J-S26023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROSCOE LANDIS

                            Appellant               No. 1193 MDA 2014


            Appeal from the Judgment of Sentence of April 1, 2014
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0002712-2013


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                              FILED JULY 29, 2015

       Appellant Roscoe Landis appeals the judgment of sentence imposed

following his convictions for simple assault and harassment,1 arising from a

domestic dispute between him and his girlfriend. We affirm.

       Krista Hamilton, the victim, testified at [Landis’] trial. She
       testified that [Landis] was her fiancé and that she has known
       [Landis] for three and a half years. On September 18th of 2013,
       Ms. Hamilton and [Landis] were living together in an apartment
       in West Fairview, Cumberland County, and had been living
       together for approximately two and a half years.

       Ms. Hamilton testified that on September 18th of 2013, she and
       [Landis] were home drinking and that they both had drank
       “quite a bit[.”] Around 1:15 a.m. on the 18th, police were called
       to Ms. Hamilton and [Landis’] apartment. She testified that the
       police had been called because she and [Landis] were arguing
       and yelling. When police arrived, she told them she and [Landis]
       had been arguing and that [Landis] “punched the wall and ripped
____________________________________________


1
       See 18 Pa.C.S. §§ 2701(a)(1), 2709(a)(1), respectively.
J-S26023-15


     the sink faucet off.” She could not remember whether she told
     Officer Keith Morris, the responding officer from the East
     Pennsboro Township Police Department, that [Landis] had kicked
     her but testified that [Landis] had not kicked her. Upon further
     questioning, Ms. Hamilton conceded that if Officer Morris
     testified that she told him on the night of the incident that
     [Landis] kicked her that she would believe him.        She also
     testified that [Landis] dumped a mixed drink on her but could
     not remember what she told Officer Morris in that regard.

     Ms. Hamilton testified that, after the police left, [Landis] was a
     little upset and yelling but that his anger was not directed
     toward[] her.        The Commonwealth then handed her
     Commonwealth’s Exhibit 3 which she identified as a pan that she
     and [Landis] kept a cigarette roller in. After she identified the
     pan, the Commonwealth asked her if [Landis] had used that pan
     to hit her in the head. She responded that he had not. Rather,
     she explained, [Landis]

        went to take the pan with the cigarette roller, I grabbed it
        trying to get it back because I wanted to roll a cigarette.
        We kind of pulled both ways on the pan, and at one point
        he let go of the pan saying just have it and it flew back
        and hit me in the head because I was still holding on it.

     Ms. Hamilton testified that after being struck in the head by the
     pan she became very upset and went to a neighbor’s house
     down the street, falling down the stairs as she left her
     apartment. She admitted, however, that she did not tell the
     police that she fell down the stairs.      It was approximately
     1:30 a.m. when she arrived at her neighbor’s and asked them to
     call the police.

     Again, Officer Morris responded to the call. When he arrived,
     Ms. Hamilton was standing outside her neighbor’s house about a
     block from her own apartment. She testified that she told
     Officer Morris that [Landis] hit her in the head with the pan. She
     also testified that she told Officer Morris that [Landis] first
     looked for a bat to punish her because he believed that she had
     called the police.

     Ms. Hamilton then identified Commonwealth’s Exhibit 1 as a
     statement she dictated to Officer Morris and signed.   The
     statement reads:



                                   -2-
J-S26023-15


       [Landis] came upstairs and said he was getting a baseball
       bat. [Landis] said he was going to hit her with it because
       she deserved it for calling the police.     [Landis] then
       grabbed a metal tray and hit her in the head with it.
       [Landis] then grabbed her by the hair and pulled her down
       the stairs.

     After signing the above statement, Ms. Hamilton stayed outside
     while [Landis] was arrested. Subsequent to [Landis’] arrest, Ms.
     Hamilton and Officer Morris went back inside her apartment, and
     Officer Morris took pictures of her injuries.         Ms. Hamilton
     identified Commonwealth’s Exhibit 2 as a picture of her head
     taken by Officer Morris on the night of the incident.

     Officer Morris returned to Ms. Hamilton’s apartment on
     September 20th and took more photographs.        Ms. Hamilton
     identified Commonwealth’s Exhibit 4 as a photograph of her leg
     and Commonwealth’s Exhibit 5 as a photograph of her back.
     She testified that those photographs were taken two or three
     days after the incident.

     On cross-examination, Ms. Hamilton testified that she believed
     the initial call to the police was made by her neighbor[s] across
     the street. Regarding the inconsistencies between her testimony
     and what she told police, Ms. Hamilton stated that at the time of
     the incident she was “on fentanyl patches prescribed by the
     doctor. And on top of the alcohol there were times when l would
     get confused about what was going on and what happened.”
     She further testified that “[a]fter the alcohol wore off the next
     day, [she] started remembering things here and there and it
     came back to [her] what really happened and it was not what
     [she] told the police officers,” although she believed it was true
     at the time. She did not, however, correct the inaccuracies of
     her statement after “remembering things here and there.” She
     also testified that she did not read through the statement she
     dictated to Officer Morris in its entirety before signing it. When
     asked by defense counsel if [Landis] had hit her with a pan or
     kicked her, she testified that he did not.

     On redirect, Ms. Hamilton admitted that at the preliminary
     hearing in this matter she did not tell Officer Morris that the
     statement she gave the night of the incident was not true. She
     also admitted that her testimony at trial was the first time she
     told anyone that her original statement was not true.
     Addressing why she did not correct her initial statement at the


                                   -3-
J-S26023-15


     time of the preliminary hearing, Ms. Hamilton testified on recross
     that her father told her that if she did not “go through with the
     statement” he would not help her and that “he would make sure
     [she] would never see [her] kids again.” And when defense
     counsel asked her if she felt threatened by the police when she
     gave her statement, she responded: “In a way. I was told that
     if I did not show up and testify at the preliminary that my
     probation officer would be called.”

     Officer Morris testified that when he arrived at Ms. Hamilton and
     [Landis’] residence on September 18th at approximately
     1:15 a.m.[, Landis] answered the door. According to Officer
     Morris, [Landis] was “very agitated, upset, intoxicated, very
     intoxicated.”     [Landis] told Officer Morris that he and
     Ms. Hamilton were having an argument. Officer Morris then
     went upstairs to speak with Ms. Hamilton. He testified that the
     kitchen/dinette was a “total mess” and that it appeared that
     “there had been a pretty intense argument, some type of
     altercation there,” specifically noting that a dining room chair
     had been knocked over and the kitchen faucet ripped from the
     sink.

     Ms. Hamilton, according to Officer Morris, was soaking wet,
     upset, mad, and intoxicated. She told Officer Morris that she
     and [Landis] were arguing and that he poured a bottle of SoBe
     juice over her and kicked her in her legs multiple times.
     Ms. Hamilton did not want to be taken to a shelter but wanted to
     stay at her apartment. At about 1:30 a.m., Officer Morris left.

     Approximately eighteen minutes later, Officer Morris was
     dispatched back to Ms. Hamilton and [Landis’] residence. Prior
     to his arrival back at the residence, Officer Morris was informed
     that Ms. Hamilton had been hit in the head with a pan. Officer
     Morris met Ms. Hamilton about a block and a half from her
     residence. Ms. Hamilton told Officer Morris that after he left
     earlier that morning [Landis] returned to the apartment
     extremely agitated, saying that he needed to find his bat and
     that he wanted to punish Ms. Hamilton. She further explained to
     Officer Morris that [Landis] was unable to find his bat, picked up
     a pan instead, and began walking toward[] her. When Ms.
     Hamilton attempted to run past [Landis], he took the pan in both
     hands, swung it at her, and struck her on the side of her head.
     While speaking with Ms. Hamilton at the scene, he observed a
     small laceration on the right front part of her head.
     Ms. Hamilton also identified for Officer Morris the pan, which was

                                   -4-
J-S26023-15


      found behind the living room couch, [Landis] used to strike her.
      Officer Morris identified Commonwealth’s Exhibit 3 as that same
      pan. He also identified Commonwealth’s Exhibit 2 as a picture
      he took of the injury to Ms. Hamilton’s head.

      Officer Morris then asked Ms. Hamilton for a written statement.
      Because of Ms. Hamilton’s insecurity with her own writing and
      spelling, Officer Morris offered to write the statement for her
      while she told him what had happened. When she had finished
      dictating her statement, Officer Morris handed the statement to
      her and asked her to read it and “if she agreed with what was
      written on the paper, to sign on the line below acknowledging
      that was her statement.”             Officer Morris identified
      Commonwealth’s Exhibit 1 as the statement he had taken from
      Ms. Hamilton which she signed in his presence.

      Officer Morris returned to Ms. Hamilton’s residence a few days
      later to serve her a subpoena for the preliminary hearing and to
      take additional pictures. He explained to her that he needed to
      take pictures of any injuries from the incident. According to
      Officer Morris, he returned to take more photographs because
      bruising does not always appear immediately on some people.
      Ms. Hamilton showed him injuries on one of her legs and on her
      lower back. She told Officer Morris that those injuries were from
      [Landis] kicking her. Officer Morris also testified that at the time
      of this visit Ms. Hamilton was sober and happy that he was there
      and that since September she has never contacted him to
      change her story.

Trial Court Opinion (“T.C.O.”), 9/26/2014, at 2-8 (citations omitted).

      Based upon the above-recited facts, a jury convicted Landis of simple

assault, a second-degree misdemeanor, and the trial court convicted Landis

of harassment, a summary offense. The trial court set forth the post-trial

procedural history as follows:

      On April 1, 2014, the date set for [Landis] to be sentenced,
      [Landis] filed an Emergency Motion for Mistrial, which was
      denied. [Landis] was then sentenced at Count 1 [simple assault]
      to undergo a period of incarceration in a state correctional
      institution of not less than one nor more than two years and to


                                     -5-
J-S26023-15


      pay the costs of prosecution and a fine of $200.00 and at Count
      2 [harassment] to pay the costs of prosecution. On April 10,
      2014, [Landis] filed [his] Post-Sentence Motion for Relief
      requesting that this Court release [Landis] on bail pending
      appeal, enter a judgment of acquittal at Counts 1 and 2, and
      order the transcription of the trial. A hearing was held on
      [Landis’] motion on May 6, 2014. At the conclusion of that
      hearing, [Landis’] Motion to be Released on Bail Pending Appeal
      was granted, and [Landis’] bail was set in the amount of
      $300,000.00. On June 23, 2014, [Landis’] Motion for Judgment
      of Acquittal for Insufficient Evidence was denied. On July 18,
      2014, [Landis] filed a Notice of Appeal.

T.C.O. at 1-2. On July 23, 2014, the trial court entered an order directing

Landis to file a concise statement of the errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).         On August 11, 2014, Landis timely

complied, and on September 26, 2014, the trial court filed the above-

excerpted Rule 1925(a) opinion, ripening this case for appeal.

      Landis raises the following issues for our review.

      I.     Whether sufficient evidence was produced at trial to
             support a finding of guilt?

      II.    Whether the trial court erred in failing to declare a mistrial
             when the prosecution made prejudicial statements during
             the Commonwealth’s opening statement, which were not
             cured by the court’s jury instructions?

      III.   Whether the trial court erred in failing to award a new trial
             when trial counsel had a conflict of interest, rendering her
             ineffective?

Brief for Landis at 4 (capitalization and punctuation modified).

      In reviewing a claim of evidentiary insufficiency, we apply the following

standard:




                                      -6-
J-S26023-15


     In evaluating a challenge to the sufficiency of the evidence, we
     must determine whether, viewing the evidence in the light most
     favorable to the Commonwealth as verdict winner, together with
     all reasonable inferences therefrom, the trier of fact could have
     found every element of the crime charged beyond a reasonable
     doubt. We may not weigh the evidence and substitute our
     judgment for the fact-finder.

Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008)

     Landis contends that the Commonwealth failed to present evidence

that he attempted to cause, or intentionally, knowingly or recklessly caused

bodily injury to Ms. Hamilton. He asserts that “the Commonwealth did not

put forth any evidence that [Landis] attempted or did cause bodily injury to”

Ms. Hamilton.   Brief for Landis at 9-10.     Landis’ argument focuses on

Ms. Hamilton’s on-the-stand recantation.    However, in stating that “[t]he

Commonwealth’s evidence      against [Landis] existed [sic] solely of a

statement given by Ms. Hamilton, which she then recanted,” Landis does not

acknowledge Officer Morris’s testimony regarding Ms. Hamilton’s second

statement, which corroborated her first statement days after the fact.

     Moreover, even without reference to the second statement, the

evidence, viewed in the light most favorable to the Commonwealth as

verdict-winner, was sufficient to sustain the verdict.   The trial court aptly

reasoned as follows:

     [T]he Commonwealth entered into evidence Ms. Hamilton’s
     written statement, . . . which she dictated to Officer Morris and
     signed. That statement read:

        [Landis] came upstairs and said he was getting a baseball
        bat. [Landis] said he was going to hit her with it because
        she deserved it for calling the police.     [Landis] then

                                    -7-
J-S26023-15


         grabbed a metal tray and hit her in the head with it.
         [Landis] then grabbed her by the hair and pulled her down
         the stairs.

      The Commonwealth also presented a photograph, . . . taken by
      Officer Morris, that showed a laceration on Ms. Hamilton’s head
      that was the result of her being struck by [Landis] with the pan.
      Thus[,] the jury was presented with evidence that established
      that [Landis] either intentionally caused or attempted to cause
      Ms. Hamilton bodily injury. . . .

      Although during her testimony at trial Ms. Hamilton denied that
      [Landis] hit her with the pan, the jury was free to disbelieve this
      testimony and credit her written statement to Officer Morris
      instead.

T.C.O. at 9-10. The trial court’s account of the evidence more than suffices

to establish that the evidence was sufficient to sustain Landis’ conviction of

simple assault. Accordingly, this argument fails.

      With respect to harassment, Landis makes no separate argument. He

was convicted under 18 Pa.C.S. § 2709(a)(1), which requires that the

defendant, “with intent to harass, annoy, or alarm another,” “strikes,

shoves, kicks or otherwise subjects the other person to physical contact, or

attempts or threatens to do the same.” Because Landis fails to differentiate

his argument as between the two convictions, we must assume that his

argument here rests on the same sufficiency claim he raised against simple

assault—i.e., that the evidence failed to establish a basis upon which the

fact-finder could conclude beyond a reasonable doubt that Landis struck,

kicked, or subjected Ms. Hamilton to physical contact, or threatened to do

so.   This argument fails for the same reason that it failed with respect to

simple assault. Consequently, this sufficiency challenge, too, fails.


                                     -8-
J-S26023-15



      Landis’ second issue is waived because his argument fails to comply

with Pa.R.A.P. 2119, which requires an appellant to provide “such discussion

and citation of authorities as [the appellant] deem[s] pertinent.”                 See

Commonwealth v. Eichinger, 108 A.3d 821, 841 (Pa. 2014) (deeming

argument    waived      for   want   of   adequate   discussion   and   citation    of

authorities).   Landis contends that the prosecution committed prejudicial

error in its opening statement, and that the trial court’s curative instruction

was insufficient to cure the prejudice.         See Brief for Appellant at 11-12.

Landis has provided no citation to any authority but Commonwealth v.

Elliot, 80 A.3d 415, 443 (Pa. 2013), wherein our Supreme Court explained

generally as follows:

      Not every unwise, intemperate, or improper remark made by a
      prosecutor mandates the grant of a new trial. Reversible error
      occurs only when the unavoidable effect of the challenged
      comments would prejudice the jurors and form in their minds a
      fixed bias and hostility toward the defendant such that the jurors
      could not weigh the evidence and render a true verdict.

Id. at 443 (quoting Commonwealth v. Spotz, 47 A.3d 63, 97-98

(Pa. 2012)).

      Landis, in support of this claim, reproduces the prosecutor’s offending

statements. He also notes that immediately following the Commonwealth’s

opening statement his counsel moved for a mistrial. Brief for Landis at 11-

12. The trial court heard argument outside the jury’s presence and denied

the motion for a mistrial.      However, upon summoning the jury, the trial

court provided a curative instruction.

                                          -9-
J-S26023-15



       Landis maintains that the trial court’s instruction was insufficient

because, in that instruction, the trial court did not expressly connect the

court’s general admonition that the jury must weigh only the evidence, and

that opening and closing statements do not constitute evidence, to the

Commonwealth’s problematic comments. “It is this failure on behalf of the

trial court which created a fixed bias in the minds of the jurors and therefore

the trial court committed an abuse of discretion and the conviction should be

overturned.” Brief for Landis at 12.

       Although Landis introduces the ostensibly offending statement by the

prosecution, he does not even take the time to direct this Court to which

aspects of the highlighted opening comments were contrary to law, nor does

he provide case law to support such a claim. He also provides no material

legal argument concerning the adequacy of the trial court’s instruction to

cure any prejudice caused by the Commonwealth’s statements.2 We will not

serve as advocate for Landis, or do his legal research for him. Accordingly,

this issue, too, is waived. See Eichinger, supra.

                                In Landis’ third and final issue, he alleges that his

counsel had a conflict of interest because counsel had once represented
____________________________________________


2
      Landis also does not direct us to where in the record he objected to
the adequacy of the corrective instruction; if he failed to do so, he would be
precluded from contesting its corrective adequacy on appeal.              See
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (“A
specific and timely objection must be made to preserve a challenge to a
particular jury instruction.”).



                                          - 10 -
J-S26023-15



Ms. Hamilton in an unrelated matter. Once again, after citing case law for

the boilerplate proposition underlying his argument, Landis’ actual argument

is only a paragraph in length, and lacks citation of any case law that is

specifically on point; his argument is utterly conclusory and therefore

waived. Even were it not waived, we would affirm on the sound basis set

forth by the trial court:

      “[While it is true that] prejudice is presumed when counsel is
      burdened by an actual conflict of interest, this is so only if the
      defendant demonstrates that counsel actively represented
      conflicting interests and that an actual conflict of interest
      adversely affected his lawyer’s performance.” Commonwealth
      v. Buehl, 508 A.2d 1167, 1175 (Pa. 1986). In Buehl, the Court
      determined that the appellant’s “defense was not prejudiced by
      the fact that, at a prior time, his counsel had represented a
      Commonwealth witness.” Id.

      In the present matter, [Landis] filed an Emergency Motion for
      Mistrial on April 1, 2014. In that motion, [Landis] sought a new
      trial, alleging that defense counsel’s previous representation of
      Ms. Hamilton, the victim, was a conflict of interest and deprived
      [Landis] of a fair trial. We denied [Landis’] motion.

      At a hearing on [Landis’] motion, Timothy Clawges, Esq., Chief
      Public Defender, testified. According to Mr. Clawges, his office
      determined that nothing in its previous representation of
      Ms. Hamilton would create a conflict with its current
      representation of [Landis]. While Ms. Cesare, [Landis’] trial
      counsel in the present matter, did represent Ms. Hamilton in
      2012, her representation in 2012 was limited to the preliminary
      hearing stage and, to Ms. Cesare’s recollection, no hearing was
      held and the charges against Ms. Hamilton were dismissed by
      the magisterial district judge. Ms. Cesare also could not recall
      any specific information regarding her representation of
      Ms. Hamilton. In fact, Ms. Cesare was uncertain if she had any
      conversation with Ms. Hamilton other than acquiring biographical
      data for her file. Thus[,] the extent of Ms. Cesare’s recollection
      went no farther than knowledge of the charges against
      Ms. Hamilton, her name, and little else, none of which was


                                    - 11 -
J-S26023-15


      privileged. As [Landis] failed to present any other evidence, and
      is relying solely on conjecture, we could not find either that
      Ms. Cesare actively represented conflicting interests or that an
      actual conflict of interest adversely affected her performance.

T.C.O. at 13-14 (citations modified; footnotes omitted).

      To this apt account of the applicable law and detailed explanation of

the trial court’s reasoning for denying a mistrial, Landis provides no

substantiated rebuttal. Consequently, this issue would fail for want of merit

if it were not waived.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2015




                                   - 12 -
