Com. v. Houser, A. ( 2016 )

J-S86003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALAN TROY HOUSER :
:
Appellant : No. 856 WDA 2015
Appeal from the Judgment of Sentence May 1, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003802-2013
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 15, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Westmoreland County following Appellant’s conviction
by a jury on the charges of aggravated assault and resisting arrest.1 On
appeal, Appellant contends (1) the evidence was insufficient to sustain his
conviction for aggravated assault, and (2) the trial court erred in permitting
the Commonwealth to introduce multiple instances of violence, which
constituted Appellant’s prior bad acts.2 We affirm.
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a)(1) and 5104, respectively.
2
We have renumbered Appellant’s issues.
*Former Justice specially assigned to the Superior Court.
J-S86003-16
The relevant facts and procedural history have been aptly set forth by
the trial court, in part, as follows:
[Appellant] was charged in two separate Informations with
causing injuries to his girlfriend, [G.R.]. At 1489 C 2014, he was
charged with aggravated assault for injuries occurring on March
27, 2013, and at 3802 C 2013[,] he was charged with stalking,
aggravated assault[,] and resisting arrest for an incident
occurring on September 6, 2013.
A jury trial occurred before [the trial] court from February
2-5, 2015, at the conclusion of which [Appellant] was found not
guilty of aggravated assault at 1489 C 2014. At 3802 C 2013[,]
he was found not guilty of stalking [but] guilty of aggravated
assault and resisting arrest.
***
Facts elicited at trial detailed multiple episodes of
confrontations between [Appellant] and [G.R.]. [For instance,]
[o]n January 1, 2013, Sergeant Michael Ondo and Patrolman Eric
Doutt of the Arnold Police Department responded to a call to
1633 Third Avenue, Arnold, Pennsylvania at 10:15 a.m. (TT 54-
55).3 [G.R.], who resided at that address, complained that
[Appellant], her boyfriend, hit her in the face with a bowl, after
which he punched her several times in the face. (TT 56). [G.R.]
refused medical treatment. (TT 59).
On January 31, 2013, Police Officer John Carilli responded
to a call at 1633 Third Avenue. [G.R.] complained that
[Appellant] had entered her home through the kitchen window
and [had] taken her purse. (TT 71-72).
On February 18, 2013, Officer Doutt was called to 2011
Victoria Street, Arnold, Pennsylvania. He met with [G.R.] whose
face was swollen and bleeding. (TT 64-65). [G.R.] explained
that she had been babysitting and [Appellant] located her,
punching her in the face several times and kicking her on the left
side of her head. (TT 66). She stated that when she came to
the door, [Appellant] grabbed her by the neck, pulled her
____________________________________________
3
The notes of testimony from the February 2-5, 2015, jury trial have been
consolidated and provided to this Court in one large volume. The trial court
utilized the citation “TT” to refer to these notes of testimony.
-2-
J-S86003-16
outside[,] and punched her in the face with a closed fist. (TT
150-51).
On March 23, 2013, Police Officers John Carilli and Michael
Krahe were called to 1633 Third Avenue because [Appellant] was
in the home and [G.R.] wanted him to leave. (TT 74-75).
Sergeant Krahe described her demeanor as upset and crying.
(TT 103).
Four days later, on March 27, 2013, [Appellant] entered
[G.R.’s] Third Street home through a window. He grabbed an
aluminum bat and struck her six or seven times. (TT 153). Her
neighbor, [D.S.], called police. [G.R.] sustained significant
bruising on her torso, arms, and legs. (TT 154-55). Officer
Carilli recalled that [G.R.] informed him that she had pulled a
rocking chair over her body in order to protect herself. (TT 78).
Sergeant Krahe observed bleeding from her left knee and
injuries to her forehead and right arm. (TT 105). This incident
formed the basis for the aggravated assault charges levied at
1489 C 2014.
The final episode, occurring on September 6, 2013, took
place at 624 Bell Street, New Kensington, Pennsylvania at the
home of [R.C.]. On that date, [Appellant] and [G.R.] were at
her home, along with [E.B.] and [R.C.’s] children. (TT 128).
The couple began to fight and [G.R.] fled into the backyard. (TT
131). Police were called at 5:45 a.m. (TT 189). Officer Dion
Wagner observed a male standing on top of [G.R.] with his knee
on her chest. He observed 2-3 punches and yelled for the actor
to stop. (TT 190-91). In response, [Appellant] fled and
eventually was found hiding next to a tree. (TT 192-93).
Although ordered to get on the ground, [Appellant] refused and
had to be tased twice in order to be subdued. (TT 193-94).
Officer Christian Baker testified that he tased [Appellant] and yet
he and five other officers were unable to handcuff him. After
being tased a second time, [Appellant] was subdued. (TT 207-
08).
[G.R.] was hospitalized for three weeks with five broken
bones in her face. She lost some of her hearing and currently
suffers from post traumatic stress disorder (PTSD). She since
has had to be hospitalized for extreme anxiety. (TT 159). Dr.
Duane Spiker, her psychiatrist, testified to her PTSD and
depression, which were caused by the September 6, 2013,
incident, and have resulted in her continuing treatment. (TT
216, 219-20).
-3-
J-S86003-16
Trial Court Opinion, filed 11/3/15, at 1-3 (footnote omitted) (footnote
added).
Following Appellant’s conviction, on May 1, 2015, the trial court
sentenced him to ten years to twenty years in prison for aggravated assault,
and a consecutive one year to two years in prison for resisting arrest. This
timely appeal followed, and all Pa.R.A.P. 1925 requirements have been met.
Appellant’s first claim is the evidence was insufficient to sustain his
conviction for aggravated assault.4 Specifically, while Appellant does not
dispute that he “punch[ed] [G.R.] in the face 2-3 times” on September 6,
2013, he alleges such evidence does not demonstrate an attempt to cause
serious bodily injury to G.R. See Appellant’s Brief at 9. Additionally, he
contends that the evidence does not reveal he actually caused G.R. to suffer
serious bodily injury.
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
____________________________________________
4
Appellant has presented no sufficiency of the evidence claim as it relates to
his conviction for resisting arrest.
-4-
J-S86003-16
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 evidence actually received must be considered. 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.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)
(quotation marks and quotations omitted).
The Crimes Code relevantly defines aggravated assault as follows:
2702. Aggravated assault
(a) Offense defined.--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.
18 Pa.C.S.A. § 2702(a)(1).
Serious bodily injury is “bodily injury which creates a substantial risk
of death or which causes serious, permanent disfigurement or protracted
loss or impairment of the function of any bodily member or organ.” 18
Pa.C.S.A. § 2602.
In cases where the victim does not suffer actual serious bodily injury:
the charge of aggravated assault can be supported only if the
evidence supports a finding of an attempt to cause such injury.
A person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial
step toward the commission of that crime. An attempt under
-5-
J-S86003-16
Subsection 2702(a)(1) requires some act, albeit not one causing
serious bodily injury, accompanied by an intent to inflict serious
bodily injury.
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012)
(quotations and quotation marks omitted). See Commonwealth v. Lewis,
911 A.2d 558, 564 (Pa.Super. 2006) (“In determining whether the
Commonwealth proved the [a]ppellant had the requisite specific intent, the
fact-finder is free to conclude the accused intended the natural and probable
consequences of his actions to result therefrom.”) (quotation marks and
quotation omitted)).
The Crimes Code defines the mens rea of “intent” as follows:
A person acts intentionally with respect to a material element of
an offense when:
(i) if the element involves the nature of his conduct or a result
thereof, it is his conscious object to engage in conduct of that
nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is
aware of the existence of such circumstances or he believes or
hopes that they exist.
18 Pa.C.S.A. § 302(b)(1).
As the trial court aptly noted in rejecting Appellant’s sufficiency of the
evidence claim:
In [Lewis, supra], the victim, weighing 180 pounds, was
in a relationship with the defendant who weighed 230 pounds.
The couple had numerous fights but none were physical until the
instant offense. During this altercation, the defendant punched
his girlfriend with a closed fist several times in the face causing
her hospitalization for five days.
***
-6-
J-S86003-16
[In upholding the defendant’s conviction for aggravated
assault], [t]he Lewis court made particular note of the disparity
in [the] size of the defendant and the victim. It noted that the
defendant delivered at least three closed fist punches to the
victim’s body, including her stomach and face. [The defendant
in Lewis] only desisted from his conduct after he became aware
of the approach of the police. This evidence, the court
concluded, was sufficient to establish aggravated assault.
In the case at bar, [G.R.] weighed 120 pounds while
[Appellant’s] weight was 300 pounds. (TT 159). After police
were called on September 6, 2013, at 5:45 a.m., Police Officer
Dion Wagner observed [Appellant] with his knee on [G.R.’s]
chest. He saw him punch her 2-3 times and described these
punches as hard. The only reason this attack ended was
because the officer called out to [Appellant]. [G.R.] recalled that
[Appellant] had thrown her to the ground and stated that he was
going to kill her. He began punching her in the face causing her
to sustain five broken bones and [ ] partial hearing loss.
Trial Court Opinion, filed 11/3/15, at 6-8.
Based on the aforementioned, even assuming, arguendo, G.R. did not
suffer actual serious bodily injury, the record sufficiently demonstrates that
Appellant attempted to cause serious bodily injury to G.R. on September 6,
2013. See Lewis, supra. Accordingly, we find no merit to Appellant’s
sufficiency of the evidence claim.
Appellant’s final claim is the trial court erred in permitting the
Commonwealth to introduce multiple instances of violence, which constituted
Appellant’s prior bad acts. Specifically, Appellant contends the evidence of
his prior crimes, wrongs, or bad acts was used in order to show his
propensity for such behavior and, thus, was prohibited under Pa.R.E.
-7-
J-S86003-16
404(b)(1). He further argues that the probative value of the evidence was
outweighed by its prejudicial impact.5
It is well settled that “[t]he admission of evidence is solely within the
discretion of the trial court, and a trial court's evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion.”
Commonwealth v. Woodard, ___ Pa. ___, 129 A.3d 480, 494 (2015)
(quotation marks and quotation omitted). “An abuse of discretion will not be
found based on a mere error of judgment, but rather occurs where the court
has reached a conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.” Id. (citation omitted). “The court may exclude
relevant evidence if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Pa.R.E. 403.
“Evidence of a defendant's distinct crimes are not generally admissible
against a defendant solely to show his bad character or his propensity for
____________________________________________
5
Appellant has not set forth in his brief the place in the record where he
objected to the introduction of the evidence. Our review of the record
reveals Appellant filed a pro se pre-trial motion seeking to exclude the
evidence on the same grounds asserted on appeal, but the trial court
dismissed the pro se motion since Appellant was represented by counsel.
There is no indication the trial court forwarded the pro se motion to counsel.
In any event, assuming, arguendo, Appellant preserved his claim, for the
reasons discussed infra, we find no relief is due.
-8-
J-S86003-16
committing criminal acts, as proof of the commission of one offense is not
generally proof of the commission of another.” Commonwealth v. Billa,
521 Pa. 168, 555 A.2d 835, 840 (1989) (emphasis in original) (citation
omitted). See Pa.R.E. 404. However, this general proscription against
admission of a defendant's distinct bad acts is subject to numerous
exceptions if the evidence is relevant for some legitimate evidentiary reason
and not merely to prejudice the defendant by showing him to be a person of
bad character. Billa, supra. Exceptions that have been recognized as
legitimate bases for admitting evidence of a defendant's distinct crimes
include, but are not limited to:
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a
common scheme, plan or design such that proof of one crime
naturally tends to prove the others; (5) to establish the identity
of the accused where there is such a logical connection between
the crimes that proof of one will naturally tend to show that the
accused is the person who committed the other; (6) to impeach
the credibility of a defendant who testifies in his trial; (7)
situations where defendant's prior criminal history had been
used by him to threaten or intimidate the victim; (8) situations
where the distinct crimes were part of a chain or sequence of
events which formed the history of the case and were part of its
natural development (sometimes called “res gestae” exception).
Billa, 521 Pa. at 177, 555 A.2d at 840 (citations omitted).
In the case sub judice, in explaining the reasons it permitted the
Commonwealth to offer evidence regarding Appellant’s previous acts of
abuse against G.R., the trial court provided, in part, the following:
In this case, the prior violence inflicted on [G.R.] was
included to inform the jury of the history of the relationship and
its pattern of abuse. These acts established [Appellant’s] motive
-9-
J-S86003-16
and intent in continually searching out his girlfriend in order to
inflict both emotional distress and serious bodily injury. This
history provided the jury with facts showing that [Appellant]
acted intentionally, knowingly[,] and with malice when he
[assaulted] [G.R. on September 6, 2013].
Trial Court Opinion, filed 11/3/15, at 5-6.6
We find no abuse of discretion in this regard. See Commonwealth v.
Jackson, 900 A.2d 936 (Pa.Super. 2006) (holding the evidence of the
appellant’s prior domestic abuse of the victim was admissible to show the
chain or sequence of events which formed the history of the case, as part of
the natural development of the case, and to demonstrate the appellant’s
motive, malice, intent, and ill-will toward the victim).
Furthermore, we find the trial court did not abuse its discretion as it
relates to Appellant’s contention the evidence should have been excluded on
the basis its probative value was outweighed by its prejudicial effect. “It is
axiomatic in a criminal trial that all evidence offered by the prosecution will
be prejudicial to the defendant. Were mere prejudice the standard, virtually
all evidence could reasonably be excluded.” Commonwealth v. Peer, 684
A.2d 1077, 1083 (Pa.Super. 1996). For this reason, the test for admissibility
is whether the probative value of the challenged evidence is outweighed by
____________________________________________
6
We note the trial court indicated Appellant’s prior bad acts were also
relevant as it related to his stalking charge, for which he was acquitted.
Pursuant to the Crimes Code, to prove stalking, the Commonwealth was
required to show, inter alia, that Appellant “engage[d] in a course of conduct
or repeatedly commit[ted] acts toward another person[.]” 18 Pa.C.S.A. §
2709.1.
- 10 -
J-S86003-16
unfair prejudice. Pa.R.E. 403. “‘Unfair prejudice’ means a tendency to
suggest decision on an improper basis or to divert the jury's attention away
from its duty of weighing the evidence impartially.” Id.
In the case sub judice, the evidence of Appellant’s prior abuse of G.R.
provided the jury with the full history of the parties’ relationship, as well as
Appellant’s motive. Appellant has not demonstrated the evidence improperly
diverted the jury’s attention or provided an improper basis for convicting
Appellant of the September 6, 2013, crimes.
Finding no merit to Appellant’s claims, we affirm his judgment of
sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2016
- 11 -