Com. v. Fetters, B., Jr. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRUCE STEPHEN FETTERS, JR. :
:
Appellant : No. 2029 MDA 2019
Appeal from the Judgment of Sentence Entered October 24, 2019
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000371-2018
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 02, 2020
Bruce Fetters, Jr., appeals from the judgment of sentence entered after
a jury convicted him of simple assault, aggravated assault, and recklessly
endangering another person (“REAP”), arising from an altercation where he
shot Scott Powell.1 Fetters admitted to shooting Powell, but asserted that he
acted in self-defense.
On appeal, Fetters argues that the trial court erred in failing to instruct
the jury on the “stand your ground” defense set forth in 18 Pa. C.S.A. §
505(b)(2.3). He also claims the court erred in admitting evidence of his simple
assault conviction under Rule 404(b)(2) of the Pennsylvania Rules of Evidence.
After careful review, we affirm.
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1See 18 Pa. C.S.A. §§ 2701(a)(1) and (a)(2), 2702(a)(1) and (a)(4), and
2705.
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Fetters and Powell were brothers-in-law and long-term acquaintances,
but had a volatile relationship. The altercations between Fetters and Powell
were frequent and sometimes violent. During one incident, Fetters stabbed
Powell multiple times with a knife. Yet, despite the animus between them,
Fetters and Powell occasionally smoked marijuana together. The act of sharing
marijuana cigarettes and “toking up” together generally eased the tension in
their relationship. However, in this case, marijuana or, more accurately, the
lack thereof ignited a near fatal altercation between Fetters and Powell.
At the time of this altercation, Fetters and his wife, who was Powell’s
sister, shared a home with Powell. One morning Powell returned from work
and sought to unwind by smoking a marijuana cigarette. Powell went to the
basement to retrieve his marijuana, but was unable to locate it. As he
searched the basement, Powell concluded that Fetters likely stole the
marijuana and smoked it.
A visibly angry Powell confronted Fetters about the missing marijuana
and a verbal confrontation ensued. As the confrontation escalated, Fetters
retreated from the home to an adjacent roadway. Powell trailed Fetters,
yelling insults and threats, and eventually closed the distance between them.
According to Fetters, Powell threw a series of punches, but none landed on
Fetters. Nonetheless, Fetters believed his life was in imminent danger.
Fetters had a 9-millimeter handgun concealed on his waist. As Powell
encroached on Fetters’s personal space, Fetters removed his weapon and fired
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a warning shot into the air. Powell did not give ground. Moments later, Fetters
pressed the gun’s barrel against Powell’s stomach and fired a non-fatal shot.
After doing so, Fetters put down his firearm, called the police, and waited for
their arrival.
The Commonwealth filed an information and charged Fetters with
attempted homicide, aggravated assault, simple assault, and REAP. The
Commonwealth later filed a motion in limine seeking to introduce evidence of
Fetters’s prior conviction for stabbing Powell. In its motion, the
Commonwealth asserted that, under Pa.R.E. 404(b)(2), Fetters’s prior assault
conviction was admissible to prove motive, intent, malice or ill-will towards
Powell in the present case. The trial court granted the motion, and the case
proceeded to a jury trial.
After the evidentiary phase of trial, the court indicated that it would give
a jury instruction on self-defense. In addition, Fetters requested a separate
“stand your ground” jury instruction, which the court denied. Thereafter, the
jury convicted Fetters of two counts of aggravated assault, two counts of
simple assault, and REAP. The court sentenced Fetters to 62 to 150 months’
incarceration.
Following his conviction and sentencing, Fetters filed a post-sentence
motion requesting a new trial. In his motion, Fetters argued he was entitled
to a new trial because the trial court erred in failing to instruct the jury on
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“stand your ground” and admitting evidence of Fetters’s prior conviction. The
trial court denied the motion, and this timely appeal followed.
Fetters presents the following issues for our review:
(1) Whether the Court abused its discretion or committed error of
law by refusing to instruct the jury with the stand your ground
self-defense instruction under 18 Pa. C.S.A. § 505(b)(2.3), on the
basis that no weapon readily or apparently capable of lethal use
was present?
(2) Whether the Court abused its discretion or committed an error
of law allowing admission of [Fetters’s] prior conviction of simple
assault under Pa.R.E. 404(b)?
Appellant’s Brief, at 2.2
In his first issue, Fetters argues that the trial court erred in refusing to
give the “stand your ground” instruction on the basis that Powell did not have
a weapon readily or apparently capable of lethal use. He claims that issue was
for the jury, not the trial court, to determine. However, as Fetters failed to
preserve this issue before the trial court in the first instance, we find this issue
waived on appeal.
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2 In his brief, Fetters also challenged the trial court’s failure to instruct the
jury on the constitutional and common law stand your ground defenses that
exist independent of Pennsylvania’s justification statute. See Appellant’s Brief,
at 2. However, Fetters waived this issue by failing to raise it in his Pa.R.A.P.
1925(b) statement. See Pa.R.A.P. 1925(b)(3)(iv) (“[A]ny issue not properly
included in the [s]tatement timely filed and served pursuant to subdivision (b)
shall be deemed waived.”); see also Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be
deemed waived.”). Therefore, we decline to address the merits of Fetters’s
claim.
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To preserve a challenge to the adequacy or omission of a particular jury
instruction, the Pennsylvania Rules of Criminal Procedure require that a party
make a specific and timely objection before the jury retires to deliberate. See
Pa.R.Crim.P. Rule 647(C). “[T]he mere submission and subsequent denial of
proposed points for charge that are inconsistent with or omitted from the
instructions actually given will not suffice to preserve an issue, absent a
specific objection or exception to the charge or the trial court’s ruling
respecting the points.” Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa.
2015). “Although obligating counsel to take this additional step where a
specific point for charge has been rejected may appear counterintuitive,”
Pa.R.Crim.P. 647(B) requires a subsequent objection to the rejection or the
charge as given in order to preserve the issue for appellate review.
Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005).
Here, we find no place in the record where Fetters preserved his request
for a jury instruction on “stand your ground.” While Fetters presented
arguments in support of the proposed charge, the trial court declined to give
the instruction and defense counsel failed to object to the trial court’s ruling.
See N.T., Jury Trial, 08/07/2019, at 293-309. Defense counsel also made no
objection when the trial court revisited the “stand your ground” instruction
and confirmed its initial ruling. See id., at 320-322. Instead, defense counsel
indicated, at least tacitly, that he accepted the trial court’s ruling and failed to
raise the issue before the jury retired to deliberate. See id., at 408-409. As
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such, Fetters waived any claim of error regarding the “stand your ground”
instruction.
However, even if Fetters preserved this issue for appellate review, it
merits no relief. The “stand your ground” law eliminates the duty to retreat
where a person is confronted, through no fault of his own, with a potentially
deadly situation. See 18 Pa. C.S.A. § 505(b)(2.3). The law provides that a
person has the right to stand his ground and use force, including deadly force,
if the person against whom the force is used displays a firearm or any other
weapon readily or apparently capable of lethal use. See 18 Pa. C.S.A. §
505(b)(2.3)(iii)(A) and (B).
In its opinion, the trial court explained that it denied the “stand your
ground” instruction “because the testimony presented at trial showed that at
most there was shoving between [Fetters] and [Powell].” Trial Court Opinion,
01/07/20, at 2. The court also found that if Powell threw any punches at
Fetters, none of them ever connected. See id., at 2. As such, the trial court
concluded that, absent a weapon capable of deadly force, it was proper to
deny Fetters’s request for a jury instruction on “stand your ground.” See id.
Our review of the record supports the trial court’s conclusion. The
evidence presented at trial, especially the recording of Fetters’s interview with
police, showed there was no basis for a “stand your ground” instruction.
Fetters conceded to police that Powell did not have a weapon at any time
during the altercation. There was also no evidence that the punches allegedly
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thrown by Powell ever landed on Fetters. Further, the pictures taken of Fetters
at the state police barracks failed to corroborate Fetters’s account of the
altercation, as there were no bruises or scratches on Fetters’s face and body.
Therefore, even if the issue had been properly preserved, we would conclude
this claim fails.
Next, Fetters argues that the trial court erred in admitting evidence of
his prior assault conviction under Pa.R.E. 404(b)(2). In particular, he claims
that, while the underlying conduct is relevant, the conviction itself is irrelevant
and highly prejudicial. However, since there was no objection to this evidence
at trial, Fetters has also waived this issue on appeal.
As our Supreme Court stated, “[i]t is a bedrock appellate principle that
issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa.
2013) (citation omitted). Therefore, in order to preserve a challenge to the
admission of evidence, a party must make a timely objection at the
appropriate stage of the proceedings. See Commonwealth v. Shamsud-
Din, 995 A.2d 1224, 1228 (Pa. Super. 2010). Failure to object automatically
results in waiver of a claim. See Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1289 (Pa. Super. 2004) (en banc).
Here, the record reveals that Fetters failed to object to testimony
regarding his prior conviction for stabbing Powell with a knife. See N.T., Jury
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Trial, 08/06/2019, at 99. Thus, we conclude Fetters waived this claim on
appeal. However, even if Fetters had preserved this claim, it fails nonetheless.
Evidence of other crimes, while generally not admissible to prove bad
character or criminal propensity, is admissible to prove some other relevant
fact. See Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017); see
also See Pa.R.E. 404(b)(1). Such evidence may be admitted to show motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or lack of accident. See Pa.R.E. 404(b)(2). However, before admitting
this evidence, a court must balance the probative value of the evidence for
these purposes against the potential for undue prejudice. See id. Further, the
factual predicate of the prior conviction must also have a significant connection
to the relevant facts of the present case. See Commonwealth v. Ross, 57
A.3d 85, 104 (Pa. Super. 2012) (en banc).
As stated above, the trial court admitted Fetters’s prior conviction for
the limited purpose of establishing motive, intent, malice and absence of
mistake or accident in the present case. While Fetters claims the testimony
about his prior conviction prejudiced him at trial, he acknowledges there is no
binding precedent to support his position. Instead, he relies on persuasive
authority in the form of Professor Edward Ohlbaum’s treatise on the
Pennsylvania Rules of Evidence, which states evidence of a conviction is
unfairly prejudicial.
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Arguably, all evidence introduced by the Commonwealth at trial is
prejudicial. Unfair prejudice, however, requires that the prejudice had the
effect of suggesting an improper basis for a conviction or inflaming the jury’s
passions such that it cannot render an impartial verdict. See Commonwealth
v. Jemison, 98 A.3d 1254, 1262 (Pa. 2015). “The admission of evidence
becomes problematic only when its prejudicial effect creates a danger that will
stir such passion in the jury as to sweep them beyond a rational consideration
of guilt or innocence of the crime on trial.” Commonwealth v. Sherwood,
982 A.2d 483, 498 n.25 (Pa. 2009) (internal quotation marks omitted). But
we find that evidence of Fetters’s prior conviction created no such danger at
trial. The trial court properly balanced the probative value of Fetters’s prior
conviction against its prejudicial impact and determined the evidence would
not inflame the passions of the jury. Therefore, this claim merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2020
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