Com. v. Baker, T.

Opinion

J-S36027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TELFORD EDWARD BAKER : : Appellant : No. 521 WDA 2022

Appeal from the Judgment of Sentence Entered January 6, 2022 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000494-2021

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: MAY 18, 2023

Appellant, Telford Edward Baker, appeals from the judgment of

sentence entered in the Somerset County Court of Common Pleas, following

his jury trial convictions for aggravated assault, simple assault, recklessly

endangering another person (“REAP”), terroristic threats, and sixteen counts

of witness intimidation.1 We affirm.

The relevant facts and procedural history of this case are as follows.

The Commonwealth charged Appellant with various offenses in relation to a

domestic incident involving his then fiancé, Samantha Johnson (“Victim”). A

jury trial commenced on October 14, 2021. Victim testified that on June 8,

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, 2706(a), and 4952(a), respectively. J-S36027-22

2021, she returned to the residence that she shared with Appellant and

Appellant became upset with her regarding a sandwich that she bought him

for dinner. Appellant began to berate Victim and call her names. Appellant

proceeded to throw several objects at Victim, including the sandwich, a fan,

and a gun scope. Some of the objects struck Victim, resulting in bruises to

her arms and legs. Victim further testified that she walked away from

Appellant and began doing the dishes. Appellant walked over to her and told

her that she needed to leave. Appellant then wrapped both arms around

Victim’s neck and squeezed so hard that she felt like she was going to pass

out. Appellant stated that he was going to kill Victim and that she needed to

get out. At this point, Victim grabbed two kitchen knives for protection and

Appellant grabbed a spray bottle of insect killer. Appellant sprayed the insect

killer at Victim’s face and knocked one knife out of her hand. Appellant then

left the residence for approximately an hour.

When Appellant returned, Victim was preparing to go to sleep on the

couch and had hidden a knife under her pillow. Appellant berated Victim again

and repeated that he would kill her, and she needed to leave. Appellant had

Victim’s hunting rifle in his hand, and Victim retrieved the knife from beneath

her pillow. Appellant took Victim’s phone and walked into another room.

When Victim went to retrieve her phone, she saw Appellant hitting the screen

of her phone repeatedly with the rifle. When she asked Appellant for the

phone, Appellant raised the rifle up to her head, pulled it back and struck her

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in the face with it. Victim testified that blood immediately started pouring out

of her nose and she felt like she might faint. Victim then left the residence

and called 911.

Victim did not wait for the police to arrive and drove herself to the

hospital. Victim received treatment for a broken nose, cuts and bruises on

her body and face, and a concussion. Victim stated that following this incident,

she continues to suffer from migraines and is sensitive to light and screens.

After Appellant was arrested, he continued to regularly call Victim while he

was incarcerated. During these phone calls, Appellant would try to persuade

Victim to drop the charges. Victim testified that Appellant asked her over 15

or 16 times to drop the charges and/or not testify against him.

During cross-examination, Victim acknowledged that she stated on the

911 call that she believed Appellant would tell the police that she stabbed him.

Victim further stated that when Victim approached Appellant to retrieve her

phone, Appellant stated out loud that she stabbed him. Nevertheless, Victim

testified that she did not stab Appellant at any point during the night. After

this line of questioning, the following exchange took place:

[Appellant’s Counsel]: And then you ultimately encountered the police at the hospital, is that right?

[Victim]: Yes.

[Appellant’s Counsel]: Did you tell them about the knife?

[Appellant’s Counsel]: At this point, are you concerned

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about being in trouble?

[Victim]: No, because I grabbed the knife in self-defense because [Appellant] has done physical harm to me before.

(N.T. Trial, 10/15/21, at 2.99).

Appellant’s counsel objected to Victim’s answer on the grounds that

Victim was testifying to prior bad acts prohibited by Pa.R.E. 404(b). The trial

court overruled the objection, noting that defense counsel opened the door to

the information by questioning Victim on why she was not concerned about

telling the police about the knife and raising the issue of self-defense. During

re-direct examination, Victim further explained that she hid the knife under

her pillow that night because she was scared that Appellant would hurt her

based on her prior experiences. Victim testified to two prior incidents where

an argument with Appellant turned physical and Appellant broke Victim’s nose.

State trooper, David Waldschmidt, testified that he responded to

Victim’s 911 call on the night in question. When he arrived at Appellant and

Victim’s residence, he noted that the front door was partially open and there

were droplets of blood on the front porch steps. When he entered, Trooper

Waldschmidt did not find anyone inside the residence. He noted that there

were objects scattered all around the house as if a physical altercation had

taken place. Additionally, there was a trail of blood from the bedroom,

through the living room, and out the front door.

Trooper Waldschmidt also testified that he listened to all the audio

recordings of Appellant’s calls to Victim while he was incarcerated. Trooper

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Waldschmidt stated that there were numerous occasions where Appellant

begged for Victim to drop the charges. Appellant’s tone in speaking to Victim

during these exchanges varied from angry and forceful to apologetic and

pleading. On one occasion, Appellant threated to self-harm if Victim

proceeded with the charges. On other occasions, Appellant told Victim that

she could use his debit card to pay her bills and stated that they could go on

a vacation together if he got out of prison. The Commonwealth submitted

transcripts of relevant portions of these phone conversations into evidence.

Jo Ellen Bowman was qualified as an expert in intimate partner violence

for the purpose of testifying to the dynamics of domestic violence in

relationships and victim behavior. Ms. Bowman testified that she had not

spoken with Victim or Appellant, had not reviewed their file, and did not know

any information about Appellant and/or Victim other than the allegations in

the instant case. Ms. Bowman educated the jury on general information about

domestic violence between intimate partners and explained why some victims

of domestic violence choose to maintain contact with their abuser after an

incident of abuse. During cross-examination, Ms. Bowman reiterated that she

did not know any information as it pertains specifically to Appellant and Victim

and acknowledged that men can also be victims of domestic abuse.

At the conclusion of the evidence, the jury found Appellant guilty of

simple assault, aggravated assault, terroristic threats, REAP, and 16 counts of

witness intimidation. On January 6, 2022, the court sentenced Appellant to

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an aggregate of seven to fifteen years of incarceration. Appellant filed a timely

post-sentence motion on January 11, 2022. On April 19, 2022, the court

partially granted Appellant’s post-sentence motion and modified the grading

of 14 of the 16 witness intimidation convictions from third-degree felony

convictions to second-degree misdemeanor convictions.2 The court denied

the remainder of Appellant’s post-sentence motion. As the grading

modification did not impact the court’s overall sentencing scheme, the court

did not resentence Appellant. Appellant filed a timely notice of appeal on April

29, 2022. On June 1, 2022, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant complied on June 10, 2022.

Appellant raises the following issues for our review:

1. Whether the trial court erred in denying Appellant’s Motion In Limine and Post-Sentence Motion relative to permitting [a] domestic violence expert that had no independent knowledge of the facts of this case despite its inherently prejudicial nature?

2. Whether the trial court erred in denying Appellant’s post- sentence motion relative to permitting [Pa.R.E.] 404(b) evidence during trial despite there being no invocation of a permissible use?

3. Whether the trial court erred in denying Appellant’s Post- Sentence Motion when it decided that the evidence satisfied the sufficiency of the evidence standard for all charges where there was a conviction?

2 The court found that there was sufficient evidence for two of the witness intimidation convictions to remain graded as third-degree felonies.

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4. Whether the trial court erred in denying Appellant’s Post- Sentence Motion when it decided that the evidence was not against the weight of the evidence for all charges where there was a conviction?

5. Whether the trial court abused its discretion in denying Appellant’s Post-Sentence Motion by sentencing [Appellant] consecutively on the charges, and necessarily considering the [Pa.R.E.] 404(b) evidence?

(Appellant’s Brief at 6-7) (reordered for purposes of disposition).

Appellant’s first two issues concern the admissibility of evidence. This

Court’s standard of review for issues regarding the admissibility of evidence is

well settled:

Questions concerning the admissibility of evidence are within the sound discretion of the trial court ... [and] we will not reverse a trial court’s decision concerning admissibility of evidence absent an abuse of the trial court’s 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. [I]f in reaching a conclusion the trial court [overrides] or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal

denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation

marks omitted).

Appellant’s third and fourth issues raise challenges to the sufficiency and

weight of the Commonwealth’s evidence. Appellate review of a challenge to

the sufficiency of the evidence is governed by the following principles:

The standard we apply in reviewing the sufficiency of the

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evidence is whether viewing all the evidence admitted at trial 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)).

Additionally:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

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(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

Appellant’s fifth issue implicates the discretionary aspects of his

sentence. Challenges to the discretionary aspects of sentencing do not entitle

an appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue we conduct a four part analysis to determine: (1) whether

appellant has filed a timely notice of appeal; (2) whether the issue was

properly preserved at sentencing or in a motion to reconsider and modify

sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether

there is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code. Commonwealth v. Hyland, 875

A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d

1057 (2005) (internal citations omitted).

This Court reviews discretionary sentencing challenges based on the

following standard:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

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Instantly, after a thorough review of the record, the briefs of the parties,

the applicable law, and the well-reasoned order and opinion of the Honorable

D. Gregory Geary, we conclude Appellant’s claims merit no relief. The trial

court’s April 19, 2022 order, and July 11, 2022 Rule 1925(a) opinion,

comprehensively discuss and properly dispose of the issues raised on appeal.

(See Order, filed 4/19/22, at 1-4; Trial Court Opinion, filed 7/11/22, at 2-29).

Specifically, regarding Appellant’s first issue, he argues that the trial

court erred by denying Appellant’s motion in limine to preclude Ms. Bowman’s

testimony based on the Commonwealth’s late disclosure of Ms. Bowman as an

expert witness. Nevertheless, the court found that Appellant was not

prejudiced by the late disclosure because the Commonwealth did not

intentionally withhold the information and disclosed Ms. Bowman’s name to

defense counsel as soon as she agreed to testify. Additionally, defense

counsel represented to the court that she would be prepared to cross-examine

Ms. Bowman and did not request a continuance when the court offered both

parties additional time to prepare their cases. The court also found no merit

to Appellant’s claim that Ms. Bowman’s testimony was unduly prejudicial

because her testimony provided relevant information to the jury about the

dynamics of domestic violence, victim responses thereto, and the impact of

domestic violence on victims after being assaulted. Additionally, Ms. Bowman

made clear to the jury that she did not know any information about the history

and dynamics of Appellant’s relationship with Victim, thereby minimizing the

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risk of any potential prejudicial inferences the jury might draw from her

testimony. (See Trial Court Opinion at 2-9). We discern no error in the court’s

evidentiary rulings, and Appellant’s first issue on appeal fails. See Belkap,

supra.

With respect to his second issue, Appellant claims that the trial court

erred in admitting irrelevant and highly prejudicial testimony about prior

instances of violence between Appellant and Victim. Nevertheless, the court

noted that Appellant’s counsel opened the door to the testimony by

questioning Victim about her statements to law enforcement about the knife

that she had during the altercation and raising the issue of whether Victim

was the initial aggressor. Additionally, the risk of prejudice was mitigated by

the court’s clear instruction to the jury that they could not use the testimony

as evidence of Appellant’s propensity to act violently but only for the limited

purpose of evaluating why Victim had a knife on the night in question. (See

Trial Court Opinion at 9-13). We discern no abuse of discretion in the court’s

evidentiary ruling. See Belkap, supra.

Regarding Appellant’s third issue challenging the sufficiency of the

evidence, the court found that the Commonwealth presented sufficient

evidence for the jury to find that Appellant acted with the specific intent to

inflict serious bodily injury required for Appellant’s aggravated assault

conviction. Specifically, Victim testified that Appellant repeatedly stated that

he was going to kill Victim, threw various objects at her, sprayed insect killer

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at her face, squeezed her neck so tight that she could hardly breathe, and

struck her in the face with a rifle with enough force to cause a broken nose

and a concussion. The court further explained that this evidence was sufficient

for the jury to find that Appellant intentionally, knowingly or recklessly caused

bodily injury to Victim to sustain his simple assault conviction. The jury was

free to believe Victim’s version of events and could reasonably conclude from

her testimony that the incident was not a “fight or scuffle entered into by

mutual consent.”

Regarding his terroristic threats conviction, the court found that

Appellant’s threats to kill Victim were preceded and followed by acts of

physical violence against Victim, providing a sufficient basis for the jury to

infer that Appellant threatened Victim with the intent to terrorize her.

Regarding Appellant’s REAP conviction, the court found that Appellant’s

actions in striking her in the face with a hunting rifle with such force as to

cause a broken nose and a concussion was sufficient for the jury to find that

Appellant placed Victim in risk of serious, permanent disfigurement, or

protracted loss or impairment of the function of a bodily member or organ.

Regarding the witness intimidation convictions, the court found that

Victim’s testimony that Appellant asked her to drop the charges over 15 or 16

times was sufficient evidence to sustain Appellant’s 14 counts of witness

intimidation charges, graded as second-degree misdemeanors. Additionally,

the transcripts of the phone calls submitted by the Commonwealth show that

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on one occasion, Appellant offered Victim money from his wallet and the use

of his debit card, and on another occasion, Appellant told Victim to pack her

bags to go on vacation as soon as he gets out prison. Taken together with

Appellant’s pleas and demands for Victim to drop the charges in the same

conversations, the court determined that there was sufficient evidence for the

jury to find that Appellant offered Victim a pecuniary or other benefit to sustain

two convictions of witness intimidation graded as third-degree felonies. (See

Trial Court Opinion at 16-26); (Order at 1-4). Viewing the evidence in the

light most favorable to the Commonwealth as the verdict winner, we agree

with the trial court that there was sufficient evidence to sustain all of

Appellant’s convictions. See Jones, supra.

With respect to Appellant’s fourth issue, Appellant does not attack the

credibility of any of the Commonwealth’s witnesses or raise any issue with the

jury’s resolution of any inconsistencies in the testimony or evidence

presented. Rather, Appellant merely reiterated his arguments about the

sufficiency of the evidence. (See Trial Court Opinion at 26-29). Thus, we

agree with the trial court that Appellant failed to establish that the jury’s

verdict was against the weight of the evidence. See Champney, supra.

With respect to Appellant’s final issue, Appellant timely filed a notice of

appeal, and preserved his sentencing issue in a timely filed post-sentence

motion and in a Rule 2119(f) statement. Further, Appellant’s claim that the

court imposed an excessive sentence as a result of reliance on an

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impermissible factor raises a substantial question. See Commonwealth v.

Allen, 24 A.3d 1058, 1064-65 (Pa.Super. 2011) (holding that substantial

question is raised when appellant alleges that his sentence is excessive

because of trial court’s reliance on impermissible factors). Nevertheless, we

agree with the trial court that there is no merit to Appellant’s claim. The court

sentenced Appellant to an aggregate sentence of seven to fifteen years of

incarceration, which falls within the standard range of the sentencing

guidelines. The court stated on the record that it fashioned the sentence

based on the serious and violent nature of Appellant’s conduct and Appellant’s

apparent lack of remorse. The court further noted that any lesser sentence

would have depreciated the seriousness of the offenses. The court made clear

that it did not consider impermissible factors such as Appellant’s prior bad acts

in sentencing but based its decision solely on Appellant’s conduct relative to

the convictions at issue here. The court imposed only two of Appellant’s

sentences consecutively, and imposed no further penalty on numerous other

counts for which Appellant was convicted. (See Trial Court Opinion at 13-15).

We discern no abuse of discretion in the court’s sentence. See McNabb,

Accordingly, we agree with the trial court that all of Appellant’s issues

on appeal are without merit and we affirm the judgment of sentence on the

basis of the trial court’s order and opinion.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/18/2023

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