Com. v. Zarubin, I. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISAAC ZARUBIN :
:
Appellant : No. 2887 EDA 2018
Appeal from the Judgment of Sentence Entered May 3, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010825-2016,
CP-51-CR-0011132-2016
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: Filed: August 20, 2020
Appellant, Isaac Zarubin, appeals from the judgment of sentence
following his conviction of aggravated assault, simple assault, reckless
endangerment of another person (“REAP”), possession of an instrument of
crime (“PIC”), and resisting arrest.1 We affirm.
On November 5, 2016, Appellant was arrested following an hours-long
series of assaults directed towards his domestic partner (“the victim”) in the
apartment they shared in West Philadelphia. Appellant also struck Officer
Roland Butler of the Philadelphia Police Department while Officer Butler
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a)(1), (3), 2701(a), 2705, 907(a), and 5104,
respectively.
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attempted to effectuate an arrest of Appellant. Appellant was charged at
docket number CP-51-CR-0010825-2016 (“No. 10825-16”) with aggravated
assault and simple assault of the victim, REAP, PIC, and contempt for violation
of a protection from abuse order or agreement.2 At docket number CP-51-
CR-0011132-2016 (“No. 11132-16”), Appellant was charged with aggravated
assault and simple assault of Officer Butler, REAP, and resisting arrest.
Appellant proceeded to a bifurcated non-jury trial on November 17,
2017 and December 18, 2017 before the Honorable Pamela Pryor Dembe. The
evidence at trial consisted of the testimony of the victim, Officer Butler, Officer
Jennifer Gainer, and a character witness for Appellant, as well as photos of
the victim, Appellant, and Officer Butler, and Appellant’s medical records.
The victim testified that he awoke on November 5, 2016 in a common
area outside the apartment he shared with Appellant on the 4200 block of
Chestnut Street in West Philadelphia, wearing nothing and with only a blanket
and pillow. N.T., 11/17/17, at 8-10. Appellant ultimately let the victim back
into the apartment, and the victim dozed off. Id. at 10-11. The next thing
that the victim recalled was a red object striking him in the head, which he
later learned was a frying pan. Id. at 9, 11.
Although the ensuing events were “all a blur,” the victim described
repeated attacks that occurred over the course of the day, including Appellant
striking him in the head with a metal bar that bent from the impact, Appellant
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2 23 Pa.C.S. § 6114(a).
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hitting him over the head with a framed picture causing the glass to shatter,
and Appellant striking him in various parts of the body with a wooden
decorative sword. Id. at 12, 17-19, 23, 41. Appellant also pulled the victim’s
chest binder – which was made of a heavy mesh material – up to the victim’s
neck, and then pulled down on it with both hands.3 Id. at 14-15, 19-23. The
victim described almost suffocating from the pressure of the chest binder on
his neck, but he eventually managed to duck his head and free himself from
the garment. Id. at 21-22. The victim further testified that Appellant bit his
left hand several times and said that the victim would never again be able to
play a musical instrument. Id. at 26.
Ultimately, the victim was able to escape the apartment when Appellant
turned his back. Id. at 27. When he approached a woman at a bus stop on
Chestnut Street, she asked him if “a bomb had gone off” and quickly dialed
911. Id. at 27-28. During a conversation with an EMT treating him at the
scene, the victim recalled that the first assault had taken place at 7:30 a.m.
and he was told that the time was then 4:30 p.m. Id. at 12, 34. The victim
was taken to the hospital where he was treated for various injuries including
a head wound that had caused significant bleeding and injuries to his left pinky
finger that had almost been bitten off. Id. at 12-14. In the ensuing days, the
victim noticed that he had sustained cuts and bruises all over his body, he
developed a prominent two-inch scar on his upper left chest from the chest
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3Both Appellant and the victim are transgender men; a chest binder is a type
of garment that transgender men wear on their chest. N.T., 11/17/17, at 15.
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binder, and he continued to suffer from spasms in his left hand which had
hindered his career as a musician. Id. at 14-16.
Officer Butler testified that he was the first officer responding to the
scene, and after assessing the situation he informed Appellant that he would
be placed under arrest. N.T., 12/18/17, at 7-10. However, because Appellant
was wearing only boxer shorts, Officer Butler let him go back to his apartment
to put on more clothing. Id. at 10. Once back at his apartment, Appellant
became defiant and refused to comply with Officer Butler’s verbal directives.
Id. at 10-11. Officer Butler then called for back-up. Id. at 11. Officer Butler
attempted to grab Appellant’s arm several times, but Appellant repeatedly
wriggled away. Id. On the third attempt, Officer Butler grabbed Appellant’s
arm and wrestled him to the ground; however during the scuffle Appellant
struck Officer Butler two or three times in the face with his closed fist. Id.
Officer Butler testified that he punched Appellant approximately three to four
times during the struggle. Id. at 18.
Officer Butler was able to place Appellant on his stomach, but Appellant
refused to put his hands behind his back to be handcuffed. Id. at 12. Officer
Gainer’s partner then attempted to tase Appellant, but one of the prongs
missed. Id. After more struggle, the officers were eventually able to get
access to Appellant’s arms and handcuff him. Id. Officer Butler noticed
Appellant to be bleeding from his mouth after he was arrested. Id. at 12-13.
Officer Butler sustained a bruised thumb during the incident and had his
thumb placed in a splint. Id. at 13-14.
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Officer Gainer testified that she arrived with her partner to the
apartment as back-up for Officer Butler while he was in the midst of a struggle
with Appellant. N.T., 11/17/17, at 51. Officer Gainer stated that she saw
Appellant first throw several punches towards Officer Butler’s torso before
Officer Butler struck him in the face in response. Id. at 51-52. Officer Gainer’s
partner deployed the taser and the three officers were ultimately able to
complete the arrest of Appellant. Id. at 52-53. Once the arrest was
completed, Officer Gainer approached the victim who was being treated by
EMTs; Officer Gainer testified that the victim was shaken and scared and she
noticed cuts to his hands, head, and face. Id. at 54-55.
Appellant presented the testimony of Adyn Glaum, who resided with
Appellant and had known Appellant for approximately six months as of the
date of trial. N.T., 12/18/17, at 21. Glaum testified that Appellant had a
reputation in the community for being a law-abiding citizen and a peaceful
person. Id. at 21-22.
At the conclusion of trial, the trial court found Appellant guilty of
aggravated assault, simple assault, REAP, and PIC at No. 10825-16 and
aggravated assault, simple assault, and resisting arrest at No. 11132-16.4
Judge Dembe retired shortly after the trial, and the matter was reassigned to
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4 Appellant was found not guilty of REAP at No. 11132-16, and the
Commonwealth nolle prosed the contempt for violation of a protection from
abuse order or agreement charge at No. 10825-16. N.T., 12/18/17, at 20,
39-40.
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the Honorable Zachary C. Shaffer. On May 3, 2018, Judge Shaffer sentenced
Appellant to an aggregate term of imprisonment of three to six years followed
by a four year period of probation. Appellant filed a timely post-sentence
motion, which was denied by operation of law on September 11, 2018.
Appellant thereafter filed a timely appeal.5
Before we reach the merits of the appeal, we must address whether this
appeal must be quashed pursuant to Rule of Appellate Procedure 341(a) and
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), because Appellant
filed an identical notice of appeal at both No. 10825-16 and No. 11132-16,
listing both docket numbers on the notice. On December 21, 2018, this Court
issued a rule directing Appellant to show cause why his appeal should not be
quashed in light of Walker. Appellant filed a response, and, on February 26,
2019, this Court entered an order discharging the rule, but stating that the
issue would be referred to the panel considering the merits of his appeal.
Rule 341(a) provides in relevant part that “an appeal may be taken as
of right from any final order of a government unit or trial court.” Pa.R.A.P.
341(a). In 2013, the Official Note of Rule 341 was amended to provide the
following clarification regarding compliance with Rule 341(a):
Where . . . one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate
notices of appeal must be filed. Commonwealth v. C.M.K., 932
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5Appellant filed his concise statement of errors complained of on appeal on
November 5, 2018, and Judge Shaffer issued an opinion on November 29,
2018.
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A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Walker, the Commonwealth filed a single notice of appeal from an
order that granted four motions to suppress filed by four separate defendants
at four docket numbers. 185 A.3d at 971-72. The Court noted that
Pennsylvania appellate courts had historically declined to quash a single notice
of appeal challenging multiple appealable orders, but concluded that the 2013
amendment to the Official Note of Rule 341 establishes “a bright-line
mandatory instruction to practitioners to file separate notices of appeal.” Id.
at 974-77. Thus, the Court held that “when a single order resolves issues
arising on more than one lower court docket, separate notices of appeal must
be filed.” Id. at 977. The Court stated that the failure to comply with this
rule requires the quashal of an appeal, but that this rule would only apply
prospectively from the date that decision was issued. Id. at 977.
Appellant argues that he complied with the rule announced in Walker
because he electronically filed two separate notices of appeal, one on each of
the trial court dockets. Response to Rule to Show Cause, 12/28/18, ¶9.
Appellant contends that the separate filings can be seen by the fact that the
Clerk of Courts affixed an electronic time stamp on the top right-hand corner
showing that the notices were filed two minutes apart. Id., Exhibits A, B.
We agree with Appellant that Walker is not implicated in this case. In
Commonwealth v. Jerome Johnson, ___ A.3d ___, 2020 PA Super 164-7-
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(filed July 9, 2020) (en banc), an en banc panel of this Court recently clarified
that Walker does not require quashal of an appeal where the appellant filed
a separate notice of appeal at each docket number resolved by the order from
which the appeal is taken. Id. at *11-12. In Jerome Johnson, the appellant
filed four separate notices of appeal from an order resolving issues at four
lower court dockets, with each of the notices listing all four docket numbers
but with one docket number italicized on each of the separate notices to
indicate to which case the notice pertained. Id. at *3, *10. This Court
determined that the notices were in compliance with Walker and Rule 341
because “separate” notices were filed at each docket. Id. at *11.
Furthermore, this Court held that Walker does not require the quashal of an
appeal simply by virtue of an appellant’s inclusion of two or more docket
numbers on a notice of appeal. Id. at *12.
In the subsequent en banc decision of Commonwealth v. Rebecca
Johnson, ___ A.3d ___, 2020 PA Super 173 (filed July 23, 2020) (en banc),
this Court reinforced its holding that compliance with Walker does not
necessitate individualized notices of appeal for each matter being appealed
that list only one docket number. Id. at *2-3. In Rebecca Johnson, the
appellant filed one notice of appeal listing three docket numbers from an order
resolving matters at three docket numbers; however, this Court was able to
discern that the notice was filed separately at each of the three lower court
dockets because the clerk of courts had affixed distinct time stamps on each
notice. Id. at *3. We therefore did not quash the appeal. Id. at *4.
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Here, our review of the record demonstrates that Appellant filed a
separate notice of appeal on each docket, which can be seen from the time
stamps on each of the notices showing that the notice in No. 10825-16 was
filed at 9:20 a.m. on October 3, 2018 and the notice in No. 11132-16 was
filed two minutes later at 9:22 a.m. Although the two notices each list both
trial court docket numbers, this fact is irrelevant to our analysis under
Walker. Therefore, in accordance with Jerome Johnson and Rebecca
Johnson, the instant notices of appeal do not run afoul of Rule 341 and
Walker, and we may proceed to the merits of this appeal.
Appellant presents the following issue on appeal: “Was not the verdict
of guilt against the weight of the evidence to such a degree as to shock the
conscience?” Appellant’s Brief at 3. Appellant asserts that “the evidence
against [him] is riddled with inconsistencies and impossibilities,” and in
particular that the victim’s account was “nothing more than a vague and
disordered list of supposed assaults,” that fails to hold up even under the most
cursory assessment. Appellant’s Brief at 11-12. Appellant in particular points
to the victim’s inability to explain how he found himself outside the apartment
on the morning of the incident, how the fight started, and how Appellant was
able to restrain him throughout the course of the day despite the fact that
Appellant was several inches shorter than the victim and weighed much less
than the victim. Appellant also contends that the victim’s assertion that he
never struck Appellant was contradicted by his testimony at the preliminary
hearing that he punched Appellant one or two times.
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Appellant further challenges the evidence with respect to the assault of
Officer Butler. Appellant asserts that Officer Butler’s account that he did not
strike Appellant until they were on the floor conflicted with the testimony of
Officer Gainer that punches were exchanged while Officer Butler and Appellant
were still standing. According to Appellant, Officer Butler’s recounting of the
incident is undermined by his minimizing of any injury to Appellant, despite
the fact that medical records submitted at trial showed that he suffered
multiple facial fractures, a broken jaw, two knocked out teeth, and required
stiches over the right eye.
Appellant contrasts this testimony with evidence that he had a peaceful
and law-abiding reputation in the community. In light of the “contradictory
and evasive testimony from the Commonwealth’s witnesses, testimony that
was belied by [Appellant’s] medical records, testimony that was contradicted
by other Commonwealth witnesses (in the case of the officers) or the witness
himself (in the case of [the victim])[,]” Appellant contends that his convictions
were so contrary to the evidence to shock the conscience and require a new
trial. Id. at 16.
Generally, our review of weight-of-the-evidence claims is “extremely
limited” and solely “consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the verdict is
against the weight of the evidence.” Commonwealth v. Rosser, 135 A.3d
1077, 1090 (Pa. Super. 2016) (en banc) (citation omitted). However, in this
case, the trial judge, Judge Dembe, retired prior to Appellant’s sentencing and
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therefore did not have the opportunity to address Appellant’s weight-of-the-
evidence arguments. While Judge Shaffer ruled on this issue in his Pa.R.A.P.
1925(a) opinion, in so doing he was not “aided by an on-the-scene evaluation
of the evidence” and instead did so from a “vantage point[]” not dissimilar to
that of an appellate court’s review of a “cold record.” Armbruster v.
Horowitz, 813 A.2d 698, 703 (Pa. 2002) (citation omitted).
In such cases, our Supreme Court has explained that an exception exists
to our general standard of review such that “where a properly preserved
weight of the evidence claim is raised on appeal and the judge who presided
at trial failed to rule on the claim and is now permanently unavailable to do
so, the claim must be reviewed by the appellate tribunal in the first instance.”
Id. at 705. Accordingly, our scope of review is plenary and “[o]ur role [] is
to review the entire record and determine whether the successor judge
correctly determined that the [trier of fact’s] verdict was not against the
weight of the evidence.” Commonwealth v. Izurieta, 171 A.3d 803, 809
(Pa. Super. 2017).
The role of a court in addressing a weight-of-the-evidence claim 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.” Id. (citation omitted). “It has often been stated that
a new trial should be awarded when the [] verdict is so contrary to the
evidence as to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail.” Id.- 11 -
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(citation omitted). “A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Id. (citation omitted). “Resolving
contradictory testimony and questions of credibility are matters for the
factfinder” rather than the reviewing court. Commonwealth v. Cramer, 195
A.3d 594, 600 (Pa. Super. 2018) (citation omitted).
Reviewing the evidence in light of Appellant’s weight of the evidence
claim, Judge Shaffer determined that the arguments as to both the victim and
Officer Butler were without merit. Trial Court Opinion, 11/29/18, at 7-8. With
respect to the victim, Judge Shaffer observed that his testimony established
an assault stretching over multiple hours in which he was struck on the head
with multiple objects and strangled nearly to the point of suffocation. Id. at
7. In light of the severe trauma the victim endured, Judge Shaffer concluded
that it was entirely plausible that the victim focused solely on his survival and
was not able to escape the apartment sooner. Id. With respect to Officer
Butler, Judge Shaffer determined that uncontroverted testimony from Officer
Butler and Officer Gainer established that Appellant actively resisted Officer
Butlers’ attempt to arrest him and Appellant struck Officer Butler several
times. Id. at 7-8.
Upon our review of the record, we agree with Judge Shaffer that
Appellant’s convictions are not against the weight of the evidence. The record
establishes that Appellant struck and choked the victim with multiple objects
over the course of several hours and that he struck Officer Butler several times
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with his fists while resting arrest. N.T., 11/17/17, at 9, 11, 14-15, 17-23, 26,
41, 51-52; N.T., 12/18/17, at 10-12. Appellant attempts to undermine the
veracity of the victim’s account by questioning the victim’s imprecise timeline
of the assaults and why the victim did not fight back against Appellant or
escape sooner. However, Appellant probed each of these issues during cross-
examination of the victim and therefore these matters were before Judge
Dembe as the trier of fact. Specifically, the victim explained on cross-
examination that his memory of the November 5, 2016 incident was “a blur”
because of the blows he received to his head, but that he could remember the
events that happened that day even if he could not recall the exact sequence
of events. N.T., 11/17/17, at 40. The victim also testified that he
unsuccessfully attempted to escape the apartment on several occasions, but
Appellant prevented him from getting through the door by “[p]ushing,
shoving, kicking, hitting [the victim] with objects.” Id. at 38. Furthermore,
the victim stated that he could not overpower Appellant to get out of the
apartment because he “was not that strong” and he “was trying to get out of
the way and not get killed.” Id. at 38.
We find none of the alleged vague and inconsistent testimony by the
victim to be “so clearly of greater weight [than the evidence probative of guilt]
that to ignore them or to give them equal weight with all the facts is to deny
justice.” Izurieta, 171 A.3d at 809 (citation omitted). Furthermore, to the
extent Appellant asks us to reassess the victim’s credibility, we cannot do so
as resolving issues related to credibility and conflicting evidence were matters
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solely entrusted to Judge Dembe as the trier of fact. Cramer, 195 A.3d at
600.
Appellant also challenges the victim’s account based upon purported
inconsistencies between the victim’s trial testimony and his preliminary
hearing testimony. Specifically, in response to a question at the preliminary
hearing “[h]ow many times did you punch” Appellant, the victim responded
“[o]nce, and maybe twice just when he was biting my hand.” N.T., 12/18/17,
at 26-27.6 By contrast, at trial, when asked whether he “hit” or “struck”
Appellant, the victim stated that he “shoved him away to get my finger out of
his bite, and I shoved him away to get his bite out of the chunk of my hand
[sic].” N.T., 11/17/17, at 34-35. The victim then explained that he was “a
pacifist” and he did not “believe in hitting back.” Id. at 35. To the extent any
inconsistency exists in this testimony, it appears to be only a minor distinction
between the meaning of a “punch” and a “shove.” In any event, the alleged
inconsistency was presented to Judge Dembe who did not find that it
undermined the victim’s credibility. We may not second guess that
determination.
Appellant also challenges the weight of the evidence at No. 11132-16,
arguing that the significant injuries Appellant sustained during his arrest
undermine his convictions for resisting arrest and assault of Officer Butler.
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6 While the transcript of the preliminary hearing is not contained in the
certified record on appeal, this portion of the preliminary hearing transcript
was read into the record at trial.
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However, Officer Butler readily conceded that he punched Appellant three or
four times in the face in response to Appellant’s blows. N.T., 12/18/17, at 11-
12, 18. The fact that Appellant sustained more serious injuries than Officer
Butler does not negate the evidence of Appellant’s assault of Officer Butler.7
Finally, Appellant argues that Officer Butler and Officer Gainer offered
contrasting testimony regarding at what point Officer Butler and Appellant
exchanged punches during their struggle. Officer Butler testified that he
grabbed for Appellant’s arm several times, they fell to the floor, and then they
exchanged punches. N.T., 12/18/17, at 11-12. On the other hand, Officer
Gainer first stated during her testimony that Officer Butler was wrestling for
Appellant’s arm while standing, they began exchanging punches, and then the
two fell to the ground; however, later Officer Gainer indicated that Appellant
and Officer Butler punched each other after they were on the ground. N.T.,
11/17/17, at 51, 60-61. Once again, it is the responsibility of the trier of fact,
rather than reviewing courts, to resolve conflicts of evidence. Cramer, 195
A.3d at 600. We do not find that the apparent discrepancy between the
officers’ testimony renders Appellant’s convictions for resisting arrest and
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7 We note that Appellant’s aggravated assault conviction at No. 11132-16 fell
under Section 2702(a)(3) of the Crimes Code, which applies to assaults of
police officers in the performance of their duty and does not require that bodily
injury be “serious.” 18 Pa.C.S. § 2702(a)(3) (“A person is guilty of aggravated
assault if he . . . attempts to cause or intentionally or knowingly causes bodily
injury to any [police] officer[] in the performance of duty”.).
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assault of Officer Butler so contrary to the evidence to shock one’s sense of
justice. Appellant’s appeal thus merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/20
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