Opinion
J-S60019-15 No. 3455 EDA 2014
11-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOHN MUCCI A/K/A GIOVANNI ROBERT MUCCI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 25, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007521-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J.:
John Mucci, a/k/a Giovanni Robert Mucci, appeals pro se from the judgment of sentence entered in the Court of Common Pleas of Montgomery County after a jury convicted him of aggravated assault/serious bodily injury, simple assault and recklessly endangering another person. Upon review, we affirm, primarily on the basis of the comprehensive opinion authored by the Honorable Garrett D. Page.
18 Pa.C.S.A.§ 2702(a)(1).
Mucci's convictions stem from a work-related incident in which Mucci struck a co-worker in the head with a padlock wrapped in a bandanna following an argument over the rights to scrap wire. Mucci represented himself at a jury trial, which took place between July 28 and 31, 2014. After the jury found him guilty of the above charges, the trial court sentenced Mucci to an aggregate sentence of 10 to 20 years' imprisonment followed by two years of probation. Mucci's post-sentence motions were denied and this timely appeal follows, in which Mucci raises the following issues, verbatim:
We note that Mucci filed his notice of appeal prior to the date on which his post-sentence motions were denied by the trial court. Pursuant to Pa.R.A.P. 905(a)(5), "[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof."
We have renumbered certain of Mucci's claims for ease of disposition.
1. Whether the Commonwealth committed reversible error when they admitted evidence of [Mucci's] pre-arrest silence?
2. Whether the Commonwealth committed reversible error by addressing [Mucci's] post-arrest silence?
3. Whether the trial court abused [its] discretion in allowing the Commonwealth to admit into evidence a demonstrative lock and handkerchief that was allegedly used by [Mucci] and whether the trial court erred in allowing the Commonwealth to use as evidence, alleged pictures of the victim's injuries?
4. Whether the Commonwealth committed reversible error by admitting evidence regarding a challenged pre-trial lineup?
5. Whether the Commonwealth committed reversible error by not disclosing evidence that was favorable to [Mucci]?
6. Whether the [c]ourt imposed an illegal sentence upon [Mucci] by imposing a mandatory minimum sentence?
7. Whether the evidence presented was sufficient to convict?Brief of Appellant, at 5.
8. Whether the verdict was against the weight of the evidence?
Mucci's first three assignments of error concern the trial court's admission of evidence. Our standard of review with regard to such claims is well-settled:
The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of the evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.Commonwealth v. Antidormi , 84 A.3d 736, 749 (Pa. Super. 2014) (citation omitted). "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." Id. "An abuse of discretion may result where the trial court improperly weighed the probative value of evidence admitted against its potential for prejudicing the defendant." Id. at 750.
Mucci first asserts that the trial court erred by admitting evidence of his pre-arrest silence. Specifically, Mucci objects to a statement by Officer Brian Richard on direct examination that, prior to his arrest, Mucci declined Officer Richard's request to speak with him.
In his statement of questions involved, Mucci also raises a claim regarding the alleged improper statements by the Commonwealth regarding his post-arrest silence. However, as the Commonwealth correctly notes in its counterstatement of questions involved, Mucci fails to develop any argument on this issue. Accordingly, the claim is waived. See Pa.R.A.P. 2119(a); Commonwealth v. Burton , 770 A.2d 771 (Pa. Super. 2001) (failure to develop argument results in waiver). Even if Mucci had not waived this claim, it would be meritless for the reasons set forth in Judge Page's opinion.
Both the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution protect an individual's right not to be compelled to be a witness against himself. Commonwealth v. Lettau , 986 A.2d 114, 117 (Pa. 2009) (citation omitted); see also Miranda v. Arizona , 384 U.S. 436 (1966). The Commonwealth may not use pre-arrest silence as substantive evidence of guilt when a defendant chooses not to testify. Commonwealth v. Molina , 33 A.3d 51, 63 (Pa. Super. 2011). Nevertheless, "an appellant can open the door to the Commonwealth using his or her pre-arrest silence under the 'fair-response doctrine' even when the appellant does not testify." Commonwealth v. Fischere , 70 A.3d 1270, 1278 (Pa. Super. 2013).
Here, the trial court concluded that Mucci's claim fails for three distinct reasons: (1) he waived the issue by failing to make a timely objection; (2) his opening statement "opened the door" to fair response by the Commonwealth; and (3) the testimony regarding Mucci's pre-arrest silence was not offered as evidence of his guilt. Upon review of the record in this matter, in particular the trial transcripts, as well as the briefs of the parties and the applicable law, we conclude that the trial court has thoroughly and accurately disposed of this issue. Accordingly, we affirm on the basis of Judge Page's opinion.
Mucci next asserts that the trial court erred in admitting the demonstrative evidence of the Master lock and bandanna. He also asserts that the court erred in allowing the Commonwealth to admit photographs of the victim's injuries because, he claims, they were not properly authenticated.
In the argument portion of his brief, Mucci also argues that the photographs were prejudicial and inflammatory and also "because of the prosecutorial misconduct where the prosecutor failed to turn over this exculpatory evidence in a timely fashion." Brief of Appellant, at 23. None of these objections were raised at trial and, accordingly, are waived.
Demonstrative evidence is tendered for the purpose of rendering other evidence more comprehensible to the trier of fact may and may be admitted if its relevance outweighs any potential prejudicial effect. Commonwealth v. Serge , 896 A.2d 1170, 1176 (Pa. 2006). The offering party must authenticate such evidence, which may be accomplished by the presentation of other evidence, such as witness testimony, sufficient to support a finding that the matter in question is what its proponent claims. Id.; see Pa.R.E. 901(a). The overriding principle in determining if any evidence, including demonstrative, should be admitted involves a weighing of the probative value versus prejudicial effect. Serge , supra. The trial court must decide first if the evidence is relevant and, if so, whether it is more probative than prejudicial. Commonwealth v. Hawk , 709 A.2d 373, 376 (Pa. 1998).
With regard to the pictorial evidence of the victim's injuries, it is well-settled that:
A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury[.]Commonwealth v. Braithwaite , 385 A.2d 423, 426 (Pa. Super. 1978) (citations omitted).
Here, the trial court concluded that both the padlock/bandanna and the photographs were properly authenticated by witnesses at trial and the question whether either exhibit represented what it was purported to represent was a question of fact for the jury to weigh. We rely on Judge Page's opinion in finding this claim to be without merit.
Mucci next alleges that the trial court erred by admitting evidence regarding a pre-trial photographic lineup. Specifically, the victim made reference to the fact that the police had asked him to come down to the station and view a photo lineup. Mucci asserts that the reference to the lineup was: (1) unnecessary, as his identity was not in dispute and (2) prejudicial because "the jury could possibly make the inference that he was 'in the system' so to speak, which would show that [he] was either arrested or convicted [previously]." Brief of Appellant, at 19.
The brief exchange between counsel for the Commonwealth and the victim was as follows:
Q: So when did you go to the police station?N.T. Trial, 7/29/14, at 37. The Commonwealth immediately moved on after Mucci objected. Although Mucci claims that the trial court had previously instructed the Commonwealth to refrain from making any reference to the photo lineup, this assertion is incorrect. At a hearing on pre-trial motions, the trial court deferred ruling on Mucci's motion to exclude the lineup, indicating only that it was "leaning towards not letting it in." N.T. Pre-Trial Motions Hearing, 7/23/14, at 72.
A: After being released from Mercy Suburban, I returned home to Westville. At that point, an officer from the Whitpain Township police contacted my telephone and asked me if I could come back to look at a lineup, a photo lineup to identify the defendant.
In its opinion, the trial court concluded that, although the photo lineup was irrelevant to the Commonwealth's case and the testimony was therefore improper, Mucci was not prejudiced by the victim's reference to the lineup and, therefore, its admission was harmless error. Because the reference was fleeting, we agree that there is no reasonable probability that the error contributed to Mucci's conviction. See Commonwealth v. Wood , 637 A.2d 1335, 1351 (Pa. Super. 1994). Accordingly, we affirm on the basis of the trial court's analysis.
Next, Mucci claims that the Commonwealth committed a Brady violation by not disclosing evidence that was favorable to him. Mucci asserts that the Commonwealth failed to turn over video from a nearby Giant grocery store showing him "calmly walking up and down aisles searching for first aid care, which is contrary to the Commonwealth's theory that [Mucci] immediately fled the scene." Brief of Appellant, at 34.
Brady v. Maryland , 373 U.S. 83 (1963).
Under Brady and subsequent decisional law, the Commonwealth has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. Commonwealth v. Roney , 79 A.3d 595, 607 (Pa. 2013), citing Commonwealth v. Hutchinson , 25 A.3d 277, 310 (Pa. 2011). To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. Id. However, "[n]o Brady violation can occur where the evidence is available to the defense through non-governmental sources, or, with reasonable diligence, the defendant could have discovered the evidence." Commonwealth v. Carson , 913 A.2d 220, 245 (Pa. 2006).
Here, the trial court concluded that the evidence in question: (1) was not suppressed by the Commonwealth; (2) was equally available to the defense through non-governmental sources, i.e., Giant grocery store; (3) was not exculpatory; and (4) would not have affected the outcome of the trial. We agree with the trial court's analysis and affirm on that basis.
Next, Mucci claims that his sentence was illegal and unconstitutional under Alleyne v. United States , 133 S.Ct. 2151 (2013), which held that any fact triggering the imposition of a mandatory minimum sentence must be treated as an element of the offense, submitted to the jury, and proved beyond a reasonable doubt. Mucci is entitled to no relief.
Here, Mucci received a mandatory minimum "second strike" sentence under section 9714(a) of the Sentencing Code, which provides, in relevant part:
Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. . . .42 Pa.C.S.A. § 9714(a). Because Mucci had been previously convicted of robbery and burglary, defined as crimes of violence under section 9714(c), his instant conviction for aggravated assault constituted a second strike under the statute and he was sentenced accordingly.
In Almendarez-Torres v. United States , 523 U.S. 224 (1998), the Supreme Court held that the fact of a prior conviction was not an element of the crime required to be charged in the indictment. In dicta, the Court noted that the defendant
makes no separate, subsidiary, standard of proof claims with respect to his sentencing, perhaps because he admitted his recidivism at the time he pleaded guilty and would therefore find it difficult to show that the standard of proof could have made a difference to his case. Accordingly, we express no view on whether some heightened standard of proof might apply to sentencing determinations which bear significantly on the severity of sentence.Id. at 247. However, in subsequent cases addressing the Sixth Amendment and Due Process implications of facts increasing the prescribed range of penalties, the Court left the prior-conviction exception intact. See Apprendi v. New Jersey , 530 U.S. 466 (2000) and Alleyne , supra. Accordingly, proof of Mucci's prior convictions was not required to be placed before the jury and his sentence is not illegal.
Mucci next challenges the sufficiency of the evidence to support his convictions.
In challenges to the sufficiency of the evidence, our standard of review is de novo, however, our scope of review is limited to considering the evidence of record, and all reasonable inferences arising therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner. Evidence is sufficient if it can support every element of the crime charged beyond a reasonable doubt. The evidence does not need to disprove every possibility of innocence, and doubts as to guilt, the credibility of witnesses, and the weight of the evidence are for the fact-finder to decide. We will not disturb the verdict unless the evidence is so weak and inconclusive that as a matter of law
no probability of fact may be drawn from the combined circumstances.Commonwealth v. Forrey , 108 A.3d 895, 897 (Pa. Super. 2015) (internal citations and quotation marks omitted).
Upon review of the record, the briefs and the relevant law, we conclude that Judge Page thoroughly and correctly addresses this claim in his opinion, and we affirm on that basis.
Finally, Mucci asserts that the verdict was against the weight of the evidence. Our standard of review of such a claim is as follows:
Appellate review of a weight claim is a review of the [trial court's] exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. 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 when reviewing a trial court's determination [as to whether] the verdict is against the weight of the evidence. 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 and that a new trial should be granted in the interest of justice.Commonwealth v. Widmer , 744 A.2d 745, 753 (Pa. 2000) (internal citations omitted). Moreover,
A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.Commonwealth v. Best , 2015 Pa. Super. LEXIS 409, *25 (Pa. Super. 2015) (internal citations and quotation marks omitted).
Here, the trial court reviewed the evidence adduced at trial and found that "[v]ery little of the testimony was contradictory and favorable to [Mucci]." Trial Court Opinion, 2/10/15, at 28. Accordingly, the court concluded as follows:
Given the amount of uncontradicted evidence presented by the Commonwealth that [Mucci] was the sole aggressor, the severity of the injuries sustained by [c]omplainant, [Mucci's] potential access to the truck after the altercation, and Fred[ Mignogna's] testimony that he heard Shawn say to [Mucci], "What did you hit [complainant] with?" at the time of the incident, the undersigned did not find . . . the verdict of guilty to be shocking to one's sense of justice.Id.
Upon review of the record, we can discern no abuse of discretion on the part of the trial court in concluding that the verdict was not against the weight of the evidence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
As we have affirmed in large part on the basis of Judge Page's opinion, the parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.
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