J-S62029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DEMAR CAMPBELL,
Appellant No. 3053 EDA 2013
Appeal from the Judgment of Sentence October 14, 2013 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001266-2013
BEFORE: ALLEN, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 27, 2014
Appellant, Demar Campbell, appeals from the judgment of sentence
entered on October 14, 2013. We affirm.
The trial court accurately summarized the factual background of this
case as follows:
Anisha Bryan [(“Bryan”)] testified that she had a romantic relationship with [Appellant] that began around September of 2011. During this relationship, [Appellant] resided with Bryan at her residence in Emmaus, Pennsylvania. She ended the relationship with [Appellant] in June or July of 2012 at which point [Appellant] moved out of Bryan’s home. The two remained on speaking terms.
Bryan testified that on the evening of February 7, 2013, [Appellant] telephoned her for a car ride. Bryan agreed so, about 1:00 a.m. on February 8, she drove her Mercury Mountaineer from her residence in Emmaus to pick up [Appellant] who was waiting for the ride on Seventh Street in Allentown. When he entered the Mercury, [Appellant] placed a small knife in a cup holder between the driver’s seat and the J-S62029-14
front passenger seat. [Appellant] appeared intoxicated to Bryan. Bryan moved the knife to the panel on the driver’s side door. [Appellant] would not tell Bryan where he wanted to be driven so Bryan decided to drive with [Appellant] to the Walmart in Trexlertown to [d]o some shopping.
During the drive from Allentown to Trexlertown, [Appellant] attempted to persuade Bryan to renew their relationship. Bryan refused and they began to argue. [Appellant] became agitated and swung his hands. This led Bryan to stop her car and get out of it. [Appellant] moved from the passenger seat to the driver’s seat. Bryan returned to the passenger seat and [Appellant] proceeded to drive on the way to Walmart.
During the drive, [Appellant] and Bryan continued to argue. [Appellant] pulled the Mercury over on Trexlertown Road in Upper Macungie Township. A portion of the parked vehicle was on the roadway. Bryan exited the vehicle and [Appellant] followed her. The two argued loudly. There was physical contact between them which included [Appellant] shoving Bryan in her torso. As the argument continued, the two reentered the car with [Appellant] in the driver’s seat and Bryan in the passenger seat. When she sat down, Bryan felt pain and realized she had been stabbed in her left side.
Cassandra Turoczi [(“Turoczi”)], who lived on Trexlertown Road, saw the confrontation between [Appellant and Bryan]. In the early morning hours of February 8, she was sleeping on the sofa in her living room. At approximately 3:30 a.m., she was awakened by her dogs growling. She then heard a woman screaming and a man yelling. She looked from a window of her home and saw a sports utility vehicle parked partially on Trexlertown Road. She saw a taller person and a shorter person standing next to the car. She could not tell the gender of these people. She watched the taller person put hands on the shorter person and then shake the shorter person. The taller person then moved the left hand down to the chest of the shorter person. Turoczi watched the taller person grab the jacket of the shorter person and shake the person. Turoczi called the police.
Officer Dathan Schlegel and Sergeant Stephen Marshall of the Upper Macungie Township Police Department responded to Turoczi’s call. Officer Schlegel was the first to arrive at the scene. He observed the Mercury parked partially on Trexlertown
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Road and partially on the shoulder. He saw [Appellant] sitting in the driver’s seat and Bryan sitting in the front passenger seat. [Appellant] was yelling at Bryan and waving his arms. Officer Schlegel approached the driver’s door of the Mercury and removed [Appellant] from the vehicle. The officer smelled alcohol on [Appellant]. He put [Appellant] against his patrol car and asked for his name and to explain what was happening. [Appellant] told the officer that his name was “Omar Scat” and that he was having an argument with Bryan.
Trial Court Opinion, 2/14/14, at 3-5 (honorifics omitted).
The procedural history of this case is as follows. On April 12, 2013, an
information was filed charging Appellant with two counts of aggravated
assault,1 simple assault,2 possession of an instrument of crime,3 driving
under the influence – incapable of safe driving,4 driving under the influence
– high rate of alcohol,5 harassment,6 and driving while under suspension.7
On August 19, 2013, Appellant filed a motion in limine to preclude the
introduction of tape recorded conversations, and transcripts thereof,
between him and Gabrielle Noukpozounkou (“Noukpozounkou”) that were
recorded while Appellant was imprisoned. On August 26, 2013, the trial
1 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4). 2 18 Pa.C.S.A. § 2701(a)(2). 3 18 Pa.C.S.A. § 907(a). 4 75 Pa.C.S.A. § 3802(a)(1). 5 75 Pa.C.S.A. § 3802(b). 6 18 Pa.C.S.A. § 2709(a)(1). 7 75 Pa.C.S.A. § 1543(a).
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court denied Appellant’s motion in limine. Trial began that same day.
During trial, Appellant requested a continuance to permit a cell phone that
had been seized by police to be charged and examined. The trial court
denied the request. On August 28, 2013, a jury found Appellant guilty of
two counts of aggravated assault, simple assault, and possession of an
instrument of crime. The trial court found Appellant guilty of driving under
the influence – incapable of safe driving, driving under the influence – high
rate of alcohol, harassment, and driving while under suspension.
On October 14, 2013, Appellant was sentenced to an aggregate term
of 66 months and 2 days to 138 months’ imprisonment. Appellant timely
appealed. On November 4, 2013, the trial court ordered Appellant to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). Appellant filed his concise statement on November
7, 2013, which included all issues raised on appeal. On January 8, 2014, we
dismissed this appeal for failure to file a docketing statement as required by
Pennsylvania Rule of Appellate Procedure 3517. On January 9, 2014,
Appellant filed an application to reinstate this appeal, which we granted on
January 13, 2014. On February 14, 2014, the trial court issued its Rule
1925(a) opinion.
Appellant presents three issues for our review:
1. Whether or not the evidence as presented was sufficient as a matter of law to support [Appellant’s] conviction for aggravated assault and simple assault based upon [Appellant] being the actual perpetrator of the alleged assault?
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2. Whether the trial court erred by permitting redacted phone conversations from [Appellant] to a third-party to be admitted as evidence as possible admissions by [Appellant] of his involvement in the stabbing?
3. Whether the trial court erred by failing to grant [Appellant’s] request for a brief recess to allow for a brief investigation regarding the alleged phone contacts between [Appellant] and [Bryan]?
Appellant’s Brief at 7 (complete capitalization removed).
Appellant first contends that the evidence was insufficient to find him
guilty of aggravated assault and simple assault. “Whether sufficient
evidence exists to support the verdict is a question of law; thus, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation
omitted). In reviewing a sufficiency of the evidence claim, we must
determine “whether viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth], there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.
Super. 2014) (citation omitted). “Additionally, the evidence at trial need not
preclude every possibility of innocence. . . . [T]he fact-finder is free to
believe all, part[,] or none of the evidence.” Commonwealth v. Trinidad,
90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted).
An individual is guilty of aggravated assault if he “attempts to cause
serious bodily injury to another, or causes such injury intentionally,
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knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life [or]. . . attempts to cause or
intentionally or knowingly causes bodily injury to another with a deadly
weapon[.]” 18 Pa.C.S.A. § 2702(a)(1,4). “The elements of simple assault
are the attempt to cause or intentionally, knowingly or recklessly caus[ing]
bodily injury to another[.]” Commonwealth v. Weigle, 949 A.2d 899,
906 (Pa. Super. 2008), affirmed, 997 A.2d 306 (Pa. 2010) (internal
quotation marks omitted), citing 18 Pa.C.S.A. § 2701(a).
Appellant’s only argument with respect to the sufficiency of the
evidence as to both the aggravated assault and simple assault convictions is
that there was insufficient evidence to prove that he actually stabbed Bryan.
He argues that the only evidence that supports the jury’s finding that he
stabbed Bryan is circumstantial. He contends that there is no evidence that
he ever regained possession of the knife after Bryan removed it from the cup
holder when Appellant got in the Mercury.
It is well-settled that “circumstantial evidence can itself be sufficient to
prove any or every element of the crime[.]” Commonwealth v. Perez, 93
A.3d 829, 841 (Pa. 2014) (citation omitted). Viewed in the light most
favorable to the Commonwealth, the circumstantial evidence in this case is
overwhelming. Appellant was the individual that introduced the knife into
the vehicle. Bryan removed the knife from the cup holder and placed it in
the panel of the driver’s side door. After that occurred, Appellant and Bryan
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switched places and Appellant was in the driver’s seat while Bryan was in the
passenger seat. From this position, Appellant had ready access to the knife.
Appellant admits that thereafter an altercation between himself and Bryan
occurred on the side of the road. Bryan and Turoczi testified that Appellant
shook and shoved Bryan in her torso during the confrontation. Prior to this
altercation, Bryan did not have a stab wound; however, after Appellant
shook and shoved Bryan she did have a stab wound. DNA testing showed
that Bryan was stabbed with the knife that Appellant had brought into the
car. From this circumstantial evidence, the jury could reasonably conclude
that Appellant stabbed Bryan during the confrontation. Therefore, the
Commonwealth satisfied its burden to prove every element of both
aggregated assault and simple assault beyond a reasonable doubt.
Appellant next challenges the trial court’s denial of his motion in limine
to prohibit introduction of the recorded phone conversations, and transcripts
thereof, between Appellant and Noukpozounkou. “When reviewing a ruling
on a motion in limine, we apply an evidentiary abuse of discretion standard
of review. The admission of evidence is committed to the sound discretion
of the trial court and our review is for an abuse of discretion.”
Commonwealth v. Orie, 88 A.3d 983, 1022 (Pa. Super. 2014), appeal
denied, 172 WAL 2014 (Pa. Sept. 17, 2014) (internal alteration and citation
omitted).
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Appellant first contends that the recording was “unclear and uncertain
based in large part upon [Appellant’s] heavy Jamaican accent.” Appellant’s
Brief at 14. Appellant argues that because the recording was unintelligible,
it should not have been admitted into evidence. “[A] recording will be
admissible unless the inaudible portions or omissions are so substantial as to
render the recording as a whole untrustworthy.” Commonwealth v.
Leveille, 433 A.2d 50, 52 (Pa. Super. 1981) (citation omitted). Prior to
trial, the trial court listened to the recording and concluded that the
inaudible portions were not so substantial as to render the recording
untrustworthy. The recording was included in the certified record on appeal.
We have listened to the conversations admitted into evidence. Although
Appellant does have a thick accent, and at times the recording is
unintelligible, as a whole Appellant and Noukpozounkou can both be
understood and the unintelligible portions are not so substantial as to render
the recording unreliable.
Appellant also contends that one of the recordings should have been
excluded because Appellant is discussing the possibility of accepting a plea
agreement. Pennsylvania Rule of Evidence 410 provides, in relevant part:
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
***
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(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.
Pa.R.Evid. 410(a)(4).
In this case, the conversation between Appellant and Noukpozounkou
did not fall under the Rule 410(a)(4) prohibition against the admission of
plea negotiations. The rule only prohibits the introduction of statements
made during discussions with the prosecuting authority. The statements by
Appellant to Noukpozounkou were not to a prosecuting authority but rather
were to Appellant’s friend. Rule 410(a)(4) therefore does not apply in this
case. Cf. Commonwealth v. Stutler, 966 A.2d 594, 599 (Pa. Super. 2009)
(Rule 410(a)(4) only applies when the defendant reasonably believes that he
is actually negotiating a plea agreement).
Appellant contends that the recordings should have been excluded as
they were unduly prejudicial. Pennsylvania Rule of Evidence 403 provides,
in relevant part, that, “The court may exclude relevant evidence if its
probative value is outweighed by a danger of . . . unfair prejudice[.]”
Pa.R.Evid. 403.
Our research has failed to uncover a Pennsylvania case that stands on
all fours with the present case. Nonetheless, we find instructive the decision
of the Ohio First District Court of Appeals in Ohio v. Crawford, 2008 WL
4823027 (Ohio App. Nov. 7, 2008), appeal denied, 908 N.E.2d 945 (Ohio
2009). In Crawford, the trial court admitted into evidence taped
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conversations between the incarcerated defendant and his girlfriend. Id. at
*4. During those conversations, the defendant admitted that he had
committed a murder with which he had been charged. Id. Although the
court redacted certain portions of the conversations that referred to a
previously accepted plea agreement, other segments of the recorded
conversations that were played for the jury still referred to the defendant’s
engagement in plea negotiations. Id. Following his convictions, the
defendant appealed objecting, inter alia, to the admission of the
conversations under Ohio Rules of Evidence 403 and 410.8 The Court of
Appeals concluded that, “The probative value of the tapes far outweighed
any danger of prejudice to Crawford.” Id. at *8. The United States District
Court for the Southern District of Ohio held that this conclusion was
reasonable. Crawford v. Warden, Warren Corr. Inst., 2011 WL
5307408, *26 (S.D. Ohio Sept. 29, 2011), adopted, 2011 WL 5304157 (S.D.
Ohio Nov. 03, 2011).
We likewise find instructive the decision of the Texas Court of Appeals-
San Antonio Division in Willis v. Texas, 2010 WL 2935772 (Tex. App. July
28, 2010). In Willis, the defendant wrote a letter to a police officer in which
8 Ohio Rule of Evidence 403, like the federal rule, prohibits evidence when its probative value is substantially outweighed by the risk of unfair prejudice. See Ohio.R.Evid. 403; Fed.R.Evid. 403. However, as noted above, the Crawford court found that the recordings’ probative value substantially outweighed the risk of unfair prejudice. Crawford, 2008 WL 4823027 at *8. Thus, the recording would have been admissible under the Pennsylvania rule. Ohio Rule of Evidence 410 is substantially the same as Pennsylvania Rule of Evidence 410. Compare Ohio.R.Evid. 410 with Pa.R.Evid. 410.
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he offered to plead guilty to certain charges in exchange for other charges
being dropped. Id. at *1. The defendant objected to the admission of the
letter under Texas Rules of Evidence 403 and 410.9 The trial court overruled
the defendant’s objection and the letter was admitted into evidence. After
the defendant was convicted, he appealed, arguing, inter alia, that the trial
court erred by admitting the letter. The Court of Appeals concluded that the
letter was highly probative and the risk of unfair prejudice was low. Id. at
*5. Thus, it concluded that the trial court did not abuse its discretion by
admitting the letter into evidence. Id.
As in Crawford and Willis, in this case, the probative value of the
conversations was extremely high. Although there was testimony from
Bryan that the knife that was used to stab her belonged to Appellant, in one
of the conversations Appellant arguably admitted that the knife belonged to
him. In the other conversation, Appellant arguably admitted that he had
stabbed Bryan. It is difficult to imagine more probative statements.
The statements made by Appellant during the conversations were
obviously prejudicial (as is any evidence that tends to show a defendant is
guilty); however, Rule 403 only permits the exclusion of evidence if the
probative value is outweighed by the risk of unfair prejudice. In this case,
Appellant and Noukpozounkou were both notified prior to the conversations
that the conversations were being recorded. Despite this warning, Appellant
9 Texas Rules of Evidence 403 and 410 are substantially the same as those of Ohio. See note 8, supra.
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chose to make the admissions. Although one of the conversations
mentioned plea negotiations, the conversation was mainly discussing
Appellant’s guilt. Under these circumstances, we conclude that the trial
court did not abuse its discretion when determining that the probative value
of the conversations outweighed the risk of unfair prejudice.
Appellant also objects to transcripts of the recordings being provided
to the jury. Generally, transcripts of recording conversations can be
provided to the jury. See Commonwealth v. Proctor, 585 A.2d 454, 462
n.4 (Pa. 1991) (citation omitted). In this case, the trial court provided a
cautionary instruction to the jury regarding the transcripts. See N.T.,
8/27/13, at 205-207. The trial court instructed the jury that the transcripts
were merely a guide and that they could only rely upon those portions of the
conversations that they could understand themselves. See id.
Although the Pennsylvania State Standard Criminal Jury Instructions
do not provide an instruction for this situation, the United States Court of
Appeals for the Third Circuit’s model jury instructions do include a limiting
instruction. See 3d Cir. Model Criminal Jury Instruction 2.07. The
instruction given by the trial court in this case included all of the essential
points of the model Third Circuit instruction. It is presumed that the jury
followed the court’s instructions. Commonwealth v. Fortenbaugh, 69
A.3d 191, 195 n.2 (Pa. 2013) (citation omitted). Therefore, the jury would
not have placed undue weight on the transcripts as they were instructed that
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the transcripts were merely a guide for listening to the recordings. As such,
the trial court did not abuse its discretion by permitted the jury to have the
transcripts. We therefore conclude that all of Appellant’s arguments relating
to the denial of his motion in limine to preclude the recordings, and
transcripts thereof, are without merit.
Appellant’s final issue challenges the trial court’s denial of a motion for
continuance made during trial. Appellant sought the ability to charge a cell
phone that had been seized by police so that he could see if there was any
information that could be extracted from the cell phone. The cell phone
belonged to Appellant and was recovered from the vehicle on the night of
the incident in question. “The grant or denial of a motion for a continuance
is within the sound discretion of the trial court and will be reversed only
upon a showing of an abuse of that discretion.” Commonwealth v.
Hansley, 24 A.3d 410, 418 (Pa. Super. 2011), appeal denied, 32 A.3d 1275
(Pa. 2011) (citation omitted).
The trial court denied the requested continuance for two reasons.
First, it concluded that the request was untimely. Trial Court Opinion,
2/14/14, at 12. Consistent with its obligations under Brady v. Maryland,
373 U.S. 83 (1963), the Commonwealth disclosed the existence of the cell
phone prior to trial. Despite this fact, Appellant did not request to review
the cell phone prior to trial. Instead, he waited until trial was already in
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progress to request a continuance to permit the phone to be charged and
the contents examined.
Second, the trial court concluded that any evidence that would have
been gathered from the cell phone would not have been relevant. Trial
Court Opinion, 2/14/14, at 12. Appellant argued that the phone could
provide evidence to impeach the credibility of Bryan. She testified at trial
that Appellant contacted her and requested a ride. Appellant contends that
the phone may have had evidence that Bryan contacted Appellant before he
contacted her.
We conclude that the trial court did not abuse its discretion in denying
Appellant’s request for a continuance. Appellant knew that his cell phone
had been seized from the vehicle since the incident occurred on February 8,
2013. Therefore, Appellant had over six months to request the cell phone
from the Commonwealth for the purposes of learning what data it contained.
Instead, Appellant waited until trial had commenced to request a
continuance to examine the cell phone. Thus, Appellant’s request was
patently untimely. See Commonwealth v. Anderson, 448 A.2d 1131,
1134 (Pa. Super. 1982) (trial court did not abuse its discretion in denying
continuance on eve of trial because defendant could have requested
continuance in the week prior to trial); Commonwealth v. Parente, 133
A.2d 561, 564–565 (Pa. Super. 1957) (failure to explain why evidence could
not have been obtained during the previous five months rendered the
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defendant’s motion for continuance untimely). Furthermore, any
information that Appellant would have been able to recover from the cell
phone would not have been relevant to the central issue in this case, i.e.,
whether Appellant stabbed Bryan on the side of the road. Whether Bryan
contacted Appellant first or vice versa was immaterial to what occurred once
Bryan and Appellant had a confrontation on the side of the road.
Accordingly, Appellant’s third issue on appeal is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/27/2014
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