J-A12034-24
2024 PA Super 184
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JONES :
:
Appellant : No. 1734 EDA 2022
Appeal from the Judgment of Sentence Entered May 24, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009135-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JONES :
:
Appellant : No. 1736 EDA 2022
Appeal from the Judgment of Sentence Entered May 24, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000018-2020
BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. *
OPINION BY STEVENS, P.J.E.: FILED AUGUST 19, 2024
In these consolidated appeals,1 Anthony Jones appeals from the May 24,
2022 aggregate judgment of sentence of 31 to 64 years’ imprisonment,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant’s appeals at Nos. 1734 EDA 2022 and 1736 EDA 2022 were sua
sponte consolidated by this Court on September 13, 2022.
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followed by 3 years’ probation, imposed after a jury found him guilty of rape,
involuntary deviate sexual intercourse (“IDSI”), sexual assault, strangulation,
burglary, and intimidation of a witness.2 After careful review, we affirm the
judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
[O]n November 5, 2019, the complainant Sade Levan,
had called [Appellant], whom she had known well as
“Primo,” to purchase cocaine from him.
Appellant agreed and instructed Ms. Levan to meet
him at the 318 Bar. Upon her arrival, Appellant told
Ms. Levan to get into his car. Appellant drove Ms.
Levan to a nearby Chinese store to buy food to eat
and then entered another bar, 7 Bar. Ms. Levan paid
Appellant $80.00 for the drugs and his food. Ms.
Levan agreed to “hang out” with Primo. They picked
up marijuana and beer and headed to Ms. Levan’s
home located on the 300 block of North Horton Street
in Philadelphia. They arrived at her house at around
2:00 a.m. on November 6, 2019.
While in her home, Ms. Levan used a small amount of
cocaine and marijuana with Appellant. When
Appellant cried about his daughter’s recent troubles,
the complainant prayed with him. Appellant then
asked Ms. Levan, who is a tiny and thinly framed
female, to physically hold him. When she refused,
Appellant tore her clothes off, pinned her down, and
forcibly performed oral sex on her while she
repeatedly begged him to stop, telling him it was not
too late to do so.
Appellant, who is a physically large, girthed individual,
responded to her pleas, by balling his fist up and
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2 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 2718(a)(1), 3502(a)(1)(i),
and 4952(a)(1), respectively.
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saying, “Bitch, I’ll punch your teeth out. Stay still.
Shut up.” Ms. Levan fought Appellant and struggled
to find her phone and began getting dressed, which
had been more difficult due to the spilled beer cans
and clothing covering the floor. When Appellant found
his jeans on the floor, he pulled some money out of
the pockets, and screamed at her, “You stole my
money. I’m going to kill you, bitch.” When Ms. Levan
cried that she had not taken any money, Appellant
said, “Say another word and I’m going to kill you like
I killed the last bitch.”
Ms. Levan picked up a beer bottle and threatened to
hit Appellant with it. Appellant grabbed and choked
her, squeezing her neck so hard that she had fought
for air. He put his knee on her head and his hands
around her neck, forcing her face into the couch. Ms.
Levan lost consciousness, and when she awoke, she
was disoriented. Surprised that she had survived,
Appellant remarked, “I killed you. You weren’t
breathing for minutes. You laid there dead.”
Ms. Levan pleaded with Appellant to allow her to leave
her home. Appellant responded by asking why she had
“made” him perform oral sex on her and why she had
taken his money. When Ms. Levan complained that he
had pinned her down and raped her, Appellant replied
that she had made him late and that he was going to
kill her. Appellant then demanded that Ms. Levan get
dressed and take him to an ATM because he wanted
all her money.
As the complainant walked toward the door, Appellant
grabbed her and pulled her pants down and vaginally
raped her again before she could exit her home. He
ejaculated on her back. Once Ms. Levan found her
phone, Appellant told her, “Bitch, you better not call
the cops.” Around 7:00 a.m., they walked together
out of her house. Ms. Levan saw a neighbor across the
street, ran over, and told the neighbor what
happened. She reported the attack and provided a
capsule of events to the responding uniformed 19th
District City of Philadelphia Uniformed Police Officer
Sharif. Officer Sharif submitted a report summarizing
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his contact with the complainant to the City of
Philadelphia Special Victim’s Unit.
Ms. Levan had reported that she had been repeatedly
physically assaulted and raped three times over the
course of the early morning hours. As a result of the
attack, Ms. Levan had loose teeth, a black eye, bruises
on her back and legs, and various scratches. Ms.
Levan’s injuries had been subsequently documented
and photographed by members of the City of
Philadelphia Police Department.
....
Before Appellant had been formally arrested and
charged with the offenses related to the reported rape
and assault of Sade Levan, Appellant repeatedly
threatened Ms. Levan over the telephone for reporting
his attack. Ms. Levan’s sister, Noni Williams, stayed
with Ms. Levan because she had been too frightened
to stay at her home alone. Ms. Williams and their
mother had also been aware of the repeated calls and
threats that Appellant had made following her sister’s
initial report to the police department.
On November 7, 2019 around 2:23 a.m., Appellant
physically broke through the front window and again
entered Ms. Levan's home. The two sisters huddled
together in Ms. Levan’s upper floor bedroom when
they had been awakened by noises downstairs. They
quickly pushed Ms. Levan’s dresser against the
bedroom door to barricade themselves. Appellant
forced his way inside the bedroom and casually
complained that Ms. Levan had not returned his phone
calls.
Appellant then directed both frightened tiny women
not to touch their phones or call the cops and to go
downstairs. Once downstairs, Appellant showed them
a collected bag of feces. He explained, “I could kill
both of you and no one would know. That’s why I
pooped in the bag, so I don’t leave DNA.” He told
them that they were lucky that he did not bring his
gun. Appellant bragged that he had climbed in
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through the window because he needed sexual
“release.”
During his taunts, Appellant physically picked up Ms.
Levan several times, squeezed her, and smacked her
buttocks. He also offered the women cocaine and
started using it himself in front of them. Unbeknownst
to Appellant, Ms. Levan’s sister secretly texted the
police department for help. As a result, Appellant was
still inside Ms. Levan’s house when police arrived and
arrested him. Videos were made of the responding
police officers’ volatile interactions with all parties.
Ms. Levan and her sister along with their Aunt Lena
were transported to the City of Philadelphia Special
Victim’s Unit (“SVU”) for formal interviews. The
complainant’s mom and owner of the residence, sister
and aunt were also interviewed.
During the investigation, Ms. Levan’s injuries were
photographed and documented. Ms. Levan was
examined by a registered nurse and sexual assault
nurse examiner James Owens at the Philadelphia
Sexual Assault Response Center (“PSARC”) on
November 8, 2019 at 9:00 p.m. The damaged front
window and inside of the premises including the
referenced bag of feces in Ms. Levan’s residence was
documented and photographed.
Pursuant to stipulation that had been introduced at
trial, on November 8, 2019 at 9:00 p.m. Ms. Levan
had reported to the “C.F.N.” Nurse James Owens
during her examination that during the ongoing rape
and assault between November 4, 2019 and
November 5, 2019, the attacker whom she had known
as “Primo” had put his penis inside her vagina and, his
mouth on her vagina and his mouth on her breasts.
Nurse Owens had collected a sexual assault collection
kit from Sade Levan which had included a vaginal
swab, perineum swab and bilateral swabs of her
nipples as well as a DNA reference sample for Sade
Levan’s DNA. The swabs were sealed and then placed
on Philadelphia Property Receipt and submitted to the
Philadelphia Police Department's Office of Forensic
Science for testing. Appellant was arrested on
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November 7, 2019 for Burglary and Witness
Intimidation related to the second incident….
Trial court opinion, 7/17/23 at 2-6.
On October 15, 2021, Appellant proceeded to a jury trial before the
Honorable Anne Marie Coyle. Following a six-day trial, Appellant was found
guilty of rape, IDSI, sexual assault, strangulation, burglary, and intimidation
of a witness on October 22, 2021. As noted, Appellant was ultimately
sentenced to an aggregate term of 31 to 64 years’ imprisonment, followed by
3 years’ probation, on May 24, 2022. Appellant was also ordered to register
as a Megan’s Law Tier III Sexual Offender for the rest of his life. Appellant
filed a timely post-sentence motion that was denied by the trial court on June
21, 2022. On June 28, 2022, Appellant filed two separate timey notices of
appeal that were docketed at 1734 EDA 2022 and 1736 EDA 2022,
respectively. As noted, the appeals were consolidated sua sponte by this
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Court on September 13, 2022.3 Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
A. Was it a violation of Appellant’s due process
rights and his right to a fair trial where, after the
attorney for the Commonwealth had concluded
her questioning of the complainant, the trial
judge directed the ADA to continue to examine
the witness and then did so herself in order to
make certain the elements of one of the charges
were met?
B. Did the trial court violate Appellant’s Sixth
Amendment right to confront and cross examine
the complainant on a matter that would have
revealed her lack of credibility and motive to
fabricate which denied Appellant’s right to
present a complete defense?
C. Did the trial court err and abuse its discretion
when it denied [Appellant’s] request for a
____________________________________________
3 We note that Appellant’s notices of appeal implicate Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018). Although these notices of appeal list two
trial court docket numbers, each has a different number check marked. In
Commonwealth v. Creese,
216 A.3d 1142 (Pa.Super. 2019), a panel of this
Court construed Walker to mean that this Court “may not accept a notice of
appeal listing multiple docket numbers, even if those notices are included in
the records of each case” and that “a notice of appeal may contain only one
docket number.” Creese, 216 A.3d at 1144. That pronouncement was
expressly overruled in Commonwealth v. Johnson,
236 A.3d 1141
(Pa.Super. 2020) (en banc), appeal denied,
242 A.3d 304 (Pa. 2020). In
Johnson, this Court held that even though the appellant filed multiple notices
of appeal, each listing multiple trial court docket numbers, the appeals should
not be quashed because the appellant filed an appropriate number of appeals.
Id. at 1148. The Johnson Court was also persuaded by the fact that the
appellant had italicized only one trial court docket number in each notice of
appeal, noting that this made it clear that the clerk of courts did not play a
role in typing separate notices of appeal. Id. Based on the foregoing, we find
that quashal is not warranted in this instance.
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missing witness jury instruction where the
names and locations of the witnesses were
solely within the knowledge and reach of the
Commonwealth, where there was no
explanation from the Commonwealth why these
witnesses were not subpoenaed, their testimony
would not have been cumulative or
unimportant, and where the instruction could
have affected the outcome of the case?
D. Did the trial court violate Appellant’s Fifth
Amendment right to remain silent when it used
his decision to not speak with presentence and
mental health evaluators upon advice of counsel
as a ground to increase the sentence?
Appellant’s brief at 6.
A.
Appellant first argues that the trial court violated his right to due process
and a fair trial under the Fourteenth Amendment when it “intervened to act
as an advocate for the Commonwealth” and briefly questioned the victim
during re-direct examination. Id. at 38. We disagree.
The Fourteenth Amendment guarantees that no state
“shall ... deprive any person of life, liberty, or property
without due process of law.” U.S. Const. XIV, Sec. 1.
Due process concerns extend to the actions of the
judiciary; accordingly, litigants are guaranteed an
absence of actual bias on the part of any judge
adjudicating their case. … While a fair trial is indeed
a basic requirement of due process, most matters
relating to judicial disqualification [do] not rise to a
constitutional level.
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Commonwealth v. Fears, 250 A.3d 1180, 1193 (Pa. 2021) (some internal
quotation marks and case citation omitted; brackets in original), cert.
denied, ___ A.3d ___,
142 S. Ct. 1235 (2022).
Instantly, the record reflects that the trial court asked the victim the
following questions after sustaining Appellant’s objection to her testimony
speculating what Appellant meant when he told her that “the cops are looking
for him.” Notes of testimony, 10/20/21 at 24.
THE COURT: Excuse me. Sustained as to speculation,
but can you remember, ma’am, what, if anything, he
said in reference to reporting to police officers in any
way, shape, or form. I want you to think back and
just let us know what he said, not what you believe
why he was saying something. What, if anything, did
he say in reference to the reporting to the police in
any way, shape, or form[?]
THE WITNESS: He said that he was running from the
cops all day looking over his shoulder. What did I tell
the cops.
THE COURT: You recall what your response was to
him, if any?
THE WITNESS: Yes.
THE COURT: What was it?
THE WITNESS: I had told him that I did not call the
cops on him and I’ve been resting all day.
THE COURT: Okay.
Id. at 24-25.
This Court has repeatedly recognized that
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[a] trial court has a right and sometimes a duty to
question a witness to clarify existing facts, though not
in a biased or protracted manner. A court must
exercise that right with caution, and with due regard
for the common law preference for clarification by
adversarial cross-examination. Trial courts should not
ask questions that usurp or unduly encroach upon the
fact-finding function of the jury by suggesting judicial
disbelief of particular testimony or an opinion on one
or more issues for one side against another.
Commonwealth v. Hickson, 290 A.3d 705 (Pa.Super. 2022) (unpublished
memo at *3), appeal denied,
300 A.3d 359 (Pa. 2023), citing
Commonwealth v. King,
549 A.2d 195, 197 (Pa.Super. 1998), appeal
denied,
563 A.2d 496 (Pa. 1999).
Upon review, we find that the trial court’s questions to the victim were
an appropriate exercise of its discretion to both clarify her response to the
Commonwealth’s initial inquiry and ensure that the jury did not hear
inadmissible speculative testimony. The record does not support Appellant’s
contention that these three brief questions in any way usurped or encroached
upon the fact-finding function of the jury. See id. Accordingly, Appellant’s
first claim of error must fail.
B.
Appellant next argues that his constitutional right to confrontation under
the Sixth Amendment to the United States Constitution was violated when the
trial court denied his attempt to cross-exam the victim with regards to her
unrelated custody dispute. Appellant’s brief at 42.
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“[W]hether a defendant was denied his right to confront a witness under
the confrontation clause of the Sixth Amendment is a question of law for which
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.Super. 2017) (citation
and internal quotation marks omitted).
The Sixth Amendment ensures that during a criminal prosecution, “the
accused shall enjoy the right to ... be confronted with the witnesses against
him [and] to have compulsory process for obtaining witnesses in his favor.”
U.S.Const. amend. VI. It is important to recognize, however, that “trial courts
retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.”
Commonwealth v. Rogers, 250 A.3d 1209, 1216 (Pa. 2021) (citation
omitted).
Here, our review of the record establishes that Appellant was afforded
ample opportunity to cross-exam and confront the victim at trial, see notes
of testimony, 10/19/21 at 22-165, and was only precluded from introducing
irrelevant custody documents wholly unrelated to the matter at hand. As the
trial court reasoned it in opinion,
there is no link between the accusations made by [the
victim] against Appellant and a custody agreement
between herself and the children’s father who is not
Appellant. As Appellant is not children’s father, it is
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unfathomable to reconcile how going to the police and
making up a story of being raped by someone other
than the children’s father would benefit [the victim’s]
custody proceedings
Trial court opinion, 7/7/23 at 21.
Based on the foregoing, we find that Appellant’s second claim of trial
court error must fail.
C.
Appellant next argues that the trial court abused its discretion in denying
his request for a “missing witness” jury instruction with respect to the victim’s
two neighbors whom she identified in her initial statement to police.
Appellant’s brief at 46.
It is well-settled that the trial court has wide discretion
in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the
parties and its refusal to give a requested charge does
not require reversal unless the appellant was
prejudiced by that refusal.
Commonwealth v. Williams, 176 A.3d 298, 314 (Pa.Super. 2017) (citations
omitted), appeal denied,
187 A.3d 908 (Pa. 2018). “In reviewing a jury
charge, we determine whether the trial court committed a clear abuse of
discretion or an error of law which controlled the outcome of the case.” Id.
Upon review, we discern no abuse of discretion on the part of the trial
court in electing not to give a “missing witness” instruction to the jury. This
Court has long recognized that a missing witness jury instruction is
appropriate “when a potential witness is available to only one of the parties to
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a trial, it appears this witness has special information material to the issue,
and this person’s testimony would not merely be cumulative[.]”
Commonwealth v. Miller, 172 A.3d 632, 645 (Pa.Super. 2017) (citation and
internal brackets omitted), appeal denied,
183 A.3d 970 (Pa. 2018).
However, a trial court may decline to issue this
instruction if the uncalled witness is equally
available to both parties, not within the control
of the party against whom a negative inference
is sought, or there is a satisfactory explanation
as to why the party failed to call the witness.
Commonwealth v. Crumbley, 270 A.3d 1171, 1185 (Pa.Super. 2022)
(citation omitted; emphasis added), appeal denied,
284 A.3d 884 (Pa.
2022).
Here, the record reflects that a “missing witness” jury instruction was
not warranted in this case because the potential witnesses at issue were
equally available to both parties. In her initial statement to police, the victim
indicated that she ran to her neighbors across the street the morning after
Appellant sexually assaulted her, but never identified these neighbors by
name prior to trial. Notes of testimony, 10/19/21 at 114. In fact, the only
known characteristics of these potential witnesses prior to trial was that they
lived across the street from the victim. The victim identified one of her
neighbors as “Ms. Shirley,” but acknowledged on cross-examination that she
did not know her neighbors beyond “coming and going” and that with respect
to Ms. Shirley, “I said whatever name I think is her name, but I’m still not
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sure.” Id. at 115. The victim further testified that “[n]one of these neighbors
are here to testify and verify any of this information[.]” Id. at 116.
Based on the forgoing, we find that Appellant was not prejudiced by the
trial court’s decision to forgo a “missing witness” jury instruction. Accordingly,
Appellant’s third claim of trial court error fails.
D.
Lastly, Appellant contends that the trial court violated his Fifth
Amendment right to remain silent during the sentencing phase and improperly
considered his silence when fashioning his sentence. Appellant’s brief at 51.
This claim is baseless.
“The Fifth Amendment was enacted to protect against self-incrimination,
whether [the suspect is] in custody or not, charged with a crime, or merely
being questioned during the investigation of a crime.” Commonwealth v.
Molina, 33 A.3d 51, 63 (Pa.Super. 2011) (en banc) (citation omitted),
affirmed,
104 A.3d 430 (Pa. 2014). This Court has recognized that the Fifth
Amendment’s privilege against self-incrimination prohibits the court from
construing the defendant’s silence during sentencing “as indicative of his
failure to take responsibility for the crimes of which he was convicted[,]” or as
“the sole basis for finding that the defendant lacked remorse.”
Commonwealth v. Bowen,
975 A.2d 1120, 1121, 1127 (Pa.Super. 2009)
In the instant matter, our review of the hearing and sentencing
transcripts as a whole reveal that the trial court did not violate Appellant’s
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Fifth Amendment right to remain silent nor consider his silence when
sentencing him. On the contrary, the record reflects that the trial court merely
ensured that it was Appellant, rather than his counsel, that made the decision
to invoke his rights under the Fifth Amendment, and it did not take into
consideration Appellant’s voluntary choice to do so in fashioning his sentence.
See notes of testimony, 1/13/22 at 8-14; notes of testimony, 5/24/22 at 54-
59. Appellant’s claim to the contrary is baseless.
Based on all of the foregoing, we affirm the trial court’s May 24, 2022
judgment of sentence.
Judgment of sentence affirmed.
Date: 8/19/2024
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