Com. v. Lagreca, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JEROME S. LAGRECA Appellant No. 3164 EDA 2014

Appeal from the Judgment of Sentence Dated October 16, 2014 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002243-2014

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.* MEMORANDUM BY SOLANO, J.: FILED AUGUST 17, 2017 Appellant, Jerome S. LaGreca, appeals from the judgment of sentence entered in the Lehigh County Court of Common Pleas following his conviction for harassment (summary offense).1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. See Trial Ct. Op., 1/8/15, at 1-4. Briefly, on April 19, 2014, Appellant contacted HCR ManorCare (“ManorCare”) in Bethlehem, a nursing home and rehabilitation facility where his elderly parents were receiving care. Appellant spoke on the phone with his mother, who then handed the phone to Jenayra Quinones, a nurse’s

aide employed by ManorCare. Appellant’s mother told Ms. Quinones that

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*

Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2709(a)(1).

Appellant was upset and wanted to speak with someone about the care his parents were receiving from ManorCare.

When Ms. Quinones answered the phone, Appellant identified himself and then began a thirty to forty-five-minute harangue to express his dissatisfaction with his parents’ care. Appellant used expletives during the phone call and stated that if the staff at ManorCare did not do their jobs properly, “he would come in there and raise hell and show [them] how to do [their] job physically . . . he would physically push [them] in the room and show [them] how to do [their] care.” Three times, Appellant mentioned a shooting that had occurred in Allentown. He also mentioned “shooting up” ManorCare and spoke about using a gun to harm someone at ManorCare.

Ms. Quinones reported the phone call to her supervisor and later to Officer Keith Fryslin of the Bethlehem Police Department. Ms. Quinones provided a written statement to Officer Fryslin about Appellant’s remarks during the phone call. Later that afternoon, Officer Fryslin contacted Appellant, who acknowledged making the phone call but initially said that he spoke only to his mother and Ms. Quinones may have overheard him. When Officer Fryslin told Appellant that his mother had confirmed handing the phone to Ms. Quinones, Appellant admitted that he spoke with Ms. Quinones, but he denied making threats. Appellant was charged with harassment and disorderly conduct.

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On October 16, 2014, Appellant proceeded to a bench trial. Ms.

Quinones and Officer Fryslin testified for the prosecution, giving an account of the incident consistent with the above summary. During Ms. Quinones’ testimony, the court allowed the Commonwealth to use her police statement to refresh her recollection.

Appellant testified in his own defense, acknowledging that he spoke with Ms. Quinones, but denying that he had threatened to “shoot up” or bring a gun to ManorCare. He estimated that the entire conversation lasted three or four minutes. At the conclusion of the trial, the court found Appellant guilty of harassment and not guilty of disorderly conduct. That same day, Appellant was sentenced to pay a fine of one hundred dollars and the costs of prosecution. Appellant did not file any post-trial or post- sentence motions.

Counsel for Appellant timely filed a notice of appeal on November 14, 2014, and a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 24, 2014. In his Rule 1925(b) statement, Appellant alleged that the evidence was “insufficient to support the verdict and/or the verdict was against the weight of the evidence.” Appellant also alleged that the trial court erred in permitting Ms. Quinones to refresh her recollection of her phone call with Appellant by reviewing the written statement she provided to the police.

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On February 11, 2015, Appellant’s counsel filed a petition to withdraw, stating that Appellant no longer qualified for representation by the Lehigh County Public Defender’s Office because he was convicted of only a summary offense and was sentenced only to pay a fine. On March 4, 2015, this Court granted counsel’s petition to withdraw and ordered Appellant to notify the Prothonotary whether he intended to represent himself or seek new counsel. In response, Appellant asked this Court to remand the case to the trial court to appoint counsel. We issued an order on December 10, 2015, directing the trial court to determine Appellant’s eligibility for court- appointed counsel. After holding a hearing on January 11, 2016, the trial court determined that Appellant was not eligible for court-appointed counsel pursuant to Commonwealth v. Blackham, 909 A.2d 315, 317 (Pa. Super. 2006) (holding that ”an indigent defendant, charged with a summary offense punishable by imprisonment, is not entitled to counsel where the court pre- determines that a sentence of imprisonment is unlikely, and no term of imprisonment is imposed after conviction”), appeal denied, 919 A.2d 954 (Pa. 2007), and Commonwealth v. Smith, 868 A.2d 1253, 1256 (Pa. Super.) (holding that a defendant has no constitutional or statutory right to appointment of counsel in a summary case where imprisonment was not a possible penalty), appeal denied, 877 A.2d 462 (Pa. 2005).

On January 25, 2016, Appellant informed this Court that he wished to proceed with his appeal pro se. We issued a briefing schedule that required

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Appellant to file his brief by October 4, 2016. On November 11, 2016, we dismissed Appellant’s appeal because he had failed to file a brief. On November 29, 2016, Appellant filed a motion to reinstate his appeal, which this Court granted. Appellant filed a brief on January 3, 2017.

In his pro se brief, Appellant appears to be raising the same issues that were raised in his Rule 1925(b) statement: (1) the evidence was insufficient to support the harassment verdict; (2) the verdict was against the weight of the evidence; and (3) the trial court erred in allowing Ms. Quinones to review her written statement so that she could refresh her memory of her phone conversation with Appellant.2

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2 Appellant’s brief is unclear, but, charitably read, the substance of his “Statement of the question involved Pa.R.A.P. 2116” appears to encompass his Rule 1925(b) issues and we therefore have construed it that way. See Appellant’s Brief at 2. The Commonwealth argues that all of Appellant’s claims should be deemed waived because Appellant’s brief “is devoid of adequate legal arguments in support of his assertions.” Commonwealth’s Brief at 4. Although Appellant’s brief is not a model of clarity, we decline to find waiver of all of his issues. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003) (addressing “arguments that can reasonably be discerned” from defective brief “in the interest of justice”), appeal denied, 879 A.2d 782 (Pa. 2005). To the extent that Appellant raises issues in his brief that he did not include in his Pa.R.A.P. 1925(b) statement, those issues are waived. See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this [Rule 1925] (b)(4) are waived”); Commonwealth v. Smith, 917 A.2d 848, 855 (Pa. Super. 2007) (allegation not contained in appellant’s court-ordered Rule 1925(b) statement of matters complained of on appeal is waived for purposes of appeal) (citing Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)).

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Sufficiency of the Evidence Appellant first claims that the evidence was insufficient to support the harassment verdict. We apply the following standard of review:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. . . . When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

As a reviewing court, we may not weigh the evidence or substitute our judgment for that of the fact-finder, who is free to believe all, part, or none of the evidence.

Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa. Super. 2017) (citations omitted).

Harassment is defined in pertinent part as follows:

(a) Offense defined – A person commits the crime of harassment when, with the intent to harass, annoy or alarm another, the person:

(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same[.]

18 Pa.C.S. § 2709(a)(1).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Robert L. Steinberg, we conclude that there was sufficient evidence presented to establish beyond a reasonable doubt that Appellant committed harassment. See Trial Ct. Op. at 5-8 (finding Appellant’s threats to “shoot up” the facility

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and to physically push staff were sufficient to prove harassment). To the extent that Appellant argues that the evidence was insufficient because Ms. Quinones’ account of the phone call was untrue, we note that the trial court, as finder of fact, “is free to believe all, part, or none of the evidence.” Chambers, 157 A.3d at 512. The trial court found Ms. Quinones credible, and we will not disturb that finding on appeal.

Weight of the Evidence

Appellant also argues that the harassment verdict was contrary to the weight of the evidence. Rule 607(A) of the Rules of Criminal Procedure provides:

A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or (3) in a post-sentence motion.

Failure to comply with Rule 607 will result in waiver, even if an appellant includes a weight of the evidence claim in his Pa.R.A.P. 1925(b) statement and the trial court addresses the issue in its Pa.R.A.P. 1925(a) opinion. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009), cert. denied, 559 U.S. 1111 (2010).

Appellant raised his challenge to the weight of the evidence for the first time in his Rule 1925(b) statement. Therefore, that claim is waived. See Sherwood, 982 A.2d at 494. Even if Appellant’s weight claim had been

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preserved, this Court would affirm the trial court’s finding that the claim lacked merit. See Trial Ct. Op. at 5-8 (rejecting weight of the evidence claim for the same reasons as sufficiency claim).

Refreshing Recollection

Appellant’s third claim is that the trial court erred in allowing the prosecutor to refresh Ms. Quinones’ recollection by using her statement to the police. “Questions regarding the admissibility of evidence are . . . matters committed to a trial court’s discretion, and we generally are loathe to disturb them.” Bochetto v. Dimeling, Schreiber & Park, 151 A.3d 1072, 1085 (Pa. Super. 2016).

Pennsylvania Rule of Evidence 612(a) states in part that “[a] witness may use a writing . . . to refresh memory for the purpose of testifying.” This Court uses a three-part test to determine whether the recollection of a witness may be refreshed:

To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness’

present memory is inadequate; (2) that the writing could refresh the witness’ present memory; and (3) that reference to the writing actually does refresh the witness’ present memory.

Dean Witter Reynolds, Inc. v. Genteel, 499 A.2d 637, 641 (Pa. Super. 1985), appeal denied, 522 A.2d 1105 (Pa. 1987).3 The trial court held that

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3 We may cite cases predating the enactment of the Pennsylvania Rules of Evidence to the extent they are in accord with the Rules. Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super.), appeal denied, 4 A.3d 157 (Pa. 2010).

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the Commonwealth satisfied each of these elements. Upon review of the record, we agree with the trial court’s reasoning and discern no abuse of discretion in the trial court’s decision to allow Ms. Quinones to refresh her recollection. See Trial Ct. Op. at 8-9 (finding Commonwealth satisfied the three-part test for refreshing a witness’s memory).

As we affirm primarily on the basis of the trial court’s opinion, the parties are instructed to attach a copy of the trial court’s opinion of January 8, 2015, to any future filing that references this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/17/2017

Circulated 07/21/2017 10:52 AM