J-S21019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EUGENE M. PRATT                            :
                                               :
                       Appellant               :   No. 1246 WDA 2017

            Appeal from the Judgment of Sentence March 23, 2016
     In the Court of Common Pleas of Fayette County Criminal Division at
                       No(s): CP-26-CR-0001261-2014

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 30, 2018

       Eugene M. Pratt (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of simple assault, terroristic threats, and

harassment.1 We affirm.

       The pertinent facts of this case are as follows:

          In the early evening hours on July 11, 2014, Ashley Weakland
       and Tyler Rockwell were at her friend Debbie’s house located on
       Hortense Street in Uniontown, Fayette County, Pennsylvania.
       Weakland and Rockwell were in the bathroom on the first floor
       getting ready to leave when Debbie alerted Weakland that
       somebody was there to see her. Weakland walked out of the
       bathroom, saw [Appellant], and stepped back into the bathroom.
       [Appellant] followed Weakland and pushed his way into the
       bathroom.

          Once he made his way into the bathroom, [Appellant],
       believing Weakland had his phone, demanded that Weakland give
       him the phone. While Weakland had a phone on the sink in the
       bathroom, she claimed it was her phone. When Weakland was
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1   18 Pa.C.S.A. §§ 2701(a)(3), 2706(a)(1), 2709(a)(1).
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     not complying, the demands became louder.                 Eventually,
     [Appellant] pulled out a knife from his pocket and threatened
     Weakland to give him his phone or he would slice her and kill her.
     Weakland ignored [Appellant] at first, but then felt a coldness on
     her neck. She glanced down and saw a knife at the side of her
     neck. Weakland testified [that] she was startled, frightened and
     terrified that [Appellant] was going to hurt or kill her.

        At about the same time, the phone rang. As Weakland went
     to grab the phone, [Appellant] also reached for the phone.
     [Appellant] attempted to reach around Weakland and in the
     process, cut her with the knife, resulting in small cuts on her
     hands. The phone fell out of Weakland’s hand onto the floor and
     the battery fell out.

        Once the phone fell on the ground, Rockwell intervened. He
     suggested to [Appellant] that they look at the contacts in the
     phone to determine the owner of the phone. Rockwell testified
     that [Appellant] responded by holding the knife up to Rockwell’s
     throat and said, “shut up boy I’ll slice you too.”

        [Appellant] eventually grabbed the phone from Weakland,
     exited the house and drove off in a vehicle. Weakland ran after
     him out onto the front porch. After [Appellant] left, Weakland,
     using Debbie’s phone, called Officer Holland and 9-1-1 to report
     the incident. Weakland and Rockwell then met the police at
     Esther’s Tavern in Uniontown, as Debbie did not want the police
     at her house. They encountered Corporal Delbert James DeWitt
     with the Uniontown City Police.

        As Weakland was talking to Corporal DeWitt, Weakland
     observed [Appellant] outside of Esther’s Tavern. After talking with
     Weakland and Rockwell, Corporal DeWitt arrested [Appellant]. He
     conducted a search incident to arrest and found a cell phone and
     two knives on [Appellant]’s person.

        [Appellant] was transported to the police station. Weakland
     and Rockwell also went to the station to give written statements.
     At the station, the two knives found on the Appellant’s person
     were placed in an evidence box and sealed for trial. The cell phone
     was photographed and given to Weakland after Corporal DeWitt
     determined the phone belonged to Weakland.




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          [Appellant] testified at trial. He stated that at some point prior
       to July 11, 2014, Weakland took his vehicle and rented it out to a
       woman named Sarah Farrell. [Appellant] testified that while he
       did get his vehicle back, certain items inside the vehicle were
       missing, including his cell phone. [Appellant] ultimately found
       Weakland, who was staying at his cousin Debbie’s house.

          [Appellant] testified that on July 11, 2014, he went to Debbie’s
       house. [Appellant], informed by Debbie that Weakland was in the
       bathroom, made his way into the house and pushed the bathroom
       door open. [Appellant] asked Weakland to give him his cell phone
       and when she showed him the phone, [Appellant] grabbed for it.
       [Appellant] stated the phone fell, he picked it up, and left the
       residence. [Appellant] testified that while he does carry knives,
       he never pulled one out and never threatened to kill Weakland.

Trial Court Opinion, 9/27/17, at 3-6 (footnotes and record citations omitted).

       The trial court provided the following summary of the procedural history

of this case:

           Following a trial by jury, [Appellant] was found guilty of
       [t]erroristic [t]hreats, [s]imple [a]ssault, and [h]arassment. [2] On
       March 23, 2016, [Appellant] was sentenced to an aggregate term
       of imprisonment of not less than thirty-three (33) months nor
       more than ninety (90) months. [Appellant] filed a direct appeal
       to the Superior Court of Pennsylvania at 511 WDA 2016. This
       [c]ourt issued an opinion in support of the verdict of the jury. The
       Superior Court dismissed [Appellant’s original] appeal on
       November 16, 2016 due to the deficiencies in Appellant’s brief.
       Thereafter, [Appellant] filed a PCRA [p]etition[,] which the [c]ourt
       granted on August 28, 2017[,] and reinstated the Appellant’s right
       to a direct appeal with new counsel.             The instant appeal
       followed.[3]



____________________________________________


2 Appellant was found not guilty of the charges of robbery, theft by unlawful
taking, receiving stolen property, and recklessly endangering another person.

3 Both Appellant and the trial court have complied with Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure.

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Id. at 1-2 (footnote omitted).

       On appeal, Appellant presents the following issues for review:

       1.     Whether the trial court erred by failing to recuse [] from the
              present case?

       2.     Whether [the] trial court erred by failing to strike and/or
              failing to issue a cautionary instruction in regards to Ashley
              Weakland’s statement that she “guessed” that the cell
              phone at issue was found on [Appellant]’s person?

       3.     Whether the trial court erred by permitting the
              Commonwealth during closing argument to identify the
              knives found on [Appellant]’s person at the time of his
              apprehension as the knife used in the incident, when no
              witness identified either knife as being used in the incident?

Appellant’s Brief at 3.4

       First, Appellant argues that the trial court judge erred in failing to recuse

himself from this case because the trial judge had previously “presided over a

criminal case involving both [Appellant] and his son.” Appellant’s Brief at 7.




____________________________________________


4  We note that Appellant filed also filed a pro se brief in this matter. Although
it is not entirely clear from his pro se brief, it appears Appellant filed the pro
se brief under the impression that his counsel had withdrawn from the case.
See Appellant’s Pro Se Brief, 11/13/17. Although Appellant’s counsel did seek
permission from this Court to withdraw prior to the filing of the counseled
brief, this Court denied counsel’s petition, and counsel subsequently filed an
advocate brief. See Order Denying Application to Withdraw as Counsel,
10/31/17. Nevertheless, because Appellant is represented on appeal, we may
not consider his pro se brief, as it constitutes hybrid representation. See
Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper
response to any pro se pleading is to refer the pleading to counsel, and to
take no further action on the pro se pleading unless counsel forwards a
motion.”).

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We review “a jurist’s denial of a motion to recuse for abuse of discretion.”

Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011).

      With respect to recusals, our Supreme Court has explained:

      The standards for recusal are well established. It is the burden of
      the party requesting recusal to produce evidence establishing
      bias, prejudice or unfairness which raises a substantial doubt as
      to the jurist’s ability to preside impartially. As a general rule, a
      motion for recusal is initially directed to and decided by the jurist
      whose impartiality is being challenged. In considering a recusal
      request, the jurist must first make a conscientious determination
      of his or her ability to assess the case in an impartial manner, free
      of personal bias or interest in the outcome. The jurist must then
      consider whether his or her continued involvement in the case
      creates an appearance of impropriety and/or would tend to
      undermine public confidence in the judiciary. This is a personal
      and unreviewable decision that only the jurist can make. Where
      a jurist rules that he or she can hear and dispose of a case fairly
      and without prejudice, that decision will not be overruled on
      appeal but for an abuse of discretion. In reviewing a denial of a
      disqualification motion, we recognize that our judges are
      honorable, fair and competent.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citations

omitted).

      Prior to trial, the trial court provided the following explanation of its

decision not to recuse:

        [A]s you know[,] the [c]ourt’s been District Attorney and
      Magisterial District Judge and now on the bench for three years
      and it’s not uncommon to have situations like this.

         I can assure you that . . . I see many defendants over the
      course of a month or a year and I have no independent
      recollection of your case. I don’t have any recollection of your
      son’s case. Maybe if he were in here and I saw him and the facts
      were represented to me I might have a recollection[,] but your
      prior record and any family members would not cause me concern
      enough to recuse myself from this case. In fact I recognize the

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      name of one of the two victims, I believe I sentenced her at least
      once and I don’t see that that would prejudice me against the
      Commonwealth because a Commonwealth witness was in front of
      me as well.

N.T., 3/8/16, at 7-8.

      We conclude that the trial court did not abuse its discretion in declining

to recuse from this case. Appellant has failed to produce evidence establishing

bias, prejudice or unfairness that raised a substantial doubt as to the trial

court’s ability to preside impartially over this matter. See Abu-Jamal, 720

A.2d at 89.   As this Court has explained, “[a] judge is not automatically

disqualified from hearing a case merely because he has presided over prior

cases involving the same defendant.” Commonwealth v. Bryant, 476 A.2d

422, 424 n.1 (Pa. Super. 1984).       Only “if circumstances exist showing a

continuing or recurring bias against a particular defendant or a class of cases

[should] the trial judge should be disqualified.” Id. Beyond his claim that the

trial judge should have recused because the judge previously presided over

cases involving Appellant and his son, Appellant makes no allegation of bias

against the trial judge.     The trial court provided a logical and sound

explanation of its decision not to recuse, and we see no basis upon which to

disrupt that determination. Accordingly, Appellant’s first issue is meritless.

      Second, Appellant argues that the trial court erred in failing to strike

Weakland’s testimony when she stated that she “guessed” that the police

recovered her cell phone from Appellant’s person when they arrested him, and

by failing to issue a cautionary instruction after sustaining Appellant’s

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objection to this testimony.   Appellant’s Brief at 9.   Appellant asserts that

Weakland’s speculative statement was prejudicial because it could have

caused the jury to believe that “Weakland knew for certain that [Appellant]

had stolen her cell phone.” Id.

     Our standard of review of a trial court’s evidentiary ruling is well settled:

     The admissibility of evidence is solely within the discretion of the
     trial court and will be reversed only if the trial court has abused
     its discretion. An abuse of discretion is not merely an error of
     judgment, but is rather the overriding or misapplication of the law,
     or the exercise of judgment that is manifestly unreasonable, or
     the result of bias, prejudice, ill-will or partiality, as shown by the
     evidence of record.

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)

(quotations and citation omitted).

     The testimony at issue reads as follows:

     [The Commonwealth]: So do you know where that phone came
     from, where they found the phone at? Do you know?

     [Weakland]: I guess on his person.

     [Defense Counsel]: I’m gonna object. Speculation.

     The [c]ourt: Sustained.

     [Weakland]: Yeah.

     The [c]ourt: Sustained. You didn’t see where it ---

     [Defense Counsel]: And ask that it be stricken.

     The [c]ourt: You didn’t see where it came from?

     [Weakland]: No I didn’t see where the officers got it from.

N.T., 3/8/16, at 40-41.

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          We conclude that the trial court did not abuse its discretion in failing to

strike Weakland’s speculative testimony or offer a cautionary instruction.

Instead, the trial court plainly, on its own, directly questioned Weakland to

determine her knowledge regarding the police recovery of the phone. See id.

Thus, there is no possibility that Weakland’s speculative testimony prejudiced

Appellant by causing the jury to believe he stole her cell phone.               This

conclusion is supported by the fact that although Appellant was charged with

robbery, theft by unlawful taking, and receiving stolen property, he was not

convicted of these crimes. Appellant’s second issue does not entitle him to

relief.

          Finally, Appellant argues that the trial court erred by allowing the

Commonwealth, during closing arguments, to identify one of the knives found

on Appellant’s person at the time of his arrest as the knife used during the

incident with Weakland. Appellant contends that this prejudiced him “because

it convinced the jury that the alleged victims were telling the truth when they

claimed [Appellant] had assaulted them with a knife.”

          In reviewing a claim of improper prosecutorial comments, our standard

of review “is whether the trial court abused its discretion.” Commonwealth

v. Hall, 701 A.2d 190, 198 (Pa. 1997). Additionally,

          [W]ith specific reference to a claim of prosecutorial misconduct in
          a closing statement, it is well settled that any challenged
          prosecutorial comment must not be viewed in isolation, but rather
          must be considered in the context in which it was offered. Our
          review of a prosecutor’s comment and an allegation of
          prosecutorial misconduct requires us to evaluate whether a

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J-S21019-18


      defendant received a fair trial, not a perfect trial. Thus, it is well
      settled that statements made by the prosecutor to the jury during
      closing argument will not form the basis for granting a new trial
      unless the unavoidable effect of such comments would be to
      prejudice the jury, forming in their minds fixed bias and hostility
      toward the defendant so they could not weigh the evidence
      objectively and render a true verdict. The appellate courts have
      recognized that not every unwise remark by an attorney amounts
      to misconduct or warrants the grant of a new trial. Additionally,
      like the defense, the prosecution is accorded reasonable latitude,
      may employ oratorical flair in arguing its version of the case to
      the jury, and may advance arguments supported by the evidence
      or use inferences that can reasonably be derived therefrom.
      Moreover, the prosecutor is permitted to fairly respond to points
      made in the defense’s closing, and therefore, a proper
      examination of a prosecutor’s comments in closing requires review
      of the arguments advanced by the defense in summation.

Commonwealth v. Jaynes, 135 A.3d 606, 615, appeal denied, 145 A.3d

724 (Pa. 2016) (quotations and citations omitted).

      Appellant is incorrect that the trial court allowed the Commonwealth to

identify one of the knives found on Appellant’s person at the time of his arrest

as the knife used during the incident.      Rather, the trial court allowed the

Commonwealth to argue the following:

      [Commonwealth]: Ladies and gentlemen, these two knives were
      found on his person and you can reasonably infer based on the
      circumstantial evidence that he had a knife in that bathroom and
      he has two knives on his person he went in and he was in that
      bathroom, puts a blade up against [Weakland] as she told you and
      she said too that phone’s sitting there, sitting there on the corner
      and she feels something on her neck at which time she --- It’s a
      knife.

N.T., 3/9/16, at 150-51.

      Thus, in no way did the Commonwealth affirmatively state that any of

the witnesses or victims identified one of the knives found on Appellant

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following his arrest as the knives used on Weakland and Rockwell. To the

contrary, the record reflects that the Commonwealth argued at closing that

the jury could infer, based on the testimony of Weakland and Rockwell, that

at least one of the two knives found on Appellant’s person were used during

the incident. The certified record supports this inference, as both Weakland

and Rockwell testified that Appellant had threatened them with a knife on the

evening of July 11, 2014, and when the police arrested Appellant later the

same evening, they recovered two knives from his person. N.T., 3/8/16, at

17-21, 36, 61-62. Accordingly, the trial court did not abuse its discretion in

allowing the Commonwealth to raise the inference relating to the knives found

on Appellant after his arrest during closing arguments.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2018




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