Com. v. Coleman, G. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GARY L. COLEMAN, No. 69 MDA 2017
Appellant
Appeal from the Judgment of Sentence, December 9, 2016,
in the Court of Common Pleas of Lycoming County
Criminal Division at No. CP-41-CR-0001183-2015
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 01, 2017
Gary L. Coleman appeals from the December 9, 2016 judgment of
sentence entered in the Court of Common Pleas of Lycoming County
following his conviction in a jury trial of 1 count each of aggravated assault
-- attempt, aggravated assault, possessing instruments of crime, and
disorderly conduct, and 2 counts of simple assault.' The trial court imposed
an aggregate sentence of 80 to 120 months of imprisonment. We affirm.
The trial court set forth the following factual history, as gleaned from
the trial transcript:
The two victims in this case, Jason Allen ("Allen"),
and Jordan Anderson Royal, went to Anne's Tavern
with Christopher Allen and Joshua King around
11 p.m. on July 4, 2015. Jason Allen and
' 18 Pa.C.S.A. §§ 2702(a)(4), 2702(a)(1), 907(a), 5503(a)(1), and
2701(a)(1), respectively.
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Joshua King are brothers, Christopher Allen is their
cousin, and Jordan Anderson Royal is their friend. At
Anne's Tavern, Jason Allen played pool. While
playing pool, Jason Allen greeted Angela Di[M]arco,
an acquaintance from school, who he grew up with
and with whom he was friendly. Angela Di[M]arco is
[appellant's] fiance[e] and mother of [appellant's]
two young children. [Appellant] observed Jason
Allen speaking to Di[M]arco and concluded that Allen
said something that Di[M]arco did not like.
[Appellant] and Allen talked with each other about
what Allen may have said to Di[M]arco. While body
language signaled discord between [appellant] and
Allen, they did not yell or argue. The conversation
ended and Allen resumed playing pool.
As Allen was taking a shot at pool, [appellant]
calmly walked around him and smashed a glass beer
mug over Allen's head with such force that it broke
into pieces. [Allen] was lining up the cue ball to take
his next shot when he heard and felt glass breaking
over him. [Appellant] then pushed Allen into a
corner, swinging at him, kicking him, striking him
with pool sticks and chairs on Allen's face, back and
stomach area. Multiple people blocked assistance to
Allen and other people joined in striking Allen. After
the altercation, Allen was the only individual
observed bleeding. [Appellant] was seen striking
Allen more than five times. As [appellant] was
leaving Ann[e]'s Tavern, [appellant] struck
Jordan Anderson Royal [on] the right side of his
body. After [appellant] struck Royal, Royal fell to
the ground. Once on the ground, [appellant] and
others kicked and stomped on Royal's right side of
his torso.
Allen lost a lot of blood and required about
30-40 stitches. Prior to stitching his wounds,
medical staff pulled out pieces of glass from Allen.
Medical records indicate that Allen suffered "a minor
closed head injury, no concussion, multiple deep
lacerations to the right . periorbital area and the
. .
right cheek area," and noted a "foreign body
present, complicated repair." Medical staff advised
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Allen that he may have "a few small pieces of glass
left behind." In his testimony, Allen rated his pain
level as a 9 on a scale of 1 to 10, with 10 being "the
most extreme amount of pain[,]" lasting for about
three to four days after the assault. Allen suffered
scarring on his side and back from the pool stick or
chairs. Allen suffered swelling to the face and mouth
area of the jaw and inside his lip. Allen suffered
permanent scarring on his face and body. Allen was
off work for two weeks. Allen endured eye twitching
for a period of about four to six months and double
vision of the right eye for a couple of months. Allen
increased visits to the chiropractor. As a result of his
injuries, Allen stopped playing semi -pro football for a
couple of weeks and now uses a special padded
helmet when playing football.
Trial court opinion, 4/5/17 at 3-5 (citations to notes of testimony omitted;
one set of brackets in original).
The record reflects that appellant did not file post -sentence motions,
but filed a timely notice of appeal.2 The trial court then entered an order
directing appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a motion for extension
of time in which to file his Rule 1925(b) statement and reserved the right to
supplement his statement following receipt of transcripts. The trial court
granted appellant's motion, and appellant filed a timely supplemental
2
Although the 30th day following imposition of sentence was Sunday,
January 8, 2017, appellant timely filed his notice of appeal on Monday,
January 9, 2017. See 1 Pa.C.S.A. § 1908, incorporated by reference into
the Rules of Appellate Procedure, Pa.R.A.P. 107 (omitting Saturdays,
Sundays, and legal holidays from time computation).
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Rule 1925(b) statement following receipt of transcripts. Thereafter, the trial
court filed its Rule 1925(a)opinion.
Appellant raises the following issues for our review:
[1.] Whether the trial court erred by allowing the
admission of exhibits 12, 13, 14, 17, and 19
despite their misleading and unduly prejudicial
nature?
[2.] Whether the verdict as to the charge of
Aggravated Assault, 18 Pa.C.S.[A.]
§ 2702(a)(1), is supported by sufficient
evidence regarding [appellant's] intent to
cause serious bodily injury given that he
refrained from using available implements,
such as shards of glass, that certainly would
have caused serious bodily injury?
[3.] Whether the trial court erred in denying
[appellant's] Motion for Continuance and
Mistrial after the Commonwealth informed the
Court that a defense witness, Angela DiMarco,
was being investigated for potential witness
intimidation charges and, further, should be
warned about a potential perjury charge should
she choose to testify as planned, thus
preventing the defense from presenting the
testimony needed to support its theory of the
case?
Appellant's brief at 5 (footnote omitted).3
Appellant first complains that the trial court abused its discretion when
it denied his motion in limine to exclude crime -scene photographs from
being introduced into evidence at trial.
3 We note that the Commonwealth elected against filing a brief in opposition
in this matter. (See Commonwealth correspondence to this court, docketed
5/22/17.)
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"When reviewing the denial of a motion in limine, we apply an
evidentiary abuse of discretion standard of review." Commonwealth v.
Mitchell, 902 A.2d 430, 455 (Pa. 2006) (citation omitted). "In general,
relevant evidence, i.e., evidence that logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable[,] or
supports a reasonable inference or presumption regarding a material fact, is
admissible." Commonwealth v. Jordan, 65 A.3d 318, 324 (Pa. 2013),
cert. denied, 134 S. Ct. 1275, 188 L. Ed. 2d 311 (2014) (quotation and
quotation marks omitted). Although a trial court may find that evidence is
relevant, it may nevertheless exclude the evidence if its probative value is
outweighed by the likelihood of unfair prejudice. Commonwealth v. Reid,
811 A.2d 530, 550 (Pa. 2002), cert. denied, 540 U.S. 850 (2003) (citation
omitted). Accordingly, in exercising its discretion, the trial court must
balance the evidentiary value of the evidence against the potential dangers
of unfairly prejudicing the accused, inflaming the passions of the jury, or
confusing the jury. Jordan, 65 A.3d at 325. Additionally, "[t]he admission
of photographs is a matter resting with the discretion of the trial court."
Commonwealth v. Tharp, 830 A.2d 519, 530 (Pa. 2003). In
Commonwealth v. Malloy, 856 A.2d 767 (Pa. 2004), our supreme court
outlined a two-part test for the admissibility of photographs.
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
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photograph outweighs the likelihood that the
photograph will improperly inflame the minds and
passions of the jury.
Id. at 776.
Here, appellant does not contend that the crime -scene photos were
irrelevant or inflammatory. Rather, appellant complains that the photos
were misleading because, according to appellant, the blood that was
depicted in the crime -scene photographs was not necessarily Allen's blood,
and as such, the jury should not have seen those photographs because it
"allowed the jury to render a decision on an improper basis" by permitting it
to conclude that "given the amount of blood depicted, if all that blood came
from Allen, he must have been seriously injured" and appellant "must have
committed aggravated assault." (Appellant's brief at 14.) In support of this
argument, appellant relies on Leahy v. McClain, 732 A.2d 619 (Pa.Super.
1999). In that negligence case, the trial court precluded the introduction
into evidence of photographs that failed to accurately depict the accident
scene at the time the accident occurred because the photographs were taken
on a summer day when the road was dry, and the accident occurred on a
winter night during a snowstorm. As such, the trial court precluded
admission of these photographs because they would mislead the jury as to
the visibility conditions at the time of the accident. Id. at 624-625.
Here, appellant maintains that similar to the inadmissible photographs
in Leahy, the crime -scene photographs introduced into evidence at his trial
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were misleading because they permitted the jury to infer that all of the blood
depicted in the photographs came from Allen. Appellant's reliance on Leahy
is gravely misplaced because, unlike Leahy, the photographs shown to the
jury in appellant's case were crime -scene photos, not photos taken 6 months
later under completely different conditions. Moreover, the record reflects
that the Commonwealth introduced evidence that Allen was the only person
bleeding that night. (Notes of testimony, 10/27/16 at 23-24, 51-52.) We
find no abuse of discretion.
Appellant next complains that the evidence was insufficient to convict
him of aggravated assault because he lacked the intent to cause serious
bodily injury to Allen, as the facts demonstrate that appellant "did not take
advantage of every opportunity to seriously injure Allen" because appellant
could have used "shards of [a] broken beer mug[,]" "which would have
made an excellent weapon." (Appellant's brief at 15-16.)
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact -finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact -finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact -finder
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. The
Commonwealth may sustain its burden of proof of
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proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all the evidence
actually received must be considered. Finally, the
trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
Under the Crimes Code, a person may be convicted of aggravated
assault, a first -degree felony, 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.A. § 2702(a)(1); see also Commonwealth v. McClendon,
874 A.2d 1223, 1229 (Pa.Super. 2005).
In this case, a jury convicted appellant of aggravated assault after
finding that he caused Allen to sustain serious bodily injury. "When a victim
actually sustains serious bodily injury, the Commonwealth can, but does not
necessarily have to, establish specific intent to cause such harm."
Commonwealth v. Burton, 2 A.3d 598, 602 (Pa.Super. 2010). Moreover,
the "statute's intent requirement can be met if the defendant acts recklessly
under circumstances manifesting an extreme indifference to human life."
Id. (citation omitted). "The intent to cause serious bodily injury -- the only
element of aggravated assault at issue here -- may be proven by direct or
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circumstantial evidence." Commonwealth v. Hall, 830 A.2d 537, 542 (Pa.
2003) (citation omitted).
Here, no dispute exists that appellant struck Allen on the head with a
glass beer mug with such force that it shattered into pieces causing Allen to
sustain multiple wounds that each required 30 to 40 sutures to close. The
Commonwealth presented eyewitness and videotape evidence of appellant
committing the assault. Additionally, appellant testified that he planned to
hit Allen with the beer mug and that he also intended to hit "somebody" with
a pool stick. (Notes of testimony, 10/27/17 at 124-126.) Eyewitness and
videotape evidence revealed that after appellant struck Allen with the beer
mug with such force that it shattered into pieces and caused Allen to sustain
multiple wounds that required emergency medical intervention, appellant
repeatedly struck Allen with a pool stick, inflicting further injury.
Despite this evidence, appellant now complains that that because he
could have used shards of glass of the broken beer mug to assault Allen, the
fact that he chose not to demonstrates that he lacked the requisite intent to
sustain his aggravated assault conviction. Appellant is gravely mistaken. At
the very least, the videotape evidence, together with eyewitness testimony
and appellant's admission that he struck Allen with a beer mug on the head
with such force that it shattered into pieces and that the blow caused Allen
to sustain multiple wounds that each required 30 to 40 sutures to close was
sufficient to prove intent to cause serious bodily injury because it
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demonstrated that appellant acted recklessly with extreme indifference to
Allen's life. Therefore, this claim lacks merit.
Appellant finally complains that the trial court abused its discretion
when it denied his motion for continuance/mistrial after defense witness
Angela DiMarco came under investigation for witness intimidation of three
prosecution witnesses, and as a result of that investigation, Ms. DiMarco
decided against testifying on appellant's behalf.
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a
defendant when prejudicial elements are injected
into the case or otherwise discovered at trial. By
nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a
mistrial serves not only the defendant's interest but,
equally important, the public's interest in fair trials
designed to end in just judgments. Accordingly, the
trial court is vested with discretion to grant a mistrial
whenever the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair
and impartial trial. In making its determination, the
court must discern whether misconduct or prejudicial
error actually occurred, and if so, assess the
. . .
degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether
the court abused its discretion. Judicial discretion
requires action in conformity with [the] law on facts
and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses
its discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a
manner lacking reason.
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (citations
omitted). The grant of a mistrial is an extreme remedy that is required
"only when an incident is of such a nature that its unavoidable effect is to
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deprive the appellant of a fair and impartial tribunal." Commonwealth v.
Johnson, 719 A.2d 778, 787 (Pa.Super. 1998) (en banc) (citation
omitted).
Here, the record reflects that Ms. DiMarco, appellant's fiancée and the
mother of his two children, came under investigation for witness intimidation
during appellant's trial. Defense counsel made an oral motion for
continuance/mistrial claiming that counsel had planned to call Ms. DiMarco
on appellant's behalf and "[n]ot having her available greatly hampers
[appellant's] defense." (Notes of testimony, 10/27/16 at 72.) The trial
court denied the oral motion for continuance without prejudice and deferred
its ruling on the motion for mistrial until Ms. DiMarco decided whether she
would testify on appellant's behalf. (Id. at 75, 78-79.) Counsel was then
appointed to advise Ms. DiMarco as to the legal consequences of her decision
to testify. Thereafter, Ms. DiMarco stated on the record that she would not
testify and that the decision was of her own free will. (Id. at 98.) Defense
counsel did not renew the motion for continuance, and the trial court did not
declare a mistrial.
Appellant now complains that:
[h]ad a continuance been granted until Ms. DiMarco's
charges had been resolved, she would have been
available as a witness and these crucial facts could
have come to light. Because she reasonably decided
that she would plead the Fifth if she were called to
testify, [appellant] was prejudiced in that he was
unable to fully present the facts necessary to support
his theory of the case.
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Appellant's brief at 18-19 (citation to notes of testimony omitted).
Appellant fails to explain, and we cannot fathom, how a defense
witness who comes under investigation for witness intimidation and decides
against testifying to reduce her exposure to criminal liability constitutes a
prejudicial event that deprived appellant of a fair and impartial trial. As the
trial court explained:
A jury would likely view testimony by Di[M]arco as
potentially biased. Di[M]arco was [appellant's]
fiance[e] and mother of his small children.
[Appellant] should not profit from the alleged
misconduct of his fiance[e].
There was no specific proffer as to what
Ms. Di[M]arco's testimony would have been or how it
would advance [appellant's] theory of the case.
There was no suggestion that [the] circumstances
surrounding Ms. Di[M]arco's ability to testify would
change within a reasonable time. The
Commonwealth asserted that those circumstances
would not change. Any testimony by Ms. Di[M]arco
would be weighed as having some potential for bias
in [appellant's] favor. Given the admissions by
[appellant] and the video [evidence], Ms. Di[M]arco's
testimony would not go toward whether [appellant]
struck Allen with a glass beer mug and attacked
Allen but rather would likely have been cumulative
evidence as to what transpired verbally between
Allen and [appellant]. Since [appellant] did not
allege self-defense or defense of others so it is
unclear what theory of the case Di[M]arco's
testimony could support. The Court believes it was
appropriate to deny the continuance/mistrial.
Trial court opinion, 4/5/17 at 10 (citations to notes of testimony omitted).
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After hearing and consideration, the learned trial court acted in
conformity with the law on the facts and circumstances that came before it
with respect to the investigation of Ms. DiMarco and appellant's requested
continuance/mistrial. Accordingly, we discern no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 8/1/2017
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