J-S76010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : CLINTON D. OXFORD : : No. 1349 EDA 2017 Appellant :
Appeal from the PCRA Order March 20, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001602-2014
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 11, 2018
Clinton Oxford appeals from the order dismissing his petition pursuant
to the Post Conviction Relief Act (“PCRA”). He contends his trial counsel was
ineffective and he received an illegal sentence. Neither argument merits relief,
and we affirm.
The Commonwealth charged Oxford with two counts of terroristic
threats, one count of stalking, and one count of harassment based upon his
behavior towards his probation officer. Specifically, he was charged with
sending multiple threatening e-mails and appearing at the home where he
believed she lived. The jury convicted him on all counts.
____________________________________________
Retired Senior Judge assigned to the Superior Court. J-S76010-17
During the jury trial, the trial court repeatedly admonished Oxford’s
counsel on his unprofessional demeanor, failure to follow instructions following
a ruling, and argumentative questioning of the victim. Most of these
admonishments occurred outside the presence of the jury.
However, trial counsel’s conduct culminated in a confrontation at the
conclusion of his closing argument. In a side-bar, the trial court indicated its
displeasure at trial counsel’s failure to abide by a prior evidentiary ruling in
his closing argument:
THE COURT: And I could not have been more clear that you were not to argue the existence of a manual. It is – that’s not in evidence and we have no idea if it exists. They’re getting a curative instruction about that part of your closing. If you choose to disregard my instructions over and over, then you leave me no choice.
…
Ladies and gentlemen of the jury, you’re instructed to completely disregard any mention of an employee manual that defense counsel made in his closing arguments.
Defense counsel was specifically instructed by the [c]ourt in the robing room not to make any mention of an employee manual. That is not in evidence and that we have no knowledge of it even existing. He chose to willfully disregard my instruction.
So I am instructing you to completely disregard any mention of the existence or nonexistence of an employee manual pursuant to his closing argument. Give it no consideration whatsoever.
Also, do not hold it against the defendant, Clinton Oxford, that his counsel chose to disregard the instructions of the [c]ourt.
N.T., Jury Trial, 9/11/14, at 48-49.
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In his counseled, amended PCRA petition, Oxford asserted counsel’s
behavior at trial constituted ineffective assistance of counsel.
We start by determining whether the PCRA court’s factual findings are
supported by the record. See Commonwealth v. Ford, 44 A.3d 1190, 1194
(Pa. Super. 2012). In doing so, we read the record in the light most favorable
to the prevailing party. See id. If this review reveals support for the PCRA
court’s credibility determinations and other factual findings, we may not
disturb them. See id. See also Commonwealth v. Santiago, 855 A.2d 682,
694 (Pa. 2004). We, however, “afford no such deference to its legal
conclusions.” Ford, 44 A.3d at 1194 (citations omitted).
Oxford’s argument is a claim of trial counsel’s ineffectiveness. We
assume counsel’s effectiveness and Oxford bore the burden of proving
otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super.
2017). To do so, Oxford was required to plead and prove the underlying issue
has arguable merit, counsel acted pursuant to an objectively reasonable
strategy, and actual prejudice resulted from counsel’s act or failure to act.
See Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super.
2012). A failure to satisfy any prong of the test will require rejection of the
entire claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
The PCRA court found Oxford had failed to establish he was prejudiced
by trial counsel’s behavior. “Prejudice is established if there is a reasonable
probability that, but for counsel’s errors, the result of the proceedings would
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have been different. A reasonable probability is probability sufficient to
undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d
701, 707 (Pa. Super. 2013) (en banc) (citations and internal quotation marks
omitted).
Oxford contends the PCRA court’s focus in evaluating prejudice was too
narrow. Specifically, he asserts the court failed to consider “the probable effect
of [trial counsel’s] conduct on the jury throughout the course of the entire
trial.” Appellant’s Brief, at 14. He does not elaborate what he believes the
probable effect was. Presumably, he is arguing counsel’s conduct biased the
jury when it evaluated the veracity of the Commonwealth’s evidence.
After reviewing the entirety of the transcript, we conclude Oxford cannot
establish a reasonable probability that the outcome of his trial would have
been different absent counsel’s conduct. The Commonwealth presented a
plethora of bizarre e-mails Oxford sent to the victim. See N.T., Jury Trial,
9/10/14, at 39, 60, 70-73, 83, 131, 133-134. These e-mails variously
professed Oxford’s love for the victim, his desire to end “society as we know
it,” his desire to harm those who stood in his way, and the fact that he had
been at her old home late at night. Furthermore, Oxford was seen peering into
a home where the victim’s child spent significant time. See id., at 101. The
victim testified that, given Oxford’s violent history, she felt threatened by this
conduct. See id., at 139, 158, 161.
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This overwhelming evidence of Oxford’s guilt led to the jury’s verdict.
Since Oxford has failed to establish a reasonable probability that the verdict
would have been different if counsel had acted appropriately, this issue merits
no relief on appeal.
Next, Oxford argues his sentence for stalking should have merged with
his sentences for terroristic threats. He believes the terroristic threats charges
constitute the sole incidents of threatening behavior that form the basis of the
stalking charge. He is mistaken.
Oxford is correct in noting this claim presents a challenge to the legality
of his sentence. See Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.
Super. 2012). The claim is therefore not waived, even though it was raised
for the first time in his appellate brief. See Commonwealth v. Campbell,
505 A.2d 262 (Pa. Super. 1986) (en banc). Merger is appropriate only when
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J-S76010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : CLINTON D. OXFORD : : No. 1349 EDA 2017 Appellant :
Appeal from the PCRA Order March 20, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001602-2014
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 11, 2018
Clinton Oxford appeals from the order dismissing his petition pursuant
to the Post Conviction Relief Act (“PCRA”). He contends his trial counsel was
ineffective and he received an illegal sentence. Neither argument merits relief,
and we affirm.
The Commonwealth charged Oxford with two counts of terroristic
threats, one count of stalking, and one count of harassment based upon his
behavior towards his probation officer. Specifically, he was charged with
sending multiple threatening e-mails and appearing at the home where he
believed she lived. The jury convicted him on all counts.
____________________________________________
Retired Senior Judge assigned to the Superior Court. J-S76010-17
During the jury trial, the trial court repeatedly admonished Oxford’s
counsel on his unprofessional demeanor, failure to follow instructions following
a ruling, and argumentative questioning of the victim. Most of these
admonishments occurred outside the presence of the jury.
However, trial counsel’s conduct culminated in a confrontation at the
conclusion of his closing argument. In a side-bar, the trial court indicated its
displeasure at trial counsel’s failure to abide by a prior evidentiary ruling in
his closing argument:
THE COURT: And I could not have been more clear that you were not to argue the existence of a manual. It is – that’s not in evidence and we have no idea if it exists. They’re getting a curative instruction about that part of your closing. If you choose to disregard my instructions over and over, then you leave me no choice.
…
Ladies and gentlemen of the jury, you’re instructed to completely disregard any mention of an employee manual that defense counsel made in his closing arguments.
Defense counsel was specifically instructed by the [c]ourt in the robing room not to make any mention of an employee manual. That is not in evidence and that we have no knowledge of it even existing. He chose to willfully disregard my instruction.
So I am instructing you to completely disregard any mention of the existence or nonexistence of an employee manual pursuant to his closing argument. Give it no consideration whatsoever.
Also, do not hold it against the defendant, Clinton Oxford, that his counsel chose to disregard the instructions of the [c]ourt.
N.T., Jury Trial, 9/11/14, at 48-49.
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In his counseled, amended PCRA petition, Oxford asserted counsel’s
behavior at trial constituted ineffective assistance of counsel.
We start by determining whether the PCRA court’s factual findings are
supported by the record. See Commonwealth v. Ford, 44 A.3d 1190, 1194
(Pa. Super. 2012). In doing so, we read the record in the light most favorable
to the prevailing party. See id. If this review reveals support for the PCRA
court’s credibility determinations and other factual findings, we may not
disturb them. See id. See also Commonwealth v. Santiago, 855 A.2d 682,
694 (Pa. 2004). We, however, “afford no such deference to its legal
conclusions.” Ford, 44 A.3d at 1194 (citations omitted).
Oxford’s argument is a claim of trial counsel’s ineffectiveness. We
assume counsel’s effectiveness and Oxford bore the burden of proving
otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super.
2017). To do so, Oxford was required to plead and prove the underlying issue
has arguable merit, counsel acted pursuant to an objectively reasonable
strategy, and actual prejudice resulted from counsel’s act or failure to act.
See Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super.
2012). A failure to satisfy any prong of the test will require rejection of the
entire claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
The PCRA court found Oxford had failed to establish he was prejudiced
by trial counsel’s behavior. “Prejudice is established if there is a reasonable
probability that, but for counsel’s errors, the result of the proceedings would
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have been different. A reasonable probability is probability sufficient to
undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d
701, 707 (Pa. Super. 2013) (en banc) (citations and internal quotation marks
omitted).
Oxford contends the PCRA court’s focus in evaluating prejudice was too
narrow. Specifically, he asserts the court failed to consider “the probable effect
of [trial counsel’s] conduct on the jury throughout the course of the entire
trial.” Appellant’s Brief, at 14. He does not elaborate what he believes the
probable effect was. Presumably, he is arguing counsel’s conduct biased the
jury when it evaluated the veracity of the Commonwealth’s evidence.
After reviewing the entirety of the transcript, we conclude Oxford cannot
establish a reasonable probability that the outcome of his trial would have
been different absent counsel’s conduct. The Commonwealth presented a
plethora of bizarre e-mails Oxford sent to the victim. See N.T., Jury Trial,
9/10/14, at 39, 60, 70-73, 83, 131, 133-134. These e-mails variously
professed Oxford’s love for the victim, his desire to end “society as we know
it,” his desire to harm those who stood in his way, and the fact that he had
been at her old home late at night. Furthermore, Oxford was seen peering into
a home where the victim’s child spent significant time. See id., at 101. The
victim testified that, given Oxford’s violent history, she felt threatened by this
conduct. See id., at 139, 158, 161.
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This overwhelming evidence of Oxford’s guilt led to the jury’s verdict.
Since Oxford has failed to establish a reasonable probability that the verdict
would have been different if counsel had acted appropriately, this issue merits
no relief on appeal.
Next, Oxford argues his sentence for stalking should have merged with
his sentences for terroristic threats. He believes the terroristic threats charges
constitute the sole incidents of threatening behavior that form the basis of the
stalking charge. He is mistaken.
Oxford is correct in noting this claim presents a challenge to the legality
of his sentence. See Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.
Super. 2012). The claim is therefore not waived, even though it was raised
for the first time in his appellate brief. See Commonwealth v. Campbell,
505 A.2d 262 (Pa. Super. 1986) (en banc). Merger is appropriate only when
two distinct criteria are satisfied: “[(]1) the crimes arise from a single criminal
act; and [(]2) all of the statutory elements of one of the offenses are included
within the statutory elements of the other.” Commonwealth v. Baldwin,
985 A.2d 830, 833 (Pa. 2009).
The crime of stalking requires, among other elements, a finding that the
defendant engaged in a course of conduct that places the victim in reasonable
fear of bodily injury or causes substantial emotional distress to the victim. See
18 Pa.C.S.A. § 2709.1(a)(2). In contrast, the crime of terroristic threats does
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not require a course of conduct; a single threat is sufficient. See 18 Pa.C.S.A.
§ 2706(a)(1).
Here, the two terroristic threats charges are based upon two separate
e-mails sent by Oxford to the victim. While these e-mails are part of the basis
for the stalking charge, they are far from the only incidents that support the
jury’s verdict that Oxford engaged in a course of conduct that placed the victim
in reasonable fear of bodily injury or caused her substantial emotional distress.
A multitude of other weird and menacing e-mails were presented to the jury.
Additionally, the Commonwealth presented evidence that Oxford was
surveilling the house where he believed the victim lived, and the house where
her child lived. Thus, the factual basis for the charge of stalking is based upon
criminal acts beyond those necessary to establish the bare elements of the
two terroristic threats charges. See Commonwealth v. Orie, 88 A.3d 983,
1020 (Pa. Super. 2014). The charges do not merge.
As we conclude neither of Oxford’s issues on appeal merit relief, we
affirm the order dismissing his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/11/18
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