Commonwealth v. Branch, 1101 EDA 2019

CourtSuperior Court of Pennsylvania
Citation258 A.3d 497 (Table)
Docket NumberNo. 1101 EDA 2019,1101 EDA 2019
Parties COMMONWEALTH of Pennsylvania v. Louis Henry BRANCH, Appellant
Decision Date04 June 2021


Appellant, Louis Henry Branch, appeals from the aggregate judgment of sentence of 25 to 50 years of confinement, plus payment of the costs of prosecution, which was imposed after his jury trial convictions for two counts each of rape of complainant who is less than 13 years of age and aggravated indecent assault of complainant who is less than 13 years of age.1 After careful review, we affirm.

The record reflects that [A]ppellant was [initially] charged with 10 counts of rape of a child less than 13 years of age; 10 counts of aggravated indecent assault of a child less than 13 years of age; 2 counts of indecent assault -- complainant less than 13 years of age; and 1 count of unlawful contact with minor.
On April 5, 2016, [A]ppellant filed a petition for writ of habeas corpus alleging that his "confinement is unlawful and that the proceedings were in violation of due process of laws of the Federal Constitution and in violation of the Pennsylvania Constitution" because the evidence "did not establish [a] prima facie case" and [A]ppellant is "not guilty." ... By order dated May 24, 2016, but docketed on May 26, 2016, the trial court denied [A]ppellant's petition for habeas corpus . On June 24, 2016, [A]ppellant filed a notice of appeal to this court.

Commonwealth v. Branch , No. 1947 EDA 2016, unpublished memorandum at 1-3 (Pa. Super. filed August 15, 2017) (footnote omitted). On August 15, 2017, this Court quashed the appeal. Id. at 1. Appellant filed a petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied on November 8, 2017. Meanwhile,

on May 30, 2017, and [again on] October 19, 2018, ... Defense Counsel filed Motions to Withdraw, seeking appointment of new counsel. On both occasions the Motions were filed at [Appellant]'s behest and based on his refusal to cooperate with Defense Counsel, (allegations of irreconcilable differences, alleged irretrievable breakdowns of attorney-client communications,) and precipitated by his ungrounded initiation and pursuit of Disciplinary Board action against several members of Defense Counsel's office. The Disciplinary Board took no action on Appellant's complaints. Moreover, when called upon by the [trial c]ourt, [Appellant] failed to articulate, and the record likewise failed to reflect, any bases to support his ineffectiveness claims at either the February 20, 2018 hearing ... or the October 30, 2018 [hearing.2 ] ... Accordingly, the [trial c]ourt denied both Motions on February 21, 2018, and October 30, 2018, respectively.
On November 6, 2018, the case ... proceeded to a four-day jury trial, at which the Commonwealth proceeded on [two charges each of rape of complainant who is less than 13 years of age and aggravated indecent assault of person less than 13 years of age. Appellant] proceeded with the benefit of Defense Counsel's representation until after the jury was empaneled[.]

Trial Court Opinion, 10/3/2019, at 4-5 (footnotes omitted).

Moments before the jury trial was to commence, the following exchange occurred:

THE COURT: Anything further?
[DEFENSE COUNSEL]: No, Your Honor. I would just ask if [Appellant] wants me to continue to represent him or --
[APPELLANT]: No, Your Honor. She's fired. And I do not wish to represent myself. She's fired. She's dismissed.
THE COURT: You can't dismiss her. Your choice -- as I told you at a previous hearing, you have two choices. One, you can be represented by the Public Defender's Office, specifically [Defense Counsel]; or, two, you can represent yourself. They're your two choices. You've already indicated to me, on more than one occasion, that you don't want to represent yourself, and that [Defense Counsel] can represent you. Now we're at this juncture again, and I'm not going to be doing this every day.
[APPELLANT]: Your Honor, there's a complete breakdown in communication.
THE COURT: [Appellant], if there's a complete breakdown of communication, I lay that at your feet, not at the public defender's feet. It's you. It is pretty clear to me that you are obstreperous, that you seek to delay this matter, that you're finding every single excuse to do that. I'm not going to allow it.
[APPELLANT]: No, Your Honor. I wish to proceed to trial, but I want to proceed to trial with effective assistance of counsel.
THE COURT: You are receiving effective assistance of counsel ... Okay?
[APPELLANT]: No, Your Honor. Because they did not -- I brought this to her attention prior to what she's saying. ...
THE COURT: Here's where we are. And I'm going to ask you again, and then I'm not going to ask you anymore, nor am I going to allow to you interrupt this proceeding. All right?
You have two choices. We're going to go forward with [Defense Counsel], or we're going forward with you representing yourself. That jury is sitting back there and is coming out to hear this case at this point, barring something that causes me to declare a mistrial. I don't have that yet.
So let's direct as to whether or not you want to represent yourself one last time.
Do you wish to represent yourself? If you do, I'm obligated to go through a line of questioning with you to make sure you understand exactly what you're doing. We've done it already, but I'm going to do it again. If you don't want to represent yourself, then you are going to be represented by [Defense Counsel], and that's how we're going forward. So give me that answer one last time, sir.
[APPELLANT]: Your Honor, I'll represent myself. If that's what this [c]ourt wants, I'll represent myself.

N.T., 11/7/2018, at 14-17. The trial court then conducted a Grazier3 hearing.

At trial, during the Victim's testimony, the following occurred:

[Q.] Was there a time after this was happening that you did not regularly see [Appellant]?
A. Yes.
Q. Can you tell us a little bit about that time period, and how you felt at that time period, once you weren't regularly interacting with him?
A. Well, [Appellant] was in and out of jail a lot.
[APPELLANT]: Objection, Your Honor. Grounds for a mistrial, please. Thank you, sir.
[THE COMMONWEALTH]: May we be heard at sidebar, Judge?
THE COURT: Yes. ...
[THE COMMONWEALTH]: Judge, my question was directed to how she was feeling emotionally at the time. I did not ask her where he was. So it wasn't the intention of the Commonwealth to elicit that testimony. ...
THE COURT: ... I would have thought, since it is an issue, I guess, regarding this alibi -- and the alibi being that [Appellant] was in prison -- that unless and until specifically asked, you would have at least cautioned your witness to make sure that that was not brought up.
[THE COMMONWEALTH]: Judge, I can certify that that was. We talked in general about sanitizing the trial, so that we weren't discussing him being in prison --
THE COURT: I accept your representation.
[THE COMMONWEALTH]: I would just suggest that it's a spur-of-the-moment comment in response to my question about how she was feeling in the time period after she stopped seeing him regularly.

N.T., 11/7/2018, at 145-48. Immediately following the conclusion of this sidebar, the trial court instructed the jury:

I think you heard, at the time that the objection was raised in response to a statement that the witness made about the [Appellant] being in jail, I have sustained an objection. And as I told you in my opening remarks, when I sustain an objection and order something stricken from the record and direct that you not consider it, this is one of those times. You are to disregard that statement made by the witness and her answer in that regard. It is to have no effect on you. It's as if it was never said. So please disregard it, and we'll proceed from there.

Id. at 157. Prior to the final jury charge, the trial court informed Appellant and the Commonwealth:

[THE COURT:] Lastly, I do want to cover unless [Appellant] does not want me to highlight it anymore, I want to remind them again of my cautionary instruction at the time that it came out from [the Victim] that [Appellant] was in and out of jail. My intent is to just once again remind them that that was stated, I told them to disregard it, and they must disregard that, and not have any adverse inference against the defendant based on that testimony that I'm telling them to disregard.
So the question for you, [Appellant,] is, do you wish me to give that charge, again to remind them; or, given that I gave them a cautionary instruction and I told them to disregard it, I could just simply remind them again that in my opening instruction to them that I told them that any testimony that I ordered stricken should be disregarded by them; or, I could be more specific and say that came out, I'm directing you to once again disregard it because I ordered it stricken, and you can have no adverse inference by virtue of it. I can go either way. I can be specific or general.
[APPELLANT]: I want you to be very specific, Your Honor.

N.T., 11/8/2018, at 70-71. During final jury instructions, the trial court gave the agreed-upon charge:

As I advised you in my opening instructions, part of my role in this case is to rule on any objections raised during the course of the trial; and that when I have sustained an objection and ordered that evidence to be stricken, you are to disregard that evidence. You may recall that [the Victim] referenced [Appellant]'s incarceration during her testimony. And as I instructed you at the time, you are to disregard that statement and draw no adverse inferences from her reference to [Appellant] being incarcerated. I now reemphasize that cautionary instruction. That statement should have been already disregarded by you, and it certainly needs to be disregarded by you now, and has no place in your deliberations.

N.T., 11/9/2018, at 31.

On November 9, 2018, a jury convicted Appellant of two counts each of rape and aggravated indecent...

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