Com. v. Henderson, A. (memorandum)

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J-A27017-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. ARTHUR LAMONT HENDERSON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1155 WDA 2013 Appeal from the Judgment of Sentence Entered March 26, 2013, In the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CP-02-CR-0001873-2012 and CP-02-CR-0001874-2012. BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 23, 2014 Appellant, Arthur Lamont Henderson, appeals from the judgment of sentence entered following his conviction of fifty-three crimes stemming from multiple violent robberies and sexual attacks on women in the suburbs of Pittsburgh. We affirm. We summarize the procedural history of this case as follows.1 Appellant was charged with over fifty crimes in connection with the January 2012 violent robberies of multiple women and several men, and the rapes and sexual assaults of three women. Subsequently, the trial court denied Appellant’s motions to sever and suppress evidence, as well as his petition 1 For a more detailed presentation of the factual and procedural history of this matter, we direct the reader to the redacted version of the opinion authored by the trial court. See Trial Court Opinion, 10/23/13, at 1-7. J-A27017-14 for writ of habeas corpus. On September 6, 2012, the Allegheny County Public Defender’s Office moved to withdraw representation of Appellant, and the motion was granted. Appellant then motioned for appointment of counsel. The trial court granted that motion and the Allegheny County Office of Conflict Counsel was appointed to represent Appellant. On September 17, 2012, Attorney Richard Narvin, chief counsel of the Office of Conflict Counsel, entered his appearance on behalf of Appellant. On February 4, 2013, Attorney Narvin filed a motion to withdraw as counsel on behalf of Appellant. A colloquy and waiver-of-counsel hearing was held on February 4, 2013. A jury trial commenced on February 5, 2013 and concluded on February 11, 2013. Appellant represented himself at trial, with Mr. Narvin and his associate acting as stand-by counsel. Appellant was found guilty of all charges except those involving a male robbery victim. On March 5, 2013, Appellant filed a motion for appointment of counsel for sentencing through appeal and to postpone sentencing. The trial court entered an order denying postponement of sentencing and an order granting appointment of conflict counsel. On March 26, 2013, the trial court sentenced Appellant to serve an aggregate term of incarceration of sixty-one to one hundred twenty-two years. The trial court issued a sentence of “no further penalty” on forty-two -2- J-A27017-14 of the charges. Appellant filed post-sentence motions, which were denied. This appeal followed. Appellant presents the following issues for our review: I. DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S] MOTION TO SUPPRESS WHERE, IF ALL DELIBERATE AND MATERIAL OMISSIONS AND MISSTATEMENTS WERE PROPERLY EXTRACTED, THE FOUR CORNERS OF THE AFFIDAVIT FAILED TO ESTABLISH PROBABLE CAUSE TO JUSTIFY THE SEARCH AND SEIZURE OF [APPELLANT’S] DNA AND PERSONAL BELONGINGS? II. DID THE TRIAL COURT VIOLATE [APPELLANT’S] CONSTITUTIONAL RIGHTS TO SELF-REPRESENTATION, DUE PROCESS, AND A FAIR TRIAL WHEN IT FORCED [APPELLANT], WHO PROCEEDED PRO SE, TO REMAIN SEATED AT THE DEFENSE TABLE AT ALL TIMES THROUGHOUT THE COURSE OF TRIAL? III. DID THE TRIAL COURT VIOLATE [APPELLANT’S] CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL BY REFUSING TO APPOINT HIM NEW TRIAL COUNSEL EVEN THOUGH [APPELLANT’S] TRIAL COUNSEL REFUSED TO SUBPOENA AND CALL CRITICAL WITNESSES, WAS UNPREPARED FOR TRIAL, AND THERE WAS NOTHING TO SUPPORT THE TRIAL COURT’S BELIEF THAT [APPELLANT] SOUGHT NEW COUNSEL MERELY TO DELAY TRIAL? IV. DID TRIAL COURT ABUSE ITS DISCRETION IN REFUSING TO APPOINT [APPELLANT] NEW TRIAL COUNSEL WHERE THAT DECISION WAS INFLUENCED BY THE COURT’S PARTIALITY TOWARDS THE COMMONWEALTH? V. DID THE TRIAL COURT VIOLATE [APPELLANT’S] CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL AT SENTENCING WHERE [APPELLANT] SPECIFICALLY REQUESTED TO BE REPRESENTED BY COUNSEL AND NEVER WAIVED THIS RIGHT? VI. DID THE TRIAL COURT ABUSE ITS DISCRETION BY NOT ALLOWING [APPELLANT] TO PRESENT VIDEO SURVEILLANCE -3- J-A27017-14 FOOTAGE OF HIMSELF AT THE MEADOWS CASINO ON JANUARY 9, 2012, WHERE THAT EVIDENCE WAS BOTH RELEVANT AND CRITICAL TO [APPELLANT’S] DEFENSE? VII. DID TRIAL COURT ABUSE ITS DISCRETION BY SENTENCING [APPELLANT] TO A MANIFESTLY UNREASONABLE AND EXCESSIVE SENTENCE OF INCARCERATION WHERE THE COURT FAILED TO ABIDE BY THE MANDATES OF 42 Pa.C.S. §9721(b), WHICH REQUIRES THE COURT TO CONSIDER THE RECOMMENDED SENTENCING GUIDELINES AT THE SENTENCING HEARING? Appellant’s Brief at 8-9. Appellant first argues that the trial court erred in denying his motion to suppress physical evidence. Appellant contends that the four corners of the affidavit failed to establish probable cause. He asserts that the affidavit contains deliberate misstatements, which should have been extracted by the trial court, and omissions for the purpose linking Appellant to the sexual assaults. The standard of review an appellate court applies when considering an order denying a suppression motion is well-established. An appellate court may consider only the Commonwealth’s evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004)). Where the record supports the factual findings of the trial court, the appellate court is bound by those facts and may reverse only if -4- J-A27017-14 the legal conclusions drawn therefrom are in error. Id. However, it is also well settled that the appellate court is not bound by the suppression court’s conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003)). With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt. Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) (citations omitted). In addition, questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). Moreover, we are aware that Pennsylvania Rule of Criminal Procedure 581, which addresses the suppression of evidence, provides in relevant part as follows: (H) The Commonwealth shall have the burden . . . of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. Pa.R.Crim.P. 581(H). The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the “right of each individual to be let alone.” -5- J-A27017-14 Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990). Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002). Under both state and federal constitutions, search warrants must be supported by probable cause. Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa. Super. 2012), appeal denied, 57 A.3d 68 (Pa. 2012). Pennsylvania Rule of Criminal Procedure 203 addresses the requirements for the issuance of a search warrant and provides, in pertinent part, as follows: Rule 203. Requirements for Issuance (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits. Pa.R.Crim.P. 203(B). In [Pennsylvania], the question of whether probable cause exists for the issuance of a search warrant must be answered according to the totality of the circumstances test articulated in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), and its Pennsylvania progeny, which incorporates the reasoning of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the magistrate acting as the issuing authority is to make a practical, common sense assessment of whether, given all the circumstances set forth in the affidavit, a fair probability exists that contraband or evidence of a crime will be found in a particular place. A search warrant is defective if the issuing authority has not been supplied with the necessary information. The chronology established by the affidavit of probable cause must be evaluated according to a common sense determination. -6- J-A27017-14 Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013) (internal citations and quotation marks omitted) (quoting Commonwealth v. Huntington, 924 A.2d 1252 (Pa. Super. 2007)). Probable cause is based on a finding of probability of criminality, not a prima facie showing. Id. Pennsylvania law makes clear probable cause depends only on a “fair probability” that the items sought will be found in the place to be searched. Commonwealth v. Davis, 595 A.2d 1216, 1222 (Pa. Super. 1991). As we stated in Davis: [T]he law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location, nor does it demand that the affidavit information preclude all possibility that the sought after article is not secreted in another location. Id. at 1222. Because reasonable minds can differ on whether a particular affidavit establishes probable cause, “the preference for warrants is most appropriately effectuated by according great deference to a magistrate’s determination.” Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010). “A grudging or negative attitude by reviewing courts towards warrants…is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner.” Id. at 655-656. “Further, a reviewing court is not to conduct a de novo review of the issuing authority’s probable cause determination….” Id. -7- J-A27017-14 at 655. Rather, the proper inquiry is whether there is record evidence to support the decision to issue the warrant. Id. Here, we have reviewed the briefs of the parties, the relevant law, the certified record before us on appeal, and the thorough opinion of the Honorable Donna Jo McDaniel dated October 23, 2013. It is our conclusion that the trial court properly determined that the evidence seized should not have been suppressed and that Judge McDaniel’s opinion adequately and accurately addresses this issue. Accordingly, we adopt Judge McDaniel’s analysis as our own and affirm on its basis. Trial Court Opinion, 10/23/13, at 7-10. The parties are directed to attach the redacted copy of that opinion in the event of further proceedings in this matter. In his second issue, Appellant argues that the trial court violated his constitutional rights to self-representation and a fair trial by forcing him to remain seated throughout the trial and prohibiting him from participating in sidebars. Appellant claims these restrictions denied him the right to meaningful self-representation and created the impression that he posed a danger in the courtroom. “It is universally accepted that the trial judge has the responsibility and authority to maintain in the courtroom the appropriate atmosphere for the fair and orderly disposition of the issues presented. Proper security measures fall within the trial court’s exercise of discretion. When necessary -8- J-A27017-14 to prevent a defendant from disrupting a trial and possibly injuring others, reasonable security measures will not prejudice the defendant’s fair trial rights.” Commonwealth v. Gross, 453 A.2d 620, 622 (Pa. Super. 1982). See also In re F.C. III, 2 A.3d 1201, 1222 (Pa. 2010) (stating that “Proper security measures are within the sound discretion of the trial court, and, thus, will not “[W]henever a be disturbed courtroom absent an arrangement abuse is of that challenged discretion”). as inherently prejudicial ... the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether an unacceptable risk is presented of impermissible factors coming into play.” Commonwealth v. Philistin, 53 A.3d 1, 32 (Pa. 2012) (internal quotations omitted). Again, we have reviewed the briefs of the parties, the relevant law, the certified record before us on appeal, and the thorough opinion of the trial court dated October 23, 2013. It is our conclusion that the trial court properly addressed Appellant’s conduct during trial and that the trial court’s opinion adequately and accurately addresses this issue. We decline to substitute our judgment for that of the trial court, based on the cold record before us, and discern no error in the trial court’s determination, in conjunction with the sheriffs in charge of courtroom security, that Appellant’s movement be restricted. We are left to conclude that the trial -9- J-A27017-14 court’s handling of the matter was not so egregious as to deprive Appellant of his right to a fair trial. See Commonwealth v. Rega, 70 A.3d 777, 786, n.8. (Pa. 2013) (stating “courts have never tried, and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for alleged criminal conduct”). Accordingly, we adopt the trial court’s analysis as our own and affirm on its basis. Trial Court Opinion, 10/23/13, at 19-21. In his third issue, Appellant argues that the trial court abused its discretion by failing to appoint new trial counsel where court-appointed counsel refused to subpoena critical witnesses and was allegedly unprepared for trial. Appellant asserts that he waived his right to counsel only after the trial court denied his request for newly appointed counsel. A criminal defendant’s right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 and Article V, Section 9 of the Pennsylvania Constitution. Commonwealth v. Owens, 750 A.2d 872, 875 (Pa. Super. 2000). The Pennsylvania Rules of Criminal Procedure provide that “[a] motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(C). This Court has explained that “[a] defendant is not entitled to appointed counsel of his choice.” Commonwealth v. Burkett, 5 A.3d 1260, 1277 (Pa. Super. 2010) (citation -10- J-A27017-14 omitted). “Whether a motion for change of counsel should be granted is within the sound discretion of the trial court and will not be disturbed on appeal absent abuse of discretion.” Commonwealth v. Cook, 952 A.2d 594, 617 (Pa. 2008) (citation omitted). Generally, before this Court will conclude that a trial court erred in refusing to appoint new counsel, “a defendant must demonstrate that he has an irreconcilable difference with counsel that precludes counsel from representing him.” Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008) (citations omitted). In addition, a criminal defendant has a well-settled constitutional right to dispense with counsel and to defend himself before the court. Commonwealth v. Starr, 664 A.2d 1326, 1334 (Pa. 1995) (citing Faretta v. California, 422 U.S. 806 (1975)). “Deprivation of these rights can never be harmless.” Commonwealth v. Payson, 723 A.2d 695, 699-700 (Pa. Super. 1999). As our Supreme Court explained in Starr: In short, this highly personal constitutional right operates to prevent a state from bringing a person into its criminal courts and in those courts force a lawyer upon him when he asserts his constitutional right to conduct his own defense. Faretta, supra, at 807. Further, the denial of a criminal defendant’s right to proceed pro se is not subject to a harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177, n.8, 104 S.Ct. 944, 79 L.Ed. 2d 122 (1984) (“the right to self-representation is either respected or denied; its deprivation cannot be harmless”). -11- J-A27017-14 Starr, 664 A.2d at 1334-1335. However, a criminal defendant’s right to self-representation is not absolute. Commonwealth v. Vaglica, 673 A.2d 371, 373 (Pa. Super. 1996).2 2 Pennsylvania Rule of Criminal Procedure 121 addresses the right to waive counsel and the appropriate colloquy for a criminal defendant who wishes to assert his right to self-representation, as contemplated in Faretta, and provides as follows: Rule 121. Waiver of Counsel (A) Generally. (1) The defendant may waive the right to be represented by counsel. (2) To ensure that the defendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant: (a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent; (b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges; (c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged; (d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules; -12- J-A27017-14 A defendant’s request to proceed pro se must be timely and unequivocal and not made for purpose of disruption Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005). or delay. Also, “the inquiry surrounding whether a request to proceed pro se is unequivocal is fact intensive and should be based on the totality of the circumstances (e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and (f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently. (3) The judge or issuing authority may permit the attorney for the Commonwealth or defendant’s attorney to conduct the examination of the defendant pursuant to paragraph (A)(2). The judge or issuing authority shall be present during this examination. * * * (C) Proceedings Before a Judge. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary, and intelligent waiver of counsel. (D) Standby Counsel. When the defendant’s waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice. Pa.R.Crim.P. 121. -13- J-A27017-14 surrounding the request.” Id. at 439. Thus, “[t]he right to waive counsel’s assistance and continue pro se is not automatic.” Commonwealth v. El, 977 A.2d 1158, 1163 (Pa. 2009). “Rather, only timely and clear requests trigger an inquiry into whether the right is being asserted knowingly and voluntarily.” Id. “Regardless of the defendant’s prior experience with the justice system, a penetrating and comprehensive colloquy is mandated.” Commonwealth v. Owens, 750 A.2d 872, 876 (Pa. Super. 2000). “The question of waiver [of counsel] must be determined regardless of whether the accused can or cannot afford to engage counsel.” Payson, 723 A.2d at 701 (quoting Commonwealth v. Ford, 715 A.2d 1141 (Pa. Super. 1998)). Failure to conduct a thorough on-the-record colloquy before allowing a defendant to proceed to trial pro se constitutes reversible error. Id. Once again, we have thoroughly reviewed the briefs of the parties, the relevant law, the certified record before us on appeal and the opinion authored by the trial court and it is our determination that the trial court’s opinion comprehensively and accurately addresses this issue. Upon review, we conclude that the trial court’s decision to deny Appellant’s requests for new counsel was fully within its discretion, and we decline to grant Appellant relief on this basis. Appellant’s request at issue was made after jury selection and sought new appointed counsel, not substitution of counsel of -14- J-A27017-14 his choosing at his own expense. Moreover, contrary to Appellant’s assertion, defense counsel was indeed prepared for trial. The trial court determined that Appellant failed to set forth a legitimate reason for appointing new counsel. Therefore, Appellant’s request was properly denied. See e.g. Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007) (citation omitted) (holding that “‘substantial reasons’ or ‘irreconcilable differences’ warranting appointment of new counsel are not established where the defendant merely alleges a strained relationship with counsel, where there is a difference of opinion in trial strategy, where the defendant lacks confidence in counsel’s ability, or where there is brevity of pretrial communications”); see also Pa.R.Crim.P. 122(C). In addition, the trial court properly colloquied Appellant on his request for self-representation, then permitted Appellant to proceed pro se. Accordingly, Appellant’s claim of trial court error fails, and we affirm on the basis of the trial court’s wellreasoned opinion. Trial Court Opinion, 10/23/13, at 10-18. In his fourth issue, which also concerns the appointment of counsel, Appellant argues the trial court’s decision to refuse Appellant’s request for the appointment of new defense counsel was influenced by partiality towards the Commonwealth. Appellant asserts that, at the waiver-of-counsel hearing, the trial court made statements that demonstrated it was acting in -15- J-A27017-14 concert with the Commonwealth when it denied Appellant’s request for new trial counsel. At the outset, we observe that Appellant has failed to provide any legal argument on this issue beyond citation allegedly pertaining to due process and fair trial.3 Appellant’s Brief at 63-66. Appellant baldly concludes, “Because the Court’s ‘partiality, prejudice, bias, or ill-will’ is evidenced by the record, the Court abused its discretion and thus violated [Appellant’s] constitutional rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution.” Id. at 66. We need not reach the merits of this issue because we are constrained to conclude that Appellant’s discussion contained in the argument section of his brief addressing this issue is not properly developed for appellate review. It is well settled that the argument portion of an appellate brief must be developed with pertinent discussion of the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating that “[t]he argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority”). 3 We note that Appellant’s single citation to legal authority actually pertains to the appropriate standard of review to be utilized in addressing challenges to the discretionary aspects of sentencing. Commonwealth v. Cunningham, 80 A.2d 566, 575 (Pa. Super. 2002). -16- J-A27017-14 In Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008), a panel of this Court offered the following relevant observation regarding the proper formation of the argument portion of an appellate brief: In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so places the Court in the conflicting roles of advocate and neutral arbiter. Id. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996). Id. at 371-372. Thus, failure to cite case law or other legal authority in support of an argument results in waiver of the claim. Commonwealth v. Owens, 750 A.2d 872, 877 (Pa. Super. 2000). Here, Appellant’s argument pertaining to this issue contains no citation to relevant legal authority beyond a cursory legal citation at the end of his argument. Appellant’s Brief at 63-66. Instead, the argument portion of Appellant’s brief contains a list of circumstances which allegedly support his allegation that the trial court was partial towards the Commonwealth. Id. Because Appellant’s argument on this issue consists of broad statements and allegations but no analysis with relevant law, the argument is not properly developed for our review as it fails to apply the law to the facts of the case. This failure to develop a legal argument precludes appellate review. Thus, we conclude that this issue is waived. -17- J-A27017-14 In his fifth issue, Appellant argues that the trial court violated his right to assistance of counsel at sentencing where Appellant had requested to be represented by counsel. Appellant notes that the trial court reappointed Attorney Narvin, but also expressed that Attorney Narvin would be serving only as stand-by counsel. As we previously indicated, “The right to counsel is enshrined in both the United States and Pennsylvania Constitutions.” Commonwealth v. Smith, 69 A.3d 259, 265 (Pa. Super. 2013) (citations omitted). Moreover, there is no disputing that there exists a constitutional right to counsel at sentencing. Id. Furthermore, to the extent that Appellant sought the appointment of new counsel, we note that “the right to appointed counsel does not include the right to counsel of the defendant’s choice.” Id. at 266 (quoting Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998)). Rather, the decision to appoint different counsel to a requesting defendant lies within the discretion of the trial court. Smith, 69 A.3d at 266. A defendant must show irreconcilable differences between himself and his court-appointed counsel before a trial court will be reversed for abuse of discretion in refusing to appoint new counsel. Id. Here, our review of the record reflects that on March 5, 2013, Appellant filed a pro se “Motion for Appointment of Counsel for Sentencing through Appeal and to Postpone Sentencing.” Docket Entry 23. On March -18- J-A27017-14 22, 2013, the trial court entered an order granting the motion for appointment of conflict counsel and denying the motion for postponement of sentencing. Docket Entry 24. Thereafter, Attorney Narvin filed a motion to withdraw as counsel. Docket Entry 25. Attorney Narvin’s motion contained the following statement: 3. On March 18, 2013, by Order of this Honorable Court, counsel was again appointed to represent [Appellant] at sentencing now scheduled for March 26, 2013. Motion to Withdraw, 3/26/13, at 2. In addition, review of the sentencing transcript reflects that Attorney Narvin was appointed to represent Appellant at the sentencing proceedings, and did, in fact, represent Appellant at the time of sentencing. N.T., 3/26/13, at 2-5, 6-7. Accordingly, Appellant’s contrary assertion that he was deprived of counsel at the time of sentencing is belied by the record. Therefore, this claim lacks merit. In his sixth issue, Appellant argues that the trial court abused its discretion in failing to permit Appellant to show video-surveillance footage at trial. Specifically, Appellant contends that the trial court erred in failing to permit him to show a video of himself at the Meadows Casino in which he was wearing a different hooded sweatshirt than the one worn by the suspect in the Citizen’s Bank ATM video surveillance footage. Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the trial court’s decision -19- J-A27017-14 on such a question absent a clear abuse of discretion. Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa. Super. 2005). 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 or the record. Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001). Pennsylvania Rule of Evidence 402 provides that generally, “[a]ll relevant evidence is admissible” and “[e]vidence that is not relevant is not admissible.” Pa.R.E. 402. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Pa.R.E. 401. Thus, the basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Freidl, 834 A.2d at 641. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Commonwealth v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005). Although relevance has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a -20- J-A27017-14 material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Freidl, 834 A.2d at 641. Our review of the record reflects that Appellant sought to show videosurveillance footage of himself at the Meadows Casino on the afternoon of one of the crimes, in which Appellant was wearing a light grey colored sweatshirt. The purpose was to refute that he was the perpetrator of the rape committed eight hours earlier on that day. The victim of the rape indicated that the perpetrator was wearing a dark colored sweatshirt. However, as the trial court explains “The Commonwealth never alleged that [Appellant] had only one hoodie – in fact, as the police search demonstrated, [Appellant] had multiple hoodies of several different brands – including Champion and Nike . . . . Since there was never an averment that [Appellant] had only one hoodie, video footage of him in different color hoodies is not probative of anything and has absolutely no relevance to the case.” Trial Court Opinion, 10/23/13, at 35-36 (emphasis in original). Accordingly, we cannot conclude that the trial court abused its discretion in refusing to permit Appellant to show the video-surveillance footage in question. Thus, this claim lacks merit. In his final issue, Appellant argues that the trial court abused its discretion by sentencing him to the statutory maximum term of incarceration -21- J-A27017-14 on multiple convictions. Appellant claims that the trial court fashioned his sentence without acknowledging the recommended sentencing guideline ranges. Appellant contends that the trial court erred in imposing a manifestly unreasonable sentence, and thus, he challenges the discretionary aspects of his sentence. It is well settled that there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be considered to be a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: [W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). -22- J-A27017-14 Whether a particular issue constitutes a substantial question about the appropriateness of a sentence is a question to be evaluated on a case-bycase basis. 2001). Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court’s actions violated the sentencing code. Id. “A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). Herein, the first three requirements of the four-part test are met; Appellant brought an appropriate appeal, raised the challenge in his postsentence motions, and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant has raised a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court. In Appellant’s Rule 2119(f) statement, he extensively cites case law explaining that the sentencing court must provide adequate reasons for -23- J-A27017-14 departing from the sentencing guidelines and asserts that the sentencing court abused its discretion because “the sentences imposed on six of the seven counts exceeded the aggravated recommended sentence, yet the trial court failed to reference the applicable guideline ranges at sentencing. Thus, a substantial question exists and this Court should review the discretionay aspects of [Appellant’s] sentence..” Appellant’s Brief at 78. We have found that a claim, which challenges the adequacy of the reasons given by the court for its sentencing choice, raises a substantial question. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (explaining that a substantial question is raised when an appellant claims the sentencing court failed to sufficiently state reasons for imposing a sentence outside the guidelines). Thus, we conclude that in this instance, Appellant has raised a substantial question. Accordingly, because Appellant has stated a substantial question, we will consider this issue on appeal. Nevertheless, we conclude that Appellant is entitled to no relief on this claim, as the record reveals that the court did consider the appropriate factors at the time of sentencing. We reiterate that 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. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is not -24- J-A27017-14 shown merely by an error in judgment. Id. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Id. When the sentencing court imposes a sentence outside the guidelines, it must provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. The Sentencing Code requires a trial judge who intends to sentence outside the guidelines to demonstrate, on the record, his awareness of the guideline ranges. Having done so, the sentencing court may, in an appropriate case, deviate from the guidelines by fashioning a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community. In doing so, the sentencing judge must state of record the factual basis and specific reasons which compelled him or her to deviate from the guideline ranges. When evaluating a claim of this type, it is necessary to remember that the sentencing guidelines are advisory only. [W]hen deviating from the sentencing guidelines, a trial judge must indicate that he understands the suggested ranges. However, there is no requirement that a sentencing court must evoke “magic words” in a verbatim recitation of the guidelines ranges to satisfy this requirement. Our law is clear that, when imposing a sentence, the trial court has rendered a proper “contemporaneous statement” under the mandate of the Sentencing Code “so long as the record demonstrates with clarity that the court considered the sentencing guidelines in a rational and systematic way and made a dispassionate decision to depart from them.” Our Supreme Court has ruled that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant -25- J-A27017-14 information contained therein. . . . As our Supreme Court has explained, “it would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” When the record demonstrates that the sentencing court was aware of the guideline ranges and contains no indication that incorrect guideline ranges were applied or that the court misapplied the applicable ranges, we will not reverse merely because the specific ranges were not recited at the sentencing hearing. Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super. 2002) (citations omitted) (quotation marks in original). Here, the sentencing court specifically stated that it “ordered, read and considered a pre-sentence report in this case.” N.T., 3/26/13, at 2. In fact, the sentencing judge stated at the time of sentencing that she had the report for several weeks. Id. at 3. Although the sentencing court may not have recited at the time of sentencing the myriad of specific sentencing guideline ranges applicable, our review of the record does not reflect that incorrect guideline ranges were applied or that the sentencing court misapplied the applicable ranges. Therefore, we decline to find an abuse of discretion merely because the specific ranges were not recited by the sentencing court at the sentencing hearing. Furthermore, our review of the record reveals that the sentencing court fulfilled the requirement of a contemporaneous written statement when it placed its reasons for the sentence imposed on the record during -26- J-A27017-14 sentencing. N.T., 3/26/13, at 37-38. At the conclusion of sentencing, the judge reiterated Appellant’s applicable prior record score and offense gravity score for the multiple felony-one convictions. Id. at 40. Thus, the record reflects proper consideration by the court of the appropriate statutory considerations. Therefore, we discern no abuse of discretion on the part of the sentencing court. Appellant’s contrary claim lacks merit. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/23/2014 -27- Circulated 11/26/2014 09:14 AM 1:\ HIE COliRT OF COMMON PLEAS OF ALLEGlfL'\1\ COUSTY, PENNS\ CR/\lINAL DI"\lSION CO\1~ 1 ()"\\ LVA~IA 1 .\Lll l 01 PE,"SYL\A,\IA _ \ cc: 2012C1187].201201874 . \R I JlLTR Hf'\JJfRSO'\ . Dc.tendalll w .., OPfJlolON I il<d By: Jlonorablc Donna Jo McDall1cl President Judge Court or Common PJca~ of \Ilegheny County :::\23 CourthoU!:>c Pittsburgh, PA 15119 14121350-5434 Circulated 11/26/2014 09:14 AM ['I THE COL RT OF COMMO'i PLEAS OF ALLEGHEN\ COl'NH. PENNS\LVANIA CRnU'IAL D1YISIO", COM\.ION\\ [ ALTH Of I'EN'(SYL YAl\;IA , Cc- 20120187:1,201201874 ARTIIL'R Hf"-DERSO:\. Defendant OPINJO", Tbe Defendant has A review of the record arrl~aJed n.'\ ca ls from the judgment of sentence entefed on March 16. that tbe Ddenliallt has [,died to rrc~cnt ~()13 ao)' meritorious issues on appeal and. therefore, Ih(> judgment of ~eJ\tcncC' must be af1i.nned. The Defendant \\a.!' charged with a total of 5~ counts l in rdation three l3) women on laouan 7 and 9. 2012.l Il 1 the sexual assauJts of \ Jury tria) was held before this Court from rcoruary 5 through J I, 2013. at the conclUSion of which the Defendant was fOlmd guilty oLdl charges. Timely Post-Sentence !-.Iotiolls and Supph:mental Post-Sentence r..loLions were filed anJ werc denied on July 9. 2013 Trus appeal toJlowcd, The e\'idencc presented at trial e<;lah li"hed that on January 6, 20 12 r>..l llll!ll ce lebrating her 50111 birtbdaj WIth friends. Cru-ino io downtown Pillsburgh to gamble. Du~ ~ was The group had dinner and then \\ent to the Rivers After the party broke up, c-. rl'tumed to her to [he nwnerous charge!>, till!> Court bas created a I:h,lIt showing the charges. their dispOSition and re:.ulting which it h:J.'> atlnche:J w thi... Opmioll3!. Appc:nJi:>. I ... enlelllC, l The Defendant was also charged "'ith 8 number Ilf(hMg~ relaled 10 the r(lbbery and bcaung ofPetAlllm a ...eparate IIlrOml3lioll, f lov.c\er, as the Defendant \\3S 3C\lUiHcJ of all of those charge." they ate nOI enumerated b= Circulated 11/26/2014 09:14 AM lownhotbc in Iicmpfield Township, Beaver COlllllyJ ai approximately 1:30 a.m. on Januar) i". She \Vas not ready to end her evening. hu\\'ever. so she changed into jeans and a sweaLShirt and drove to Ihe Yi.eado\h.s Casino approximately 45 minutes away, where she played the rest of the night. \\'hen E Ij left the casino just afLer 7 d.m. surveillance video revealed that she was followed OUI of the garage by a dar"- blue ford Expedition '.vith a brakt! lighr Ollt and driver's side damage drhen by the- De-fe-odant. fiancée's SOil HIiIIIII' arrived home at approximately 7:45 a.OJ. to take her to school; however, the teenager was still asleep on her living room couch. \\ ithout waking him. ~ went up the stairs 10 her bedroom 10 change. She heard a noise bdlind her and turned to find a man dressed 111 black clothing. \"earing a black ski mask. hal, sLUlglasses. gloves and boots, and holJing. a gun c~mling up her ~lairs. quiei and he v. Quid not hurt her, and then demanded money. ~ r hen man told her to be gave him $10 - all the money she had in ber purse - and a silver bracelet and the man told her to take her clothes off. He positioned her in a kneeling position on the bed and penetrated her vagina wilh his peniS from behind. He then turned her over and fi)rccd her 10 take his penis in her mouth. then re~positioncd her in the kncelmg position and again penetrated ber vagi.nally. I [e allowed ~ to get dressed. then put her in the batJu-oom and told her not to come out for 15 minutes. She waited a few minutes. and when she came oul of the bathroom. the man was gone. She ran out of the house and drove to the Moon T0\\11Ship Police Department. as she was new to the I Iempfield area and didn't know where their Police Department was located. She was transported SewickJey Hospital where a rape kit examination was performed. Later that mQtwog, at 9:0U a.tn., ~ r""'vas taking her dog and her friend's dog (or whom she was dog~sitting for a walk outside of her apartment at the Woodbawk Club ! TIle Beaver County District Attorney'.'. Office relinquished this case to the Allegheny County DiStrict Attorney's Office fOr prosecution; 2 Circulated 11/26/2014 09:14 AM ApartmeJll~ in RO!is Township. On her way out of her apartment, she noticed a man dressed all in black, wcaring a ma.,k and carrying a box outside of her building. Thinking he \.\'as a delh'ery mall. she :. ~aid hello and proceeded on her llSUal half-mlle wall.. around her neighborhood . \\'hen rcturncd to her apartment approximarely 15 minutes laler, "he notlceJ lhe ~rune man un the IWlding nt!3r her apartment. She brought the dogs into her apan:ment and then bt.'gan to do~e the door when she felt rc~istance on it and saw the ma.sked man from the hallway attempting to push III behinL1 her. She screamed and tried to push the dour closed, but the man pointed a gun at her and "he backed up, The man carne into the apanment and to ld ber to lock ur her dogs. lie followed her ",hi Ie she put one dog in the bathroom and one in the hedr0om. Then in a calm \oie(', the man demanded money. A_ had S60 t)r $80 in her wallet and she ga\'e it to him, and he also touk two dl·bit cards and one credit card from her. Ilc then mJde her take off her clothes al1d \\ hile s.hc was naked. he made her write down the PJN numb\!r!' for the cards. The man a~kcd ~ po:;il ioned if shl' had condoms or saran v.Tap and .. he replied thar she did nol. ~ fie then behind a chair. touched her \agina with his Jmgcrs and then penetrated her vagina with hlS penis. He then re-positioned her on an olloman anJ agam penetrated her \ agllla lly with his penis. Aficr he was done. he made her lAy on Lhe floor :md bou nd her ankles and hand~ tightl)' with lare he got from the box he bad been carrying, asked her again for the PN numbers for her cardoSo look her cell phone and Jelt thc apartment After some time, .~ wa~ eventually able to work hen;e1f free from the tapt: and she ran 10 her next-door neighbor's for help. nIl.! police were called and ~ \Vas transported to l"P\1C PassaVatll Hospital. \\here a rape "'it examination was perfonncd. J _ Sometime between 9:45 and 10:00 a.m. on that s.ame moming. Woodhawk Club resident M • • \Va..~ oUL"idc- walking her dog when she observt:J a black man with an un• 3 Circulated 11/26/2014 09:14 AM covered face wearing a Jark zippered hoodie and a blac!... haljogglllg from "at s buildmg to the parkmg lot. He looked oyer his shoulder sl'wral times as if to .:.et' If he- was being followed. Shortly thereafter. the mun drnve by V. . . . on his way out of the complex in si~le. expedition with dumuge to the drivers' 8 \\hen " ' • • • sa\\ nolice cars. dark blue rord r1ft" !Tucks and television ne\..":. crew" appearing soon after, she realized that "he mu\' have seen S0methmg. Important and called the Ross Ttlwnship Police Department with what :-.he had seen. l ising M• •22's description, Ro!';s l ownshlp Police wert· able t(1 usc tape::.: ii·om the • Irartie cam~ras on ~IcKnight Road to locate the vehicle exiting ml' Woodha\\k Club complex immediatel) after ~ :. rape and drinng down ....1cKnight r(lad Im... ards downtown Pittsburgh Shortly thereafter. J "" s debil and credit cards were used by 111 the Manchester <.;cctitlll of tlle NQrtll c~mera ~itle 8 man ..... earing a hoodie al an A T\ 1 of the Cir: of Pittsburgh. The AT\1 sUf\ciliance also pid.!?d up a dark blue Ford Expedition_ fwo days later. on January 9. for work. ~012 , ~1 • • • • I She lOok her dog out for Ii walk 111 J\'1. r \Voke up at 6:011 a.m. to get read) tht· area of ller townhouse al the Cascade ,\partment complex in Ross Township wlnle het lianre tried to slr:cp for a few more minut\,!s. When she returned to the house, tlru1ce's alaml clock and iPod alaml werc going ofr, and she ran upstairs to tum them off so the noise would not wake their four-montlH)ld baby who was asleep in hcr nursery. When:\ __ entered the bedroom, ~he sa\\ her fiancé J_~ on the floor. bound and unable to move. A man wearing Ii tlark hooded sweatshirt, jean~. bootl3 and a skI mask and hold ing a gun h,ld her in a calm voice liial as long as ~he did what he said. he wa.-'_ no! going to hurt her. f Ie asked for money and she gave him tbe key to their safe and ~ gun him the passcode and the man opened the safe and wok bCTween $300 and 5:400 lhal the couple had saved . The man attempled to ha\ e ~ us!:: tape he had broughl With him but c;he was unable 4 Circulated 11/26/2014 09:14 AM [0 gel tbe: mil started. and 50 he made her rerrine duct tapc trom her kitch en which he u.st::d to tie lIP ~, The man took fvla <.;(ood belween 1\'" imo the baby's r()om. \vho b) no\\ W~ awnkl.' and screammg. and tbe haby and lold her to undrt"fiS. Once !:..he was naked. the man bound ~'s wri!'lts nith tape, posItioned ~ on her lut.nJ~ and kneet-. 101Ichl'd h~1 vagina with IU" fit' then lingers and pulled out her tampon, Ihrrwying. it on the noor in front (If her pen~trated forcefltJl~ her anus with his penis which was painful. and then he penctrateJ her H1g ina \.\ ith his pcnis. Once he was done, the man made 1\ anu her ankles He then made I\. gJOlmd next to her fiancée. e r li~ Jown on her st(lmach and taped her mouth r hop back inio the bedroom naked and lie down on the He took her engagcment rlJlg which :she had Just Chn:slmas Da}, along with SiO from !ht! lownhouse. After a few minules. ~• ("ouple'~ drC'sser and their \.·ell phon~", rcc~i\"l;!;J on and left the . and ~ wcre able 10 free themselves. and 1\. _ called the p(lli~e ami went to the bab) while ~ n:tnevcd Ius ,b.'l.m and went It' look forthe man. 11h~ police responded and \~ was takt.:n to \lugee Women's lIospital. where a. rape kit e;\ami nalion was perronncJ The next mllrning, January 10,2012, Ross fownship Police set up ~ nlrall ce !i checkpoint at the to thi: Cascades Apartment complex to canvass for wltncss\!s amI look for the dark hlue Ford f::.xpediti{)n Jl.!scribcJ by ~I• • • ~ ~• • I rlit Dcfendant was Slopped entering !.he complex in a dark blue Ford Expedition and told the officer thaI he hadn't seen anything unusual. The officer noted damage to the side of the vchidc and look down the vehicle's I1cense plate. J'urthcr investigation by the Ross Township Police Department n:vt!alcd that the vehIcle was registered to the Defendant. Arthur Henderson. Sometunc during the Jay of January 10,2012. rhe Defendant contacted an <lcquaintance named ~l"" whom he knew from playing poker at the casino!i around 10wn, and asked if 5 Circulated 11/26/2014 09:14 AM ~ wanted [0 bu) a diamond ring from him ..~ declined. That ..:verung, ' _ went to '\lcadow:-: Casino to rla~ p0ker. pJa)'ed all night and left at approximately 4:45 8.m the n~xI monllng. when he returned 10 his borne abo"e his fdmily·s 4Z.E• •lrlestaurrull .• • • • • • on F Ohio Rwcr Boulevard in rm~wort11 . A~ ' " - was: enl~r in g the building. n m.1n dressed clothing, wearing a ski mask. hat and gic'Ves ,mtl carrying a gun nil: -0. man wid col to giH! lum the mone) iind rll~heJ In darl.. in the door behind him. l" he would nut be hun. thought he recogml.:ed the man dc:-pitc the obSl ructj\C clothing and said so. and In respullsc the man _ punched 1 _ in the face and knocked him to '" s(;rerunt':d for help . [ _ .~ Ulf' sister-In-law _ floor. fhe man beglin 10 heat I came to the stair~ and :.md wru. able to sec through the c)'e holes of the ski mask that the assailant was AfTic~n-A.mcrican. She retreated and calJed the police. The man heat ~ mto submISSIon and then re3ch~d in his pocket :md took one or his envelopes of money. which ~ later c~t1Inated al bctwel;!t1 M.500 and $5.000, in denominations of $100. The police an-ivcd dnd L. . . . \'0',1$ transported to AHegheny General IlL\spilai where his wounds \\erc treated. He told police that hI! rhougJll he knew the assailant. and believed that it wa-, either "Black Art" or ··rrankle .-\." Oolh of whom he kne\\ from playing poker. "] he casino staff was contacteJ by the State Police, who identified Black Art as U1C Derendant. Arthur Henderson dnd Frankie ..\ ttl; poker deaJer Frank AuJd, a while man who was on medical leave and ned·ridden whi le recovering from major surgery. I-urther police investigation revcah:d tlHit on January 1n. ~012. the same Jay as the robbc-ry of ~ Western { inll)n wires were made at a Money \.Jart on th~ 1 " two }.;(lfth Side in the amowlts of $893.67 payahle to ford Motor Credit for a payment on the dark blu(' Ford Expedition registered to the Defendant Arthur Henderson and for $122.99 payable to Bristol We.'it Insurance for auto 6 Circulated 11/26/2014 09:14 AM IOsurance on the "arne \·ehich.:. Receipt.. frolll both transactions show payments made by cash in dcnuminaliclIls of.b 100. Police then obtained a "carch warram for the Defendant's car and residence and for a buccal s\\nh to ohlam hi[) DNA The Dcf.:ndant"~ D,\A was subsequentl) t.:stcd and was found tll be a mutch to the sanlpk's taken fn1m the rape kit exanunati(lns (If M~ r..- A _ A " andV • • ~_r • 21 The Dcfclldmn has rrused numerous issue" on appeal. which arc discusscd~ as follows: J Suppn'\\ion Issliel lnitialty. the Defendant arg ue~ that th is Court erred in deny 109 his MotIOn to Suppress, lie "rgues Ihal th e Amdtt\ 11 of Probable Cau."e l'onLamed "deliberate and materially fa lsI! tt..",ert l(lns" and when those 'lsserlions are removed. the remaJllUlg inlonnation within the four comers of lh~ A ffidavit did not support prl)bablc cauoSe. \ revic\\ of the record reveals that this claIm is mcritlt"ss (t is weJl-establi sheJ that the appellate court"s "standard of fCview in adtlressing a challenge to the de-ilia} of a supprcs!)ion motlClll is IirniteJ 10 detenmnmg whet.lJcr the suppression court's factual findings are supporteu hy tJle recorJ and whether the legal conclusions drawn !Tom lhose facls arc correct. Because the Common\\'~alth prevaileu before the suppression court. Ithe <JppeUnte court] may consiuer only the eV idence [(If evjdenc~ (lr the Communwealth and so much orthe the defense as rc.'!oHuns wlcontradictcd when read in the context of the record as a \\ hole. \\ here the suppression court'g findiogs are supported by lhe rcwrd. rthe appellate court isl hound by these finding3 and may reverse only ifihc court 's legaJ conclusions are erroneous." Commollwealth v. McAdoo. 46 A.3d 781. nO-4 (Pil,Super. 2012), 4 The is~uc) ha\.e been rc-ordered, combined and separated lor case of di~cuSSlOn lUld re, it"w. 7 Circulated 11/26/2014 09:14 AM !\loreo\ier. "the legal pnnclples tau:,e affidavits are "ell-settled ~prlicable ttl tl revie\ . . of the suffkiellcy (If probable Before an iSSUing authoril) nut) issue a ..:('n<;litulicmaliy valit! scnrl'h warrant. he or she must be furnished with in/annal ion suflicient to persuade a reasonable perit)1l that probable C:lU.. ,>e eXists to conduci a sea rch. 1 he <;tandarJ for evaluuting a ~earc h \\'un'ant is a 'totality of the circumslrlllccs' test as set fol1h in Illinoi s \. Gates, 462 t 1.5.213.103 S CI. ~317. 76 1..h1,.:!d 527 (1983). and adopted in Commonwealth v. Gra". 509 Pa. 476. 50.3 .\ .2J. 921 (19X5). A magistrate is to make a 'practical. common alllh(' circumstanccs sCt tanh in the affidavit befo~ sc n!:i~ deCision whether. given lum, including the 'veracity' and 'b<bls of lnowkdgc' of pl'r~ons· supplying hearsay infonnation. there is a fair probability Ihat conlrab.uld ()f c,idenct: of ij crime will be fOWld lfl prohable cuus\,! must he \'icwcd in a a particular plal.:e.· The information otIered to establish C~lmmon seruc, non-technical marmer. Probable cause is ba..,eJ on a finding of probability. nota prima h"lcie showiog of criminal activity. und deference is fa be .lccorJcd tv a magi~trate's finding of probable cause." CommQI1\\'ealth \ . Rverson. 817 A.Jd 510. 513-4 (Pa.Super. 21103). A (nic" of the four-(;omcrs of the Afl"idavlt of Probable Cause reveab ample facts in support of the finding of probable ~ausc CO lt"iderin~ the e\'iJence questioned by the Defendant. the Affidavit notes the ca~in(l rootage of Lhe Jark blue Ford Expedition foJl<..lwing necessary for the search warrant. M .- \Virhollt even ~ out of thl.! casino par"'-ing lot, the ... ta.tt:ment of . , - . t\~f• •1 wherelll the Defendant was seell lca\mg / ....•• 2 " 5 building .-· at the time of her rape and driving orr in a dark blue Ford rxplorer. Officer Oe\cnyl" s identification of the Defendant and the dark blue Ford Expedition being driven by and registered to U1C' Defendanr. the Defendant'., relationship wilh Eboni LcSe.-;nc. a resident of the Cascades Apartment Complex ncar the scene of the M• • • 8 " _r rape and Cascades Vlanagcment 's Circulated 11/26/2014 09:14 AM idenlli'ica1ioll of The Defendant's dark blue Ford Explorer as being ~eclJ parked in the complex al the time of M ~f"" s rape ('lfl Jamlary 10. 2012. A common-sense reading of thie, ('vidence certainly establishes suftic it:nt probable cause 10 Jus li fy the lssuanct> of the search w'JlTaJIl. P . J\lorcover. the Deiendant's claims of deliberate falsehoods and mischaracterit:ations of evidence are simply not home Out by a close reading of the Affidavit. fhe Affi davit notes ~ 's identifica tion of the assailant as "Black Art,'· but alsu mentions his sbter-in-Iaw's Identification of the assailant as an African-American man TIle Defendant places a great deal of cmphasls o n the absence of Frankie A's nume in the Affidavit however. because the rolice had determined thtl! Frank Auld was Caucasian and bt!dridden and tl1C suspect was "l3lack ArC during their hospital visit to Mr. LIIII shortly arter the beating, il was not a mlscbarat:teriz.atio[] of any ""idcnce when the A11idavit did not discuss "hankie A ,. As LO the hoodic issue, the hoodie IS altcrnatdy described as being "dark-colored", "na\'y bluc·· and "bluish-grey'". In f\IlD of tile assaults. the assailant is simply described as wearing ·'dark clothing". There is nothing unusual or improper about these descriptions. As discussed more fully below. sec Issue 10. infi·a, there was nn avcnncnt that the Defendant had only onc hoodie anJ (he color of the hoodic was not probative of the Defendant's guilt or ilUloccncc. Ultlmaldy, a common-sense reading of the four -corners of the Affidavit of Probable Cause dcmons1rates ample evidence to support the issuance of a search warrant. This claim is meritless. The Defendmlt also argues thai this Court erred in failing to re-open the record 10 include what he claims were "additional fabrications aJld material omissions" contained in the Affidavit. This Court notes that no sLich request to re-open was made by the Defendant during tria.L 9 Circulated 11/26/2014 09:14 AM The dedslOll to re-open a suppres ... ion hearing IS at the lhseretil>n of 11ll" trial \,:oun. COI1lIUOIl\\Cillth \. BraneiL .t37 1\,2d lliscus~ion above. 7~8, 75 1 (Pa.Super. 1981), Reference is made to the '\Jthough the polite eventuHIl) rt:'~eiveJ. infomlatiun from another witnes~ M _ named Justin Lee. a.k.a. l>umpkinhead , that tbe ring the Delcndant was attempting to sell conta ined multjple smnes (l.T Ihi~ r 347), whereas ~ ~·s nng onl:" hau one' J) stone, Jiu not impact thiS Court's rrevious ruling on the \100lln to Suppreo;;s. As <.hscusscJ above. Ih\:' Affida\ it \Vas mure than sufficient to estJblish pmhable cause for the rea.'il)(]S pre\10usl) dbcu:»scd, lhis Court was well within It:.: dis~tion in not making a ~ua SPOIl1(' dccisillll 10 reo open tbe suppre::.sioll hearing fills c1uim musl also fuil. 2. Waiver of COUflSC! Kext. the Defendant argue~ Ihal thb CoUrt erred appointment of flew counsel and pro sC' claim ~nd i~ amflll nled to an chlllll~ unk'11o\\~ng . In falling to grant hi::. requesl for the that 11m, Cour!''' ruH.I$al to Jo so Ibreed him t(l pJ'occed involuntary and 1IIHntdligent wa i'ver of coun sel. This utkrl)' wIthout merit. It i~ well-cstahli::.hed that ,.. the right W appoinfed coun:--cl dlX'!i not include the right to cOlm:;el I,)f tbe defendant 's chnil':e".. Moreover. whether tn gnrnt a defendant's petltinll to replace court uppuinted colLnsd s ;) decision whieh is left to the "Ound discretion of the trial court. As a general ru le. howncr. a defendant must show irreooncilable differencC'!<O bet... een hiOlself and hi s court appoi nted counsel bdon: discrcticlIl in refusing to appolIll new co unsel,. [l t.ri al COlirt \\ ill be reversed for ahu~c of Ln !otOOle ca....cs. rour appellate courts1 ha\e concluded that 'substantial reasons' or ' irreconcilable differences worranting :lppoinUnCl11 of new counsel ure not cstablished what> the defendant merely all eges fl strai ned relationship with counsel. ~ here there is a difference of opinion in trial stratcJ..,f). where the defendant lacks 10 Circulated 11/26/2014 09:14 AM c\)IlIiJcm:c in couns('J'~ ability or where there b J hrevit~ Llf pretrial c{\mmumcaUQIlS Cmnmomveahh v. floyd, 9~7 \ .~d 4Y ..t 4')7 (Pa.S upeI ::!0071. inkrnal citatHlIb umitted "Before a defendant t" permitted to proceed pro :.e, ho,,·c\cr. the defl'ndant must (jr~1: Jcmonstrat..: thnt he knowingly_ voluntanly and intelligently wfl:i ... c~ h)~ cllnstitutlonal right to the as"isluncc of ~oun!'iel. .. I h~ "probing colJoqU)" standard reqllJres PL'nn:.ylvalll<l u"ial couns 10 make a ~carchJng and [(Jrmal in4uiry into the qucstiuns of ( I; \\'hdher !.he dclcndanl i ... a\\'&re of hi~ nght to coun~c1 or not am.! (2) whethel the defendant that ngln or tWI" i" (:lwum of the consequences of waning COmmL)Il\\,eaJth \. Slarr. 664 A.~d 1326. 1335 CPa 1495). Spccificall). the court mUSI ensure: (01 dclcflJanr understands that Iw (II' she has rhe righT 1o be ri'f".e.~ented "y cuunsel. and {he right to have Jr!!,· counsel Ilppomu'd if rhe IhOl filL dt!fendanf i~ mdigent. (b) Ihul the de/endalll understalld.\ the nUl/tre oj fill' c/wrRe\ oe.O/ll.\t Ihe defendullf ilnd Ihe elemems (~reach uJ (how: I..hurgt.·\ (C) Ihat fhe dt'1endullf is aware line5 for the olfcfI..,·es charged. (til fhnt fhe dejerukwf uliderwands that If he or~he Hail'es lilt' right 10 counsel, lilt: dejendallt will still bl, bound b) all the normal rules of pmccdllrc GIld Ihar cOl/me! would befamifio,. with Ihese rll'e.~.· (t'.J 'haT rhe defendant undentonru thnl ,here are l'us.'fible dl'fi.'lL'ieJ (0 these dlUrges Ihlll COUlMc! might be uwarl' oj," cmd if the~( dejellse.\ are nor raised ai/rial, fhey !nuy he 10.\1 permoflenti) , and (/J thar the de/elldanl undersIal1ds Ihal In addition 10 the defenses. Iht: Jcjendmll has many rip/liS lhal. iJ nOI flmely (Jj\"t?rted, 11/uy bi' IOj[ permancmly: and lliar if errorj occur Gild ure nnl limer. o~iecred 1o, or otherwise timely raised hy rhe dejefldallf these errorS ma)' be lust at fhi' {lCrmis.H"ble range pf:rmanenIJy. Pa R.C rilll.Pro. 122tA )(2). II of .l"enrenccs wld'or Circulated 11/26/2014 09:14 AM Injtlally, it bears mention that from time of his arrest untillhe time or LriaL t11l: Defendant was rerrcscnted by fonr (4) \Iifferchl at10rnc)~ . maine Jonl:s, Esquire: Wend), Williams. I:squirc: .A n Ettinger. F~quiI(' of tbe Allegheny County Office of the Public Defender; and J. Richard Nan-in. Esquire' assisted b~ Violel Silko. hsquirc, both of the Office of Conflict Counsel. Attorne) s Ettinger. :'\'an In and SilkCl were all court·appointed attorneys. Ihe Irio] of this matter was imtial Iy ~C'hcduled for Sept em her j 2. 20) 2, at which time the Defendant wa" reprt:scnted b) Public Defender Fltinger. Onl) days before the trial was scheduled to heg.in. Altorne) Etlinger filed a r..lotion 1Ct Withdraw filed pro SI? \1otions l{) mOlions. appolJl1ed Po~tronL' a~ counsel and the Defendant Trial and Jor Appoiotml,;!ot of Cou nsel. This Court granted the D.Ih'mc~ l\'ur\'in of i11C Ofticc of Conflict Counsel and re-sc.hoouJed the trial umil JanWIT) 31,2013. 00 FcbTU8J) 4,2013, after a jury had already been cho:.en, witness brought io from out· flf-town and the trial \\':::IS sched uled to begin the nexl day, auomey NarnIl tiled a Motion 10 Withdraw a::. cOlIDsel. At a hearing on the t>.lotion, Attorney Nru'vin indicated that the Defendant n(l long...'r wished fOT Mr. '\\Jarvin to represent him. Upon this Court's inquiry into the reasons for the Ocfcndant's request, it \Va~ determin~J that the Deflo?ndant did nl'! agree with AttClmey j\:arvin' s assessment of the case and the avwlable defellse~ and thai the Defendant was demanding that Attorney Xarvin call various witnesses til!.!! Allorney Nanrin believed would be helpful to the Commollwcallh . 1 he Detem.lant allegedtJlat Altorne) J\'arvin Jid nOI properly invest igate the case, W11h which Mr. J'\arvill disagreed, !.::iting the work he- had done and the hinng of a private investigator which i~ bome out by the" record inasmuch as that investigator \Vas appointed for Iht: Defend~nt by tlllS Coun at ·M!. Narvin's requeSL The conflict \Va:;; further elucidated as follows : 12 Circulated 11/26/2014 09:14 AM THr D[l-L~DA:t'\T: nli~ is m) point. Y('IUf Honor, if J want 10 subpoena somc(\nl: and I want them to get on the sland so we can cross-examine or have them a~ our witness, ] have thai right, - . rHF COL' RT: Well , vou have that right under certain conditions, One, it hus to be relnaJlt to Ihe ca."-;c. J WV, we bave to be ab le to subpoena him. Three, yOLi can' t a:.k any lawycr to violate an l'thi(;al duty and their oath to the court So Jo )Oll have another w1tne-liS you Wflll! subpoenaed? TIffi DEI bI'\OAl\" I : I would like all the Jnctor$, THE COl'RT: Whal? JIll DCfEKDA..YT ' Any medical docior or examiner ihm's involved in this ca<;c, I would like h) get TO cros'i-r.!xamine them , If the C'orumonweaHh doesu't call them, I woulJ lik e to have them on the stand. \JR. 1\/\RVJ]\o: rill assuming u.t thiS point - ] J II . OrrENDA..\ST: ·\11 the detectives a~ well. "JHE. COUR I : '\low, \\11) would you be calling the people 10 Ole stand thai are going 10 testify aga inst you? Lei's think this through. Do yOll think"II IE DEFENDANT: No. no - 'II IE COL"RI: Do you tbink any oflhe detectives involved in this case arc going to get to (he s tand and giv(' you anything whatsoever that is helpful ? 1111-- DbFEl\1JA"n· Do I have the right ro have that ? Yes, Your Iionor. T IIF CO l rRT: You'lIlune to ask your lawyers. J liE DhFENOAN L: Well . 1 already had that conversation. have a conflict at. fhat 's where we I'm a'iking, do Illa\'e the right to have them questioned? MR. NARVIN TIfE YOUI II(lnm - oErE~DA~T: Wnether they call them or not, do I have that right? MR, NAR VIN: Your Honor, this is part of the issue as far as the witnesses go. L will nOt call witnesses thai I believl: will be helpful LD the prosecution and of no 13 Circulated 11/26/2014 09:14 AM \rum: (ll Mr. Ilenderson. and I don'! L:are how much \1r. Henderson rL'qut:::slS me 10 do thut. I will nClt do Ulal. TilE COL'HT: ·\nd you kilO", you hAve no duty to do so Okay. lhat"s it. See you tomorT(lw. Tilt: DITE:"lDA1\,T Okay. Well, I will represent fHE COl RT- Okay. 'em. if~ou are going ['II give you some more rules. LO my~c1[ Ino longer wam him. repre::.cnt yourself, let's sil down. (Colloqu) and " ',)Vier (II Cllun!:>el Tr.mscript, p. 8-11) . .\t the hearing, this Court cautIOned the I)efendant agaillSt n:rre~enling himselraud urged him to allo\\ \'If. ~ar\'in h) continue \\lth the representation. n Ir COL'Rl' Are- you going 1(1 n::prc<.;enl yourself':' Those arc ) our 1\...·0 choiccs. You can either n.:prc~cnl )ourself and \IIf. "\jan- In wil l sit ""ith you: you can allo\\ \1r. ::\;)n in 11..1 rcpr~sellt you, which. of course, is the only really good solution here; or you can h:.lVt: an attorney herc al 9:30 in the morning. that you haye paid that is read) ;,inJ pn.'pared to go 10 trial. rbis case will not be postponed. THE DFI· F'JD'\ ~ J: I· \cuse Illt'. YOW" Honor. no disrespet:1 to you or this C(\uIts. me and '-'1r. 1\arvin disagree on absolutely everything. rJ IE COL,Rl' You Jon't h:;n'c to rake Mr. Nar"in home to Thanbg)\'ing dmner. Ile'~ a good lawyer anJ he' lI do a good job (If rerresenting ~ ou. TI r~ DJ-J El'DANT \laalll ~ THE COl lR'l: Hc knows what TIlE DFrEl'DAl' I he'~ doing. You don "r' knO\\. :vlr. J l\!nJt'rson - Ma ' am ~ [] LE COL R r: You don 'I' know Ihe ru.lcs or the laws. TilE DrFLJ\r]).·\l\'I · J knO\\ my case. That's wuat I know. THECOlIR1. ,'\ndso does'\fr Narvin. (Colloquy andWai\ \!r of Coun5el franscript. p. 3-4). nus Court then engaged in an extensive colloquy regardUlg the Defendant' s choice to represent himself: 14 Circulated 11/26/2014 09:14 AM TllF COURT: There 's another problem though. \k Henderson. lfyou represent yourself - this is something you really need to lh.ink about - you cannot later claim that you had ineffcl'tive assi~tal)ce of counsel because yu~'re representing yoursdf. You're giving up that waiver. TJ IE DeFENDANT: 1 understand to a certain degree. TH£ COURT: Well, wait. What Jon't have w understand to all degrees? THF DHENDANI': representing me? Well, am )OU unders;tand about it. because you representing myself or is rvtl'. ~arvm llI E COURT: Well, tJmt's- your choice. Youjusl told me you \\erc representing - can you make lip your mind bere? THE D~~FEI\I])ANl; No mll'am. I would rather ropresent mysclfifhc won't call - irlte won'l subpoena the detectives and the doctors to the ~t<1nd. rlTr COURT' Oby. Do you understand tbe nature of the charges against you and that there arc four infonn:niofls? T\IR ;-"rARVfN: Three separate informations. four JiSllnct ca....es. rilF COlJRT: ruur cases, three infonnalions_ [11 one mfomlalion, you were chnrged with rape, IwO COunts of aggra\'31l'J indecent assault, sexual assault, indecent assault. robbery. intimidation, burglary. Persons nOI lO possess a ftrearlD bas been severed out. l ln[awful restraint. false imprisonment. terroristic threats, theft. receiving, access deVice fraud, possession of an instrument ('If crime, rape, in\'oiuntar)" Jeviate sexual intercourse, two counts of aggravated indect'nt assault. sexual a';sault. inJ ecent assault, robbery, seriou:; bodily injury. intimidation of witnesses, unlawfuJ restraint, false imprisonment, terroristic threats, theft b) unlawful taking. receiving slo len property. Persun not to posse:.s has been severed ('Iut. Robbery, intimidationo wdawfw resttaint. false impnsonment, terfClristic threats. recklessly endangering another person and possession of imil!umel1l of !;nmc for wruch you cou ld receive, t dOll 't know, 150 years in Jail give or takc. At thl." second information, you arc charged wilb raJX', involuntary devhlle sexual intercourse, aggravated indecent a~sault two coun ts. sexual assault. indecent assault, robbery, burglary Person not to possess has been severed. 15 Circulated 11/26/2014 09:14 AM Possessiun of an insLrwnent of crime. false lrnprisOl1lmmL unlawful restramt. ten·orislic threats. theft and recdving s(olcn property. which is probabJ) anolhe-r 70 years. give or take ... ... So if found guilty, you could receive i.n cxces~ of ~OO. 300 years understand th~t? Do you fill , DCFI",NDAN1' Yes, THF COLR 1: Oku)" TJ-ffi DEFENOA\JT: i\ liJ )' I ask you a question: I ,IE COURT: 'Jo. Do you understanJ that if you waive the flghl to counsel, )'llU aye bound hyall the normal rules of procedures l~icl and that counsel would be familiar WiUl Ih~se rules and adhere T\) them? Do you unJersland Ihal? T HE DEFE"lDANI: l!m-Ilum, THE COL"RT: Answer yeo;; or no. TITE DEFENDA.,'H: Ye" TJ-lli COtlRT: Dll you understand that are possible defenses /(l tl,ese charges with which counsel ma) be aware (If. and if these defenses are not raised b;.- )'ou allTial. they may be losl pernlat1ently'~ rJ IE DErENDMT; Ye" THr (OllR r: Do you understand that in addition to the Jefcnscs, that you have many rights which. if they an~ nol timely asserted. may be lost pcnl1anentl~) and that if errors occur and are not timely obje~leJ La or otherwise timely raised. thc~c lJITors may be losl pennanl.!-ntJy? lllE DEFENDA='l: I unders"111d, TIlE COl T RT: Hum? TI IE DEFE'IDANT: I understand , THE COLlRT: Okay, (Colloquy and Waiver of COlUlSel Transcript, p. 1)* 17). 16 Circulated 11/26/2014 09:14 AM The- next II) till}, imJ11cdiutcl~ allow c(}lJn~el 10 repre:-'l.'nt prior It') the start \If tn~l. this Court again urged tht.: Defendant hlnl' I J IE COt 'RT: O~a>. Also, so that the record l"i c1l"'dJ, yc.<.,!t'roay ~lr. I !cndersol1 waived his righl tu hme COW1<.;e! present. The COLIn condu~It:J the entire colJoqu~ on the wahcr 01 coullsel. Veronica" rC1le! \\a:;; the l"t.llu1 reroncr who took the notcs of transcnpt down. That will be a part of tillS record. I further \H1S u",ked h.lday to allow ~fr. Ikndcrslln\ family III speak with him. I hey spoke with him for some 45 mmutes. J believe !vls, SLlko W3::. present during IltO~t of thaI If) ing to com mu: \1r. Jlendr.:~on to <lllow 'Ar. 1'\ an in and t\1s. SilJ...o to rcprestnt him dllring the r.:ours(' of !.he trial. HI..' has d. :chncd to do <;0. ls that correct, rvtr. 'lendetson? I H'~ DI· FENI)'-\~T : I.xt.:use me. ma'arn') TI IE (OLIR I . You ta1ked to your fruml), h)da) ? THE DEII .l\ Oi\"iT: Ye,. TIlL COURT: J hey tried to talk you into Iruing the don't wal1l them tll do that? law.\er~ r~prtsel1l you. and yOll TI n, IJHEl\ DA,\T. C"rrect. Till' conn: ,"ow, I'm going. to ask YOLI a question. allJ J wanl )011 to Ii.sh. .n (0 it. You're tdkmg your lo\'('d ones, .\our mother and your father and your hmlhl!rs to the allport. \\hen) ou get tilefc. Y('IU find out that there IS a mechanical problem on one of the jets. Would you "cek. to fix that yourself, boping that you did a good jC"lh, or H\.'uld you want a mechanic that had years d experience to fix: it so that your JU\ ed ones wuuld he safe on thelf airplane trip? THe DJ~ FENIJ:\:"ll: In answering your question , I would chllose th~ m,"chanic. THE COll{ I: Okay. ",ell, the reason !'m a... J...ing you thj~ is because rv1r 'fin'in and \1:,. Silko are the mechanics of the hm They know what IS ,gomg on in the law And I truly belie\(' it is in your best interest to baH somehod) that is compet~Dt and a good attorney represent you. And I'm going to ~sk you again to consider letting them represent lOU, J HE DErE1\DA~ , . Well, ma'am. excuse me, 't\mr lIonor. THE COl R T: II', yes or no. 17 Circulated 11/26/2014 09:14 AM nlE D~n~1\DA.VI: fhey \\ill 8s"ist me. 'will represent myself. . rHE COlKr Okay All righl. Let's bring the jury down. (Trial rranscript, r 5-61. emphu5i::. added As the record reJlects. thi s Court made numerous attempts to CI..l!lvmc:e the Dcfendani (0 aI/em counsel to represent him. II told him repeatedly tlIat it was in his best in terests to have Ctlunsel and ON represent himself \\11cn the Dc:fendant rdu~cd, Ihis Court engaged in an exicnsive colloquy wiul the Defendant ..:nsuring that the Def('ndlUlt underslood hi!l rightS and those he was giving up in choosing 10 represe-nt himself ThroughoUl Ow ongoing discussion, the Dc1endam rt!peatedly refu~ed this Courfs efforts anJ inSisted on repre<;cnting himself. Coder these circumstances. 11 is dear that the Defendant's waiver i.-,f ('~owlsel was knowlIlg, voluntary and intelligent and thl~ ((IUn did not crr ill ollowjng the Defendant to rC'pr~selll himself This cJalln is tneritless. 3 Fmlurc to1pp0ll11 Ycn rOllflsel(or Sentencing \lcxt. {he Ddendant also argues tllal thi s Court erred in faWng to appOint him new C\)UflScJ for 1il(' senlencing hearing. This claim is meritiess on its tace. inasmuch as this Court did appoint c.ounsel for sentem: lOg. rhe Defendant's di:;;like of \1r. Narvin does not change the facl that the Defendant rccel\'cJ adeqllak and effeL'ti\t~ counsel at the ,entencing hearing. ;'The right to appoimed counsel docs not include the right to counsel of tbe defendant's choice." Floyd. supra at 497. ciling CllmmonwealLh v. Alhl't:chl. 720 A.2d 693. 709 (Pa, }998). This claim is must fail. 18 Circulated 11/26/2014 09:14 AM Rc:.~lril·li{l1/.'i Ofl .J iJeluuialll's HOl'emt'1lf DlIrin~ Trial ThL' DefcnJant abo argues that this ('nurt erred 111 forcing hllll to remain seated at counsd tahle JlU"lng Innl instead of aJ lowlIlg him to freely roam the CQurtrOClm ilnd approach the \\"lIl1e~"es andjur) during questioning "It is 1111l\er:"ill~ accepted thilt the tri,i.1 Judge has the respoll .. ibilit) and authority to maintain in the courtroom the appropriate tltmo!-phere for the fau anJ orJcrl} dispo:;ition of the ls~tJes presented ... Proper M .'curity measures fall \ViOlin the trial courL's exercise of Jiscretion . When neccssar) to prevent i.l detend:mt from Jlsruptlllg a trial and pos"ibly injuring others. rcas(mable security meaSures will not pn!.1uJicc the defendan!"s fair tria] righl.!;." ('onmlOO\\eahh \. (Jrus:.. -153 A.~J {1~O. 622 (POl.Super. 1982). At triaJ, lhl.' onl} requirement this C\JUrt placed on the Defendant \"'a5 that he war. In remain seated at all rimes during his l/uestiomng of witnesses and dunng hIs closing argument. He ,\a'i Dot lumdcuffed or shad• .led in fronl of the JUT) He \vas permitted to wear ru5- 0""" clt)t.hing. Rdertncc In U)t! record re\'ea1~ that the Defendant used Ius cross-cx.:uninauons of the victims in a most he inous fEl~hi()n to fun her p!,ychologicall) intimidate and vletimi7t~ the v.. omen. He m::Hle the alread) fT<lg1lc women tell him they were afraid of him und that they were scared. cr. r pp. 66. 75, 125. 197. 1~91. lie mude M_ (1'.1. p. 74-5\. lie malic ~ f' -and perhaps lO imply thai t\, .' th~ r_ describe how ,he was hurt h) the rope ~ rapes ,,,ere I;ClllsensuaJ (T.T. pro 121. deny thut they had mel hefore. 12~. deny that he bnd been a guesl in he r house hcfore. (1':1. p. 196·7) and thnt wa~ physically and mentally abu..'me to her (11. p. 147), 19 J _ 197). lie made l\1l!• • • ~ And in perh<lps the most ofTcnsi\e Circulated 11/26/2014 09:14 AM exchange of all, he. made J _ s-. dell) that he (S _ ) had paid the Defendant mone) 10 have a ihreesome with M- .: Q. (rhe Defendant): Okay. All right. I jusl want to know. Is it true that you met me at the garbage disposal? A. Q. About 30 days prior to that? \. rYe tlC\ er seen you before in my tifc ••I? i Have you ever introduced me to ~. A. I\o. J did not Q. Have) au ever offered mt:' any money to have a thIccsomc? A. No, 1 did not. Q. Okay. Did A. No. Q. Did you c\ er text me? A. No.1 did not. Ill" and you t.'ver exchange phone numbers? (rr p.224). The reco rd reflects that the Defendant used 11 i5 fUr1her the effects of his psychological tonure. cro5s-~:"auTlJnatjon of the victims to This Court was nOI about to let him also approach the witnessef; physically which would only have imcns ified the degradmjon of the vict ims' heing cross-cxammeu by their rapist. Moreover, as tills Court noted on lhe record, UlC Sheriff... , whv are responsible for guardmg defcndal1t~ during trial , advised this Court that th\"y wert: ut1comf(lrtabk~ with the SeCllJily risks posed should the Defendant be pennittcd to walk abOllt ule Courtroom during trial. 20 Circulated 11/26/2014 09:14 AM AI trial. ,Ius Court brierl) placed its re3sons I1n the record n It-: COl 'I{ J: Ilowever. ~ tr. llendersoll wants to get lip and walk around. The sheriffs odviscu me that they are not in the least bit comfortablC' with that. J ~annot allow him to inlimiufltc either the jury or the wiUlcs!'C'!S (In the witness stand. I LT. p. 14.1-4). Given the Circumstances of this r.;a~e, this Coun was well within ils discretion in requinng the Defcndrull to remain \eated JLuing the Iri31. rhis claim m\lst faiL 5, Acring in COllcerl Claim The Defendant next alleges thai thi\ Court was "acting in con~ert" with the COIlUTIonwealth 10 engineer a conviction. He point'" to an exchange following the CI'um,e! colloquy wherein Ihis Court expre:'lo5.r.:ti that cross-examination lS ~e I~ rlcall~ \Hu\ er of shon for rnl- defendants, and the i\ssislnnl District Anotllc} used the phrase "serl'\\ up." Nothing could be further from the tru th, As rdlcct~d in the record as a whole, !l1I~ CQurt mnde e\ er)' effort to look out f(lf the Defendant's best tntcrc.sl~ b) rC'pea[edl~ urglll!; hlln [0 utili:te his appomu:d counsel, and even dela)ing trial so thal he cl)ulJ meet with hlS (ami!) who al~n attempted [0 convince him to proceed with counsel. The record reflects that tlw, Couri treated Ihe Defendant aprropriatcl~ and on occasion even assisted hun by rephrasing quesljon.,s which the ",,;lncsscs were having difficulty understanding. There is no e\ idence whatsoever that this COlin ",ras "acting in concert" with the Commonwealth or was in any way attempting to engineer a cnnviCll(lll. ThiS claim must fail. 21 Circulated 11/26/2014 09:14 AM 6 Excc.\si\'e Sl!me/let: Next. the Defendant argues that the de faCl!) life: sentence r()r charge~ st:IHencc imposeJ W3::, c)\.ce~sh e a~ i! amounted to a no! involvIng a homiciJe and thai this Court additionally fa il ed to pJace its reasons for impo'l ing the sentence on the record. Thc.<;c c1allns arc mcrillcs~. The Appellate Coun's "standard of review in a sentencing challenge is wclJ-senJed. S('ntcncillg is a matter \ ('sled in the :-.ound ul!'.crclil'n of lhe sentencmg Judge. Ulld a :,enten~c\\;11 not be disturbcJ on appeal absent a manifL:st ubuse of dlscretLon . 1n this conk'xL un abuse (\f di~cretion is not shown mcrel~ b) an error In ,judgment. Rather. the appellant must estab li sh, b) reference to the record, Lhnt the scntenClIlg court ignorc:d or misJrpli~d the law. exercised its judgme11l for reason .. Hf partiality, prejudice. bL3.'O or ill-will. or arrived at a manifest!} unrea!>nnable d~cisit1ll " Commonwealth v. DiSal\'O, 70 A.3d 900. 9U3 (Pa.super 2013). more expansive terms ... an abuse of dbcrction rna) not he fOlUld men::l) courl might IJ~IVC' lU1f~asonabJcncss reached a diff~rcnt wndusiol1. h~cause In an appcllatl! but requires a result (If manifest or panialiiy. prejudice. bLa5 or ill·\\IU. or such lack of suppnn a.o; to be clearl) C'IToncous." Commnnwcahh v. Dodge, 957 A.~d IlqR. 1200 (Fa.Super. 200S). " In addition, our Supreme Court has nOied that: 'me gui Jel inc~ have no bindjng effect. create no presumption in sentencing, and do not pn.'dommate over other sentencing factors - the)are adu'iof) guideposts that are \aJuablc. may be respected and C(lu!-idcreli: sentence." Commonwealth \I. proviJ~ I1n es:;.cntial startmg pomt, and ulal m~t they recommend. ho\\cver. ratheJ Ihan require a panjcular Gla...;:s. 50 A3d 720. 727·8 (pa.Super. .2012) \Ioreover, "it cannot be ga insaid that a permissible and legal sentence under Pennsylvani3 slallllory law is rendered improper simp ly bt:ciJUSC the 1:'entence exceeds tht: gUideline.<.; The guidelines do not sUPersede the statute." Commonwealth v. Johnson. R73 AJd 704. 709 (pa.Super. 2005) ·'1 he sentencing Circulated 11/26/2014 09:14 AM gUidelines arl' ad,jsory In nature." Commnn\\,ealth \ . (jowen. 55 \.3d 1254. 126" (Pa.Sup!!r. 2011) When formulating a ~enteDCC'. the Coun i!- reqUiTed t(l c{ln~ider a level of "conftnt:ment that 15 consistent \\-lIh the proieclioD of the public. the gra\'uy of the offense J:-. it relates 10 the impact on the life of th~ victim anI..! \)n the c{lmmUnil) anI..! the rebabilitathc oeeds of the delendunt .. 42 Pa.C S.A. §9721Ib). "'When the particular ClfcumSWllCCS jmpo~lIlg a sentence". a court is required of the offense andulc charader of Lhe JdemJant' .. . the court <';/Hluld rdcr tClthe defeudant"<l prior crimmal rec(jfo, [herJ ;'Igc:, personal 'In 1(1 con<;ider panicular. cha rac l eri~tj('s and rher] potential for rehabiJitatjon· ... Where the SL'ntcnclll~ court has the benefit of a presemencc i.n\'estig3tjIJD report ("'PSI"). we can d3~ume the sentell..:ing court 'w~ aware (If the rel~\.Jnl \'Itit informal Ion regarding the defendant'" character and \\("ighed tho~c considerations along the mitigatlllg stHulor)' faclors:" Cummonwealth v. Griffin. 65 A.3d 932, 937 (Pa.Super . .2(13), internal cllatlon~ omHlcd. At the L'onciusion of the mal. this Coun ordered a Pre-Sentence Investigation Repon, and b ter acknowledged it hau read and considered prior to the scntcnc.ing hearing. Hearing Transc ri pt, p. :n. (Sentencing At the hearing, thi5 Cou rt li:,tf.!nL:J to the Detendant's statcme.nt. th~ arguments of his mromey and the Assis tant District Attomey and lhe victim impaCl statements. It then placed ItS re~on~ for imposing sentence on Ihe record: ~tr_ Henderson. you have sal here through the vict im impact ... tatemeJIIs and the heinous crimes wh.ich were \ler)'. vcr) \\clJ d('scribed b) the \ iClims thcmseh cs in this ~ase. II is clear h) this Court th::u you ha\'c abso l utel~ no regard fur anyone in thjs world including your child "ho you, b) the way. did hO\le at the lime you committed the cnmes. You may have some concern for 11.Jr COl TR r : ~our:-.df. In my opinion. you are clearly a seriul rapist and sociopath. having raped three women III a period of two days. Your juvemle record for felony drugs and escape IS somelhjng that the Couri has c.onsidered. YOli ... tabbed two dilfcrent people. 13 Circulated 11/26/2014 09:14 AM You llid ~t.:uc lUllt'. Y0U are:1 parole vlohuor You have heen convicted of guns ant.! Jrugs ru; \yell a.' Ihe other charg\!s IiMI ~Is. Ditka 1n\!ntioncd. There are eIght con\ Ictillns, You hu,c bCC'l1 in and ()ut or Court, You ha\le t;hOwll no ability 10 n:babtJltat~ :ourseIJ. Lven bcmg 10 jail imJ bemg unprboncd did not defer any rUIUh! cnmlllal aeri, lties . In 111~ opinion. your actions In (hal Januar) define the word Janger. You are a danger to OLU commumtles, You are a danger to evc=ryol1l! III tbt" community. \' ou an~ a dangc:r (0 people who want III feel ..,:at~ Ul their bouses, \Vh~) want to proled their wive::. and tbC'ir b:1bles and their loved ont!~. YllU suhJt:clcJ the victims not (lOly b)' commitllll£ lilt..' heinous c.:rimes that you liid. you then Insulted Olem b) questioning them and trying h) inllmiJale lhem through yom qu~sliollS. It was an even further insult wben YOll tried to insinuate tbat tht'se actton~ that )'(IU too" \\Cre lilt: vlCtlm'~ fault or that the) were con:,ensuiJl. You <bsaulted every ,icrim lime and timt.." agam It's OH'r now . It's over now for the \ iCllms, I bope, and r hope il'" over for you. lSentencing /lcarmg 1 ranscript. p . .3 7-81 As Iht.." recllrJ reflect .... this Court arrrorrirttd~ (;on~IJcreJ all of the relevant lactors in crafting ItS 'entenct:. Giwn the horriJic and heinous nature oj 111e <;('ncs ofrapc.." this Court was e(\mplctcl~ within its discretion in imposing the slatlllOf) maximum sentences. sentences e;\ceeded the guideline ranges they wcrc. in placed its f\:'lS(.ms for tht: sentences l}fl Although the tact, legal. and this Coun appropriatel) the: record.l he fact that the Defendant is now upset \'\ ith the length of his sentence does not make it inappropriate" or an 3buse or discretion. The sentence imposcJ \, as apprnpriate gjven Lhe tacls of this case and it must be affirmed. rhis claim must fail. HergC'/' bliue,\ m St!l1fencing The Defenda.nt alsIJ a\ers that thi s COlirt erred in impo!'ing statutory ma.'dmum sentences at each of the IDSl anJ Rape charges with respect to anal pen~lrali("ln ~I: • • • ~~ bccaus~ were part of the same course or conduct. 24 the ,'aginaJ and Circulated 11/26/2014 09:14 AM "In all cnnnnai t:ases. the same facts may SUppOl1 multiple convictions and separate senll,..;·nt:es for each conviction e);cept in cases where the offenses are greater and lesser included offem:e~, int~1ll 'The same facts' mCaJl$ any act or Ilcts whic.h the accused ha~ 1'C·rfomlcd and any which the accused h[Js manifested, regardless of whether these acts and intents are part of l)ne cmmnal plan, scheme, tnlns ~h;;tion or C'11l.iOlmter, or multiple criminal transactIons or ('Ilt:otmler:. ... Commollweulth v. AJld~rson. plan~. schemes. 650 Ald 20. 22 (Pa. 1994). See aJso Commonweal L ,. Dav idson, 860 A.2d 575. 583 (Pa 2(04). Our Superior Co urt has further h specificall) held Ihal when Rape and Im'f) iumary Deviate Sexual Intercourse arc "suPP0rLed b) separate fa cts," Ule rwo I.!r;mcs do l10t merge for selllem::in[! purposes. Commonwealth v. Snvder, 87U A2J 336. 350 (Pu.S uper. 2005). Sec also Commonwealth v. \ 'anderl in, 580 A.2d 820,829 [Pa.Super. J 9901 As rdkctt'd in Ihe record, the Defendant's attack o n M• • • • two t~) ~ wa... comprised of distinct penerralions: anal and vaginal . Q. (Ms;. Ditka): Whut happens next? A. Ovll . :\. r): ... And with ami ungloved hand - I could feel tbat there was no glove. lie starte.d fondling my vagina. And he tried inserting his fingers. hut T had a tampon in, because I was on my period. f had been h,n;ng issues regulating since I only had a baby four months ago. I said af1cr he felt that. J said. "1'01 on my period." He says, "Oh, dOI1't worry abClut that." So he pul ls the tampon out; amll f.:aJl sec he threw it up to the left side. of my head. because 1 could see it to the left si J e of me. lie stans fond Iing me. And then afte r that - and be's pushing my legs apart with hi s hand. After that be - I co uld hear him trying [0 undo his pants, trying to move things around back there. Hc has his penis out. lie 's probing like around my anus. At first I thougbt that's what he was going to do, he was going to rape me in my anus. because that's what il seemed like. Tt was somewhat forceful. Q. M•••• , did it penetrate your anus eveD to the slightest degree? I 25 Circulated 11/26/2014 09:14 AM ..-\ Yeah. It Jill. Yes. it diJ . Q. Did you ~ay anything al that time? A rm sorry? Q. Did you .\. Once that h.Jppened, I said. "Please don'l do this" AnJ he <;atJ. " Ir you Jon't do everything that J say, I'm gOlllg to go 1I1l0 that rQ(l[l1 and l'm ~oiDg LO kill) our fi.mce." And after that he sallL "I et"s JUSl g~1 this m;er with .. ~y anything to hjm? So he took his ungloved hand, and h(" leI! for the opening of Ill) vagina. And h~ stuck his pcnjs in me, raping me un" illing_ It wa.~ three or four thrusts, and lhen h..; removed himsdf. (1'.1 r I 73-4) It is clear thm the ilniiJ pcnctralion and tbc vag lila I pellt:lrali('tn of ~1• • • l\_ 1\\0 r were ::,cPar3tc IIlstanccs of p(:I1f'Iration, constituting two separate crimes and descrving of hvo ::.cpar..Ite 5('nkncc~ . I"his Court appropriate!) senh:nced the Defendant tllr each and. therefore, tbis claim mllst 1~liI . ?) Sufficiency oJ 'he E\'idence :t\c).1. the Defendant Jrgues that lh~ evidence w<\::. insufficient to support me rm oluntaI) De\ iale Sexual Intercourse charge. Specifically, hc states that the anal penctratjon was "an UIlIIlIf.:ntional act and occurred in the c('Iur.. e o[lhe When fe\ iewing II rap~. " Thi.s claim is meritlc~~. claim relating to the suflicjefl9 of the ev idence, the apre1Jotc court must ··e\nluatc the record 'in the light most faVOf3ble to th~ \erJict \Vinn~r giving the prosecution Ihe bene-fit of all reasonable inferences to be Jrawn from the evidcnc~· ... 'f-vidence will he deemed sufficient to support the ,willet when It establi~he ... each matenal element of the cri me charged and the comm ission thereof by the accu::.ed, beyond a reasonable doubt· ,.Any doubt about the defendant'." gu ilt is to be re.."'Olved b) the fact finder unless the evidence is 26 !'iO Circulated 11/26/2014 09:14 AM weak :md inconclusive tbat. a<; a maller of law, no probability of fact can be drawn from the combined ClrCUlll$l3nces., . Thl;' Commonwealth may slliitalll it!' hurden by means of wholl~ clrcumstamial eVidence., .Accordingly, ·tbe fact that the evidence cstabhshlll£ a dcfendanl's partiClraljon in a crime is circumstaJltial doc ~ not preclude' a com'ictilln where the eddem:e coupled with the rca:-;ollable mfer('nccs drawn therefrom over('om(.!~ mIlOC('I1CC· ... Significantly, lthe appellate cOlln1 may nLlt substilut(' tact finder; tl 1U~, the prc:.umption of litsJ juJgment for that of the "0 luog 8S the evidence aJduced., tll..:cepted in the- ligbt most favorable to Iht.' COlllmonwealth. dt::monstrate:-; the re-spectivc elcOlC'nb of' u defendant· ... crimes beyond a r~ason .. ble dLiubt. the appellant's I.:llOyiclions will he upheld:' C\11ll1l10nwealth v. Rahman. 20D WL 47811771 . p. 2 (P. Super, 2013). Our Crimes Code defines fnvoluntary Dcvime ~exual Jnlerl'our"'c a .. follows: §312J. JllvOlmtlury dCl'iatt! se.:rual illtercourse (a) Of/elise defilled. - A per:;'"Of1 '-Off/mtls u fl!.lol1) ujlhe /irS! degree when the person engage.s in de \lime sexual hllCrCOllrje \1,,1111 t1 complainant ( I) byforcible compu/shJII 18 Po.C.S.A. §J123(a)(I). Our CnIDes Code further defines dl',iale sexLial inkrcourse a ... follows: §JIOl, Deji"i/lOns "De1'iate sexual illtercourse." Sexual intercQurse per 0.\ ur per alIILf ber.1'eeu IwnuU1 bemgs and any form of sexlial imercourse with an amma! The term also mchuJes pfmelralwn, howeller slight 0/ the ge::.mwls or amt.) of another person wiTh a foreign objeci Jar any pllrpo~e Olher tllan good jailh mt'dica/, hygienic or law ('njorcemem procedure!>, 18 Pa.C.S.A §31OL emphasis added. Rl!ilerating the discussion above, \1• • •tl t\",- tesufied that the Defendant penetrated her anus with his penis 1Il a forceful rnruUler: 27 Circulated 11/26/2014 09:14 AM A. (\Is. M_ r): ... He has his pcms out. lIe's probmg like around m) anu.,. At first llhoughl thilt's \\'h~t he \\'3S going to do. hc \\3S gOlllg ttl rape me in my anu.". be~au.se that'_" what it seemed like. It was <;omewha~ fll[l:efui v· MI• • • • Jid it pencLT.ue y()ur anus even 11) the sligilte!';t degree? A. . Yeah. It did. Yes. it did (T.l. p. ]73). The Dcfl.'udant's claim that the anal penctr.Jtillll lacked mtent or was ~omehO\\ an acciJt."nt is an affront to tillS Court. The Sf.Hue Joe'! not contain an intent l.:llmponcnt and the Oefl'ndanl cannot Impute one hy nOw sa~ mg that the anal penetration was l'nly accjJental in the Cl)urSt: of his Jttempt to forcefully penetrate her vagin a. The tcslimon: rresented at lnal ~ry::.lal dear and ~stablisheJ an inslan~C' of anal penetration without queMilln. .'"\."; sm:h, the \\-[b eviJen.:e \\as more thall slifliclcnl to support the conviction for Involuntary DeviaLe SC\uaJ Intercourse.fhis claim n1U:,l fail. 9, Evidcnfmry Ruling\ During CommonweaITh '\ Clo'ing The DClendant also argues that the ·\ ssislant District mischarnC1Crilatiolls of thl" evidence In Attome~ made nUlTIl"rous her closing argwncnt and that thi.., Co un em;'d in overruling his nbjections thcrchl. Thi . . chllm is meritle..,s. \ lIIal court's rulings on matters pt:rtaining III prosecutonal misconducl in a cln. . ing argument are revIewed "for an abuse of discrC'tion. .. re\l~rsible Commenl... by a prosecutor constitute error only when then effect is to prejudil"'e tJlCjUT), fonn ing in rtile juror. . ·J minds a fixed hia'i and hl)stiJity toward the dcfl.!ndant sllc,h that they ..:ould nOl weigh the t'\'idence objccuwly and rcnJcr a fair verdict. .. While it is improper for a proseclitor to ()[fe r an) personal op lllI on as to the guilt of the defendant or the credibility of the wiUlcsseS. it IS cntlTl!i) proper for a prosecutor to summarizl: tht;: evidence presented, 10 otTer reasonable: deduction and infer(,llces 2R Circulated 11/26/2014 09:14 AM from lilt.: evid..:nee. and to argue that the evidence ~tabli .. ht:;:, the defendant's guilt ... In addition, Ihe proo;;eclitor mUbt be allowed to re50pond to defense couTl~el':'i argum~nt . . , and any challenged <;13h!m..:nl mu!'.1 he vic\,,:J nOI 10 isolation. hut in the context III nhich it \... a~ offered .. , pro~ecutor must be free III rn.:..sent hI . . fir 'Thl? ht.:r arguments with logicul fClrce and vigor: and comments representing mere oratorical flail' dIe not obJectIonable," CommQ"\\ealth, . Thoma.... 54 -"3d .H2. 337-8 (Pu. ~O 12), Intcnlal cllaUons omilll.:d The Defendant nnw takes issue "it.h the follo\"l1n~ pnrtions of t-.ts. Ditka's closing argulllclll : MS. DII K.A: '<0\\ .. \ . . A8 is ~tartjng her year fresh. SIlt:'" wailing for her li'lends t(l come over for lumba, Ill... ~ ITlO~t of us SrDrt the: year with rcsolulion~. ",c're going t(1 get in shupt:. ~he goe" nul to wa lk her dogs. She . .ces somebody standing with hlack glo ...·c:-. ;;I black ma.sk, lh~ face c('\fered and holding a bt)x. a whue box with "F.1nge with the ktter .. -\" (In it. \\ hen you take this. back - sht ~ajJ It was In hi s. arm. She thought he was a deli\ er) man. 111l: Dl:FEI'DAl>< I Objection. Till COURT: O\cml!cd (r. r. p. 660) ~JS, 1111 KA. SUI \\hen fJ 1slarbi .;,ering tirsl responders coming l\f t(1 the \\'oodhawk Club. she goes to work at the both)m of the hill and calls tht.! police and says. "H~}, I thinklius:t is whal I sa"," Si:lW something Sometbing is amis.s here. and IJ,,~ fhe police take thal infonnation. and lhey get the tmffic camera. And \\bal do they see? A blue Ford exp lorer. It's the Duly blue Ford produt.:t Llll McKnight Road. And it's nOt just an SU\'. TilL DFJ-.'"El\DAt\'I. Objection, Your Jionor. 1 hat· . . not reie\·anl. There is no facb stating that wa~ the oilly blue truck on t\1cKnighL Ihat's f'tllse. fII~ COURT: I'll overrule. 29 Circulated 11/26/2014 09:14 AM \IS, DIII-.:.-\: DeleCli\'e f\'cAlu"ler told yo u IT \\as the only blu..::: ford product on " ' eKnighl Road thallllormng. 11 1 p.665·()I. \IS. DITKA ; Wht:re is it gOlllg '} Down to the Nonh Side. 110\\ do we knmv that" Bcca ~c Y !i3\\' the yiuco fOl'tage at lhe \ T\ t llJ tht' blue l ord Fxplorer OLI pulling ;Jlongslde of the building, I!lF DI· I T'JDA!\] ' Objection. I ne"er "cell any lord [~rlorer near no A 1'1\1 muclnnc. 1 ha1' s ridiculolls. ~o (1ne ('vcr seen J III COL RT : You kll11\\ ,\hal? Don't tcsti(v LhrNlgh your lIbJection. ~1S, Dn KA : It was, Your Honor. In rac!. the Defe nd:mt playcJ it in hi s cross. lie bad lhem pia} the: actual footage. rIlr COL R [. I will o verrule .hlur objccri(ln. II If onl ~DAXT: 1111 CO t R I Oh, m~ g(IOUne~~. \1r. Henderson. no !mic comments Jl" 111 I L]\DA~ T All right. £l .T p. Mol \ IS DTTKA: [\I & ~ ._ J call' 911 immediately 'ot the neXl day. NOI ~oml' hour.::. latl'L Immediately. JUSI tikI? i\~~. Just like /' 2 "J'\t! been raped . Someth ing has happened ," Now the pulice are (In the scene, \nd they're scttl ng up a checkpoint i' ' And what arc they looking for? A masked man . And thc:y ' rc looking for th.i~ blue SlTV .....\nd \Vho do the)' come across? Arthur Jlcndcr<,;oll dri'ing he same blue Sl 'V that the} see in the videos of \ 1cKnighl Road. I J I r: Df FEt\'UAN'I : Ohject ion, Objecli\1O There wa!o. nevcr an idcntilication No license plme number. !\o nOlhlllg. TIml W<lS not the :-;UJlle \·e.hicl e. 1Il[: COlm.T: Mr lIender50n. you object then I mle. Y(lU cannot argue improper!) what the objection is. You're ll'vCll1.Ih::d, ITT p.072·3), ~tS, DlTK.l\: t\ow, the Defendant put int(ll'vidence that he was at the casino on the do) or . 1 J s robber}. 30 Circulated 11/26/2014 09:14 AM DiE 01:.1 E.'DA!\ L Objection. I never Slated that. and there i~ no record (If that. 1111' COlIU O,erruled. \1:-'. nr I K.'\: lie put into evidem:e thut the was allhe ~1cado\\'~ on the da~ of that wbbl'ry when ' - ~ was there . \\ hen , . L_ happened to lean: with listfuls of cush. RighI? )7.000. $4,500 in Olle pocket, the remainder in the other. IT.T p.674). 'is. DITKA ' Where was the \L~C mach;n~ that Black Art went to? 11 was in \1n.nc hcstcr. Where did Black An go amJ get the money order;, Lmmediately after th1..' robben of ChUla ~ He went 10 lhe Nonh Side. TI n· DLFEND!\Nl: Objection. 1111' COL Rl· O,erruled. \IS. 01 rK.\; \\·11ar did the money order~ go to pJ.) for? The munc} orders \\-eot f()r a Font l--.xpcdition. How \>,ere the mone), orders purchased? \\ Ilh $100 10 ra~ bill~ 1111 Dn L'iD.I"T: ObJ<cuon. IIIL COl R I Overruled. r...IS. OJ f".:\; l\nd how does the casino pa) out money? $100 bille;;. No" wc'r.: tn !-ec 1:1 pattern. K(lW we're: starting to s~c a pattem ~ta.rting IT.1. p. 677-81. 'vtS DITK;\: Dn you sec a pattern ? Now, Ihl!)' search 11l~ t.:ar " 'bat do they find the car? Loeky there. 1(" a while box with onUlge writing and an "A" on it. lie says .• rhul's 111)' bux:' [(5, not e"eu like irs a discarded bvx fnlOl somebody else. He takes ownership efOle box JIl fhe) sho\\ the box to ask ~ "Is thb the box thStlhc person had under their ann where Iht.:) took Olll the tape they used before Ihey raped you"'" "Yes. II's the same box:' TllF DEFENDAKT: Objection She .ever <Iated that THE COt R I : Overruled. (LT. 678-9), 3) Circulated 11/26/2014 09:14 AM \1S. Dn 1(. \ : AmllhG)' took that DNA. and Arthur lIcnder.-;oll came in and ga\'e a ~\\'ah in his mouth. lit: {lId you Dt-.A Isn't a crime. Otherwise, wc'd aJl be in pn:-on. \\'e all have it. \Ve 're fuJi of it. \\ hm IS J crmll: is depositing your n\J". in Ibe v,tgma of \ 1t1III'l::_ " hen Shi! .\ didn't w~ml YOli to. Depositing your D\A in the vagllla of ~ A.a;.\'hel1 she Jidn't invite you or want you or let ~ou PUlling your D"J.\ in the vagina and in the allus of to. ,o • where she didn't ask you ur JIlV l te you or let you. fhat's the cnme. And th3t'S what Ihe detecllve IOld you f\,, , It came back as a match, and we only did one qmn till ion. R~membcr what the !(\kl you. It was dght times one tl,) 18 ~ero~. tight times one quintillion match lIml II \\'u~ somebudy else other th.ill him \~ 'hat J...jnd ()f con$pirac~ is lila!'? !.ci(:J1ti~l did the Defendant keep saying to you'? "('Dllle Oil, now, What makc~ sense'?" I s~IY it right hack ot you. C(llne on, now. Whal llHlke:- sense? A blue car follows her home, ha" a burneJ out taillight It 's the S~lmc eMr seen gomg all \1(:f(night RC'laJ. It'" the same\\1W.l n fl· DUTNDA;\ 1: Objection. TI n ('Ot;RT: OverruleJ \IS. nITKA' It 's the same car pulling up to the Cascadt::-,. th~ AlM. Il °,s thl;' same car leavmg 1liT DFPLt\DAl\T: Objection. MS. nfTKA:: It 's the same driver nil: COllR I : Overruled. (LT. p. 681-21. Viewed m thelf panicuiar context <is well as the na lT.tlive a...;peclofthc clo!;mg arglUnent Ifl general. Ihe sltltcment.:; complained of are nol Improper in any "'::r~. Although stated eloquenlly and with Clrdlorical flair. all of Ow statcmcnl.. \\~re factuall~ correct and did not constitute mi sstatements Or mischamcterizations ort he evidence prc~('nleJ, Rather, the alxl\'c portioru; of thl' rc:cord are dem,mstrall\ e n1 tllC Defendant's bcha,jor Juring the Commonwealth's entire closing urgumcnt, wherein the Defendant posed numerous legall~' and factually IIlvalid and speaking Objections and acted in 32 all CtlherWlse obstreperous Circulated 11/26/2014 09:14 AM manner in a clear effort to disrupt the proceedings and to resti(v without !'ubjecting hilllSt:lf to cruss-examindtiun. for example. despite there being no evide.m;e whatsoever that the women consented to the intercourse, the Defendant cross-~xamined lht: sciemitic \\~tnes5es regarding com;enl. Although he. was warned th.at he was not permitted to argue consent wlless hc took the ~1and, he persisted in argulllg it and then in .mcmptlllg to testi(y during hi s closing nrgumcnt: t ilE DEFEl\'DANT: J have proof is what I'm ~lIying to the things l"m talking about. You can't put mc in two different places at one time. Yout.:an ' t make accusations and Jon't follow up and have prol>fbeh,ind it. You c{ln't Jo it. Your job is 10 prove beyond a reasonable dOLlbl and they haven ' t met that. :-';01 even close. Not e\en close. One other thing is m:v DNA. t-. ly l)~A is not a crime, My Ol\A b not illegal ~1.) DNA is not proof of anything but that we had sex, That'" it. How is that proof! Ilow is that evidenc:c'? f-Iow is ~lS. DlTKt-'\; Vent! J lonor, I'm going to object He' s been warned about this. rilE DrFENDANT: She loved it. ('LT. p. 6~7-8) . i\loreover. the Defendant's aVenll CIll tilat the excbanges prcjudH:ed U1C jur) to an extcnt that they could nOl render a "fair verdicf' - by which he obviously meao~ "acquittal"' - completcly withoUl merit. IS \\ hile avemng in very harsh lenns that the jury was biased. he . completely neglect'i t('llllcntion the total acquittal on the information relating 10 the P I. . rohbery. Ifhis argument were correct - lhat the j ur) was so biased by the statements as [0 hayc blindly \'oted for conviction without considering the evidence - then surd) tbe charges relatiog 10 ~L_ would have resulred in conVIctions as well. acquitted on the ~ The f[l(;t that the jur) completel y r..- charges demonstrates the care with whjch they evidence in an un-biased fashion. 33 JUT)' considcrcJ the Circulated 11/26/2014 09:14 AM It i ... clear from a review of the C('lmmonwealth'~ closmg argum~n1 and the record a~ a whole, that all of 1\ls. Duka's statements were supported by the e\idcncc and ctlnslilUted a pn)pcr and well-articulated argument. rhi5; claim is. meritlt!s~. fvidtUllial:V RIlIi1/g.~ Regarding ,r.;urI'l'i/lancc r'ideo / {J. ~(':\L til\! Deti.:nclant arguC"s th3.t Lhi:- Coun C-ITc-d in denying (he Odt:mlant's request to prt:~ellt :SUf\ eillanct: thai he Wr\S \ idc(l from lhe ~ fcwJ(m 's CasUIO lIn Januru;. 9. 20 12. pll~medl) wearing a Jllferent color hoodle than he had been \-,caring carher III to sh(l\\ the day. 111is "1 he 3dmlssibility of c\;Jcncc is within the ':-.ound ul,>crehun' of Ihe trial court. '"hich ma) onl) be reve l"sed upon a showing Lhat the court abm;;ed its disc..:rctioll· ... 'An abuse of discn:"llon occurs ..vhen a trial eOurL III reaching conclusions. ll"crndes llr nmapplies the hl\l,.. or ~xcrcj'lt.'s judgm~nt which is f11ruufestly ill "ilL" Commonwealth v. Ji~cse, unre~tSona.ble or the rc~mlt of partiullI), prejudice. bias or 2013 WI 5229843, p. 12 (Pa.Super. 2013), intcrnal citations (limited . Pur~uant to Rule 402 of the Penns) IvaniJ Rules of L \idence. io llcder to be admissible, elidcllGe must be relevant. "]:vidcnte Lhat is not relevant is not admi,,~ibJc." Pa.R.[,·id. ·W2. Rule 4111 ofthc Pe:nnsylv3Tl13 Rules offyidcnce define ... relevant evide11CC as follows: Rule .j(J}. Trs/.fOr Relel'tllli t : "iricncc Hvidence is relevant 1/ raj il hu., ollJ·lendenc; 10 mah afact mure or Ie!>.) probable Ihcm it would be without the ewdenCE;, and (h) fhe Ji.7CI i\ ojcol1se.qllence In defernllning the action Pa.IU:\Id. 401. 34 Circulated 11/26/2014 09:14 AM At trial. the Defend3nl sought Casino tuken ( In 10 the aftemoon of January inrroduce surveIllance footLlf.!.e from the i\1eadows dpp::m;!lll purpose of ~ht.lwing he was wcanHg 1\.\0 2012. alier the third rape had llccurred, for Ihe I), different colored ltuOUIC than in the ATM fO(ltage <l (2) day~ earlier: \1R. 'ARYl"'\;. The i~!->u(' nllW IS there IS 11 video of the sur"cill.mce thai took place in the Meadows Casmo. \15. Ditb, Jfter I inquired. indicated that she :-ho\veJ that \'ide{l to pnor defense C\'lll1~~10 Arthur fuinger but is not phrnnmgon introducing 11 and does not ha"c it hen.' I don't h,1\e 811) recollection of it and l Jon'l have it. And Mr. IIcndersoc wants Ulat \'idt>tl produced for imroducuon 81 tnal. 'is, OJ IX.A. If the Co un remembers. m: already had discovery l1l11tions on tllI:-'. Thai \V3S one of the last rcmammg piece!'! (lr eVidence, and \lr 1'lIinger came in and said that was clear. aod that clo'>t?J nur di;;;\:overy ] don't h,ne it here. I Hr COl R J: I Sft\\ the \·Ideo. It <;ht)\\~ him \'valJ...mg with U1L' gre, or dark wlored hood). as 1 recall. \\ e're not go ing to relitigate that which has been reliliga.1t"J.. That ,<,unus famihar I Jnn·t h.,e lIl1) recoliection of seeing \\'hen !()u mention thm Jcscnpti01l. I do remember seeing somcthlllg like that. ~IR ~ARVH\. J ilL It. COURT: Sl) there we are. I"hat":, the prC'lblems ofrcpresenung yourself. MR.l\'ARVIN. I think irs my rcquJfl:ml:nI to put it on the re~ord. nil: COLIRT. And you've done a fine job. ~IR. "ARVI": rhank)"ou. Your ll onor. ~ IS. DITKA. Thank }OU 11.1. P 576-71. rhis Coun sees no re.lc"am pUI]}ose (WllI2) dl.fterent colored hoodie!. on culpabilIty had (J ill) 111 1\.\0 t('I this evidence The fucl that the Defendant wore (2) different da}s bas absolutely nothing to do with his lhe commiSSion of the rapes. The Corrunonwealth []e\-er alleged that the Defendant one hoodie - in fact. a.." lhe police search dl!monstr:ued. Ihe Defendant had multiple ,-, - Circulated 11/26/2014 09:14 AM honJlcs of ':>e\'eral different brand:) - weluding Champion and Nikc. A " l~ identified a differe.nt C(lior hoodie than the vne seen on the January 7, 2012 (.:aslno footage, Since there was never an averment that the Defendant had only one hood ie, viueo footage of him in di frerenl coillr hoodie.;; is llllt probative of anytlung and has absolutely no relevance to the case. fhis Coun W3:-. well within itS discretion in denying it5 adrnission. litis claim must faii. 11 DisCOVl'I)1 isslles Sill11lariy. the Det~ndnnt aver" a discovery violation with the above-discussed Mcado'vs surveillance tootage from .lanuar) 9,10]::!. lie daiml> Lhat tbe video was nevc:r lUined over to the dele.nse. However. 3<; is evident from the record. \[s. Ditb represented 10 this Court that she submitted the video wlhe Defcndalll's third attorney, Art t.ltingcr. Esquire. and after its contents were Jescribed . \Ir. 1\a.r\'in indicated thal he bad received and rtviewed that footage as well. (See T 'I p. 577, supra). Inasmuth 3S the defense clearly received tht:: video. this claim is mllst fail. 12 Sewr(lIlce lSlucfJ f-inal l). the Defendant argut.'s Ihal this Coun cITed in denying his Motion 10 Sever due to the prejudice rrom the number and nature of tile cbarges. 111i5 claim is also meritless. J he joinder ('If lnfQrmatinns is controlled by Rule 582 of the Pelmsy\vania Ruks of Crimlllal Procedure wh ich stcl\C-.S, in releHl.Ilt part Rule 582. Joinder - Trial o/Separate In.dictments or JII!ormaliollj' (A) StGlldurru (I) OJ)ense.~ charged in separate indictments or injOrmmiofls may be tried logelher if (a) the evidence 0/ each oflhe offenses would be admissible ill a separate {rial lor the o{her and is capable of separation by tire fury so thaI there is no danger oj confusion; or 36 Circulated 11/26/2014 09:14 AM (b) the olTcnses charged are based on ihe same act or transaction Pa.R.Crim.Pro.582 "A motion for severance is addressed to the sound discretion of the tna) court. and ... IlS decision will not be disturbed absent a marufest abuse of discretion. The critical consideration is whether the appellant was prejudiced by the trial court's decision not to sever. The appellant bears the burden of establishing (Pa.Super. 2013). suc~ , prejudice." Commonwealth v. Page. 59 A.3d J 118, 1133 "Evidence of distinct crimcs ... is tldmJssible ... to show a common plan, scheme or design embracing commission of multiple crimes, or to establish the identity of the perpetrator, so long as proof of one crime tends to prove the otbers... This will be true when there are shared similarities in the details of each crime." Commonwealth v. Keaton, n9 A.2d 529.537 (Pa. 1999). As discussed in great detail above, the three rapes were virtual ly identical in nature and method. The three (3) rapes occurred within two (2) days of each other. In each instance a man dressed in dark clothing, wearing a mask, hat and sunglasses, and carrying a gun entered the residence of a young woman by coming in behind her as she entered. In each of tbe cases, the man first demanded money and then made thf> victims take otT their clothes. In each of the cases. the man then '~posed" the women in a kneeling position and raped them from behind. ~ two of the cases. the man taped up the women's wrists and ankles in an identical fashion. In each of the cases, the man threatened to kiIJ his victim ifshe did nol submit to his commands. The facts of this case clearly estabHsh a logical connection and a common scheme, pLan or design in the serial rapes. ' The evidence was readily separable between the three (3) rapes. and this Court makes particular referance to the analysis of the women's rape kits and comparison to 37 Circulated 11/26/2014 09:14 AM the Defendam's DNA by three (3) separate technicians. There was nothing confusing about the evidence that rendered the jury incapahle of discerning between the ~~Ises. The Defendant's prejuJice argument is without merit. By it... very nature. all eviJence admitted by tbe Commonwealth is prejudiciaJ to n crimimd defcnillmt fhe rapes in question wcre ckarly part of a crime spree committeJ by a serial rapist. The Defendant IS undoubtedly upset with lhc nature and quantity of evidence agai.nst J1irn. but ultimatel), that \\as CODSCljuencl' of his own making. ~e\er~UlCe The t"\ H iJence \\as not so unduly prejudiciaJ as to require a.nd this Court was well within its discretion in Jenying the r..-Iolion to Sever. Tlus d[lim must fail A.ccorJi ngly, for the above reasons of fact and law, rhe j udgment of sentencl! entered on }. fn.rch 26. 2013 must be affinned. BYTHECOlRI: I 38 Circulated 11/26/2014 09:14 AM cc# r Crime ~18 -t Rape ~nVOluntary Deviate SexuallnterCQUfSe 20'201873 (IDSI) ---+-.~ l t ~- !201201874 - r Rape Indecent Assault RObbery - Senous Bo~ In~ InllmldatJon ofWllness_or Victim +-Bur.9l~ J,. _ Persons Not to __ ~os~ss Firearm , Unlawful Restramt False Imprisonment _ _~Terro_ri_s_ T_hr_ t'~_ eats I-- __ Theft b Unlawful lakin!!.. __ P Receiving StOlen Property·_ __ Access Device Fraud POSseSSI!:!9. Instruments of Crime Rape --I IDSI ---+-:Guil!y_ 3124_._ 1 --I i 3126(0)(~ .• 3701lajl!l[il 3502 GUlI~ GUllly GUilt __ Guilty SeYered , 6105(a)(1) ~07(a) _ 2903 2902(a1 _ Guilty Guil!y - I::: NFP NFP NFP NFP - . NFP Guilty Gu& "UIIL GulI'y 2?06(a){1} NFP , NFrP _ _ I NFi' ~-- GUill 312~all!.L _ __ sexua~ssau u I!25.@10 10-20 years {~cutlve) t Asravated Indecent Assault ~99ravaled Indecent Assault 1 I GUllly 3925(a) 3121(a)(1) t Recel:!!.n~~!Qlen Propert~ Sentence GUilty GUilty 3921~ -:: ihe, t by"-Unlawful T8k,!lliL f _ 3121(a)~ 3123(a)( 1) 3125(a)(1) A9.9r~"ated Indecent Assault r----- OispositfOn p •. C.S.A.) _ Lggravated Indecent Assault Sexual Assault 'nde -c-ent Assault - . Robbel'L- Senous BOdil~.DJurjl.Bu~ _____ _ Persons Nol to Possess Firearms ~ssesslng InstrUnlents t;Jf a Cnme ...£alse Impnsonment Unlawful Restramt . Terronslic Threats _ Section Victim =t,n NFP Guill ~125(a)( 1 t ~IIIY 3124 _ , ~26(alt11 NFP NFP NFP NFP- NFP Gul!!Y GuiIIL GUllly .370 1 ~l11(1 4952 350i(c)(1L I 6105(olj1) 2902(0) 2903leL _ GUII~ GUIII~ _ Severed Guiili _j~UII'L 2706(a)(1) . -2uil'LGUIIIL 3925@) _ _ GUIIIL40161_)(1) GUllly 39211~_ 907~ 3121(0)(') 3123(a)(1) Guil!y I Gulily ~GuIlIY -- NFP NFP NFP NFP NFP NFP NFP 10-20 years Jf~u tl~ 10-20 y~ars _ . Circulated 11/26/2014 09:14 AM - (consecutive) - NFP _ NFP _ __ Aggravated Indecent Assault ~.9Y!a"ated Indecent Assault I_ \,;)umy Sexual Assault Indecent Assault Robb~ - Serious Bodily Inju'l.. -t ~~a?~~L_ . Intimidation ofWllness or Victim Unlawful Restraint -+-~Ul~ty False Impnsonment Terroristic Threats t ~u~~ty Thefl by unlawft!f Tak'_"9.. 4- Recetvln~tolen Propefjy . Bur.ala,y'_ I Robbery -=- SeriOUs Bodily lnjur,- ---1 ~~= - :~t: NFP .NFP NFP - - 10·20 years ~nsecutl\leL-: 1 NFP NFP NFP NFP 1-2 years 4952 2902(0) .1!)03(a) .2706(a)11L 2705 1!!!-lmlOatiOn of Witness or Victim Unlawful Restramt -F'alse I~fmson~enl T erronstlc Threats .- Recklessly Endangenng Another Person t Possessing Instruments of Crime With Cnmmal lntent __ NFP --l NFP _ Persons Not to Possess Ftrearm i NFP -t-; ~F N ",P;-_ _ 1 ~ . r ~ 907(a ) jGUI~ -ll-oonsecutlve y I NFP I

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