is not opening the door
                       for that.                                                                 .

                        The Court: You can ask if there was money offered and you live with the answer.

                        Langerhnlc: Can 1 just have a minuie to tell [Brent just to reiterate to him that he's
                        nm to testify as to the PF A because l have not talked.to htrn.

            id.   at   .188-89. Atthis point in {he trial, Quinn was concerned that he ma)' Open the door to

            testimony regarding a PtA against him by asking. Breu Labarko . about                an alleged offer to drop
        ·. the charges in exchange for a             ss,oop   payment. The tria! coun instructed Quinn that he         ,vas
    I
            permitted to. ask Brett Labarko about the $5,000, but that if this line of questioning led to

            testimony about the PFA, Quinn would have opened the door End testimony about the PFA

            would be admissible. Quinn .cominued \vith direct .exaniinauon of Bren Labarko and asked,

            "Do you recall jelling me in April that ff I gave.. your sister S5,000., she would drop the

            charges?". Id -. at 196,.. Bren Labarko answered, "I don't recallthut."             Id. Quinn then ended his

            direct examination.

                        Additionally,       Quinn asserts error with regard to preclusion of evidence that Barbara

            Labarko received        a payment      of $9:000 in the past from Jackie Long In exchangefor dropping

            criminal charges. The· record indicates that Quinn never artempred to. offer .evidence of such a

            payment.       Quinn briefly mentions Jackie. Long during his direci examination              b.y staring that

            Long and Labarko got into.a fight at a country ciub which Jed to Labarko contacting the police

        I   and fi1 ing assault charges .against Long. ~/,T. Ju RY TKJAL, Ci/9/21)16, pg.                 9 \, Langerholc
        t   objected as .to the relevance of Quinn's testimony regarding the fighJ and ensuing criminal

        i                                                            Page 26 of36


    1\                                                                                     .L



        I
                                                                           ;

                                                                           I

 charges against Long. The trial. court sustained Langerolc's obj~~tion as to relevance. Quinn
                                                             .            ·,   .

. never again mentioned. the charges against Jackie tong and nei1er testified or attempted to

· testify thatJackie Long had paid Labarko S9!000.

            Although    Quinri asserts in ms Concise- Statement that the trial court erred by not

 allowing him       lo offer   evidence of payment of S9 ,000 and .an offer to pay $5:000 in exchange

 fqr dropping charges, the record reveals that such an allegation ii: clearly false . In fad;· Quinn

 referred    to   the '.£5,0.0b pnym~nt in his Opening; Statement and questioned Bren. Labarko about

 the offer. The trial court never made a ruling that precluded Quinn from. offering evidence of

 · either offer and, as such, Quinn could not object.to such at trial. Thus.ibccause the tdal court

 never ruled that Quinn could notpresent evidence of .a payment of S9,000 or .an offerto pay

 Labarko $5,000 and, consequently, Quinn could have never objected, this allegation of error is

  rneritless as it mischaracterizes the .record and docs.not present an action by the trial court that

  can be reviewed on appeal;

      IJ,         Was   there sufficient evidence presented at trial to sustain the jury's verdict?

            Quinn's     second main issue raised on appeal is whether the verdict was against the

  weight of the evidence presented at trial. Pa.R:Crim.P.          607 provides ihat, "A claim _that. the

  verdict was against the weight ofthe evidence shall be raised with the trial judge in a motion

  for a new trial: ( l) orally, on the record, at anr time .before sentencing; (2) by \\TI tien motion .

  at anytime before sentencingj.or (3) in.a post-sentence morion:'

            the Pennsylvania Supreme Court hasheld.that,

            It is well settled that a defendant must present his cfo1ll'engc to the weight of the
            evidence to the trial court for a review in the first instance, See Pa.R'..Cri111.P. 607(A);
            'Com. \'. Griffin, 20B PA Super 70: 65 A.3d 932, 939 (Pa. Super; Ct. 2013).
            Thereafter, appellate review of a weight claim is a review of the exercise of discretion,
            not. of the underlying question of whether the verdict is against the weight of the
                                                   Page 27 of 36
lj


 II                                                                                  ,,'

 l                 evidence. Because the trial judge has had the opportu!1i.tS{ to heat and see the evidence
 i                 presented, an appellate court wil.l give the gravest con~fdern:tion to the findings and' ·
                   reasons advanced by the trial judge when reviewing a tf,ic:ll court's determination that
                   the verdict is against the weighr of the evidence .. One of the least assailable reasons Tor
                        .  -
                   -·zrantina or
                              . ·. denvinz
                                      .   ·-
                                           a .new
                                               . . trial
                                                    .    . . is the lower
                                                                      . . court's
                                                                           .      conviction
                                                                                   .   . ..    . . the verdict was or
                                                                                             that
                   was not against the weight of the evidence and that a new trial should be granted in the.
                   interest of'justice.

          Com.». Widmer, 560Pa. 308, 744 A2d 745:. 753(2000) (ciiations omitted), Furthermore,

          inclusion pf a challenge ro the suffi1::iency of the evidence ip an appellant's. Rule 1925(b)

          Statement is insufficient       10   preservethe ..issue for appeal where it was not previously jaised

          before   the trial
                        . . court. . Griffiil, 65 A.3d at 938.
      l
                   Here,   Quinn raises his weight of the. evidence claim frn' 'the first time in his Rule

          192S(b) statement. He failed to           raise such either orally or by written motion before sentencing

          and. did not include this issue in his Post-sentence motion. Thus, because Quinn raises his

          challenge io the weight of the evidence for the first time in his r.~ule 1925{b) statement, he has

          waived this issue for. purposes of appeal.

              UL        Whether the Court erred by revoking Defendant's bail pending sentencing?

                    Quinn's next issue raised on appealis whether the trial c;1,u11 erred PY revoking his bail

          following thejury verdict and prior to sentencing.             CONCISE St.•\T.EMENT; pgs. 4-5 .. However:

          an -order revoking bail is an inrerlocutory           order, which is non-uppealable.   Com, v, Colleran,

          313 Pa.Super. l , 469 A.2d 1130, 1131 (198.3).            The Courts   have held that, "The proper method

          to challenge an order of a trial court refusing or revoking bai I is by means. of a petition for
          review pursuant [to the          Rules of    Appellate Procedure]." ld.; See also Pa.R.A.P. 312. Thus,

          because     Quinn utilized improper procedure by raising this issue on direct appeal rather than

          by means of a petition for review; the appeal as ro the issue of bail revocation should be

           quashed.
                                                               Page 28 of 36
                                                                                i
       fV.         WhetherDefendant      was pr~judiced by the aftions{1f Assistant District
                   Attorney's Langerholc who allegedly held a vendetta against Defendant?

                The fourth issue presented on appeal is whether Quinn was prejudiced by· the actions

    of Langerholc who, allegedly, had a vendetta against Quinn, Quinn asserts that Langerholc

\ had a vcndena against Quinn based upon Quinn and Langerholc' s relationships. with a third

\ party. These focts wen; never introduced by Quinn at trial and no such allegation was ever
I      .
    raised before the trial court. Quinn also states that such a vendena was manifested by
    statements made by Langerholc fit trial, such as referring to Quinn as, "God's gift." CONCISE'

    STATEMENT, ~g, 8. However, Quinn never objected ro such statements bi Langerholc .

                . As. stated in Section 'l, supra, an issue not .raised before the trial court is. deemed

    waived and cannot be considered        forthe   first   time on appeal.   Pa.R.A:P. 302(a). thus, because

I Qui nri nei ther rai scd thee issue of Langcrholc' s alleged personal vendetta nor .objected to
1
    Langerholcs statements which evidenced. such prejudice, these Issues were not preserved and

    cannot be raised for the firsttime oh appeal

           V.       Did the Court err by foiling fo recuse itself?

                Qui n's next allegation of error is :that the Court failed to recuse      itself based on this

    jurist's prior role as. an assistant district attomey during which time this jurist was involved

    with an indirect criminal contempt proceeding involving a Protection from Abuse (PF A) order

    between Quinn and his ex-wife. Quinn alleges that this jurist was involved                        in such

    proceedings in approximately 2009. Furthermore, Quinn asserts that his. eX-'\\;ifo posted on her

    Faccbook, page during this jurist's campaign that this jurist had been helpful in the PfA

    process.




                                                      Page 29 of 36
lj




                   lnitiallv.
                           . . the trial
                                    .    court . observes. that
                                                             .    no:   Motion to Recuse
                                                                                    'i . was made
                                                                                             .    at anv. time
                                                                                                            . .

         before or during the trial. In fact, priorto jury selection, the trial ~;qurtstated to Quinn:

                   I warn to begin, Mr. Quinn, I didn't remember the case, but .it was brought to my
                   attention apparently in 2013 or 20.1 ~ when I was an assistant district attorney there was
                   a PFA indirect. criminal contempt; and I was the assistant DA on- the case. I believe
                   rhat the case was-dismissed.

                    I don't have ~Y independent                                                     is
                                                 recollection of the case and, because this, a Jury trial,
                   and in reviewing "the rules; I have no opinion. l have no recollection of it; arid l
                   determined, since this .is a jury trial, the fact finders are the jurors and not this court,
                   that I do not believe there is any conflict: I did want to cltsclose thet to you;. however,
                   just for complete transparency,

         N:T. Ji.my SEL.Ec:noN,. 6/2/2016, pgs. 3-4. After this disclosure by the trial court, Quinn made

         no Morion ro Recuse at that time and          a review of the. complete    transcripts of the proceedings

         in this   case   reveal that   no such motion was ever made be-fore or during    trial.

                    However, after. the jury rendered its verdict, Quinn did rnise the issue of rccusal in his

     I   p.ost-se.1tence motions. 11,e. trial court b.e gan the hearing on Quinn's po it-sentence        motions by

         statrng,

                    I understand [recusal is] one of your issues that you can argue, but because the Court
                    has made its decision on this, previously _on the record the Court colloquied you prior
                    lo the beginning of the proceedings, before the trial, beforejury selection regarding my
                    involvement, and you waived that conflict. lt does not mean that you can't' address that
                    again, but forthe purposes of going forward for today's hearing I am going ro remain
                    on ehecase.                         ·                             ·

         N. T. PosT.:.S ENTENCE i\iiOTIOl'JS, 912712()16, pg. 8. Quinn responded,

                    Your Honor: if I might just for the. record, I would di sagree wi lb your characterization
                    thatl waived my right to. object to your hearing the caje:As I recall, it was prior to
                    jury selection, and -as the Call of the List was before Judge Kiniry .. He issued jury
                    selection. Icame ro the Court that day expecting 10 see Judge Kiniry. When you came
                     to the stand; I believe the very first issue you raised, and no one had raised or l had
                    said anything to my knowledge, perhaps theProsecution has, but you basically made a
                     ruling on it, which IO me there was, as novice pr« se, there was .nc reason for me to
                    object because ~'.OU -had already ruled and. basically you came to the court. You raised.
                     the issue that you had prosecuted me previous! y op a !'FA~ alleged PFA violation and
                                                           Page J,O of36
              that because vou were not the finder of fact vou felt no r&1ason co recuse «ourself from
                   •   '   '   ....                              •   ·".   ••    •   •   J        •       .,


              the matter. At that po int, again my. understanding.as. a novice, was there was no reason.
              to qbJe·ct. because you had: just ruled ion the issue . .-J never· :i-r:itencion;3-Jly waivedthat as- .
              an objectionable 'issue.     ·

     Id. at 8~9.

              It is well-settled       that, "a party -seeking recusal 'or di!:'-q·ualifica:ti-on        must raise the·
-!
     objection at the earliest possible moment, or that party will suffer the consequences of being

·. rime barred:" Com. v. Si-afford, .2000 PA Super '76,. 74.9 A.2d 4·89~ 5.01 (PaSuper. CL 2000).
     Furthermore, . where ~ defendant' chooses to proceed pro ~-11, the. defendant still must adhere to

     the rule.s ofCrirnina! Procedure and Evidence. It is no cxcusethut a pro se defendant was.not

     aware·   of the proper procedure to raise objections and preserve issues for appeal.

              Additionally, the       Pennsylvania Supreme Court has explained the issue.of'recusal:

              The standards for recusal are well established. lt is the burden of rhe parry requesting
              recusal to produce evidence establishing .bias, prejudice                      or
                                                                            unfairness which raises a.
               substantial doubt as to the jurist's. ability to-preside Trnr,artial]y; i\~a general rule, 'a
               motion for recusal is ini-tiJi.lb' directedto and decided bi·'1he_jurist whose irnpanialityis
               being challenged .. In considering a . recusal request, rhe jurist must first make :a
              .conscientious determination of his or het ability to assess the case in an impartial
               manner, free of personal ·:bias OJ Inreresr in the outcome .. The jurist must them consider
               whether his or her continued involvement · in· the case creates an appearance of·
               impropriety and/or would tend JQ undermine public confidence in the judiciary. This is
               a .personal · and unreviewable decision that- orily the jur1s.t. can make. Where- a jurist
               rules that he er she can hear and dispose of a case fairly-and without prejudice, that
               decision wi 11 not be overruled. on appeal but for an abuse .of discretion.               In
                                                                                                 reviewing a
               denial ofa.disqualificaticn motion, we recognize rhaiour judges are honorable, fair
               and competent                                      ·

     'Com. y A'b11-J.a1;1dl; 5~3 Pa ..-485, 720 A.2d 79-: :s9 (1998:)_-(citat-i_C;nS·'Orriined.}.     See also, Com. .v,

     O'SJ~ea,. 523 -Pa. J84, 567 A.2d·.'l023, 1.034 (19M); Com: v. Bonds, 2005, .PA S1,1per432, 890

     A.2d 414 (Pa. Super.             Ct. 2005).   The· rule is simply          that "disqualification     of a judge is.

     mandated whenever 'a .significant rninority             of the. lay community. .. could reasonably question
                                                                                                        .




                                                          Pag_c-.H-df36·
                                                                                            .
                                                                                            .r
 the court's impartiality'." Com. r. Bryani; .3.~B Pc}.SUP.er. J, ;p6 .A.2d 422: -425 :(19.84)
                                                                                            •j
                                                                                              i
                                                                                            .?'
 (citations omitted) .

              As noted above, this rnarter was not raised             bi: ,•,:?y    of ·a. motion :until Quinn's Post-

 Sentence Motions. The· trial.courr raised the issue and, in the interest of transparency, stated

 that this j.urist believed she could be fair .and impartialin this man er. At that 6mc/Qui1U1 could

l have. easily      objected and made a Morion. Ior .Re_C\:ISaL lnstead, Quinn said nothi'ng and

I proeeeded       to jury setection.   Quinn's lack of knowledge                   of thi'~ rules of procedure arc no

 excuse for h°is failure to make a 'Motion for Recusal until after a Jury verdict had: been

 rendered. Thus, because Quinn failed- to object to this jurist's _preisi;ofng over the case Qr make

 a Kfotion forRecusal until his.Post-Sentence Motions, this issue is time barred and . waived for

 appeal.

       'Vl,      ·Wa$ standby counsel Ineffective?

              Quinn's next issue raised on appeal is -vhether his' standby counsel was- ineffective?

 CON.clSE STATEMENT,          pg.   I l. He   raises this issue   i'ri 'both   Sections . .\(and.VU. ;Of.his Concise

 -Staterneru. However, the trial court .dcclines to address Quinn's d~im of ineffective counsel in

 -this Qp_inion.

              In Com. v. Grant, 572 Pa. 48; S.L3 A.2d '71.G:. (2002), ..cl.ar{fi~qon denial of,redr.g11i11eht,
 5?3 Pa. 14·L, '82l A..2d: IJ46 (2003), holding med_ified-b). Com. v. Bethea, 5)4 Pa .. lOO,, .828
                                                                               1




. A.2d' I 0.66 (200J); the Pcnnsytvania'Supreme Court arrrtounced.                     :i        new generalrule concerning

 the time and manner for raising claims 'of .ineffective assisranc ~ of counsel. The. Court held

 thar ·'1a. defendant 'should wait to raise claims           of .ineffective .assistance               . of trial counsel until

 collateral review.?"· Corn. ,,. 'Bomar, 5i3 Pa. 426, &26 A..2d 831, 8.5} (2003).. (quoting· C.1:a11f,.

 826    A2d at      738).. Raising a claim of ineffective.assistance                 of counsel at collateral review
                                                       Page 32 of36




                              -·              -----·--------·------·--·~---                                                       _
                                                                                                                               r
                                     rather 'than on ·direct appeal gives' the petitioner the "time necess\/f)' ... lo discover .and fully

                                     develop claims related to trial counsel               .incffeciivcness."            Grant, '572 Pa -. 4& .. The Court

                                     determined that, since "appellate courts do; nor normally consider issues that were norraised

                                     and developed in the court. below," Id.; "deferring review of trial counsel ineffectiveness.

                                     claims until ihe eollateral review Stage Of theproceedingsoffers .. a.peritioner the best avenue 'CO

                                     effect. his :S:i~th Amendment right to counsel.': Com: v. WC:Jt'i'.on, 200} PA Super 410, 835 A2d

                                     786, 79"2    (Pa,   Super.   Ci. 2003} (quoring                  Grant; 572        Pa.   ,it 738).             More          recently,                 the

                                 ) Pennsylvania Supreme Court has' reaffirmed. that holding in Grant. 572                                           Pa.     4:S., stating, ·«we

                                     reaffirm Graht and hold that, absent [certain exceptions'], claims.of ineffective assistance of

                                     counsel are to be deferred ro PCRA review;                         trial courts shi,uld not entertain claims of

                                     ineffectiveness .. upon post-verdict motions; and such claims· .sl101,1Jd not be reviewed upon.

                                     direct appeal." Com. v, Holmes, 621 Pa; 595, 79 A.Jd 56:2°,. 576 r!OB}

                                             Although some case law indicated rhat the courts had created an exception to 'this-

                                     aeneral
                                     ~       role such that a defendant
                                                                    .   could. raise an .ineffective
                                                                                            .        . assistance of counsel claim ori
                                                                                                           ,,                       .

                                     . directappeal, the PennsylvaniaSupreme               Court in Com.         'i•.   O'Be:g,584 Pa. ·1.1, S80 .A.2d S97,

                                 · 1602{Zoo'5),    overruled any cases recognizing such 'an exceptiorr, l'he.:Court held that,

                                             As a. zeneral rule. claims of ineffective assistance .of counsel wil! not be entertained on
                                             direct appeal.. Moreover, we take this opportunity ·10 disapprove' of any decis1(>ns:Q(the·
                                 I           Superior Court that areto the contrary. For-these. reasons, we do not believe· there is a
                                             need to create. a. "short sentence" exception to. the. general rule announced ·in Grant,
                                             5 72 Pa. 48, Indeed. we fear ·doing so would underrnirie the verv reasons that le'd ·1o··our.
                                             decision in Gram, 572 P~. 48 in the 11r~t irt.sJc;11~e:  . ,·     •                    .

                                             Similarly: in .. Com. :v. Simmons, 2904.PA                  Super 71,:8'46       A.2d· l42, 144                     (Pa.       Super. C~·-

                                      2004), the Court considered wneiher a defendant 'could raise the issue of ineffective assistance

                                      of counsel on direct appeal when the defendant was sentenced ro .a term .of incarceraiion                                                              of




····-   ,   .. _.,
            ,        ,.. ,   ,           ,                    ----·    ---·,.···-·--·-,,     .....,                      ,          ,_,,   .. .,_   ,_,   ,,--     ""',.,    -- ..~-- -.,     ,..,   _
                                                                            .. ~
                                                                              ;



                                                                             ,;


                                                                            ~!
· eleven and one-half months to iwenry-three mouths foil owed by ·,., term of probation. Based on
                                                                              !

 that length of sentence, the Court held that: "Appellant will .have ample opportunity to

 challenge his counsel' s effectiveness in .h collateral attack. Accordingly,            we find that the

 'Saltsbury exception does not apply to the Appellant ls inef.foct1ve assistance of counsel claim

 and the claim must be dismissed pursuant to Chant. Id.

         Here, Quinn was sentenced to a term of imprisonment for "not less than one year less a

 day, nor more than 2 years less a day," The minimum of Quinr.-s sentence is approximately

 one-halfof a month longer than the sentence ofthe defendant              in.Stmmons, 2004   PA Super 71.

 Thus, because Quinn's
                .      sentence . provides ample time to raise
                                                             . ineffectiveness
                                                                          .    of counsel. on

  collateral review, and since the record        is   void of any determination of the trial court   as to the
  matter, the trial court declines       1:0   address the issue of lneffe.ctiveness    of counsel in this

  Opinion.

      \;IL       Wherhet the Court's sentence was inappropriate?

             Quinn; s final issue allegationof'error      is that;

             The sentence of the court was inappropriate and .the jud·~e allowed the prosecution to
             assen that a non-violent crime such as this is worse char, violence: which ignores Jaws
             which provide aggravating circumstance when violence is. involved. The sentencing
             range was 3"14 months but the court sentenced the .Appehatejsic] to l 2 months minus
             a day to 24 months minus a .day.

  CONCISE STATEMENT: PG .. 13 -,

             204 PA.CODE§ 303.1. requires that, "The court shall consider the. sentencing guidelines

   in determining the appropriate sentence for offenders convicted of, or pleading ~uilty or nolo

   contendere to, felonies and misdemeanors.': To determine the guideline sentence applicable in

   a given case the law provides:

             The procedure for determining the.guideline sentence. shall be as. follows:
                                                        Page 34 of36
                                                                                     ~
                           (.i)   Determine the Offense Gravity Score asj.desdibed. in                       s 30l3 and.§.
                                                                                                               .   .

                                  303. lS:
                           (2}. Determine the Prior Record Score as described in §.'~03.4~--§                          J03.8.
                           (3) Determine the guideline. sentence recomrnerrdarion as described in §
                              · 303.9--§ 303.14,.   including. Deadly · Weapon Enhancement,
                                  Youth(SchoolE.n.bancem.ent, Criminal Gnng Enhancement, 'and Third
                                  Degree: Murder bf a Victim Younger than Age J..3 Enhancement (§
                                  303: -: fO), and aggravatirrgor mitigating ·cir9umstanc~s.f§ 303-.15),

 2,04 Pa.Cede §' 303 .. 2 .. For exam pk, a guideline .senrence. may be 3QA2 months. According                                          t¢

 statute, "All numbers in sentence recomrriendations                 suggest months of minimum confinement

 pursuantto 4'2 P,tC.S·.A . ·§. 97-,S(b) (partial confinemenijand § ~n5.${b). (total confinement)."
                                                                                        .


J · 204 Pa. Colic   § 3 OJ. 9( e). Therefore, in the case e       fa   g~ idel i ne sentence of     J 0-4 2 months,                    the

 guidelines      would. recommend a rnrmrnurn sentence between JO ·and.42 months. Importantly,

  the minimum -sentence cannot :e~ieed half of The maximum sentence· length. 42 Pa ..C.S:,A. .. §·

 9754.(b)()),

             lnitiall«, 'the trial court ..agrees jhai Quinnls         guideline   runge for seniencirrg was :3-14

 rnoruhs. 111e trial coun imposed            a. sentence    of imprisonment fot one year .tess a day to two

  ..vears   less
              .. a dav.
                     ., This-sentence                                     -
                                 .. . . clearlv.... falls within the cuideline
                                                                             .             -
                                                                               ranze of. J-L4
                                                                                            . months ... as the
                                                                                                        ,,




  minimum sentence imposed was. 12· months ..Jess a day. In facr, a sentence-of 14-2-8 months

 -still would have. fallen withinthe.guideline range, The issue rai:'ied. byQuinn manifests a clear

  misunderstanding       ofthe use and application of           the. guideline sentence range in Pennsylvania.

  It seems ~hat -Quinn believes that the complete seritcnce, including. minimum and maximum,

  rnusr foll within the guideline -range. However, this is 1lqt· in accordance with the applicable:

  starurory law discussed supra. Thus, because the. minimum 'term of imprisonment imposed                                               b}'

  the trial court falls squarely within Quinn's               .guideline tange, the :trial court did Rot err by

  applying an aggravated range and sentencing Quinn outside of his 'guideline range.
                                                         Page 35 !)[36




                             - .......,--·-· .. --·--·-----··-- ..-·-----------··--- ... --............_.,....           .,.,....__,          _
                                                                                                                                              .           I                                       .

                                                                                 Accordingly, as thereis no merit   to. this   or .' any allegation q.f error the appeal must be
                                                                                                                                                         ;I



                                                                          dismissed and Quinn's. conviction -iµi:d sentence affirmed.




                                                                          lv1arch'24, 2017




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                                                                                     Q ATTY. Q OTHER
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                                                                                      Q JAIL
                                                                                      0.JUD.GE
                                                                                     -0 CA .




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