Com. v. Jones, D.

J-S51024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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1 18 Pa.C.S.A. § 2701(a)(1) and § 2709(a)(1), respectively.
J-S51024-19
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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J-S51024-19
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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Circulated 09/27/2019 02:39 PM
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1-,·,>·. IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
v. NO. CP-67-CR-6879-2017
. r,,. DANIEL JONES,
.,-. ,,
Defendant/Appellant
COUNSEL OF RECORD:
James Zamkotowicz, Esquire Anthony Tambourino, Esquire
Counsel for the Commonwealth Counsel for Defendant
OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925(a) OF THE
RULES OF APPELLATE PROCEDURE
I. Introduction
The Defendant has timely appealed to the Superior Court of Pennsylvania from his
convictions for Simple Assault and Harrasment. The Court directed the Defendant to file a
Pa. R.A.P. 1925(b) statement ("Statement"), and he has done so. In his Statement, the
Defendant challengeshis conviction, arguing that the Court erred in limiting the Defendant's
direct testimony that the victim attended the trial intoxicated. After carefully reviewing the
Statement, record, and governing law, the Court finds the Defendant's arguments lack merit.
The Court therefore urges affirmance of the judgment of sentence.
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(Pa.Super. 2012). If a trial court decides that proffered lay opinion would not be helpful, or
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l/'I even if helpful, would confuse, mislead, or prejudice the jury, or would waste time�the court
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may exclude it. Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695/Pa.Super. 2000).
The Defendant was free to attack the recollection of the victim-witness on cross
examination. At no point during the cross examination of the victim did the Defendant
question the victim ifhe was currently intoxicated. The Defendant made no mention of the
fact that he believed that the victim was intoxicated during the victim's testimony until it was
brought up during the Court's handling of the situation with the juror who shared the elevator
with the victim in those close quarters. (N.T. at 126). Neither the Commonwealth nor the
defense counsel raised issue with the victim's competency with respected to intoxication
during his testimony, nor did the Court observe any behaviors by the victim while on the
stand to raise alarm that he might have been in an altered state or incompetent to testify. The
victim exhibited no signs of forgetfulness or issues with recollection of the events in question
while testifying to them on the witness stand. (N,T. at 78�96).
The proffered opinion testimony by the Defendant that the victim was intoxicated on
the stand would not be helpful, and would likely confuse and mislead the jury. The Court
found that such testimony was irrelevant to the issues being litigated. However, even if an
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argument could be cobbled together that there was marginal relevance to the issue of trial
testimony credibility, the evidence was inadmissible under Pa.R.E. 403, as the proposed
testimony sought to sway the jury to decide the case on an improper basis, i.e. that the victim
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was a disreputable drunk. The Defendant was never in close proximity to the victim on the
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····,,.I day of trial to smell any odor of alcohol, and was purely basing his supposed opinion on
hearing the juror's assessment, and then belatedly and incredibly claiming he could
determine intoxication based on his own observations of the victim. (N.T. at 123). However,
the jury was privy to the same observations of the victim. They could make the same lay
person determination about the credibility and fitness to testify based upon his appearance
and behavior on the witness stand. The Defendant possessed no specialized expertise to
determine if the victim was intoxicated to overcome the assessment made by every other
professional in the case (the Commonwealth, the defense counsel, and the Court) that the
victim was competent to testify1.
The Court believes the Defendant sought to create a trial within a trial regarding
whether the victim was intoxicated or not for the purpose of distracting and confusing the
jury from his own case. The Defendant's lay opinion on whether the victim was intoxicated
on the witness stand or not was irrelevant to the charges and inadmissible. It had no
relevance to the elements of the offense in question, nor any defenses, and the jury was able
to hear and observe the victim's testimony and make its own credibility determinations as to
I
The Court observed zero indication that the victim was intoxicated while testifying and attributes the juror's
perception to error, or to confusing the smell of an alcohol based product with intoxication.
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,..•.,. the accuracy of his testimony. As such, the court was correct to limit the Defendant's direct
testimony and bar him from testifying to irrelevant issues designed solely to confuse the jury.
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IV. Conclusion
For the reasons stated above, this Court respectfully urges affirmance of the
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BY THE COURT,
DATED: April fil_, 2019
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