Com. v. Brown, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANTE BROWN :
:
Appellant : No. 667 EDA 2020
Appeal from the Judgment of Sentence Entered January 27, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006326-2017
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: Filed: April 1, 2021
Appellant, Dante Brown, appeals from the judgment of sentence entered
on January 27, 2020. Following a bifurcated trial, a jury found Appellant guilty
of carrying a firearm without a license and carrying a firearm in public in
Philadelphia.1 On the same date, the trial court found Appellant guilty of
persons not to possess a firearm.2 After careful review, we affirm.
The trial court set forth the following factual history:
On May 15, 2017, around 2:30 a.m., Ryan Lowry (the
complainant, herein “Lowry”) pulled into the drive-through line at
McDonald’s, located at 3725 Aramingo Avenue in Philadelphia.
(N.T. 11/13/19 at 124). Lowry admitted that, earlier that night,
he started drinking alcohol around 8:45 p.m. and stopped drinking
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6106(a)(1) and 6108, respectively.
2 18 Pa.C.S. § 6105(a)(1).
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around 1:30 a.m. (Id. at 134). He explained that he consumed
about five ten-ounce cans of Miller Lite beers and four to six shots
of whiskey. (Id.). Lowry testified that when he pulled into
McDonald’s, he “abruptly” stopped in line behind Appellant’s
vehicle, a 2002 Chevy Trailblazer. (Id. at 125-26, 113).
Immediately thereafter, Appellant exited his vehicle and accused
Lowry of striking his SUV. (Id. at 125). Although Lowry did not
observe any damage on Appellant’s vehicle, he apologized and
offered Appellant forty dollars to pay for his and his passenger’s
meal. (Id.). The two briefly argued, and Appellant returned to his
vehicle. (Id.). After a few minutes, Appellant again exited his
vehicle, aggressively approached Lowry, and demanded $100.
(Id. at 126).
After a second argument ensued, Lowry stepped out of his
vehicle to confront Appellant. (Id. at 127). Lowry[,] who was an
armed, off-duty Pennsylvania State Trooper at the time[,] testified
that he removed his holstered handgun from his waistband,
opened the rear driver’s–side door, and threw the weapon on the
floorboard. (Id.). Lowry closed the door and put his hands in a
“fighting stance.” (Id. at 52, 127). Appellant quickly circled
around Lowry’s vehicle, dove across the back seat, and grabbed
Lowry’s firearm (Id. at 127). Lowry immediately attempted to
retrieve the weapon. (Id.). The two “tussled” for control of the
firearm (Id. at 53-54), but Appellant maintained his possession of
the weapon. (Id. at 127). Appellant, who was still holding the
gun, ran to his vehicle and fled the scene. (Id. at 128). Lowry
returned to his vehicle and followed Appellant. (Id. at 129).
An independent eyewitness, Darryl Barkley (“Barkley”),
testified to a nearly identical set of facts. Barkley stated that he
pulled into the McDonald’s drive-through directly behind Lowry.
(Id. at 48). Barkley testified that when he arrived, Lowry and
Appellant were speaking to each other with “escalated” voices.
(Id. at 49). Barkley saw both men return to their vehicles. (Id.).
A few minutes later, [Barkley] saw Appellant and Lowry engaged
in a second argument outside of Lowry’s vehicle. (Id. at 50).
[Barkley] testified that he saw Lowry lift his shirt, which enabled
him to see Lowry’s holstered gun. (Id. at 51). Upon realizing that
Lowry was armed, [Barkley] called 9-1-1. (Id. at 52).
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[Barkley] continued to observe the altercation as he spoke
to the emergency dispatcher. (Id. at [53-54]). He testified that
he saw Lowry remove his firearm and throw it in his car, before
approaching Appellant in a “fighting stance.” (Id. at 52). [Barkley]
explained that Appellant briefly “approached” Lowry but quickly
circled around him, opened the car door, and grabbed Lowry’s
gun. (Id.). [Barkley] then witnessed the two men “tussl[e]” for
control of the weapon, (Id. at [53]). When Lowry and Appellant
drove out of the McDonald’s parking lot, [Barkley] followed. (Id.
at 55). [Barkley] stayed on the phone with the 911 dispatcher
and provided details on the evolving location of the chase. (Id. at
56-62).
All three vehicles drove from McDonald’s, turned onto
Richmond Street, and continued west on Tioga Street. (Id. at 61,
85, 129). The chase ended when the parties saw police vehicles
with activated overhead lights driving east on Tioga Street. (Id. at
85, 129). Once all three vehicles stopped and police arrived,
[Barkley] pointed to Appellant’s vehicle and told officers that he
was “the guy” with the gun. (Id. at 63). Officer William Eiser
(“Officer Eiser”) and Officer Joseph Payeski (“Officer Payeski”)
ordered Appellant and his female passenger (who identified
herself as Appellant’s girlfriend) out of the vehicle. (Id. at 86-87[,
105]). Officer Payeski recovered Lowry’s firearm from the driver’s
seat of Appellant’s vehicle and placed it on property receipt
#3302541. (Id. at 105; Comm. Ex. 5). Officer Payeski also
completed an accident report, noting that there was “no visible
damage” to either vehicle. (Id. at 112-14).
Officers arrested Appellant and Lowry. (Id. at 90-91).
Although no officer administered a sobriety test, Lowry was
arrested for a suspected [driving under the influence (“DUI”)].
(Id. at 90). Officers transported Lowry to the Police Detention
Unit, where he submitted to a breathalyzer test, which revealed a
.18 blood alcohol content (“BAC”). (Id. at 140-41). Lowry was
later accepted into Veteran’s Court, a diversionary program, and
successfully completed that program. (Comm. Mot. at 3). He was
discharged from supervision on May 17, 2018. (Comm. Mot. at 3).
Trial Court Opinion, 7/17/20, at 2-4.
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Following a bifurcated trial, the jury found Appellant guilty of carrying a
firearm without a license and carrying a firearm in public in Philadelphia. On
the same date, following a waiver trial, the court found Appellant guilty of
persons not to possess a firearm.3 On January 27, 2020, the court sentenced
Appellant to five to ten years of incarceration for persons not to possess a
firearm and three years of probation for carrying a firearm without a license.
Order of Sentence, 1/27/20. No further penalty was imposed for carrying a
firearm in public in Philadelphia. Appellant filed a notice of appeal on
February 14, 2020. The trial court ordered Appellant to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Order, 3/16/20. After
seeking and receiving an extension of time to file his Rule 1925(b) statement,
Appellant timely filed it on May 11, 2020. Appellant presents the following
questions for our review:
1. Did not the lower court err in granting the Commonwealth’s
motion in limine to preclude the admission of any expert testimony
or report from Dr. Guzzardi and any evidence or cross-
examination regarding [Lowry’s] DUI case and internal affairs
investigation, thereby violating [Appellant’s] rights to present a
defense and cross-examine witnesses as guaranteed by the
Pennsylvania and Federal Constitutions?
2. Did not the lower court err in failing to instruct the jury that
[Appellant] was justified by necessity under 18 Pa.C.S. § 503, as
[Appellant’s] actions of removing a firearm from the scene, so that
[Lowry], an intoxicated and aggressive police officer, who adopted
a fighting stance in response to monetary negotiations in the
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3 At the waiver trial, the parties stipulated that Appellant was ineligible to
possess a firearm because he had previously pled guilty to attempted murder
at docket number CP-51-CR-1103791-2000. N.T., 11/15/19, at 18.
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course of an alleged fender bender, would not be able to do harm
to him or others was justified under 18 Pa.C.S. § 503.
Appellant’s Brief at 4.
In Appellant’s first claim of error, he alleges that the trial court erred
when it granted the Commonwealth’s motion in limine. Appellant’s Brief at
12. The motion sought to preclude Appellant from introducing expert
testimony regarding Lowry’s level of intoxication, his ability to perceive the
events as they transpired, and his ability to recall those events at a later time.
Commonwealth’s Motion in Limine to Preclude Evidence, 11/28/18. The
motion also sought to preclude the admission of evidence concerning
procedures of the internal affairs department, the special investigation unit of
the District Attorney, the disposition of Lowry’s case, and any disciplinary
action taken against Lowry. Id.
Our standard of review is well established:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard. A
trial court has broad discretion to determine whether evidence is
admissible, and a trial court’s ruling regarding the admission of
evidence will not be disturbed on appeal unless that ruling reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support to be clearly erroneous.
Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014) (citations
and quotation marks omitted).
In the first part of his first question, Appellant alleges that the trial court
erred in granting the motion in limine to exclude the testimony of Dr. Lawrence
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Guzzardi (“Dr. Guzzardi”). Appellant’s Brief at 17. Pennsylvania Rule of
Evidence 702 governs the admissibility of expert testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702. Expert testimony is not permitted on the issue of witness
credibility because “[w]e have consistently maintained that a lay jury is
capable of determining whether a witness is lying, and thus expert testimony
is not permissible as to the question of witness credibility.” Commonwealth
v. Alicia, 92 A.3d 753, 760 (Pa. 2014).
In support of his appeal, Appellant posits that the trial court
misunderstood the thrust of Appellant’s argument. Appellant’s Brief at 18.
Appellant asserts that he sought to introduce the testimony of Dr. Guzzardi
reflecting that due to Lowry’s level of intoxication, “his perceptions, judgment,
memory, and inhibitions would have been markedly affected.” Id. (citing
Expert Report, Exhibit C). Appellant further avers that Dr. Guzzardi
“ultimately concluded that Lowry’s ‘recollections of the incident must be
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considered unreliable and distorted … they cannot be considered reliable.’”
Id. (citing Trial Court Opinion, 7/17/20, at 5-6; Exhibit C).
Appellant argues that the trial court improperly conflated credibility and
reliability. Appellant’s Brief at 18. Appellant suggests that Dr. Guzzardi’s
testimony would have discussed whether Lowry’s recollections could be
reliable. Id. Specifically, Dr. Guzzardi would have testified that Lowry must
have imbibed more alcohol than he admitted; if Lowry’s BAC was .18 at 5:23
a.m., it would have been higher at the time of the incident, and the higher the
BAC, “the more likely, from a scientific standpoint, that Lowry cannot
accurately recall events.” Id. at 19. Appellant contends that Dr. Guzzardi’s
testimony also would have highlighted that Lowry’s memory would have been
impaired, thereby supporting the proposition that Lowry was likely belligerent
and a threat to Appellant. Id.4
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4 Appellant argues that Dr. Guzzardi’s proposed testimony is based on
specialized knowledge that is not possessed by the layperson. Appllant relies
upon Commonwealth v. Uhrinek, 544 A.2d 947 (Pa. 1988), in support of
his argument. Appellant’s Brief at 20-21. In that case, the appellant had
struck the decedent with his car. The appellant argued that the accident was
caused by the decedent’s intoxication. The trial court did not allow evidence
of the decedent’s intoxication. Uhrinek, 544 A.2d at 949. On appeal, our
Supreme Court held that
[t]he trial court’s refusal to permit the appellant to introduce
evidence of the decedent’s intoxication, where the appellant was
prepared to support his theory with expert testimony, prevented
him from challenging the causal connection between his conduct
and the accident, a direct connection which the Commonwealth
must prove beyond a reasonable doubt.
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Appellant has failed to show that the trial court abused its discretion
when it granted the Commonwealth’s motion in limine to preclude
Dr. Guzzardi’s expert testimony. As the trial court properly noted,
Dr. Guzzardi’s ultimate conclusion, that Lowry’s recollections were unreliable,
is an overt assessment of Lowry’s credibility and is prohibited under
Pennsylvania law. Trial Court Opinion, 7/17/20, at 7 (citing Alicia, 92 A.3d
at 760). Indeed, “expert testimony will not be permitted when it attempts in
any way to reach the issue of credibility, and thereby usurp the function of
the factfinder.” Commonwealth v. Delbridge, 855 A.2d 27, 42 (Pa. Super.
2003) (emphasis added). See also Commonwealth v. Crawford, 718 A.2d
768, 773 (Pa. 1998) (finding that expert’s testimony that a witness’s
memories of an event could not be accurate was an “inadmissible assessment
of [the witness’s] credibility.”). We also note that the intoxicating effect of
alcohol is known and recognized by the average lay person. We have held
that “expert testimony is not necessary in a DUI-alcohol case … the
Commonwealth may present any form of proof, including the defendant’s
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Id. at 952. Although the Uhrinek Court discussed the fact that the appellant’s
evidence regarding the decedent’s intoxication was supported by expert
testimony, the holding in that case was specific, stating, “[W]e hold that
evidence of a deceased pedestrian’s intoxication is admissible in a homicide
by vehicle prosecution if relevant to the defendant’s theory of the cause of the
accident and if supported by expert testimony, even absent any showing that
decedent was ‘unfit to walk.’” Id.
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behavior, the nature of the accident itself, and any other relevant evidence
(which may or may not include blood alcohol tests.).” Commonwealth v.
DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010).
As found by the trial court, Lowry was “indisputably inebriated”5 during
the incident, and “the intoxicating effects of alcohol are widely and commonly
understood, and there was nothing unique about Lowry’s intoxicant or the
underlying facts that required an expert’s scientific, technical, or other
specialized knowledge.” Trial Court Opinion, 7/17/20, at 8, 9 (citing Pa.R.E.
702 and Commonwealth v. Griffith, 32 A.3d 1231, 1238 (Pa. 2011)
(acknowledging that “in some [DUI] cases, depending on the specific facts
and circumstances, expert testimony may be helpful,” but the use of expert
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5 In the instant case, the evidence of Lowry’s intoxication was presented to
the jury. As the trial court noted:
Moreover, this court determined that the proposed expert
testimony was simply not necessary to show “how intoxicated
[Lowry] really was,” as nothing about the underlying facts was
beyond the understanding of a lay juror. It was undisputed that
Lowry consumed several alcoholic drinks before the underlying
incident. In his statement to Internal Affairs, Lowry admitted to
drinking “a bucket of iced beers and a few shots of whiskey.” (N.T.
11/13/19 at 134). At the conclusion of the underlying episode,
Lowry was arrested for a suspected DUI. (Id. at 90). Later, he
submitted to a breathalyzer test, which revealed a .18 BAC. (Id.
at 140-41). Moreover, the Commonwealth was willing to stipulate
that nearly three hours after the underlying incident, Lowry’s BAC
was .18—more than twice the legal limit. See (Comm. Mot. at 5
n.2); 75 Pa.C.S.A. § 3802(a)(2).
Trial Court Opinion, 7/17/20, at 8.
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testimony is not required to establish a defendant’s inability to drive safely.”)).
Appellant has failed to show that the trial court abused its discretion when it
granted the Commonwealth’s motion in limine to preclude the expert
testimony of Dr. Guzzardi.
In support of the second part of his first question, Appellant argues that
the trial court erred when it granted the Commonwealth’s motion in limine
seeking to exclude evidence of procedures of the department of Internal
Affairs, the special investigation unit of the District Attorney’s Office, the
disposition of Lowry’s DUI case, and any disciplinary action taken against
Lowry. As discussed, the admission of evidence is committed to the discretion
of the trial court and will not be overturned unless the trial court has abused
that discretion. Belani, 101 A.3d at 1160.
Appellant asserts that he needed to call several witnesses to testify
regarding the “Philadelphia Police disciplinary ladder.” Appellant’s Brief at 22.
He sought to call Lieutenant Flacco, who oversees misconduct and disciplinary
actions. Id. He also wanted to call an individual from the District Attorney’s
office to show that it is a common belief that officers with DUI charges are
accepted into a diversionary program, and those with more “serious” DUI
charges are not. Id. at 22-23. Appellant also averred that the trial court
erred in placing limitations on Appellant’s ability to cross-examine a sergeant
from the Internal Affairs division because he wanted to challenge Lowry’s
testimony as well as the sergeant’s failure to investigate the incident
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“including the almost complete reliance on a recitation of the facts by [Lowry]
himself, as opposed to reviewing any secondary or independent evidence.”
Id. at 24-25.
Appellant makes numerous allegations of bias and failure to properly
investigate the case against Lowry. Appellant’s Brief at 22-25. These
allegations, however, are based upon Appellant’s belief that the “arresting
officers probably have a pretty good idea of what happens to an officer if
arrested for different offenses.” Id. at 21. Appellant further posits that:
the knowledge that the more severe DUI offenses or other charges
results in more severe consequences are necessary to show
motive and bias in favor of [Lowry] by the responding officers,
which explains the failure to investigate, the failure to document
witnesses, the failure to perform field sobriety tests, and the
failure to bring [Lowry] to the PDU in a reasonable amount of time,
thereby lowering his blood alcohol level and ensuring his
acceptance into a diversionary program.
Appellant Brief at 22. Appellant argues that “it is [Appellant’s] belief that “the
officers that investigated were not looking to discover the truth about the
events that night and were actively seeking to limit the culpability of [Lowry]
because he is an officer.”6 Id. at 25. Appellant also makes the bold statement
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6 Appellant states that there is “ample evidence” inter alia, “in the behavior
of the responding officers, and the investigation by the Pennsylvania State
Police that the officers failed to properly investigate, treated [Lowry]
differently than [Appellant] and failed to follow proper procedure, all of which
resulted in a more favorable outcome for [Lowry] than [Appellant].”
Appellant’s Brief at 26. Appellant fails, however, to set forth the ample
evidence. To the extent Appellant argues that the failure to administer a field
sobriety test and the failure to have Lowry’s blood tested within a reasonable
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that the fact that Lowry was charged only with a DUI strengthens Appellant’s
“argument that the strategy of minimization by law enforcement and [Lowry]
gave [Lowry] a motive to lie and law enforcement a motive to not do its job
properly which resulted in unjustified charges against [Appellant].”7
Appellant’s Brief at 29-30.
The trial court excluded the information Appellant sought to enter into
evidence, finding that it was “unsubstantiated, collateral, and wholly
irrelevant.” Trial Court Opinion, 7/17/20, at 10. We agree.
Although it is well established that a criminal defendant has a right to
be confronted with the witnesses against him as set forth in both United States
and the Pennsylvania Constitutions, this right is not without limitations.
Commonwealth v. Guilford, 861 A.2d 365, 370 (Pa. Super. 2004). In
Guilford, we found that the trial court did not abuse its discretion where the
trial court precluded cross-examination of a witness about whether that
witness was under the influence of drugs when he testified at the appellant’s
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time, Officer Payeski testified that the Philadelphia Police Department does
not perform field sobriety tests and that no one was trained to do so. N.T.
(Trial), 11/13/19, at 120. Further, Lowry testified that in the instant case, his
blood was not drawn until 5:30 in the morning, three hours after the initial
incident. He admitted that blood alcohol level lowers as time passes after an
individual has stopped drinking. Id. at 141-142. It is unclear from the record
why there was a three-hour delay, but Appellant has not shown that the delay
was the result of an attempted cover-up by the Philadelphia Police
Department.
7 Appellant does not specify which charges brought against him were
unjustified.
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preliminary hearing. Id. at 369. Specifically, we held that “the mere fact that
[the witness] was under the influence of drugs or alcohol on [the date of the
appellant’s preliminary hearing] does not, without other evidence, tend to
establish or demonstrate that [the witness] had a motive to fabricate his
testimony at trial.” Id. at 369-370. Similarly, in Commonwealth v. Bright,
420 A.2d 714 (Pa. Super. 1980), the appellant, who was convicted of assault
and resisting arrest, alleged that the trial court erred in precluding his cross-
examination of the arresting officer about his knowledge of the use of
unnecessary force in order to establish a motive on the officer’s part to
fabricate testimony against the appellant. We held that “without an
evidentiary basis showing unnecessary force and/or disciplinary proceedings,
such a general consideration or motive is remote and collateral.” Id. at 715.
The holding in Bright applies to the instant case as well.
Although Appellant maintains that the responding officers were biased
towards Lowry, there is no factual basis to support that claim. As the trial
court noted,
Officers Payeski and Eiser responded to the scene after
[Barkley],[an] independent witness, called 911. The officers
arrested Appellant and Lowry and recommended criminal charged
for both men. Thus, there is no basis, beyond conjecture and
suspicion, to insinuate wrongdoing on the part of the responding
officers, and there is no conceivable basis to find that the officers’
conduct resulted in unjustifiable charges against [Appellant].
Trial Court Opinion, 7/17/20, at 12. Indeed, as the Commonwealth argues,
“Although [Lowry] was a law enforcement officer–albeit not an employee of
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the Philadelphia Police Department–any allegation of bias based on this fact
would apply generally to any officer who arrests another, and is therefore
remote and collateral.” Commonwealth’s Brief at 14 (citing Bright, 420 A.2d
at 715).
Moreover, we agree with the trial court’s assessment that the evidence
proffered by Appellant was not relevant. Pennsylvania Rule of Evidence 401
sets forth the following:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Pa.R.E. 401. Evidence that is not relevant is not admissible. Pa.R.E. 402.
The trial court set forth the following cogent analysis:
In the case at bar, Appellant was charged with theft, receiving
stolen property, and various charges under the Uniform Firearms
Act. Each charge required the Commonwealth to prove that, on
May 15, 2017, Appellant exercised unlawful control over Lowry’s
firearm. Neither an officer’s general knowledge of the
consequences of police misconduct, the disposition of Lowry’s DUI
charge, the thoroughness of the Pennsylvania State Police Internal
Affairs investigation, nor the specifics of diversionary programs
have any conceivable bearing on whether Appellant knowingly
possessed an illicit firearm. Thus, the aforementioned evidence
was wholly irrelevant …
Trial Court Opinion, 7/17/20, at 13. We agree. It is unclear how, even
assuming all of the aforementioned evidence was admitted, it could be
relevant to the question of whether Appellant unlawfully possessed a firearm.
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It is well established that the trial court has “broad discretion to determine if
evidence is admissible.” Belani, 101 A.3d at 1160. The trial court did not
abuse its discretion when it granted the Commonwealth’s motion in limine.
In his second issue, Appellant posits that the trial court erred when it
failed to instruct the jury that Appellant’s actions were justified by necessity
under 18 Pa.C.S. § 503. Appellant’s Brief at 30. That section provides:
(a) General rule.--Conduct which the actor believes to be
necessary to avoid a harm or evil to himself or to another is
justifiable if:
(1) the harm or evil sought to be avoided by such conduct
is greater than that sought to be prevented by the law
defining the offense charged;
(2) neither this title nor other law defining the offense
provides exceptions or defenses dealing with the
specific situation involved; and
(3) a legislative purpose to exclude the justification claimed
does not otherwise plainly appear.
(b) Choice of evils.--When the actor was reckless or negligent
in bringing about the situation requiring a choice of harms or
evils or in appraising the necessity for his conduct, the
justification afforded by this section is unavailable in a
prosecution for any offense for which recklessness or
negligence, as the case may be, suffices to establish
culpability.
18 Pa.C.S. § 503.
Our standard of review regarding jury instructions is well established:
We review jury instructions for a clear abuse of discretion or an
error of law. Commonwealth v. Sandusky, 77 A.3d 663, 667
(Pa. Super. 2013). A jury charge is erroneous only if the charge
as a whole is inadequate, not clear, or has a tendency to mislead
or confuse a material issue. Id. The trial court properly gives a
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jury instruction if there is an evidentiary basis on which the jury
could find the element, offense, or defense that is the subject of
the instruction. See Commonwealth v. Washington, 547 Pa.
563, 692 A.2d 1024, 1028 (1997) (“[J]ury instructions regarding
particular crimes or defenses are not warranted where the facts
of the case do not support those instructions”).
Commonwealth v. Hall, 199 A.3d 954, 963 (Pa. Super. 2018).
In order to be entitled to an instruction on justification by necessity as
a defense to a crime charged, Appellant must offer evidence to show:
(1) that (he) was faced with a clear and imminent harm, not
one which is debatable or speculative;
(2) that (he) could reasonably expect that (his) actions would
be effective in avoiding this greater harm;
(3) that there is no legal alternative which will be effective in
abating the harm; and
(4) that the Legislature has not acted to preclude the defense
by a clear and deliberate choice regarding the values at
issue.
As with any offer of proof, it is essential that the offer meet a
minimum standard as to each element of the defense so that if a
jury finds it to be true, it would support the affirmative defense-
here that of necessity. This threshold requirement is fashioned to
conserve the resources required in conducting jury trials by
limiting evidence in a trial to that directed at the elements of the
crime or at affirmative defenses raised by the defendant. Where
the proffered evidence supporting one element of the defense is
insufficient to sustain the defense, even if believed, the trial court
has the right to deny use of the defense and not burden the jury
with testimony supporting other elements of the defense.
Commonwealth v. Billings, 793 A.2d 914, 916 (Pa. Super. 2002) (quoting
Commonwealth v. Capitolo, 498 A.2d 806 (Pa. 1985)). As set forth above,
if the appellant failed to satisfy any of the four elements necessary to receive
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a jury instruction on necessity, the trial court may deny giving the instruction.
Billings, 793 A.2d at 916. Further, it is Appellant’s burden to proffer sufficient
evidence for each of the Capitolo factors. Commonwealth v. Manera, 827
A.2d 482, 485 n.7 (Pa. Super. 2003) (“Because justification is an affirmative
defense, the defendant has the burden of asserting an appropriate offer of
proof in order to be entitled to a jury instruction on justification.”).
Appellant contends that he satisfied each of the prongs. As to the first
prong, Appellant avers that:
[A]ppellant was faced with a clear and imminent harm. He was in
a situation where he was confronted with a heavily inebriated and
aggressive combatant that had access to a loaded gun.
Appellant’s concern was that [Lowry] because of his drunken
state, who already had demonstrated a lack of judgment by not
calling the police to settle a simple dispute over an alleged fender
bender, would use the gun against him or shoot some other third
party on the street with a wayward bullet.
Appellant’s Brief at 33. The record does not support Appellant’s contention
relating to the first prong.
The trial court set forth the following discussion of the first prong relating
to imminent harm.
In the case at bar, there was absolutely no basis to find that
Appellant was entitled to an instruction on justification by
necessity. There was no clear and imminent danger that required
Appellant to open Lowry’s car door and take his weapon. Even if
a fight was imminent–and this court does not concede that it was–
Lowry’s use of the firearm was not. The weapon was holstered,
on the floor of his vehicle, and behind a closed door. (N.T.
11/13/[19] at 127-28). Lowry did not have immediate access to
the weapon, and he did not reach for it or threaten to retrieve it.
(Id.). The firearm was not in play (and the two men did not come
to blows) until Appellant “circled” around Lowry, opened his
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vehicle and stole the firearm. (Id. at 52-54, 127-28). The fact
that Lowry could have conceivably or hypothetically tried to use
his weapon is not enough to find that Appellant was “faced with
clear and imminent harm.” See Billings, 793 A.2d at 916 (finding
insufficient evidence that defendant faced clear and imminent
harm to warrant jury instruction on justification defense to VUFA
charges, the defendant took a gun from his former paramour’s
home because he feared it might be used against him).
Trial Court Opinion, 7/17/20, at 14-15. The trial court’s conclusion is based
on evidence of record. We find that it did not abuse its discretion or commit
an error of law when it refused Appellant’s request for a jury instruction on
justification because Appellant has failed to demonstrate that he was faced
with clear and imminent harm. See Commonwealth v. Merriwether, 555
A.2d 906, 911 (Pa. Super. 1989) (finding that trial counsel was not ineffective
for failing to pursue a defense of justification where the appellant was
convicted for a violation of the Pennsylvania Uniform Firearms Act and had
allegedly received threats from individuals he testified against in an unrelated
murder trial because threats do not constitute clear and imminent harm.).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/21
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