Opinion
60 EDA 2023 70 EDA 2023 J-S44037-23
08-28-2024
COMMONWEALTH OF PENNSYLVANIA Appellant v. ERIC RUCH COMMONWEALTH OF PENNSYLVANIA v. ERIC RUCH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered November 17, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003543-2020
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
These matters are consolidated cross-appeals filed by Eric Ruch (Defendant) and the Commonwealth from Defendant's judgment of sentence of 111/2 to 23 months' incarceration imposed by the Court of Common Pleas of Philadelphia County following a jury trial at which he was convicted of voluntary manslaughter and possession of an instrument of crime. For the reasons set forth below, we affirm Defendant's judgment of sentence in its entirety.
18 Pa.C.S. §§ 2503(b) and 907(a), respectively.
This case arises out of the December 27, 2017 fatal shooting of Dennis Plowden (Victim) by Defendant, who was a Philadelphia police officer at the time, following a high-speed chase. Defendant shot Victim, who was unarmed, in the left side of the head through Victim's raised left hand as Victim was sitting on the sidewalk after his vehicle had collided at a high rate of speed with several parked cars. Trial Court Opinion at 2-3.
Defendant was charged in 2020 with third-degree murder, voluntary manslaughter, and possession of an instrument of crime. These charges were tried to a jury from September 13, 2022 to September 21, 2022. The witnesses at trial included the medical examiner, a civilian eyewitness, and multiple police officers who were present at the scene at the time of or shortly after the shooting. On September 21, 2022, the jury found Defendant guilty of voluntary manslaughter and possession of an instrument of crime. N.T. Trial, 9/21/22, at 5-8.
On November 17, 2022, the trial court sentenced Defendant to 111/2 to 23 months' incarceration for voluntary manslaughter and imposed no further penalty for possession of an instrument of crime. N.T. Sentencing at 93; Sentencing Order. Defendant filed a timely post-sentence motion seeking a new trial on the ground that the verdict was against the weight of the evidence, and the Commonwealth filed a timely motion for reconsideration of sentence. On December 15, 2022, the trial court denied both motions. Trial Court Order, 12/15/22. Both Defendant and the Commonwealth timely appealed. This Court consolidated the appeals and designated Defendant as the appellant/cross-appellee.
Defendant in his appeal raises the following three claims of error:
I. Did the trial court err in denying the defense motion for a mistrial, as a result of intentional prosecutorial misconduct during the prosecutor's closing argument?
II. Did the trial court err in restricting [Defendant] from describing his awareness of the factual account of how 35th District Police Officer Pawlowski was fatally shot by a civilian under very similar circumstances?
III. Was the verdict of guilt against the weight of [the] evidence?
Appellant's Brief at 7 (suggested answers and unnecessary capitalization omitted). Our review of each of these issues is limited to whether the trial court abused its discretion. Commonwealth v. Hernandez, 230 A.3d 480, 489-90 (Pa. Super. 2020) (denial of mistrial based on prosecutorial misconduct in closing argument and trial court rulings regarding the admission of evidence may be reversed only where abuse of discretion is shown); Commonwealth v. Rogers, 259 A.3d 539, 541 (Pa. Super. 2021) (standard of review of denial of motion for new trial on weight of the evidence grounds is abuse of discretion).
The conduct of which Defendant complains in his first issue consists of statements in the Commonwealth's closing argument calling Defendant and several police officer witnesses "liars" and references to portions of their testimony as a "lie." Appellant's Brief at 14-16. Contrary to Defendant's contention, that was not misconduct. A prosecutor may present his arguments with logical force and vigor and may use oratorical flair in arguing the case to the jury. Commonwealth v. Thomas, 54 A.3d 332, 338 (Pa. 2012); Commonwealth v. Epps, 240 A.3d 640, 646 (Pa. Super. 2020); Commonwealth v. Collins, 70 A.3d 1245, 1253 (Pa. Super. 2013). Arguments concerning the conclusions that the jury can draw from the evidence as to whether a particular witness or witnesses told the truth, including referring to the defendant's and other witnesses' testimony as "lies" and calling them "liars," are within the range of permissible prosecutorial comment and argument, particularly where the defense has attacked the credibility of a Commonwealth witness. Commonwealth v. Chmiel, 889 A.2d 501, 544-45 (Pa. 2005); Commonwealth v. Cox, 863 A.2d 536, 547-48 (Pa. 2004); Commonwealth v. Judy, 978 A.2d 1015, 1023-24 (Pa. Super. 2009). Indeed, in two of the cases on which Defendant relies, Chmiel and Cox, our Supreme Court held that a prosecutor's statements in closing argument that defense witnesses were "liars" and that the defendant's statements were "lies" were not improper because they were fair response to defense attacks on the credibility of prosecution witnesses and fair comments on the evidence. Chmiel, 889 A.2d at 543-45; Cox, 863 A.2d at 547-48.
The Commonwealth's characterizations of Defendant and the several of the other police officers as liars and their testimony as lies in its closing were based on and referenced contradictions between their testimony and the physical evidence as to where the bullet hit Victim, the position of cars in the crime scene drawings, the location of the fired cartridge casing from Defendant's gun, and other evidence. N.T. Trial, 9/19/22, at 147-80. In addition, Defendant in his closing had repeatedly attacked the credibility of the civilian eyewitness whose testimony conflicted with the testimony of Defendant and those police officers. Id. at 121-22, 126-29. The Commonwealth's statements were therefore within the bounds of proper argument, and the trial court did not abuse its discretion in holding that they were not grounds for a mistrial.
Moreover, even where a prosecutor's statements in his closing exceed the bounds of proper argument, a mistrial is required only when those statements rise to the level of unavoidably prejudicing the jury and preventing a true verdict. Hernandez, 230 A.3d at 490; Commonwealth v. Lopez, 57 A.3d 74, 83-84 (Pa. Super. 2012). Where the allegedly improper statements relate to witness credibility, an appropriate curative instruction by the trial court will remove the danger of prejudice. Hernandez, 230 A.3d at 491; Collins, 70 A.3d at 1254-55. Here, the trial court instructed the jury both during the Commonwealth's closing argument and in its charge that the jurors were the sole judge of witness credibility and that their memory of the evidence, not the Commonwealth's statements, controlled. N.T. Trial, 9/19/22, at 172, 175, 178, 187-89, 191-97, 200-01. Accordingly, denial of Defendant's motion for mistrial would have been proper even if his claim of improper statements in the Commonwealth's closing argument had any merit.
In his second claim of error, Defendant argues that the trial court did not permit him to testify fully concerning his awareness of the 2009 shooting death of Officer Pawlowski, another police officer in his district. That claim fails because it is contradicted by the record. While the trial court ruled that other police officers could not testify concerning the shooting of Officer Pawlowski because their state of mind was not at issue, a ruling that Defendant does not challenge in this appeal, the trial court permitted Defendant to testify concerning his awareness of the shooting of Officer Pawlowski and its effect on his state of mind at the time that he shot Victim. Trial Court Opinion at 4, 6-7; N.T. Motion Hearing, 9/7/22, at 31-36, 39-40; N.T. Trial, 9/14/22, at 253-57. Defendant testified at trial concerning his knowledge of the Pawloski shooting, the facts about the Pawloski shooting that he felt were similar to his encounter with Victim, and the effect of the Pawloski shooting on his state of mind. N.T. Trial, 9/19/22, at 54-55. 89.
Defendant testified without objection or restriction:
Q. What was going on in your mind when you made the decision in those few seconds' time period to discharge your firearm?
A. I thought -- I thought [Victim] was going to reach for a gun and shoot me.
Q. Why did you draw that conclusion?
A. I instantly thought of how another officer was killed in the exact same scenario where he was standing in front of somebody giving commands to show your hands, and the male shot him through his jacket pocket and killed him.
Q. Was that an officer -- did you know who that officer was?
A. Yeah. It was Officer John Pawlowski in the 35th District.
Q. The same district that you -
A. Yes.
Q. -- were a member of?
A. Yes.
Q. From what you remember about that matter, was it the male that shot Officer Pawlowski through his right jacket pocket?
A. Yes.Id. at 54-55. The only objection that the trial court sustained to any testimony of Defendant concerning the shooting of Officer Pawlowski was to a question, following this testimony, as to whether the shooter in that case was being directed to show his hands. Id. at 55. That ruling did not limit Defendant's ability to explain his state of mind to the jury, as Defendant had already testified that Officer Pawlowski was shot while "giving commands to show your hands" and later testified without objection or restriction:
Q. How about the -- how about how [Victim] maneuvered his hand to that pocket. What led you to believe or why did that enhance
your belief that he was armed and was going to shoot you, like you said?
A. Like I said before, I instantly thought of how John Pawlowski was killed by someone who put his hand in his pocket after being given lawful, verbal commands to show your hands.Id. at 54, 89. The trial court's single, very minor restriction on Defendant's testimony on this issue, which only barred testimony that was duplicative of his other testimony, was not an abuse of discretion.
In his remaining claim of error, Defendant asserts that the jury's verdict was against the weight of the evidence because both Defendant's testimony concerning the shooting of Victim and the testimony of the police officers who saw the shooting supported his justification defense. Appellant's Brief at 22-23. This issue likewise merits no relief.
A new trial may be granted on the ground that the verdict is against the weight of the evidence only where the verdict was so contrary to the evidence that it shocks the trial court's sense of justice. Commonwealth v. Clemons, 200 A.3d 441, 463 (Pa. 2019); Commonwealth v. James, 268 A.3d 461, 468 (Pa. Super. 2021); Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014). As noted above, our review of the denial of a motion for a new trial based on weight of the evidence is limited. We review whether the trial court abused its discretion in concluding that the verdict was not against the weight of the evidence, not whether the verdict, in this Court's opinion, was against the weight of the evidence. Clemons, 200 A.3d at 463-64; Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021); Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017).
Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge …. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence.Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013)) (brackets omitted).
Defendant admitted that he shot Victim but asserted that he did so because he believed that Victim was reaching for a gun and was about to shoot him. N.T. Trial, 9/19/22, at 51-56, 89. The fact that a defendant believed that his life was in imminent danger is not a complete defense if the Commonwealth proves that this belief was unreasonable. Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012); Commonwealth v. Jones, 271 A.3d 452, 458 (Pa. Super. 2021). The evidence was sufficient to prove voluntary manslaughter if the Commonwealth proved that Defendant's belief that Victim was about to shoot him was unreasonable. 18 Pa.C.S. § 2503(b); Commonwealth v. Weston, 749 A.2d 458, 462 (Pa. 2000); Commonwealth v. Ventura, 975 A.2d 1128, 1142-43 (Pa. Super. 2009).
The trial court concluded that the verdict was not against the weight of the evidence because there was sufficient evidence to prove that Defendant's belief that he was in imminent danger was unreasonable and the jury's verdict that Defendant's belief was unreasonable did not shock its sense of justice. Trial Court Opinion at 11-13. That conclusion was not an abuse of discretion. As the trial court noted, Victim was unarmed, had not verbally threatened to use a weapon, and was sitting on the ground with his left hand raised beside his head when he was shot. Id. at 11.
While Defendant testified that Victim was facing Defendant and made a motion with his right hand in his pocket just before Defendant shot him and the police eyewitnesses supported Defendant's version of events, N.T. Trial, 9/19/22, at 51-55; N.T. Trial, 9/14/22, at 223-240, 285-86; N.T. Trial, 9/15/22, at 69-76, 164-79, 183-84; N.T. Trial, 9/16/22, at 30-39, the jury was not required to find any of that testimony credible, as Defendant's and the police eyewitnesses' testimony was contradicted by the physical evidence, which showed that the bullet from Defendant's gun hit Victim in the left side of his head, through his left hand which was up beside his head. N.T. Trial, 9/13/22, at 76-78, 89-96. In addition, Defendant's and these witnesses' assertions that Defendant had no cover when he shot Victim were contradicted by the crime scene drawing which showed that the fired cartridge casing from Defendant's gun was found behind Defendant's police vehicle. Commonwealth Id. at 239-50; Ex. 71.
In its cross-appeal, the Commonwealth raises the following single issue:
Did the trial court abuse its discretion in sentencing Defendant to 11 ½ to 23 months' incarceration with no probation, a substantial downward deviation from the applicable sentencing guidelines, where: (1) it considered improper sentencing factors such as double-counting mitigation, that Defendant was a law enforcement officer, that he shot "only" once, and that he was
using a police-issued firearm; and (2) it was overly deferential to Defendant and focused on his rehabilitative needs, largely ignored the applicable guidelines, and diminished the seriousness of the offense?
Appellee's Brief at 4. Because this is a challenge to the discretionary aspects of Defendant's sentence, it not appealable as of right and may be considered only where the following requirements are satisfied: 1) the Commonwealth has preserved the issue in the trial court at sentencing or in a motion for reconsideration or modification of sentence; 2) the Commonwealth has included in its brief a concise statement of the reasons for allowance of appeal of the discretionary aspects of the defendant's sentence in accordance with Pa.R.A.P. 2119(f), and 3) the challenge to the sentence raises a substantial question that the sentence is not appropriate under the Sentencing Code. Commonwealth v. Baker, 311 A.3d 12, 18 (Pa. Super. 2024); Commonwealth v. McCain, 176 A.3d 236, 240 (Pa. Super. 2017).
The Commonwealth has satisfied all of these requirements. The Commonwealth filed a timely post-sentence motion for reconsideration of Defendant's sentence in which it sought imposition of a longer sentence of incarceration and has included a Pa.R.A.P. 2119(f) statement in its brief. Motion for Reconsideration; Appellee's Brief at 27-29. In addition, the Commonwealth's challenge to Defendant's sentence, that it is excessively lenient and unreasonably deviates from the sentencing guidelines, raises a substantial question that the sentence is not appropriate under the Sentencing Code. Baker, 311 A.3d at 18; Commonwealth v. Ball, 166 A.3d 367, 370 (Pa. Super. 2017); Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. 1999).
The Commonwealth's challenge to Defendant's sentence, however, fails on the merits. Our review of this issue is governed by the following standards:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Baker, 311 A.3d at 19 (quoting Commonwealth v. Watson, 228 A.3d 928 (Pa. Super. 2020)). The trial court did not abuse its discretion here.
A court in imposing sentence must consider the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant, and when determining whether a sentence of imprisonment is necessary, whether there is an undue risk that the defendant will commit another crime, whether the defendant is in need of correctional treatment that can be provided by imprisonment, and whether a lesser sentence will depreciate the seriousness of the crime. 42 Pa.C.S. §§ 9721(b), 9725. The trial court considered all of these factors. Both at sentencing and at the hearing on the Commonwealth's motion for reconsideration of sentence, the trial court discussed at length its conclusions that Defendant posed no danger to the public because the crime was a result of a unique situation in Defendant's work as police officer and that Defendant was not in need of treatment or rehabilitation through imprisonment but that some imprisonment was necessary due to the gravity of the offense. N.T. Sentencing at 91-93; N.T. Post-Sentence Motions at 16-28.
To the extent that the Commonwealth asserts that the trial court erred in not considering general deterrence as a factor in sentencing Defendant, Appellant's Brief at 31-33, 38 n.5, 44-45, that argument is waived. The only claims of error that the Commonwealth set forth in its Pa.R.A.P. 1925(b) statement were the following:
Did the court abuse its discretion and violate 42 Pa. C.S. § 9721(b) by overly focusing on the defendant's rehabilitative needs rather than balancing those needs against the need for public safety and the gravity of the offense and its impact on the victims when fashioning its sentence?
Did the court abuse its discretion and violate 42 Pa. C.S. § 9721(b) by relying on improper grounds to fashion a sentence far below what is recommended by the sentencing guidelines and for failing to adequately consider those guidelines?Commonwealth Statement of Errors Complained of on Appeal. Neither of those encompasses any claim that general deterrence should have been considered as a sentencing factor. The claim that the trial court erred in failing to consider general deterrence is therefore barred by waiver. Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the [Rule 1925(b) concise statement of errors complained of on appeal] and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived").
Although the sentence that the trial court imposed was substantially below the sentencing guidelines, that does not invalidate Defendant's sentence. A court must consider the applicable sentencing guidelines when sentencing a defendant. 42 Pa.C.S. § 9721(b); Baker, 311 A.3d at 19. The sentencing guidelines are not mandatory, however, and a court may use its discretion and sentence a defendant outside the guidelines, provided that the sentence does not exceed the maximum sentence allowed by statute and that the court states on the record its reasons for deviating from the guidelines. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118-19 (Pa. 2007); Baker, 311 A.3d at 19; Commonwealth v. Snyder, 289 A.3d 1121, 1127 (Pa. Super. 2023). Where the sentencing court has undertaken these steps, we may only vacate the sentence under the Sentencing Code when it is unreasonable. 42 Pa.C.S. § 9781(c)(3). Here, the trial court considered the correct guidelines that applied to this case, which provided a mitigated minimum sentence range of 42 to 60 months, understood that it was imposing a sentence well below the guidelines, and explained reasons for deviating from the guidelines that were based on the factors under the Sentencing Code. N.T. Sentencing at 8-10, 91-94; N.T. Post-Sentence Motions at 14, 17-28. We do not find the under-the-guidelines sentence imposed here to be unreasonable.
The cases relied on by the Commonwealth where this Court has found a sentence below the sentencing guidelines to be an abuse of discretion are inapplicable here. Those cases involved disregard of the defendant's criminal history or the danger that the defendant posed to the public, failure to identify facts distinguishing the case from the typical case for which the guidelines are designed, failure to consider the correct sentencing guideline range or to adequately explain its reasons for deviating from the guidelines, failure to consider the gravity of the offense, giving leniency based on defendant's drug and alcohol use, deviation based on a preconceived sentencing preference rather sentencing considerations, reliance on victim support for leniency that the defendant obtained by intimidation, or a combination of those factors.None of those deficiencies is present here. To the contrary, the trial court considered the applicable sentencing guidelines, based Defendant's sentence on the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant, and explained that it deviated from the guidelines based on those factors and on the unique circumstances of this case that made Defendant's crime different from a typical voluntary manslaughter or deadly weapons offense. N.T. Sentencing at 8-10, 91-94; N.T. Post-Sentence Motions at 14, 16-28. We do not find that the trial court's reasoning, or the sentence it imposed, to be unreasonable.
See McCain, 176 A.3d at 242-43 (trial court disregarded pre-sentence investigation report (PSI) showing that defendant had an extensive violent criminal history and an inability to abide by the terms of less restrictive punishments and none of its reasons for downward deviation distinguished defendant's crime from the typical case of the same offense); Commonwealth v. Shull, 148 A.3d 820, 832-37 (Pa. Super. 2016) (trial court erroneously concluded that deadly weapons use enhancement did not apply in considering which sentencing guideline range applied and based its below mitigated range sentence on desire for county sentence rather than sentencing factors); Commonwealth v. Daniel, 30 A.3d 494, 496-99 (Pa. Super. 2011) (trial court disregarded defendant's criminal history and based its sentence for two aggravated assaults far below the mitigated range for a single aggravated assault on fact that defendant was under influence of drugs and alcohol at the time); Commonwealth v. Wilson, 946 A.2d 767, 774-76 (Pa. Super. 2008) (trial court disregarded PSI that defendant posed a continuing threat to the safety of others and based its sentence for violent robberies of two victims far below the mitigated range for a single robbery on defendant's drug problem); Commonwealth v. Celestin, 825 A.2d 670, 677-82 (Pa. Super. 2003) (trial court considered on defendant's lack of criminal history and rehabilitative needs without considering the gravity of the offense or protection of the public); Commonwealth v. Kenner, 784 A.2d 808, 812 (Pa. Super. 2001) (trial court failed to adequately explain its reasons for its departure from the sentencing guidelines); Sims, 728 A.2d at 359-60 (trial court relied on one victim's request for leniency that the record showed was a result of threats by the defendant to harm her and her family).
For the foregoing reasons, we conclude neither Defendant's issues nor the Commonwealth's challenge to Defendant's sentence merit relief. Accordingly, we affirm the trial court.
Judgment of sentence affirmed.
Judge Olson joins this memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.