Com. v. Hollins, E. ( 2019 )

J-A08016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
EARL LOUIS HOLLINS
Appellant No. 682 WDA 2018
Appeal from the Judgment of Sentence Entered November 29, 2017
In the Court of Common Pleas of Beaver County
Criminal Division at No.: CP-04-CR-0002638-2015
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED July 1, 2019
Appellant Earl Louis Hollins appeals from the November 29, 2017
judgment of sentence entered in the Court of Common Pleas of Beaver County
(“trial court”), following his jury convictions for aggravated assault (serious
bodily injury), assault on law enforcement, criminal attempt – murder,
aggravated assault (bodily injury), aggravated assault (deadly weapon),
firearms carried without license, simple assault, and recklessly endangering
another person (“REAP”).1 Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
Briefly, in connection with the October 28, 2015 shooting of Alan Loskoch,
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1 18 Pa.C.S.A. §§ 2702(a)(2), 2702.1(a), 901(a), 2502(a), 2702(a)(3),
2702(a)(4), 6106(a)(1), 2701(a)(1), and 2705, respectively.
J-A08016-19
Harmony Township Police Officer (“Officer Loskoch”),2 Appellant was charged
with the foregoing crimes. Following a preliminary hearing, all charges were
held for court. On June 15, 2017, Appellant filed a “Petition for Retention of
A Criminal Investigator,” arguing that he needed to investigate and interview
prosecution and defense witnesses, potential eye witnesses and physical
evidence. On June 16, 2017, the trial court denied Appellant’s petition for the
appointment of a private investigator. On July 20, 2017, Appellant filed an
“Omnibus Pre-trial Application,” containing, among other things, a request for
discovery. Specifically, Appellant requested from the Commonwealth any
police reports that Officer Loskoch created with respect to his prior encounters
with Appellant and a list of Commonwealth’s trial witnesses. The trial court
conducted a hearing on the omnibus motion on August 9, 2017, at which
Appellant once again repeated his discovery requests for police reports and
witness lists. See N.T. Suppression, 8/9/17 at 54-55 (“I know at this point
the Commonwealth has not prepared a list of witnesses, but I would ask that
at some point in time the Commonwealth be required to provide me with a list
of those witnesses[.]”). On August 30, 2017, the trial court issued an order
directing the Commonwealth to comply Pa.R.Crim.P. 573 “by producing the
appropriate discovery.”3
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2 Appellant fired a round at Officer Loskoch, striking him in the chest area
approximately two inches above his left nipple. But for the Kevlar vest, Officer
Loskoch would have sustained serious bodily injury.
3Through that order, the trial court also denied Appellant’s suppression
motion and petition for writ of habeas corpus.
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On September 5, 2017, the day of jury selection, Appellant filed a
“Supplemental Omnibus Pre-trial Application,” seeking, inter alia, to suppress
alleged custodial statements he made to Casey E. Pelton (“Pelton”) while
incarcerated in Beaver County Jail. Pelton claimed that Appellant had
confessed to him. Appellant argued that his alleged statements to Pelton ran
afoul, among other things, his constitutional rights guaranteed under the
Sixth, Fifth and Fourteenth Amendments to the United States Constitution.
The next day, on September 6, 2017, Appellant filed a “Supplemental
Omnibus Pre-trial Application,” requesting, inter alia, a trial continuance. One
of the reasons Appellant provided for seeking a continuance was the
Commonwealth’s late disclosure of the confession evidence Pelton would
present at trial. The trial court denied the supplemental and second
supplemental motions.
Following trial, which concluded on September 15, 2017, the jury found
Appellant guilty of all charged crimes, including aggravated assault on law
enforcement and firearms carried without license. On November 29, 2017,
the trial court sentenced Appellant to twenty to forty years’ imprisonment for
aggravated assault on law enforcement and a consecutive term of three to six
years in prison for carrying firearms without license.4
On December 11, 2017, Appellant filed an “Omnibus Post-Sentence
Motion,” seeking, inter alia, a new trial or a modification of his sentence. In
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4 The trial court imposed no further penalty on the remaining counts.
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support for his motion for a new trial, Appellant pointed out that he was denied
appointment of a private investigator and that the Commonwealth committed
various discovery violations. Specifically, Appellant argued that the
Commonwealth revealed to him on the eve of trial that Officer Loskoch created
no police reports detailing his prior encounters with Appellant. See Omnibus
Post-Sentence Motion, 12/11/17, at 7. Additionally, Appellant argued that the
Commonwealth disclosed to him merely two days prior to the start of trial that
it intended to call to the stand Pelton, a jailhouse snitch who claimed Appellant
confessed the crimes at issue to him.5 Id. at 9. Appellant asserted that he
received relevant discovery material related to Pelton on the day of trial. Id.
Because of the Commonwealth’s late disclosure of discovery materials,
Appellant argued that he was prejudiced as he did not have a meaningful
opportunity to prepare for trial. Appellant also challenged several evidentiary
rulings made by the trial court. On April 10, 2018, the trial court denied
Appellant’s post-sentence motion. Appellant timely appealed to this Court.6
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5 As detailed earlier, our review of the record does not reveal that Appellant
sought to exclude Pelton’s testimony on the basis of the Commonwealth’s
discovery violations. At worst, Appellant sought to suppress his own
statements to Pelton based on alleged constitutional violations. At best, he
requested a trial continuance.
6The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal. The trial court, however, issued a Pa.R.A.P.
1925(a) opinion on July 10, 2018, wherein it adopted its April 10, 2018
memorandum denying Appellant’s post-sentence motion.
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On appeal, Appellant presents seven issues for our review, reproduced
verbatim here:
I. Whether the trial court erred in denying an indigent
defendant the constitutional right to effective legal
representation by denying legal counsel the authority to
retain private investigator resulting in a deprivation of pre-
trial and trial investigative services leading to potential
exculpatory evidence[.7]
II. Whether the trial court erred in permitting [Officer] Loskoch
to testify to all prior official contact he had with [Appellant]
despite the Commonwealth’s tardy in-trial compliance with
a discovery order by responding that no police reports of
any such contact incidents existed leaving [Appellant] no
time to investigate and marshal evidence to contradict and
impeach such testimony[.8]
III. Whether the trial court erred in permitting the
Commonwealth to present the testimony of Pelton to an
alleged jailhouse confession despite the Commonwealth’s
tardy in-trial compliance with a discovery order by providing
said notice of and related discovery material leaving
[Appellant] no time to investigate and marshal evidence and
locate and secure the attendance of witnesses who could
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7 “Appointment of expert witnesses and the provision of public funds to hire
them to assist in the defense against criminal charges are decisions within the
trial court’s sound discretion and will not be reversed absent an abuse
thereof.” Commonwealth v. Wholaver, 989 A.2d 883, 894 (Pa.2010)
(citing Commonwealth v. Albrecht, 720 A.2d 693, 707 (Pa. 1998)).
8 It is settled:
[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. 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.
Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal
citations omitted).
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effectively contradict and impeach said confession
testimony[.9]
IV. Whether the trial court erred in refusing to permit
[Appellant] to elicit testimony from inmate Ikard regarding
personal knowledge of the manner in which Pelton would
benefit from his testimony against [Appellant.]
V. Whether the trial court erred in refusing to permit
[Appellant] to elicit testimony from a cosmetologist
experienced in African American hairstyles regarding the
different hairstyles for males[.]
VI. Whether the trial court erred in refusing to instruct the jury
(A) that eyewitness identifications, even if made with a high
level of confidence, can be unreliable, (B) to receive
[Officer] Loskoch’s identification testimony with caution as
one of doubtful accuracy, (C) to consider the current
probation and parole status of a witness and the potential
incarceration for violations thereof in deciding the
believability of the testimony of a witness, (D) to consider
the probation or parole status of a witness at the time he
first talked to police and the potential incarceration of the
same in deciding whether or not to believe all or part of the
testimony of the witness, (E) of the limits using inferences
to prove crimes, (F) of no adverse inference from either (1)
[Appellant’s] detention since his arrest or (2) Sheriff
Deputies’ seated or standing near counsel table for
[Appellant.10]
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9 This particular issue is waived because, as indicated earlier, Appellant failed
to raise it before the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”);
Pa.R.E. 103(a) (“[a] party may claim error in a ruling to admit or exclude
evidence only: (1) if the ruling admits evidence, a party, on the record: (A)
makes a timely objection, motion to strike, or motion in limine; and (B) states
the specific ground, unless it was apparent from the context[.]”).
10 “Our standard of review when considering the denial of jury instructions is
one of deference—an appellate court will reverse a court’s decision only when
it abused its discretion or committed an error of law.” Commonwealth v.
Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018) (cleaned up). “Our key
inquiry is whether the instruction on a particular issue adequately, accurately
and clearly presents the law to the jury, and is sufficient to guide the jury in
its deliberations.” Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa.
Super. 2001) (brackets omitted).
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VII. Whether the trial court abused its discretionary authority
under the Sentence Code and/or the Sentence Guidelines in
imposing an additional consecutive sentence on the firearms
violation as unnecessary to comply with the criteria of the
protection of the public and the gravity of the offense as it
relates to the impact on the life of the victim and on the
community and runs counter to the rehabilitative needs of
[Appellant.11, 12]
Appellant’s Brief at 5-6 (unnecessary capitalizations omitted).
After careful review of the record, and the relevant case law, we
conclude that the trial court accurately and thoroughly addressed the merits
of Appellant’s issues. See Trial Court Opinion, 4/10/18, at 9-39. Accordingly,
we affirm Appellant’s November 29, 2017 judgment of sentence. We further
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11When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
12 We explained in Commonwealth v. Radecki, 180 A.3d 441 (Pa. Super.
2018) that “excessiveness claims premised on imposition of consecutive
sentences do not raise a substantial question for our review.” Radecki, 180
A.3d at 468 (citations omitted). Accordingly, Appellant’s argument that the
trial court abused its discretion in imposing a consecutive sentence for the
firearms conviction sub judice, and thus rending his aggregate sentence
excessive, does not raise a substantial question. Even if Appellant had
presented a substantial question, we still would not conclude that he is entitled
to relief based on the reasons outlined in the trial court’s April 10, 2018
opinion. See Trial Court Opinion, 4/10/18, at 36-39.
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direct that a copy of the trial court’s April 10, 2018 opinion be attached to any
future filings in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/2019
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Circulated 05/30/2019 02:16 PM
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IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v. Case No: 2638 - 2015
''•
r' EARLL. HOLLINS
Defendant,
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MEMORANDUM OPINION AND ORDER
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KNAFELC,J. APRIL /(} , 2018
On September 15, 2017, following a jury trial held on September 5 through September
15, 20 I _7 before the Honorable Harry Knafelc, Defendant was convicted of one Count of
Aggravated Assault (F 1 ), 1 one Count of Assault of Law Enforcement Officer (FI), 2 one Count of
Criminal Attempt to Criminal Homicide (Fl),3 two Counts of Aggravated Assault (F2),4 one
Count of Firearms not to be Carried without a License (F3),5 one Count of Simple Assault (M2),6
and_ one Count of Recklessly Endangering Another Person (M2).7
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On November· 2�, 2017, Defendant was sentenced to an aggregate term of imprisonment
of 23 to 46 years.8
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On December 11,, 2017, Defendant through trial counsel, Dennis Di Martini, filed a timely
1 motion for post-sentence relief pursuant to Rule 720 of the Pennsylvania Rules of Criminal
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Count I of the Information charged under. 18 Pa.C.S. §2702(a)(2) .
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Count 2 of the Information charged under 18 Pa.CS. §2702. l(a).
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Count 3 of the Information charged under 18 Pa.CS. §90I(a).
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Count 4 of the Information �hargcd under 18 Pa.CS. §2702(a)(2); and
Count 5 of the Information charged under 18 Pa.CS. §2702(a)( 4).
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Count 6 of the Information �hargcd under 18 Pa.CS. §6l06(a)(l).
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Count 7 of the Information charged under 18 Pa.CS. §2701(a)(l).
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Count 8 of the Information �hargcd under 18 Pa.CS. §2705
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Defendant was sentenced to' 20 to 40 years for Count 2, 3 to 6 years for Count 6, and no further penalty for the
remaining Counts.
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Procedure. Defendant's motion complains of multiple Discovery violations and multiple errors
on rulings of evidence among other errors.
Defendant requests the following relief: A. a motion in arrest of judgment; 8. a motion
for a new trial; and C. a motion for modification of sentence.
The Opinion of this Court and an appropriate Order shall follow.
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DISPOSITION OF DEFENDANT'S REQUESTS FOR RELIEF
A. Motion in Arrest of Judgment
Defendant requests that the judgment entered against him and in favor of the
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Commonwealth be set aside inasmuch as the evidence was insufficient as a matter of law to have
found Defendant guilty beyond a reasonable doubt. In reviewing a request for a motion in arrest
of judgment, the Court considers whether the evidence offered by the Commonwealth was
legally sufficient to support the verdict Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364
,
I.
(1974). The evidence in this case supports the verdict, and the motion for arrest in judgment is
denied.
B. Motion for a New Trial
Defendant argues that he is entitled to a new trial, stating that the evidence was
insufficient to support a guilty verdict as to each of the charges and that the verdict was contrary
to the weight of the evidence presented at trial. This Court disagrees. A trial court should award
new trial on grounds that verdict is against the weight of evidence only when the verdict is so
contrary to evidence as to shock one's sense of justice and make award of new trial imperative,
so that right may be given another opportunity to prevail. Commonwealth v. Whitney, 511 Pa.
232, 239, 512 A.2d 1152, 1155� 1156 ( 1986). Where, as here, a finding of guilt is supported by
the record, a motion for a new trial must be denied. Commonwealth v. Larew, 289 Pa. Super. 34,
37, 432 A.2d 1037, 1038 (1981).
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C. Motion for Modification of Sentence
Imposition of proper sentence is matter vested in sound discretion of trial court. Com. v,
High, 450 A.2d 158, 304 Pa.Super. 174, 1982; Com. v. Galloway, 448 A.2d 568, Super.1982;
Com. v. Corson, 444 A.2d I 70, 298 Pa.Super. 51, 1982; Com. v. Ellison, 439 A.2d 136, 293
Pa.Super. 320 ( 1982). "[T]he extent of sentence is a matter within the discretion of the trial judge
and will not be disturbed if within the statutory limits." Com. v. Zelnick, 202 Pa. Super. 129, 131,
195 A.2d 171, 173 ( 1963). However, where the legislature has deemed to enact a mandatory
minimum term of imprisonment, that statute must be followed and the standard guidelines in P .S.
§ 303.16(a) "shall not supersede the mandatory sentences provided." 42 Pa.C.S. § 9719. l(b).
Where, as here, a mandatory minimum term of imprisonment was enacted by the legislature, the
Court lacks the authority to sentence the Defendant to a term of imprisonment less than the
statutory minimum, and the request must be denied.
The rationale supporting the Court's decision to deny the requested relief is set out
below.
ISSUES
Defendant raises the following arguments in support of his motions:
A. Motion in Arrest of Judgment
I. Insufficient evidence as to Count 3 and Count 6;
2. The verdict is against the weight of the evidence for all Counts.
B. Motion for New Trial:
I. Denial of Defendant's right to effective assistance of legal counsel;
2. Discovery violations;
3. Court erred in denying Defendant's pre-trial motions to suppress defendant's
statements made to police outside Defendant's residence on October 29, 2015;
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\\- I 4. Trial Court erred on evidentiary rulings at trial;
I! 5. Trial Court erred by refusing to instruct the jury as to numerous instructions
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requested by Defendant.
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I C. request for reconsideration as the sentence for Count 3 is overly harsh and is outside the
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standard range.
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The Court will address each argument in seriatim.
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I RULES, ANALYSIS, AND CONCLUSIONS OF LAW
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A. r-vfotion in Arrest of Judgment
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t 1. Insufficient evidence as to Count 3 and Count 6
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.,1., Defendant challenges the sufficiency of the evidence as to Count 3 (Criminal Attempt to
Criminal Homicide} and Count 6 (Firearm not to be Carried without a License} and requests that
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11! I the judgment should be arrested arid a judgement of acquittal entered.
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l When reviewing a sufficiency of the evidence claim, an appellate court must view
aH the evidence and reasonable inferences therefrom in a light most favorable to
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the Commonwealth as the verdict winner and must determine whether the
evidence was such as to enable a fact finder to find that all of the elements of the
offense were established beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and suhstitute our judgment for the fact-finder
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 iaw no probabiiity 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. Moreover, in applying the above test, the entire record
must be evaluated and all 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.
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Commonwealth v, Reed, 851 A.2d 958, 963 (Pa.Super. 2004) (internal citations and
quotations omitted).
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I a. Criminal Attempt to Criminal Homicide
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Defendant argues that even assuming Defendant was the individual who discharged a
I firearm at Officer Loskoch, the only evidence introduced at trial was that one bullet struck the
tti Kevlar vest of the officer which did not result in any .. serious bodily injury"; without evidence of
Ii the buiiet striking a vital part of the victim's body causing "serious bodily injury" the evidence is
· insufficient to infer a specific intent to kill. This Court disagrees.
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I' "For the Commonwealth to prevail in a conviction of criminal attempt to
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I. commit homicide, it must prove beyond a reasonable doubt that the accused with a specific intent
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to kill took a substantial step towards that goal. Commonwealth v. Hobson, 413 Pa.Super. 29,
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\� 604 A.2d 7 I 7, 719-720 (1992). We have held that a specific intent to kill can be inferred from
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I the circumstances surrounding an unlawful killing. Commonwealth v. Geathers, 847 A.2d 730,
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! 73 7 (Pa. Super. 2004). Moreover, specific intent to kill may be inferred from the fact that the
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! II accused used a deadly weapon to inflict injury to a vital part of the victim's body." Com. v.
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Robertson, 2005 Pa. Super. 152, ,r 14, 874 A.2d I 200, 1207 (2005).
i.
Here, the Jury found that Defendant was the individual who discharged a firearm-a
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deadly weapon-at Officer Loskoch. The evidence presented at trial showed that a round fired
by Defendant struck the officer in the chest-a vital part of the body-and but for the protection
of his Kevlar vest, the round would have caused serious bodily injury to the Officer.
Defendant's argument that a conviction cannot stand without evidence that serious bodily
injury was actuaJly inflicted is of no moment and is contrary to established Pennsylvania case
I' attempt with intent to kill is completed by the discharging of a firearm at a person with intent to
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kiii, despite the fortuitous circumstances that no injury is suffered." Id.) (citing Commonwealth
ex rel. Robinson v. Baldi, 106 A.2d 689 (1954)).9
Therefore, Defendant's request fnr arrest of judgment l'lnti judgment nf acquittal as to
l Count 3 (Criminal Attempt to Criminal Homicide) is denied.
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b. Firearm Not to Be Carried without a License
The offense of Firearm not to be Carried without a License is defined by 18 Pa.C.S.A.
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§6106(a)(I) as follows:
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Except as pmvided in paragraph (2), any person who carries a firearm in any vehicle or
Ii I any person who carries a firearm concealed on or about his person, except in his place
I of abode or fixed placeof business, without a valid and lawfully issued license under
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this chapter commits a felony of the third degree.
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1: Pursuant to Pennsylvania's Standard Jury Instruction 15.6106, in order for the Appellant to
have been found guilty of §6016(a)(1 }, L'1e Commonwealth was required to prove the following
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three elements beyond a reasonable doubt:
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carried a firearm concealed on or about his person.
� A "firearm" is any pistol or revolver witli a ba.rre! less than 15 inches or any pistol,
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revolver, rifle, or shotgun with an overall length of less than 26 inches.
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To be a "firearm," the specific object charged must either be operabie, that is, capabie
of firing a projectile, or, if inoperable, that the defendant had under his control the
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means to convert the object into one capable of firing a shot. You may, if you choose,
infer that the object was an operable firearm from the way it appears and feels;
Ii • Second, that the defendant was not in his place of abode that is, his home or his fixed
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9 T'h;� hnl..-lino ic r- ..,.,.nci-c-tPnt u,-ith PPnn-c-uh,'11ni�"'"c Ir.no ct�n..-lino i11r-icnn1A,:::i,n.r-P rPiPrtino th,:::i. ,l,:::i,f"pnc,:::i, r.f" f11rh1�I
impo�sibilitybln Crimes Co�.e·§ 901(b),-it is provid;d that"[�: shaii not be a d�fensebto a
0 0 0 0
charge of attempt that
\ because of a misapprehension of the circumstances it would have been impossible for the accused to commit the
f crime attempted."§ I :63.lmpossibility defense, 14 West's Pa. Prac., Crim. Offenses & Defenses§ l :63 (6th ed.).
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JI' piace of business; and
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l, carrying the firearm,
Defendant avers the only evidence produced at trial as to the element of concealment was
that Officer Loskoch never saw any weapon prior to seeing a flash immediately prior to the
bullet striking his vest. Defendant argues that without evidence of seeing the gun concealed as it
is being displayed, the evidence is insufficient to infer concealment. The Court finds this
t •, i:l.f!l,Ufficnt unpcr.sui:1:Sivc.
"[t]he Commonwealth may sustain its burden by means of wholly circumstantial evidence"
and "the fact that the evidence establishing a defendant's participation in a crime is circumstantial
does not preclude a conviction where the evidence, coupled with the reasonable inferences drawn
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therefrom, overcomes the presumption of innocence." Com. v. Lopez, 2012 Pa. Super. 161, 57
A.3d 74, 80 (2012) (quoting Commonwealth v. Stays, 40 A.3d 160, 167 (Pa.Super.2012)
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( citations omitted)).
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Evidence at trial did establish that Officer Loskoch never saw a gun as he drove up towards
the Defendant. But he testified that the defendant was wearing a hoodie and had his hands out of
sight.10 When asked to see his hands, the individual puJled from his waist-line and fired three
! . shots.11 All of this evidence would be consistent with a person who is carrying a firearm
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concealed. The very nature of concealment is that the gun would not be plainly visible prior to it
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being drawn. See, e.g., Com. v, Pressley, 433 Pa. 163, 166, 249 A.2d 345, 346 (1969)(finding
evidence of concealment sufficient where officer testified "his partner saw [defendant] reach
ro T.T., Vol. V, at 20.
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Id. at 23-24.
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J under his sweater, a bus passed, and then the officers saw a gun on the ground at [defendant's]
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feet." Id.).
{, Furthermore, if the jury helieveti th:it thf> OP.fPncl:int w;i,;: thf' ,;:hnnter :incl w:i,;: present nn thP
street in question the night of the incident attempting to break into cars, the jury could reasonably
l conciude that such a person wouid not openiy carry a firearm in his hand the entire time nor that
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he had a holster for open carry. It is far more likely for a person engaged in covert criminal
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behavior to conceal the instruments of crime he has with him so as not to draw unwanted
attention. ln the instant case, with this circumstantial evidence before the jury, it would be
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reasonable for the jury to infer the defendant was carrying the firearm concealed. Com. v.
!·' I Horshaw, 23 7 Pa. Super. 76, 80, 346 A.2d 340, 342--43 ( 1975) (finding evidence sufficient
where no direct evidence of concealment was presented to the jury, holding "The evidence was
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!' I sufficient to allow the jury to infer that the appellant concealed the gun." Id.).
2. The Verdict is Against the Weight of the Evidence for All Counts
A trial court should find that the verdict is against the weight of evidence only when the
verdict is so contrary to evidence as to shock one's sense of justice and make award of new trial
imperative. Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986).
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A motion for a new trial alleging that the verdict was against the weight of the evidence is
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addressed to the discretion of the trial court. Com. v. Cousar, 928 A.2d 1025, 593 Pa. 204
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\ (2007), certiorari denied 128 S. Ct. 2429, 553 U.S. 1035, 171 L. Ed. 2d 235, denial ofpost-
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conviction relief affirmed in part, vacated in part 154 A.3d 287.
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! where the judgment is manifestly unreasonable or where the law is not applied or where the
record shows that the action is a result of partiality, prejudice, bias or ill will. Com. v, Dupre, 866
8
A.2d i 089 (Pa. Super. 2005), appeai denied 879 A.2d 781, 583 Pa. 694 (stating a trial court's
exercise of discretion in finding that a verdict is or is not against the weight of the evidence is
one of the lea,; .t a,; .s.ailahle reasons for granting or denying a nf'w trial). Thf' trial judge rlnP<:: nnt
sit as the 13th juror, but 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. Com. v. Hunter, 768 A.2d 1136 (Pa. Super. 200 I),
appeal denied 796 A.2d 979, 568 Pa. 695.
With the aforementioned standards in mind, the Court notes that the predominant focus of
this trial concerned the identification of the shooter; Mr. Hollins' only defense to the charges was
that he was not the man who shot Officer Loskoch.
The Court has determined that sufficient evidence was established with respect to all charges
of which the Defendant was convicted. The jury determined the credibility of the
Commonwealth witnesses after the Court specifically charged on the factors which the jury
should take into account in deciding on whether to believe the testimony of the various
witnesses. In reviewing all of the evidence, the Court cannot fault the jury's decision as shocking
one's sense of justice, and therefore cannot find that the verdicts were against the weight of the
evidence.
B. Motion for New Trial
1. Denial of Defendant's right to effective assistance of legal counsel
On June 15, 2017, trial counsel for the Defendant filed a Motion for Appointment of
investigator was necessary to investigate or interview prosecution witnesses, potential
9
'
j
tI'
I eyewitnesses, potentiai defense witnesses, and physical evidence. This Court denied Defendant's
motion by Order issued June 19, 2017.
I
Ii nefendant now claim� the cleni:11 ofhi� Motion for II private investigator r1PniM him hi.::
6th amendment right to effective assistance of legal counsel. Specifically, Defendant avers a
I
Ii private investigator was necessary in locating and properly interviewing and securing the
Ji
attendance of prosecution witnesses, potential eyewitnesses, and/or potential defense witnesses,
IiI'
including: Gregory Barger; Ak.eliah Truss; possibly Frederick Rotondo; and other disinterested
Ii witnesses to the events on October 29, 2015. Defendant also claimed the investigator. was
�
I
I
necessary in locating documentary evidence and physical evidence including all police reports of
�' � . I
F incidents in which Loskoch claims to have had prior contact with Defendant. This Court finds
(
this claim to be without merit.
I
III The Commonwealth is not obligated to pay for an expert's services. Com. v, Wholaver,
)
I( 605 Pa 325, 344, 989 A.2d 883, 894 (2010). "Appointment of expert witnesses and the provision
I
I
l·
Ii
of public funds to hire them to assist in the defense against criminal charges are decisions within
I
I
the trial court's sound discretion and will not be reversed absent an abuse thereof." Id. (citing,
I
(
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 707 ( I 998); Commonwealth v.
l
Carter, 537 Pa. 233, 643 A.2d 61, 73 (1994)).
I
I
I,
I
1·
1 In Carter, the Supreme Court of Pennsylvania found no abuse of discretion where the
,.
1
trial court denied a request for a handwriting expert to examine a letter written to defendant by
I 1
I
another inmate, the last line of which indicated the defendant was not present the night of the
t
Il murder fer which he \.V� charged. In rejecting defendant's argument that the handwriting expert
r
could have testified that the last sentence was in the other inmate's handwriting and therefore
destroyed his credibility as a witness, the Supreme Court responded, "[w]e find that the jury had
IO
the opportunity to assess [his] credibility as a witness on the stand. [He] testified on the issue of
whether or not he wrote the last sentence of the letter. We cannot find that the trial court abused
! its discretion in refusing to approve a handwriting analyst." Carter, 537 Pa. at 258, 643 A.2d at
I
Jl
73.
In Bardo, the Supreme Court found a similar claim related to a request for a private
investigator to be without merit. In reaching its decision, the Court noted, "appellant does not
r;
explain what the investigator would have done differently ifhe had been appointed by the court."
fi Com. v. Bardo, 551 Pa. 140, 149, 709 A.2d 871, 875 (1998).
Here, the Court finds no prejudice was suffered by Defendant as a result of the Court's
\l denial of his request for a private investigator.
I( l In the matter of Akeliah Truss (a potential alibi witness), this Court cannot see how a
' private investigator wo�ld have aided the Defendant as trial counsel made excellent efforts to
secure the attendance of Akeliah Truss, but was unable to ascertain her presence at a treatment
I'
facility due to the facility's reluctance to disclose whether Ms. Truss was present on the premises
or not-likely due to ERlSA concerns.
Furthermore, the absence of Ms. Truss did not prejudice the Defendant as Defendant
i
produced a number of alibi witnesses at trial, and, like Carter, the jury had the opportunity to
1
f:
' assess the credibility of these witnesses to determine the viability of Defendant's alibi.
Neither can this Court find any prejudice suffered by Defendant regarding Gregory
Barger. Despite the lack of a private investigator, Mr. Barger was contacted by defense counsel,
As to the other witnesses and documents, this Court cannot see the necessity of
/ appointing a private investigator where the documents at issue were in the possession of the
l 12
See, T.T. Vol. VI, at 85-102.
II
poiice and trial counsel had discovery tools available to him to compel the disclosure of evidence
the law requires be disclosed. If discovery rules did not require the disclosure of the documents,
I: See section 2.i., infra, and the police did not want to turn them over, the Court does not see how
a private investigator would have solved this dilemma for the Defendant.
II I Furthermore, Defense counsel was able to effectively cross-examine Loskoch regarding
I
I his previous interactions with the Defendant.13
Ii
Lastly, Defense counsel was able to produce ample witnesses of the events that transpired
1: I on October 29, 2015 outside of Defendant's residence. Hours of testimony were elicited at a
l
li suppression hearing and at trial concerning the even is that transpired October 29, 2015.
L 11 I Defendant examined family members, other household members, and neighbors, and cross-
examined numerous police officers regarding the night of October 29, 2015. While a private
1,
I investigator could have arguably discovered more witnesses to the incident, the effect of the
r l
I. testimony would have been cumulative at best.
I i
I'. 11
,. Due to the foregoing, the Court finds it did not abuse its discretion in denying the
f
! I
I
)
appointment of a private investigator.
l
2. Discovery violations
Defendant argues that numerous discovery violations warrant a new trial.
r
1 A trial court abuses its discretion in fashioning a remedy for a discovery infraction "if the
I
l judgment exercised is manifestly unreasonable," in light of the availability ofless severe, yet
! effective, solutions. Com. v, Malone, 356 Pa. Super. 281, 514 A.2d 612, 613 (1986).
I r
i
I
I
order to be entitled to a new trial." Com. v, Simmons, 541 Pa. 211, 662 A.2d 621, 634 ( 1995). See
also, Com. Jones, 542 Pa. 464, 668 A.2d 491, 512 (1995), cert. denied sub nom. Jones
r v, v,
13
T.T. Vol. V, at 94-103.
12
r
.I
I.
c :
, ',
Pennsylvania, 519 U.S. �26, 117 S. Ct. 89, 136 L. Ed. 2d 45 (1996); Com. v. Rosa, 415 Pa.
li
Super. 298, 609 A.2d 200, 203-204 (1992) ( defendant seeking relief from tardy disclosure must
demonstrate prejudice). That is, a defendant seeking a new trial must show that the violation
affected thefairness or outcome of the trial. Com. v. Wallace, 500 Pa. 270, 455 A.2d 1 187, 1192
j'
.i (1983); Com. v, Johnson, 310 Pa. Super. 385, 456 A.2d 988, 992 (1983). See also, Com. v .
Chambers, 528 Pa. 558, 599 A.2d 630, 63 7 (1991 ).
i. Police Reports re: Prior Contact with Defendant
By way of discovery letters dated July 9, 2017, and August 16, 2017, Defendant
:requested discovery of any police report written by Loskoch regarding prior contacts between
I·.
I .
. �. himself and Defendant. The Court ordered the Commonwealth to comply with the discovery
!rules by its order dated August 30, 201 7.
The Commonwealth eventually informed defense counsel on the eve of trial that Loskoch
I
made no police reports of any incidents in which he claims to have had prior contact with the
l .
Defendant.
Defendant cJaims he was prejudiced by this late discJosure that the requested documents
aid not and never did exist, because he had no time to investigate or secure the attendance of all
botice reports of all other police officers regarding those incidents of prior contact. This Court
does not see how the failure of the Commonwealth to tum over documents that do not and never
6id exist is a violation of the discovery rules. Com. v. Collins, 957 A.2d 237, 598 Pa. 397
I(2008) (The Commonwealth does not violate the pretrial-discovery rule when it fails to disclose
I
to the defense evidence that it does not possess and of which it is unaware).
1:
!l
'!!
'i . Furthermore, a defendant seeking relief from a discovery violation must demonstrate
prejudice. See, Com. v. Simmons, 541 Pa. 211, 662 A.2d 621, 634 ( 1995); see also, Com. v.
13
li; II
!
i: 1
Roies, 20i5 PA Super 115, 116 A.3d 122 (2015), appeal denied, 128 A.3d 220 (Pa. 2015)
t (A discovery violation and testimony exceeding the scope of the expert's report did not
t
I: automatie:tlly require a neur trial. A showing of prejudice ura<:. <:.till required.), While nefendant
II!
claims he had no time to investigate or secure the attendance of all police reports relevant to the
prior contacts between Defendant and Officer Loskoch, he does not explain how this prejudiced
J!
I JI him. See, e.g., Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 298 (1998) (no
I·
I!
prejudice when late disclosure of exculpatory evidence did not impair defendant's ability to
.1; present evidence at issue). Defense counsel was made aware of the non-existence of the reports
I
and was able to effectively cross-examine Loskoch regarding his previous interactions with the
i
Ii 4
Defendant. i Because no discovery violation took place and no prejudice was suffered,
Defendant's request for a new trial on this basis is meritless.
ii. Medical Records and Treating Physician of Loskoch
In his Omnibus Pre-Trial Application filed July 20, 2017, Defendant requested an order
directing the Commonwealth to provide all medical records from Allegheny General Hospital
and a list of all medical witnesses related to the examination, diagnosis and/or treatment of
l
( Loskoch. The Commonwealth agreed to secure and provide these records in a timely manner
during the Omnibus Pre-trial hearing held August 9, 2017.
I
r Defendant again requested the same records and information in a discovery letter dated
(
I August 17, 2017. The pre-trial court did not specifically address this request and entered an order
I. on August 30, 2017 directing the Commonwealth to comply with the discovery rules.
[
l
!. intent to call the treating physician on or about September 5, 2017.
I I
1
,I.
l 14
T.T. Vol. V,at94-103.
I
14
j
l i
.I
Again, the Court does not find a violation of the discovery rules here. The medical records
and notice of intent were provided to defense counsel, albeit tardily. While strict compliance
with the request for a list of all medical witnesses related to the examination of Loskoch was
lacking, the Court finds no bad faith on the part of the Commonwealth.
Even assuming a minor violation of the discovery rules occurred because of the tardy
disclosure, the Court is unaware of any prejudice suffered by the Defendant. Here, the medical
testimony and records were relevant evidence to the case, but were in no way crucial to the
verdict. The nature of the charges only required showing that the officer was shot in a vital part
of his body; no evidence of injury is required. See Section A. 1. a., supra. The testimony of
Officer Loskoch and the other investigators was quite sufficient to establish that Officer Loskoch
was shot in the chest, and but for his Kevlar vest, the bullet would have penetrated his chest.
Medical records and medical testimony is not necessary for a jury to know that the chest,
specifically the left side of the chest, is a vital part of a person's body. Moreover, defense
counsel was still able to adequately cross-examine the medical witness. 15 Cf Commonwealth v.
Counterman, 553 Pa. 370, 719 A.2d 284, 298 (1998) (no prejudice when late disclosure of
exculpatory evidence did not impair defendant's ability to present evidence at issue). Thus, this
Court finds that even if a discovery violation took place, no prejudice was suffered by Defendant
and a new trial is not warranted.
ill. Casey Pelton Disclosures
Defendant submitted a discovery letter to the Commonwealth dated August 11, 2016
requesting all inculpatory statements allegedly made by Defendant to anyone and a list of all
witnesses the Commonwealth intended to call at trial.
15
T.T Vol. Ill, al 13-18.
15
�'
\
t)
;1
\;
t!
J Defendant claims, without citing to the record or other evidence, that the Commonwealth
had knowledge as early as February 14, 2017, that Casey Pelton claimed that Defendant
confessed to the shooting. At-the Suppression Hearing held before Judge Fouse on August 9,
201 7, the issue was not addressed among the various discovery matters.
The Commonwealth ultimately disclosed Pelton and the alleged confession to Defendant on
I September 3, 2017, followed by additional discovery materials on September 5, 2017. Due to
,.
I this late disclosure, Defendant claims he had no time to prepare and present effective,
meaningful cross-examination of Pelton, or time to marshal evidence and locate and secure the
attendance of witnesses who could effectively impeach Pelton. This Court disagrees.
The record fails to reflect that Defendant suffered any harm because of the late
1 disclosures. See, Com. v. Rodgers, 500 Pa. 405, 412-13, 456 A.2d 1352, 1355-56 {1983)
!
I
I
(finding no prejudice where there was no indication that cross-examination was in any way
impeded or that the delay in disclosure prevented possible impeachment of the evidence); see
j
also, Com. v. Counterman, 553 Pa. 370, 399, 719 A.2d 284, 298 (1998) (finding no prejudice
r
I where defendant's ability ot present evidence in issue was not impaired by the late disclosure).
Ij A review of the record shows that defense counsel conducted an extensive cross-examination of
I
Casey Pelton.16 Furthermore, defense counsel was entirely able to, and did, locate and secure the
I I. attendance of witnesses-Wesley Lipscomb and Andre Ikard' 7-for the purpose of impeaching
I
I. ) Casey Pelton's testimony.18
I
Accordingly, this Court finds no prejudice was suffered by Defendant and a new trial is
not warranted.
16
T.T., Vol. IV, at 221-270, 276-278.
17
Both were fellow inmates on the same Pod as Pelton and Hollins around the time the alleged inculpatory
statement was made.
18
TT., Vol. V, at 152-167 (examination of Wesley Lipscomb); T.T., Vol. V, at 168-181 (examination of Andre
Ikard).
16
Ii 3. Court erred in denying Defendant's pre-trial motions to suppress defendant's
statements made to police outside Defendant's residence on October 29, 2015
1: TheUnited States Supreme Court ruling in Miranda v. Arizona, 384 U.S. 436 (1966),
I
requires that a person must make a knowing and intelligent waiver of his privilege against self-
I! incrimination and right to counsei after being provided an adequate warning as to these rights ·
\
)
before he is subjected to custodial interrogation. See e.g. Commonwealth v. Fisher, 466 Pa. 2 I 6,
,!
l 352 A.2d 26 (1976); Commonwealth v. Brown, 375 A.2d 1260, 1264 (Pa. 1977).
I
L, order to suppress statements in response to a violation of a defendant's Miranda rigi'its,
l!I
.
the Court must find that the defendant was subjected to both police custody and interrogation .
.I
I
:, 1! Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001).
I!
"In Pennsylvania, the test for determining whether a suspect is in custody is whether the
l jj suspect is physically deprived of his freedom in any significant way or is placed in a situation in
1 I
.
II which he reasonably believes that his freedom of action or movement is restricted."
r. 11
r- Commonwealth v. Eichinger, 915 A.2d 1122, 1133-34 (Pa. 2007}. Police detentions become
custodial when, "under the totality of the circumstances, the conditions and/or duration of the
t
I detention become so coercive as to constitute the functional equivalent of arrest."
Ii · Commonwealth v. Mannion, 725 A.2d I 96, 202 (Pa.Super. 1999). The Court, in its consideration
!I
of the totality of the circumstances, must consider the reasonable impression conveyed to the
person
.
interrogated.
� See Mannion, 725 A.2d 196, 200 (Pa.Super. 1999). The Court should
consider the basis for the detention; its length; its location; whether the suspect was transported,
threatened or used force; and the investigative methods employed to confirm or dispel
suspicions. Id.
17
i:
!'·
I Interrogation is not iimited to direct questioning initiated by law enforcement officials,
r but also includes the functional equivalent of interrogation, including "any words or actions on
the p::irt of thP. pol1r.P. ( othP.T th:m thm:P. nonn::i 11 y ::ittP.ntfont to ::irrP.<:t ::m.-1 custody) th�t the police
should know are reasonably likely to elicit an incriminating response from the suspect."
,!I
' Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (quoting Commonwealth v. Delesus, 787
I
I- ! A.2d 394, 401 (Pa. 2001)). However, "not every statement made by an individual during a police
I
I Iil
r
I encounter amounts to an interrogation. Volunteered or spontaneous utterances by an individual
i l
are admissible even without Miranda warnings." Gaul, 912 A.2d at 255.
I_ 11
l
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j
In making its determination, the Court should consider the basis for the detention; its
I
length; its location; whether the suspect was transported, how far, and why; whether restraints
I were used; whether the law enforcement officer showed, threatened or used force; and the
investigative methods employed to confirm or dispel suspicions. Commonwealth v. Mannion,
r
725 A.2d 196, 200 (Pa. Super. 1999).
r( 11
I Here, the testimony established that between 10:00 PM and 11 :00 PM19 police knocked
r
r _.
!) on the door at the residence of Defendant and told the inhabitants to come outside. After
l l
ascertaining the presence of Defendant, a couple officers (Thomas and Hermickj'" escorted
L._·
l
Defendant across the street-the officers escorted Defendant a distance of approximately 15-20
l ·. yards. 21 While there, the officers asked questions of Defendant regarding the shooting of Officer
l·
( Loskoch, where he was during the time of the shooting, where he stayed the night before, and
1-
inquired as to his hair style. Trooper Thomas and Lieutenant Hennick credibly testified that the
1
I
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!
19 TT \/,.l
20
·�· . . ., .q'. . .......... �
.•·•�..- ........
\/1 1 '"J,1
Theresa Tyson (neighbor) testified at a pre-trial proceeding on September 8, 2017 that she saw "maybe two"
officers standing with Hollins while being questioned. Suppression Transcript, 9/8/17, p. 25.
21
Suppression Transcript, 9/8/17, p. 43.
18
.l I
I I
- � - - -- .,., - -- - - - -
Defendant was not in handcuffs:" and the officers did not have their weapons drawn nor did they
threaten force while accompanying Defendant across the street and questioning him.
! Furthermore, following their relatively brief discussion,23 the Defendant was free to leave.
l
l
While this Court finds that Defendant was seized by the officers that night, the nature of
i
the seizure, under the totality �fthe circumstances, was more akin to an investigatory detention
.. �
·
1.
contemplated in Terry, and not the functional equivalent of arrest. Thus, this Court finds
I
\·
ll
! Defendant was not subject to custodial detention on the night of October 29, 2015.
1 •
I
' Because of this Court's determination that the Defendant was merely seized for the
1i
I '
(. purpose of an investigative detention akin to a Terry stop, and was not subject to a custodial
I.
I
1!I I detention, the second stage of the analysis regarding interrogation is rendered moot, and this
,'
'I
I
i Court finds that it acted properly in denying Defendant's motion to suppress the statements
I
t I elicited on the night of October 29, 2015.
4. Trial Court erred on evidentiary rulings at trial
lr- 1; I
1 ' Defendant raises ten (10) distinct complaints of error on evidentiary rulings at trial.
! .
r. The admission of evidence is a matter vested within the sound discretion of the trial
1,. court, and such a decision shall be reversed only upon a showing that the trial court
•
abused its discretion. Jones, 683 A.2d at 1193. In determining whether evidence should
be admitted, the trial court must weigh the relevance and probative value of the
II
evidence against the prejudicial impact of that evidence. Id. 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. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d
1057, 1061 (2001). Although a court may find that evidence is relevant, the court may
r
I
i
nevertheless conclude that such evidence is inadmissible on account of its prejudicial
l impact. Commonwealth v. Ulatoski. 4 72 Pa. 53, 371 A.2d 186, 192, n. 11 {1977).
l . l Com. v. Reid, 571 Pa. 1, 34, 811 A.2d 530, 550 (2002) .
I 12
TT., Vol. IV, al 199. This testimony was not credibly contested as Brittney Hollins testified that Defendant was
restrained, but she had no actual knowledge of this, only an assumption. TT. Vol Vl., al 130. Similarly, Jada Elmore
23
TT, Vol. VI, al 132. (Testimony of Brittney Hollins who stated that Earl Hollins was across the street for about 5
to IO minutes and then was allowed to come back).
!... 19
I
r
. y
··1
I J
To constitute reversible error, an evidentiary ruling must not oniy be erroneous, but also
harmful or prejudicial to the complaining party. For evidence to be admissible, it must
be competent and relevant. Evidence is competent if it is material to the issue to be
determined at trial. Evidence is relevant if it tends to prove or disprove a material fact.
/ Relevant evidence is arlmissihle if its probative value outweig..hs its prejrn-lic.ial impact,
The trial court's rulings regarding the relevancy of evidence will not be overturned
I! absent an abuse of discretion. American Future Systems, inc. v. BBB, 872 A.2d' 1202,
l: 1212 (Pa.Super.2005), affirmed, 592 Pa. 66, 923 A.2d 389 (2007) (internal citations
I omitted).
' 'Conroy v. Rosenwald, 2007 Pa. Super. 400, ,i 14, 940 A.2d 409, 417 (2007).
l
i. Court erred in permitting Michael Priolo _to possess bis police report
while testifying without any claim of lost recollection
,,,,
i: Defoudant claims that it was error for this Court to pcni1it Offieer Michael Priolo to
:1
,I I
possess and utilize his police report while testifying without a prior claim of lost recollection.
it 1:
I
l
' Pennsylvania Rule of Evidence 6 I 2 permits a witness to use a writing to refresh his memory "for
I
! '
I I the purpose of testifying while testifying; or before testifying." Pa.R. E. 612(a). Unlike the
q Ii
)
,j
i hearsay exception in Pa.R.E. 803 .1 (3) (Recorded Recollection of Declarant-Witness), Rule
I
H'
.
I 6i2(a), does not permit the writing to be entered into evidence .
lt 1!I
l' I
I
:I
It
I ln Com. v. Proctor, 253 Pa. Super. 369, 3.73, 385 A.2d 383, 385 (1978), the Pennsylvania
:IiJ Superior Court adopted Michigan's rule laid out in Moncrief v. City of Detroit, 398 Mich. 18 I,
II
...
24 7 N. W .2d 783 ( I 976), regarding proper foundation to permit the use of a writing in order to
refresh the memory of a witness:
I
I- To permit the use of a writing in order to refresh the memory of a witness, the
I proponent must show: (1) that the witness' present memory is inadequate; (2) that the
II writing could refresh the witness' present memory; and (3) that reference to the writing
actually does refresh the witness' present memory. (Footnote omitted).
l
Detroit, 398 Mich. 181, 247 N.W.2d 783, 787-788 (1976)).
20
Defendant argues that use of the document was improper because the proper foundation
was not laid. However, a review of the record shows that prior to Officer Priolo using the
document to refresh his recollection, counsel for the Common we-� Ith �i;:ke-ct him, "[ wjou lci it
assist you in refreshing your recollection form me to show you the narrative report so you can
- • • • -·· • • • • • •• • --- - •• "Id
reter to It m your testimony?" to which the witness replied, "'Yes:·-�
It appears from the context that Officer Priolo answered the Commonwealth's question
regarding what was said at the hospital by Officer Loskoch regarding the incident and the
description of the suspect. Following Priolo's ar1swer, the Commonwealth sought more detail
regarding the description given at the hospital. These additional details were contained in Officer
Priolo's report, which prompted the Commonwealth to ask Priolo if his report would assist him
in recalling the details of the description .
.After the Court permitted the writing to be used to refresh Priolo's recollection, the
Commonwealth asked the following:
[MR. TORRENCE: ... ] Can you review that and
explain to the jury what it is that the officer
said to you at that time?
A. He started out saying that he was, he
remembered the actor. He knows who this individual
was, he knows who it was, and it's when he told me
the name was Hollins. And he also provided me
cigar thickness of dreadlocks in the, in his, on,
in his hair.
14
T.T., Vol II, at 116.
21
i
r
I.
i. Ii Q. Okay. How much detaii, to the best of your
i
\
recollection, did he give you about the hair?
II Ii A. I was only able to provide or get information
I
I!I
that it was a cigar size in thickness -
Q. Okay.
I
iii
I
A. - and that it was -
Q. All right. And is that reflected in your
i report? Is that what you utilized now to refresh
li
11 .
your memory?
ll I
I! I A. It is.
ll
T.T., Vo1. 11, at 117.
11 Following this, t.1-te Commonwealth continued to question Priolo about his conversation
with Officer Loskoch.
II
I Q. And what did, what was that conversation?
Relay it to the jury.
I I
A. Officer Loskoch kept replaying the incident
I
over and over in his head, over and over. I know
I this guy. I know this guy. And then he was able
to provide a geographical location in Ambridge. He
I goes, "I think I've dealt with this guy in Ambridge
j· ..-.. ... 10t-h � ...... n...n..,._ L:"..n..- .. � n •• A...,.£1 .. ••o C"n.ma,.,h ...... �
I
.nn.t- C"�
v .. .av .. ._..._.... .. •"-"-.....,•"-"-•• .._..... "-'--11..,i ..,UJJ ....... "' .. "' "'"...._."' .... ._...._."'
in that area."
Q. Flip the page if you would. Is that
22
i .•
l
·-·
,,
'ii
'
referenced in your report in the highiighted area?
A. Yes.
',
, at 119.
/ . Id.
,
I
I
I
This Court is satisfied that the Commonwealth provided the foundation required by
1!
i Proctor. Following some generai testimony regarding what occurred at the hospitai, the witness
las
.r. '
I asked, "[w]ould it assist you in refreshing your recollection form me to show you the
-, n 1
t ) riarrative report so you can refer to it in your testimony?" to which the witness replied, "Yes."25
I
·1
.,i
Ii Once the witness reviewed his report, his memory was actually refreshed. :r-yforeover, it appears
I
· 1 from the transcript that Officer Priolo did not read his report into the record, but rather read the
ii feport and testified from a presently refreshed memory.
Furthermore, even if this Court were to find that the use of Officer Priolo's notes to
/1 Ire Fr
.. es h....h"is memory rl... unng
· .. is r1·
h" •
... irect testimony •
was rmproper. tth e aorrussion
rl . . otf' sue h evt·r1... ence
!
�OS
harmless as the witness had already testified generally to the events at the hospital before he
I, Ireviewed
. . his
. notes and. only. added
. . . a few
_ details
. . to what
. he already. testified
. to .
prior to refreshing
I
his recollection. See e.g., Dean Witter Reynolds, Inc. v. Genteel, 346 Pa. Super. 336, 345, 499
! .
IA.2d 637, 641 n.1 (1985) (finding error harmless where "[r[he witness had already testified
!generally
c
as to the events of April 28, 1980 before he reviewed his notes. After he reviewed his
I
he was able to add only a few details to what he had already testified. Thus, the testimony
given by Mr. Genteel after reviewing his notes was basically testimony corroborating his prior
testimony about the April 28 transactions." Id.).
ii. r . . . . .. ...4- ......... _...,.,,.
........uu1 '-�·I �u
=- -.. -. - . . . . :.......-:-- r---------------�.. ,.,-••t.. •- . . 1:_....:4- ,
••• _.,�. aUll.'l-111,b- ........ UIIIIIIUil 1'1'�.dll-11 1-U �•n... 11- •• UIII
_.. T-------..n,-
• I uup�·
Joshua Thomas hearsay statements of Eric Odom's girlfriend
15
T.T., Vol II, al 116_
23
!
'
1.
Defendant claims that it was error for this Court to permit Trooper Thomas to testify
regarding hearsay statements of Eric Odom's girlfriend. Hearsay is defined as, "[an] out-of-court
statement offered to prove the truth of the matter asserted." See Heddings v. Steele, 514 Pa. 569,
526 A.2d 349 (I 987); Pa.R.E. 801 (c). The comment to Rule 801 further elucidates this
.definition:
A statement is hearsay only if it is offered to prove the truth of the matter
asserted in the statement. There are many situations in which evidence of a statement is
offered for a purpose other than to prove the truth of the matter asserted.
[ ... ]
More often, a statement, whether or not it is true, constitutes circumstantial
evidence from which the trier of fact may infer, alone or in combination with other
evidence, the existence or non-existence of a fact in issue. For example, a dec1arant's ·
statement may imply his or her particular state of mind, or it may imply that a particular
state of mind ensued in the recipient.
Pa.R.E. 80 l.
During the direct examination of Trooper Thomas, counsel for the Commonwealth
I !questioned Trp. Thomas about the investigation he conducted regarding the shooting of Officer
l ILoskoch. In the course of testifying, numerous objections were made by defense counsel on
I
hearsay grounds. The Court permitted the testimony as non-hearsay because it was merely a
!narrative of the investigative process showing the information possessed by Trp. Thomas and
Iilluminated for the jury his state of mind at the time and why he conducted the investigation in
le manner he did.26 See Com. v. Hardy, 2007 Pa. Super. 48, � 46, 918 A.2d 766, 777 (2007)
Ic·sometimes, out-of-court statements are offered not to prove the truth of the matter asserted but,
lfor example, to explain the course of conduct undertaken by an investigating police officer. [ ... ]
I
Such statements are not hearsay.") (citing Commonwealth v. Dent, 83 7 A.2d 571, 577
!
(Pa.Super.2003 )).
I
!
26
See generally, T.T., Vol IV, at 32-33.
24
'I :,
t
l
t The ciaim of error raised in Defendant's post-sentence motion regards a specific line of
'
I . questioning regarding another portion of the investigation detai1ing other persons of interest and
Ji
1 I
1
why they were ultimately exdn514 Pa. 569, 526 A.2d 349 (1987); Pa.R.E. 80l(c).
The testimony elicited here was sought for the purpose of establishing what information
I
,\
JI -.. .:1:
r:. I -£:J...-- 1-l-...c::i. +"'.-, ....:lo,.-.,,�-•: ..-....- -t.1.ro'11.r--
'5""5 " ·"'·'!" ·' "'·'" 'P"" •• ce o
1...-ro. .,.,,,..,,.... """ Tr-r'III
'I'
Th ""_._....,,., ...,, .;m J....:._.... :..-.. ,o._....-t; ..-.. ..-.+..----..-._. .
' "" '"·' "" ",., "'"'·"' 5"'"' ·' •• "" "'" J
1,_.n..-. ti-.. ..
i
• """ "' '
.
.i I
l
'!
�J ("....-....- tTonornllu TT Vr-.1 IV "':lf Ll.1...A/
,, I .._....L-'-
b'--�•L-o._...LOf7 _._ __ -, T .._,..L_ A•'....._,._ •--"
�8 Id. at 43.
�9 Id. at 45.
-[ I JO
See generally, T.T., Vol IV, at 59-60.
25
I
'\
I
I interviewed the Defendant. See Hardy, Supra. This testimony, offered for the purpose of
establishing what was known to the investigators at a certain time during their investigation and
how it influenced their investigation, was not offered to prove that the suspect, in fact, had such a
description.
In short, the testimony by Trp. Thomas about what was known to him at the time of the
investigation "to explain the course of conduct undertaken by an investigating police officer" is
t· not hearsay, and this Court properly overruled Defendant's objection.
-1
,r iv. Court erred in refusing to permit Defendant to eUcit testimony from
;1 Trooper Joshua Thomas regarding the photo Iine-up
Defendant claims that it was error to refuse Defendant to elicit testimony from Trooper
l
!
Thomas regarding the photo line-up, how it was conducted, how the photos were complied, and
l! who was present. Pennsylvania Rule of Evidence 602 states:
11 A witness may testify to a matter only if evidence is introduced sufficient to support a
l
finding that the witness has personal knowledge of the matter. Evidence to prove
Ii personal knowledge may consist of the witness's own testimony.
1:
Pa.R.E. 602.
tl
During his cross-examination ofTrp. Thomas, counsel for the Defendant was permitted
11
il
to elicit some questions regarding the personal knowledge ofTrp. Thomas of the general
I!II !procedure
by which photos are selected for a photo array and the personal directives of Trp.
j!t I
romas regarding the photo line-up. A number of objections were raised by the
31
:1
·: ' Commonwealth during this line of questioning on the basis that some of the questions sought to
!
!I
lr Licit testimony about facts of which Trp. Thomas had no personal knowledge.32 The Court
11 �ermitted
questions regarding the procedure, if the witness knows what the procedure is,33 but
· 11
.,!: l
. I/
,,
!,
r � �1
1
See generally, T.T., Vol. IV, al 133-146
Id. al 138, 142.
33
Id. al 138-139.
26
sustained the objections as to what how the particular photo array in this case was compiled and
what occurred during the photo line-up on the basis that Trp. Thomas testified that he was not
present when the photo array took place. 34
Because Trp. Thomas was not present for the compilation of the photo array and was not
present when the photo line-up took place, he could not have personal knowledge of the facts
sought to be elicited by defense counsel's questions and was therefore incompetent to testify as
regards those facts. Thus, this Court properly exercised its discretion in sustaining the
Commonwealth's objections.
v. Court erred in refusing to permit Defendant to elicit testimony from
Casey Pelton regarding the identity of and the balance of the
maximum sentence for every case for which he was on parole at the
time he was arrested and detained in the Beaver County Jail
Defendant claims that it was error for the Court to refuse to permit Defendant to elicit
testimony from Casey Pelton regarding the identity of and the balance of the maximum sentence
for every case for which he was on parole at the time he was arrested and detained in the Beaver
County Jail.
A review of the Trial Transcripts shows that defense counsel was permitted to conduct an
extensive examination of Casey Pelton, including substantial questions related to the identity and
the balance of the maximum sentences for every case for which he was on parole at the time.35
The Commonwealth objected numerous times to an exhaustive inquiry into Mr. Pelton's
entire criminal history on the basis of Pa.R.E. 609.36 The Court ruled that defense counsel could
34
Id. at 143.
35
Sec, T.T., Vol. IV, at 227-255.
36
See, e.g., Id. at 224.
27
-, .
,:
. •··
. '
. '
inquire
I
into Mr. Pelton's paroie and paroie violation
• - .
history as it was reievant and within the
Jounds of Pa.R.E. 609, but not into Mr. Pelton's convictions.37
I I
'I I Fnllnw;ng these ruI;ngs, counsel fn, Oefendant conrinned qnestinning M,. P_eltnn
: regarding his parole and violation histories. The cross-examination at this point became
: I
11 .I . . . . - . .. . . . - .. . - -. .
' belabored and contused, which promptect the commonwealth to raise another Objection on the
-
Jasis of relevance due to lack of probative value. The Court sustained the objection and
f I -
II:'
J.
i
tj
I ..
:
r:::::::::i:::::::::: :::::::i::u::::h;:::::::::.:�:;:s::::.:
I
lj I
.I!
•l las i�structed again by the Court to move on. Following further questioning on these issues, an
J.i f
'I.I <
• oA
•j j extensive side bar was held wherein the Court discussed the finer points of parole procedure." ·
q I
.. 'rf_ ! Throughout this episode, defense counsel was given multiple opportunities to elicit the
ii I
JI Ii l
information he sought from Mr. Pelton so long as it was within the bounds of Rule 609. The
IIii
�ourt permitted extensive questioning of Mr. Pelton as to relevant and permissible details and
11
q
t·
•l:t
:J
f1
Jr I
jl
: inany of the details sought by defense counsel were ultimately elicited from Mr. Pelton.41
!J
J �
;A
Due to the foregoing, this Court finds that Defendant's claim that he was refused
I
I-[_,
permission to eVJi·cli. t testimony regarding Mr. Pelton's par�le is entirely baseless.
ii Court erred in refusing to permit Defendant to elicit testimony from
!�
I Loskoch whether he remembered smelling gun powder, and ii not,
H I
whether he remembered telling anyone that he smelled gunfire during
' tf i. the incident
d
lr
Ii
-, ,
!!,-
i�
I
; .
�7 id. at 225-226.
(8 IA_ "' Tll).
t id. at 231-232.
�Did. at 240-246.
r id. at 254-256.
28
.
l: I
---
-
L I
Defendant ciaims it was error for the Court to refuse to permit Defendant to elicit
testimony from Officer Loskoch regarding his memory of the smell of gun powder. Defendant's
,I
allegation of error misconstrues the nature and purpose of the Court's ruling.
I A review of the Trial Transcript shows that defense counsel asked Officer Loskoch, "Did
11
I you ever say that you couid smeil the gunfire, you could smell it as this process was going on?',.;2
I
to which Officer Loskoch replied, "Of course you would be able to sme!J the gunfire in a closed
IiI I - - - .
I
L
cabin vehicle shooting multiple rounds.'43
I
I
·I At this point the Commonwealth objected on the basis of improper impeachment.
i I
lIIl I
I/
Following a brief argument, the Court conducted a sidebar. The substance of the sidebar is as
I follows:
11
ii
II. J) MR. TORRENCE: Your Honor, my understanding is
ll
(I
i that Mr. Dilvlartini is in the process of impeaching
11· I'
Ji I him with a prior inconsistent statement. The
!,'i ll
IIjl statement that he is utilizing is a statement from
1! I
I a news reporter or a news reporter is reporting
!l ,1
I]
I: what he said.
,;
ii
!{
'l
I.
lI I don't believe that is his statement. I
!I
r,
\1
don't believe he gets to impeach him with a
'ir
i
i ) statement from a TV person, and it's, he has it in
l
!
I
writing, and he hasn't shown it to him.
I
1
t
I MR. DiMARTINI: The --
I.
1
r
f T.T., Vol. V, at 90.
Id_
29
fr
THE COURT: ls that correct?
MR. DiMARTrNI: Yes and no.
THE COURT: Wel1, if it's partially correct,
you're not going to be permitted to do it.
MR. DiMARTfNI: Well --
THE COURT: I mean a news reporter. Now, you
can impeach based on a transcript, but a news
reporter?
MR. DiMARTINI: This was a direct quote.
MR. TORRENCE: It is written as a direct
quote. I don't know where that quote came.
THE COURT: Have you spoken to the news
reporter?
-MR. DiMARTINI: No, I --
THE COURT: Then I'm not permitting it.
I
T.T., Vol. V, pp. 91-92.
Pennsylvania Rule of Evidence 6 I 3(a) permits a witness to be impeached with his prior
inconsistent statements. Rule 613(b) requires that if the evidence of a witness's prior inconsistent
statement is extrinsic, the statement and its contents must be disclosed to the witness, the witness
.,
r
;_j
Lust be given an opportunity to explain or deny the making of the statement and an adverse
I
r
•l party must b e given
· · to question
an opportunity ·
· th e witness.
f
•• I
ii I If the impeaching party wishes to have the prior statement entered for substantive
purposes as well as impeachment purposes, the prior statement must have been given under oath,
!: JO
., . ,'
r
!
I
r
'\
made in a writing signed or adopted by the declarant, or be a verbatim contemporaneous
electronic recording of an oral statement. Pa.R.E. 803. l .
. !
Here, defense counsel began to question Officer Loskoch about a minor detail regarding
his memory of the incident in question. Defense counsel could properly question Officer
Loskoch about his memory of the incident and even introduce extrinsic evidence of his prior
l , , 1
I
i"' .''
l' statement, but only for impeachment purposes. Despite this, mere dissimilarities or omissions in
i
·1
prior statements do not suffice as impeaching evidence; the dissimilarities or omissions must be
substantial enough to cast doubt on a witness's testimony to be admissible as prior inconsistent
'I
statements. See, McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006), appeal denied 921
!1
1'
A.2d 497, 591 Pa. 736.
'
l
j Due to the foregoing, this Court finds that Defendant's claim that he was refused
L permission to elicit testimony regarding Officer Loskoch's memory of the odor of gun powder is.
I!
:I l
misconstrued, and further, that the Court properly sustained the Commonwealth's objection as
·'
!this minor detail does not suffice as impeaching evidence. See, McManamon, Supra.
;t
q \1
I
vii. Court erred in refusing to permit Defendant to elicit testimony from
Andre Ikard
.Ir
,,dr
' '.. Defendant claims it was error for the Court to refuse to permit Defendant to elicit
!I
11" testimony from Andre Ikard regarding personal knowledge of the manner in which Pelton would
1
;1 \ benefit from his testimony against Defendant.
,,
·p As was stated above, "A witness may testify to a matter only if evidence is introduced
1!
J I sufficient to support a finding that the witness has personal knowledge of the matter." Pa.R.E.
I
;:iI
q
602.
It is clear from the record that Andre Ikard had no personal knowledge of the manner in
which Pehon would benefit from his testimony against Defendant, only an "an opinion based on
31
",, I O T ... � 0
'
l
I
*ings that he knows other peopie have done .in the past.'" Thus, this Court properly excluded
I ; j .
the proposed testimony.
'1 l
J: I viii. refusing to pPrmit Defendant to Plii:-it testimony from a
C'on.rt PrrPd in
I cosmetologist experienced in African American hairstyles
�..,
I
I·
1; As stated previously, evidence is admissibie if it is relevant, in determining whether
. ..,� I
. ' I
; '
Jvidence should be admitted, the trial court must weigh the relevance and probative value of the
,I
., I I . .
II evidence against the preiudicial impact of that evidence. The Court mav also exclude relevant
probat�ve- o�tweighed '"confusin�
! lidence i;its value is by a danger of the issues, misleading the
1i
I
jury, undue delay, wasting time, or needlessly presenting cunrnlative evidence." Pa.R.E. 403.
I A review ofthe record shows thatthe issue of the Defendant's hair was adequately
Ii l
: addressed. The Court, in its discretion, determined that eliciting testimony from an expert on the
i !
I/ Tfferent hairstyles nf African-American men wnnlcf nnt a.,;;sist the jury :i.ncf would he ;i. w:i.c;;te nf
i time.
Even assuming this Court erred, the error is hanniess as this Court does not see how
I
Defendant was prejudiced in the absence of this witness where testimony at trial already
t,tablished
that Defendant knew he matched the description of the suspect despite claiming he
had braids and not dreads. Apparently, Defendant thought the two hair styles appear so similar
I
he changed his hair style the day the shooting took piace.45 This fact alone indicates that the
tfusal to permit the hair expert to testify did not prejudice the Defendant.
ix. Court erred in refusing to permit Defendant to elicit testimony from
Jada Elmore regarding her efforts to locate and interview Prentice
Tucker
,.
11, i
;{ _
I «
I TT_ Vol. V, at 17R ( quoting defense counsel, Dennis DiMartirn, during a sidebar following a request for an offer
I j
r
of proof by the Commonwealth).
SeeT_T_, VoL IV, at 205�206_
32
)
t·
I
Defendant c1aims that the Court erred by not allowing him to elicit testimony regarding
the efforts of one witness, Jada Elmore, to locate another witness, Prentice Tucker, who did not
appear at trial. The Court, in its discretion, did not believe this line of questioning was relevant
and therefore excluded that line of questioning.
x. Commonwealth impermissibly stigmatized Defendant as a dangerous
person by bis expression of personal opinion of Defendant
Defendant claims the Commonwealth engaged in misconduct by referring to the
Defendant in its closing argument as "stone cold" and "a serious criminal doing serious stuff."
This issue need not be addressed by this Court, as counsel for Defendant did not object at trial,
either at the time of the statements or at the completion of the prosecutor's argument, and
thereby waived this claim. Com. v. Galloway, 771 A.2d 65 (Pa. Super. 2001); Com. v. Williams,
455 A.2d 632, 500 Pa. 226 ( 1983).
5. Trial Court erred by refusing to instruct the jury as to numerous instructions
requested by Defend ant.
The Superior Court of Pennsylvania provides the relevant standard ofreview as follows:
"A motion for a new trial based upon the sufficiency of the jury charge will
only be granted when the court determines that the charge in its entirety and
against the background of the evidence was erroneous and might have prejudiced
appellant." Beechwood Commons Condominium Ass'n v. Beechwood Commons
Associates, Ltd., 397 Pa.Super. 217, 227, 580 A.2d I, 6 (1990) (citation omitted).
Erroneous jury instructions may be the basis for a new trial if it is shown that the
instructions were fundamentally in error and might have been responsible for the
verdict. Ott v. Buehler Lumber Co., 3 73 Pa.Super. 515, 520, 541 A.2d 1143, 1146
(1988); Hawthorne, 352 Pa.Super. at 368, 508 A.2d at 303.
Sedlitsky v, Pareso, 425 Pa. Super. 327, 332, 625 A.2d 71, 74 (1993). Recently, in
Commonwealth v, Sirmons, No. 261 MDA 2016, 2016 WL 5884805, at *3 (Pa. Super. Ct. Sept.
9, 2016), the Superior Court, citing established precedent, held:
[W]e must review the jury charge as a whole to determine if it is fair and
complete. A trial court has wide discretion in phrasing its jury instructions, and
33
l, II
rr
r r
LI' !I can choose its own words as iong as the iaw is cieariy, adequateiy, and accurateiy
presented to the jury for its consideration. The tria] court commits an abuse of
discretion only when there is an inaccurate statement of the law.
.' 11 I I
Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal denied, 606 Pa. 644, 992
f°mmonwealth
!•
., v,
:j
1.i
'l
. r2d 885 (2010) (quoting Commonwealth v. Jones, 954 A.2d I 194, 1198 (Pa.Super. 2008),
---- --- --- . -· ··-- ·----" � - .. -·
'I
l, _ II appeal
I .... . . .
demed, )':l':I Pa. /UlS, ':lbL A.La i rso {LUUISJJ. i ne Lourt in Sirmons connnued to quote the
,il:
:i
,;
!I
1: I
, lie set out in Baker, stating:
-[j
'
Ii I
I
A jury charge will be deemed erroneous only if the charge as a whole is
J inadequate, not clear or has a tendency to mis]ead or confuse, rather than clarify, a
Ji material issue. A· charge is considered adequate unless the jury was palpably
I misled by what die trial judge said or there is a., omission which is tantamount to
fundamental error. Consequently, the tria1 court has wide discretion in_ fashioning
I
I
jury instructions. The tria] court is not required to give every charge that is
II I requested by the parties and its refusal to give a requested charge does not require
reversal unless the appellant was prejudiced by that refusal.
Baker; supra at 507 (quoting Commonwealth v. Brown; 91 I A.2d 576; 582-83 (Pa.Super. 2006),
1
I!
I
appea] denied, 591 Pa. 722, 920 A.2d 830 (2007)).
Tne court in Com. v. Tayior, 583 Pa. i 70, 876 A.2d 9i 6 (2005) further summarized the
'I rational basis for giving a requested instruction as follows:
I
J
It is settled that "a trial court should not instruct the jury on legal principles which have
no application to the facts presented at trial." Commonwealth v. While, 490 Pa. · 179,
415 A.2d 399, 400 ( 1980). Rather, there "must be some relationship * 186 between the
evidence presented and the law upon which an instruction is requested." Commonwealth
v. Crews, 536 Pa. 508, 640 A.2d 395, 407 ( i 994). The reason for this rule is that,
"instructing the jury on legal principles that cannot rationally be _applied to the facts
presented at trial may confuse them and place obstacles in the path of a just
verdict." White, 415 A.2d at 400. According]y, a criminal defendant must establish that
the trial evidence would "reasonably support" a verdict **926 based on the desired
charge and may not claim entitlement to an instruction that has no basis in the evidence
presented during trial. Commonwealth v. Carter. 502 Pa. 433, 466 A.2d I 328, 1332-33
llOQ'l\
\ I /V-"' J:
I Taylor, 583 Pa. 170, 185-86, 876 A.2d 916, 925-26 (2005)
I
,:
Pa.R.Crim.P. Rule 647(E) provides:
,-i
,' 34
'
\
!
)
l II
I
i.
I. I (E) The triai judge may give any other instructions to the jury before the taking of
I evidence or at anytime during the trial as the judge deems necessary and appropriate for
] the jury's guidance in hearing the case.
I
I 1l I P;:i R Crim P Rnlt� 647(F). ThP. Offir.il'II Comment to section (F) provides:
It is intended that the trial judge determine on a case by case basis
whether instructions before the taking of evidence or at anytime during trial are
appropriate or necessary to assist the jury in hearing the case. The judge should
determine what instructions to give based on the particular case, but at a minimum the
preliminary instructions should orient the jurors to the trial procedures and to their
duties and function as jurors. In addition, it is suggested that the instructions may
include such points as note taking, the elements of the crime charged, presumption of
· innocence, burden of proof, and credibility. Furthermore, if a specific defense is raised
by evidence presented during trial, the judge may want to instruct on the elements of the
defense immediately after it is presented to enable the jury to properly evaluate the
specific defense.
111 Official Comment to Pa.R.Crim.P. Rule 647(E).
I Defendant claims this Court erred in refusing to instruct the jury as to the following
II
I requested jury instructions: No. 18 eyewitness identification instruction; No. 19 doubtful
, accuracy and duty to receive identification of doubtful accuracy with caution; No. 25 duty to
hj 11 I
consider current probation or parole status of a witness; No. 26 duty to consider current
t
i
l ! probation or parole status of witness at time he first talked to police; No. 35 limits on inferences
1
to prove crime; No. 2 no adverse inference of guilt from fact that he has been detained in jail
1
II
since arrest; No. 3 no adverse inference from fact that all the Deputies sat near Defendant.
1-l
I As regards these requested instructions, this Court finds the following:
al dd::�::•;:::::::::�:i�::.�:::·�::d:: i::�.::�:::::1 and
r] I
I, :nless
:r
If
.\ I
ll
I!
ll instruction No. 25 and No. 26 were adequately addressed by this Courts standard instruction that
the jury should consider, as a factor when judging credibility of a witness, "Did the witness have
46T.T., Vol. VII, at 142-145.
35
/ I any interest in the outcome of the case or any bias, prejudice, or other motive that might affect
1
·
1 that witness' testirnonyr?" The concerns addressed by requested instruction No. 35 were
11
..'· ladeqrn1tely addressed hy this f'.n11rt's st�nrhirrl concluding �nrl post-trial instruction.f The
'f.
1J concerns addressed by requested instruction No. 18 were adequately addressed by this Court's
I I standard
. . concluding
. .. and. post-tnal
. . mstructions
. . on rcentmcanon."
. . .- . .334 Pa. Super. 415, 434, 483 A.2d 519, 529 (1984)(trial court
.l may properly refuse to grant a defendant's point for charge [ ... ] where the court provides a general instruction that
II
I,
11 !the jury mus_t consider in its deliberations the potential bias or interest with which any witness may have
!:" testificdjtciting Commonwealth v. Vickers. 260 Pa.Supenor Ct. 469, 394 A.2d 1022 (1978)).
I, 48
T.T., Vol. VII, at 125.
l'!·
49
T.T. Vol. VII, at 125-126.
-f ' 4Jl�-�- ··- ·-- ·�� - -·=-= �-� -��-·-
- - J /h r'a. "l IL, 4H, [U(J A.La hLU, z zo l l'J:)4 ).
,., , 1
� Defendant's post-sentence motion mistakenly requested reconsideration of the sentence for "Count 3;· but goes
on to describe the sentence for Count 2 (Aggravated Assault of Law Enforcement Officer). Due lo the obvious typo,
this Court will treat Defendant's request as a request to reconsider the sentence for Count 2 and Count 6.
5l np.fPniC'"P .,.....n,nH'."Pl "11;-c-,�L-Pnl'--T ,...;,M
.._..
th.P {) r. � r ,,.....;..-n;n"'lll lJ.. tt,:::i,mn.tM u -.-n;, ;,....p 1.
trrr.11-nt __,. in th,:::i. 1nfrtrm"'llf;rr,n"\
I, ...................... LI-J .L..J .......,.. .._..L
_._. ....___..
J '\ ...__... _,,
j, which is 13; however, the sentence for which reconsideration was requested was Count 2 (Aggravated Assault of
Law Enforcement Officer), which has no O_G-5_ as it is an offense with a mandatory minimum pursuant to 42
, __;
Pa.CS.A.§ 9719_1
36
I
'I.
l
I
·1
l :I [has a P;R.S. of2; therefore, according to the Basic Sentencing Matrix, the Standard Range for
Defendant is only 72-90 months (6-7.5 years). This Court disagrees.
I'
High, 450 A.2d 158, 304 Pa.Super . .174, 1982; Com. v. Galloway, 448 A.2d 568, Super.1982;
I
I; I Com. v. Corson, 444 A.2d 170, 298 Pa.Super. 51, 1982; Com. v. Eiiison, 439 A.2d 136, 293
Pa.Super. 320 (1982). "[T]he extent of sentence is a matter within the discretion of the tria1 judge
r I - - -
and will not be disturbed if within the statutory limits." Com. v. Zelnick, 202 Pa. Super. 129,' 131,
195 A.2d 171, 173 (1963).
(a) (1) Basic sentence recommendations. Guideline sentence recommendations are
t'
based on the Offense GravityScore and Prior Record Score. In most cases, the sentence
. recommendations are found in the Basic Sentencing Matrix (§ 303.16(a)). The Basic
Sentencing Matrix specifies a range of sentences (i.e.--standard range) that shall be
considered by the court for each combination of Offense Gravity Score (OGS) and Prior
Re.c.ord Sc.ore (PRS).
I·.
l. . 204 P.S. § 303.9(a)[emphasis added].
(
Ii Ordinarily, sentencing guideiines are advisory, and when justified, a court acts weii
within its discretion to sentence outside the recommended ranges; Com. v. P.L.S., 894 A.2d 120,
Super. 2006, reargument denied, appeal denied 906 A.2d 542, 588 Pa. 780, habeas corpus
denied 2012 WL 1828073, denial ofpost-conviction relief affirmed 2017 WL 6330898, and
where no statutoriiy mandated sentence is implicated, trial judges in this Commonwealth are
vested with broad discretion in sentencing. Com. v. Rooney, 442 A.2d 773, 296 Pa.Super. 288
(
(1982).
However, where the legislature has deemed to enact a mandatory minimum term of
imprisonment, that statute must be followed and the standard guidelines in P.S. § 303.16(a)
"shall not supersede the-mandatory sentences provided." 42 Pa.C.S. § 9719.l(b).
37
42 Pa.C.S. § 9719.1 sets out the mandatory minimum term of imprisonment for the.
offense of Assault of Law Enforcement Officer.
(a) Mandatory sentence.--A person convicted of the following offense shall be
sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702.1 (a) (relating to assault of1aw enforcement officer)--not less than
20 years.
(b) Authority of court in sentencing.-There shall be no authority in any court to
impose on an offender to which this section is applicable any lesser sentence than
provided for in subsection (a) or to place such offender on probation or to suspend
sentence. Nothing in this section shall prevent the sentencing court from imposing a
sentence greater than that provided in this section. Sentencing guidelines promulgated
by the Pennsylvania Commission on Sentencing shall not supersede the mandatory
sentences provided in this section.
42 Pa.C.S. § 9719.l(a)-(b).
Here, Defendant was sentenced on Count 2 to the mandatory minimum term of 20
years imprisonment. The sentencing judge has no authority under 42 Pa.C.S. § 9719. I (b) to
order "any lesser sentence than provided for in subsection (a) or to place such offender on
probation or to suspend sentence." id. Defendant's argument that the sentence imposed is
outside the guidelines is mistaken as the standard range for 18 Pa.C.S. § 2702.1 (a) is 240
months (20 years) and the statutory max is 480 months (40 years).53
Therefore, this Court must deny Defendant's request as it has no authority under 42
Pa.C.S. § 9719. l(a)-(b) to impose anything less than 20 years, and the maximum sentence
imposed must be at least twice the length of the minimum.54
As regards Defendant's request that this Court modify his sentence for Count 6 to
run concurrent with the sentence imposed on Count 2, this Court is well within its discretion
5
J "( A]person convicted under subsection (a) shall be sentenced to a term of imprisonment fixed by the court at not
more than 40 years." 18 Pa.CS. § 2 702 _ I (b )_
54
See, 42 Pa_c_s_ §9756(b)(l)("'The court shall impose a minimum sentence of confinement which shall not exceed
one-half of the maximum sentence imposed.")
38
f -
in ordering the sentences to be served consecutively; Com. v. Wienckowski, 537 A.2d 866,
3 71 Pa.Super. 153 ( l 988)(decision whether to run multiple sentences concurrently or
consecutively is discretionary), and this Court will not alter or modify its decision in this
case.
CONCLUSION
Having addressed all of the issues and allegations made by Defendant in the foregoing
Opinion and finding every issue raised to be without merit, Defendant's requested relief is
DENIED.
An appropriate Order shall follow:
39
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fN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
PENNSYLVANIA
CRIMINAL DfVISION
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;cOMMONWEALTH OF PENNSYLVANIA
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j V. Case No: 2638 -2015
111_
l EARL L. HOLLINS
l, Defendant,
lj
II ORDER
I KNAFELC,J. APRIL , 2018
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) I AND NOW, to wit, this LP__ day of April, 2018, it is hereby ORDERED and DIRECTED that
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