Opinion
J-S45010-19 No. 1566 EDA 2018
11-13-2019
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MARK ARMSTRONG, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 29, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002639-2016 BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Mark Armstrong, appeals nunc pro tunc from the judgment of sentence of 9 to 18 years' imprisonment, imposed after a jury convicted him of aggravated assault, 18 Pa.C.S. § 2702(a)(1). On appeal, Appellant raises various claims, including challenges to the court's jury instructions, the discretionary aspects of his sentence, the court's admission of certain evidence, and the sufficiency and weight of the evidence to sustain his conviction. After careful review, we affirm.
The trial court set forth a detailed recitation of the facts and procedural history of this case, which we adopt herein. See Trial Court Opinion (TCO), 11/30/18, at 1-8. Briefly, we note that Appellant's conviction stems from his shooting Hasan Paige, a pizza delivery driver, in the face, which resulted in Paige's wearing "metal headgear" for six months that was "screwed [through] his skin because his jaw was shattered." Id. at 4. At trial, Paige testified that he knew Appellant from a previous incident between the two men in 2010, and Paige identified Appellant as his assailant both at trial, and in a photo array that was presented to him several days after the shooting. Id.
At the close of Appellant's trial, the jury acquitted him of various offenses, including attempted murder and robbery, but convicted him of aggravated assault. On August 29, 2017, the court sentenced Appellant to the term of incarceration set forth above. He filed a post-sentence motion, which was denied. While Appellant did not file a timely notice of appeal, he subsequently filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the reinstatement of his direct appeal rights. That petition was granted, and Appellant filed a nunc pro tunc appeal. Appellant complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the court filed its Rule 1925(a) opinion on November 30, 2018.
Herein, Appellant raises the following six issues for our review, which we have reordered for ease of disposition:
I. Did the trial court erred [sic] and/or abuse its discretion when it gave the jury an instruction that [Appellant] could be found guilty based upon a theory of accomplice liability where no accomplice liability instruction was given to the jury or requested by counsel?
II. Is the evidence sufficient to support the conviction for aggravated assault?Appellant's Brief at 9-10.
III. Is the verdict against the weight of the evidence to such a degree that it shocks one's conscience?
IV. Did the trial court erred [sic] and/or abuse its discretion when it denied [Appellant's] motion for a mistrial based upon a police detective's reference to [Appellant's] prior incarceration in violation of an agreement precluding reference to the same?
V. Did the trial court erred [sic] and/or abuse its discretion when it denied [Appellant's] request to give a Kloiber jury instruction?
VI. With respect to the sentence imposed upon Appellant by the lower court, did that court abuse its discretion by imposing an aggregate sentence of not less than 5, nor more than 10 years of incarceration followed by 12 years of probation?
Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954).
Appellant misstates the sentence imposed by the court, which was 9 to 18 years' incarceration.
We first address Appellant's challenge to a jury instruction, which was provided by the court in response to a question asked by the jurors during their deliberations. Initially, we note:
An appellate court must assess the jury instructions as a whole to determine whether they are fair and impartial.
The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.
* * *
We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy, but rather evaluate whether the charge sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision. For [an] appellant to be entitled to a new trial, the jury instruction must have been fundamentally in error, or misled or confused the jury.Commonwealth v. Moury , 992 A.2d 162, 178-79 (Pa. Super. 2010) (internal citations and quotation marks omitted).
Here, during the jury's deliberations, it asked the court the following question: "Can the defendant be charged with aggravated assault if we believe he did not pull the trigger but caused the victim to be shot[?]" N.T. Trial, 5/19/17, at 95. The court answered this question by simply stating, "yes." Id. at 98-99. Appellant objected to this answer and requested a mistrial, which was denied. On appeal, he contends that the court's answer was erroneous because it "instructed the deliberating jury that it could find [Appellant] guilty under a theory of accomplice liability where an accomplice liability instruction was never asked for, or given." Appellant's Brief at 26. In regard to legal authority to support his position, Appellant provides the following single sentence:
In Commonwealth v. [ Melvin ], 103 A.3d 1 (Pa. Super. 2014), the Pennsylvania Superior Court held that ... the trial court erred, and violated [Rule] 647(A) of the Pennsylvania Rules of Criminal Procedure, when it instructed a jury on the topic of accomplice liability after closing arguments had been completed and the jury had begun its deliberations. ... [ Id. at] 44.Appellant's Brief at 23-24.
Rather than discuss Rule 647 or elaborate on the circumstances of Melvin , Appellant instead devotes the remainder of his argument to insisting that he was prejudiced by the court's answer to the jury's question because "the defense chose to forego evidence relevant to the actions of other individuals immediately after the trial court conducted a charging conference which disclosed that no instruction on accomplice liability or conspiracy would be given." Id. at 26.
Appellant's argument does not demonstrate that the court committed an abuse of discretion or an error of law. Initially, we agree with the Commonwealth that Melvin is distinguishable from the circumstances of the present case. As the Commonwealth explains:
In Melvin , after the jury had been charged and had begun deliberations, the Commonwealth requested, for the first time, an accomplice liability charge. [ Melvin , 103 A.3d] at 45. The trial court gave the charge. Id. This Court held that the instruction violated Pennsylvania Rule of Criminal Procedure 647(A) because the court gave the instruction after [the] defendant gave [her] closing argument. Id. at 48. Here, in contrast, the Commonwealth never requested, and the trial court never gave,
any instruction on accomplice liability[.] (N.T.[,] 5/19/17[,] at 91). Therefore, Melvin's holding, which concerned surprise to the defendant resulting from the Commonwealth's last-minute request for an additional instruction, is inapplicable.Commonwealth's Brief at 11 (emphasis in original).
In 2015, a new subdivision (A) was added to Rule 647, and the former subdivision (A), which was addressed in Melvin , has been redesignated as subdivision (B). It reads:
(B) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge's rulings on all written requests and which instructions shall be submitted to the jury in writing. The trial judge shall charge the jury after the arguments are completed.Pa.R.Crim.P. 647(B).
We also point out that the Melvin panel explicitly distinguished the circumstances before it from a situation like the present case, "where a jury submits on its own motion a question to the court indicating confusion or a request for clarification...." Melvin , 103 A.3d at 48 (citation and internal quotation marks omitted). In such cases, "the court may properly clarify the jury's doubt or confusion" by providing additional instructions in the presence of all parties. Id. at 48-49 (quoting Commonwealth v. Kidd , 380 A.2d 416, 419 (Pa. Super. 1977)); see also Pa.R.Crim.P. 647(D) ("After the jury has retired to consider its verdict, additional or correctional instructions may be given by the trial judge in the presence of all parties...."). Thus, Appellant's case is clearly distinguishable from Melvin , and his reliance on that decision does not establish that the trial court violated Rule 647 by answering the jury's question.
Notwithstanding, we would also conclude that Appellant has failed to prove that he was prejudiced by the court's ostensible violation of Rule 647. See Melvin , 103 A.3d at 49-50 (concluding that a violation of Rule 647 requires reversal only where the defendant establishes that she was prejudiced). Appellant argues that he was prejudiced because he could have presented "additional evidence aimed at destroying a claim" that he was liable as an accomplice. Appellant's Brief at 24. However, he does not identify, let alone discuss, what evidence he would have offered. In Melvin , we concluded that a similar assertion of prejudice, stated "in the most general terms" and without any explanation, was inadequate to "provide[] this Court with any basis to evaluate the degree (if any) of any actual prejudice resulting from the trial court's error." Melvin , 103 A.3d at 50. The same is true in the present case. Therefore, even if the court had violated Rule 647(B) in answering the question posed by the jury, Appellant would not be entitled to relief.
In regard to Appellant's remaining issues, we have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have considered the opinion of the Honorable Sierra Thomas Street of the Court of Common Pleas of Philadelphia County. We conclude that Judge Thomas Street's opinion sufficiently disposes of the five additional issues presented by Appellant. See TCO at 10-13 (concluding the evidence was sufficient to support Appellant's conviction of aggravated assault); id. at 13-15 (addressing Appellant's challenge to the weight of the evidence); id. at 18-21 (reviewing Appellant's contentions that prior bad acts evidence was improperly admitted at trial); id. at 21- 23 (rejecting Appellant's claim that the court erred by denying his request for a Kloiber jury charge); id. at 26-28 (rejecting Appellant's challenge to the discretionary aspects of his sentence). Accordingly, we adopt Judge Thomas Street's opinion addressing those issues as our own and affirm Appellant's judgment of sentence for the reasons set forth therein.
However, we do not adopt the portion of Judge Thomas Street's sufficiency analysis that suggests his claim is waived because he also asserts a challenge to the weight of the evidence. See TCO at 11-12.
Judge Thomas Street addressed an additional claim involving the admission of prior bad acts evidence, which Appellant has abandoned on appeal. See TCO at 15-17. Consequently, we do not adopt that portion of her opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/19
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