Com. v. Sawyers, K., Jr.

J-S73015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KERRY GATHAN SAWYERS, JR. :
:
Appellant : No. 490 MDA 2019
Appeal from the Judgment of Sentence Entered March 19, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001965-2018
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 24, 2020
Appellant, Kerry Gathan Sawyers, Jr., appeals from the judgment of
sentence entered in the Cumberland County Court of Common Pleas, following
his jury trial convictions of one count each of criminal trespass, disarming law
enforcement, and resisting arrest.1 After the jury’s verdict was recorded, the
trial court found Appellant guilty of summary criminal mischief.2 After careful
review, we affirm.
The trial court set forth the relevant facts and procedural history as
follows:
At approximately 9:40 p.m. on July 4, 2018, Lower Allen
Township Police Officers were directed to 820 Lisburn Rd. Apt 513,
____________________________________________
1 18 Pa.C.S. § 3503(a)(1)(ii), 18 Pa.C.S. § 5104.1(a)(1), and 18 Pa.C.S.
§ 5104, respectively
2 18 Pa.C.S. § 3304(a)(5). The jury found Appellant not guilty on two counts
of aggravated assault, 18 Pa.C.S. § 2702(c), and one count of criminal
trespass, 18 Pa.C.S. § 3503(a)(1)(ii).
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to respond to an active burglary. The Cumberland County 9-1-1
Emergency Communication Center dispatched a report that a male
had kicked in the door of an apartment and was now standing
inside. Officer [Bryan] Rennie, Corporal [Richard] Tamanosky, and
Officer [Katie] Justh arrived on scene. The suspect was described
as a black male with no shirt and red sweatpants. Officers Rennie
and Justh responded to the victims in apartment 513, and Corporal
Tamanosky remained in the first floor lobby in case the suspect
came downstairs.
Officers Rennie and Justh made contact with victims Connie
Showers, the tenant of apartment 513 who had called the police,
and her adult daughter Tisha Dominick. The victims confirmed
they were unhurt and revealed [Appellant] is the boyfriend of
victim-Dominick who lives in apartment 814 of the same complex.
Victim-Dominick reported to the officers that [Appellant] had
probably left the building. Officer Justh told Officer Rennie that
she would check apartment 814 to see if [Appellant] had gone
upstairs.
Officer Justh used the elevator, and upon exiting, she
observed a reflection of a person in the glass fire doors to her right.
She cautiously walked down the hallway and soon observed a male
matching the suspect’s description exit apartment 814.
Officer Justh, dressed in badged police uniform, asked to speak
with [Appellant], but he did not respond. She immediately
identified herself as a police officer, and [Appellant], whose back
was to the officer, leaned against the wall railing and began moving
backwards toward Officer Justh. As Officer Justh could not see
[Appellant’s] hands, she began giving [Appellant] audible
commands to get on the ground and onto his stomach. She
repeatedly yelled these commands approximately 20 times.
[Appellant], who was still moving toward Officer Justh, began
rolling against the railing, looked at Officer Justh, but he still
refused to comply with her commands. [Appellant’s] actions and
noncompliance with instructions led her to believe [Appellant] was
under the influence of drugs; a fact [Appellant] later admitted at
trial. Officer Justh drew her firearm and pointed it at [Appellant]
but again [Appellant] refused to comply and started to advance
toward Officer Justh with his arms raised and fists clenched.
Officer Justh backed away, transitioned from her firearm to her
Taser, turned the Taser on, and yelled at [Appellant] to stop or he
was going to get tasered.
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Despite multiple warnings [Appellant] continued to move
toward Officer Justh in an aggressive manner, and she tasered
[Appellant] who then momentarily fell to the ground screaming;
however, [Appellant] quickly rolled over and stood up. He again
advanced towards Officer Justh, and in an aggressive manner,
swung his arms towards her head and face. Officer Justh tasered
[Appellant] a second time and he fell backwards but still refused
to comply. To escape officers[, Appellant] ripped the Taser wires
imbedded in his chest, broke down the door—head first—to
apartment 812, and forcibly entered the apartment.
Once inside, [Appellant] tried to force the broken door shut.
Officer Justh radioed dispatch that she had a male resisting arrest,
he had been tasered, and had broken into apartment 812.
Officer Rennie arrived and Officer Justh changed the cartridge on
her Taser.
Officers Rennie and Justh tried to force open the door that
[Appellant] was pushing shut. Officer Justh observed an occupant
inside the apartment; an elderly female, later identified as victim-
Hannalyn Kiser. As the officers attempted to force the door back
open, Officer Rennie attempted to taser [Appellant] from around
an opening in the door. [Appellant] grabbed hold of
Officer Rennie’s Taser, and as [Appellant] and Officer Rennie
struggled over control of the Taser, Officer Justh was struck in the
left arm/shoulder with the current from the Taser.
[Appellant] charged out of apartment 812 and towards
Officer Justh. Officer Rennie yelled at Officer Justh to taser
[Appellant] again. As [Appellant] aggressively advanced toward
Officer Justh, she tasered [Appellant] again. During this tasering
one probe entered [Appellant], and the other probe entered Officer
Rennie’s thigh temporarily incapacitating both men; [Appellant]
fell backwards onto Officer Rennie, and both men fell to the floor.
[Appellant] rolled to his side, Officer Rennie pushed him off, and
during the scuffle [Appellant] began to grab at the items on Officer
Rennie’s utility belt—knocking the radio loose and opening the
pouch to the officer’s ammunition magazines. [Appellant]
attempted to get ahold of Officer Rennie’s gun and generally
continued to resist.
[Appellant] tried again to re-enter apartment 812, but
Officer Rennie again tasered [Appellant]. Corporal Tamanosky
arrived and assisted in finally restraining and cuffing [Appellant].
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During the struggle Officers Rennie and Justh suffered injuries
consisting of visible bruises, welts, scratches, red marks, and
bleeding from the Taser puncture wound. Officers held [Appellant]
to the ground while waiting for additional units to arrive and assist.
Trial Court Opinion, 7/12/19, at 8–13 (footnotes and record references
omitted).
Appellant was sentenced on March 19, 2019, to a term of confinement
of twenty-four to sixty-eight months followed by twelve months of probation.
Trial Court Opinion, 7/12/19, at 5. This timely appeal followed, and Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for review:
I. Did the trial court commit an abuse of discretion in limiting the
Defense’s access to witness statements and training records by
denying the defense motion to compel discovery and granting
Lower Allen Township’s motions to quash subpoenas?
II. Did the trial court abuse its discretion in allowing Officer Justh
to testify about her training regarding the use of tasers after
limiting the Defense’s access to discoverable materials necessary
for a full and complete cross-examination?
III. Did the trial court abuse its discretion in allowing Officer Justh
to read verbatim passages from her preliminary hearing testimony
that were outside the scope of cross examination and otherwise
inadmissible under the Pennsylvania Rules of Evidence regarding
out-of-court statements?
Appellant’s Brief at 7.
Appellant first argues the trial court abused its discretion when it limited
his access to witness statements and training records by denying Appellant’s
motion to compel discovery and granting Lower Allen Township’s motions to
quash subpoenas. Appellant claims the disclosure of these documents was
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required under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, the
due process guarantees in the Pennsylvania and United States Constitutions,
and Pa.R.Crim.P. 573. Appellant’s Brief at 28.
On November 29, 2018, Appellant served seven subpoenas on the Lower
Allen Township Police Department requesting, inter alia, copies of the police
department’s policies on the use of force and interaction with intoxicated
individuals, and any records of the use of force on the night of the incident
involving Appellant. Appellant also sought access to the complete personnel
files of Officers Rennie, Tamanowsky, and Justh, including information
regarding the officers’ training in use of force, interaction with intoxicated
individuals, and use of tasers. After the department filed motions to quash
the subpoenas, Appellant filed a motion to compel discovery of “use of force,”
“workers compensation,” and “exposure” forms completed by the three
officers.3 Motion to Compel, 12/21/18, at unnumbered 1. Appellant averred
that the documents requested in the motion to compel were discoverable
under Pa.R.Crim.P. 573(B)(1)(f), Pa.R.Crim.P. 573(B)(2)(a)(i), and Brady,
373 U.S. at 87. Motion to Compel, at unnumbered 2.
____________________________________________
3 In response to a defense discovery request, Officer Rennie stated that he
had completed a “use of force” form relevant to Appellant’s arrest. Although
the officer indicated that the form was “attached,” it was not included. Motion
to Compel, 12/21/18, at unnumbered 1. The record does not provide any
information concerning whether Officers Justh and Tamanowsky also
completed a “use of force” form.
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On January 15, 2019, the trial court held a hearing on the motion to
compel and also entertained argument on the motions to quash.4 On January
25, 2019, the trial court granted the motions to quash. Further, after
conducting an in camera review of the documents produced by the
Commonwealth in response to the motion to compel, the court denied that
motion.5 As to the documents provided by the Commonwealth, the trial court
noted: “The Commonwealth’s exhibits 1, 2, and 3, as well as the court
requested electronically sought records that [have] been duplicated to a
thumb drive SHALL BE SEALED and preserved in the Clerk of Courts records
to be made available to appellate court(s) in the event of an appeal.” Order,
1/25/19, at unnumbered 1 (emphasis in original).
The trial court explained its reasoning for these rulings, as follows:
[Appellant’s] claims that denying his motion to compel and
quashing the Defense’s subpoenas violated his due process rights
and were an abuse of the court’s discretion, are wholly without
merit. The record reveals . . . that although [Appellant’s]
subpoenas were overbroad, unspecific, and lacked articulable
____________________________________________
4 The trial court was unaware that the motions to quash the subpoenas were
pending when the hearing commenced. During the course of the proceeding,
however, the Commonwealth provided a copy of the motions to the trial court,
and defense counsel explained the substance of the documents she was
requesting from the police department. N.T. (Omnibus Pretrial Motions
Proceeding), 1/15/19, at 6, 8.
5 We glean from our review of the hearing transcript that the trial court was
provided only with a “use of force” form authored by Officer Rennie. N.T.
(Omnibus Pretrial Motions Proceeding), 1/15/19, at 3 (wherein the
Commonwealth referred to use of force form in the singular, and the trial court
noted a prior discussion with the Commonwealth regarding “things the officer
said he had completed”) (emphasis added).
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reasons to believe that inspection would lead to the discovery of
some relevant evidence, the court, out of an abundance of
caution, performed an in camera review of the documents within
the possession and control of the Commonwealth but found no
exculpatory evidence, and the review further supports denying
[Appellant’s] overbroad and general requests.
* * *
[Appellant’s] requests for voluminous records were
repetitive, burdensome, unreasonable, and broadly made without
regard to the relevance to [Appellant’s] case. The record further
reveals that [Appellant] failed to establish that the discovery
request was either material to the preparation of his defense or a
reasonable request. See Pa.R.Crim.P. 573(B)(2)(a)(iv).
The “statements” by the victim-officers were contained in
their personnel files and workers’ compensation files. These pro
forma records, not statements, were examined by the court and
deemed not to be material toward exonerating [Appellant].
Indeed, the reports are favorable to the Commonwealth’s
allegations in that they report on the job injuries, as required by
law, and corroborate the charges for bodily injuries to the officers.
None of these reports in any way absolve [Appellant]. The claim
that the lack of reports hampered the defense is belied by the fact
that even without the requested files [Appellant] had the
opportunity to fully cross examine Officer Justh about her training
in the use of force, more specifically the use of a Taser, ostensibly
this cross-examination led the jury to acquit [Appellant] of the
charges involving an offensive assault on police officers.
Accordingly, [Appellant] did not suffer any impingement upon his
due process rights.
Instantly, as it was in [Commonwealth v. Garcia, 72 A.3d
681 (Pa. Super. 2013),] it naturally follows that because
[Appellant] has failed to establish materiality or reasonableness,
the disclosure sought by [Appellant] would not be in the interest
of justice. [Appellant] has no right to unfettered access to files not
in his possession, nor may he search untrammeled through
Commonwealth files in order to argue the relevance of material
therein. As there was no reasonable and specific basis to permit
[Appellant] to review the officers’ personnel and other files,
including personal information, [Appellant’s] claims of error are
meritless and warrant no relief.
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Trial Court Opinion, 7/12/19, at 18, 21–22 (footnotes omitted).
“Decisions involving discovery matters are within the sound discretion
of the trial court and will not be overturned absent an abuse of that discretion.”
Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation
omitted). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.” Id. (quoting Commonwealth
v. Antidormi, 84 A.3d 736, 749–750 (Pa. Super. 2014)). “Even when a
defendant can prove an error in the admission or exclusion of testimony, it is
not enough to warrant a new trial unless he can also prove that he was
prejudiced by such error.” Commonwealth v. Beltz, 829 A.2d 680, 682–
683 (Pa. Super. 2003).
At the outset, our review of the discovery issue is hampered by an
incomplete record certified on appeal. The thumb drive supposedly
memorializing Commonwealth Exhibit 1 (use of force report), Exhibit 2
(worker’s compensation forms submitted by the three officers), and Exhibit 3
(exposure forms for the three officers), did not include Exhibit 1, the use of
force report.6 Additionally, although it appears that the Commonwealth
____________________________________________
6 Furthermore, the thumb drive was not part of the trial court record certified
on appeal and was produced only after inquiry and request by the
Prothonotary of this Court.
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provided the Lower Allen Township Police Department use of force policy to
the trial court, there is no indication if that document was preserved.7 Finally,
we cannot discern from our review of the transcript of the omnibus motion
hearing the nature of the “electronic copy of additionally stored records”
referenced in the trial court’s order denying the motion. Order, 1/25/19, at
unnumbered 1.
“[T]his Court may consider only the facts that have been duly certified
in the record when deciding an appeal.” Commonwealth v. Kennedy, 151
A.3d 1117, 1127 (Pa. Super. 2016) (citation omitted). It is the appellant’s
responsibility to ensure that the Court has the complete record necessary to
review his claim. Id. (citation omitted). When an appellant fails to provide
the court with the necessary items for review, the claim is waived. Id.(citation omitted). We will not find waiver in this case, however, because it is
not apparent whether the above-described documents were ever included in
the trial court record; nor can we determine whether Appellant had access to
these documents when perfecting his appeal. In any event, we can resolve
the discovery issues based upon the record before us.
We first address whether the trial court erred when it denied Appellant’s
motion to compel discovery of use of force, worker’s compensation, and
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7 See N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 3.
([Commonwealth]: “What we have, Judge, we have the use of force report
for you to review, as well as the policy on use of force.”).
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exposure forms completed by Officers Rennie, Tamanowsky, and Justh. The
trial court determined that these records were not discoverable under
Pa.R.Crim.P. 573(B)(2)(a)(iv) because Appellant did not establish that the
discovery request was either material to the preparation of his defense or was
reasonable. Trial Court Opinion, 7/12/19, at 21. The trial court also offered
that his in camera review of the documents revealed no information helpful to
exonerating Appellant. Id.On appeal, Appellant disputes the trial court’s conclusion that the
discovery sought in his motion to compel was immaterial to his guilt.
Appellant contends that “the pertinent question when determining whether
the Commonwealth acted improperly when it fails to disclose evidence is
whether it could reasonably have predicted possible defense strategies. If it
could, then the prosecutor will be held to reasonable anticipation of what
evidence in his possession might be material.” Appellant’s Brief at 32 (quoting
Commonwealth v. Hanford, 937 A.2d 1094, 1100 (Pa. Super. 2007)
(internal citation and quotations omitted)). Appellant asserts that the
allegations against him were premised on a theory that he acted
unreasonably, recklessly, and aggressively towards the officers, compelling
them to use substantial force in order to subdue him. Thus, Appellant urges
that inquiry into the reliability of the police witnesses was paramount to his
defense, and the prosecution should have anticipated this strategy.
Appellant’s Brief at 32–33.
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While we agree with the trial court that the police officers’ statements
recorded on the worker’s compensation and exposure forms were not material
to the case against Appellant, we cannot definitively state the same for the
information that may have been disclosed on the use of force form. However,
because this form was not included in the thumb drive forwarded to this Court,
we will not speculate as to its contents. Nonetheless, even assuming this
document was discoverable under Pa.R.Crim.P. 573 and/or Brady, Appellant
is not entitled to a new trial because he cannot demonstrate the requisite
prejudice resulting from a violation of either the procedural rule or the
Supreme Court decision.
Pa.R.Crim.P. 573 reads in relevant part:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the Commonwealth
shall disclose to the defendant’s attorney all of the following
requested items or information, provided they are material to the
instant case. The Commonwealth shall, when applicable, permit
the defendant’s attorney to inspect and copy or photograph such
items.
* * *
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence;
* * *
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise provided in Rules
230 (Disclosure of Testimony Before Investigating Grand Jury)
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and 556.10 (Secrecy; Disclosure), if the defendant files a motion
for pretrial discovery, the court may order the Commonwealth to
allow the defendant’s attorney to inspect and copy or photograph
any of the following requested items, upon a showing that they
are material to the preparation of the defense, and that the
request is reasonable:
* * *
(ii) all written or recorded statements, and substantially
verbatim oral statements, of eyewitnesses the Commonwealth
intends to call at trial.
Pa.R.Crim.P. 573(B)(1)(f), (B)(2)(a)(ii).
“A violation of discovery [under Pa.R.Crim.P. 573] does not
automatically entitle appellant to a new trial. Rather, an appellant must
demonstrate how a more timely disclosure would have affected his trial
strategy or how he was otherwise prejudiced by the alleged late disclosure.”
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (internal
citations and quotations omitted). Furthermore,
To demonstrate a Brady violation, Appellant must show
that: (1) the prosecution concealed evidence; (2) which was either
exculpatory evidence or impeachment evidence favorable to him;
and (3) he was prejudiced by the concealment. Strickler v.
Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286(1999). To show prejudice, he must demonstrate a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
reasonable probability for these purposes is one which
“undermines confidence in the outcome of the trial.” Kyles v.
Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490(1995).
Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (some internal
quotations omitted).
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At the omnibus pretrial hearing, defense counsel explained why she was
requesting the information addressed in her motion to compel:
[Defense Counsel]: The reason I am requesting those records is
because they are eyewitness statements about the incident at hand
in which [Appellant] is accused of aggravated assault. There
[are] allegations that there was a tussle over a taser and
[Appellant] was tased multiple times. So I am seeking to have a
complete record of all eyewitness statements so that I can prepare
for a constitutionally robust cross examination on behalf of
[Appellant].
N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 8–9 (emphasis
added). Obviously, the fact that Appellant was acquitted of aggravated
assault abrogates any finding of prejudice under Brady, 363 U.S. at 87
(“suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment. . . .”). Furthermore, even if Officer Rennie’s use of force form
included statements implicating the trial evidence supporting Appellant’s
convictions of disarming a police officer and resisting arrest, both
Officers Justh’s and Tamarowsky’s trial testimony corroborated
Officer Rennie’s version of events concerning the interaction with Appellant.
As to the question of prejudice arising from a Pa.R.Crim.P. 573 violation,
Appellant presented a cognizable argument that prior statements by witnesses
can be discoverable under that rule. He does not, however, aver in his brief
that he was prejudiced by the failure to disclose those statements.
Additionally, Appellant has not advanced any argument that his trial strategy
changed traceable to the withheld information. Appellant’s defense was
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focused on the reliability of the police officers. While Appellant posits that the
withheld documents might have bolstered the effectiveness of his cross-
examination, he does not claim that he abandoned a tactical decision to
impeach the officers’ credibility because he did not have access to their prior
statements. Therefore, having failed to demonstrate prejudice under either
Brady or Pa.R.Crim.P.573, Appellant is not entitled to a new trial on this basis.
We next address whether the trial court erred when it quashed the
subpoenas. The subpoenas originally demanded numerous documents.
However, at the pretrial hearing, defense counsel limited the scope of her
request to the prior witness statements that were the subject of the motion
to compel and the training and certification records included in the three
officers’ personnel files. N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19,
at 10.
The trial court granted the motions to quash, reasoning as follows:
In order to obtain the personnel records of an officer, a
defendant must first articulate a reasonable basis for his request;
a criminal defendant is not entitled to a “wholesale inspection” of
that file. See, Commonwealth v Mejia-Arias, 734 A.2d
870,876 (Pa. Super. 1999). “As for in camera review, the
Pennsylvania Supreme Court has held that a defendant is entitled
to court inspection of investigatory files only where there is an
articulable reason to believe that inspection would lead to the
discovery of some relevant evidence.” Commonwealth v.
Blakeney, 946 A.2d 645, 66 (Pa. 2008). Counsel’s stated
intention to mount a vigorous cross examination of the witnesses
does not meet the prerequisite for the inspection of the personnel
files.
“A defendant is entitled to a court inspection of the
Commonwealth’s investigatory files only when there exists at least
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some reason to believe the inspection would lead to the discovery
of evidence helpful to the defense.” Commonwealth v. Gartner,
381 A.2d 114, 120 (1977). By separate Omnibus Motion the officer
completed administrative papers were reviewed by the [c]ourt
even though no valid reason given herein for said inspection and
found not to have discoverable material. Furthermore, the
information contained in any law enforcement policy is protected
for officer and public safety absent there being a coherent reason
for said inspection, again there is none herein.
Order, 1/25/19, at 1–2.
We have previously addressed whether the officers’ statements were
discoverable and concluded that no prejudice ensued from the failure to
disclose these documents. Moreover, we agree with the trial court that
Appellant failed to proffer a reason to believe that the information included in
the officers’ personnel files concerning their training and certification would
lead to the discovery of material evidence. A defendant must be able to
articulate a reasonable basis for any inspection demanded of police personnel
files. Commonwealth v. Mejia-Arias, 734 A.2d 870, 876 (Pa. Super. 1999).
At the hearing, defense counsel explained the relevance of the training
and certification information:
I don’t need the complete personnel records, but I need to
be able to prepare for an examination of those witnesses. If they
get on the witness stand and say, I have extensive training in the
use of force and I follow[ed] that training to a T, I am not able to
cross-examine them without knowing what that training actually
was.
N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 10. A representation
that the information sought might be helpful in cross-examining the officers
about their activity at the crime scene does not satisfy the materiality
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requirement justifying release of police personnel files. See
Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (More
than a mere assertion that the information disclosed might be helpful is
necessary). Even imagining a scenario where the requested training and
certification documents were made available, and the officers’ trial testimony
revealed that their actions were not in conformity with their training, such a
revelation would only be reflective of the officers’ credibility concerning their
own actions and would not be probative of Appellant’s guilt or innocence.
For the above reasons, we conclude that Appellant has failed to
demonstrate prejudice flowing from either of the trial court’s discovery
orders. Therefore, Appellant’s assertion of error involving the decisions to
deny the motion to compel and grant the motion to quash is meritless.
Appellant’s second claim is that the trial court abused its discretion
when it permitted Officer Justh to testify regarding her training in the use of
tasers. As previously described, “[a]dmission of evidence is a matter within
the sound discretion of the trial court, and will not be reversed absent a
showing that the trial court clearly abused its discretion.” Santos, 176 A.3d
at 882. Further, to warrant a new trial on this basis of an erroneous
evidentiary ruling an appellant must prove that he was prejudiced by such
error. Beltz, 829 at 682–683.
At the motion to compel discovery and the motions to quash the
subpoenas hearing, Appellant’s counsel explained that she was seeking
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disclosure of documents related to the responding officers’ training in order to
determine if they followed department policy governing the use of tasers. See
N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 10.
On appeal, Appellant contends that in light of the trial court’s pretrial
ruling precluding access to information on the subject of Officer Justh’s
training and certification, the officer’s trial testimony regarding the use of
tasers was inadmissible. The pertinent testimony was elicited during re-direct
examination:
Q. There was also a number of questions regarding the
taser’s cartridges, that kind of thing. Do you have any particular
training as it relates to tasers?
A. Just the training my department gives us when we
initially got the tasers, and every year we have to do
recertification, but I am not an instructor.
Q. You are not an instructor?
A. No.
Q. Do you have to get certified to use the taser?
A. Yes, we had to go through training. And the initial—
[DEFENSE COUNSEL]: Judge, I am going to object to
questioning about Ms. Justh’s training in light of the pretrial
motions that were filed.
THE COURT: Overruled.
THE WITNESS: I am sorry? The question?
[COMMONWEALTH]: I believe where we left off was do you
have to be - do you receive training even if you are not an
instruct
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A. Yes. Yes. Our initial training is –
* * *
Q. And you have to be certified?
A. Yes.
Q. And, I am sorry, did you say that certification was yearly?
A. Yes.
Q. On July 4th, 2018, was your certification up to date?
A. Yes.
Q. How many times prior to that year had you been
certified?
A. Every year. And I want to say we had been carrying the
tasers for -- I honestly don’t -- between 6 to 8 years maybe.
Q. And was there any time where there was a break between
when you were certified?
A. You mean where I was not certified?
Q. Yes?
A. No.
Q. And so you said you have had the tasers for about 6 to 8
years?
A. I might be off on those numbers.
THE COURT: Yeah. She is trained. You have got that.
N.T. 1/29/19, at 157–159.
It is significant that Officer Justh’s testimony that she was trained in the
use of tasers and that annual recertification was required was admitted prior
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to defense counsel’s objection. The testimony after the objection concerned
only the number of times Officer Justh was recertified and that her certification
was current on the date of the crimes. The admissibility of this mostly
duplicative evidence clearly was not “manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as shown by the evidence on record.” See
Santos, 176 A.3d at 882.
Furthermore, at the pretrial motion hearing, Appellant’s counsel
represented that she was seeking disclosure of the training information in
anticipation of Officer Justh’s potential testimony that she followed
department training when she employed her taser on Appellant. N.T.
(Omnibus Pretrial Motions Proceeding), 1/15/19, at 10. At trial, Officer Justh
did not testify to the specifics of her training or whether she acted in
conformity with that training on the night of the criminal activity. Additionally,
because the Commonwealth opened the door on this topic, Appellant had the
opportunity to cross-examine Officer Justh on her training and certification.
Thus, there was no abuse of discretion in the admission of this benign
testimony that Officer Justh was trained in taser use and was recertified on an
annual basis.
Appellant’s final issue is that the trial court abused its discretion when it
permitted Officer Justh to read an excerpt from her preliminary hearing
testimony because it was outside the scope of the cross-examination and
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violated the Pennsylvania Rules of Evidence governing out-of-court
statements. Appellant’s Brief at 43.
On direct examination, Officer Justh described Appellant’s behavior after
she tased him the first time: “[H]e was making noises while he was on the
ground, and that quickly he got back up and started swinging at my face[,]
and I tased him a second time. . . . He had fists and he was punching.” N.T.
1/29/19, at 113. During cross-examination, defense counsel attempted to
impeach this testimony with the officer’s preliminary hearing testimony:
[DEFENSE COUNSEL]: And on direct you testified that when he
got back up he started swinging his fists at you?
[OFFICER]: Yes.
[DEFENSE COUNSEL]: I would like you to continue reading along
with me, page 10 of that preliminary hearing transcript, line 20.
This is right after the sentence -- I will start from the beginning.
Answer, it did strike him. He did fall to the ground right at my feet
and then his head struck and then he started screaming. He
became aggressive, jumped up again, [and] tried to come towards
me. I popped the taser again. He was able to run around the
corner. Did I read that correctly?
[OFFICER]: Yes.
[DEFENSE COUNSEL]: At the preliminary hearing you did not
testify that he raised his fists to you?
[OFFICER]: No, but I stated he became aggressive and came
towards me.
Id. at 138–139.
On redirect, the Commonwealth posed some follow-up questions to
Officer Justh regarding her preliminary hearing testimony recorded on page
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ten of the transcript. When the Commonwealth then asked Officer Justh to
read from page thirteen of the transcript, the following transpired:
[COMMONWEALTH]: If I could direct you to page 13 of the
transcript.
THE COURT: Give me a second. I didn’t look at that page yet.
Where are you looking on page 13?
[COMMONWEALTH]: The lines 4 through 7.
THE COURT: All right. That is beyond the scope of her cross
examination.
[DEFENSE COUNSEL]: Thank you, Judge.
[COMMONWEALTH]: I understand that, Judge. This is the first
time that we have been provided with this transcript.
THE COURT: Is that true?
[DEFENSE COUNSEL]: It has never been requested.
THE COURT: Okay. I change my decision. I’ll let you look at page
13.
[DEFENSE COUNSEL]: Judge -
THE COURT: She hasn’t seen it, is what I just heard. This officer
has never seen the transcript.
[DEFENSE COUNSEL]: I did not ask any questions about the
content of what is on page 13 or impeach her with any - - attempt
to impeach her with any statements from page 13. The District
Attorney is seeking to elicit emotional testimony that is outside
the scope of cross examination and should not be admitted at this
point.
THE COURT: Well, it has already been testified to. It is not
redirect based on what your cross examination was, but they
hadn’t seen it until you brought it in so I am giving them the
latitude.
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[COMMONWEALTH]: If you could read, starting at line 4, the
question that was read and what your response was?
* * *
[OFFICER]: So during this entire event, how were you in fear for
your life at any point?
[COMMONWEALTH]: What was your response?
[OFFICER]: My response was I was in fear for my life when he
approached me initially. His look, coming at me, I was fearful,
then I did my job. I mean I just - - I reacted and did my job and
did what I had to do but it was - - you know, I was fearful the
entire time.
N.T., 1/29/19, at 161–162.
The trial court addressed Appellant’s argument that portions of the
redirect examination were beyond the scope of the cross-examination and,
therefore, inadmissible. The court stated:
[T]he Commonwealth’s line of questioning on redirect arose
from the same transcript page that defense counsel had read
into the record and was plainly within the same scope raised on
cross examination regarding when the officer’s gun was first
pulled. Further, there is nothing emotional about the testimony
presented on redirect, and the redirect testimony was
admissible as a consistent statement used to rehabilitate the
credibility of the witness. As the testimony was admissible
under the rules of evidence, there was no abuse of discretion.
Trial Court Opinion, 7/12/19, at 26–27.
We take issue with the trial court’s factual findings and reasoning. First,
the redirect testimony under scrutiny was from a transcript page different
from the page that defense counsel referenced in her cross-examination of
Officer Justh. See N.T., 1/29/19, at 136 (wherein defense counsel read from
page ten of the transcript); id. at 161 (wherein the Commonwealth directed
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the witness to read from page thirteen). Additionally, defense counsel was
not attempting to discredit Officer Justh’s recollection concerning when she
drew her weapon; rather, counsel sought to highlight a discrepancy in
Officer Justh’s trial testimony that Appellant was waving his fists at her, a fact
that she did not mention at the preliminary hearing. See N.T., 1/29/19 at
139.
We further disagree with the trial court that the redirect testimony was
admissible as a consistent statement used to rehabilitate the credibility of
Officer Justh. Pennsylvania Rule of Evidence 613(c) instructs:
(c) Witness’s Prior Consistent Statement to Rehabilitate.
Evidence of a witness’s prior consistent statement is admissible to
rehabilitate the witness’s credibility if the opposing party is given an
opportunity to cross-examine the witness about the statement and the
statement is offered to rebut an express or implied charge of:
* * *
(2) having made a prior inconsistent statement, which the witness has
denied or explained, and the consistent statement supports the
witness’s denial or explanation.
Pa.R.E. 613(c)(2). This provision would have authorized admission of
Officer Justh’s testimony from page thirteen of the preliminary hearing
transcript if that excerpt concerned whether Appellant was waving his fists
when he confronted the officer. That was not the case. The challenged
testimony, instead, focused on Officer’s Justh’s fear of Appellant. See N.T.,
1/29/19, at 162. Thus, this testimony, which was beyond the scope of the
cross-examination and was not related to the purported inconsistency, should
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have been disallowed.8 However, as explained, an error in the admission of
testimony, is not enough to warrant a new trial unless an appellant can also
prove that he was prejudiced by such error. Beltz, 829 A.2d at 682–683.
Appellant herein has not demonstrated the requisite prejudice.
Although Appellant avers that Officer Justh’s recital of her preliminary hearing
testimony that she feared Appellant was “emotionally triggering,” in fact, it
was merely repetitive of the officer’s earlier trial testimony. Appellant’s Brief
at 47. When asked on direct examination if she “fear[ed] for her safety” as
Appellant approached her, the officer responded: “I felt as though if he got
my firearm, he was going to kill me.” See N.T., 1/29/19, at 111. Officer Justh
further recounted that “[i]n fear for my life, I transitioned from my firearm to
my taser because I was afraid if he got ahold of my gun he could have
potentially taken my life. Id. at 112. Finally, when asked, given her “fear for
her life,” why she did not fire at Appellant, Officer Justh explained: “I was
more fearful that if he got a hold of my gun on that day that I would have
been the one to not go home.” Id. at 127. Therefore, because the jury heard
repeated and consistent testimony that Officer Justh feared that Appellant was
____________________________________________
8 We also note that although the trial court originally ruled that testimony
from page thirteen of the preliminary hearing transcript was beyond the scope
of Appellant’s cross-examination, he reversed himself on the basis that the
witness had not seen the transcript. N.T, 1/29/29, at 161. This is not a legally
valid reason to have allowed the testimony. See Pa.R.E. 613(a) (a prior
inconsistent statement made by the witness to impeach “need not be shown
or its contents disclosed to the witness at that time. . . .”).
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going to harm, and possibly kill her, her reaffirmation of this fear on re-direct
examination was not so prejudicial as to mandate a new trial.
For these reasons, we affirm the judgment of sentence. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/24/2020
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