J-S59006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BEVERLY BRYANT                             :
                                               :
                       Appellant               :      No. 2445 EDA 2017

              Appeal from the Judgment of Sentence June 2, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009384-2016


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED JANUARY 08, 2019

        Appellant, Beverly Bryant, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following her jury

trial convictions for intimidating a witness or victim, criminal use of a

communication facility, terroristic threats, and possession of an instrument of

crime (“PIC”).1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case. Therefore, we have no need to restate them. Procedurally,

on March 22, 2017, the jury convicted Appellant of one count each of

intimidating a witness or victim, criminal use of a communication facility,

terroristic threats, and PIC. The court sentenced Appellant on June 2, 2017,


____________________________________________


1   18 Pa.C.S.A. §§ 4952(a)(3), 7512(a), 2706(a)(1), and 907(a), respectively.
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to an aggregate term of six (6) to twenty-three (23) months’ incarceration,

plus two (2) years’ probation. On June 12, 2017, new counsel entered an

appearance on Appellant’s behalf “for the duration of post-trial motions.”

(Entry of Appearance, filed 6/12/17). That same day, Appellant filed a timely

post-sentence motion, which the court denied on June 16, 2017.

      On July 11, 2017, counsel filed a motion to withdraw. The court denied

counsel’s motion in an order entered July 20, 2017, which provides as follows:

“And NOW this 20th day of July, 2017, IT IS HEREBY ORDERED that defense

counsel’s motion to withdraw is DENIED. Counsel must preserve [Appellant]’s

right to file a direct appeal prior to withdrawal.     Appointment of appellate

counsel will be considered thereafter.” (Order, entered 7/20/17). Appellant

filed a counseled notice of appeal on July 27, 2017.

      On August 8, 2017, this Court issued a rule to show cause why the

appeal should not be quashed as untimely. On August 23, 2017, the court

permitted trial counsel to withdraw and appointed new appellate counsel on

August 24, 2017. This Court issued on August 24, 2017, a second rule to

show cause why the appeal should not be quashed as untimely.                On

September 1, 2017, Appellant filed a show cause response, explaining a

breakdown in the operations of the court caused Appellant to file her notice of

appeal out of time. On September 13, 2017, this Court issued a per curiam

order referring the issue of the timeliness of Appellant’s notice of appeal to

the merits panel.


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      On October 30, 2017, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant

timely complied on November 11, 2017. On March 9, 2018, Appellant filed a

supplemental Rule 1925(b) statement without leave of court.

      Appellant raises the following issues for our review:

         WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         GUILTY VERDICT FOR INTIMIDATION OF A VICTIM OR
         WITNESS AS APPELLANT’S WORDS WERE MERE NAME-
         CALLING AND NOT INTIMIDATION, AND NO VIDEO EXISTED
         PORTRAYING THE WITNESS AT THE COURTHOUSE?

         WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         GUILTY VERDICT FOR CRIMINAL USE OF COMMUNICATION
         FACILITY AS INSUFFICIENT EVIDENCE EXISTED, SUCH AS
         A VIDEO, THAT APPELLANT USED HER CELL PHONE TO
         FACILITATE THE COMMISSION OF ANY WITNESS
         INTIMIDATION?

         WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         GUILTY VERDICT FOR TERRORISTIC THREATS AS
         APPELLANT’S WORDS WERE MERE NAME-CALLING, WHICH
         WAS EVIDENCED BY [VICTIM] WHO LAUGHED AT
         APPELLANT?

         WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         GUILTY VERDICT FOR POSSESSION OF AN INSTRUMENT OF
         CRIME AS THE CELL PHONE WAS LAWFULLY POSSESSED BY
         APPELLANT    UNDER    CIRCUMSTANCES    MANIFESTLY
         APPROPRIATE AND THERE WAS INSUFFICIENT EVIDENCE
         THAT THE CELL PHONE WAS POSSESSED WITH THE INTENT
         TO USE IT CRIMINALLY?

         WAS THE COMMONWEALTH’S FAILURE TO DISCLOSE AND
         TURN OVER TO THE DEFENSE THAT OFFICER KEVIN KLEIN
         WAS ON A “DO NOT CALL TO TESTIFY” LIST A BRADY
         VIOLATION, AND A MATERIAL FACT THAT SHOULD HAVE
         BEEN PRESENTED TO THE JURY?

(Appellant’s Brief at 7).

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      As a prefatory matter, we must address the timeliness of Appellant’s

appeal. Pennsylvania Rule of Appellate Procedure 903 provides:

          Rule 903. Time for Appeal

              (a) General rule. Except as otherwise prescribed by
          this rule, the notice of appeal required by Rule 902 (manner
          of taking appeal) shall be filed within 30 days after the entry
          of the order from which the appeal is taken.

Pa.R.A.P. 903(a).    “A direct appeal in a criminal proceeding lies from the

judgment of sentence.” Commonwealth v. Patterson, 940 A.2d 493, 497

(Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a

defendant in a criminal case files a timely post-sentence motion, the notice of

appeal shall be filed within 30 days of the entry of the order deciding the

motion.   Pa.R.Crim.P. 720(A)(2)(a).      The denial of a timely post-sentence

motion becomes the triggering event for filing a notice of appeal. Pa.R.Crim.P.

720(A)(2).    Time limitations for taking appeals are strictly construed and

cannot be extended as a matter of grace. Commonwealth v. Valentine,

928 A.2d 346 (Pa.Super. 2007). This Court can raise the matter sua sponte,

as the issue is one of jurisdiction to entertain the appeal. Id. This Court has

no jurisdiction to entertain an untimely appeal. Patterson, supra. Generally,

an appellate court may not enlarge the time for filing a notice of appeal.

Pa.R.A.P. 105(b).      Extension of the filing period is permitted only in

extraordinary circumstances, such as fraud or some breakdown in the court’s

operation. Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995),

appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996).            Such a breakdown

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warrants extension of the appeal period or the grant of an appeal nunc pro

tunc. Id.

      Instantly, the trial court denied Appellant’s post-sentence motion on

June 16, 2017. Appellant’s notice of appeal, therefore, was due on or before

Monday, July 17, 2017. See Pa.R.Crim.P. 720(A)(2)(a). Trial counsel filed a

motion to withdraw on July 11, 2017. The court did not rule on counsel’s

withdrawal motion until July 20, 2017, after expiration of the date for

Appellant to file a timely notice of appeal. In its July 20 th order, the court

denied counsel’s request to withdraw and conditioned counsel’s withdrawal on

counsel preserving Appellant’s direct appeal rights. The trial court, however,

did not acknowledge that any notice of appeal filed on or after July 20, 2017,

would be untimely. The court also failed to enlarge the time to file a notice of

appeal or direct counsel to file a notice of appeal by a specific date. Appellant

subsequently filed a notice of appeal on July 27, 2017. The timing of the trial

court’s denial of counsel’s withdrawal motion coupled with the court’s vague

instructions for counsel to preserve Appellant’s direct appeal rights in the July

20th order constitute a breakdown in the operations of the court, warranting

nunc pro tunc relief. Under these circumstances, we decline to dismiss the

appeal as untimely and proceed to address the issues raised in Appellant’s

brief. See Patterson, supra; Braykovich, supra.

      “[T]o preserve their claims for appellate review, [a]ppellants must

comply whenever the trial court orders them to file a Statement of [Errors]


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Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised

in a Pa.R.A.P. 1925(b) statement will be deemed waived.” Commonwealth

v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005).            “If the judge

entering the order giving rise to the notice of appeal…desires clarification of

the errors complained of on appeal, the judge may enter an order directing

the appellant to file of record in the trial court and serve on the judge a concise

statement of the errors complained of on appeal.” Pa.R.A.P. 1925(b). “The

judge shall allow the appellant at least 21 days from the date of the order’s

entry on the docket for the filing and service of the [Rule 1925(b)] Statement.”

Pa.R.A.P. 1925(b)(2). “In extraordinary circumstances, the judge may allow

for the filing of [an] amended or supplemental Statement nunc pro tunc.” Id.

      “[W]hile [Rule 1925(b)(2)] clearly envisions requests for extensions, it

is not explicit as to the method by which an appellant must proceed. Its plain

language requires an ‘application’ by the appellant within the initial 21-day

period and some assertion…of good cause. But the…Rule provides little more.”

Commonwealth v. Gravely, 601 Pa. 68, 80, 970 A.2d 1137, 1144 (2009).

Consequently, our Supreme Court determined “an appellant who seeks an

extension of time to file a [Rule 1925(b)] Statement must do so by filing a

written application with the trial court, setting out good cause for such

extension, and requesting an order granting the extension.” Id. at 82, 970

A.2d at 1145 (emphasis in original). Potentially, “The failure to file such an

application within the 21-day time limit set forth in Rule 1925(b)(2) will result


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in waiver of all issues not raised by that date.” Id.

      “Under Brady[ v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963)] and subsequent decisional law, a prosecutor has an obligation to

disclose all exculpatory information material to the guilt or punishment of an

accused, including evidence of an impeachment nature.” Commonwealth v.

Roney, 622 Pa. 1, 22, 79 A.3d 595, 607 (2013), certiorari denied, ___ U.S.

___, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014). “To establish a Brady violation,

an appellant must prove three elements: (1) the evidence at issue was

favorable to the accused, either because it is exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.”       Id.    When the

Commonwealth fails to preserve “potentially useful” evidence, as opposed to

materially exculpatory evidence, no due process violation occurs unless the

defendant can prove the Commonwealth acted in bad faith. Commonwealth

v. Chamberlain, 612 Pa. 107, 30 A.3d 381 (2011), certiorari denied, 566

U.S. 986, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012).         “Potentially useful

evidence is that of which no more can be said than that it could have been

subjected to tests, the results of which might have exonerated the defendant.”

Id. at 143, 30 A.3d at 402 (internal quotations marks omitted).

      The following principles apply to challenges to the sufficiency of the

evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at trial

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         in the light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In applying
         [the above] test, we may not weigh the evidence and
         substitute our judgment for the fact-finder. In addition, we
         note that the facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. Any doubts regarding a defendant’s guilt may be
         resolved by the fact-finder unless the evidence is so weak and
         inconclusive that as a matter of law no probability of fact may
         be drawn from the combined circumstances.                    The
         Commonwealth may sustain its burden of proving every
         element of the crime beyond a reasonable doubt by means of
         wholly circumstantial evidence. Moreover, in applying the
         above test, the entire record must be evaluated and all
         evidence actually received must be considered. Finally, the
         [finder] of fact while passing upon the credibility of witnesses
         and the weight of the evidence produced, is free to believe
         all, part or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Susan I.

Schulman, we conclude Appellant’s issues merit no relief.        The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed April 5, 2018, at 6-12) (finding:

(5) Appellant raised Brady claim in supplemental Rule 1925(b) statement,

which she filed without leave of court four months after court ordered her to

file concise statement; thus, Appellant’s Brady issue is waived; even if

Appellant properly preserved her Brady claim, she would not be entitled to

relief; Officer Klein’s alleged placement on “do not call” list in March 2018 has



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no bearing on Appellant’s trial, which occurred in August 2016; even if court

discounted Officer Klein’s testimony, two other witnesses testified to their

observations of underlying incident, and Appellant’s proclamation she had

right to record Victim with her cell phone corroborated witnesses’ testimony;

(1) trial evidence established Appellant threatened to have Victim killed, when

Appellant saw Victim outside courtroom where Victim was to testify against

Appellant’s mother; Appellant then used her cell phone to record Victim talking

to assistant district attorney prosecuting Appellant’s mother’s case; Appellant

also made specific threat to have Victim killed after Victim testified against

Appellant’s mother; record belies Appellant’s claim that she merely called

Victim names; further, surveillance evidence was not required to establish

Appellant’s   culpability,   because   three   eyewitnesses   testified   to   their

observations of Appellant’s conduct; (2) record demonstrates Appellant used

her cell phone to commit offense of intimidation of witness, which is felony;

evidence was sufficient to sustain Appellant’s conviction for criminal use of

communication facility; (4) record reflects Appellant used her cell phone

criminally, namely to threaten and intimidate Victim; evidence was sufficient

to sustain Appellant’s conviction for PIC; (3) evidence established Appellant

threatened Victim with crime of violence when she said to Victim, “I’m going

to have you killed, bitch”; under circumstances here, Appellant communicated

threat to Victim with intent to terrorize Victim; evidence was sufficient to

convict Appellant of terroristic threats). The record supports the trial court’s


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rationale. Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/19




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