Com. v. Miller, S.

J-A19017-17
2017 PA Super 330COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN R. MILLER, :
:
Appellant : No. 3130 EDA 2015
Appeal from the Judgment of Sentence June 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0011715-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
OPINION BY DUBOW, J.: FILED OCTOBER 17, 2017
Appellant, Steven R. Miller, appeals from the Judgment of Sentence
entered by the Philadelphia County Court of Common Pleas following his
convictions after a jury trial of Aggravated Assault, Simple Assault, and
Possessing an Instrument of Crime (“PIC”).1 After careful review, we affirm
on all issues Appellant raised before the trial court, and remand for
consideration of Appellant’s after-discovered evidence claim.
On October 6, 2013, Appellant, an inmate at Curran-Fromhold
Correctional Facility in Philadelphia, was using a phone in the prison’s
telephone bank. Khayree Murray, a fellow inmate, approached Appellant and
asked to use one of the phones. Correctional Officers Denise Irving and Eddie
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1 18 Pa.C.S. § 2702; 18 Pa.C.S. § 2701; and 18 Pa.C.S. § 907, respectively.
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Rosa and Correctional Sergeant Joyce Cooper observed Appellant attack
Murray. Appellant stabbed Murray several times with “a sharp long screw
rigged with sharp ridges and a rubber band wrapped in a ripped T-shirt” in the
head, back, and ear. Officer Rosa immediately intervened, separated the two
men with the help of Officer Irving, and used pepper spray to subdue
Appellant. Officers recovered the makeshift weapon from the ground after
Appellant dropped it. Officer Rosa testified that Murray was in shock and that
he did not observe Murray strike Appellant.
Murray attempted to downplay his injuries, and told officers that he fell
down some stairs. Murray sustained life-threatening injuries, which included
three stab wounds to the back, two puncture wounds to the base of his neck,
wounds to his back, back of the head, and left hand, and lacerations to his ear
and cheek. Murray’s injuries required eight sutures. Sergeant Cooper decided
to transport Murray to the hospital for treatment. Appellant had no injuries,
but he was treated for pepper spray in his eyes and placed in solitary
confinement.
While walking with Officer Rosa through the prison shortly after the
stabbing, Appellant stated, “If you didn’t pepper spray, you would have been
the next victim.”2 Trial Court Opinion at 5. In recorded prison phone calls,
Appellant subsequently made several inculpatory statements, boasted of his
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2 Officer Rosa omitted this statement from his official written report of the
incident.
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violent reputation in the prison as a result of the attack, and repeated a rumor
that there was a bounty on Murray’s head because he was a snitch.
Appellant proceeded to a jury trial. Murray refused to testify at trial and
the trial court held him in contempt. Appellant testified and claimed that he
acted in self-defense. Although Appellant claimed that Murray attacked him
first with the weapon, Appellant admitted that he never feared that Murray
would kill him.
On June 25, 2015, the jury convicted Appellant of Aggravated Assault,
Simple Assault, and PIC. On that same day, the trial court imposed an
aggregate term of 8 to 20 years’ incarceration. Appellant filed a Post-
Sentence Motion, which the trial court denied on October 2, 2015.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents eight issues on appeal:
1. Were the convictions for [Aggravated Assault, Simple Assault,
and PIC] not supported by sufficient evidence? Was the evidence
speculative, contradictory and inconsistent such that the verdicts
were not supported by sufficient evidence?
2. Were the convictions for [Aggravated Assault, Simple Assault,
and PIC] against the weight of the evidence? Was the evidence
speculative, contradictory and inconsistent?
3. Did the Assistant District Attorney err in his opening statement
by stating that [Appellant] for the same conduct was disciplined
by the prison and given the punishment of sixty days in solitary
confinement, thereby improperly tainting the jury by the prison
disciplinary finding? Further, did the District Attorney err in
questioning the correctional officer about [Appellant] being placed
in the solitary cell as punishment for this matter? Did the District
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Attorney err in his closing speech when he gave his personal
opinion that the correctional officer was telling the truth and was
completely candid and honest with the jury? Did these errors
individually and cumulatively deny [Appellant] his right to due
process and a fair trial? Did Judge Coyle err in not granting a
mistrial?
4. Did Judge Coyle err when instructing the jury by not giving an
adverse inference charge because the alleged victim, [Murray],
refused to testify and pled the Fifth Amendment? Did Judge Coyle
err in refusing to give such an adverse inference charge to the
jury about [Murray’s] lack of testifying?
5. Did Judge Coyle err in allowing the correctional officer to testify
that [Appellant] said to him at the time, "It's a good thing you
broke it up because I would have assaulted you also" and "If you
didn't pepper spray, you would have been the next victim." Did
Judge Coyle err since this statement was not made and told to
anyone until the third day of trial, the officer had never even made
such a statement in any of the police reports or discovery or
during his testimony at the preliminary hearing previously and the
defense strategy had already been set? Did the Court err in
allowing this testimony and should a new trial be granted as a
result?
6. Did Judge Coyle err in allowing the transcript of the prison
telephone conversation of [Appellant] to be sent back to the jury
during deliberations since it had already been played to the jury,
allowing this testimony to remain with the jury during deliberation
and unduly emphasizing this testimony, which was unfair to
[Appellant]? Further, did Judge Coyle err in allowing the telephone
conversations to be admitted at all since the conversations
seemed to suggest [Appellant] was a bad person and people were
after him, thereby tainting the jury?
7. Did Judge Coyle err in precluding [Appellant] from introducing
the fact that the alleged victim, [Murray] (an inmate) had attacked
another inmate in a similar fashion at a prison phone bank and
had pending charges on that assault? Did the Court err since this
would show a common scheme, plan and design, and would show
intentional assault by the alleged victim?
8. Did the Superior Court err in not remanding the case to the trial
judge and should a new trial be granted based on the after
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discovered evidence of two witnesses who observed the events
and would have confirmed [Appellant’s] version?
Appellant’s Brief at 7-11.
Sufficiency of the Evidence
Appellant first challenges the sufficiency of the evidence supporting his
convictions for Aggravated Assault, Simple Assault, and PIC. We review
claims regarding the sufficiency of the evidence by considering whether,
“viewing all the evidence admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.” Commonwealth v.
Melvin, 103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence. Id. In conducting this
review, the appellate court may not weigh the evidence and substitute its
judgment for the fact-finder. Id. at 39-40.
Self-Defense
Appellant claims that the Commonwealth failed to disprove that
Appellant acted in self-defense, and argues that this negates Appellant’s
criminal liability on all charges. Appellant’s Brief at 39.
When one employs deadly force, as Appellant did, the elements of a
claim of self-defense are that the individual (1) reasonably believed that force
was necessary to protect himself against death or serious bodily injury; (2)
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was free from fault in provoking the use of force against him; and (3) did not
violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740
(Pa. 2012); see also 18 Pa.C.S § 505(b)(2).
A defendant does not have a burden to prove a claim of self-defense.
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). Once a defendant
introduces some evidence to justify a finding of self-defense, then the issue is
properly before the fact-finder and the Commonwealth bears the burden to
disprove the defense beyond a reasonable doubt. Id.In this case, we conclude that Appellant’s testimony—that Murray
attacked him first using the weapon—provided “some evidence” to support a
finding of self-defense. See id. If Murray provoked the fight, Appellant could
have reasonably believed that force was necessary to protect himself.
Once the issue of self-defense was before the fact-finder, it was the
Commonwealth’s burden to disprove the defense beyond a reasonable doubt.
See id. The Commonwealth presented sufficient evidence that Appellant
initiated the fight unprovoked after Murray asked to use the phone, that
Appellant unreasonably believed that force was necessary to protect himself
against death or serious bodily injury, that Appellant acted unreasonably in
stabbing Murray repeatedly, and that Appellant had a duty to retreat without
using the weapon. The Commonwealth presented testimony from several
eyewitnesses, as well as Appellant’s own inculpatory statements about, inter
alia, his motive for stabbing Murray.
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After a review of the evidence in the light most favorable to the
Commonwealth, we conclude that the Commonwealth disproved beyond a
reasonable doubt that Appellant acted in self-defense.
Aggravated Assault and Simple Assault
We next address Appellant’s challenges to the sufficiency of the
evidence supporting his convictions for Aggravated Assault and Simple
Assault. “A person is guilty of [A]ggravated [A]ssault if he . . . attempts to
cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference
to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1). The Crimes Code
defines “Serious bodily injury” as “[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.
§ 2301. See Commonwealth v. Walls, 950 A.2d 1028, 1032 (Pa. Super.
2008) (holding that evidence that the appellant repeatedly stabbed the victim
causing cuts, scratches, and lacerations to the upper torso sufficient to sustain
a conviction for aggravated assault).
“A person acts intentionally with respect to a material element of an
offense when ... it is his conscious object to engage in conduct of that nature
or to cause such a result[.]” 18 Pa.C.S. § 302(b)(1)(i). “As intent is a
subjective frame of mind, it is of necessity difficult of direct proof.”
Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. 2005) (citations
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omitted). “[I]ntent can be proven by direct or circumstantial evidence; it may
be inferred from acts or conduct or from the attendant circumstances.” Id.See also Commonwealth v. Gray, 867 A.2d 560, 568 (Pa. Super. 2005)
(holding that infliction of multiple stab wounds with screwdriver demonstrated
intent to inflict serious bodily injury).
In Pennsylvania, a person is guilty of Simple Assault if he “attempts to
cause or intentionally, knowingly or recklessly causes bodily injury to
another[.]” 18 Pa.C.S. § 2701(a)(1). The Crimes Code defines “Bodily injury”
as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
The evidence is more than sufficient to sustain Appellant’s convictions
for Aggravated Assault and Simple Assault. It was well within the province of
the jury to conclude that Appellant intended to kill or seriously injure Murray
when Appellant repeatedly stabbed him with a deadly improvised weapon after
Murray asked to use the telephone. Appellant continued his attack until
correctional officers intervened to separate Appellant from Murray. Appellant
finally stopped when a correctional officer used pepper spray to subdue him.
In addition, Appellant repeatedly provided inculpatory statements to
corrections officers and to others while speaking on the prison phones,
including statements about why he attacked Murray. The jury could also
reasonably infer Appellant’s criminal intent from the surrounding
circumstances; namely, that Appellant, a prisoner, possessed an improvised
contraband weapon inside the prison. The Commonwealth also submitted
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sufficient evidence of Murray’s serious injuries, his hospitalization, and his
medical treatment, to which Appellant stipulated at trial. In contrast, there
was ample testimony, documentary evidence, and photographs of Appellant’s
lack of injuries.
Appellant focuses his argument on the contradictory testimony by
various corrections officers. This aspect of his argument challenges the weight
of the evidence, and ignores our standard of review applicable to sufficiency
challenges.3 We must view all of the evidence in the light most favorable to
the Commonwealth as verdict winner and we may not reweigh the evidence
and substitute our judgment for that of the fact-finder. See Melvin, supra
at 39-40.
Viewing the totality of the evidence in the light most favorable to the
Commonwealth as the verdict winner, it is clear that the Commonwealth
proved each element of Aggravated Assault and Simple Assault. See Walls,
supra at 1032; Gray, supra at 568.
PIC
We next analyze Appellant’s conviction for PIC. Appellant once again
avers that the Commonwealth failed to disprove that Appellant acted in self-
defense, and argues that this negates Appellant’s criminal liability for the PIC
charge. Appellant’s Brief at 8.
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3 We discuss Appellant’s challenge to the weight of the evidence infra.
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To sustain a conviction for PIC, the Commonwealth had to prove that
Appellant (1) possessed an instrument of crime, (2) with intent to employ it
criminally. See 18 Pa.C.S. § 907(a). Under the statute, an “instrument of
crime” is defined, in pertinent part, as “[a]nything specially made or specially
adapted for criminal use.” 18 Pa.C.S. § 907(d). While a fact-finder can infer
intent from the surrounding circumstances, intent cannot be inferred from
“mere possession of the weapon.” In re A.C., 763 A.2d 889, 891 (Pa. Super.
2000). Further, a fact-finder cannot reasonably infer criminal intent if a
defendant used a weapon solely for self-defense. Id.A review of the record in the light most favorable to the Commonwealth,
giving the Commonwealth all favorable inferences, supports the trial court’s
conclusion that there was sufficient evidence to convict Appellant of PIC.
While a fact-finder cannot infer criminal intent from mere possession of a
weapon, this is a unique set of circumstances where Appellant is incarcerated
and there is no legal purpose to possess a weapon in prison. Possession of a
weapon by a prisoner in prison is “inherently criminal” and the fact-finder
could infer Appellant’s criminal intent from the surrounding circumstances,
namely that Appellant was incarcerated and possessed a weapon. See id.Further, there was substantial evidence that Appellant actually
employed the weapon criminally when he stabbed Murray. We have already
addressed Appellant’s self-defense claim as unsupportable; accordingly, that
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theory of relief does not negate Appellant’s criminal liability for this charge.
Thus, we conclude that the Commonwealth proved each element of PIC.
Viewing the totality of the evidence in the light most favorable to the
Commonwealth as the verdict winner, it is clear that the Commonwealth
proved each element of Aggravated Assault, Simple Assault, and PIC.
Appellant’s sufficiency challenges, thus, fail.
Weight of the Evidence
We next address Appellant’s assertion that the jury’s verdict was against
the weight of the evidence because Officer Rosa’s testimony “was absolutely
and totally inconsistent, contradictory, unreliable[,] and speculative.” See
Appellant’s Brief at 46-47.
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses.” Commonwealth v. Talbert, 129
A.3d 536, 545 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016)
(quotation marks and citation omitted). Resolving contradictory testimony
and questions of credibility are matters for the finder of fact.
Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000). It is
well-settled that we cannot substitute our judgment for that of the trier of
fact. Talbert, supra at 546.
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Moreover, “Appellate review of a weight claim is a review of the exercise
of discretion, not the underlying question of whether the verdict is against the
weight of the evidence.” Id. at 545-46. “Because the trial judge has had the
opportunity to hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that the verdict is [or
is not] against the weight of the evidence.” Id. at 546. “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.” Id.
Furthermore, “in order for a defendant to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Id. (quotation marks
and citation omitted).
“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014). For that reason, the trial court need not view the evidence in the light
most favorable to the verdict winner, and may instead use its discretion in
concluding whether the verdict was against the weight of the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).
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Appellant essentially asks us to reassess the credibility of the
eyewitnesses and reweigh the testimony and evidence presented at trial. We
cannot and will not do so. Our review of the record shows that the evidence
is not tenuous, vague, or uncertain, and the verdict was not so contrary to the
evidence as to shock the court’s conscience.
We conclude the trial court properly exercised its discretion in
concluding that the jury’s verdict was not against the weight of the evidence.
Accordingly, Appellant is not entitled to relief on his weight claim.
Prosecutorial Misconduct
Appellant’s next issue involves allegations of prosecutorial misconduct
during opening statements and closing arguments. In his opening statement,
the prosecutor described the lack of physical injuries to Appellant and
commented, in passing, that the prison placed Appellant “in the hole for sixty
days.” N.T. Trial, 6/23/15, at 19. During closing arguments, Appellant
objected to the prosecutor’s statement that Officer Rosa “was completely
honest and candid with you.” N.T. Trial, 6/25/15, at 36. The trial court
sustained Appellant’s objections made after both comments, but denied his
requests for a mistrial. Id.We review a trial court’s denial of a mistrial motion for abuse of
discretion. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). When
considering such a contention, “our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect one, because not every
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inappropriate remark by a prosecutor constitutes reversible error.”
Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citation
omitted). “It is also well established that a trial court may grant a mistrial
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.” Bryant,
supra at 728 (quotation marks and citation omitted).
“While it is improper for a prosecutor to offer any personal opinion as to
the guilt of the defendant or the credibility of the witnesses, it is entirely
proper for the prosecutor to summarize the evidence presented, to offer
reasonable deductions and inferences from the evidence, and to argue that
the evidence establishes the defendant’s guilt[.]” Commonwealth v. Burno,
94 A.3d 956, 974 (Pa. 2014).
Moreover, “[i]n determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by a prosecutor must
be examined within the context of defense counsel’s conduct. It is well settled
that the prosecutor may fairly respond to points made in the defense closing.”
Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012); see
also Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006) (stating that
a prosecutor is entitled to fairly respond to arguments made by defense
counsel in closing argument). In fact, “[e]ven an otherwise improper
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comment may be appropriate if it is in fair response to defense counsel’s
remarks.” Burno, supra at 974.
Opening Statement
In this appeal, Appellant claims the court should have declared a mistrial
because the opening statements unfairly “brought to the attention of the jury
that there had been a disciplinary determination that [Appellant] was at fault
and, therefore, he was placed in punitive solitary confinement as punishment.”
Appellant’s Brief at 51-52.
We disagree that this statement represents actionable prosecutorial
misconduct. The context of the prosecutor’s entire statement shows that he
was explaining to the jury what he expected the evidence to show, namely,
that comparing the extent of the victim’s serious injuries and subsequent
hospitalization with Appellant’s minimal and temporary pepper spray
impairment would show that Appellant was the aggressor and disprove his
self-defense claim. Appellant directs us to no authority prohibiting a
prosecutor from mentioning a defendant’s detention in solitary confinement.
Moreover, we note that the trial court sustained Appellant’s objection, and the
prosecutor moved on to address other subjects in his opening statement.
Appellant’s remaining complaint is that the trial court erroneously
rejected his request for a mistrial at this early stage of the proceedings against
him. The trial court denied the mistrial after determining that the prosecutor
had not acted improperly because the statements highlighted the comparative
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injuries between Appellant and the victim. Further, the trial court concluded
that its preemptive curative instructions before opening statements
appropriately cautioned the jury that the statements of counsel did not
constitute evidence. Trial Court Opinion at 15. We agree, and conclude that
the trial court did not abuse its discretion in denying Appellant’s request for a
mistrial during opening statements.
Closing Argument
With respect to Appellant’s challenge to the prosecutor’s closing
argument regarding Officer Rosa’s testimony, we conclude it was a fair
response to Appellant’s counsel’s repeatedly attacking Officer Rosa’s
credibility, both in his opening statement and closing argument. See, e.g.,
N.T. Trial, 6/23/15, at 28-29 (“The key officer is Officer [Rosa] . . . Officer
Rosa doesn’t really see what’s happening.”); id. at 30 (“Officer Rosa only
changed his testimony to say, [y]eah, my client was on the phone. And that’s
a big difference . . . Now, Mr. Rosa doesn’t really see it because he’s watching
the door. That’s why he’s confused.”); id. at 31 (“Because you’ll hear Officer
Rosa saying everything happened at 6:30, and then it changes to 5:30. It’s
really 5:23.”); N.T. Trial, 6/25/15, at 13 (“The critical thing of both Ms. Irving
and Ms. Cooper is they totally contradict Mr. Rosa.”); id. at 14 (“they totally
contradict Mr. Rosa.”); id. at 15 (“Now, what’s wrong with Mr. Rosa’s
testimony[?] The Problem is – besides totally contradicting his two colleagues
– there wasn’t a fight . . . he got the events totally backward. Absolutely
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backwards.”); id. at 16 (“If I didn’t subpoena those records in, who knows
where we would be because Rosa was wrong. Rosa got them confused. And
that’s critical in these matters.”); id. at 19 (“Now, we know that totally
contradicts the other two officers. In other words, he doesn’t know. He’s
either lying . . . or he’s mistaken.”); id. at 29 (“And that’s consistent with
what Rosa says. Not now, but it’s consistent with what Rosa said.”); id. at 31
(“and you go back to the confusion of Mr. Rosa, which you know we
straightened out with the phone records…”).
Moreover, the trial court carefully instructed the jury on how to evaluate
the arguments of counsel, how to consider and weigh the testimony presented
at trial, and how to evaluate and weigh conflicting evidence. See N.T. Trial,
6/25/15, at 2-3, 56-63. We, therefore, conclude that the trial court did not
abuse its discretion in denying Appellant’s requests for a mistrial based on
Appellant’s claims of prosecutorial conduct.
Refusal to Give “Adverse Inference” Jury Instruction
In his next issue, Appellant avers that the trial court erred in failing to
instruct the jury that they could draw an adverse inference against the
Commonwealth based on the victim’s refusal to testify at trial. Appellant’s
Brief at 56.
Our standard of review in assessing a trial court’s jury instruction is as
follows. “When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated portions, to
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determine if the instructions were improper.” Commonwealth v.
Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citations and quotation
omitted). A trial court has “broad discretion in phrasing its instructions, and
may choose its own wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration.” Id. (citations and
quotation omitted). “Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible error.” Id. (citations and
quotation omitted).
“The trial court is not required to give every charge that is requested by
the parties and its refusal to give a requested charge does not require reversal
unless the Appellant was prejudiced by that refusal.” Commonwealth v.
Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
A missing witness instruction may be given in limited circumstances.
“When a potential witness is available to only one of the parties to a trial, []
it appears this witness has special information material to the issue, and this
person’s testimony would not merely be cumulative, then if such party does
not produce the testimony of this witness, the jury may draw an inference
that it would have been unfavorable.” Commonwealth v. Boyle, 733 A.2d
633, 638 (Pa. Super. 1999) (citation and quotation omitted). However, this
Court has clarified at least six circumstances where a party is not entitled to
the missing witness adverse inference instruction:
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1. The witness is so hostile or prejudiced against the party
expected to call him that there is a small possibility of obtaining
unbiased truth;
2. The testimony of such a witness is comparatively unimportant,
cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to
call such a witness;
5. The witness is not available or not within the control of the party
against whom the negative inference is desired; and
6. The testimony of the uncalled witness is not within the scope of
the natural interest of the party failing to produce him.
Boyle, supra at 638 (citation omitted).
Here, the Commonwealth had the victim brought to the courthouse to
testify. According to the trial court, the victim, still an inmate, “repeatedly
refused to even leave the sheriff’s cell room located in the basement” of the
courthouse. Trial Court Opinion at 19. The trial court ordered the victim
physically removed from the cell room in shackles and put on the witness
stand to testify as a witness for the Commonwealth. Id. The victim refused
to state his name or otherwise cooperate, despite numerous warnings from
the trial court. Id. The trial court found the victim in direct criminal contempt
and removed him from the courtroom. Id.
Appellant requested that the trial court provide a “missing witness”
instruction to the jury that, based on the victim’s refusal to testify, it could
draw an inference that the victim’s testimony would have been adverse to the
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Commonwealth. Id. The trial court denied Appellant’s request because the
Commonwealth did call the victim to the stand to testify and the victim was
equally available or unavailable to both parties.
Our review of the record supports the trial court’s assessment. The
victim was equally available to both the Commonwealth and Appellant at trial.
Moreover, the Commonwealth actually called the victim at trial and put him
on the witness stand. The Commonwealth had no control over the victim’s
refusal to cooperate and answer questions. Thus, Appellant was not entitled
to a missing witness adverse inference instruction and the trial court did not
err in refusing to provide such an instruction to the jury. We discern no abuse
of the trial court’s discretion.
Appellant’s Inculpatory Statements
In his next issue, Appellant avers that the trial court erred in admitting
his own incriminating statement made to Officer Rosa—that Appellant would
have attacked Officer Rosa next if Officer Rosa had not pepper sprayed him—
because Officer Rosa had not disclosed the statement until the third day of
trial and the Commonwealth notified Appellant too late. Appellant’s Brief at
60-62.4
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4 Appellant does not allege in his Brief that the Commonwealth had
intentionally withheld the inculpatory statement in any way. Though Appellant
mentions the discovery rules in passing in his Brief, this aspect of his claim is
undeveloped and, thus, waived. Pa.R.A.P. 2119; see also Commonwealth
v. Perez, 93 A.3d 829, 838 (Pa. 2014) (undeveloped arguments without
supporting citations are waived).
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The “[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.
Super. 2015) (citation and quotation omitted). “[A]n abuse of discretion is
not merely an error of judgment, but is rather the overriding or misapplication
of the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will[,] or partiality, as shown by the evidence or
the record.” Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super.
2001) (citation and quotation omitted).
Pre-trial discovery in criminal cases is governed by Pennsylvania Rule of
Criminal Procedure 573. The rule lists certain items and information that are
subject to mandatory disclosure by the Commonwealth when they are: (1)
requested by the defendant, (2) material to the case, and (3) within the
possession or control of the prosecutor. These items include the substance of
any inculpatory statements and the identity of the person to whom it is made
when in the possession of the Commonwealth. See Pa.R.Crim.P.
573(B)(1)(b).
Rule 573 also imposes a continuing duty to disclose: “If, prior to or
during trial, either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to discovery or
inspection under this rule, or the identity of an additional witness or witnesses,
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such party shall promptly notify the opposing party or the court of the
additional evidence, material, or witness.” Pa.R.Crim.P. 573(D).
“[W]here the evidence is equally accessible or inaccessible to both the
Commonwealth and the defense, the defense cannot use the discovery rules
against the Commonwealth for its failure to produce the evidence.”
Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003) (citation
omitted).
In the instant case, in reviewing his paperwork in preparation for his
trial testimony, Officer Rosa noticed his omission of the statement Appellant
had made to him, and immediately notified the prosecutor during trial, who
then immediately notified Appellant’s counsel. See Trial Court Opinion at 12.
Upon learning of the statement during trial, Appellant immediately
requested that the trial court preclude this statement because the
Commonwealth disclosed it untimely, but the trial court refused to preclude
Officer Rosa’s testimony about Appellant’s inculpatory statement. Id. Even
though the trial court offered Appellant the opportunity to litigate a Motion to
Suppress given the untimely disclosure, Appellant “strategically declined” this
offer and instead chose to cross-examine Officer Rosa extensively about his
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untimely disclosure and omission within the report as part of his broader
attempt to undermine Officer Rosa’s credibility. Id.5
We conclude the trial court properly admitted Officer Rosa’s testimony
regarding Appellant’s statement. Because Officer Rosa had omitted the
statement from his official report of the assault, this evidence was equally
inaccessible to both the Commonwealth and the defense.6 As a result,
Appellant cannot use the discovery rules against the Commonwealth for its
failure to produce the evidence sooner. See Dent, supra at 585.
Moreover, the Commonwealth complied with its continuing duty to
disclose by immediately notifying Appellant when Officer Rosa disclosed the
existence of Appellant’s inculpatory statement. See Pa.R.Crim.P. 573(D).
Thus, the trial court properly rejected Appellant’s request to preclude his own
inculpatory statement to Officer Rosa.
Because we discern no violation of Rule 573 by the Commonwealth, the
trial court did not err or abuse its discretion by refusing to preclude Appellant’s
inculpatory statement at trial. Appellant’s arguments to the contrary are
unavailing and he is not entitled to relief.
____________________________________________
5 Officer Rosa testified that he did not believe the substance of Appellant’s
threat was important at the time detectives interviewed him because threats
by inmates were commonplace in prison. N.T., 6/24/15, at 62, 84-86.
6Arguably, the Commonwealth was at the bigger disadvantage since Appellant
made the statements and thus logically knew the statement existed, while the
prosecutor had no way of knowing about Officer Rosa’s omission prior to trial.
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Transcripts of Recorded Prison Calls
In Appellant’s next issue, he avers that the trial court erred in permitting
the jury to take a transcript of his recorded prison telephone conversations to
the jury room during deliberations. Appellant’s Brief at 62-65.7 Appellant
conceded at trial that these recordings did not amount to his own confession,
which the jury would not be permitted to have during deliberations pursuant
to Pa.R.Crim.P. 646(C)(2). See N.T., 6/25/15, at 79. Here, he argues that
these “conversations were marginally relevant . . . [and the trial court] abused
her discretion in allowing these transcripts . . . to go back to the jury[.]”
Appellant’s Brief at 65.
Ordinarily, “[w]hether an exhibit should be allowed to go out with the
jury during its deliberation is within the sound discretion of the trial judge.”
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012);
Pa.R.Crim.P. 646(A); see also Commonwealth v. Bango, 685 A.2d 564 (Pa.
Super. 1996).
____________________________________________
7 Appellant’s question presented also suggests that the trial court erred in
admitting this evidence at all, however, Appellant does not advance any
argument or cite relevant authority to support this claim. See Pa.R.A.P. 2119.
Appellant only argues that the trial court erred in allowing the jury to have
these transcripts during deliberations. Thus, Appellant has waived this aspect
of his claim. See Commonwealth v. McMullen, 745 A.2d 683 (Pa. Super.
2000) (finding issues waived where Appellant failed to develop any argument
for the claims and noting that meaningful appellate review is impossible in
such a situation).
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This discretion, however, is not absolute. Pennsylvania Rule of Criminal
Procedure 646 expressly forbids juries from having certain enumerated
categories of exhibits during deliberations, including written defendant
confessions. See Pa.R.Crim.P. 646(C). “The underlying reason for excluding
certain items from the jury’s deliberations is to prevent placing undue
emphasis or credibility on the material, and de-emphasizing or discrediting
other items not in the room with the jury.” Commonwealth v. Strong, 836
A.2d 884, 888 (Pa. 2003). “If there is a likelihood [that] the importance of
the evidence will be skewed, prejudice may be found; if not, there is no
prejudice per se and the error is harmless.” Id.Where a recording has been admitted as evidence at trial, but the
transcripts of that recording have not, this Court has previously held that trial
courts may permit the jury to use the transcripts during deliberations “as an
aid in its assessment of the [recordings].” Bango, supra at 566. We
reasoned that “where materials inform a jury and aid it in the difficult task of
determining facts, the jury should be permitted to study those materials
during its deliberations.” Id.Appellant has failed to establish that the trial court abused its discretion
in permitting the jury to have these transcripts during deliberations. The
transcripts were not forbidden under Pa.R.Crim.P. 646(C), so our Rules of
Evidence permitted the trial court to exercise its sound discretion in
determining whether to permit the jury to have these transcripts during
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deliberations. The trial court sent these transcripts to the jury in response to
their request during deliberations. This occurred after the trial court had
admitted the recordings at trial, and after the jury had reviewed the
transcripts without objection while the Commonwealth played the recordings
for the jury. Pursuant to Bango, supra, the trial court did not abuse its
discretion in allowing the jury to review the transcripts during deliberations.
Appellant is entitled to no relief.
Victim’s Similar Attack Under Pa.R.E. 404(b)
In his next issue, Appellant contends that the trial court improperly
precluded him from introducing hearsay evidence pursuant to Pa.R.E. 404(b)
that the victim “had attacked another inmate in a similar fashion at a prison
phone bank, and had pending criminal charges on that assault.” Appellant’s
Brief at 66. Appellant argues that this similar assault showed the victim’s
“propensity to violence” and a “common plan, scheme or design” pursuant to
only Pa.R.E. 404(b)(1). Id. at 66, 68-69.
Pennsylvania Rule of Evidence 404 sets out the general rules and
exceptions pertaining to relevant evidence of crimes or other acts. Generally,
evidence of a victim’s violent propensities is inadmissible pursuant to Pa.R.E.
404(a)(1) and (b)(1).
When considering the admissibility of evidence under the common plan
exception provided in Rule 404(b), “the trial court must first examine the
details and surrounding circumstances of each criminal incident to assure that
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the evidence reveals criminal conduct which is distinctive and so nearly
identical as to become the signature of the same perpetrator.” Tyson, supra
at 358-59 (citation omitted). Further, “the trial court must assure that the
probative value of the evidence is not outweighed by its potential prejudicial
impact upon the trier of fact.” Id. at 359. See generally Daniel J. Anders,
Ohlbaum on the Pennsylvania Rules of Evidence § 404.06 et seq. (2017 ed.
LexisNexis Matthew Bender).
Given Appellant’s legal strategy, the only issue before this Court is
whether the trial court erred in refusing to admit this evidence of the victim’s
alleged prior attack of an inmate pursuant to Pa.R.E. 404(b).8 Appellant
emphasizes that the trial court should have admitted this evidence because it
demonstrated the victim’s “propensity toward violence, and . . . a common
____________________________________________
8 Where a criminal defendant faces charges of a violent crime he may offer
evidence of the victim’s violent propensities to prove his own innocence
pursuant to Pa.R.E. 404(a)(2). If such evidence is admitted the
Commonwealth may offer evidence not only in rebuttal, but the
Commonwealth may “offer evidence of the defendant’s same trait[,]” i.e.,
evidence of the defendant’s own violent propensities. Pa.R.E. 404(a)(2)(B).
“Thus, the jury will receive a balanced picture of the two participants to help
it decide who was the first aggressor.” Pa.R.E. 404, Comment.
Here, Appellant did not attempt to comply with Pa.R.E. 404(a)(2), the specific
and applicable evidentiary rule regarding evidence of a victim’s pertinent
character trait as a violent person. The Commonwealth avers this was a
transparent legal strategy: had Appellant followed the appropriate rules to
admit the victim’s violent attack in order to prove the victim’s violent
propensities and Appellant’s own innocence, the Commonwealth would have
likely sought to admit Appellant’s own violent prior Third-Degree Murder
conviction as rebuttal evidence.
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plan, scheme[,] and design type of effect showing that [the victim] was an
aggressor in these types of situations.” Appellant’s Brief at 66.
Appellant failed to meet the common plan, scheme, or design exception
because the instant crime and the victim’s other assault in prison near the
phone bank are not so “distinctive and so nearly identical as to become the
signature of the same perpetrator.” Tyson, supra at 359. While they were
both purportedly assaults in prison near the phone bank, the factual overlap
between the two incidents does not go beyond the commission of crimes or
conduct of the same general class.
Moreover, the trial court did not abuse its discretion in precluding this
“unfairly prejudicial and potentially misleading hearsay evidence that clearly
outweighed the probative value in violation of the rules of evidence.” Trial
Court Opinion, 6/10/16, at 12. Given the legal maneuvering by Appellant to
admit this evidence while precluding the evidence of his own violent Murder
conviction, the trial court acted properly in refusing to mislead the jury and in
determining that the probative value of the victim’s purported prior attack did
not outweigh its potential for unfair prejudice.9
____________________________________________
9 Essentially, Appellant attempted to rely on a more general evidentiary rule
when a very specific evidentiary rule controlled. Insofar as Appellant sought
to avoid the application of Rule 404(a), the trial court properly rejected
Appellant’s attempt to circumvent the proper application of the Pennsylvania
Rules of Evidence.
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After-Discovered Evidence
In his final claim, Appellant argues that he is entitled to a remand to the
trial court for consideration of an after-discovered evidence claim regarding
two new alleged eyewitnesses to the instant assault case, who wrote letters
to Appellant’s attorney after the trial detailing their proffered observations and
testimony.
“A post-sentence motion for a new trial on the ground of after-
discovered evidence must be filed in writing promptly after such discovery.”
Pa.R.Crim.P. 720(C). The Comment to Rule 720 explains that “after-
discovered evidence discovered during the direct appeal process must be
raised promptly during the direct appeal process, and should include a request
for a remand to the trial judge[.]” Pa.R.Crim.P. 720, Comment.
“To warrant relief, after-discovered evidence must meet a four-prong
test: (1) the evidence could not have been obtained before the conclusion of
the trial by reasonable diligence; (2) the evidence is not merely corroborative
or cumulative; (3) the evidence will not be used solely for purposes of
impeachment; and (4) the evidence is of such a nature and character that a
different outcome is likely.” Commonwealth v. Rivera, 939 A.2d 355, 359
(Pa. Super. 2007) (citation omitted).
Appellant avers that while his claim was pending on appeal in this Court,
Larry Williams sent Appellant’s attorney a letter on August 12, 2016, over a
year after Appellant was sentenced, claiming that the victim “told him a few
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hours before the incident that he was going to stab [Appellant] because he
didn’t like what he did at the phones. [Williams] then observed the incident
and saw [the victim] was the aggressor and [Appellant] was defending
himself.” Appellant’s Brief at 70.
Appellant also avers that Tony Mason also sent Appellant’s attorney a
letter on August 20, 2016, indicating that he observed the assault, saw the
victim attack Appellant, and would have provided favorable testimony to
Appellant at trial. Id. Appellant filed an Application for Remand on September
13, 2016, which this Court denied without prejudice to Appellant’s raising the
issue in his brief to this Court on appeal. Appellant has now done so and has
reiterated his request for an evidentiary hearing. In its Brief, the
Commonwealth does not oppose remand “for the sole and limited purpose of
affording defendant the opportunity” to present his after-discovered evidence
claim to the trial court. Commonwealth’s Brief at 42. We agree.
Based upon the information in the briefs and the certified record, we are
constrained to remand to provide the trial court the opportunity to develop
the record and to rule upon Appellant’s after-discovered evidence claim in the
first instance. See Rivera, supra at 358-59.
Judgment of Sentence affirmed. Application for Remand granted. Case
remanded for further proceedings consistent with this Opinion. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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