Com. v. Baker, T. ( 2023 )

J-S36027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TELFORD EDWARD BAKER :
:
Appellant : No. 521 WDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000494-2021
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: MAY 18, 2023
Appellant, Telford Edward Baker, appeals from the judgment of
sentence entered in the Somerset County Court of Common Pleas, following
his jury trial convictions for aggravated assault, simple assault, recklessly
endangering another person (“REAP”), terroristic threats, and sixteen counts
of witness intimidation.1 We affirm.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with various offenses in relation to a
domestic incident involving his then fiancé, Samantha Johnson (“Victim”). A
jury trial commenced on October 14, 2021. Victim testified that on June 8,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, 2706(a), and 4952(a),
respectively.
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2021, she returned to the residence that she shared with Appellant and
Appellant became upset with her regarding a sandwich that she bought him
for dinner. Appellant began to berate Victim and call her names. Appellant
proceeded to throw several objects at Victim, including the sandwich, a fan,
and a gun scope. Some of the objects struck Victim, resulting in bruises to
her arms and legs. Victim further testified that she walked away from
Appellant and began doing the dishes. Appellant walked over to her and told
her that she needed to leave. Appellant then wrapped both arms around
Victim’s neck and squeezed so hard that she felt like she was going to pass
out. Appellant stated that he was going to kill Victim and that she needed to
get out. At this point, Victim grabbed two kitchen knives for protection and
Appellant grabbed a spray bottle of insect killer. Appellant sprayed the insect
killer at Victim’s face and knocked one knife out of her hand. Appellant then
left the residence for approximately an hour.
When Appellant returned, Victim was preparing to go to sleep on the
couch and had hidden a knife under her pillow. Appellant berated Victim again
and repeated that he would kill her, and she needed to leave. Appellant had
Victim’s hunting rifle in his hand, and Victim retrieved the knife from beneath
her pillow. Appellant took Victim’s phone and walked into another room.
When Victim went to retrieve her phone, she saw Appellant hitting the screen
of her phone repeatedly with the rifle. When she asked Appellant for the
phone, Appellant raised the rifle up to her head, pulled it back and struck her
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in the face with it. Victim testified that blood immediately started pouring out
of her nose and she felt like she might faint. Victim then left the residence
and called 911.
Victim did not wait for the police to arrive and drove herself to the
hospital. Victim received treatment for a broken nose, cuts and bruises on
her body and face, and a concussion. Victim stated that following this incident,
she continues to suffer from migraines and is sensitive to light and screens.
After Appellant was arrested, he continued to regularly call Victim while he
was incarcerated. During these phone calls, Appellant would try to persuade
Victim to drop the charges. Victim testified that Appellant asked her over 15
or 16 times to drop the charges and/or not testify against him.
During cross-examination, Victim acknowledged that she stated on the
911 call that she believed Appellant would tell the police that she stabbed him.
Victim further stated that when Victim approached Appellant to retrieve her
phone, Appellant stated out loud that she stabbed him. Nevertheless, Victim
testified that she did not stab Appellant at any point during the night. After
this line of questioning, the following exchange took place:
[Appellant’s Counsel]: And then you ultimately encountered
the police at the hospital, is that right?
[Victim]: Yes.
[Appellant’s Counsel]: Did you tell them about the knife?
[Victim]: Yes.
[Appellant’s Counsel]: At this point, are you concerned
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about being in trouble?
[Victim]: No, because I grabbed the knife in self-defense
because [Appellant] has done physical harm to me before.
(N.T. Trial, 10/15/21, at 2.99).
Appellant’s counsel objected to Victim’s answer on the grounds that
Victim was testifying to prior bad acts prohibited by Pa.R.E. 404(b). The trial
court overruled the objection, noting that defense counsel opened the door to
the information by questioning Victim on why she was not concerned about
telling the police about the knife and raising the issue of self-defense. During
re-direct examination, Victim further explained that she hid the knife under
her pillow that night because she was scared that Appellant would hurt her
based on her prior experiences. Victim testified to two prior incidents where
an argument with Appellant turned physical and Appellant broke Victim’s nose.
State trooper, David Waldschmidt, testified that he responded to
Victim’s 911 call on the night in question. When he arrived at Appellant and
Victim’s residence, he noted that the front door was partially open and there
were droplets of blood on the front porch steps. When he entered, Trooper
Waldschmidt did not find anyone inside the residence. He noted that there
were objects scattered all around the house as if a physical altercation had
taken place. Additionally, there was a trail of blood from the bedroom,
through the living room, and out the front door.
Trooper Waldschmidt also testified that he listened to all the audio
recordings of Appellant’s calls to Victim while he was incarcerated. Trooper
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Waldschmidt stated that there were numerous occasions where Appellant
begged for Victim to drop the charges. Appellant’s tone in speaking to Victim
during these exchanges varied from angry and forceful to apologetic and
pleading. On one occasion, Appellant threated to self-harm if Victim
proceeded with the charges. On other occasions, Appellant told Victim that
she could use his debit card to pay her bills and stated that they could go on
a vacation together if he got out of prison. The Commonwealth submitted
transcripts of relevant portions of these phone conversations into evidence.
Jo Ellen Bowman was qualified as an expert in intimate partner violence
for the purpose of testifying to the dynamics of domestic violence in
relationships and victim behavior. Ms. Bowman testified that she had not
spoken with Victim or Appellant, had not reviewed their file, and did not know
any information about Appellant and/or Victim other than the allegations in
the instant case. Ms. Bowman educated the jury on general information about
domestic violence between intimate partners and explained why some victims
of domestic violence choose to maintain contact with their abuser after an
incident of abuse. During cross-examination, Ms. Bowman reiterated that she
did not know any information as it pertains specifically to Appellant and Victim
and acknowledged that men can also be victims of domestic abuse.
At the conclusion of the evidence, the jury found Appellant guilty of
simple assault, aggravated assault, terroristic threats, REAP, and 16 counts of
witness intimidation. On January 6, 2022, the court sentenced Appellant to
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an aggregate of seven to fifteen years of incarceration. Appellant filed a timely
post-sentence motion on January 11, 2022. On April 19, 2022, the court
partially granted Appellant’s post-sentence motion and modified the grading
of 14 of the 16 witness intimidation convictions from third-degree felony
convictions to second-degree misdemeanor convictions.2 The court denied
the remainder of Appellant’s post-sentence motion. As the grading
modification did not impact the court’s overall sentencing scheme, the court
did not resentence Appellant. Appellant filed a timely notice of appeal on April
29, 2022. On June 1, 2022, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant complied on June 10, 2022.
Appellant raises the following issues for our review:
1. Whether the trial court erred in denying Appellant’s
Motion In Limine and Post-Sentence Motion relative to
permitting [a] domestic violence expert that had no
independent knowledge of the facts of this case despite its
inherently prejudicial nature?
2. Whether the trial court erred in denying Appellant’s post-
sentence motion relative to permitting [Pa.R.E.] 404(b)
evidence during trial despite there being no invocation of a
permissible use?
3. Whether the trial court erred in denying Appellant’s Post-
Sentence Motion when it decided that the evidence satisfied
the sufficiency of the evidence standard for all charges
where there was a conviction?
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2 The court found that there was sufficient evidence for two of the witness
intimidation convictions to remain graded as third-degree felonies.
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4. Whether the trial court erred in denying Appellant’s Post-
Sentence Motion when it decided that the evidence was not
against the weight of the evidence for all charges where
there was a conviction?
5. Whether the trial court abused its discretion in denying
Appellant’s Post-Sentence Motion by sentencing [Appellant]
consecutively on the charges, and necessarily considering
the [Pa.R.E.] 404(b) evidence?
(Appellant’s Brief at 6-7) (reordered for purposes of disposition).
Appellant’s first two issues concern the admissibility of evidence. This
Court’s standard of review for issues regarding the admissibility of evidence is
well settled:
Questions concerning the admissibility of evidence are
within the sound discretion of the trial court ... [and] we will
not reverse a trial court’s decision concerning admissibility
of evidence absent an abuse of the trial court’s 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. [I]f in reaching a conclusion the
trial court [overrides] or misapplies the law, discretion is
then abused and it is the duty of the appellate court to
correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal
denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation
marks omitted).
Appellant’s third and fourth issues raise challenges to the sufficiency and
weight of the Commonwealth’s evidence. Appellate review of a challenge to
the sufficiency of the evidence is governed by the following principles:
The standard we apply in reviewing the sufficiency of the
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evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).
Additionally:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
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(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
Appellant’s fifth issue implicates the discretionary aspects of his
sentence. Challenges to the discretionary aspects of sentencing do not entitle
an appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue we conduct a four part analysis to determine: (1) whether
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; (3) whether appellant’s brief has a fatal defect; and (4) whether
there is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code. Commonwealth v. Hyland, 875
A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d
1057 (2005) (internal citations omitted).
This Court reviews discretionary sentencing challenges based on the
following standard:
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. 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, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
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Instantly, after a thorough review of the record, the briefs of the parties,
the applicable law, and the well-reasoned order and opinion of the Honorable
D. Gregory Geary, we conclude Appellant’s claims merit no relief. The trial
court’s April 19, 2022 order, and July 11, 2022 Rule 1925(a) opinion,
comprehensively discuss and properly dispose of the issues raised on appeal.
(See Order, filed 4/19/22, at 1-4; Trial Court Opinion, filed 7/11/22, at 2-29).
Specifically, regarding Appellant’s first issue, he argues that the trial
court erred by denying Appellant’s motion in limine to preclude Ms. Bowman’s
testimony based on the Commonwealth’s late disclosure of Ms. Bowman as an
expert witness. Nevertheless, the court found that Appellant was not
prejudiced by the late disclosure because the Commonwealth did not
intentionally withhold the information and disclosed Ms. Bowman’s name to
defense counsel as soon as she agreed to testify. Additionally, defense
counsel represented to the court that she would be prepared to cross-examine
Ms. Bowman and did not request a continuance when the court offered both
parties additional time to prepare their cases. The court also found no merit
to Appellant’s claim that Ms. Bowman’s testimony was unduly prejudicial
because her testimony provided relevant information to the jury about the
dynamics of domestic violence, victim responses thereto, and the impact of
domestic violence on victims after being assaulted. Additionally, Ms. Bowman
made clear to the jury that she did not know any information about the history
and dynamics of Appellant’s relationship with Victim, thereby minimizing the
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risk of any potential prejudicial inferences the jury might draw from her
testimony. (See Trial Court Opinion at 2-9). We discern no error in the court’s
evidentiary rulings, and Appellant’s first issue on appeal fails. See Belkap,
supra.
With respect to his second issue, Appellant claims that the trial court
erred in admitting irrelevant and highly prejudicial testimony about prior
instances of violence between Appellant and Victim. Nevertheless, the court
noted that Appellant’s counsel opened the door to the testimony by
questioning Victim about her statements to law enforcement about the knife
that she had during the altercation and raising the issue of whether Victim
was the initial aggressor. Additionally, the risk of prejudice was mitigated by
the court’s clear instruction to the jury that they could not use the testimony
as evidence of Appellant’s propensity to act violently but only for the limited
purpose of evaluating why Victim had a knife on the night in question. (See
Trial Court Opinion at 9-13). We discern no abuse of discretion in the court’s
evidentiary ruling. See Belkap, supra.
Regarding Appellant’s third issue challenging the sufficiency of the
evidence, the court found that the Commonwealth presented sufficient
evidence for the jury to find that Appellant acted with the specific intent to
inflict serious bodily injury required for Appellant’s aggravated assault
conviction. Specifically, Victim testified that Appellant repeatedly stated that
he was going to kill Victim, threw various objects at her, sprayed insect killer
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at her face, squeezed her neck so tight that she could hardly breathe, and
struck her in the face with a rifle with enough force to cause a broken nose
and a concussion. The court further explained that this evidence was sufficient
for the jury to find that Appellant intentionally, knowingly or recklessly caused
bodily injury to Victim to sustain his simple assault conviction. The jury was
free to believe Victim’s version of events and could reasonably conclude from
her testimony that the incident was not a “fight or scuffle entered into by
mutual consent.”
Regarding his terroristic threats conviction, the court found that
Appellant’s threats to kill Victim were preceded and followed by acts of
physical violence against Victim, providing a sufficient basis for the jury to
infer that Appellant threatened Victim with the intent to terrorize her.
Regarding Appellant’s REAP conviction, the court found that Appellant’s
actions in striking her in the face with a hunting rifle with such force as to
cause a broken nose and a concussion was sufficient for the jury to find that
Appellant placed Victim in risk of serious, permanent disfigurement, or
protracted loss or impairment of the function of a bodily member or organ.
Regarding the witness intimidation convictions, the court found that
Victim’s testimony that Appellant asked her to drop the charges over 15 or 16
times was sufficient evidence to sustain Appellant’s 14 counts of witness
intimidation charges, graded as second-degree misdemeanors. Additionally,
the transcripts of the phone calls submitted by the Commonwealth show that
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on one occasion, Appellant offered Victim money from his wallet and the use
of his debit card, and on another occasion, Appellant told Victim to pack her
bags to go on vacation as soon as he gets out prison. Taken together with
Appellant’s pleas and demands for Victim to drop the charges in the same
conversations, the court determined that there was sufficient evidence for the
jury to find that Appellant offered Victim a pecuniary or other benefit to sustain
two convictions of witness intimidation graded as third-degree felonies. (See
Trial Court Opinion at 16-26); (Order at 1-4). Viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, we agree
with the trial court that there was sufficient evidence to sustain all of
Appellant’s convictions. See Jones, supra.With respect to Appellant’s fourth issue, Appellant does not attack the
credibility of any of the Commonwealth’s witnesses or raise any issue with the
jury’s resolution of any inconsistencies in the testimony or evidence
presented. Rather, Appellant merely reiterated his arguments about the
sufficiency of the evidence. (See Trial Court Opinion at 26-29). Thus, we
agree with the trial court that Appellant failed to establish that the jury’s
verdict was against the weight of the evidence. See Champney, supra.With respect to Appellant’s final issue, Appellant timely filed a notice of
appeal, and preserved his sentencing issue in a timely filed post-sentence
motion and in a Rule 2119(f) statement. Further, Appellant’s claim that the
court imposed an excessive sentence as a result of reliance on an
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impermissible factor raises a substantial question. See Commonwealth v.
Allen, 24 A.3d 1058, 1064-65 (Pa.Super. 2011) (holding that substantial
question is raised when appellant alleges that his sentence is excessive
because of trial court’s reliance on impermissible factors). Nevertheless, we
agree with the trial court that there is no merit to Appellant’s claim. The court
sentenced Appellant to an aggregate sentence of seven to fifteen years of
incarceration, which falls within the standard range of the sentencing
guidelines. The court stated on the record that it fashioned the sentence
based on the serious and violent nature of Appellant’s conduct and Appellant’s
apparent lack of remorse. The court further noted that any lesser sentence
would have depreciated the seriousness of the offenses. The court made clear
that it did not consider impermissible factors such as Appellant’s prior bad acts
in sentencing but based its decision solely on Appellant’s conduct relative to
the convictions at issue here. The court imposed only two of Appellant’s
sentences consecutively, and imposed no further penalty on numerous other
counts for which Appellant was convicted. (See Trial Court Opinion at 13-15).
We discern no abuse of discretion in the court’s sentence. See McNabb,
supra.Accordingly, we agree with the trial court that all of Appellant’s issues
on appeal are without merit and we affirm the judgment of sentence on the
basis of the trial court’s order and opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2023
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