Commonwealth v. Thomas
Decision Date | 28 June 2021 |
Docket Number | No. 935 EDA 2020,935 EDA 2020 |
Citation | 258 A.3d 556 (Table) |
Parties | COMMONWEALTH of Pennsylvania v. Markus THOMAS, Appellant |
Court | Pennsylvania Superior Court |
Markus Thomas appeals from his February 21, 2020 judgment of sentence of forty to eighty years of imprisonment, which was imposed after a jury found him guilty of multiple counts each of rape of a child, involuntary deviate sexual intercourse ("IDSI"), aggravated indecent assault of a child, indecent assault of a child, and endangering the welfare of a child. We affirm.
In an opinion authored pursuant to Pa.R.A.P. 1925(a), the trial court provided an apt summary of the factual history of this case, as follows:
Rule 1925(a) Opinion, 5/14/20, at 2-3. During the two-day trial, Appellant was represented by Stewart Paintin, Esquire, of the Chester County Public Defender's office.1 In its case in chief, the Commonwealth introduced the aforementioned letter into evidence without objection and referred to it extensively in adducing testimony from the witnesses. See N.T. Trial, 4/9/19, at 12. On April 10, 2019, the jury retired to consider its verdict.
While the jury was on lunch break that day, it submitted a request to view the letter admitted as evidence by the Commonwealth. Without alerting the attorneys or Appellant, the trial court granted the request and provided a copy of the letter to the jury. See N.T. Trial, 4/10/19, at 57-58. Proceedings reconvened that afternoon after the jury had reached a verdict, but before it had been announced, at which time the trial court informed the parties of its response to the jury's question. Id . No objections were entered by either Appellant or the Commonwealth in response to this revelation.
Ultimately, the jury found Appellant guilty of the above-noted offenses. Immediately after the guilty verdict was read, Appellant requested that the jury be polled. See N.T. Trial, 4/10/19, at 64. The trial court granted Appellant's request and conducted a collective poll of the jury, wherein the trial court went through each of the charges and asked the members of the jury to verbally confirm in unison that the verdicts were individually correct and unanimous. Id . at 64-68. No dissenting voices were evident, and the jury members all expressed agreement in the verdicts as delivered. Although an individual poll of the jurors was not taken, Appellant did not object to the manner of the trial court's polling. Id . at 68.
On May 31, 2019, Laurence Harmelin, Esquire, was appointed to replace Attorney Paintin. Appellant filed a post-verdict motion for extraordinary relief asserting that Attorney Paintin had rendered ineffective assistance of counsel at trial. Additionally, Appellant alleged errors by the trial court that he claimed necessitated a new trial, including: (1) the trial court's purported failure to conduct a proper poll of the jury under Pa.R.Crim.P. 648(G) ; (2) a violation of Appellant's right to be present during the proceedings under Pa.R.Crim.P. 602(A) ; and (3) the trial court's refusal to issue a "prompt complaint" jury instruction regarding the delayed disclosure of the sexual abuse by the victims in this case. Ultimately, the trial court denied the motion in its entirety.
On February 21, 2020, the trial court sentenced Appellant to an aggregate term of forty to eighty years of incarceration, which included the application of four consecutive ten-year mandatory minimum sentences. Appellant filed a timely post-sentence motion seeking to reduce his sentence and alleging a number of other grounds for relief, which was denied. See Order, 3/3/20, at 1. On March 17, 2020, Appellant filed a timely notice of appeal to this Court. Both he and the trial court have timely complied with the mandates of Pa.R.A.P. 1925, by respectively filing a concise statement of errors complained of and an opinion.
Appellant has raised seven issues for our consideration, as follows:
Appellant's brief at 4-6 (cleaned up).
Appellant's first claim concerns the trial court's response to the jury's request to view the victim's letter. He asserts that the trial court's decision to not reconvene the parties and consider argument before allowing the jury to see the letter violated the requirement that Appellant "be present at every stage of the trial." See Appellant's brief at 18-24 ( ).
Rule 602(A) provides that "[t]he defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, ...." Pa.R.Crim.P. 602(A). This Court has interpreted this rule as conferring upon defendants a "rule-based right to be present for trial[.]" Commonwealth v. Tejada , 188 A.3d 1288, 1293 (Pa.Super. 2018). This Court has previously held that alleged violations of a defendant's right to be present during trial proceedings present pure questions of law. Accordingly, our standard of review is de novo . Id . at 1293.
Appellant is correct, insofar as the trial court's response to the jury's request was received, considered, and consummated without the presence of either party in this case. See N.T. Trial, 4/10/19, at 57-58. Accordingly, we believe that this constitutes a violation of Appellant's rule-based right to be present under Rule 602(A). See Commonwealth v. Williams , 959 A.2d 1272, 1282-83 (Pa.Super. 2008) ( ). While the trial court in the instant case does not concede that a violation occurred, it asserts that any legal error was harmless. We agree.
Harmless error exists where, inter alia , "the error did not prejudice the defendant or the prejudice was de minimis ." Commonwealth v. Stokes , 78 A.3d 644, 654 (Pa.Super. 2013). As a general matter, "non-constitutional violations of Rule 602(A)" are susceptible to harmless error analysis.2 Id . at 1283. Instantly, the gravamen of Appellant's argument under Rule 602(A) is that he was denied the opportunity to oppose the jury receiving a copy of the at-issue letter. Specifically, Appellant...
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