Com. v. Jones, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIEL STUART JONES :
:
Appellant : No. 1562 MDA 2018
Appeal from the Judgment of Sentence Entered August 24, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006879-2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 23, 2019
Appellant, Daniel Stuart Jones, appeals from the judgment of sentence
entered in the York County Court of Common Pleas, following his jury trial
conviction of simple assault and bench trial conviction of harassment. 1 We
affirm.
The relevant facts and procedural history of this case are as follows. On
October 11, 2017, Appellant was staying with his friend of 25 to 30 years,
Mark Sipe, and helping him work on odd jobs at the time. After work one day,
Appellant and Mr. Sipe returned to Mr. Sipe’s house, drank beer and cooked
dinner. Later that evening, Mr. Sipe’s neighbor Dan Brown joined them. After
Mr. Brown stepped onto the porch to smoke a cigarette, a dispute arose
____________________________________________
1 18 Pa.C.S.A. § 2701(a)(1) and § 2709(a)(1), respectively.
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regarding money Appellant claimed Mr. Sipe owed him. Mr. Sipe said that he
could pay Appellant the following day, but Appellant wanted his payment
immediately. As a result, Appellant struck Mr. Sipe in the face eight times.
Mr. Brown witnessed some of the altercation. Mr. Sipe did not respond to
Appellant physically or verbally while Appellant punched him. Mr. Sipe then
contacted the police, and Officer Matthew Berry arrived a few minutes later.
Officer Berry indicated that Appellant appeared intoxicated and had blood on
his knuckles.
On July 20, 2018, a jury convicted Appellant of simple assault. During
the recess after the Commonwealth rested, but before the defense presented
its case, a juror sent a note to the court stating that the juror had been in the
elevator with Mr. Sipe, who appeared intoxicated. According to the juror, after
Mr. Sipe left the elevator, two other unidentified occupants of the elevator
commented that Mr. Sipe appeared intoxicated. The Commonwealth
requested a mistrial, which the court denied, and the court cured the situation
by removing the juror and using an alternate.
Defense counsel sought to call Appellant to testify that Mr. Sipe was
intoxicated on the witness stand, which Appellant claimed he could testify
about, based on knowing Mr. Sipe for 25 to 30 years. The court barred
Appellant’s proffered testimony and noted that the court, defense counsel and
the Commonwealth had not observed any indicia of intoxication when Mr. Sipe
was on the stand. Furthermore, defense counsel had the opportunity to
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question Mr. Sipe’s recollection of the attack on cross-examination.
On August 24, 2018, the court sentenced Appellant to 6 days to 2 years
minus 2 days imprisonment for simple assault, merging the harassment
conviction for sentencing purposes. Appellant timely filed a post sentence
motion on August 30, 2018, which the court denied on September 4, 2018.
On September 18, 2018, Appellant timely filed a notice of appeal. The court
ordered a Rule 1925(b) statement on September 19, 2018, which Appellant
timely filed on October 12, 2018.
Appellant now raises one issue for review:
THE TRIAL COURT ERRED IN LIMITING APPELLANT’S
DIRECT TESTIMONY AS TO HIS OBSERVATIONS THAT THE
VICTIM ATTENDED TRIAL INTOXICATED. APPELLANT WAS
A LAY WITNESS COMPETENT TO RENDER SUCH AN OPINION
PURSUANT TO PA.R.E. 701. THE TESTIMONY WAS
RELEVANT TO THE VICTIM’S RECOLLECTION AND
ACCURACY OF HIS TESTIMONY DURING TRIAL AND WENT
DIRECTLY TO HIS CREDIBILITY. BY LIMITING THE
TESTIMONY, THE TRIAL COURT USURPED THE FUNCTION
OF THE JURY TO DETERMINE WHETHER THE VICTIM WAS
INTOXICATED WHEN HE TESTIFIED AND WHETHER SUCH
INTOXICATION AFFECTED HIS CREDIBILITY.
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Craig T.
Trebilcock, we conclude Appellant’s issue merits no relief. The trial court
opinion properly disposes of the question presented. (See Trial Court Opinion,
dated April 25, 2019, at 2-5) (finding: Appellant was free to attack Victim’s
recollection of assault on cross-examination; at no point during cross-
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examination of Victim did Appellant question Victim about whether he was
intoxicated at trial; Appellant made no mention of his belief that Victim might
be intoxicated, until a juror brought it to court’s attention; neither
Commonwealth nor defense counsel raised issue of Victim’s alleged
intoxication during his testimony; court did not observe any behavior while
Victim was on stand, to raise alarm that Victim might be in altered state or
incompetent to testify; Victim exhibited no signs of forgetfulness or issues
with recollection of events in question while testifying; Appellant’s proffered
opinion testimony of Victim’s alleged intoxication would not have been helpful,
would likely have confused and misled jury, and was irrelevant to issues being
litigated; even if intoxication testimony was marginally relevant to Victim’s
credibility, evidence was inadmissible under Pa.R.E. 403, as proposed
testimony sought to sway jury to decide case on improper basis; Appellant
was not in close proximity to Victim on day of trial to detect any odor of alcohol
on Victim; Appellant based his opinion solely on juror’s assessment, and then
belatedly and incredibly claimed Appellant could determine Victim’s
intoxication based on Appellant’s own observations of Victim; jury was free to
make observations of Victim’s behavior on witness stand; court observed zero
indication that Victim was intoxicated while testifying and attributes juror’s
perception to error). Accordingly, we affirm based on the trial court opinion.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2019
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