Com. v. Browndorf, G.

J. S33008/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARY BROWNDORF, : No. 2788 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 4, 2012,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0000896-2012
BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2015
Following a five-day jury trial, Gary Browndorf was convicted of
perjury and simple assault.1 The charges arose from an incident in which
appellant, then a sergeant with the Bucks County Sheriff’s Department,
punched a man whom he was assisting to arrest and then subsequently lied
about the incident under oath. Herein, he appeals the judgment of sentence
entered on October 4, 2012; we affirm.
Appellant presents the following issues for our review:
I. DID THE TRIAL COURT ERR AND UNFAIRLY
PREJUDICE APPELLANT WHEN THE COURT
FORECLOSED APPELLANT FROM CROSS
EXAMINING WITNESSES FOR THE
COMMONWEALTH ABOUT THEIR MOTIVATIONS
TO TESTIFY AND THEIR BIAS?
1
Appellant was acquitted of two counts of official oppression, one count of
false swearing, and two counts of unsworn falsification to authorities.
J. S33008/15
II. DID THE TRIAL COURT ERR AND UNFAIRLY
PREJUDICE APPELLANT WHEN THE COURT
FORECLOSED CROSS EXAMINATION ABOUT AN
OUT OF COURT STATEMENT THAT WAS NOT
OFFERED FOR THE TRUTH OF THE MATTER
ASSERTED?
III. DID THE TRIAL COURT ERR AND UNFAIRLY
PREJUDICE APPELLANT WHEN THE COURT
RESPONDED TO THE JURY’S REQUEST FOR
CLARIFICATION BY REREADING THE
INSTRUCTION?
IV. DID THE TRIAL COURT ERR AND UNFAIRLY
PREJUDICE APPELLANT WHEN THE COURT
REFUSED APPELLANT’S REQUEST TO GIVE
JURY INSTRUCTION 3.14, WHICH REFERS TO
CONSCIOUSNESS OF GUILT?[2]
Appellant’s brief at 5.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, it is our
determination that there is no merit to the questions raised on appeal. The
trial court’s opinion comprehensively discusses and properly disposes of each
of the questions presented. Accordingly, we adopt that opinion as our own
and affirm on that basis.
Judgment of sentence affirmed.
-2-
J. S33008/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
2
We note that appellant has abandoned his fourth issue and concedes that
the trial court did not err. (Appellant’s brief at 18.)
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IN TIIE COURT OF COMMON PLEAS
BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
No. 0896 of 2012
COMMONWEALTH OF PENNSYLVANIA
v.
GARY BROWNDORF
OPINION
Appellant Gary Browndorf ("Browndorf') was charged with one (1) count of Perjury, 18
Pa.C.S. § 4902; one ( 1) count of Simple Assault, 18 Pa.C.S. § 2701 (a); two {2) counts of
Official Oppression - Arrest Search Etc., 18 Pa,C.S. § 5301(1); one (l) count of False
Swearing - Official Proceedings, 18 Pa.C.S. § 4903(a)(1 ); and two (2) counts of Unsworn
Falsification to Authorities ~ Statements Under Penalty, 18 Pa.C.S. § 4904(b). These charges
stemmed from an altercation that occurred on July 26, 2011, when Browndorf, acting in his
capacity as a Deputy Sheriff of Bucks County, went to the residence of Philip Romanek
(''Romanek") and Samantha Daneker (''Doneket") at 48 Garden Lane, Levittown, Bristol
Township, Bucks County, Pennsylvania, with four other Deputy Sheriffs to execute an arrest
warrant issued against Romanek for R violation of his probation.
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On June 29, 2012, after a five-day jury trial, Browndorf was found guilty of Perjury and
Simple Assault, and not guilty on the remaining charges of Official Oppression, False
Swearing and Unsworn Falsification to Authorities.
On October 4, 2012, this Court sentenced Browndorf upon the count of Perjury to
undergo imprisonment in the Bucks County Correctional Facility for not less than six (6) nor
more than twelve (12) months, and upon the count of Simple Assault Browndorf was sentenced
to a period of probation for two (2) years with the responsibility to complete two hundred (200)
hours of community service find participate in an angel' management course.
On October 5, 2012, Browndorf filed a Notice of Appeal to the Superior Court of
Pennsylvania from the judgment of sentence entered on October 4> 2012.
On May 5, 2014, this Court ordered Browndorf to file n Concise Statement of the Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)(J ), and 011 May 27, 2014, Browndorf
filed a Concise Statement of the Matters Complained of on Appeal.
This Opinion is filed pursuant to PA.R.A.P. I 925(a).
~'ACTUAL BACKGROUND
Viewing the evidence in the light most favorable lo the Commonwealth as verdict
winner, the following relevant evidence was presented nt the jury trial conducted on June 25-
29, 2012:
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Detective John Knowles of the Bucks County District Attorney's Office testified that
after receiving fl telephone call on September 16, 20( l from Gail Cobb, a woman he had
known for approximately 30 years in his capacity as a law enforcement officer, he
subsequently conducted an interview of Cobb's daughter, Samantha Doneker, concerning
allegations of assault and false arrest of Daneker and her fiance, Philip Romanek, by Sheriff
Browndorf at their residence at 48 Garden Lane, Levittown, Bucks County, Pennsylvania. N.T.
June 26, 2012, pp. 48-51.
Philip Romanek testified that he had resided for about a year ... and-a-half with his fiance,
Daneker, At her residence at 48 Garden Lane in Levlttown, Bucks County. Romanek stated that
he had been arrested in 2009 or 2010 for driving under the influence of alcohol and possession
of marijuana and paraphernalia. He pied guilty and served a mandatory 72 hours of
incarceration for ll first DUI offense followed by 6 months of parole and a year of probation.
As a result of missing two appointments with his probation officer and moving without
permission, Romanek was found in violation of his parole and served 90 days in jail. Romanek
was also ordered to attend a recovery house for his drug addiction, but a warrant was issued for
his arrest when he left the recovery house in violation of his probation. N.T. June 26, 2012, pp.
60-63.
Romanek stated that he was aware thnt a warrant had been issued for his arrest because
the sheriffs had previously left a notice at his residence. However, when the sheriffs again
returned on July 26, 20 l I, he hid in the attic, explaining that "I was going to turn myself in two
weeks later. l just had a few jobs lined up. I wanted to make money to support my family while
I was Jocked up.'iN.T. June 26, 2012, pp. 63~65.
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Romanek testified that after the sheriffs gained access to the residence, and he did not
come down from the attic as ordered, Deputy Sheriff Boyle climbed up in the attic, ordered
Romanek to get on his stomach and place his hands behind his back, and then handcuffed him.
Romanek testified that he did not resist an-est. He related that Deputy Sheriff Klein, who was
standing on a chair in the attic access and pointing his gun at him, told him, "Don't move a
f'ing muscle, or I'll shoot you." After Romanek was helped to his knees by Deputy Boyle, he
crawled to the access pausl and sat on the edge with "my feet hanging down through the hole."
He said that Deputy Boyle "stuck his arm through both of my arms and hoisted me down," and
yelled to Deputy Klein, "Hey, Bill, are yon ready to catch him?" N.T. June 26, 2012, pp. 70-
74.
As Romanek was lowered down by Deputy Boyle, his weight was transferred to Deputy
Klein standing on the chair, who then grabbed him by his legs. Romanek stated that as soon as
his feet touched the chair, Browndorf "pushed Klein out of the way" and struck him in his
chest with a closed fist. Romanek said he had not struggled, resisted or kicked anyone as he
was lowered down> and asked Browndorf "What was that for?" He said Browndorf pointed his
finger at him and replied, «That's for kicking me." Romanek said his fiance, Doneker, was in
the hallway and screamed At Browndorf when she observed the altercation. and Browndorf
"turned around and shoved her into the doorjamb and said, 'You're going to jail, 1001 for
assault 011 a sheriff':" N.T. June 26f 2012, pp. 74-80, 134, 168-169.
Romanek said they were taken to the Bristol Township Police stntiou where he told the
intake officer that they had been assaulted by Browndorf. Next, they were taken to District
Justice Wagner's court where Romanek learned that they were being charged with aggravnted
assault nncl bail was set at one hundred thousand dollars ($ 100,000). They were then
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transported to the Bucks County Correctional Facility ("BCCP'), where Romanek again
cornplained about the assault Romanek testified that photographs were taken of his apparent
injuries and he was placed on Iockdown for 72 hours "because they thought (his] spleen was
ruptured," and x-rays were taken "a couple days later." Romanek said his chest hurt for
approximately two weeks after the incident, but he has no lasting injury from the incident. N.T.
June 26, 2012, pp. 80-82, 90-92, 137-140.
Romanek testified that his preliminary hearing was held on August 23, 2011, at which
time the aggravated assault charge filed by Browndorf was dismissed by Judge Wagner.
Romanek slated that he remained incarcerated until October 7, 2011, for his parole violation,
and that the charges filed by Browndorf against him and Doneker were subsequently dismissed
by the Bucks County District Attorney's Office. Romanek said he was not testifying under any
grant of immunity and there had been no negotiations with the District Attorney's Office
concerning his sentence for his parole violation. N.T. June 26) 2012j pp. 83-86.
Romanek admitted that he had discussed with Doneker, during the approximately 200
telephone calls he made from BCCF to her) the possibility of pleading guilty lo simple assault,
and acknowledged making the following statements to her during those telephone
conversations:
Make sure yon do everything I tell you to do in this letter. I'm telling you, this
dude I talked to that I know from outside, he's a very smart dude. He's street-
smart, should I say? But the dude's got so many settlements himself. He's a very
smart person. What do you call him? He's a jail-educated person, if you want to
say that. And if you do what I tell you in this letter, he said, you'll have no
problems getting 650,000 to a mil. Might as well make a bad situation go right.
and
Yo, this is what is going to happen, I've been talking to some people. And what is
going to happen is that we are going to probably wind up going to court. They are
going to lower the court to simple assault ... because the officer never lost any
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work. So H's going to be just simple assault. You will get ARD. My PO will
recommend anywhere from 12 to 15 months, and I'm maxing out. I'm probably
going to go upstate.
Romanek explained that he felt that he was "a civilian going up against law enforcement, [and]
I just thought I had no chance." Romanek acknowledged discussing the possibility of hiring an
attorney to sue Browndorf but said that was clone out of anger and they never did hire an
attorney. N.T. June 26, 2012, pp. 87-88, 141-153, 159-167.
Romanek acknowledged that he had previously plead guilty to DUI: controlled substance
or metabolite; DUL controlled substance - impaired ability; Marijuana - small amount}
personal use; Use or possession of drug paraphernalia; Accident, damage to unattended vehicle
or property; and Careless driving. N.T. June 261 20121 pp. 93w98.
Samantha Doneker testified that she has lived at 48 Garden Lane for approximately
fourteen years. She recounted that on July 26> 2011, she, Romanek, her son, Richard Matonti,
and her daughter) Sarah Matonti, were present at her residence when the sheriffs arrived
around l l :301 "banging on the doors and windows." She said Romanek proceeded to hide in
the attic and she went and opened the front door. Dcneker said she lied to the sheriffs when
they asked if Romanek was present because she "didn't want him to go lo jail" since he had
several fencing jobs "to get done before he would actually turn himself in." As a result, she
was charged with hindering apprehension, to which she plead guilty, and is currently in the
ARD program for first-time offenders. N.T. June 26, 2012} pp. £77-184.
Doneker testified thRt it was "chaos" as the sheriffs searched the entire house for
Romanek. She said she was eventually permitted "to go to the bathroom to put a bra on," after
which she opened the bathroom door and saw Browndorf, who was in front of her, go into the
closet And strike Romanek as he was lowered down from the Attic to Deputy Klein. Daneker
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said she saw Browndorf's firm move two or three times, and stated that one of those
movements WAS a strike. She said she stated, "Yo, yo, yo, what the fuck are you doing? And
what is your name?" to Browndorf who, although she had had no physical contact with him,
then "turned around, grabbed me by my arms, pushed me into the bathroom [door], pulled me
into him, and said, "Now you're under arrest for assaulting a sheriff." Browndorf handcuffed
her find took her outside and placed her in a police vehicle and she was taken to the Bristol
Township Police station where she was fingerprinted and photographed for the first time.
Doneker was then taken to Judge Wagner's chambers where bail was set at one hundred
thousand dollars, and because she was unable to post bail, she subsequently spent four days in
BCCF. Daneker said she was charged with "aggravated assault, simple assault And hindering
... or harboring concealing," and she acknowledged pleading guilty to the hindering charge.
N.T. June 26, 2012, pp. 184~ 196.
Doneker was eventually released from prison after her bail was reduced. Her preliminary
hearing was held on August 23, 2011, at which only Browndorf appeared and testified against
her, nnd the charge of aggravated assault filed against her was dismissed. She stated that the
charge of simple assault was also eventually dismissed and that no bargains or negotiations had
occurred with the District Attorney's Office. She denied discussing the possibility of getting a
civil attorney for a lawsuit during her telephone conversations with Romanek or "hatching a
plan to frame [Browndorf]." N.T. June 26, 2012, pp. 196-201, 248.
Deputy Daniel Boyle of the Bucks County Sheriff's Office testified that he arrived at 48
Gnrden Lane on July 26, 201 l , with four other sheriffs to serve a criminal warrant on
Romanek. According to Deputy Boyle, after the sheriffs banged on doors and windows,
Doneker answered the front door and denied that Romanek was present. The sheriffs then
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gained access to the house and during their search they heard a noise in the attic. After locating
the access to the attic, Deputy Boyle climbed up into the attic with a flashlighr and his weupon
drawn and observed Romanek behind the chimney. Romanek complied with Deputy Boyle's
order to drop what was in his hands, which happened to be R flashlight, and come out and lie
face down on the plywood with his hands behind his back. Deputy Boyle then handcuffed
Romanek and assisted him to the access hole. After twice denying Romanek's request to
remove the handcuffs, Deputy Boyle instructed Romanek to sit on the edge of the access hole,
and then hooked his arm through Romanek's arms and lowered him down to Deputy Klein. He
said Romanek did not struggle and he felt the transfer of Romanek's weight onto either the
chair or Deputy Klein as he lowered him down, but due to his position in the attic, he did not
see what occurred below between Romanek and Browndorf. N.T. June 27> 2012, pp. 254-271,
276-277.
Deputy Boyle remained in the attic for a few minutes after Romanek had been lowered
down to search for a mis sing magazine for his firearm. He then exited the attic, injuring his
aim in the process. Deputy Boyle staled that discussions ensued among the sheriffs about
charging Romanek and Doneker, and he subsequently assisted in filing criminal complaints
against them at the Bristol Township Police Station at the direction of Browndorf, who was the
acting supervisor on that day. N.T. June 27, 2012, pp. 271-275.
William Klein testified that he had been employed by the Bucks County Sheriffs Office
beginning i11 June of 2006) but was dismissed after tile events that occurred on July 26, 2011,
and was currently unemployed. Klein testified that he had gone to 48 Garden Lane in
Levittown, Bucks County on that day with his partner, Deputy Jomes Mcandrew, and Corporal
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Dave Prudish, Deputy Dun Boyte and Sergeant Gary Browndorf, to serve a warrant. N.T. June
27, 2012, pp. 305~307.
After arriving at the residence around noontime, the sheriffs eventually gained access to
the house and heard "creaking coming from the ceiling." They located the access hatch to the
ceiling and observed that someone had recently gone up into the attic. Klein assisted Deputy
Boyle in climbing up into the attic, and asked Corporal Prudish to go outside and cover the
attic vent. Klein then partially entered the attic by standing on a chair to cover Deputy Boyle,
who subsequently handcuffed Romanek and lowered him down to Klein. Klein stated that he
stepped down from the chair to allow Deputy Boyle to lower Romanek down to him. He said
the closet was very small and "Deputy McAndrnw was somewhere to my left and Sergeant
Browndorf was to my right" and behind him. N.T. June 27, 2012, pp. 307-312.
Klein testified that he grabbed Romanek by "the waist of his shorts" as he was lowered
down, and said Romanek did not kick him or make any swinging motions with his legs, nor did
he feel him kick McAndrew or Browndorf. Klein stnted, however, that as Romanek "was being
lowered fro!n the attic, he was struck by Sergeant Browndorf Mr. Romanek asked why he was
struck. Gary Browndorf stated that he was kicked. And the girlfriend, Miss Doneker, became
irate." Klein said Browndorf struck Romanek in his mid-section "from behind me mid to the
right." Klein was riot able to observe any interaction that occurred between Browndorf and
Doneker. N.T. June 27, 20121pp.313-317.
James McAndrew testified that he had been employed by the Bucks County Sheriff's
Office for approximately eleven (I J) years, but was dismissed after the events that occurred on
July 26, 2011, and was currently unemployed, McAndrew testified that he had gone to 48
Garden Latte in Levittown, Bucks County on that day with the four other sheriffs as p~rt of a
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warrant squad to serve a warrant on Romanek after they received a tip that he would be there.
McAnd(ew related that they initially went to the address specified in the warrant where they
encountered Romanek 's father, who then directed them to Donekee's residence across the
street. McAnclrew slated that after the sheriffs gained entry into Doneker's house, Doneker lied
to him by slating that Romanek was not present and that "she kicked him out months ago." The
sheriffs, however, heard a noise in the attic space and Deputy Boyle climbed up into the attic
through the access hole in the closet and then Klein climbed part way up. McAndrew was to
the left of Klein and Browndorf was behind Mcandrew, As Deputy Boyle lowered down
Romanek, who was handcuffed> Mc/sndrew observed Browndorf from his peripheral vision
punch Romanek in the chest. Mc/vndrew testified that he did not see Romanek kick
Browndorf, and he did not see Doneker punch, kick or jump 011 Browndorf, but stated he did
see her "push" him. N.T. June 27, 20J 2, pp. 334·355, 371-372.
David Prudish testified that he had been employed by the Bucks County Sheriff's Office
for thirteen and half years but was dismissed as a result of the incident at 48 Garden Lane on
July 26) 2011, and was currently unemployed. Prudish had been purl of the warrant team that
went to Doneker's residence to arrest Romanek. After the sheriffs gained access to the house
and searched the first floor) it was believed that Romanek was in the attic, so Prudish went
outside to insure he did not escape. Prudish therefore did not see any contact between
Browndorf and Romanek or Doneker, Prudish testified that he nevertheless wrote an incident
report at the Bristol Township Police station based upon information provided by Browndorf
The information included statements that "while the subject was coming down from the attic,
he kicked Sergeant Browndorf in the chest area, striking the vest," and "Sergeant Browndorf
backed away. Miss Daneker, who had located herself behind Sergeant Browndorf, started to
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punch and push the sergeant." Prudish testified that he had transported Doneker to the Bristol
Township Police station and that during the trip she had been crying and stated that "Sergeant
Browndorf had punched Romanek nncl pushed her to the floor." Prudish said he did not tell the
investigating grand jury that he wrote an incident report because he "forgot." N.T. June 27,
2012,pp.389~414.
A.J. Garabedian testified that he is an Assistant District Attorney with the Bucks County
District Attorney's Office, and that on August 23, 20ll, the date of the preliminary hearing for
the charges filed against Romanek and Doneker, he had been requested to assist Browndorf at
the District Court. Although there is an established protocol for law enforcement officers to
request assistance from the District Attorney's Office prior to a hearing, it was not followed in
this case, and Garabedian was asked to assist Browndorf upon his arrival At the court. N.T.
June 27, 2012, pp. 420~423.
After he obtained a copy of the Criminal Complaint al the hearing, because Browndorf
"didn't have anything with him," Garabedian noted that Romanek was charged with
aggravated assault, a felony of the first degree; simple assault, a misdemeanor of the second
degree; and summary harassment, a summary. In addition, it appeared that Romanek had also
been charged with theft by unlawful taking. Garabedian then had to Amend the Complaint to
reflect the proper subsection for aggravated assault, (a)(3)1 causing bodily injury lo a law
enforcement officer, R felony of the second degree, Garabedian further noted that Daneker had
been charged with hindering apprehension. a misdemeanor of the second degree; aggravated
assault, a felony of the first degree; and simple assault, a misdemeanor of the second degree.
Garabedian stated that after Browndorf testified under oath, "certain charges were held for
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court. Judge Wagner dismissed the aggravated assault charge." N.T. June 27, 2012, pp. 423-
426.
Garabedian then recited Browndorf's testlmony from the transcript of the preliminary
hearing in which Browndorf testified under oath that he had been punched in his vest "maybe
once or twice" by Daneker and kicked "just once" by Romanek, and that "it was like a
swinging motion as he came down." Garabedian related that Browndorf testified that Deputy
Boyle and Klein both went up into the attic, and that as Romanek "was coming down, he
kicked me in the ... chest area, and I fell back where ... Miss Doneker was behind me, who
again started punching and yelling nt me and pushing me. I was actually in between the two of
them." Browndorf further testified at the preliminary hearing that Romanek "cursed me up and
down" when he kicked him, that he had been in or near the closet and could see Romanek's
face as he was coming down, that he was standing «with my hands up, ready to catch
[Romanek] in case. he fell," and that he was "focused on [Romanek's] torso up, reaching up for
his legs, and that's when I got hit." When he was asked if Romanek "kicked him hard enough
to force you to go backwards," Browndorf had replied, "Absolutely, yes," and reasserted that
he was pushed and then hit in his back by Doneker, N.T. June 27, 20121 pp. 427-445.
Browndorf then testified on his own behalf, stating that he had been formerly employed
as a sergeant in the Bucks County Sheriffs Office for six or seven years, prior to which he had
served as a Philadelphia police officer for twenty four years. Browndorf slated that he had
Bachelor's and Master's degrees from Temple University in secondary education and was
enrolled ju a Master's program for psychology at Holy Family University. N.T. June 27, 2012,
pp. 457-473.
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On July 26, 2011 i Browndorf testified that he was in charge of the warrant unit and
"overheard on the radio that there was someone in the attic, and they were having a problem
getting him down." Since he was "in the area" at lhe time, he "went over to the scene."
According to Browndorf, Rftel' the sheriffs entered the residence and heard noises in the attic,
he asked Doneker's son, Rich) to ask Romanek to come down. When Romanek failed to
respond, Browndorf approved the selection of Deputy Boyle to go up in the Attic to retrieve
Romanek. Romanek was then brought to edge of the attic access hole, and as he was lowered
down, Browndorf said the sheriffs "all moved closer because ... we wanted no one to get hurt
in this situatlon." According to Browndorf, he did not know if Romanek was handcuffed at that
time. He said he never touched Romanek, but as lie was lowered Romanek kicked him in his
chest, and "it surprised me. so I went back a Jlttle, and then I went forward to grab him." He
said he never at any time intentionally punched Romanek. N.T. June 27, 2012, pp. 474-485.
Browndorf said that Doneker had asked to go to the bathroom to put on her bar, and when
she came out, she was behind him and started to yell. He said he "felt what I felt was a punch,
a push ... , I knew I WAS being touched and assaulted," so "when I realized that Romanek was
handcuffed, I turned mound and handcuffed her." Browndorf then requested Corporal Prudish,
his second in command, to prepare a report of the incident in response lo a request from his
supervisor, and Browndorf insisted that he did not intentionally fabricate either encounter with
Romanek or Daneker. Browndorf denied that he had testified lit the preliminary hearing that
Klein had climbed up into the attic with Deputy Boyle. He further insisted thnt,
,,
notwithstanding the size of the small "three foot" closet, he, Klein and McAndrew were all in
the "viclnity" of the closet as Romanek was towered down, and thnt Romanek, whose feet
"were: moving back and forth," had kicked him in his vest. Browndorf insisted that he had not
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struck Romanek, but instead only "grabbed" him, and he acknowledged that "the situallon
became chaotic" after that occurred, N.T. June 27, 2012, pp. 486-51 ! , 521-522.
Browndorf testified that although he was the affiant, he did not write his own incident
report, and he had Deputy Boyle file the Crlminal Complaints on his behalf against Romanek
and Daneker, because he was unfamiliar with the process and he "was learning how to do the
charging through watchingBoyle."N.T. Jnne27, 2012,pp. 514-519.
Prior to closing arguments, this Court granted the Commonwealth's motion to amend the
Criminal Information to change the actual date of Count I, Perjury, and Count 5, False
Swearing, to August 23, 2011, the date of the preliminary hearing. N.T. June 28, 2012, p. 528.
On June 29, 2012, ar the conclusion ofthe trial, the jury returned with verdicts of guilty
on Count 1, Perjury and Count 2, Simple Assault, and not guilty as to Counts 3 and 4, Official
Oppression; Count 5, False Swearing; and Counts 6 and 7, False Statement Under Penalty.
N.T. June 29, 2012, pp. 663-668.
On October 4, 2012, atter denying Browndorf's motion to dismiss the charges based
upon weight of the evidence and sufficiency of the evidence grounds, this Court sentenced
Browndorf to undergo imprisonment in the Bucks County Correctional Facility for not less
than six (6) nor more than twelve (12) months upon the count of Perjury, and sentenced him to
a period of probation for two (2) years with the responsibility to complete two hundred (200)
hours of community service and participate in an anger management course upon the count of
Simple Assault. N.T. October 4, 2012, pp. 2-3, 62-68.
In his Concise Statement of Matters Complained of on Appeal> Browndorf raises the
following issues on appeal verbatim:
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I. The Court erred when it refused Defendant's request to give Instruction 3.14, which
refers lo consciousness of guilt.
2. The Court erred when it foreclosed Defendant's ability to cross-examine Philip
Romanek about the motivations for his testimony and the witness' bias,
3. The Court erred when H foreclosed exarnination, regarding witnesses' contemplation
of litigation and the witness' bias against Defendant.
4. The Court erred when it foreclosed cross-examination of James P. McAndrew, Jr.,
about a conversation with Philip Romanek's father. The testimony was not sought to
be offered for the truth of the matter. Rather, the testimony sought to establish a
course of conduct,
5. The Court ct-red when it foreclosed Defendant's nbiJity to cross-examine David
Prudish about the witness' bias and motives to testify.
6. The Court erred when it responded to a juror's question, which requested clarification
of the charges - R "yes or "no" answer. Instead of offering clarification, His Honor
reread the instruction.
Statement of'Matters Complained of on Appeal, May 27, 2014.
DISCUSSION
In his initial complaint, Browndorf argues that it was error for this Court to deny his
request to provide the jury with Criminal Jury Instruction 3, 14, Flight or Concealment as
Showing Consciousness of Guilt, as applied to the victim, Romanek, rather than the defendant,
Browndorf.
It is well-established that:
[tjhe nature of a court's instructions to the jury is "within the discretion of the
court, so long as the court accurately instructs the jury on the appropriate legal
principles involved." Commonwealth v. Kim, 888 A.2d 847, 852 (Pa.Super, 2005)
(quoting Commonwealth v. Harley, 424 Pa.Super. 29) 621 A.2d 1023, 1028
( 1993)). This Court's main concern is "that the charge clearly, Adequately> and
accurately presents the law to the jury fur its consideration." id. (quoting
Commonwealth v. Collins, 810 A.2d 698, 701 (Pa.Super, 2002)). The jury charge
must be reviewed "not in isolated portions but as a whole to ascertain whether it
fairly conveys the required lcgS\I principles at issue." Connnonwealth v.
McC/e11don, 874 A.2d 1223, J 232 (Pa.Super. 2005).
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Commonwealth v. Wtllls, 990 A.2d 773, 776 (Pa.Super, 2010).
The Superior Court of Pennsylvania has also observed
, .. that '*[t)he relevant inquiry for this Court when reviewing a trial court's
failure to give a jury instruction is whether such charge was warranted by the
evidence in the case." Commonwealth v. Boyle, 733 A2d 633, 639 (Pa.Super,
1999) (citing Commonwealth v, Mays, 450 Pa.Super. 188, 675 A.2d 724, 729,
appeal denied, 546 Pn. 677, 686 A.2d 1309 ( 1996)); See also Commonwealth v.
Spatz, 552 Pa. 499, 517, 716 A.2d 580, 589 (1998) (ctttng Commonwealth v.
Browdte, 543 Pa. 337, 671 A.2d 668, 673 (1996)) (Explaining that a particular
jury instruction is only warranted when there is evidence to support such an
instruction).
***
... Additionally, the Pennsylvania Superior Court has explained thnt:
l([IJ n reviewing a challenge to the trial courrs refusal to give a specific
jury instruction, it is the function of this [C]ourt to determine whether the
record supports the trial court's decision." In examining the 'propriety of
the instructions a trial court presents to a jury, our scope of review is to
determine whether the trial court committed a clear abuse of discretion or
an error of law which controlled the outcome of the case. A jury charge
will be deemed erroneous only if the charge as a whole is inadequate, not
clear or has a tendency to mislead 01' confuse, rather than clarify, a
material issue. A charge is considered adequate unless the jury was
palpably misled by what the trial judge said or there is an omission which
is tantamount to fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. 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. Brown. 911 A2d 576, 582-583 (Pa.Super. 2006) (citing
Commonwealth v. Thomas, 904 A2d 964, 970 (Pa.Super. 2006)). In the instant
case, the record clearly supports the jury instruction given.
Commonwealth v. Baker, 963 A.2d 495, 506-507 (Pa.Super. 2008).
In the instant matter, Browndorf is apparently arguing that this Court impermissibly
prevented him from Insinuating or suggesting lo the jury, through Criminal Jury Instruction
3 .14, that Romanek was indeed guilty of assaulting Browndorf because he hA including the testimony of [name of witness],
that tended to show that the defendant [fled from the police] [hid from the police]
[gil'e specifics], [The defendant maintains that [he] [she] did so because
[reason].] The credibility, weight, and effect of this evidence is for you to decide.
Generally speaking, when a crime has been committed and a person thinks
he or she is or may be accused of committing it and he or she flees or conceals
himself or herself, such flight or concealment is a circumstance tending to prove
the person is conscious of guilt, Such flight or concealment does not uecessarily
show consciousness of guilt in every case. A person may flee 01· hide for some
other motive and may do so even though innocent, Whether the evidence of night
or concealment in this case should be looked al as tending to prove guilt depends
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upon the facts and circumstances of this case and especially upon motives that
may have prompted the flight or concealment.
2. You may not find the defendant guilty solely on the basis of
evidence of flight or concealment.
Criminal Jury Instruction 3.14,
The plain language of this jury instruction speciflcally refers and applies to the
defendant in the case, and the clear intent of the instruction is to focus the jury's attention upon
the conduct and culpability of the defendant and the charges that the defendant faces. This
lnstruction does not apply to the victim, and it is not designed to assist, instruct, or suggest to
the jury on how to evaluate or consider the victim's conduct. Therefore, in recognition of the
well-established principle that "[tjhe primary duty of a trial judge in instructing a jury is to
clarify the issues so the j ury is able to comprehend the question they are to decide," Chicchl v.
Southeastern Pennsylvania Transp. Authorlty, 727 A.2d 604, 609 (Pa.Cmwlth. 1999), we
concluded that Browndorf's request was an improper attempt to deflect the jurors' attention
Away from the defendant's conduct by distracting them with inappropriate considerations of
the victim's unsympathetic behavior.
Furthermore, Jut)' Instruction 3.14 is concerned with «evidence of flight or
concealment." While it was uncontested that Romanek was seeking to hide from the sheriffs
when they arrived at his residence. and Romanek has readily admitted that he s
fl consciousness of guilt because he saying that ... it's false charges. This guy wants to plead
guilty to what he says are false charges.") We therefore concluded that providing Jury
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Instruction 3.14, as requested by Browndorf, could potentially confuse or mislead the jurors,
and declined the opportunity to do so.
Browndorf's next four issues complained of on appeal essentially allege that this Court
"foreclosed Defendant's ability to cross-examine" various witnesses about their motivations
for their testimony and their bias against him. In particular, Browndorf suggests that he was
unable lo cross-examine Romanek and Daneker about their expressed desire to initiate
litigation against Browndorf for personal financial gain, or to cross-examine Prudish and
McAndrew about their motivations to testify, or to inquire about Mc.Andrew's "conversation
with Philip Romanek's father." According to Browndorf, that "testimony was not sought to be
offered fol' the trnth of the matter," but rather "to establish a course of conduct."
The Superior Court of Pennsylvania has observed that:
[wjith respect to the admission of evidence, the trial court has broad discretion
and will not be reversed absent an abuse of that discretion. Commonwealth v.
Stark, 363 Pa.Super. 356, 526 A.2d 383, 391 (1987), appeal denied, 517 Pa. 622,
538 A.2d 876 (1988). The trial court should not admit evidence that has no
relevance to a case. Relevant evidence is that which tends to establish facts in
issue or in some degree advances the inquiry and is therefore probative. However,
even relevant evidence may be excluded where the trial judge, in his or her
discretion, finds that admission may confuse, mislead or prejudice the jury. Id.The probative value of a piece of evidence cannot be outweighed by its
prejudicial impact.
Connuonwealth v. Impelltzzert, 661 A.2d 422, 428 (Pa.Super. 1995),
In the instant matter, Browndorf's allegation that he was prevented from cross-
examining Romanek and Doneker about their intent to pursue litigation against him is refuted
by the record which reflects that he was permitted to question them about this possibility. As
noted above, Browndorf's defense counsel was permitted to read into the record Romanek's
statements he made during the telephone conversation he had with Doneker that was recorded
while Romanek was incarcerated at BCCF on August 17, 2011, and which Romanek
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acknowledged making, in which he stated that "if you do what I tel! you in this letter, he said,
you'll have no problems getting 650,000 to a mil. Might as well make a bad situation go right."
See N.T. June 26, 2012, p. 153.
The record reflects that Browndorf's defense counsel also cross-examined Daneker
about that potential ligation:
Q: And, by the way, you have not contacted a lawyer to file a suit at the
present time. ls that correct?
A: Correct
Q: You did consul! with an attorney about filing a suit. Correct?
A: No, not correct.
Q: You're aware that you still have two years from the date that this incident
to file suit?
A: I don't know the laws nbout -
The Commonwealth; Objection, Judge.
The Court: Objection sustained. Outside the scope.
N.T. June 26, 2012, pp. 248-249.
From these excerpts, it is clear that Browndorf was permitted to present evidence to the
jury of Romanek's and Doneker's contemplated litigation, revealing to the jury a possible
motivation for their testimony. which would have a direct bearing on their credibility.
However, this Court did not permit Browndorf's counsel to pursue cross-examination of the
witnesses concerning the specifics of that litigation because it was not relevant or probative of
the charges Browndorf faced, and was in om view designed instead to inflame and mislead the
JUI)'.
Browndorf also alleges that he was improperly prohibited from cross-examining
Prudish and McAndrew about their motivations to testify. Without specifically stating so,
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Browndorf is presumably referring to the Commonwealth's Morion In ltmine to prohibit the
introduction of any evidence relating to his allegation that his prosecution In this matter was
politically motivated, which this Court granted at the start of his trial on June 25, 2012. See
N.T. June 25, 2012, pp. 6-10.
The Commonwealth's Motion 111 limine was filed as a result of Browndorf' s Motion to
Disqualify the Office of the District Attorney, filed on October 25, 201 l . In his Motion to
Disqualify, Browndorf alleged that he had been subpoenaed to testify before the County
Investigating Grand Jury on September 291 2011. According to Browndorf's Motion, the
inquiry of the investigation concerned "various government agencies," and "may include
allegations of impropriety on the part of the Bucks County District Attorney's Office and other
government agencies." Browndorf alleged that because he had "worked for a numerous years
in Jaw enforcement in Bucks County [and] appearled] before and work[ed] with virtually every
District Attorney in Bucks County," there "would be a conflict of interest that would render it
unlikely that (he] would receive a fair trial." Motion to Disqualify the Office of the District
Attorney of Bucks County, October 25, 2011. Although an Order was entered on October 26,
2011, granting a temporary stay of the Preliminary Hearing scheduled for October 27, 2011,
I his Court denied Browndorf's Motion after a hearing on January 27, 2012,
On April 2, 2012, the Commonwealth filed its Motion in Ilntlne asserting that
Browndorf's allegation thflt his prosecution was politically motivated and vindictively pursued
by the District Attorney's Of.fice was not supported by "one shred of evidence." The
Commonwealth argued that Browndorf's claims were baseless, false and "completely
irrelevnnt to the factua] determination of the case," and it therefore requested tha: any
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questioning of the jurors during volre dire and any argument by defense counsel that was
related to these claims be precluded. Commonwealth's Motion in Llmlne, April 2, 2012.
As noted above, despite defense counsel's suggestion that Browndorf "talked about
some inappropriate conduct on the part of officials here in Bucks County" 593 Pa. 659, 933 A.2d 997, 1017 (2007) (citing
Commonwealth v. Sneed, 514 Pa. 597, 526 A2d 749, 754 (1987) [(holding that
where a police officer related the contents of a radio coll that prompted his trip to
the crime scene, such testimony was not hearsay because it was introduced solely
to explain how the officer came to be at the scenej].
Comnionwealth v. Johnson, 42 A.3d 1017, 1035 (Pn. 2012).
A review of Johnson, Rega and Sneed, supra, reveals that each of those cases involved
the testimony of police officers concerning statements that were related to them by a third party
upon which the officers based their subsequent course of conduct in either pursuing further
investigation, collecting evidence or apprehending the defendant. In each case, the courts ruled
that the statements were not hearsay because they had not been offered for the truth of the
matter asserted in them, but had instead been properly admitted for the purpose of explaining
the subsequent course of conduct of the police officers.
That is clearly not analogous to the factual scenario under consideration in the case sub
Judice. While McAndrew testified that the sheriffs proceeded to Doneker's residence after
speaking to and receiving information from Romanek's father, any subsequent statements
made by Rornanek's father to the sheriffs concerning Romanek would not be relevant to or
probative of the charges that were eventually filed against the defendant in this case,
Browndorf Romanek, as noted, ls not the defendant in this case and his "course of conduct" is
not at issue> nor is McAndrew's course of conduct under scrutiny. The limited testimony
regarding the sheriffs' encounter with Romanek's father was sufficient to explain to the jury
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why the sheriffs proceeded to Doneker's residence, and it is obvious that any further cross-
examination concerning additional statements made by Romauek's father would not be
relevant to Browndorf' s conduct, and would only serve as an attempt to improperly influence
or mislead the jurors.
We are also cognizant that the Superior Court in Commonwealth v. Dent, 837 A.2d 571(Pa.Super. 2003)1 offered the following cautionary discussion regarding the application of the
"course of conduct» exception to the Rule Against Hearsay:
[I]n Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808 (1989)1 our Supreme
Court recently reviewed a similar challenge to testimony which the prosecution
claimed was justifiably introduced to explain police conduct. There, the Supreme
Court observed,
It is, of course, well established that certain out-of-court statements
offered to explain a course of police conduct are admissible. Such
statements do not constitute hearsay since they are not offered for the truth
of the matters asserted; rather, they are offered merely to show the
Information upon which police acted. Commonwealth v. Sneed, 514 Pa.
597, 606-07, 526 A.2d 749, 754 (1987); Cruz. [supra] (police responded
to radio call reporting a disturbance); Commonwealth v. Sampson, 454 Pa.
215, 219, 311 A.2d 624, 626 (1973) (police declined to arrest an
individual who asserted his innocence); Conunonwealth v. Tselepis, [198
Pa.Super. 449] 181 A.2d 710, 712 (Pa.Super.1962) (police acted upon
informant's tip that defendant was conducting a lottery). See also [
Underwood, supra J ("This CoU1i has repeatedly upheld the introduction
of out-of-court statements for the purpose of showing that based on
information contained in the statements, the police followed a certain
course of conduct that led to the defendant's arrest.").
Nevertheless, it cannot be said that every out-of-court statement having
bearing upon subsequent police conduct is to be admitted, for there is
great risk that, despite cautionary jury instructions> certain types of
statements will be considered by the jury as substantive evidence of guilt.
Further> the police conduct rule does not open the door to unbounded
admission of testimony) for such would nullify an accused's right to
cross-examine and confront the witnesses against him.
Palsa, supra, nt l 18, 555 A.2d nc 811, 812 (footnotes omitted). The Palsa court,
after noting that the challenged statements were likely to be understood by the
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jury as themselves proving the elements of the crime for which the defendant was
charged} concluded,
Tn this case, the police easily could have explained the course of their
conduct pertaining to the investigation and arrest of appellant .. without
resorting to the full and explicit statements given by [the informant]. It is
the prosecutor's duty to avoid the introduction of out-of-court statements
that go beyond what ls reasonably necessary to explain police conduct., ..
The statements could have been attenuated in other ways, too, to lessen
their prejudicial impact.
Thus, an adequate explanation for police conduct could have been
provided, while minimizing the introduction of statements made by a
person who was not under oath and who was not available for cross-
examination.
Palso, supra, at 118, 555 A.2d at 811 (emphasis deleted) .
.. . As our Supreme Court explained:
In criminal cases, an arresting or investigating officer should not be put in the
false position of seeming just to have happened upon the scene; he should be
allowed some explanation of his presence and conduct. His testimony that he
acted "upon information received," or words to that effect, should be
sufficient. Nevertheless, cases abound in which the offlcer Is allowed to
relate histcrlcal aspects of the case, replete with hearsay statements in the
form of complaints nnd reports, on the ground that he WRS entitled to give
the Information upon which he acted. The need for the evidence ls slight,
the likelihood of misuse great.
Palsa, supra at 118, 555 A.2d at 810-11 (emphasis added).
Dent, 837 A.2d at 579 -580.
In accordance with the preceding discussion and cautionary Instructions, this Court
properly prohibited Browndorf's defense counsel from pursuing further cross-examination of
McAndrew concerning any addltionnt statements made by Romanek's father. It is clear that the
infonnation elicited from such testimony would not comply with the tenets enunciated in the
case lnw cited above and could not therefore be considered a "course of conduct" exception to
the prohibition of inadmissible hearsay, Browndorf's complaint in this instance has no merit.
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Browndorf lastly alleges that this Court erred when, in response to the jury's question
requesting clarification of the instructions for a particular charge which he alleges required a
«yes or "no" answer, we instead reread the instruction to the jury.
In addressing the specific jury request for clarification to which Browndorf is
apparently referring, the record reveals the following exchange occurred after the jury
foreperson approached the Court with a question during the jurors' deliberations:
The Court: Will the foreperson please stand, juror number 3, I believe. There
is a question that you have for the Court?
The Foreperson: We were wondering if we could have a specific
clarification for when you were outlining the charges, perjury, you gave four
itemizations that would render us to a guilty verdict so we could have it all on
paper.
And we're also wonderlug if we can look at the preliminary hearing that
was so advised that we should do so to be fair and just.
The Court: I will allow you to have a redacted copy of the notes from the
preliminary hearing. The answer to that is yes.
The Foreperson: Okay. I think really we just want clarification before we
render any kind of a verdict. Do we have four points that have lo be met to reach
one of the verdicts that you - one of the charges that you read to us? I think we're
a little-
The Court I will do this. I will read the charge to you again, unless counsel
objects in some way or other.
(The Commonwealth]: No, sir.
The Court: I think that's appropriate.
[Defense Counsel]: Can we see you at sidebar for a moment, Your Honor.
Briefly.
The Court: Surely,
(The fol lowing occurred at sidebar out of the hearing of the jury:
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[Defense Counsel]: Your Honor, respectfully, I think we have to respond to the
question. And the question is simply do a}! four elements have to be met in order
to - beyond a reasonable doubt in order to find the person guilty, I don't think
they're asking for a recharge.
The Court: But I know within the charge it says in order to find the person
guilty of you must find -
[Defense Counsel]: I think ifs a yes or no answer. And that's all I'm
suggesting to the Court> as a direct response to the question under the rules. But -
The Court: I would rather read it lo them. Then theres no ambiguity.)
The Court: The defendant has been charged with perjury. To find the
Defendant guilty of this offense, you must find that each of the following
elements have been proven beyond a reasonable doubt:
First, that the Defendant made a false statement;
Second, that the false statement was made under oath;
Third, that the false statement was made during an official
proceeding. I instructed you that the statement was made at a preliminary hearing;
so, therefore, it was made at a trial and was an official proceeding.
Fourth, that the Defendant knew that his statement was false at the
time it was made;
And fifth, that the false statement was material to the proceedings
during which H was made.
The charge sheet has been prepared for each of you> and you will
receive such RS you leave the room now.
Very well. The jury may retire now.
The Court: Let me meet with counsel at sidebar.
(The following occurred at sidebar out of the hearing of the jury:
The Cou11: I think the high toad gives us the best road here. That is to say, we
read it entirely, didn't add any editorlalization, and gave them the same thing we
gave them the first time. So there was nothing that would create any ambiguity. It
was clarification, and they now know because I read the words which clearly
speak for themselves .... )
N.T. Ju11e 29, 2012, pp. 655-658.
The Superior Court of Pennsylvania has stated that
When reviewing claims that the trial court erred In instructing the jury:
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our scope of review is to determine whether the trial court committed n
clear abuse of discretion or error of law controlling the outcome of the
case. Williams v. Philadelphia Transportation Company, 415 Pa, 370,
384, 203 A.2d 6651 667 (I 964). Error in a charge is sufficient ground for a
new trial, if the charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a material issue. Gilder
[Glider] v. Com. Depl. of Hwys., 435 Pa. 140, 151-52, 255 A.2d 542, 547
(1969). A charge will be found adequate unless "the issues are not made
clear to the jury or the jury was palpably misled by what the trial judge
said." Voitasefskt v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370,
373 (1949). A reviewing court will not grant a new trial on the ground of
inadequacy of the charge unless there is a prejudicial omission of
something basic or fundamental. Sweeney [ Sweeny) v. Bonafigl!a, 403 Pa.
217, 221, 169 A.2d 292, 293 (1961); Giorgianni v. D/Sanzo, 392 Pa. 350,
356, 140 A.2d 802, 805 (1958). In reviewing a trial court's charge to the
jury, we must not take the challenged words or passage out of context of
the whole of the charge, but must look to the charge in its entirety. McCay
v. Philadelphia Electric Company, 447 Pa. 490. 499, 291 A.2d 7 59, 763
(1972).
Stewart v. Motts, 539 Pa. 596, 6061 654 A.2d 535, 540 (1995). A trial judge has
wide latitude in his/her choice of language when charging the jury, provided thal
the judge fully and adequately conveys the applicable Jaw. Wagner v. Anton, 453
Pa.Super. 6! 9, 632-34, 684 A.2d 570, 577 (1996), alloc. denied> 549 Pa. 704, 700
A.2d 443 (1997).
Jeter V. Owens-Corning Fiberglas COJp, 716 A.2d 633, 635 (Pa.Super. 1998),
In addition, the Superior Court had explained earlier that:
'The primary duty of a trial judge in charging a jury is to clarify the issues so
'1
tha( the jury may comprehend the questions they are to decide .... If the charge is
wholly inadequate or not clear, or has a tendency to mislead and confuse rather
than to clarify the issues, a new trial will be granted .... The functions of a trial
judge embrace not only the duty to state to the jury correct principles of law
applicable to the pending case and to endeavor to make such principles
understandable in plain language, but they also impose upon the judge the duty to
assist the jury in applying those principles to the issues presented to them for
determination!" Mcliwan v. Yellow Cab Co., 182 Pa.Super. 219, 224, 126 A.2d
816, 8 l 9 ( 1956), quoting Archer v, Pennsylvankt Railroad Co., 166 Pa.Super.
538, 541, 72 A.2d 6091 611 ( l 950) (citations omitted). Jn determining whether
error has been committed, however, the charge must be read in its entirety. See:
Riddle Memorial Hospital v. Dohm1, 504 Pa. 57l, 576, 475 A.2d 1314, 1316
( 1984); Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 536, 521 A.2d 25,
32 (1987). To constitute reversible error, fl jury instruction must be shown not
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only to have been erroneous but also harmful to the party complaining. Anderson
v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); Mickey v. Ayers. 336
Pa.Super, 512, 514-515, 485 A.2d 1199, 1201 (1984). A trial court is not required
to accept the precise language of points for charge submitted by counsel so long
as the issues are defined accurately and the applicable law is correctly reviewed.
See. Geyer v. Steinbronn, 351 Pa.Super, 536, 554, 506 A.2d 901, 911 (1986); Fi.sh
v. Gosnell, supra 316 Pa.Super. Rt 580, 463 A.2d at 1050.
Spearing v. Starcher, 532 A.2d 36, 40 (Pa.Super. 1987).
In applying the principles enunciated in Jeter and Spearing, supra, it is clear that
Browndorf s allegation concerning this Court's alleged error in re-reading to the jury the
complete instruction, rather than just responding with l111yes11 or "no" answer> is meritless.
In this particular instance, the jury questioned whether "four points [had] to be met to
reach one of the verdicts [for] one of the charges that [was] read to [them]." The complete
instruction for the charge of perjury indicates that there are five elements, not four, that am
necessary for a finding of guilty to the charge of perjury: a false statement, knowingly made by
the defendant, under oath, during an official proceeding, which was material to the official
proceedings at which it was made. The question addressed to this Court by the jury foreperson
therefore indicated that some confusion or perhaps misunderstanding existed within the minds
of the jurors concerning the actual charge for perjury which might not be remediated by a
simple "yes" or "no" answer. Consequently, we concluded that, with tin abundance of caution;
it would be most effective and practicable to re-read the entire instruction to the jury, with the
knowledge that the plain language of the instruction clearly contained the answer to the jurors,
question, which WRs: "you must find that each of the following elements have been proven
beyond a reasonable doubt."
By re-reading to the jury the instruction on perjury in its entirety, we insured that there
was no "prejudicial omission of something basic or fundamental," and we avoided any
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possibility that the charge as a whole would be "inadequate or not clear" or that a partial recital
of the instruction or explanatlon would have "a tendency to mislead or confuse rather than
clarify a material issue. 0 The recital of the instruction in its entirety was certainly not
erroneous, and Browndorf has not indicated how he was impermisslbly prejudiced by this
approach, Although we presume tlmt Browndorf' s defense counsel probably reasoned that any
misunderstanding or confusion on the part of the jurors when deliberating would necessarily
weigh in his client's favor by increasing the specter of reasonable doubt, and that is why he
was insistent upon this Court providing a simple "yes" or "no" answer, that is not proper or
sufficient grounds for this Court to overlook what we perceived to be a situation in which we
believed the jury may have misunderstood or misinterpreted the Jaw, Consequently, we
concluded that a recital to the jury of the complete instruction would reinforce the proper and
necessary legal concepts and assist them in arriving at a foir and just verdict, and we again
reject Browndorf' s complaint.
For the foregoing reasons, we recommend that this appeal be denied.
BY THE COURT:
DATE, JJ,7 ,,,211 ~o 1~
Ji