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[U] Commonwealth v. Trojanovich

Superior Court of Pennsylvania

June 10, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHARLES GEORGE TROJANOVICH, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHARLES GEORGE TROJANOVICH, Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
CHARLES GEORGE TROJANOVICH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered May 21, 2012, In the Court of Common Pleas of Erie County, Criminal Division, at No. CP-25-CR-0001523-2011.

BEFORE: SHOGAN, LAZARUS and PLATT[*], JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Charles George Trojanovich, appeals from the judgments of sentence entered following his convictions of kidnapping, sexual assault, terroristic threats, simple assault, possession of an instrument of crime ("PIC"), and harassment. Counsel has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's petition to withdraw and affirm Appellant's judgments of sentence.

The trial court summarized the procedural and factual history of this case as follows:

On September 20, 2011, Charles George Trojanovich ("Appellant") appeared before the Honorable [Ernest] J. DiSantis Jr. for a trial by jury. On September 21, 2011, the jury was hung on the following charges: one count of Kidnapping, two counts of Rape, two counts of Sexual Assault and one count of Simple Assault. The jury did reach a unanimous decision finding the Appellant guilty of one count of Terroristic Threats and one count of Possession of an Instrument of Crime. Appellant was found not guilty of Recklessly Endangering Another Person. Lastly, Judge DiSantis found Appellant guilty of the summary offense of Harassment. Immediately after the jury's verdict, the Commonwealth indicated that it would retry the Appellant on each of the aforementioned counts the jury was hung. On October 8, 2011, Judge DiSantis continued Appellant's sentencing pending Appellant's retrial. Appellant proceeded to a retrial before this Court on January 17, 2012.
After a two day jury trial, Appellant was found guilty of Kidnapping, Sexual Assault and Simple Assault. The jury found the Appellant not guilty of Rape. At trial, the following testimony was presented which led to the Appellant's convictions of the above-named offenses. On May 14, 2011, the victim, [] agreed to meet her former boyfriend, Appellant, at a secluded parking lot located at 21st and Greengarden Streets in the City of Erie, so she could return to him various personal items he left at her home. N.T. Day 1, 27:12 - 30:3, January 1, 2012. [The victim] met Appellant at the location shortly after 3:00 A.M., after she finished work. N.T. Day 1, 30:17 -20. Upon arrival, Appellant asked [the victim] to get into his car to which she complied. N.T. Day 1, 35: 1-23. While [the victim] was closing the door to Appellant[']s vehicle, he grabbed her keys and cell phone from her hand. N.T. Day 1, 36:7-9. [The victim] immediately attempted to exit the vehicle however Appellant had already engaged the master lock. N.T. Day 1, 36:18-23; N.T. Day 2, 43:2-15, January 18, 2012.
Appellant began searching [the victim's] phone and questioned her regarding a phone number he did not recognize. N.T. Day 1, 37:19-21. When [the victim] told Appellant that the number belonged to a man named "Nate", the father of her children, Appellant used the phone to hit [the victim] in the face. N.T. Day 1, 37:21-25. After striking [the victim], the Appellant continued to search her phone until it rang, at which point Appellant answered the call. N.T. Day 1, 38: 16-19. Nathan Dabrowski ("Nate") confirmed that he called [the victim] because she failed to contact him for nearly 45 minutes after she had told Nate she was meeting the Appellant. N.T. Day 1, 126:10-14. Nate confirmed [the victim's] testimony that the Appellant picked up the phone, testifying that the Appellant was swearing at him and making threats against his life if he ever called [the victim] in the future. N.T. Day 1, 126:17-22.
After the brief call, the Appellant continued to search [the victim's] messages and after noticing another message from a man named "Larry", the grandfather of [the victim's] children, Appellant again struck her in the face with the phone. N.T. Day 1, 39:16-25. Appellant, enraged by the situation, pulled out a machete, pointed it towards [the victim] and asked her "would you like it if I cut you" and told her that "he could if he wanted to" before placing the machete on the dashboard. N.T. Day 1, 40:2-19. Despite being "really scared" [the victim] tried not to do anything to further enrage the Appellant, and eventually Appellant began lamenting about his prior relationship with [the victim]. N.T. Day 1, 42:15-24.
[The victim] testified she was crying when the Appellant asked her to "give him one kiss then I could go" to which she leaned over and gave him a "peck on the cheek." N.T. Day 1, 43:6-23. Appellant informed [the victim] that "it's not good enough" and that she should try and "do it like you mean it." N.T. Day 1, 43:22-23. [The victim] continued to try to appease the Appellant so he would allow her to leave. N.T. Day 1, 44:6-10. Despite her effort, the Appellant did not allow [the victim] to leave, rather he asked her to "hold him through the night" again enticing her with the prospect of leaving the Appellant afterwards. N.T. Day 1, 44:20-21. The Appellant, having already reclined the driver seat so it was positioned on-top the rear bench seats asked [the victim] "are you comfortable" and "do you want to lay in the back" to which she responded "I'm fine." N.T. Day 1, 44:23-45:3. Despite her reservations, Appellant proceeded to pull [the victim] into the back seat and asked her if she would have sex with him one last time. N.T. Day 1, 45:5-10. [The victim] told the Appellant "no" and he responded "just do it and I'll let you go." N.T. Day 1, 45:14-15.
[The victim], continuing to cry, did not respond further to Appellant[']s requests but just lay in the back seat silent while Appellant proceeded to have sex with her. N.T. Day 1, 45:25 -46:1-19. When Appellant finished, he held [the victim] in his arms where she remained partially sleepless until the morning. Day 1, N.T. 47:6-25. The next morning, the Appellant further refused [the victim's] request to leave the Appellant's vehicle, insisting that she accompany him to the gas station. N.T. Day 1, 49:1:11. After running an errand to the gas station, the Appellant returned to the parking lot where [the victim's] vehicle was located. Appellant further refused to allow [the victim] to leave and he began ingesting a large quantity of pain and anti-depressant medication with some alcohol he had in his vehicle. N.T. Day 1, 52:4-25.
Appellant then made a series of phone calls to 911. N.T. Day 1, 53:18-19. Appellant did return [the victim's] keys and she attempted to get back in her car[;] however before she close[d] the door to her vehicle the Appellant began rapidly circling her vehicle, ultimately coming to a stop immediately in front of where she stood. N.T. Day 1, 56:10-16. Appellant ordered [the victim] back into his vehicle and she complied. N.T. Day 1, 56:18-25. Shortly thereafter, before the Appellant could drive away an Erie Police officer arrived on the scene. N.T. Day 1, 57:16-25. [The victim], fearful of the Appellant, exited [Appellant's] car and got in her[']s, leaving the scene without informing the police about the incident occurring over the past 12 hours. N.T. Day 1, 58:12-16.
Shortly after arriving at her home, [the victim] began receiving phone calls from the Appellant. N.T. Day 1, 59:21-24. [The victim] did not answer any of the calls, however did listen to several messages that the Appellant left her that were violent and threatening in nature. N.T. Day 1, 60:13 - 61:3. Fearful for her safety and that of her children, [the victim] took her children to her mother's house and immediately left to file a police report, mistakenly going to the State Police Barracks in Lawrence Park Township in Erie County where she was informed that she must go to the Erie City Police Station to file her complaint. N.T. Day 1, 61:12-25. Upon leaving the State Police, [the victim] received a phone call from the Corry State Police, inquiring about the whereabouts of her and her children. N.T. Day 1, 62:4-5.
During her conversation with the Corry State Police, [the victim] was informed that a man named Charles Trojanovich identifying himself as her husband called the Corry State Police to file a missing persons report. N.T. Day 1, 62:6-23. [The victim] explained her situation to the officer, and proceeded to travel into the City of Erie where she eventually provided a statement to Erie police on the evening of May 15, 2011.7
7 Officer James Cousins conducted the interview with [the victim] at the Erie Police Department. He testified as to the written report [the victim] completed as well as the search and seizure police conducted on the [Appellant's] automobile.
Due to Appellant[']s Sexual Assault conviction, this Court ordered that the State Board to Assess Sexual Offenders ("State Board") perform an assessment of [Appellant's] Sexual Offender status pursuant to 42 Pa.C.S. §9794. Appellant's sentencing hearing was scheduled to occur on February 29, 2012.
On February 1, 2012, the Commonwealth filed a Motion to Continue Sentencing, informing this Court that the February 29 sentencing did not allocate sufficient time for the State Board to conduct its assessment and prepare its report. The Commonwealth's motion was granted, and [Appellant's] sentence was rescheduled to occur on April 16, 2012. On April 5, 2012, Appellant requested another continuance of the sentencing hearing therein articulating his desire to participate in a second interview with the State Board for assessment purposes. The motion further indicated that Appellant required the presence of counsel at the interview as well as indicating a variety of scheduling conflicts that existed at the time. On April 11, 2012, this Court continued [Appellant's] sentencing hearing until May 21, 2012.
On May 21, 2012, this Court conducted a hearing to determine whether the Appellant was to be classified as a sexually violent predator ("SVP") pursuant to 42 Pa. C.S.A. §9795.4. The Commonwealth presented evidence that the Appellant met the classification criteria through the testimony of Brenda Manno ("Ms. Manno"), a licensed clinical social worker and member of the State Board. Ms. Manno performed an assessment of the Appellant and analyzed Appellant's behavior under the factors provided by statute whereupon she ultimately concluded that the Appellant engaged in predatory behavior in the commission of the offenses, suffered from a personality disorder with anti-social features and was likely to reoffend in light of the significant factors considered. N.T. SVP/Sentencing Hearing, 11:21 - 14:24, May 21, 2012.
Upon consideration of the evidence and arguments of counsel, this Court determined that the Commonwealth met its burden to establish by clear and convincing evidence that the Appellant should be classified as an SVP and subject to the registration requirements of Megan's Law. That same day, Appellant was sentenced to ninety-three (93) to one hundred and eighty six (186) months incarceration at Count 1 (Kidnapping). Appellant received three hundred and seventy two (372) days credit at Count 1. At Count 4 (Sexual Assault), Appellant was sentenced to sixty (60) to one hundred and twenty (120) months incarceration consecutive to Count 1. At Count 7 (Terroristic Threats), [Appellant was] sentenced to twenty two (22) to forty eight (48) months incarceration, consecutive to Count 1. At Count 8 (Simple Assault), Appellant was [sentenced] to twelve (12) to twenty four (24) months incarceration consecutive to Count 7. At Count 10 (Possessing Instrument of Crime), Appellant was sentenced to nineteen (19) to thirty six (36) months incarceration, concurrent to Count 8. At Count 9 (Harassment), Appellant was sentenced to thirty (30) to ninety (90) days incarceration concurrent to Count 1. This Court also determined, after taking testimony and reviewing the State Board report that the Appellant shall be classified a sexually violent predator ("SVP"). Appellant was provided Notice to Defendant of Duty to Register pursuant to 42 Pa.C.S.A. §9791. Following sentencing, Appellant filed three post sentence motions.
The same day Appellant was sentenced, he filed a Motion for Recusal, setting forth spurious allegations of judicial abuse and indiscretions that this Court allegedly perpetrated at [Appellant's] trial. The undersigned denied Appellant's motion that same day. On May 29, 2012, Appellant filed a Motion for Extension of Time to File Post Sentence Motion, and the following day filed a Post Sentence Motion for a New Trial and Motion to Modify/Reconsider Sentence. Substantively and despite the Court's denial of [Appellant's] Motion for Recusal, Appellant reiterated his claims of judicial abuse in his Motion for New Trial. On May 30, 2012, this Court denied Appellant's motion for extension ...

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