Com. v. Ortiz, H. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HECTOR LUIS ORTIZ :
:
Appellant : No. 767 MDA 2022
Appeal from the Judgment of Sentence Entered April 18, 2022
In the Court of Common Pleas of Berks County
Criminal Division at CP-06-CR-0003361-2021
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 13, 2023
Hector Luis Ortiz (Appellant) appeals from the judgment of sentence
imposed after a jury found him guilty of resisting arrest, and the trial court
found him guilty of harassment and disorderly conduct.1 We affirm.
The evidence adduced at Appellant’s one-day trial consisted solely of
testimony from Wyomissing Borough Police Officer Sean Engelman (Officer
Engelman or the Officer). The trial court explained:
Officer Engelman was dispatched to the Inn at Reading for reports
of a stabbing in the City of Reading and an ambulance request
from the stabbing victim[, Appellant,] who was at the Inn at
Reading. Based on the violent nature of the stabbing, the Officer
testified that protocol requires the Officer to proceed to the scene
first to clear the way for [emergency medical services personnel
(EMS)]. When Officer Engelman was attending to [Appellant
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 5104, 2709(a)(1), 5503(a)(1).
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inside his hotel room, Appellant] told the Officer to “get the fuck
out” and proceeded to take [Appellant’s] hands and put them on
Officer Engelman’s chest and shoved the Officer out the door of
the hotel room. At that point in the confrontation, Officer
Engelman told [Appellant] he was under arrest.
***
After [Appellant] was told he was under arrest for
harassment due to him shoving the Officer, [Appellant] continued
to tell the Officer to get out of here. … The Officer grabbed
[Appellant’s] arm to conduct an arm bar takedown on [Appellant].
While the Officer was attempting to conduct an arm bar takedown,
[Appellant] remained wet and covered in blood from [his] stabbing
injury. [Appellant] continued to resist the Officer’s arrest. The
Officer and [Appellant] continued in a scuffle in the hallway of the
hotel, with the Officer continuing to attempt to subdue [Appellant]
and place him into custody. At that point, Officer Engelman was
on the ground. From his position on the ground, the Officer drew
his taser and pointed it at [Appellant] and told him again to get
on the ground or he would be tased. [Appellant] complied at that
point and was placed under arrest.
Trial Court Opinion, 8/11/22, at 6, 7 (some capitalization modified).
The Commonwealth charged Appellant with the aforementioned crimes.
Prior to trial, the trial court instructed the jury as follows:
You will not be permitted to take notes during the course of this
trial. In a trial of this length, the concern is that note-taking could
be a distraction, that notes would often be incomplete and that
undue weight might be given to those notes. We want you to rely
upon your combined recollection of all the evidence.
N.T., 4/4/22, at 54. Neither party objected to the instruction.
At the close of the Commonwealth’s case, Appellant’s counsel moved for
judgment of acquittal on all charges. See id. at 97-100, 104-05 (counsel
arguing, “Appellant did not punch and kick and go for [Officer Engelman’s]
gun … and … [Appellant] did not resist [arrest] by means justifying or requiring
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substantial force. This was minimal resistance here …. [Appellant] … did not
attack the [O]fficer. [Appellant] was just trying to retreat back into his
room.”).
The prosecutor argued otherwise. See, e.g., id. at 102 (arguing,
“[Appellant] fought with [Officer Engelman] to a point that [the Officer] had
to use physical force to overcome a substantial amount of active force [by
Appellant,] … the [O]fficer ended up on his knees and covered in [Appellant’s]
blood, and had to pull out a taser.”), and id. at 101 (emphasizing Officer
Engelman “had to file … a workman’s comp claim for future injury or possible
injury as it relates to blood borne illnesses.”).
The trial court denied Appellant’s motion for judgment of acquittal. Id.
at 106. The jury convicted Appellant of resisting arrest and the trial court
convicted him of harassment and disorderly conduct. On April 18, 2022, the
trial court sentenced Appellant to an aggregate two years of probation.
Appellant did not file post-sentence motions. This timely appeal followed.
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents three issues for review:
1. Did the trial court err in upholding the verdicts where the guilty
verdicts were contrary to the weight of the evidence?
2. Did the trial court err for failing to grant [Appellant’s] Motion
for Judgment of Acquittal?
3. Did the trial court err by not permitting jurors to take notes?
Appellant’s Brief at 2 (renumbered for disposition).
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Appellant withdrew his first issue; thus, we do not address it. Id. at 12
n.6 (“Appellant hereby withdraws his challenge to the weight of the
evidence.”).
In his second issue, Appellant argues the trial court erred in denying his
motion for judgment of acquittal because the Commonwealth failed to present
sufficient evidence to prove the crimes beyond a reasonable doubt. See id.
at 9-12. Appellant claims
the Officer testified that the Appellant shoved him to get the
Officer to leave the hotel. There was no testimony that the
Appellant had any intent to harass, annoy, or alarm the Officer.
Testimony clearly shows that the Appellant’s intent was to have
the Officer leave the hotel room.
Id. at 11. Appellant also asserts that during the struggle, Officer Engelman’s
actions, not Appellant’s, caused them to move from the hotel room into the
hallway, and thus “Appellant did not have the requisite mens rea to commit
any act in a public place and therefore cannot be guilty of the crime of
disorderly conduct, which requires an intent to cause public inconvenience.”
Id. at 12.
A motion for judgment of acquittal “challenges the sufficiency of the
evidence to sustain a conviction on a particular charge, and is granted only in
cases in which the Commonwealth has failed to carry its burden regarding that
charge.” Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa. Super.
2008) (citation omitted). The standard we apply when reviewing sufficiency,
is whether
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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 proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. … Finally, the finder 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. Smith, 206 A.3d 551, 557 (Pa. Super. 2019) (citations
omitted).
The crime of resisting arrest occurs when a person, “with the intent of
preventing a public servant from effecting a lawful arrest or discharging any
other duty, … creates a substantial risk of bodily injury to the public servant
or anyone else, or employs means justifying or requiring substantial force to
overcome the resistance.” 18 Pa.C.S.A. § 5104. “[A]ggressive use of force
such as striking or kicking” an officer is not required to sustain a conviction
for resisting arrest. Commonwealth v. Miller, 475 A.2d 145, 146 (Pa.
Super. 1984) (footnote omitted). “A valid charge of resisting arrest requires
an underlying lawful arrest, which, in turn, requires that the arresting officer
possess probable cause.” Commonwealth v. Clemens, 242 A.3d 659, 666
(Pa. Super. 2020) (citations omitted); see also Commonwealth v. Manuel,
194 A.3d 1076, 1081 (Pa. Super. 2018) (en banc) (defining probable cause).
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A person commits the summary offense of harassment, in relevant part,
“when, with intent to harass, annoy or alarm another, the person … strikes,
shoves, kicks or otherwise subjects the other person to physical contact, or
attempts or threatens to do the same.” 18 Pa.C.S.A. § 2709(a)(1).
Finally, disorderly conduct is defined as follows:
A person is guilty of disorderly conduct if, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating
a risk thereof, he … engages in fighting or threatening, or in
violent or tumultuous behavior[.]
Id. § 5503(a)(1).
We first observe that Appellant failed to preserve his sufficiency
challenge in his Pa.R.A.P. 1925(b) statement. Appellant raised the following
vague claim: “The trial court erred as a matter of law for not granting
[Appellant’s] motion for acquittal due to the Commonwealth’s failure to
present sufficient evidence at trial.” Statement, 7/14/22, at 1.
Rule 1925(b) “is a crucial component of the appellate process because
it allows the trial court to identify and focus on those issues the parties plan
to raise on appeal.” Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa.
Super. 2020); see also Pa.R.A.P. 302(a) (issues cannot be raised for the first
time on appeal). A Rule 1925(b) statement that is too vague to allow the trial
court to identify the issues raised on appeal is the functional equivalent of no
statement at all. Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa.
Super. 2008). Furthermore,
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when challenging the sufficiency of the evidence on appeal, the
appellant’s [Rule 1925(b)] statement must specify the
element or elements upon which the evidence was
insufficient in order to preserve the issue for appeal.
Such specificity is of particular importance in cases where …
the appellant was convicted of multiple crimes, each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (emphasis
added; citations omitted); see also Commonwealth v. Widger, 237 A.3d
1151, 1156 (Pa. Super. 2020) (same). If an appellant fails to specify such
elements, the sufficiency claim is deemed waived. Gibbs, 981 A.2d at 281;
see also Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010)
(courts may not act as counsel for a party).
The sufficiency claim in Appellant’s 1925(b) statement does not specify
the element or elements not proven by the Commonwealth. Thus, Appellant
waived his sufficiency claim. See Gibbs, 981 A.2d at 281 (finding appellant’s
sufficiency challenge waived where Rule 1925(b) statement failed to specify
the convictions or elements of the crimes challenged).
Even if Appellant had not waived this claim, we would conclude the
evidence was sufficient for the fact-finder to properly “find that each and every
element of the crimes charged was established beyond a reasonable doubt,”
and “[t]his was a lawful arrest.” Trial Court Opinion, 8/11/22, at 7, 9. In
reaching this conclusion, we are persuaded by the Commonwealth’s
argument, which is supported by the record and the law. The Commonwealth
states:
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When Officer Engelman arrived and attempted to secure the scene
for EMS to render aid, he was shoved by [Appellant]. This act of
shoving Officer Engelman in order to alarm him into leaving
[Appellant’s hotel] room fulfills the [elements] of harassment.
Once the harassment was committed, Officer Engelman had a
reason to conduct a lawful arrest of [Appellant]. [Appellant’s]
actions both in the doorway and in the hallway of not allowing
[Officer] Engelman to arrest him, followed by the scuffle in the
hallway, fulfill the requirements of [resisting arrest]. [Officer]
Engelman, a trained officer who teaches tactical takedowns, was
unable to secure [Appellant] due to the moisture on [Appellant’s]
skin and his physical resistance. [Appellant] did not come under
control until [Officer] Engelman drew his taser. These facts fulfill
the resisting arrest statute. Lastly, [Appellant] continue[d]
struggling and wrestling with [Officer] Engelman once they were
in the hallway, a public place[; Appellant’s actions] recklessly
created a risk of public annoyance or alarm. How [Appellant] got
[into the hallway] is of no real importance as once he was in
public, he continued with his fighting and tumultuous behavior.
Therefore, viewing the testimony of Officer Engelman in the light
most favorable to the Commonwealth as verdict winner, each
element of each crime was met.
Commonwealth Brief at 7-8; see also, e.g., Commonwealth v. Schneider,
239 A.3d 161, 165, 174-75 (Pa. Super. 2020) (rejecting sufficiency challenge
to resisting arrest conviction where police entered appellant’s residence to
conduct a mental welfare check, appellant unsuccessfully attempted to
prevent their entry, struck one officer in the chest, and resisted arrest).
In his next issue, Appellant claims the trial court unlawfully prohibited
the jury from taking notes, contrary to the Pennsylvania Rules of Criminal
Procedure. See Appellant’s Brief at 5-9. Appellant argues the court applied
a rescinded Rule of Criminal Procedure when it instructed the jury about note-
taking, and thus he is entitled to a new trial. Id. at 9; see also id. at 8 (citing
Sherry v. Trexler-Haines Gas, Inc., 541 A.2d 341, 344 (Pa. Super. 1988)
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(“the trial court erred in applying the rescinded rule [of civil procedure] rather
than the current.”)).
Note-taking by jurors is governed by Pa.R.Crim.P. 644:
(A) Jurors shall be permitted to take notes during opening
statements, the presentation of evidence, and closing arguments
for their use during deliberations.
(1) The jurors shall not take notes during the judge’s
charge at the conclusion of the trial.
(2) The court shall provide materials to the jurors that
are suitable for note taking. These are the only materials
that may be used by the jurors for note taking.
(3) The court, the attorney for the Commonwealth, and
the defendant’s attorney, or the defendant if
unrepresented, shall not request or suggest that jurors
take notes, comment on the jurors’ note taking, or
attempt to read any notes.
(4) The notes of the jurors shall remain in the custody
of the court at all times.
(5) The jurors may have access to their notes and use
their notes only during the trial and deliberations. The
notes shall be collected or maintained by the court at
each break and recess, and at the end of each day of the
trial.
(6) The notes of the jurors shall be confidential and
limited to use for the jurors’ deliberations.
(7) Before announcing the verdict, the jury shall return
their notes to the court. The notes shall be destroyed by
court personnel without inspection upon the discharge of
the jury.
(8) The notes shall not be used as a basis for a request
for a new trial, and the judge shall deny any request that
the jurors’ notes be retained and sealed pending a
request for a new trial.
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(B) The judge shall instruct the jurors about taking notes during
the trial. At a minimum, the judge shall instruct the jurors that:
(1) the jurors are not required to take notes, and those
jurors who take notes are not required to take extensive
notes;
(2) note taking should not divert jurors from evaluating
witness credibility or from paying full attention to the
evidence, opening statements, and closing arguments;
(3) the notes merely are memory aids, not evidence or
the official record;
(4) the jurors who take few or no notes should not
permit their independent recollection of the evidence to
be influenced by the fact that other jurors have taken
notes;
(5) the jurors may not show their notes or disclose the
contents of the notes to other jurors until deliberations
begin, but may show the notes or disclose the contents
during deliberations;
(6) the jurors may not take their notes out of the
courtroom except to use their notes during deliberations;
and
(7) the jurors’ notes are confidential, will not be
reviewed by the court or anyone else, will be collected
before the verdict is announced, and will be destroyed
immediately upon discharge of the jury.
Id. (bold and italic emphasis added).
Rule 644 was amended on December 1, 2021, and became effective
April 1, 2022, three days prior to Appellant’s trial. In its opinion, the trial
court discussed the changes to Rule 644, and concluded Appellant failed to
preserve this claim. The court explained:
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One change that was made by the amendment was that,
previously, note-taking was required only for trials lasting more
than two days. Any trial less than two days was left to the judge’s
discretion on whether to allow jurors to take notes. The change
effective as of April 1, 2022[,] removed the two-day language
which would make juror note-taking required in all trials.
This entire trial lasted one day including the jury selection,
opening statements, jury charge, closing argument and verdict
decision. There was one witness who testified for the
Commonwealth. The defense did not present any testimony or
exhibits.
In order to preserve a claim that a jury instruction was
erroneously given, the appellant must have objected to the charge
at trial. See Commonwealth v. Spotz, 84 A.3d 294, 318 n.18
(Pa. 2014) [(a party must object to jury instruction before jury
deliberates or risk waiver)] (citations omitted); Pa.R.A.P. 302(b)
(“A general exception to the charge to the jury will not preserve
an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”); Pa.R.Crim.P. 647(B) (“No
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.”). [Appellant’s c]ounsel
did not object to the [trial c]ourt’s opening instructions
regarding note-taking by jurors. Thus, no further
consideration of this particular argument is necessary since it is
undisputed trial counsel did not preserve on the record any
objection to the challenged portion of the trial court’s instruction
regarding note-taking.
Trial Court Opinion, 8/11/22, at 4-5 (emphasis added; some citations
modified).2 We agree Appellant waived this claim. See Spotz, supra.
____________________________________________
2The record supports the Commonwealth’s claim that “it does not appear that
any of the participants were aware of the change [to Rule 644,] as no mention
was made by either the Commonwealth or the Defense.” Commonwealth Brief
at 8.
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Waiver notwithstanding, if the trial court erred in instructing the jury
and applying a rescinded rule, no relief is due because any error was harmless.
The Pennsylvania Supreme Court has opined:
The harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect
trial. We have described the proper analysis as follows:
Harmless error exists if the record demonstrates either:
(1) the error did not prejudice the defendant or the
prejudice was de minimis; or (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.
Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (citations
omitted); see also Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa.
2014) (“If a trial error does not deprive the defendant of the fundamentals of
a fair trial, his conviction will not be reversed.” (citation omitted)).
The record reveals that Appellant received a fair trial. If Appellant was
prejudiced by the jury’s inability to take notes, the prejudice was de minimis.
Hairston, supra; see also Commonwealth v. Wilson, 2022 PA Super 210,
* 9 (Pa. Super. 2022) (an “accused is entitled to a fair trial, not a perfect
trial.” (citing Hairston)).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2023
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