Opinion
J-S43006-17 No. 1285 WDA 2016
10-25-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. GREGORY DAVID HOWARD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered October 1, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-CR-0005467-2014 BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J. MEMORANDUM BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Gregory David Howard, appeals from the October 1, 2015 judgment of sentence imposing an aggregate 20 to 40 years of incarceration for two counts of robbery, one count of aggravated assault, one count of simple assault, one count of unlawful restraint, one count of theft by unlawful taking, one count of receiving stolen property, and one count of conspiracy. Also before us are Appellant's pro se applications for appointment of new counsel. We affirm the judgment of sentence and deny the applications for appointment of new counsel.
18 Pa.C.S.A. §§ 3701(a)(1)(i) and (ii), 2702(a)(1), 2701(a)(1), 2902(a)(1), 3921(a), 3925(a), and 903(a)(1), respectively. --------
The trial court summarized the pertinent facts:
The charges in this matter arise from an incident that occurred on October 21, 2014, in West Newton, Westmoreland County, Pennsylvania. The facts set forth herein are derived from testimony presented at trial of this matter that occurred between July 6 and July 9, 2015.
Codefendant Brandon Danilchak testified that two days before the crime, he, [Appellant], and an individual named Derrell Adams met at [Appellant's] residence to discuss a potential home invasion. Danilchak stated that [Appellant] and Adams spoke with him about an older woman who had loaned money to Adams. They believed that she would have a large amount of cash inside her home.
Adams described the layout of the house, and that [Appellant] had stated that he was familiar with the area where the home was located. On the morning of October 21, 2014, [Appellant] picked up Danilchak from his apartment at approximately 5 a.m. Danilchak testified that he, [Appellant], Lamont Dixon, and Darrell Adams all agreed that they would commit the home invasion. Adams again instructed the group regarding the layout of the home. [Appellant] supplied the group with gloves to avoid leaving fingerprints at the crime scene, and they departed in Dixon's vehicle, a white Chevy Malibu.
Frances Tekavec, a 91-year-old woman, was at her residence in West Newton on October 21, 2014, at approximately 6:30 a.m. when employees from Levin's Furniture arrived to deliver two mattresses that she had ordered. Roughly five minutes after the deliverymen departed, a Caucasian male, later identified as Brandon Danilchak, knocked on her door, stating that he was from Levin's furniture, and had forgotten to have her sign a receipt. The man stepped in to her home, and as Ms. Tekavec searched for a pen, another individual, described as a tall African American male and later identified as Lamont Dixon, entered her home wearing a black hoodie sweatshirt. As he entered, he grabbed the victim's shoulders and threw her across the kitchen. Her head hit the refrigerator, and as she landed on the ground on her back, he held a knife to her side and demanded money. The victim stated that she had no money except what was in her purse. The individual inquired as
to the location of her purse, and when the victim indicated it was in her bedroom, the individual dragged the victim into the bedroom, as she could not walk due to the fall. The individual removed approximately $30 from her purse. He then opened her jewelry chest and emptied two drawers which were filled with various types of jewelry. He also removed the victim's jewelry from her person. The first individual then approached the victim's wall safe, but was unsuccessful in opening it without a key. When the victim informed him that she did not wish to give him the key, he held a knife to the victim's small dog and said that if she did not give him the key, he would kill her dog.
The victim then noted that a third individual, a heavyset African-American later identified by the victim as [Appellant], entered her home. The victim noted that he was wearing a robe and a mask. [Appellant] grabbed her and threw her on her bed. He then threw a sheet over her face to impede her vision. The victim's wrists were bound with electrical cord, and her ankles were bound with a surgical stocking. The victim noted that her ankles and wrists were bound so tightly that her flesh was removed. After the three individuals finished removing items and cash from the safe and other items from her home, they departed. It took the victim approximately 20 minutes to work her bindings until she was able to call 9-1-1. The victim was transported to the hospital, where she was diagnosed with a broken neck and broken vertebrae in her back. She testified that she still suffers from terrible pain, which limits her ability to walk. The three individuals removed approximately $13,000 worth of items. The victim also noted that she had reported to the police a strange vehicle outside of her home the day prior, which she identified as a white sedan.
Bobbi Drudl testified that she was the girlfriend of codefendant Lamont Dixon on the day of the crime. Drudl testified that on the morning of October 21, 2014, she woke to find that her car was missing, which she identified as a white Chevy Malibu. Drudl stated that she was unnerved because she needed the car to drive to work. She attempted to call Dixon, but his phone was turned off. She stated that at roughly 8 a.m., Dixon finally contacted her using his uncle, [Appellant's] cell phone. Dixon stated that he was on his way back to Drudl's home. Drudl stated that when Dixon returned, he was wearing a black hoodie sweatshirt. He left again for a few moments, and when he returned, he handed Drudl two $100 bills and stated
that she should use the money to pay his cell phone bill, keep $40, and save $100. Drudl and Dixon then got into the car. Drudl asked Dixon where the money came from. Dixon stated that he had robbed somebody. When Drudl inquired further, Dixon stated that he had robbed an old lady.
When the pair arrived at Dixon's apartment, Dixon removed jewelry and a few gold coins from his pockets and laid them on Drudl's front seat. Dixon told Drudl to keep the jewelry in her purse. While Drudl was driving to work, she received a call from [Appellant] asking where he could find Dixon. He called twice more, each time asking the whereabouts of Dixon. Soon after, Dixon called Drudl, using [Appellant's] cell phone, and told her to have a good day. That same day, Cindy Danilchak testified that she received a call from [Appellant's] cell phone number inquiring whether she would be available to travel to a nearby pawnshop to pawn some items.
On October 22, 2014, Dixon and Drudl read an article online regarding the robbery. Dixon stated this was not how it was supposed to happen.
Sergeant Scott Sokol of the Rostraver Township Police Department testified that he responded to a report of a home invasion at the victim's home on October 21, 2014. Sergeant Sokol noted footprints outside of the home in the snow, which led to a tire burnout in the grass. Sergeant Sokol also eventually recovered two pairs of latex gloves, and orange garments that codefendant Dixon later stated they used to cover their faces. Officer Michael Sethman, who responded to the call, testified that the piece of paper that had been handed to the victim by the first individual was actually a paystub for Bobbi Drudl.
Bridget Ross testified that in the early morning hours of October 23, 2014, Lamont Dixon began 'beating' on her back door. She testified to her encounter with Dixon:
Ross: I was with, um, a guy that he came in to talk and he beat on the door, he was crying, he expressed that him and a couple individuals had did a home robbery and he didn't want to live no more with his past background, that they were going to give him 20 years to life, and he just wanted somebody to give him a gun so he could just end his
Trial Court Opinion, 6/9/16, at 1-5 (record citations omitted).life now because he was in so much remorse. He also stated that the other two individuals involved were [Appellant] and Brandon Danilchak.
At trial, Appellant chose to represent himself with standby counsel present. On July 9, 2015, a jury found Appellant guilty of the aforementioned charges. Appellant filed a timely post-sentence motion, which the trial court denied on June 9, 2016. Appellant did not file a timely appeal, but appointed counsel successfully petitioned for the right to file this nunc pro tunc direct appeal.
Appellant raises several pre-trial issues, including the Commonwealth's alleged failure to turn over exculpatory evidence and disclose a plea agreement with one of Appellant's codefendants. Appellant also argues he was denied his right to a fair trial because the trial court did not provide civilian clothes to his inmate defense witnesses. Appellant also argues he was deprived of his right to a fair trial because he had a disciplinary complaint pending against standby counsel. Finally, Appellant challenges the sufficiency of the evidence in support of each of his convictions. Appellant's Brief at 5.
We have reviewed the parties' briefs, the trial court opinion, the applicable law, and the record. We conclude that the trial court's June 9, 2016 opinion accurately addresses all of Appellant's arguments. Concerning Appellant's assertions of various pretrial errors, we observe that Appellant withdrew all of his pretrial motions and thereby waived the issues he raised therein. Trial Court Order, 4/22/14.
Concerning Appellant's fair trial arguments, the record indicates that Appellant never requested civilian clothes for his incarcerated defense witnesses. Acting as his own attorney, Appellant had the duty to procure civilian clothes for his witnesses or at least ask standby counsel to do so. He failed to do so. This argument lacks merit. Appellant cites no law providing that the trial court had an affirmative obligation to provide civilian clothes, nor does Appellant cite any law providing that reversible error occurs where defense witnesses (as opposed to the defendant himself) appear in court wearing prison garb.
The trial court correctly notes that the record fails to support Appellant's contention that the Commonwealth failed to produce exculpatory evidence or failed to disclose plea agreements with Appellant's codefendants. Both codefendants took the stand and denied any such agreement. Appellant also argues his cell phone records were exculpatory. As the trial court explains, Appellant's cell phone records were examined extensively at trial and the Commonwealth used them to corroborate the testimony of prosecution witnesses. Appellant cannot satisfactorily explain why his cell phone records would have exonerated him. He also does not explain why he could not have subpoenaed them himself.
Appellant's argument that he was denied a fair trial because the Commonwealth failed to call every investigating officer to the witness stand fails because, as the trial court explains, the law does not require the Commonwealth to do so. The prosecution is free to determine what evidence is needed to prove its case beyond a reasonable doubt. Further, Appellant could have subpoenaed any witness he believed could provide exculpatory information.
Next, we observe that Appellant's strained relationship with standby counsel does not merit a new trial. Appellant does not identify any action or inaction on standby counsel's part that prejudiced Appellant's case, nor does he explain how any such action or inaction would entitle him to relief, given his choice to proceed pro se.
The trial court properly rejected Appellant's sufficiency of the evidence arguments. As recited above, the record contains overwhelming evidence of Appellant's guilt. The jury was free to credit the testimony of the various witnesses, including the codefendants, who implicated Appellant.
Finally, we deny Appellant's pro se applications for appointment of new appellate counsel. The record indicates Appellant's persistent efforts, by numerous letters, to control appellate counsel's professional judgment. Counsel's brief was sufficient to facilitate our review of this case, and we decline to delay this matter by remanding for new counsel and a new briefing schedule.
Judgment of sentence affirmed. Applications for relief denied. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/25/2017
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