Com. v. Jones, S.

J-A22035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCHUYLER NATHANIEL JONES :
:
Appellant : No. 183 MDA 2021
Appeal from the Judgment of Sentence Entered December 17, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000032-2020
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: MARCH 1, 2022
Appellant, Schuyler Nathaniel Jones, appeals from the judgment of
sentence entered in the Dauphin County Court of Common Pleas, following his
jury trial convictions for burglary, simple assault, and recklessly endangering
another person (“REAP”).1 We affirm Appellant’s convictions for burglary and
simple assault but reverse his conviction for REAP.
In its opinion, the trial court summarized some of the facts of this case
as follows:
Jenna Wise testified that on April 27, 2019, she was in her
apartment when she was notified by Appellant, through a
text message, that he was on his way to her apartment. Ms.
Wise explained that earlier that day she had invited
Appellant to her apartment, but later rescinded that offer
when she learned he was dating someone else. When
Appellant told Ms. Wise he was “on his way” to her
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a)(1)(i); 2701(a)(1); and 2705, respectively.
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apartment, she told him she was not home. Appellant then
responded “Ima c.” Out of concern, Ms. Wise dialed 911
and secured her doors; because the lock on her back door
was broken, she placed a bar stool underneath the doorknob
to secure it. While Ms. Wise was on the phone with the 911
dispatcher, she heard someone attempt to enter the
apartment. Ms. Wise then went to the bedroom where her
children were sleeping and locked herself in the room. Ms.
Wise testified that she heard a bang and someone running
through her apartment; a few moments later, the door to
the bedroom was kicked in. Ms. Wise and Appellant got into
a physical altercation at this point, and she was punched in
the face by Appellant several times.
Officer John Rosinski of the Harrisburg City Police
Department also testified that upon arriving to Ms. Wise’s
apartment [in the early morning hours] on April 28, 2019,
he observed the back door opened. Officer Rosinski noted
that the door was old and looked as though it might have
been damaged previously, so it was hard to determine
whether Appellant caused the damage by kicking the door.
However, upon entering the residence, Officer Rosinski
observed a door to a bedroom with damage, including a
sliding chain lock that was ripped off the doorjamb. He also
observed a doorknob laying on the floor of the bedroom,
near the door.
(Trial Court Opinion, filed March 31, 2021, at unnumbered pp. 4-5) (internal
record citations and footnotes omitted).
The Commonwealth originally charged Appellant in connection with
these events with burglary, simple assault, and endangering the welfare of a
child (“EWOC”). The Commonwealth subsequently changed the EWOC charge
to REAP. Relevant to this appeal, in the criminal complaint, the burglary
charge stated:
IN THAT, [Appellant] did on or about said date, enter a
building or occupied structure or separately secured or
occupied portion thereof, namely, (1717 State St. being
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rented by Jenna Wise, that is adapted for overnight
accommodations with the Intent to commit a crime
therein, at a time when any person is present at the
premises and [Appellant] commits, attempts or threatens to
commit a bodily injury crime therein and was not privileged
or licensed to enter. To wit [Appellant] forced his way into
Wise’s home and assaulted her.
(Criminal Complaint, filed 4/28/19) (emphasis added). Similarly, in the
criminal information, the Commonwealth described the burglary charge as
follows:
[T]he defendant, with the intent to commit a crime
therein, entered a building or occupied structure, or
separately secured or occupied portion thereof, that was
adapted for overnight accommodations in which at the time
of the offense any person was present, and the defendant
committed, attempted to commit, or threatened to commit
a bodily injury crime therein.
(Criminal Information, filed 3/17/20) (emphasis added).
Appellant proceeded to a one-day jury trial on October 19, 2020. The
Commonwealth presented testimony from Ms. Wise, Officer Rosinski, and
Natalie Velasquez. Ms. Wise and Officer Rosinski testified as described above.
During Officer Rosinski’s testimony, the prosecutor asked the officer to tell the
jury what description Ms. Wise gave to the officer when he arrived on the
scene. Officer Rosinski responded as follows:
[Officer Rosinski]: She told me that she had received a
message that [Appellant] was about to walk into—
[Appellant] was about to walk into her house. She said she
was scared because there was an issue with her and
[Appellant] from past relationships; she knows that
[Appellant] can be violent.
(N.T. Trial, 10/19/20, at 29). Defense counsel immediately objected, and the
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court sustained the objection. Shortly thereafter, defense counsel asked to
approach the bench and requested a mistrial “based on his information
indicating that [Appellant] has past violent behaviors.” (Id. at 30). The
prosecutor informed the court that witnesses were instructed not to go into
any prior incident regarding Appellant, and the prosecutor apologized for
Officer Rosinski’s statement. The court acknowledged that the reference to
Appellant’s violence was brief and denied the request for a mistrial. (Id.)
Ms. Velasquez testified, inter alia, that she is Appellant’s ex-girlfriend
and was dating him on the night in question. (Id. at 57). She drove Appellant
to Ms. Wise’s house on the date in question because Appellant said he had to
pick up some things. (Id.) Before arriving at Ms. Wise’s home, Ms. Velasquez
communicated with Ms. Wise via the Facebook Messenger application and told
her that Appellant was coming over. (Id. at 58). When the prosecutor asked
Ms. Velasquez why she was communicating with Ms. Wise, Ms. Velasquez
responded: “I communicated with her because we were talking about the
domestic—sorry.” (Id.) The prosecutor then moved away from this line of
questioning and defense counsel did not object.
Ms. Velasquez continued that she messaged Ms. Wise and informed her
that Appellant was going into her house and to be careful. (Id. at 59). The
Commonwealth then admitted the text message exchange into evidence. The
text message showed Ms. Velasquez’s message to Ms. Wise stating: “He about
to walk in your house.” (Id. at 60). After Appellant went into Ms. Wise’s
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house, he returned to Ms. Velasquez’s car minutes later, and she observed
that Appellant’s right hand was bleeding. (Id.)
On cross-examination, defense counsel asked Ms. Velasquez about the
circumstances of when she had picked Appellant up earlier that evening and
drove him to Ms. Wise’s house. The following exchange occurred:
[Defense counsel]: And when he gets in the car he just
tells you casually, hey, I need to go to Jenna’s house to get
some of my belongings?
[Ms. Velasquez]: No, he wasn’t casual about it. He was
actually really mad.
[Defense counsel]: So he was really mad and told you that
he wanted to go get his belongings.
Did he say specifically what was there?
[Ms. Velasquez]: No.
[Defense counsel]: And based off of him I guess being
really mad you decided that it was appropriate to take him
to Jenna’s house?
[Ms. Velasquez]: When he told me that he was gonna
fuck me up, yes, I decided to take him there because I was
scared.
[Defense counsel]: Why did you pick him up from work if
you were afraid?
[Ms. Velasquez]: Because that night before he put his
hands on me.
(Id. at 65-66). Defense counsel then asked to approach the bench and the
following exchange took place:
[Defense counsel]: Again, Your Honor, defense would ask
for a mistrial in this case based on not only the information
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that’s [recently] been presented by this witness, but also
based on some information that she provided during direct
examination where she had started to say something about
a domestic and then she was cut off.
She had also testified that she was frightened of him. This
also took place during direct. I wasn’t gonna raise an issue,
but based on what’s just been presented to the jury, she
had also mentioned that she sent a text about we’re on our
way, to be careful. There’s actually no information in the
text message that says to be careful. So based on all of
that I would ask for a mistrial again in this case, Your Honor.
[The prosecutor]: Your Honor, on direct when she went
to go to mention about the domestic I immediately cut her
off saying that she was scared. This was the truth, Your
Honor, she was scared the night of.
As far as what was just elicited, the defense counsel opened
the door by asking the question as to why she was scared.
And then as far as the “to be careful,” he can ask her on
cross where it says that in the message to be careful.
[The Court]: All right. The domestic part was cut off. I
was concerned about that, but it was cut off. And then
we’ve had—the other items have been elicited on cross;
arguably, not totally responsive to [defense counsel’s]
questions, but nevertheless, we’ll deny the motion at this
time.
(Id. at 66-67).
At the conclusion of trial, the jury convicted Appellant of burglary, simple
assault, and REAP. The court sentenced Appellant on December 17, 2020, to
5½ to 12 years’ imprisonment for burglary; the court imposed no further
penalty for the other crimes. Appellant timely filed post-sentence motions on
Monday, December 28, 2020, which the court denied on January 7, 2021. On
January 28, 2021, Appellant timely filed a notice of appeal. On February 17,
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2021, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant filed
on March 4, 2021.
Appellant raises three issues for our review:
Was the Commonwealth’s evidence insufficient to prove
beyond a reasonable doubt that [Appellant] had the specific
intent to assault Jenna Wise (“Wise”) at the critical moment
of entry into Wise’s apartment, which was the
Commonwealth’s theory for burglary?
Was the Commonwealth’s evidence insufficient to prove
beyond a reasonable doubt that [Appellant] recklessly
endangered Wise’s children?
Did the trial court err by not declaring a mistrial after two
Commonwealth witnesses, Officer Rosinski and Natalie
Velasquez (“Velasquez”), testified about [Appellant’s] prior
bad acts, namely his purported history of violent and
abusive behavior?
(Appellant’s Brief at 5).
In his first issue, Appellant argues that to prove Appellant was guilty of
burglary, the Commonwealth was obligated to establish that he had the
specific intent to commit a crime in Ms. Wise’s home at the time of entry—not
after. Appellant asserts that, in general, the Commonwealth is not required
to prove a defendant’s intent to commit a particular crime upon an unlawful
entry. Nevertheless, Appellant insists that the Commonwealth “unilaterally
enhanced the scope of its burden by committing to a theory that [Appellant]
specifically intended to assault [Ms.] Wise upon entry into [Ms.] Wise’s
apartment.” (Id. at 26). Appellant concedes that the Commonwealth did not
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specify in the criminal information that Appellant intended to assault Ms. Wise
upon entering her home, but suggests the Commonwealth implied as much in
the criminal complaint by stating: “To wit [Appellant] forced his way into [Ms.]
Wise’s home and assaulted her.” (Id. at 27). Appellant further maintains
that the Commonwealth manifested an intent to prove that Appellant had the
specific intent to commit assault at the time he entered Ms. Wise’s home based
on the Commonwealth’s theory of the case presented both before and at trial.
Appellant claims that the court also bound the jury to finding that Appellant
intended to commit an assault to convict him of burglary, based on the trial
court’s jury instructions.
Notwithstanding the Commonwealth’s theory of the case regarding
burglary, Appellant argues it failed to prove that Appellant intended to assault
Ms. Wise upon entering her home. Appellant submits the Commonwealth did
not introduce any evidence showing that Appellant made statements or
comments indicative of his intent when entering Ms. Wise’s home. Appellant
highlights Ms. Velasquez’s testimony that Appellant said he was going to Ms.
Wise’s home to retrieve his belongings. Appellant further cites his own text
messages to Ms. Wise, which Appellant insists shows that he went to Ms.
Wise’s home merely to see if she was there. Appellant concludes the
Commonwealth did not prove beyond a reasonable doubt that Appellant
specifically intended to assault Ms. Wise at the critical moment of entry into
her home, and this Court must reverse his burglary conviction and vacate his
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judgment of sentence. We disagree.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he 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
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for that
of the fact finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of a defendant’s
crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.
2013)).
The Crimes Code defines burglary, in relevant part, as follows:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense of
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burglary if, with the intent to commit a crime therein, the
person:
(1)(i) enters a building or occupied structure, or
separately secured or occupied portion thereof, that is
adapted for overnight accommodations in which at the time
of the offense any person is present and the person
commits, attempts or threatens to commit a bodily injury
crime therein;
18 Pa.C.S.A. § 3502(a)(1)(i).
“The intent to commit a crime after entry may be inferred from the
circumstances surrounding the incident. This intent may be inferred from
actions as well as words. However, actions must bear a reasonable relation
to the commission of a crime.” Commonwealth v. Alston, 539 Pa. 202,
207, 651 A.2d 1092, 1094 (1994) (emphasis omitted). In Alston, our
Supreme Court explained: “Once Appellant has entered the private residence
by criminal means we can infer that Appellant intended a criminal purpose
based upon the totality of the circumstances. Appellant’s constitutional right
to notice is not violated by such an inference of general criminal intent.” Id.
at 208, 651 A.2d at 1095 (holding Commonwealth is not required to allege or
prove particular crime Appellant intended to commit after his forcible entry
into private residence to secure conviction for burglary).
Nevertheless, “[w]hen the Commonwealth does specify, in the
information or indictment, the crime defendant intended to commit, the
Commonwealth must prove the requisite intent for that particular crime in
order to prove a burglary or attempted burglary.” Commonwealth v.
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Brown, 886 A.2d 256, 260 (Pa.Super. 2005), appeal denied, 588 Pa. 743,
902 A.2d 969 (2006) (emphasis added).
Instantly, the record makes clear that the Commonwealth did not allege
that Appellant had the specific intent to commit assault at the time of entry
into Ms. Wise’s home in either the criminal complaint or criminal information.
To the contrary, those filings stated that Appellant entered the home “with the
intent to commit a crime therein.” (See Criminal Complaint, filed 4/28/19);
(Criminal information, filed 3/17/20). The reference to “assault” in the
criminal complaint concerns the act Appellant committed once inside the
home; not Appellant’s intent at the time of entry. (See Criminal Complaint,
filed 4/28/19) (stating: “IN THAT, [Appellant] did on or about said date, enter
a building or occupied structure or separately secured or occupied portion
thereof…that is adapted for overnight accommodations with the Intent to
commit a crime therein, at a time when any person is present at the premises
and [Appellant] commits, attempts or threatens to commit a bodily injury
crime therein and was not privileged or licensed to enter. To wit [Appellant]
forced his way into Wise’s home and assaulted her”).
Although Appellant insists that the Commonwealth should be bound to
its “theory of the case” that Appellant intended to assault Ms. Wise at the time
of entry, “a prosecutor’s comments are not evidence[.]” Commonwealth v.
Johnson, 542 Pa. 384, 404, 668 A.2d 97, 107 (1995), cert. denied, 519 U.S.
827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). In support of this claim, Appellant
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also relies on Commonwealth v. Wilson, No. 1045 WDA 2016 (Pa.Super.
Oct. 24, 2017) (unpublished memorandum). We decline Appellant’s invitation
to compare the facts of this case to those present in Wilson where Wilson is
an unpublished decision from this Court filed prior to May 1, 2019. See
Pa.R.A.P. 126(b) (stating non-precedential decisions from this Court filed
after May 1, 2019 may be cited for their persuasive value). Thus, Appellant’s
reliance on Wilson affords him no relief.
Nevertheless, the record supports Appellant’s claims that the trial court
also specified Appellant’s intended crime at the time of the entry into Ms.
Wise’s home. The court stated in its preliminary instructions:
In this case, they’re alleging that [Appellant] entered 1717
State Street, Apartment 1, and that he entered that with
the intent to commit an assault against Jenna Wise, the
alleged victim in this case.
So that’s sort of an overview in this case, that [Appellant]
entered that apartment, he entered it with the intent to
commit an assault, that that’s the residence of Ms. Wise,
and that it was an occupied structure that is adapted for
overnight accommodations.
We’ll talk more about this at the end of the trial. I just want
to give you a little bit of overview about what the burglary
is. Also, that he was not licensed or privileged to enter at
that time, to enter that apartment. We’ll talk more about
what a burglary is, but that’s so you’re not wondering what
that means.
* * *
So that’s what we’re talking about here: Burglary involving
entrance to that apartment with the intent to assault
Ms. Wise, recklessly endangering another person involving
conduct that endangered the children, and then simple
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assault, attempting to cause or causing bodily injury to Ms.
Wise, are the three counts you have to determine at the end
of the trial.
(N.T. Trial at 13-15) (emphasis added). Neither defense counsel nor the
prosecutor objected to these preliminary instructions. (See id.)
At the conclusion of trial, the court instructed the jury regarding burglary
as follows:
So as you’ve heard, [Appellant] has been charged with
burglary. To find [Appellant] guilty of this offense you must
find that all of the following elements have been proven
beyond a reasonable doubt:
First, that [Appellant] entered 1717 State Street, Apartment
1, in Harrisburg; second, that he entered 1717 State
Street, Apartment 1, with the intent to commit a
crime, the crime of assault; and that 1717 State Street,
Apartment 1, is a building or occupied structure that is
adapted for overnight accommodations in which at the time
of the offense any person is present.
So let me go over these again, the elements of burglary
which the Commonwealth must prove beyond a reasonable
doubt: First, the defendant entered 1717 State Street,
Apartment 1; he entered it with the intent to commit a
crime; and that that apartment is adapted for overnight
accommodation, people sleep there, and at the time the
offense occurred people were present. Those are the
elements of the offense that have to be proven to you
beyond a reasonable doubt before you can find [Appellant]
guilty of burglary. …
(Id. at 125-26) (emphasis added). Neither defense counsel nor the
prosecutor objected to the court’s instructions. (See id.)
Notwithstanding the trial court’s more specific instructions, Alston
makes clear that the critical inquiry is whether the Commonwealth specified
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the crime to be committed in the indictment or information. See Alston,
supra. Further, we are mindful of this Court’s decision in Commonwealth
v. Dieffenbach, No. 685 MDA 2019, 2020 WL 4345814 (Pa.Super. July 29,
2020) (unpublished memorandum), which we can rely on for persuasive
value. See Pa.R.A.P. 126(b). In Dieffenbach, the appellant complained that
the Commonwealth failed to prove the specific intent element of burglary at
trial, where the court instructed the jury that the jury was required to find the
appellant entered the location at issue with the intent to commit criminal
contempt or a PFA violation or strangulation or simple assault in the home.
This Court held that the relevant inquiry under Alston is what the
Commonwealth stated in the information or complaint. Thus, this Court
concluded that the trial court’s misstatement to the jury regarding the
appellant’s charges was harmless. See Dieffenbach at *7 n.10 (citing
Alston, supra at 1094 n.3, stating “an intent to commit a particular crime is
not a material element of the offense of burglary under the law of this
Commonwealth”). Consequently, this Court’s sufficiency analysis turned on
whether the Commonwealth presented sufficient evidence that the appellant
intended to commit “a crime” at the time of entry into the home. See id. at
*7.
Here, Appellant’s sufficiency argument is predicated on his assertion
that the Commonwealth was required to prove his specific intent to assault
Ms. Wise at the time of entry. Because the Commonwealth did not allege that
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specific intent in the criminal information, however, the Commonwealth was
required to prove only Appellant’s general criminal intent, notwithstanding the
trial court’s unobjected to misstatements. See Alston, supra; Dieffenbach,
supra. See also Pa.R.Crim.P. 647(C) (stating no portions of jury charge nor
omissions from charge may be assigned as error, unless specific objections
are made thereto before jury retires to deliberate).
The trial court analyzed Appellant’s sufficiency claim as follows:
Here, Appellant certainly had the requisite intent necessary
for a burglary conviction. He broke into the residence of his
ex-girlfriend while she was on the phone with emergency
dispatchers. He then broke down an interior door and
assaulted her. Often, absent a statement or confession,
intent must be proven circumstantially. Here, the most
persuasive evidence of his intent was he did, in fact, assault
Ms. Wise immediately upon breaking down the bedroom
door. The jury reasonably concluded that Appellant entered
the residence with the intent to commit a crime therein.
(Trial Court Opinion at unnumbered pp. 5-6). The record supports the trial
court’s analysis that the jury reasonably concluded that Appellant entered Ms.
Wise’s residence with the intent to commit a crime therein. After Ms. Wise
told Appellant not to come over on the night in question because she would
not be home, Appellant responded “Ima c” [I’m going to see]. Appellant then
instructed Ms. Velasquez to drive Appellant to Ms. Wise’s home, where
Appellant gained entry through the back door, kicked open the bedroom door
of Ms. Wise’s children, and assaulted Ms. Wise. Appellant returned to Ms.
Velasquez’s vehicle within minutes, where he then hid under a pile of laundry
which required law enforcement to pull him out of the vehicle to apprehend
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him. On this record, the jury was free to infer from the totality of the
circumstances, Appellant’s intent to commit a crime when he entered Ms.
Wise’s home. See Alston, supra. Viewed in the light most favorable to the
Commonwealth as verdict-winner, the evidence was sufficient to sustain
Appellant’s conviction for burglary. See Sebolka, supra. Therefore,
Appellant’s first issue merits no relief.
In his second issue, Appellant argues that the Commonwealth
repeatedly identified Ms. Wise’s children as the targets of the REAP charge.
Appellant asserts that to convict Appellant of REAP, the Commonwealth was
required to prove that he placed Ms. Wise’s children (not Ms. Wise) in danger
of death or serious bodily injury. Appellant contends the Commonwealth did
not seek to establish the size or dimensions of the bedroom in which Appellant
assaulted Ms. Wise. Appellant claims no witness identified and no exhibit
demonstrated where in the bedroom the children were located when Appellant
kicked in the bedroom door and then assaulted Ms. Wise. Appellant maintains
the Commonwealth also introduced no evidence suggesting whether or where
the bedroom door swung into the room, in relation to where the children were
sleeping. Appellant submits the Commonwealth did not satisfy its burden of
proving that Appellant’s conduct created a potential risk of danger to the
children or that they were ever within the zone of danger. Appellant insists
the Commonwealth’s evidence was woefully short of showing that Ms. Wise’s
children ever faced the danger of death or serious bodily injury to sustain the
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REAP conviction. Appellant concludes the evidence was insufficient to support
his REAP conviction, and this Court must reverse that conviction. We agree
that Appellant is entitled to relief on this claim.
The Crimes Code defines the offense of REAP as follows:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.
18 Pa.C.S.A. § 2705. “Serious bodily injury” means “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301. “[T]he Commonwealth must prove
that the defendant had an actual present ability to inflict harm and not merely
the apparent ability to do so. Danger, not merely the apprehension of danger,
must be created.” Commonwealth v. Headley, 242 A.3d 940, 944
(Pa.Super. 2020), appeal denied, ___ Pa. ___, 253 A.3d 675 (2021) (internal
citation omitted).
Instantly, it is undisputed that the Commonwealth charged Appellant
with REAP as it relates to Ms. Wise’s children, who were inside the bedroom
when Appellant kicked in the door. In evaluating the sufficiency of the
evidence to sustain this conviction, the trial court stated:
Here, Appellant and Ms. Wise had previously dated, and
Appellant had been to the apartment before. Therefore,
Appellant knew the bedroom door he was breaking down
belonged to that of the children. The act of breaking the
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door down, alone, was conduct that could have potentially
resulted in danger or great bodily harm to the occupants of
the locked room. Accordingly, the evidence was sufficient
to sustain Appellant’s conviction.
(Trial Court Opinion at unnumbered pp. 6-7). We cannot agree with the
court’s analysis.
As Appellant correctly notes, no testimony or evidence described the
size of the children’s bedroom or where they were in relation to the door when
Appellant kicked it open. Additionally, no evidence demonstrated that
Appellant made contact with the children when he punched Ms. Wise. On this
record, we cannot say that Appellant’s actions placed Ms. Wise’s children in
danger of death or serious bodily injury. See 18 Pa.C.S.A. §§ 2301; 2705.
Therefore, we reverse Appellant’s conviction for REAP. Because the court did
not impose any sentence related to this crime, however, we need not remand
for resentencing.
In his third issue, Appellant argues the court failed to grant a mistrial
based on the improper comments of Officer Rosinski and Ms. Velasquez.
Regarding Officer Rosinski, Appellant asserts that he improperly stated that
Ms. Wise said she was scared because there was an issue with her and
Appellant from past relationships and that Ms. Wise knows Appellant can be
violent. Appellant claims Ms. Velasquez also inappropriately referenced
Appellant’s prior bad acts by initially mentioning a “domestic,” on direct
examination, and later stating on cross-examination that Appellant was
“gonna fuck me up” and the “night before he put his hands on me.”
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(Appellant’s Brief at 37) (citing trial testimony). Appellant maintains the
references to Appellant’s prior bad acts constituted hearsay subject to no
exception. Appellant disagrees with the trial court’s reliance on the res gestae
exception because the prior bad acts in this case were wholly unrelated to the
charges pertaining to the events involving Ms. Wise and her children.
Appellant submits that the trial court failed to engage in any serious weighing
of the prejudice and purported probative value of the prior bad acts evidence.
Appellant emphasizes that the prior bad act testimony here was highly
prejudicial in the course of a short one-day trial involving the testimony of
only three witnesses. Appellant suggests the prior bad acts testimony was
intentional and deliberate because the Commonwealth warned its witnesses
not to testify about other domestic abuse allegations against Appellant.
Appellant posits that no curative instruction would have been adequate to cure
the prejudice here. Appellant concludes the court’s failure to grant a mistrial
in this case was erroneous, and this Court must award Appellant a new trial.
We disagree.
Our standard of review from the court’s denial of a motion for a mistrial
is as follows:
The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such,
the grant or denial of a mistrial will not be overturned absent
an abuse of discretion. A mistrial may be granted only
where the incident upon which the motion is based is of such
a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict.
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Commonwealth v. Rega, 593 Pa. 659, 692, 933 A.2d 997, 1016 (2007),
cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008).
Pennsylvania Rule of Evidence 404(b) provides as follows:
Rule 404. Character Evidence; Crimes or Other Acts
* * *
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
* * *
Pa.R.E. 404(b)(1)-(2).
“[E]vidence of prior crimes is not admissible for the sole purpose of
demonstrating a criminal defendant’s propensity to commit crimes.”
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.Super.
2004) (en banc). Nevertheless, “[e]vidence may be admissible in certain
circumstances where it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant’s character.” Id. Specifically,
evidence of other crimes or bad acts is admissible if offered for a non-
propensity purpose, such as proof of an actor’s knowledge, plan, motive,
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identity, or absence of mistake or accident. Commonwealth v. Chmiel, 585
Pa. 547, 889 A.2d 501 (2005), cert. denied, 549 U.S. 848, 127 S.Ct. 101, 166
L.Ed.2d 82 (2006). “Another special circumstance where evidence of other
crimes may be relevant and admissible is where such evidence was part of the
chain or sequence of events which became part of the history of the case and
formed part of the natural development of the facts.” Commonwealth v.
Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988). This “special
circumstance” is sometimes referred to as the “res gestae” exception, or the
“complete story” rationale. Id.Importantly:
Not all improper references to prior bad acts will mandate a
new trial, however. Mere passing references to criminal
activity will not require reversal unless the record indicates
that prejudice resulted from the reference. Harmless error
is present when the properly admitted evidence of guilt is
so overwhelming and the prejudicial effect of the error is so
insignificant by comparison that it is clear beyond a
reasonable doubt that the error could not have contributed
to the verdict.
Commonwealth v. Stafford, 749 A.2d 489, 496-97 (Pa.Super. 2000),
appeal denied, 568 Pa. 660, 795 A.2d 975 (2000) (internal citations and
quotation marks omitted). Additionally, this Court has explained that a
curative instruction might adequately remedy an improper reference to prior
bad acts:
Consideration of all the circumstances is necessary in
determining whether an instruction can cure the exposure
of improper evidence to the jury. Among the circumstances
to be considered are whether the remark was intentionally
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elicited by the Commonwealth, whether the Commonwealth
exploited the reference, whether the answer is responsive
to the question asked, and whether [the] curative
instructions…given were significant.
Commonwealth v. Vasquez, 617 A.2d 786, 788 (Pa.Super. 1992) (internal
citations omitted).
Instantly, Appellant challenges three references to his “prior bad acts.”
Appellant’s first challenge is to Officer Rosinski’s testimony that Ms. Wise “said
that she was scared because there was an issue with her and [Appellant] from
past relationships; she knows that [Appellant] can be violent.” (See N.T. Trial
at 29). Defense counsel immediately objected to this testimony, and the court
sustained the objection. Shortly thereafter, Appellant moved for a mistrial.
(Id. at 30). The prosecutor informed the court that witnesses were instructed
not to go into any prior incident regarding Appellant, and the prosecutor
apologized for Officer Rosinski’s statement. The court acknowledged that the
reference to Appellant’s violence was brief and denied the request for a
mistrial. (Id.) Given that the Commonwealth did not elicit the offending
testimony or exploit the testimony, and the officer’s answer was not totally
responsive to the prosecutor’s question, a curative instruction might have
been an adequate remedy here to ameliorate any prejudice. See Vasquez,
supra. Nevertheless, Appellant declined the court’s offer to issue a curative
instruction. (See N.T. Trial at 30). Further, in light of the evidence presented
against Appellant in this case, Officer Rosinski’s comment amounted to
harmless error. See Stafford, supra. Under these circumstances, we see
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no reason to disrupt the court’s denial of a mistrial concerning Officer
Rosinski’s comment. See Rega, supra.Concerning Appellant’s next challenge to Ms. Velasquez’s statement that
she was communicating with Ms. Wise on the night in question because they
were “talking about the domestic,” we initially note that Appellant did not
object to this response at the time it was made. Consequently, any challenge
to this comment is waived. See Commonwealth v. Russell, 209 A.3d 419(Pa.Super. 2019), appeal denied, 655 Pa. 508, 218 A.3d 862 (2019)
(explaining that to preserve claim for appellate review, party must make
timely and specific objection at appropriate stage of proceedings before trial
court, or claim is waived; Superior Court will not consider claim which was not
called to trial court’s attention at time when any error committed could have
been corrected). Further, the reference to a “domestic” did not state the word
“violence” as the prosecutor cut off Ms. Velasquez before she continued with
her comment. Thus, even if not waived, any error regarding this comment
was harmless in light of the evidence presented against Appellant in this case.
See Stafford, supra.In his final complaint, Appellant challenges Ms. Velasquez’s statements
made during cross-examination, in which Ms. Velasquez said that she drove
Appellant to Ms. Wise’s home on the night in question because he told her he
was “gonna fuck [her] up” and “because [she] was scared.” (See N.T. Trial
at 65-66). Defense counsel then asked why Ms. Velasquez would pick up
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Appellant from work that night if she was afraid, to which Ms. Velasquez
responded: “Because that night before he put his hands on me.” (Id.)
Defense counsel then asked to approach the bench and requested a mistrial.
As the trial court explained:
Initially, it must be noted that Appellant’s counsel asked
these questions of the witness and when the witness
answered the questions responsively, he objected. To allow
counsel to secure a mistrial after receiving a responsive
answer to the question posed would be ludicrous and open
the door to having counsel ask such questions when a trial
was proceeding unfavorably for their client.
(Trial Court Opinion at unnumbered p. 10) (emphasis in original). We agree
with the court’s analysis. See Commonwealth v. Miller, 481 A.2d 1221(Pa.Super. 1984) (stating that when defense counsel puts question to witness
that cannot be answered fairly without statement of fact as explanation, then
explanation is deemed to be invited by counsel, and complaint that it was
added to answer cannot be made; having demanded complete answer,
counsel must accept answer given; defendant must assume risk of his
counsel’s questions and he cannot benefit on appeal when his own cross-
examination elicited unwelcome response”). On this record, we see no abuse
of discretion in the trial court’s denial of the request for a mistrial concerning
Ms. Velasquez’s testimony.2 See Rega, supra. Accordingly, we affirm
____________________________________________
2 Based on our disposition, we need not decide whether any of the challenged
testimony of Officer Rosinski or Ms. Velasquez fell under any Rule 404(b)(2)
exception or the res gestae exception. Indeed, we can affirm the trial court’s
(Footnote Continued Next Page)
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Appellant’s convictions for burglary and simple assault, but reverse his
conviction for REAP.
Convictions affirmed in part, reversed in part. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/01/2022
____________________________________________
ruling on any grounds. See Commonwealth v. McFalls, 251 A.3d 1286(Pa.Super. 2021) (explaining that we may affirm trial court’s determination
on any proper grounds).
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