Com. v. Nottingham, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD NOTTINGHAM, :
:
Appellant : No. 1645 MDA 2018
Appeal from the Judgment of Sentence Entered June 26, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001870-2017
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 24, 2020
James Edward Nottingham (“Nottingham”) appeals from the judgment
of sentence imposed following his conviction for perjury.1 Additionally,
counsel for Nottingham has filed a Petition to Withdraw from representation
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s
Petition to Withdraw, and affirm Nottingham’s judgment of sentence.
This appeal arises from a complicated procedural history. Nottingham
was originally arrested in July 2015, following an incident in which Nottingham
was accused of threatening his then-girlfriend, her daughter, and several of
her family members; preventing her from leaving their home; assaulting
them; damaging a vehicle; aiming a firearm in their direction; and, most
relevantly to the instant appeal, possessing a firearm as a person not
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1 18 Pa.C.S.A. § 4902.
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permitted to do so. He was charged with a variety of offenses related to the
incident; however, the persons not to possess firearms charge was severed
for trial. At trial on the firearms offense (the “Possession Trial”), Nottingham
testified that he believed he was lawfully able to possess a firearm. According
to Nottingham, he had paid an attorney in Florida to expunge his record of his
previous conviction that disqualified him from possessing a firearm. On
November 1, 2016, Nottingham was convicted of persons not to possess, and
he was sentenced to serve five to ten years in prison.2
Nottingham subsequently went to trial on the remaining offenses (the
“Second Trial”). There, Nottingham testified specifically that he did not
possess a firearm on the night of the incident. A jury found Nottingham guilty
of unlawful restraint, endangering the welfare of a child, terroristic threats,
possessing instruments of a crime, simple assault, and recklessly endangering
another person. Nottingham was sentenced to serve an aggregate term of
three to six years in prison, to be run consecutively to the persons not to
possess conviction.
Immediately thereafter, Nottingham was charged with perjury, the sole
conviction underlying the instant appeal, relating to his statements made
under oath during the Possession Trial. At trial, the Commonwealth presented
Nottingham’s testimony from the Possession Trial, as well as Nottingham’s
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2 Nottingham filed a direct appeal from his persons not to possess conviction
following the Possession Trial, and this Court affirmed the judgment of
sentence. See Commonwealth v. Nottingham, 193 A.3d 1064 (Pa. Super.
2018) (memorandum opinion).
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testimony from the sentencing hearing following his conviction, where he
testified that he laid the firearm down when he saw police officers
approaching. Finally, the Commonwealth presented Nottingham’s testimony
from the Second Trial, where he denied possessing a firearm, as well as
testimony from his probation officer. Nottingham was convicted, and was
sentenced to serve twelve to sixty months in prison, consecutive to all
sentences to be served for his other convictions.
Nottingham filed a post-sentence Motion on July 2, 2018, followed by a
timely, pro se, Notice of Appeal. Three months later, Nottingham’s counsel
withdrew the Notice of Appeal because the post-sentence Motion was still
pending before the trial court. Shortly thereafter, the trial court filed an Order
denying Nottingham’s post-sentence Motion.3 Nottingham proceeded to file,
pro se, the instant Notice of Appeal on October 1, 2018.4
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3 Despite the docket revealing that the trial court filed an Order, dated
September 11, 2018, regarding the post-sentence Motion, the certified record
does not include the Order, and a copy of the Order was not included as an
exhibit or attachment in any filings of record. However, the trial court’s
Pa.R.A.P. 1925(a) Opinion states that the post-sentence Motion was, in fact,
denied by its September 11, 2018 Order. See Trial Court Opinion, 11/21/18,
at 1.
4 Following the filing of the Notice of Appeal, this Court entered a Rule to Show
Cause, dated October 24, 2018, directing Nottingham to show cause as to why
the instant appeal should not be quashed as premature. Nottingham filed an
Answer, pro se. Nevertheless, this Court discharged the Rule to Show Cause
on the basis of the trial court docket, and referred the issue to the merits
panel.
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Additionally, the trial court docket reveals an Order, dated September
17, 2018, permitting Nottingham’s then-counsel to withdraw, and appointing
Nottingham alternative counsel; however, the record does not reveal any
indication that a hearing was held pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1988). As a result, this Court issued an Order, dated
December 28, 2018, remanding the matter to the trial court to hold a Grazier
hearing, and ordering the trial court to submit a supplemental record
containing the September 11, 2018 Order denying Nottingham’s post-
sentence Motion. By Order dated January 18, 2019, the trial court indicated
that it convened for a Grazier hearing, determined that Nottingham did not
wish to waive his right to counsel, and forwarded a supplemental record to
this Court for our appellate review.5
On August 9, 2019, Nottingham’s counsel filed a court-ordered Concise
Statement of Matters Complained of on Appeal. On September 13, 2019, the
trial court determined that counsel had abandoned Nottingham, and appointed
new counsel to represent him in his appeal. On November 12, 2019,
Nottingham’s new Counsel filed a Motion to Withdraw from representation,
and an accompanying brief pursuant to Anders and Santiago.
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5 We note that, in the record our December 28, 2018 Order instructed the trial
court to include a copy of the September 11, 2018 Order denying
Nottingham’s post-trial Motion; the trial court failed to do so. Because the
failure to include a copy of the Order does not meaningfully impede our
appellate review, we will review Nottingham’s claims on the merits.
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In the Anders Brief, Counsel presents the following issues for our
review:
I. Whether an application to withdraw as counsel should be
granted[,] where counsel has investigated the possible
grounds for appeal and finds the appeal frivolous[?]
II. Whether the trial court erred by imposing a state sentence
consecutive to [Nottingham’s] other state sentences[?]
III. Whether the verdict was against the weight of the
evidence[?]
IV. Whether the trial court erred in failing to declare a
mistrial[?]
Anders Brief at 7.6
We may not address the merits of the issues Nottingham raises on
appeal without first reviewing counsel’s request to withdraw from
representation. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief must[]
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel
believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
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6Because Counsel’s ability to withdraw is a threshold issue to our review, we
will not directly address this question further.
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(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to [her] client. Attending the brief must be a
letter that advises the client of his right to [] “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the court’s
attention in addition to the points raised by counsel in the Anders
brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.
Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied the technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear on its face to be any arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
Here, counsel’s Motion to Withdraw states that she has made a
conscientious examination of the record and believes that Nottingham’s
appeal is frivolous. The Petition states that counsel informed Nottingham of
her intention to withdraw, provided Nottingham with a copy of the Petition
and the Anders Brief, and advised him of his right to retain new counsel, or
to proceed pro se to raise any points he believes are worthy of this Court’s
consideration.7 Finally, counsel’s Anders Brief substantially complies with the
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7We note that Nottingham proceeded to file several pro se responses to
Counsel’s Anders Brief, which were submitted for this Court’s consideration.
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requirements in Santiago. Accordingly, we next conduct a review of the
issues raised by Nottingham, and of the record, to ensure that no issues of
arguable merit have been missed or misstated. See id.
Nottingham first challenges the discretionary aspects of his sentence.
He argues that the trial court, in imposing its sentence of twelve to sixty
months in prison, to be served consecutively with his pre-existing sentences,
failed to appropriately consider all of the relevant factors and circumstances.
Anders Brief at 17. Specifically, he argues that the court should have
considered that he was serving another prison sentence at the time the instant
sentence was imposed, and that the perjury case arose from the same
proceedings and circumstances that led to his other sentence. Id. In support,
Nottingham argues that the Commonwealth offered him a concurrent
sentence, rather than the consecutive sentence that the trial court imposed.
Id.
We approach Nottingham’s arguments mindful that the right to appeal
a challenge to the discretionary aspects of a sentence is not absolute.
Commonwealth v. Williams, 787 A.2d 1085, 1087 (Pa. Super. 2001).
[T]o reach the merits of a discretionary sentencing issue, we must
determine: (1) whether the appellant has filed a timely notice of
appeal; (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 the appellant’s brief has a fatal
defect, [s]ee Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is
inappropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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Id. at 1087-88 (citing Commonwealth v. Petaccio, 764 A.2d 582 (Pa.
Super. 2000)).
Nottingham’s argument, in short, is an excessiveness claim. At the
outset, we observe that Nottingham’s brief appears to substantially comply
with the above requirements.8 As a result, our review turns to whether
Nottingham has raised a substantial question.
A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010).
Rather, the imposition of consecutive rather than concurrent sentences will
present a substantial question in only “the most extreme circumstances, such
as where the aggregate sentence is unduly harsh, considering the nature of
the crimes and the length of imprisonment.” Commonwealth v. Lamonda,
52 A.3d 365, 372 (Pa. Super. 2012). However, “an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.” Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Additionally:
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8 We note that Nottingham failed to include a separate Pa.R.A.P. 2119(f)
statement in his Anders brief. While ordinarily, a Rule 2119(f) statement is
a prerequisite for our review, this Court has previously reviewed the
underlying matter where counsel files an Anders brief without a separate Rule
2119(f) statement. See Commonwealth v. Ziegler, 112 A.3d 656, 661 (Pa.
Super. 2015). As a result, we do not consider counsel’s failure to include a
Rule 2119(f) statement in the Anders brief as precluding our review of
whether Nottingham’s issue is frivolous.
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In determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Based on our review, we conclude that Nottingham’s challenge to the
imposition of consecutive sentences as excessive, together with his claim that
the trial court failed to consider the mitigating factors of his current service of
sentence, the circumstances from which this case arose, and the
Commonwealth’s offer of a concurrent sentence, presents a substantial
question. As a result, we grant Nottingham’s petition for allowance of appeal
and address the merits of his claim.
Our standard of review is well settled:
[s]entencing 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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)
(citations omitted). Additionally, our Supreme Court has stated:
[w]here pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of the relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself. In
order to dispel any lingering doubt as to our intention of engaging
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in an effort of legal purification, we state clearly that sentencers
are under no compulsion to employ checklists or any extended or
systematic definitions of their punishment procedure. Having
been fully informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed. This is particularly true,
we repeat, in those circumstances where it can be determined that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the weighing
process took place in a meaningful fashion.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
At sentencing, the trial court reviewed Nottingham’s existing sentence,
as well as his pre-sentence investigation report. See N.T., 6/26/18, at 2-8.
Nottingham testified under oath at the sentencing hearing, where he brought
to the trial court’s attention, at length, many of the same issues of fact—both
related to the instant perjury conviction and the prior firearms conviction—
and repeatedly professed his innocence. Id. at 9-16. Nottingham’s counsel
specifically requested that the trial court impose a concurrent sentence, given
the circumstances and the fact that Nottingham was already serving his
sentence for the firearms conviction. Id. at 14-15. The Commonwealth
requested a term of 18 to 60 months in prison, to be run consecutive. Id. at
17-18. Finally, the trial court fashioned its sentence, and reasoned as follows:
Mr. Nottingham, since I was part of your earlier sentence, which
was just recently affirmed by the Superior Court, I’m familiar with
the circumstances of the underlying case. It’s never a good thing
when perjury charges have to be filed against an individual
because what that’s alleging is that you’re lying in a material
portion of a charge which was filed against you, which is absolutely
your right to go to trial, absolutely your right to go to trial on the
other charges which were filed against you. I disagree with the
Commonwealth in the length of the sentence, but I also disagree
with your attorney because this is a crime that’s obstruction of the
administration of justice type crime. To sentence you
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concurrently would send the wrong message to the universe that
it’s okay to lie under oath. The jurors found that you lied under
oath.
***
And that’s absolutely your right to believe [that Nottingham did
not lie], but I’m basing what I’m doing on the results of the jury
that had the opportunity to observe you in open court. This is not
a conversation, Mr. Nottingham.
***
So what I’m going to do is I’m going to sentence you to a 12 to
60 month sentence. It’s going to run consecutive to the sentences
that you’re currently serving[.]
Id. at 18-19.
We conclude that the trial court ably explained its decision for imposing
Nottingham’s consecutive sentences, personally recalled Nottingham’s earlier
trials and the circumstances surrounding his testimony, and took great time
and effort to consider Nottingham’s testimony at sentencing and to explain to
Nottingham both the legal bases for the trial court’s rulings, as well as the
rules of criminal and appellate procedure. Thus, Nottingham’s claim that the
court failed to consider all of the relevant factors is meritless. The trial court
was free to impose a consecutive sentence for perjuring himself as he
mounted his defense in his earlier trials, and we see no abuse of discretion in
the trial court’s imposition of sentence.
Next, Nottingham argues that his guilty verdict for perjury was against
the weight of the evidence. He asserts that the trial court could not have
convicted him of perjury because the Commonwealth failed to prove beyond
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a reasonable doubt that Nottingham knowingly made false statements
regarding his possession of the firearm. Anders Brief at 18.
Though Nottingham’s argument appears on its face to be regarding the
weight of the evidence, it appears to actually be a sufficiency claim.
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (explaining the
distinction between a sufficiency of the evidence claim and a weight of the
evidence claim) (citations omitted). In reviewing a sufficiency challenge, a
court determines whether the evidence, viewed in the light most favorable to
the verdict winner, is sufficient to enable the fact-finder to find every element
of the crime beyond a reasonable doubt. Commonwealth v. Jackson, 924
A.2d 618, 620 (Pa. 2007).
The Crimes Code defines perjury, in pertinent part, as follows:
(a) Offense defined.--A person is guilty of perjury, a felony of
the third degree, if in any official proceeding he makes a false
statement under oath or equivalent affirmation, or swears or
affirms the truth of a statement previously made, when the
statement is material and he does not believe it to be true.
(b) Materiality.--Falsification is material, regardless of the
admissibility of the statement under rules of evidence, if it could
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have affected the course or outcome of the proceeding. It is no
defense that the declarant mistakenly believed the falsification to
be immaterial. Whether a falsification is material in a given factual
situation is a question of law.
***
(f) Corroboration.--In any prosecution under this section,
except under subsection (e) of this section, falsity of a statement
may not be established by the uncorroborated testimony of a
single witness.
18 Pa.C.S.A. § 4902.
The crime of perjury is not synonymous with “false testimony.” In
order to constitute the crime of perjury several elements must be
present, among which is the requirement that the false testimony
must have been material to the proceeding at which it was made.
The issue as to whether false testimony is material to the
proceeding is a question of law. A false statement, made under
oath, is material if it could have affected the course or outcome of
the proceeding. Materiality is to be determined as of the time that
the false statement was made. Furthermore, the test of the
materiality of a false statement is whether it can influence a fact-
finder, not whether it does. The fact that the false testimony was
unnecessary to accomplish the end in view will not render it
immaterial.
Commonwealth v. Lafferty, 419 A.2d 518, 521-22 (Pa. Super. 1980)
(citations omitted; paragraphs combined; some quotations omitted).
Accordingly, the elements of perjury are established if: (1) in an official
proceeding; (2) under oath or affirmation to tell the truth; (3) the defendant
made a false statement knowing it to be false; and (4) the statement was
material to the matter then at issue. Id.
Upon our review of the record, we conclude that there was sufficient
evidence to demonstrate that Nottingham knowingly made false statements
under oath; the statements were material; and the statements were
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corroborated. Nottingham argues that, despite his conflicting testimony, his
denial that he possessed the firearm at trial was based on his belief that the
specific firearm placed into evidence was not the same firearm that he
possessed. Anders Brief at 20. Nottingham testified during the Possession
Trial that he had taken possession of the firearm, and indicated that his
possession of the firearm took place after he believed he had paid an attorney
in Florida to expunge his record. N.T., 6/8/18, at 33. Nottingham also
testified at his sentencing hearing that he did, in fact, possess the firearm.
Id. at 34-35. During the perjury trial, Nottingham he denied possessing the
firearm on the night of the incident, denied that he ever testified to possession
of the firearm, and argued that the firearm submitted into evidence and shown
in photographs taken at the scene was not the same firearm. Id. at 37-38,
60-61. Finally, Nottingham’s probation officer testified that Nottingham had
made statements indicating that he had possessed the firearm. Id. at 54-56.
Nottingham’s statements at issue were clearly made during an official
proceeding and were made under oath. Despite Nottingham’s statements to
the contrary, we are compelled to determine that Nottingham did, in fact,
possess the firearm, as he was convicted of persons not to possess and his
conviction was upheld by this court on direct appeal. See Nottingham,
supra. Nottingham knew his statements were false, despite his current
contention that the specific firearm depicted in evidence photographs was not
his. Finally, Nottingham’s statements that he did not possess the firearm were
plainly material to the matter at issue of determining his guilt of being a person
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not permitted to possess firearms. As a result, viewing the evidence in the
light most favorable to the Commonwealth, the evidence presented was
sufficient to establish that the elements of perjury were satisfied and that
Nottingham made false, material statements that he knew to be false, under
oath, during an official proceeding. See Lafferty, supra.
Finally, Nottingham argues that the trial court erred in failing to declare
a mistrial. Anders Brief at 21. At sentencing, Nottingham requested a
mistrial when he was afforded the opportunity to make a statement prior to
the trial court imposing its sentence. Id. He argued three factors as the
bases for the mistrial: the evidence presented against him was tampered with;
his attorneys were uncooperative with his strategic preferences at trial; and
the trial court improperly allowed jurors to see him in ankle restraints as the
jurors were dismissed to deliberate. Id. at 21-22; see also N.T., 6/26/18, at
9-13.
Nottingham, notably, did not request a mistrial at any point until he
appeared at his sentencing hearing, even though Nottingham claimed that he
was aware of the issue during the trial. See N.T., 6/26/18, at 13. Because
Nottingham did not properly preserve any issue surrounding the trial court’s
procedure during the dismissal of the jury for deliberations, we are compelled
to find that his argument is waived. See Commonwealth v. Rossier, 135
A.3d 1077, 1086 (Pa. Super. 2016) (en banc) (holding that, in order to provide
trial courts with an opportunity to correct errors at the time they were made,
one must object to errors, improprieties, or irregularities at the earliest
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possible stage of the criminal adjudicatory process); see also
Commonwealth v. Clair, 326 A.2d 272, 273 (Pa. 1974) (stating that the
defense cannot, without first challenging at trial and preserving on appeal,
complain of trial errors following a guilty verdict).9
In the final stage of our appellate review, this Court must undertake a
review of the record to determine whether any additional non-frivolous issues
exist. Dempster, 187 A.3d at 272. We have reviewed the record in this case,
including Nottingham’s voluminous pro se correspondence both with this Court
and the trial court. In Nottingham’s most recent “Motion for Summary
Judgment,” filed with this Court in response to counsel’s Anders brief, he
brings to our attention a variety of issues related to both his perjury conviction
and the previous convictions related to the Possession Trial and the Second
Trial.
Specifically, Nottingham argues—as he has done consistently
throughout the criminal proceedings following his arrest—that the rifle that
was depicted in photographs taken at the scene was not placed by him; the
crime scene was tampered with by police officers; his attorney and various
other actors of the justice system are acting in concert against him; and that
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9 We note that the basis for Nottingham’s motion for a mistrial at his
sentencing appears to be largely based on evidentiary claims that he has
repeatedly raised and which the trial court rejected, see Nottingham, supra.
Additionally, there appears to be no support in the record for his new claim
regarding the trial court’s conduct in dismissing the jurors. A petition for relief
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, rather than
a motion for a mistrial, would be the appropriate venue for Nottingham to
pursue his claims regarding ineffective assistance of counsel.
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he is entitled to relief under various provisions of the Pennsylvania and United
States Constitutions. Appellant’s Motion for Summary Judgment, 11/21/19,
at 1-6. Our review of the issues raised by Nottingham discloses no other
“arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Dempster, 187 A.3d at 272. As such, we grant counsel’s Petition
to Withdraw, and affirm the judgment of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/24/2020
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