Com. v. Best, O. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OMAR SHARIFF BEST,
Appellant No. 2070 MDA 2014
Appeal from the Judgment of Sentence September 12, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001772-2013
BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 23, 2015
Appellant, Omar Shariff Best, appeals from the judgment of sentence
entered on September 12, 2014, in the Centre County Court of Common
Pleas. We affirm.
On July 25, 2013, Appellant, while incarcerated at the State
Correctional Institution at Rockview, physically attacked and raped a female
employee at the facility. Following a jury trial, Appellant was found guilty of,
inter alia, aggravated assault causing serious bodily injury,1 aggravated
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(1).
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assault of an employee at a correctional institution,2 rape by forcible
compulsion,3 and rape of an unconscious person.4 The trial court sentenced
Appellant on September 12, 2014, and on September 22, 2014, Appellant
filed a timely post-sentence motion, which was denied in an order filed on
November 21, 2014. This timely appeal followed. Both Appellant and the
trial court have complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for this Court’s
consideration:
I. Did the Trial Court err in denying [Appellant’s] pre-Trial Motion
in Limine and allowing the admissibility at Jury Trial of
inflammatory color photographs of the petechial hemorrhaging of
the sclera of both of [the victim’s] eyes?
II. Did the Trial Court err in granting the Commonwealth’s pre-
Trial Motion in Limine and preventing the defense from using an
illustration of reasonable doubt during closing summation?
III. Did the Sentencing Court err in imposing two separate
sentences on Count 1 and on Count 2 for one single act of
Aggravated Assault, and in imposing two separate sentences on
Count 3 and on Count 4 for one single act of Rape?
Appellant’s Brief at 11 (verbatim).
In Appellant’s first two issues, he claims the trial court erred in its
ruling on two motions in limine. The well-settled standard of review we
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2
18 Pa.C.S. § 2702(a)(2).
3
18 Pa.C.S. § 3121(a)(1).
4
18 Pa.C.S. § 3121(a)(3).
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apply when reviewing a trial court’s ruling on a motion in limine is as
follows:
When reviewing the denial of a motion in limine, this Court
applies an evidentiary abuse of discretion standard of review. It
is well-established that the admissibility of evidence is within the
discretion of the trial court, and such rulings will not form the
basis for appellate relief absent an abuse of discretion. Thus, the
Superior Court may reverse an evidentiary ruling only upon a
showing that the trial court abused that discretion. A
determination that a trial court abused its discretion in making
an evidentiary ruling may not be made merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. Further, discretion is abused when the law is
either overridden or misapplied.
Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (internal
citations, ellipsis, and quotation marks omitted).
In Appellant’s first issue, he argues that the trial court erred in
denying his motion in limine and permitting the Commonwealth to introduce
seven photographs depicting the hemorrhaging in the victim’s eyes caused
by the attack. Appellant’s Brief at 22.
The test for determining whether photographs are admissible
involves a two-step analysis. First, the court must decide
whether a photograph is inflammatory by its very nature. If the
photograph is deemed inflammatory, the court must determine
whether the essential evidentiary value of the photograph
outweighs the likelihood that the photograph will improperly
inflame the minds and passions of the jury.
Commonwealth v. Lowry, 55 A.3d 743, 753 (Pa. Super. 2012) (citations
and quotation marks omitted).
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At the hearing on the motion in limine, the following exchange
occurred:
[Appellant’s Counsel]: The second Motion in Limine is with
respect to colored photographs of [the victim]. This picture of
her eyes. For the record I marked this as Defendant’s Exhibits 1
through 7. We’re asking the court to review those and to enter
an Order that the Commonwealth be precluded from using them.
I would suggest to the Court that those are highly inflammatory.
The witnesses can testify as to what they observed. [The
victim] can testify to her injuries. To submit or admit the
photographs would just be cumulative I would suggest to the
Court. Another alternative would be to have them in black and
white as opposed to color if the Court was inclined to admit
them.
The Court: You know I have had some horrendous photographs
of autopsies and bodies that are mangled and damaged and I
can see in those cases why – especially when there is the
presence of blood splatters and pools of blood and all of that,
why you would want that to be in black and white because it is a
bit inflammatory. I am looking at these photos and they really
are not shocking at all to me. It actually just shows this
woman’s eyes to be red and I am not taken back by this. I
really am not. I don’t think a jury would be either.
[Assistant District Attorney]: Commonwealth doesn’t believe
that they are inflammatory at all. They are direct proof of what
[the victim] says, that she was choked unconscious by
[Appellant] and received these injuries based on what [Appellant
did]. We have a burden of proof here to show that he attempted
to cause her serious bodily injury or caused her serious bodily
injury. They are direct evidence of that.
The Court: What is the Commonwealth’s theory as to why her
eyes are red like this? Is this because of alleged strangulation?
[Assistant District Attorney]: Yes, Your Honor. Absolutely. The
allegation here is that [Appellant] entered the room, came up
behind her, strangled her, threatened her with a knife, and
chocked [sic] her to the point that she was unconscious, where
he then raped her. This is direct evidence of that. And if
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[Appellant] is going to argue that they had consensual sex and
this is somehow part of their consensual sex this evidence
dispels that and is important for that purpose as well.
The Court: Yeah. I am not going to preclude these photos.
N.T., Motion in Limine, 5/14/14, at 19-21.
Additionally, in its opinion, the trial court stated:
This Court denied [Appellant’s] Motion in Limine and
concluded the photographs were relevant and their probative
value outweighed any prejudice to [Appellant]. The photographs
were not precluded because the Commonwealth had the burden
to prove to the jury that [the victim] suffered a serious bodily
injury pursuant to the elements of the Aggravated Assault
counts. Although [the victim] did testify regarding her injuries,
including the injury to her eyes, [Appellant] offered a consent
defense and he testified that [the victim] asked him to choke her
for her own erotic pleasure. Nurse Hubler could not testify about
the petechial hemorrhaging in the sclera of [the victim’s] eyes
because only minor redness was immediately noticeable.
Therefore, the evidence was not cumulative. The photographs
depicted virtually all of the white of [the victim’s] eyes to be
very red but there was nothing particularly ghastly about the
images. Therefore, this Court maintains there was no err in
denying the Motion in Limine regarding these photographs.
Trial Court Opinion, at 2/4/15, at 2-3.
We discern no abuse of discretion. The trial court determined that the
images were not inflammatory and were relevant and probative of the
elements of the crimes with which Appellant was charged. Appellant is
entitled to no relief on this issue.5
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5
Assuming the trial court had concluded that the photos were inflammatory,
we would conclude that the evidentiary value of the photographs outweighed
the likelihood that they would improperly inflame the minds and passions of
(Footnote Continued Next Page)
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In his second issue, Appellant argues that the trial court erred in
granting the Commonwealth’s motion in limine precluding the defense from
using an illustration of reasonable doubt during its closing. The trial court
addressed this issue as follows:
In their Motion in Limine, the Commonwealth sought to
preclude defense counsel from using an illustration in her closing
argument regarding reasonable doubt. The illustration involved
using one’s common sense and experience to make a decision
regarding whether to ice skate on a pond after making
observations such as the weather, the appearance of the ice,
etc. This Court precluded defense counsel from using this
illustration as it is not that useful in understanding reasonable
doubt, can tend to confuse the jury, involves an experience that
many people cannot relate to as not everyone ice skates on open
bodies of water, and involves a fearful concept. The thought of
making a mistake in assessing the security of ice on which to
skate, falling through the ice into the water, and the potential
results of hypothermia, frost bite, or drowning are such
unpleasant thoughts, this Court concluded that this particular
illustration is not appropriate. See Com. v. Fisher, 572 Pa. 105,
127, 813 A.2d 761, 774 (2002) Justice Saylor concurring.
Defense counsel was free to use another illustration or to
describe the concept of reasonable doubt in another manner for
the jury.
Trial Court Opinion, at 2/4/15, at 3.
Appellant cites to Commonwealth v. Jones, 858 A.2d 1198, 1200
(Pa. Super. 2004), which stands for the proposition that the trial court may
use an illustration to explain reasonable doubt. Appellant’s Brief at 33.
_______________________
(Footnote Continued)
the jury. Lowry, 55 A.3d at 753. Appellant’s defense was that he had
consensual intercourse with the victim and choked her as part of that
allegedly consensual act. The photos were direct evidence proving the
injuries the victim sustained, established the force used in the attack, and
Appellant’s intent to injure the victim.
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However, that fact is not in dispute as it is the trial court’s responsibility to
instruct the jury on the applicable law. Commonwealth v. Hallman, 67
A.3d 1256, 1262 (Pa. Super. 2013) (citing Commonwealth v. Hart, 565
A.2d 1212, 1216 (Pa. Super. 1989)). Therefore, it was the trial court’s duty
to explain reasonable doubt to the jury, not Appellant’s.
Appellant has not argued that the jury received an inadequate or
improper instruction on reasonable doubt; he complains only that he was
unable to provide his own analogy. Moreover, we point out that the trial
court did not bar Appellant from providing the jury with an illustration of
reasonable doubt — it only precluded Appellant from using the example of
walking across a frozen body of water. Trial Court Opinion, 2/4/15, at 3.
Appellant has offered no authority that would cause this Court to find that
the trial court abused its discretion by precluding the proffered frozen-pond
analogy. Accordingly, we conclude that no relief is due.
Finally, Appellant avers that the trial court erred in imposing separate
sentences on the two aggravated-assault convictions and in imposing
separate sentences on the two rape convictions. Appellant argues that
aggravated assault causing serious bodily injury and aggravated assault of
an employee at a correctional institution should merge, and he claims that
rape by forcible compulsion and rape of an unconscious person should
merge.
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The issue of merger is a pure question of law, and our standard of
review is plenary. Commonwealth v. Yeomans, 24 A.3d 1044, 1050 (Pa.
Super. 2011). In 2002, our Legislature enacted the merger statute, which
reads as follows:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765.6 Following the enactment of the merger statute, our
Supreme Court determined that when each offense contains an element that
the other does not, merger is inappropriate. Commonwealth v. Baldwin,
985 A.2d 830, 837 (Pa. 2009).
To determine whether offenses are greater and lesser-included
offenses, we compare the elements of the offenses. If the
elements of the lesser offense are all included within the
elements of the greater offense and the greater offense has at
least one additional element, which is different, then the
sentences merge. If both crimes require proof of at least one
element that the other does not, then the sentences do not
merge.
Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super. 2012) (internal
citations and quotation marks omitted).
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6
42 Pa.C.S. § 9765 became effective on February 7, 2003.
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As noted above, Appellant was charged with and convicted of
aggravated assault causing serious bodily injury and aggravated assault of
an employee at a correctional institution. The elements of these crimes are
set forth as follows:
A person is guilty of aggravated assault if he:
(1) 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;
(2) attempts to cause or intentionally, knowingly or recklessly
causes serious bodily injury to any of the officers, agents,
employees or other persons enumerated in subsection (c) or to
an employee of an agency, company or other entity engaged in
public transportation, while in the performance of duty;
18 Pa.C.S. § 2702 (a)(1) and (2). Additionally, for purposes of our
discussion of 18 Pa.C.S. 2702(a)(2), an employee at a correctional
institution is a specifically enumerated person under 18 Pa.C.S. §
2702(c)(9).
Pursuant to Section 9765, aggravated assault causing serious bodily
injury is not a lesser included offense of aggravated assault of an employee
at a correctional institution because, while aggravated assault causing
serious bodily injury requires extreme indifference to the value of human
life, aggravated assault of an employee at a correctional institution does not.
Moreover, aggravated assault of an employee at a correctional institution
requires the victim to be employed at a correctional institution, while
aggravated assault causing serious bodily injury has no such employment
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requirement. Therefore, neither crime is a lesser included offense of the
other, and they do not merge under Section 9765.
With respect to the rape charges, Appellant was convicted of rape by
forcible compulsion and rape of an unconscious person. The elements of
these crimes are set forth as follows:
A person commits a felony of the first degree when the person
engages in sexual intercourse with a complainant:
(1) By forcible compulsion.
* * *
(3) Who is unconscious or where the person knows that the
complainant is unaware that the sexual intercourse is occurring.
18 Pa.C.S. § 3121(a)(1) and (3).
The only element that these two crimes have in common is sexual
intercourse, because rape by forcible compulsion does not require the victim
to be unconscious, and rape of an unconscious person does not require
forcible compulsion. Therefore, neither crime is a lesser included offense of
the other, and these crimes do not merge under Section 9765.
Finally, Appellant claims that there is a double jeopardy component of
his merger claim. Appellant’s Brief at 38. Appellant cites to
Commonwealth v. Dobbs, 682 A.2d 388 (Pa. Super. 1996) and
Commonwealth v. Rhoads, 636 A.2d 1166 (Pa. Super. 1994) to support
his argument. In Dobbs, this Court explained that if a defendant has
engaged in a single criminal act violating more than one section of a statute,
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and if those sections are designed to proscribe a single harm, then the
sentences merge. Dobbs, 682 A.2d at 391. In Rhoads, this Court stated
that convictions of two separate subsections of the simple assault statute
constitute one offense for sentencing when the factual predicate for both
convictions was one underlying act because the subsections of the simple
assault statute were drafted with the disjunctive “or,” and are, therefore,
alternative bases for conviction. Rhoads, 636 A.2d at 1167-1168.
After review of the aforementioned cases and their analysis on merger,
however, we must point out that those cases were decided prior to the
enactment of 42 Pa.C.S. § 9765. Our Supreme Court affirmed the adoption
of an elements-based approach to merger analysis under Section 9765 in
Baldwin, and thus implicitly rejected the argument that case law decided
before the enactment of Section 9765 should control. Baldwin, 985 A.2d at
835-837. Moreover, this Court has concluded that there is no bar to the
legislature defining merger in a purely elemental fashion and that Section
9765 does not violate double jeopardy. Commonwealth v. Wade, 33 A.3d
108, 121 (Pa. Super. 2011). Accordingly, we need not address the double
jeopardy issue based on the pre-Section 9765 cases further, and we
conclude there was no error in the trial court sentencing Appellant
separately for both aggravated assault convictions and for both rape
convictions.
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For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgement of sentence.
Judgment of sentence affirmed.
Judge Jenkins joins the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
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