Com. v. Brown, P.

J-A01043-19
2019 PA Super 187COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER C. BROWN, :
:
Appellant : No. 1946 EDA 2018
Appeal from the Judgment of Sentence Entered March 14, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002417-2017
BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: FILED JUNE 11, 2019
Appellant, Peter C. Brown, appeals from the judgment of sentence
entered following his convictions for aggravated assault and simple assault.1
Appellant challenges the weight and sufficiency of the evidence and contends
that the court erred in denying his motion to dismiss and his motion for a new
trial and in granting the Commonwealth’s motion to preclude evidence. We
affirm.
On March 10, 2017, due to a nearby house fire, volunteer Fire Police
Officer John Irey was directing traffic at an intersection along the border of
Phoenixville Borough and Schuylkill Township, both of which lie in Chester
County. Appellant, who was driving home, disobeyed Officer Irey’s directions
and drove past the officer and into his driveway. A few minutes later,
Phoenixville Police Officers Andrew Brown and Anthony Gray arrived at
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1 See 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1).
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Appellant’s home to investigate. A confrontation ensued, and Appellant was
arrested. A month later, the Schuylkill Township Police Department filed a
criminal complaint charging Appellant with assault. Meanwhile, Officer Gray
filed two summary citations against Appellant for the motor vehicle violations
that preceded the assault: disobeying a person directing traffic and duty of a
driver in an emergency response area.2
A magisterial district judge convicted Appellant of both summary traffic
offenses, and Appellant appealed to the Court of Common Pleas. The
Commonwealth’s witnesses failed to appear for trial, and the court found
Appellant not guilty of the traffic violations.
Prior to trial on the assault charges, the Commonwealth filed a motion
in limine to preclude Appellant from introducing evidence that his arm was
broken during his arrest. The Commonwealth asserted that the evidence was
irrelevant and its admission would unfairly prejudice the Commonwealth,
confuse the issues, and mislead the jury.
While the Commonwealth’s motion in limine was pending, Appellant filed
a motion to dismiss the assault charges. The motion argued the court should
dismiss the instant assault charges because the Commonwealth should have
tried Appellant on those charges in conjunction with the summary traffic
violations, pursuant to the compulsory joinder rule.
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2 See 75 Pa.C.S.A. §§ 3102(2), 3327(a)(1).
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The court held a hearing on both motions, after which it granted the
Commonwealth’s motion in limine and denied Appellant’s motion to dismiss.
At Appellant’s jury trial on the assault charges, Officer Irey testified that
he had been directing traffic around a barricade, and told Appellant, who lived
nearby, that he could not drive through the intersection. After Appellant
cursed at him, Officer Irey told Appellant he would be arrested if he drove
around the barricade. Appellant drove past the barricade and into his
driveway, and Officer Irey asked nearby ambulance personnel to call the
police.
Officer Brown testified that he and Officer Gray responded to the call for
assistance. When they arrived, Officers Brown and Gray spoke with Officer
Irey, who described Appellant’s behavior and pointed out Appellant’s house.
Officers Brown and Gray went to Appellant’s house and found Appellant
standing in the driveway.
Officer Brown testified that he told Appellant why they were there, and
Appellant admitted that he had driven past Officer Irey. According to Officer
Brown, Appellant was “hostile” and “very argumentative,” asking the officers,
“[W]hat gave firemen the right to park their vehicles, their fire trucks out in
front of his driveway blocking his road[?]” N.T., 1/3/18, at 23. Appellant gave
Officer Brown his name, when asked, but refused to state his address or date
of birth or provide his vehicle registration or insurance information. Officer
Gray went to the end of the driveway to check if there was a house number
on the mailbox, in order to determine Appellant’s address.
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Officer Brown testified that Appellant began to walk away from him, and
Officer Brown told him he was not free to leave. When Appellant continued to
walk away, Officer Brown grabbed Appellant’s left forearm with his right hand.
Appellant shook the officer off. Appellant turned toward Officer Brown, who
grabbed him a second time and said something like, “[D]on’t do that.” Id. at
27. Officer Brown testified that at that point, Appellant turned fully around,
with a closed fist, and punched him in the chest. Officer Brown stated that
Appellant punched him slightly to the left of the center of his chest, where his
body camera was mounted. Officer Brown testified that he was not injured
when Appellant punched him because he was wearing a bulletproof vest.
Appellant continued to resist Officer Brown’s grasp, so Officer Brown “‘bear
hugged’ [Appellant], . . . picked him up, and . . . slammed him on the ground,”
where Officer Brown believed it would be safest to restrain him. Id. at 32.
Officer Gray rejoined them and placed handcuffs on Appellant.
The Commonwealth introduced the video from Officer Brown’s body
camera into evidence and played it for the jury. Officer Brown testified that
the video footage was blank during a few seconds after Appellant hit him.
Officer Brown stated he had not turned his body camera off, but that the blow
by Appellant had caused the camera to turn off momentarily. Officer Brown
stated that during the moments the camera was not operating, he had
grabbed Appellant’s hands and told him to “stop,” and when Appellant
continued fighting, Officer Brown “grabbed [him] from behind his back, and .
. . brought him to the ground.” Id. at 37. After he played the video a first
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time, the prosecutor stated, “I’m going to slow it down so you can walk us
through as we see the video.” Id. at 38. Officer Brown then testified as to the
moment on the video when Appellant punched him. Officer Brown also
testified that before Appellant punched him, he “could see his arm cocking
back, coming forward.” Id. at 39.
Officer Gray testified that when he had asked Appellant for his date of
birth, Appellant “started becoming extremely agitated.” Id. at 116. Officer
Gray stated Appellant had a “raised voice” and was “looking down, looking
down on the ground, kind of flailing his arms around.” Id. After he left the
porch and went to the mailbox, Officer Gray heard Officer Brown scream,
“[S]top, stop.” Id. at 119. Officer Gray stated that when he looked up, he saw
Appellant “throwing his arms around” while Officer Brown tried to gain control
over him, after which he saw Officer Brown “take [Appellant] to the ground.”
Id. The Commonwealth entered Officer Gray’s body camera footage into
evidence, and played the video for the jury.
Appellant testified that when he approached the barricade, Officer Irey
told him he “couldn’t get through,” to which Appellant responded, “[S]ure I
can.” Id. at 226-27. Appellant stated he had not used any profanity when
speaking to Officer Irey. Appellant testified that when he returned home, he
started running water for a bath.3 When the officers arrived and started asking
him questions, he decided to go back inside to turn off the water. He did not
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3Officer Brown testified that after Appellant’s arrest, the police returned to
Appellant’s house and turned off the running water.
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tell the police that he had left water running inside the house. Appellant stated
that when Officer Brown grabbed him, he pulled away, because Officer Brown
had not told him he was under arrest, and Appellant did not think Officer
Brown had any right to restrain him. Appellant admitted that he continued to
“pull and walk away” after Officer Brown told him he was not free to leave, id.
at 254, but denied punching or shoving Officer Brown. Appellant presented 16
character witnesses who testified to his positive reputation for truthfulness,
honesty, non-violence, and law-obedience.
The jury found Appellant guilty of aggravated and simple assault, and
the court sentenced Appellant to one year of probation.
Appellant filed a motion for a new trial, claiming that the verdict was
against the weight of the evidence and that he had discovered new evidence.
Appellant claimed that after trial, he viewed the video from Officer Brown’s
body camera in slow motion, at a rate of 31 frames per second. Appellant
attached 69 still frames he extracted from the two to three seconds of video
just before the break in the footage—the seconds leading up to when Appellant
allegedly punched Officer Brown. Appellant argued the still frames showed
that Appellant never made a fist, cocked his arm, or punched Officer Brown.
Appellant further argued that the camera had never stopped operating, but
rather that the camera lens had been momentarily blocked by Appellant’s
upper body when he was grabbed by Officer Brown. The court denied the
motion, and Appellant filed notice of this appeal.
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Appellant raises the following issues:
I. Whether the trial court erred in finding the previously tried[]
traffic offenses were not part of the same criminal episode as the
current assault case and denying the motion to dismiss[.]
II. Whether the evidence was sufficient to prove intent to cause
bodily injury where Officer Brown’s testimony of a punch to his
chest lacked any evidence of any force and photos from the video
show that there was no punch[.]
III. Whether the verdict was against the weight of the evidence
where Officer Brown’s testimony of a punch[ ]is shown to be false
by single frame photos from vid[eo] which conclusively
demonstrates that no such punch occurred[.]
IV. Whether the trial court erred in failing to grant a new trial for
after discovered evidence where, prior to trial, defense counsel
was misled as to the import of the video evidence, where the still
frame photos from the video discovered after trial make it clear
that [Appellant] is innocent of punching Officer Brown[.]
V. Whether the trial court erred in excluding a broken arm suffered
by [Appellant] when Officer Brown slammed [Appellant] to the
ground, offered to show Officer Brown’s bias to avoid potential
civil and criminal liability for his own assault on [Appellant.]
Appellant’s Br. at 5 (answers below omitted).
I. Motion to Dismiss
Appellant first argues that the court should have granted his motion to
dismiss the charges under the compulsory joinder rule because the assault
charges were based on the same conduct and arose from the same criminal
episode as the alleged traffic violations, which were adjudicated separately,
prior to the assault trial. Appellant asserts there was a close temporal
relationship between the alleged traffic violations and alleged assault and that
duplicative evidence was required at both trials. Appellant does not convey
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who testified for the Commonwealth at the summary trial for the traffic
offenses before the magisterial district judge, and we note that no witnesses
appeared at the de novo trial. However, Appellant argues that Officer Irey’s
eyewitness testimony would have been necessary both at the summary trial
to prove the alleged traffic offenses and also at the assault trial to prove that
Officer Brown was acting “in the performance of duty” when Appellant
assaulted him. See 18 Pa.C.S.A. § 2702(a)(3) (providing that a person is
guilty of aggravated assault if he “attempts to cause or intentionally or
knowingly causes bodily injury to [a police officer] in the performance of
duty”). In addition, Appellant contends that because Officer Gray filed the
traffic citations and was present during the alleged assault, Officer Gray’s
testimony would have been presented at both trials.
Where the relevant facts are undisputed, the question of whether
prosecution is barred by the compulsory joinder rule, 18 Pa.C.S.A. § 110, is
subject to plenary and de novo review. Commonwealth v. Perfetto, ___
A.3d ____, No. 7 EAP 2018, at *8 (Pa. Apr. 26, 2019).
In its Rule 1925(a) opinion, the trial court reviewed the requirements of
compulsory joinder rule. See Trial Court Opinion, filed 8/22/18, at 2-3. The
rule states, in relevant part, that prosecution for “any offense based on the
same conduct or arising from the same criminal episode” as an earlier
prosecution which occurred in the same judicial district and resulted in
acquittal or conviction is barred if the prosecuting officer knew of the offense
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when the first trial commenced. Id. at 2 (quoting 18 Pa.C.S.A. § 110(1)(ii)).4
The court explained that to determine whether offenses arose from the same
criminal episode, the court must review whether there is a temporal
relationship between the charges and whether there is a logical relationship
between the offenses such that there exists a substantial duplication of either
factual or legal issues. Id. at 3 (citing Commonwealth v. Reid, 77 A.3d 579,
582-86 (Pa. 2013)).
The trial court concluded that the instant assault charges and
adjudicated traffic offenses “were based upon an entirely different set of facts,
constituting two separate and discrete criminal episodes.” Id. at 4. The court
observed that the conduct that gave rise to the alleged motor vehicle
violations occurred prior to Appellant’s return to his residence, where the
alleged assault occurred. Id. The court also found that there was no
commonality of legal issues, because the alleged crimes did not have any
overlapping elements, and that any duplication of factual issues or evidence
was “de minimis and insufficient to establish a logical relationship” between
the charges. Id. at 4-5.
After a review of the record, the briefs of the parties, and the applicable
law, we agree with the trial court’s assessment. Although Officer Irey testified
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4 It is undisputed that the summary traffic offenses occurred in the same
judicial district as the assault charges, i.e. Chester County, were known to the
official prosecuting the assault charges, and resulted in acquittal.
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at the trial on the assault charges, his testimony was not required to prove
those charges; nor would the testimony of Officers Brown or Gray have been
relevant to proving the alleged traffic offenses.5 We therefore affirm the trial
court’s denial of Appellant’s motion to dismiss on the basis of the well-
reasoned opinion of the Honorable Jacqueline C. Cody, which we adopt and
incorporate herein. See Tr. Ct. Op. at 2-5.
II. Sufficiency of the Evidence
Appellant next argues that the evidence was insufficient because he
claims that the video from Officer Brown’s body camera, when viewed at a
rate of 31 frames per second, directly contradicts Officer Brown’s testimony.
Appellant asserts that the still frames extracted from the video show that his
right arm remained at his side, that he did not make a fist, and that his hand
did not approach the camera. Appellant further contends the still frames show
that his and Officer Brown’s upper bodies were blocking the camera lens and
too close together for Appellant to have thrown a punch in accordance with
Officer Brown’s testimony.
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5 Although the trial court cited this Court’s decision in Commonwealth v.
Perfetto, 169 A.3d 1114, 1116 (Pa.Super. 2017) (en banc), which has since
been reversed by the Pennsylvania Supreme Court, the trial court did not rely
on this Court’s erroneous holding. Moreover, the Supreme Court’s holding in
Perfetto is distinguishable from the instant case. There, it was “undisputed
that . . . [all charges] ‘arose during the same criminal episode, namely one
traffic stop[.]’” Perfetto, No. 7 EAP 2018, at *8 (quoting Commonwealth v.
Failor, 770 A.2d 310, 313 (Pa. 2001)). Here, in contrast, there were two
criminal episodes such that Section 110 does not apply.
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In the alternative, Appellant argues that Officer Brown’s testimony and
the video evidence were insufficient to prove Appellant intended to cause
injury to Officer Brown. Appellant asserts that he is significantly shorter and
smaller than Officer Brown, and that Officer Brown testified that when
Appellant struck his chest it did not cause him to falter or injure him in any
way. Appellant claims the evidence establishes that he was merely flailing his
arms in an attempt to resist arrest.
Upon a challenge to the sufficiency of the evidence, we consider only
the evidence admitted by the trial court—not a diminished, expanded, or
otherwise modified record. See Commonwealth v. Koch, 39 A.3d 996, 1001
(Pa.Super. 2011).6 Because our consideration of this issue requires us to
review only the trial evidence, we decline Appellant’s invitation to view the
video from Officer Brown’s body camera in a different manner than the way
in which it was presented to the jury. See Commonwealth v. Jordan, 65
A.3d 318, 329 (Pa. 2013) (establishing slow-motion or still-frame version of
video so alters the evidence that it is subject to separate evidentiary ruling).
When reviewing a sufficiency of the evidence claim, we must determine
whether, when viewed in the light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
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6 See also Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986)
(stating that upon sufficiency review, “[a] reviewing court must not give
weight to or speculate upon matters not in evidence”).
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beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544,
559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Id. (quoting Commonwealth v.
Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008)).
To prove Appellant was guilty of committing aggravated assault under
the statutory section with which he was charged, the Commonwealth needed
to establish Appellant either attempted to cause, or intentionally or knowingly
caused, bodily injury to Officer Brown while he was in the performance of duty.
See 18 Pa.C.S.A. §§ 2702(a)(3), (c)(1). Similarly, to prove Appellant was
guilty of simple assault, the Commonwealth was required to prove that
Appellant either attempted to cause or intentionally, knowingly, or recklessly
caused bodily injury to Officer Brown. See 18 Pa.C.S.A. § 2701(a)(1). The
Commonwealth therefore was not required to establish that Officer Brown was
injured, only that Appellant attempted to inflict injury. The Commonwealth
may prove a defendant’s intent to inflict injury “by circumstances which
reasonably suggest” his intention. Commonwealth v. Mucci, 143 A.3d 399,
409 (Pa.Super. 2016) (quoting Commonwealth v. Rahman, 75 A.3d 497,
502 (Pa.Super. 2013)).
Officer Brown testified that Appellant was hostile, argumentative, and
twice pulled away from Officer Brown’s grasp after being told he was not free
to leave. Officer Brown testified that Appellant punched him in the chest with
a closed fist, and that he saw Appellant cocking his arm back just before he
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struck. In the light most favorable to the Commonwealth, this evidence was
sufficient for a jury to conclude that Appellant attempted to injure Officer
Brown.
III. Weight of the Evidence
Appellant argues that the verdict was against the weight of the trial
evidence because Officer Brown’s testimony was contradicted by the video
recording, Appellant’s testimony, and the character witnesses who testified on
Appellant’s behalf. According to Appellant, the video, when viewed as 31 still-
frames per second, was so contradictory to Officer Brown’s testimony
regarding Appellant’s intent to inflict bodily injury that the guilty verdict should
have shocked the conscience of the court.
“The weight of the evidence is exclusively for the finder of fact, which is
free to believe all, part, or none of the evidence[.]” Commonwealth v.
DeJesus, 860 A.2d 102, 107 (Pa. 2004). It is the purview of the fact-finder
to “assess the credibility of the witnesses” and resolve inconsistent testimony.
Id. Thus, a trial court should not grant a motion for a new trial “because of a
mere conflict in the testimony or because the judge on the same facts would
have arrived at a different conclusion,” but only when “certain facts are so
clearly of greater weight” than others that “the jury’s verdict is so contrary to
the evidence as to shock one’s sense of justice.” Commonwealth v. Clay,
64 A.3d 1049, 1055 (Pa. 2013). Upon review of a weight claim, we give great
deference to the discretion of the trial judge, who “has had the opportunity to
hear and see the evidence presented,” and will not reverse the court’s decision
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absent a palpable abuse of that discretion. Id. at 1056 (quoting
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).
The trial court rejected Appellant’s claim that the verdict was contrary
to the weight of the trial evidence. See Order, 6/5/18, at 1 n.1. The court
deferred to the jury’s verdict, and noted that “[t]he jury was able to view the
body camera video three times; twice during the trial and once during
deliberations. During trial, the body camera video was shown in slow motion
and Officer Brown testified in conjunction with the viewing of the body camera
video.” Id.As discussed above in relation to Appellant’s challenge to the sufficiency
of the evidence, we are unable to view the trial evidence in a manner other
than the way in which it was presented to the jury when considering
Appellant’s challenge to the trial court’s ruling on his weight claim. However,
our review of the record, including the video, does not indicate that the court
abused its discretion in deciding any evidence in Appellant’s favor was not of
such great weight as to render the jury’s verdict shocking to the conscience.
Although Appellant presented his own testimony and a multitude of character
witnesses, the jury clearly credited Officer Brown’s testimony, and did not find
that the body camera video contradicted or undermined his account. As we
discern no abuse of discretion, we affirm the trial court’s rejection of
Appellant’s weight claim.
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IV. After-Discovered Evidence
Appellant argues that the court erred in denying his motion for a new
trial based on after-discovered evidence. Appellant states that after trial, he
viewed the video from Officer Brown’s body-camera at a rate of 31 frames per
second and discovered that it showed Appellant never struck Officer Brown.
Appellant asserts that the Commonwealth misled him and the jury as to the
contents of the video through Officer Brown’s testimony that the camera
turned off when Appellant punched his chest. Appellant contends that the
Commonwealth had both the ability and ethical duty to review whether the
video was exculpatory and, if so, to “share that discovery with the defense.”
Appellant’s Br. at 45. Appellant argues that his reliance upon the
Commonwealth’s misrepresentations about the video, and his “lack of
technical knowledge and ability to create single photos out of the digital video
provided to him does not establish a lack of due diligence.” Id. at 46.
To be granted a new trial based on after-discovered evidence, a
defendant must demonstrate that the evidence could not have been obtained
prior to the conclusion of the trial by the exercise of reasonable diligence, is
not merely corroborative or cumulative, will not be used solely to impeach the
credibility of a witness, and would likely result in a different verdict if a new
trial were granted. Commonwealth v. Padillas, 997 A.2d 356, 363
(Pa.Super. 2010). “A defendant cannot claim he has discovered new evidence
simply because he had not been expressly told of that evidence.” Id. at 364.
“Likewise, a defendant who fails to question or investigate an obvious,
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available source of information, cannot later claim evidence from that source
constitutes newly discovered evidence.” Id.The trial court found that Appellant failed to meet the first criteria, as
he had possessed the body camera video for approximately four months prior
to trial, and that “[w]ith reasonable diligence, [he] could have slowed the
video down prior to trial.” Order, 6/5/18, at 1 n.1. The court also stated that,
“due to the close proximity of [Appellant] to Officer Brown at the time of the
punch, the actual contact of [Appellant’s] fist to the officer’s chest is not
visible. However, the entire video is consistent with Officer Brown’s testimony
of the assault.” Id. The court found that the still images extracted from the
video merely corroborated the video shown to the jury “three different times,”
and that the proposed evidence would be unlikely to result in a different
verdict if a new trial were granted.
We agree that the still-frame version of the video does not warrant a
new trial. Appellant had access to the video prior to trial, and has not
established that the Commonwealth was responsible for his failure to view it
at slower speed. See Commonwealth v. Brown, 134 A.3d 1097, 1106
(Pa.Super. 2016) (rejecting defendant’s claim that trial court erred in
admitting video as freeze-frames because Commonwealth provided copy of
video to defendant during discovery). And, given that the still frames
corroborate the evidence shown to the jury, we conclude Appellant’s claim is
meritless.
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V. Motion in Limine
In his final issue, Appellant argues the court erred in granting the
Commonwealth’s motion in limine, thereby precluding him from offering
evidence that Officer Brown broke Appellant’s arm during the arrest. Appellant
argues the evidence was relevant to show that Officer Brown was biased and
motivated to testify falsely against Appellant in order to avoid civil liability for
injuring Appellant.
“Admission of evidence . . . rests within the sound discretion of the trial
court, which must balance evidentiary value against the potential dangers of
unfairly prejudicing the accused, inflaming the passions of the jury, or
confusing the jury.” Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa.
2013); see also Pa.R.E. 403 (“The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence”). We trust in the
trial court’s ability “to oversee the presentation of evidence ‘so that overtly
passionate, intentionally biased and inflammatory material is kept out of the
courtroom.’” Bryant, 67 A.3d at 726 (quoting Commonwealth v. Eichinger,
915 A.2d 1122, 1139 (Pa. 2007)). An appellant bears the “heavy burden” to
demonstrate the trial court abused its discretion on an evidentiary ruling. Id.(quoting Eichinger, 915 A.2d at 1140).
In its Rule 1925(a) opinion, the trial court stated that it granted the
Commonwealth’s motion because it concluded that the evidence was not
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relevant. The court also stated that allowing the evidence would confuse the
issues in the case by drawing the jury’s attention away from determining
whether Appellant assaulted Officer Brown, and that it would cause undue
prejudice, allowing Appellant to “garner sympathy from the jury.” Tr. Ct. Op.
at 6.
Evidence related to the credibility of a witness is always relevant,
particularly so when the determination of guilt or innocence depends on the
credibility of a single witness. See Commonwealth v. Birch, 616 A.2d 977,
978 (Pa. 1992).
However, we conclude the trial court did not abuse its discretion in
granting the motion. First, the probative value of the evidence of Appellant’s
injury, as proof of Officer Brown’s potential motive for offering false testimony,
did not outweigh its potential prejudice. Appellant did not file a civil lawsuit
against Officer Brown prior to trial, and indeed does not argue that one is
currently pending. Cf. Commonwealth v. Butler, 601 A.2d 268, 271 (Pa.
1991) (holding trial court erred in refusing to allow defendant to cross-
examine Commonwealth witness regarding civil suit pending between
defendant and witness).
Furthermore, the court found the evidence was highly prejudicial and
would confuse the trial issues. As Officer Brown sustained no injuries during
Appellant’s assault against him, admission of the evidence of Appellant’s injury
would have too greatly risked unfairly rousing the emotions of the jury against
the Commonwealth. Admission of the evidence would also have risked
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confusion of issues by distracting the jurors from their task of making a clear
assessment of Appellant’s interactions with the officers prior to the moment
when he was injured. As the prejudicial nature of the evidence outweighed its
probative value, the court did not abuse its discretion in excluding it.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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Circulated 05/06/2019 02:04 PM
COMMONWEALTH OF PENNSYLVANIA I .
: IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
vs.
CRIMINAL ACTION
PETER CAMPBELL BROWN i : NO. CP-15-CR-0002417-'2017
Nicholas J. Casenta, Jr.1 Esquire;,' Chief Deputy District Attorney, on behalf of the
Commonwealth of Pennsylvania
James R. Freeman, Esquire, on behalf of Defendant
i
'
OPINION
Defendant appeals from the judgment of sentence entered in this matter on March
14, 2018 following a trial and conviction for aggravated and simple assault of a police officer.
We write in support of judgment in accordance with Pa.R.A.P. 1925(a).
PROCEDURAL HISTORY
Defendant was charged with one count of aggravated assault, one count of simple
assault, one count of summary harassment, one count of disorderly conduct, and one count of
investigation by police officers.' On January 5, 2018, Defendant was found guilty of aggravated
and simple assault, following a jury triaL2 Defendant was sentenced on March 14, 2018 to one
year probation on the aggravated, assault count; simple assault merged with the crime of
aggravated assault. On March 23, 2018; Defendant filed a Post Sentence Motion, which was
denied by Order of the Court dated June 5, 2018. Defendant timely filed a Notice of Appeal on
June 29, 2018,
1
The count of investigation by police officers was dismissed by Order dated October 26, 2017.
2
The Commonwealth did not pursue the summary offenses.
DIS CDS SI ON
In his Statementiof Matters Complained of on Appeal, Defendant raises five
.
'
allegations of error on the part �fthe Court. Allegations of Error numbered III through V were
addressed in the Court's Order and footnote dated June 5, 2018 disposing of Defendant's Post
Sentence Motion. We hereby a�opt the Order and footnote as the Opinion of this Court for the
,;
purposes ofappeal on these three allegations of error.
In Allegation of Error I, Defendant asserts that the Court erred in denying his
'.
pretrial motion to dismiss the charges pursuant to 18 Pa.C.S.A. § 110 ...Section 110, known as the
compulsory joinder rule, requires the Commonwealth to bring, in a single proceeding, all known
charges arising against a defendant from a single criminal episode.
Although a prosecution is for a violation of a differentprovision of
a
the statutes than former prosecution or is based on different facts,
it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the same
offense) arid the subsequent prosecution is for:
***
(ii) any offense based on the same conduct or arising from
the same criminal episode, if such offense was known to
the appropriate prosecuting officer at the time of the
commencement of the first trial and occurred within the
same judicial district as the former prosecution unless
the courtordered a separate trial of the charge of such
offense[.]
18 Pa.C.S.A. § 1 lO(l)(ii). Section 110 bars a subsequent prosecution if the following four
requirements are met:
(1) the former prosecution resulted in an acquittal or
conviction; (2) the current prosecution was based on the same
criminal conduct or arose from the same criminal episode; (3)
the prosecutor in the subsequent trial was aware of the charges
2
before the first trial; and (4) all charges [are] within the same
judicial district.as the former prosecution.
Commonwealth V. Reid, 621 P�. 245, 251, 77 A.3d 579, 582(2013), citing, Commonwealth v.
Nolan, 579 Pa. 300, 855 A.2d �34, 839 (2004) (superseded by statute on other grounds). This
four part test must be applied by the court in determining whether the compulsory joinder rules
l
have been violated. CommonJealth v. Perfetto, 1-69 A.3d 1114, 1124 (Pa.Super. 2017).
ln determining �
hether
the charges arise from the same criminal episode; the
court must look to both the "temporal" and "logical" relationship between the charges. Reid, at
582, The offenses are logically' related where there is a substantial duplication of either factual
or legal issues. Reid, at 251-52i 77 A.3d at 582. "[AJ mere de minimis duplication of factual and
legal issues is insufficient to establish a logical relationship between offenses." Id., at 252, 77
A.3d at 582-83.
When determining if there is a duplication oflegal issues, a court
should not limit its analysis to a comparison of the charges, but
should also consider whether, despite "the variation in the form of
the criminal charges," there is a "commonality" oflegal issues
within the two prosecutions,
Reid, at 257, 77 A,3d at 585-86 '(citation omitted). The logical relationship test does not require
an absolute identity of factual backgrounds. Id. In considering the temporal and logical
relationship between the criminal acts, the court is guided by the policy considerations of Section
110,
(1) to protect a person accused of crimes from governmental
harassment of being forced to undergo successive trials for
offenses stemming from the same criminal episode; and (2) as a
matter of'judicial.administration and economy, to assure finality
without unduly burdening the judicial process by repetitious
litigation.
Reid; at 253, 77 A.3dat 583.
3
Defendant was charged
!
with violation of two sections of the Motor Vehicle Code;
75 Pa.C.S.A §§ 101 et seq.3 The charges were initially disposed of by the magisterial district
.
i .
justice, who found Defendant guilty on both charges. Defendant filed a summary appeal to the
Common
Chester County Court of Pleas, where he was found not guilty of both charges, due to
the failure of the Commonwealth witnesses to appear. (NT. 9/6/17, 10). Defendant argues that
!
the charges of aggravated assault and simple assault occurred Within the same judicial district as
the summary traffic violations a nd arose out ofthe same criminal conduct or episode. Defendant
1
.
i
contends that there is a logical �11:d temporal connection between the summary traffic violations
and the charges of aggravated and simple assault; therefore, under the compulsory joinder rule,
the charges ofaggravated and simple assault should have been dismissed.
Contrary to Defendant's arguments, while the assault.charges occurred within the
samejudicial district and within, a short time of the summary traffic offenses, the assault charges
were based upon an entirely different set of facts, constituting two separate and discrete criminal
episodes .. Defendant was cited for violating the Motor Vehicle Code while driving in his vehicle,
on a public roadway, to his residence. Defendant completed the ·conduct which was the basis for
the alleged violation of the Motor Vehicle Code prior to reaching his residence. Once Defendant
arrived at his residence} the police arrived to investigate the alleged motor vehicle violations.
Defendant was at his home, in his driveway, when he punched Officer Andrew Brown.
The evidence of record fails to show a logical relationship between Violating the
Motor Vehicle Code and assaulting a police officer. There is no substantial duplication of
factual or legal issues. In order to establish aggravated assault, the Commonwealth must provide
sufficient evidence that the defendant "attemptjed] to cause or intentionally or knowingly causes
3
75 Pa.C.S.A. §3327(a)(l) (duty of driver emergency response area) and 75 Pa.C.S.A. § 3102(2)
(obedience to authorized person directing traffic).
4
sufficient evidence that the defendant "attempt] ed] to cause or intentionally or knowingly causes
!
bodily injury to [anJ officer] ] .1.in the performance of duty. 18 Pa.C.S.A. § 2702(a)(3).''
i
'
Commonwealth v. Rahman, 75 �.3d 497, 501 (Pa.Super. 2013); In order to establish simple
1
assault, the Commonwealth must provide sufficient evidencethat the defendant "attempt[ ed] to
cause or intentionally, knowingly orrecklessly causejd] bodily injury to another." 18 Pa.C.S.A.
!
§ 270l(a)(l). Defendant's conduct on the street prior to the events that took place at his
!
residence does not constitute anlelement of the crime of aggravated or simple assault. It was not
i
'
necessary for the Commonwealth to prove Defendant violated any provision of the Motor
i
'
Vehicle Code in order to prove he assaulted Officer Brown. There is no commonality of legal
'
issues between the charges. bu�lication of any facts in these two matters is merely de minimis
and insufficient to establish a logical relationship between the motor vehicle violations and the
aggravated and simple assault charges,
In Allegation of Error II, Defendant complains that the Court erred in grantingthe
Commonwealth's Motion in Limine to Preclude Any Reference to Defendant's Alleged Injury
Sustained from the Incident on March 10, 201 7. Defendant argues that this evidence was
necessary to show Officer Brown had a reason to testify falsely that Defendant punched him in
order to avoid potential civil liability for assault of Defendant,
Issues regarding admissibility of evidence lie within the sound discretion of the
trial court. Commonwealth v. Christine, 78 A.3d 1 (Pa.Super. 2014). The Court's decision
regarding the admissibility of evidence will not be overturned absent an abuse of discretion. Id.(citations omitted). All relevant evidence is admissible except as provided by law. Pa.R.E. 402.
Evidence is relevant if''(a) it hasa tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining the action.', Pa.R.E.
5
401. The court may exclude relevant evidence if its probative value is outweighed by unfair
'
prejudice, or admission of the evidence would confuse the issues, mislead the jury, cause undue
.
i
delay; waste time or needlesslyipresents cumulative evidence. Pa.R.E. 403.
Defendant was charged with aggravated and simple assault of a police officer.
i
Whether Defendant sustained iijuries in the course of committing this crime is not relevant to
!
whether he struck Officer Brown. Testimony regarding any alleged injury Defendant suffered
1 . . .
would not assist the jury in determining whether he assaulted Officer Brown. Allowing .
.
i
Defendant to present evidence 9f any injuries he sustained on the date in question would simply
draw the attention of thejury a;ay from the issue in this matter; that is, whether Defendant
committed an assault on a police officer.
Admission of evidence of Defendant's alleged injuries would only confuse the
issues in this case and cause undue prejudice. Defendant was not charged with resisting arrest
and did not raise the claim of self-defense. Therefore, the actions of Officer Brown and the
alleged injuries sustained by Defendant as a result of Officer Brown's conduct in response to
Defendant's assault on Officer Brown are not relevant Presentation of this evidence would do
nothing more than allow Defendant to gamer sympathy from the jury.
For the foregoing reasons, we respectfully submit that Defendant's allegations are
without merit and the appeal should be denied.
BY THE COURT:
P.J.
6
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