Com. v. Proctor, A. ( 2021 )

J-S12037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY PROCTOR :
:
Appellant : No. 642 EDA 2020
Appeal from the Judgment of Sentence Entered October 8, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002606-2018
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: May 20, 2021
Anthony Proctor (“Proctor”) appeals from the judgment of sentence
entered following his convictions of three counts of indecent assault without
consent, two counts each of indecent exposure and criminal attempt, and one
count of indecent assault by forcible compulsion.1 We affirm.
In its Opinion, the trial court summarized the factual and procedural
history underlying this case as follows:
The offenses for which [Proctor] was convicted took place between
April[] 2017[,] and February[] 2018. There were two victims in
this case, Kristen Hall [(“Hall”)] and Gladine Mitchell [(“Mitchell”)].
The incident involving [] Hall occurred in February[] 2018, and the
incident with [] Mitchell occurred in April[] 2017. Both victims
worked with [Proctor] at Salisbury Behavioral Health
[(“Salisbury”)], in Upper Moreland, Montgomery County.
The incident with [] Hall occurred in the morning shortly
before [Proctor] arriving [sic] to work. [Proctor] entered [] Hall’s
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1 18 Pa.C.S.A. §§ 3126(a)(1), 3127(a), 901(a), 3126(a)(2).
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office, and shut and locked the door. He proceeded to pull down
his pants and expose himself to [Hall]. [Proctor] grabbed [] Hall’s
hand and placed it on his penis. He pulled [Hall] towards him,
while kissing the side of her face. [] Hall repeatedly tried to
unsuccessfully push [Proctor] away, as he continued to assault
her. [Proctor] indicated to [] Hall that he would be back for more
tomorrow, using vulgar language in reference to the female
anatomy. The incident ended when there was a knock at the office
door and [Proctor] walked away from [] Hall. [] Hall immediately
went to the office of the program director and informed her of the
incident. The program director called [] Hall’s direct supervisor to
inform her of what occurred.
A second victim, [] Mitchell, had a number of similar
encounters and incidents with [Proctor] beginning in April 2017.
The first incident occurred on [] Mitchell’s first day as a full-time
employee with Salisbury. [Proctor] approached [] Mitchell[2] from
behind, rubbed himself against her, and grabbed her just above
the groin area. Following that initial incident[,] there were
numerous occasions where [Proctor] would make inappropriate
and lewd comments when encountering [] Mitchell at work. []
Mitchell recounted an additional specific incident where [Proctor]
attempted to pull his pants down and force [] Mitchell to touch
him, while making inappropriate comments. These incidents were
also reported within the workplace.
Upon conclusion of the three-day jury trial, [Proctor] was
found guilty as to all eight (8) charges pursued at trial. A Sexually
Violent Predator [(“SVP”)] hearing was held on October 21, 2019,
the same date as [Proctor]’s sentencing. [] Kristin Dudley[, Ph.D.
(“Dr. Dudley”)] was certified as an expert and testified on behalf
of the Pennsylvania Sexual Assessment Board as to [Proctor]’s
status as a[n] [SVP]. After considering the testimony of Dr.
Dudley, th[e trial] court determined that [Proctor] was[,] in fact[,]
a[n] [SVP].
Subsequent to the SVP hearing, the [trial c]ourt held
[Proctor]’s sentencing hearing. [Proctor] received a sentence of
three (3) to twenty-three (23) months in the Montgomery County
Correctional Facility, followed by five (5) years’ probation.
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2 In its Opinion, the trial court inadvertently refers to Mitchell as Hall, though
a review of the notes of testimony confirms that the events described in the
trial court Opinion were experienced by Mitchell. See N.T., 5/9/19, at 9-11.
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Pursuant to the [trial] court’s determination that [Proctor] is an
SVP, [Proctor] was directed to comply with the requirements
mandated in the statute.[3]
[Proctor], through counsel, filed a Post-Sentence Motion on
October 31, 2019. After reviewing the Post-Sentence Motion and
[R]esponse by the Commonwealth, th[e trial] court denied
[Proctor]’s Post-Sentence Motion by [O]rder dated January 28,
2020. On February 13, 2020, [Proctor] filed a timely [N]otice of
[] [A]ppeal…. By Order dated February 14, 2020, the [trial court]
directed [Proctor] to file a statement of errors complained of on
appeal, pursuant to [Pa.R.A.P.] 1925(b). Th[e trial] court
received [Proctor]’s [Rule] 1925(b) [Concise] [S]tatement on
March 4, 2020.
Trial Court Opinion, 6/25/20, at 1-3 (some paragraphs combined; citations to
record omitted; footnotes added).
Proctor raises the following issue for our review: “Was the trial court’s
refusal to permit [] Proctor to cross-examine his accuser about bias arising
out of civil litigation related to the accusations against him reversible error?”
Brief for Appellant at 2.
Proctor argues that the trial court erred in not allowing him to cross-
examine Mitchell as to whether she had planned to pursue a civil suit, as it
would have revealed potential bias on the part of Mitchell when testifying
against Proctor. See id. at 8-24. Proctor asserts that the trial court’s refusal
to allow him to cross-examine Mitchell in this regard violated his constitutional
rights to confrontation, fair trial, and due process. Id. at 8-14. Proctor claims
that the trial court’s decision to restrict him from exploring this avenue of
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3 Pursuant to his designation as an SVP, Proctor was subject to lifetime
registration with the Pennsylvania State Police. N.T., 10/21/19, at 70.
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potential bias constituted reversible error and an abuse of discretion. Id. at
15-17. Finally, Proctor asserts that such an error was not harmless, as Mitchell
was one of the Commonwealth’s primary witnesses, and a direct accuser. Id.
at 20-22.
Our standard of review of the admissibility of evidence is well settled:
Admission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial
court clearly abused its discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.
Relevance is the threshold for admissibility of evidence.
Pennsylvania Rule of Evidence 401 provides as follows:
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) the fact is of consequence in determining the
action.
Pa.R.E. 401. Evidence is relevant if it logically tends to establish
a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption
regarding a material fact. “All relevant evidence is admissible,
except as otherwise provided by law. Evidence that is not relevant
is not admissible.” Pa.R.E. 402.
Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015)
(citations and quotation marks omitted).
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Further, “[a] trial court has discretion to determine both the scope and
permissible limits of cross-examination.” Commonwealth v. Briggs, 12
A.3d 291, 335 (Pa. 2011). “The trial judge’s exercise of judgment in setting
those limits will not be reversed in the absence of a clear abuse of discretion,
or an error of law.” Id. (quotation omitted).
Ordinarily, the scope of cross-examination of an adverse witness is
limited to matters brought out on direct examination, with the exception that
the trial court may permit questions outside the scope of direct examination
to show bias on the part of the witness. Commonwealth v. La, 640 A.2d
1336, 1350 (Pa. Super. 1994). However, the trial court “cannot allow cross-
examination to become a fishing expedition, where an examiner may ask
questions based on a subjective hunch, or worse, based on nothing at all….”
In Interest of M.M., 653 A.2d 1271, 1277 (Pa. Super. 1995).
At trial, Mitchell testified on redirect examination that she had decided
to testify because she felt guilty when she learned of what happened to Hall,
because she had not come forward earlier regarding her own experiences with
Proctor. N.T., 5/9/19, at 58-59. On re-cross examination, Proctor’s counsel
asked Mitchell, “You’re also here because you engaged an attorney to sue
Salisbury, is that correct?” Id. at 59. The Commonwealth immediately
objected, and the trial court sustained the objection. Id. Proctor’s counsel
then asked Mitchell, “Following your termination [from Salisbury], did you
engage an attorney?” and Mitchell responded, “Yes.” Id. at 60. The
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Commonwealth objected again, and the trial court sustained the objection.
Id. Proctor’s counsel asked, “And you received correspondence from that
attorney regarding Salisbury?” Id. The Commonwealth immediately
objected, and the trial court again sustained the objection. Id. Proctor’s
counsel responded that he believed the inquiry was relevant because it “goes
to the motivation of the witness.” Id. at 60-61. The trial court again sustained
the Commonwealth’s objection, and Proctor moved on to other areas of
inquiry.
However, Proctor did not present any evidence, either at trial or in his
appellate brief, that Mitchell actually pursued a civil action either against
Proctor or Salisbury. Cf. Commonwealth v. Butler, 601 A.2d 268, 271 (Pa.
1991) (holding that the appellant should have been afforded the opportunity
to cross-examine a witness, who was the defendant in a separate civil suit
instituted by the appellant, with evidence of the civil suit, as the outcome of
the trial could materially affect the probability of success in the civil action).
Consequently, we discern no abuse of discretion by the trial court in refusing
to permit Proctor to cross-examine Mitchell, where there was no indication or
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evidence that Mitchell had ever filed a civil lawsuit. See Tyson, supra; In
Interest of M.M., supra.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/21
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4 Our review of the record reveals that at trial, Proctor did not argue that the
trial court’s refusal to permit cross-examination of Mitchell regarding this issue
violated his rights under the United States or Pennsylvania constitutions. See
N.T., 5/9/19, at 60-61 (wherein Proctor’s counsel stated that the inquiry is
relevant because it “goes to the motivation of the witness.”). Accordingly,
Proctor has waived this claim on appeal. See Pa.R.A.P. 302(a) (stating that
issues not raised in the trial court are waived and cannot be raised for the first
time on appeal); see also Commonwealth v. Berryman, 649 A.2d 961, 973
(Pa. Super. 1994) (holding that constitutional claims are waived when not
properly preserved in the trial court). Further, though Proctor raised
constitutional claims in his Concise Statement, inclusion of a previously-
unpreserved issue in a concise statement does not cure waiver. See
Commonwealth v. Sauers, 159 A.3d 1, 10-11 (Pa. Super. 2017) (concluding
that the failure to include a confrontation claim does not cure waiver when it
was included, for the first time, in the appellant’s concise statement).
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