Opinion
J-S57033-18 No. 1027 EDA 2018
12-18-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANDREA MAZZELLA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence September 5, 2017 in the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000824-2016 BEFORE: PANELLA, J., PLATT, J. and STRASSBURGER, J.* MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Andrea Mazzella (Appellant) appeals from his September 5, 2017, judgment of sentence, imposing an aggregate sentence of incarceration of six months to two years less one day for terroristic threats, harassment, public drunkenness, and careless driving. We affirm.
In its opinion, the trial court set forth the factual history of this case.
On June 9, 2016, Pennsylvania State Trooper Marvin Shair was dispatched to [the residence of Appellant's wife (Wife)] in response to a reported protection from abuse ([PFA]) order violation. There were no persons at the aforesaid residence when Trooper Shair arrived. He informed the dispatcher that there was no one at the residence, and the dispatcher told the complainant, [Wife], to return to the residence. [Wife] then returned to the residence and stated to Trooper Shair that her husband, [Appellant], had stopped by the house earlier in violation of the PFA order entered against him.... While the two were talking, [Wife] observed a motorcycle drive past the residence. She was able to identify the driver as [Appellant] because he was not wearing a helmet. Trooper Shair promptly left [Wife's residence] and followed the motorcycle in his patrol vehicle. He found the
motorcycle [parked] nearby at [a home on Yellow Run Road, but Appellant was not present]. Trooper Shair checked the motorcycle's registration and determined that [Appellant] was the registered owner. He then received a second dispatch informing him that [Wife] had called stating that [Appellant] was again at the residence. Trooper Shair left the motorcycle and returned to the residence where he found [Appellant] lying in the driveway.Trial Court Opinion, 2/12/2018, at 1-3.
Trooper Shair spoke with [Appellant] and observed bloodshot eyes, slurred speech, and the strong odor of alcohol emanating from [Appellant's] facial area. [Appellant] stated that he understood he was not supposed to be at the residence due to the PFA order. Trooper Shair asked [Appellant] to submit to standardized field sobriety testing, but [Appellant] refused. Trooper Shair then arrested [Appellant]. After he was placed in handcuffs, [Appellant] stated he would submit to a breath test. However, when given the breath test, [Appellant] was not cooperative. As a result, Trooper Shair placed [Appellant] in the patrol vehicle and transported him to [a hospital] for a blood test. ... En route to the hospital, [Appellant] threatened to kill Trooper Shair and the trooper's family. These threats continued for hours throughout the night at the hospital and, later, at the Lehighton State Police Barracks. Moreover, [Appellant] threatened to blow up the barracks. [Some of the threats were recorded on Trooper Shair's mobile video recording unit in the patrol vehicle and played for the jury.]
Based on the foregoing, Appellant was charged with terroristic threats with intent to terrorize another, harassment - communicate lewd, threatening language; driving under the influence (DUI); public drunkenness; and careless driving. Following the jury trial on June 6, 2017, the jury found Appellant not guilty of DUI and guilty of terroristic threats and harassment. Following a bench trial on the same day, the trial court found Appellant guilty of public drunkenness and careless driving.
Appellant was sentenced on September 5, 2017. Appellant timely filed a post-sentence motion. Following an extension pursuant to Pa.R.Crim.P. 720(B)(3)(b) and oral argument, the trial court denied the motion on February 12, 2018. This timely-filed appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant sets forth two issues. He first argues that the trial court erred by allowing the Commonwealth to question Appellant on cross-examination about whether Wife and Trooper Shair were lying when they testified inconsistently from Appellant's testimony. Appellant's Brief at 11-15.
We note our displeasure with Appellant's failure to ensure that the hard copy of his brief complied with Pa.R.A.P. 2173 (requiring the pages of briefs to be numbered separately in Arabic figures).
Our review of a trial court's evidentiary ruling is narrow. Commonwealth v. Yockey , 158 A.3d 1246, 1254 (Pa. Super. 2017).
The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.
To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. A party suffers prejudice when the trial court's error could have affected the verdict.
Contrariwise, an erroneous ruling by a trial court on an evidentiary issue does not require us to grant relief where the
error was harmless. Commonwealth v. Chmiel , [] 889 A.2d 501, 521 ([Pa.] 2005). Our Supreme Court has held:
Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Yockey , 158 A.3d at 1254 (some citations, quotation marks, and parentheticals omitted).
Id. (internal quotations and citations omitted). "An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict." Id. at 528. "If there is a reasonable possibility that the error may have contributed to the verdict, it is not harmless. The burden of establishing that the error was harmless rests upon the Commonwealth." Id.
By way of background, Wife testified that she observed Appellant's motorcycle parked outside Dom N Ali, a restaurant and bar near Wife's residence, shortly after she had reason to believe Appellant was at her residence in violation of the PFA. N.T., 6/6/2017, at 23-25. Trooper Shair testified that Appellant told him at the police station that he had been drinking for seven hours and had been drinking whiskey at Dom N Ali. Id. at 59-60. Appellant, on the other hand, testified that he ate lunch at Dom N Ali, but denied imbibing any alcohol there. Id. at 85-86. Appellant claimed that he never drove under the influence and only started drinking from a bottle of whiskey he had purchased from the liquor store after he had parked his motorcycle. Id. at 86-91. On cross-examination, the Commonwealth questioned Appellant as to whether Wife and Trooper Shair were lying regarding their testimony about Dom N Ali. Id. at 95-97. Appellant's counsel objected on the grounds that the questions called for speculation, but the trial court overruled the objections. Id. Appellant responded that Wife was lying and he had no idea whether Trooper Shair was lying but that Appellant was telling the truth. Id.
On appeal, Appellant argues that the Commonwealth's cross-examination questions placed him in a no-win situation, where he either needed to discredit his own testimony, call Wife and Trooper Shair liars, or speculate as to some alternative explanation as to why his testimony differed. Appellant's Brief at 14. He argues that a new trial is warranted because his answers "infected his entire testimony" and alienated him from the jury. Id.
In Yockey , this Court held that "were they lying" types of questions are generally prohibited because such questions offer little to no probative value, ignore alternative explanations for testimonial inconsistencies, infringe upon the province of the factfinder to assess credibility, and are argumentative. 158 A.3d at 1256. The trial court acknowledged that it may have erred in requiring Appellant to answer the Commonwealth's questions regarding whether Wife and Trooper Shair were lying. Trial Court Opinion, 2/12/2018, at 7. Pursuant to Yockey , the trial court did so err.
Nevertheless, we agree with the trial court that such error was harmless. The questions were probative of the issue of whether or not Appellant had been driving under the influence, a charge of which the jury found Appellant not guilty. Furthermore, "the audio-visual evidence of [Appellant's] threats and actions, combined with Trooper Shair's testimony of continued threats, provided overwhelming, uncontradicted evidence of guilt such that any prejudicial effect of judicial error was insignificant by comparison." Trial Court Opinion, 2/12/2018, at 7. Accordingly, we conclude "beyond a reasonable doubt that the error could not have contributed to the verdict" on the harassment and terroristic threats charges and was harmless. Yockey , 158 A.3d at 1254.
Appellant's second issue specifically concerns his terroristic threats conviction. He argues that because he threatened Trooper Shair in the spur of the moment during transitory anger, the trial court erred by providing the jury with the standard jury instruction instead of Appellant's proposed instruction with more details about the law regarding transitory anger. Appellant's Brief at 15-19. Appellant argues that a new trial is warranted because he was entitled to a more detailed instruction to support his defense that his transitory anger prevented him from forming the requisite intent to terrorize. Id. at 19.
The pertinent section of the Crimes Code provides: "[a] person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another[.]" 18 Pa.C.S. § 2706(a)(1).
The trial court instructed the jury it must find that the Commonwealth proved beyond a reasonable doubt that Appellant communicated a threat to commit a crime or crimes of violence with "intent to terrorize another." N.T., 6/6/2017, at 150. In contrast, Appellant argues the trial court should have used the following instruction:
To find the defendant guilty of terroristic threats, you must find beyond a reasonable doubt that the defendant made the threat with the intent to terrorize another. 18 Pa.C.S.[] § 2706(a)(1). This would require you to find that the defendant had the "settled purpose to terrorize" another. Commonwealth v. Ferrer , 423 A.2d 423, 425 (Pa. Super. [] 1980).Appellant's Brief at 18.
"When two parties have an unplanned, heated confrontation, a threat made during the confrontation is often a spur-of-the-moment threat made during a period of transitory anger." Commonwealth v. Walls , 144 A.3d 926, 937 (Pa. Super. [] 2016). When a defendant makes a threat spur-of-the moment and resulting from anger, the defendant makes the statement with "transitory anger rather than a settled purpose to carry out the threat or to terrorize the other person." Commonwealth v. Kidd , 442 A.2d 826, 827 (Pa. Super. [] 1982).
However, "being angry does not render a person incapable of forming the intent to terrorize." Commonwealth v. Fenton , 750 A.2d 863, 865 (Pa. Super. [] 2000). When determining if the defendant had the intent to terrorize, you must consider the circumstances of when the threat was made to determine if the defendant made the threat with the intent to terrorize another or made the threat because of transitory anger. [ Walls , 144 A.3d at 936]. If after considering the circumstances of the threat, you find that the defendant made a "spur-of-the-moment threat" resulting from anger, you must find the defendant not guilty of terroristic threats. [ Id.]
Although Appellant repeatedly argues that his requested jury instruction concerns a defense, it actually concerns the mens rea element of the crime, i.e., whether Appellant formed the intent to terrorize. Walls , 144 A.3d at 936.
In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is the function of this Court to determine whether the record supports the trial court's decision. In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, 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. Sandusky , 77 A.3d 663, 667 (Pa. Super. 2013).
The Commonwealth provided uncontroverted evidence from Trooper Shair that Appellant's threats continued for hours throughout the night at the police station. See N.T., 6/6/2017, at 59. Thus, the trial court did not err in refusing Appellant's proposed jury instruction, as the facts established at trial did not warrant Appellant's proposed instruction, and providing Appellant's proposed instruction only would have had the potential to confuse and mislead the jury. Furthermore, Appellant was not prejudiced by the court's refusal to provide his requested instruction. Even if the trial court had instructed the jury regarding the law on transitory anger, such an instruction would have not changed the outcome due to the Commonwealth's audio-video evidence of Appellant's actions and Trooper Shair's testimony regarding Appellant's behavior and extended period of threats.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/18/18