Opinion
J. S22023/16 No. 1040 MDA 2015
05-26-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT HARES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 28, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division No(s): CP-35-CR-0002460-2014 BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Robert Hares, appeals from the judgment of sentence entered in the Court of Common Pleas of Lackawanna County, following his jury convictions for Aggravated Assault, Simple Assault, and Recklessly Endangering Another Person (REAP). After careful review, we affirm.
18 Pa.C.S. § 2702(a)(1), 18 Pa.C.S. § 2701(a)(1), and 18 Pa.C.S. § 2705, respectively.
FACTUAL AND PROCEDURAL HISTORY
The trial court set forth the factual history of this case as follows:
On November 3, 2014, an argument broke out at the home of Bessie Hares, [Appellant]'s former wife. Around 5:00 p.m. on that date, Bessie Hares and her paramour, James Clark, the victim in this case, had a discussion regarding [Appellant] still residing in Bessie Hares' home and how Ms. Hares lacked the
funds to evict [Appellant]. During the course of this conversation, according to the testimony of Ms. Hares, she became upset, and asked Mr. Clark to leave the home. According to the testimony of Ms. Hares, while Mr. Clark was packing his belongings to leave, [Appellant] returned home around 9:30 or 10:00 p.m. with two other individuals, Crystal Macomber and Dallas Zipatelli. Ms. Hares testified that while Mr. Clark was gathering his belongings, [Appellant] approached Mr. Clark and asked him to leave the home. Mr. Clark "mumbled" something to [Appellant] in response. Mr. Clark testified that no one had asked him to leave, but when [Appellant] arrived home [Appellant] approached him, grabbed him, lifted his chin, stated "you deserve this" and began to strike him from the right hand side. At that point, Mr. Zipatelli struck Mr. Clark from the other side. [Appellant], along with Mr. Zipatelli, punched Mr. Clark about "five (5) times." Mr. Clark did not attempt to fight back. At the end of the fight, Defendant informed Mr. Clark that he had "two minutes to get the rest of [his] stuff and leave." Mr. Clark stated he was surprised by the attack from the [Appellant].Trial Ct. Op., filed 8/27/15, at 2-3 (internal citations omitted).
As a result of the attack, Mr. Clark suffered a fractured jaw, one of his teeth was knocked out, and he had severe bruising to his face. As a result of the fractured jaw, Mr. Clark had surgery, and his jaw was wired shut for about six (6) weeks. This led to Mr. Clark losing about twenty five (25) to thirty (30) pounds, bringing his weight down to about one hundred thirty five (135) pounds. During this period of time, Mr. Clark could not speak. He also had to carry a pair of pliers with him at all times in case he had to snip the wires himself if he became nauseous and had to vomit.
At a pre-trial conference on February 6, 2015, the Commonwealth made an oral motion to exclude reference to a prior allegation of Rape against Mr. Clark. In response, Appellant argued that in July of 2014, Ms. Hares accused Mr. Clark of rape and that this accusation should be admissible during cross-examination of Ms. Hares as well as to prove Appellant's state of mind at the time that Appellant attacked Mr. Clark. N.T., Pre-Trial, 2/6/15, at 18-20. The trial court ruled "there shall be no mention of this rape allegation at any point unless and until [Appellant] takes the stand . . . We will have a hearing on the merits at that time." Id. at 22.
On February 11, 2015, the jury convicted Appellant of Aggravated Assault, Simple Assault, and REAP. On May 8, 2015, the trial court sentenced Appellant to an aggregate term of four to eight years' incarceration for the Aggravated Assault conviction, and a term of one year of special probation for the REAP conviction. The court merged the Simple Aassault conviction for sentencing.
Appellant filed timely Post-Trial Motions, which the trial court denied on May 28, 2015. On June 12, 2015, Appellant filed a timely Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
ISSUES ON APPEAL
Appellant raises the following eight issues on appeal:
(1) Whether the evidence was insufficient to support the verdicts?
(2) Whether the verdicts were against the weight of the evidence since the Commonwealth failed to rebut the Appellant's defense of property?
(3) Whether the trial court erred when it barred the Appellant from introducing evidence that he was aware of the fact that Bessie, his wife, had accused the victim of raping her earlier that year, thus precluding evidence relevant to his state of mind when striking the victim?
(4) Whether the trial court committed prejudicial error when, over Appellant's objection, it permitted the victim's sister
to testify as her testimony was cumulative, irrelevant, and inflammatory?See Appellant's Brief at 4-5.
(5) Whether the jury instructions regarding the Appellant's decision not to call eye-witnesses was prejudicial, unconstitutional, and contrary to the law, since the Appellant bears no burden in a criminal trial?
(6) Whether the trial court acted outside of the scope of its authority when it, sua sponte, objected to defense counsel's closing argument and instructed the jury on the Appellant's failure to call eye-witnesses as the Commonwealth made no such objection?
(7) Whether the trial court committed reversible error by refusing to give the Appellant's requested jury instruction pertaining to the defense of self-defense?
(8) Whether the trial court erred by failing to merge the sentences for aggravated assault, and for recklessly endangering another person?
LEGAL ANALYSIS
Issues 1 and 2
Appellant's arguments presented in his first two issues pertaining to the sufficiency and weight of the evidence essentially challenge the jury's decision not to believe his defense that the use of force was justified to defend his property, i.e., to prevent an unlawful trespass. He avers that the Commonwealth failed to present sufficient evidence to rebut his claims. Appellant's Brief at 20. We address these issues together, as did the trial court.
Our Pennsylvania Supreme Court has set forth the appropriate standards of review: "[w]hen reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt." Commonwealth v. Weiss , 776 A.2d 958, 963 (Pa. 2001) (citation omitted).
The standard of review applied to a challenge to the weight of the evidence is as follows:
A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.Commonwealth v. Cousar , 928 A.2d 1025, 1035-36 (Pa. 2007).
"[C]onduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm or crime." Commonwealth v. Berrigan , 501 A.2d 226, 229 (Pa. 1985). The use of force to protect property is allowed "when the actor believes that such force is immediately necessary [] to prevent or terminate an unlawful entry or other trespass upon land." 18 Pa.C.S. § 507(a). However, before resorting to force a property owner must first request that the trespasser leave, unless:
(i) such request would be useless;18 Pa.C.S. § 507(c)(1)(i-iii).
(ii) it would be dangerous to himself of another person to make the request; or
(iii) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly reviewed the facts and applicable law before concluding that Appellant's first and second issues are without merit. The trial court stated that there was sufficient evidence to rebut Appellant's defense of property defense, that the trial testimony presented two factual scenarios, that the jury was free to believe and weight either scenario, that neither scenario demonstrated a need to use force, and that the verdicts were not contrary to the weight of the evidence. See Trial Ct. Op., filed 8/27/15, at 4-8. Our review of the certified record, the briefs of the parties, and the applicable law, supports the well-reasoned Trial Court Opinion. Accordingly, we adopt that portion of the Opinion pertaining to Appellant's first two issues as our own.
Issues 3 and 4
Appellant's third and fourth issues challenge the trial court's evidentiary rulings. Appellant argues in his third issue that the trial court erred when it granted the Commonwealth's motion to exclude evidence that Ms. Hares had accused Mr. Clark of raping her many months prior to the incident. Appellant avers that "his knowledge of the allegation would be admissible as to his state of mind" and "was essential in order to establish his defense of property" defense. Appellant's Brief at 27. Appellant also argues that he should have been able to impeach Ms. Hares on cross-examination regarding the allegation. Appellant's Brief at 28.
In his fourth issue, Appellant argues that the trial court erred when it permitted Mr. Clark's sister, Ms. Jenkins, to testify because her testimony regarding her brother's injuries, his going to the hospital, and his filing a report at the police station was "cumulative, irrelevant, and inflammatory" in light of photographs of and Clark's testimony about his injuries. Appellant's Brief at 4, 29.
The admission or exclusion of evidence "is vested in the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion." Commonwealth v. Brown , 839 A.2d 433, 435 (Pa. Super. 2003) (citation omitted). A trial court abuses its discretion when it "overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will." Id. (citation omitted).
We have thoroughly reviewed the certified record, the briefs of the parties, the applicable law, and the well-reasoned Trial Court Opinion. We conclude that Appellant's third issue and fourth issues merit no relief. The trial court properly found that Appellant's attorney could not cross-examine Ms. Hares regarding the allegation pursuant to Pa.R.E. 608(b)(1), that the issue of whether the allegation was relevant to Appellant's state of mind was moot as Appellant never testified, and that Ms. Jenkins' testimony was relevant to demonstrate the serious injuries suffered by Mr. Clark and was not prejudicial, cumulative, or inflammatory. See Trial Ct. Op., filed 8/27/15, at 8-9, 16-18. The comprehensive Trial Court Opinion properly disposes of the issues and we adopt that portion of the Trial Court's Opinion as our own. See id.
Issue 5
In his fifth issue, Appellant avers that the trial court's instruction to the jury regarding Appellant's decision not to call eyewitnesses was prejudicial, unconstitutional, and contrary to the law since Appellant bears no such burden in a criminal trial. Appellant's Brief at 4. Our review indicates that Appellant did not properly preserve this issue and, therefore, it is waived.
The Pennsylvania Rules of Criminal Procedure provide that "[n]o portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate." Pa.R.Crim.P. 647(C). Further, "the mere submission and subsequent denial of proposed points for charge...will not suffice to preserve an issue, absent a specific objection or exception to the charge or the trial court's ruling respecting the points." Commonwealth v. Sanchez , 82 A.3d 943, 978 (Pa. 2013) (citation omitted); see also Pa.R.A.P. 302(b).
In the instant case, at no point did Appellant object to the jury instructions. See N.T. Trial, 2/11/15, at 26-36. At the conclusion of the trial, the trial court asked, "any additions or corrections to the charge?" to which Appellant's attorney answered, "[n]o." Id. at 82. Because Appellant's attorney failed to object, Appellant waived this issue for appellate review. See Pa.R.A.P. 302(b); Sanchez , supra.
Issue 6
Appellant's sixth issue is that the trial court acted outside of the scope of its authority when it, sua sponte, gave a cautionary instruction during closing arguments after Appellant's attorney alluded to a witness who did not testify and made inflammatory comments. Appellant's Brief at 5. This argument is without merit.
The Pennsylvania Rules of Criminal Procedure provide the trial court with the authority to give instructions to the jury "before taking of evidence or at anytime during the trial as the judge deems necessary and appropriate for the jury's guidance in hearing the case." Pa.R.Crim.P. 647(E) (emphasis added). Further, a trial court may sua sponte give a cautionary instruction to the jury to disregard remarks by a prosecutor or defense attorney in order to cure potential prejudice. See , e.g., Commonwealth v. Chimenti , 524 A.2d 913, 924 (Pa. Super. 1987).
We have thoroughly reviewed the certified record, the briefs of the parties, the applicable law, and the well-reasoned Trial Court Opinion. The trial court properly concluded that it had had the authority to give the instruction to cure potential prejudice caused by defense attorney's comments during closing statements. See Trial Ct. Op., filed 8/27/15, at 10-15. The comprehensive Trial Court Opinion properly addresses and disposes of the issue, and we adopt that portion of the trial court's opinion as our own. See id.
Issue 7
In his seventh issue, Appellant avers that the trial court committed reversible error by refusing to give Appellant's requested jury instruction pertaining to self-defense. Appellant's Brief at 5. This is a curious argument as Appellant's attorney withdrew the request for that jury instruction during trial, stating: "Judge, I'm going to rest. And I'm going to withdraw my request for a self-defense instruction[.]" N.T., Trial, 2/10/15, at 245. Later, Appellant's attorney stated: "I'm agreeing with the instruction. I'm not objecting to it. So it wouldn't be preserved for error anyway because I'm agreeing to it." Id. at 254.
We agree with the trial court that Appellant did not preserve this issue for appeal. In fact, Appellant's attorney specifically withdrew this issue for consideration on appeal. As stated above, issues not raised in the lower court are waived. Pa.R.A.P. 302(a). Appellant failed to object to the charge and therefore, failed to preserve this issue for review. See Sanchez , 82 A.3d at 978.
Issue 8
Lastly, Appellant argues that the trial court erred by failing to merge the sentences for Aggravated Assault and REAP. Appellant's Brief at 5. We disagree.
"A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Therefore, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Quintua , 56 A.3d 399, 400 (Pa. Super. 2012) (internal citation omitted). Further, "merger is a nonwaivable challenge to the legality of the sentence." Commonwealth v. Pettersen , 49 A.3d 903, 911 (Pa. Super. 2012) (citation omitted).
The Sentencing Code dictates that two crimes should merge for sentencing purposes if (1) the crimes arise from a single criminal act and (2) all of the statutory elements of one offense are included in the statutory elements of the other offense. 42 Pa.C.S. § 9765 (emphasis added). In the instant case, the act supporting the offenses of Aggravated Assault and REAP is the same - Appellant punched Mr. Clark in the face causing his jaw to break. Accordingly, we must next compare the statutory elements of each offense.
The Pennsylvania Crimes Code defines Appellant's Aggravated Assault offense as follows: "A person is guilty of aggravated assault if he...attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S. §2702 (a)(1). REAP is defined as follows: "A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. §2705.
This Court has recently held that Aggravated Assault and REAP do not merge for purposes of sentencing because "each offense requires proof of an element that is absent from the other offense, and one offense can be committed without committing the other offense." Commonwealth v. Ciani , 130 A.3d 780, 783 (Pa. Super. 2015). In Ciani , we reasoned that "[a]ggravated assault contains an element missing from REAP - serious bodily injury or an attempt to cause serious bodily injury." Id. at 782. We concluded that "unlike aggravated assault, REAP requires the element of actual danger of death or serious bodily injury. An individual could attempt to cause serious bodily injury to another person without placing that person in actual danger, which would support a conviction for aggravated assault but not REAP." Id. at 783.
Accordingly, Aggravated Assault and REAP do not merge for sentencing purposes. The trial court properly sentenced Appellant to an aggregate term of four to eight years' incarceration for Aggravated Assault, merging the sentence for Simple Assault, plus a consecutive term of one year special probation for REAP. Trial Ct. Op., filed 8/27/15, at 1, 23.
Because we adopt the Trial Court Opinion filed 8/27/15 with respect to issues 1 through 4 and 6, the parties are directed to include that opinion with any future filings.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Strassburger joins this Memorandum.
Judge Mundy concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/26/2016
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