Com. v. Hlushmanuk, W.

• Court: Superior Court of Pennsylvania
• Decided: August 13, 2015
• Docket: 2227 EDA 2014
• Status: Unpublished

Opinion

J.A21001/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WILLIAM HLUSHMANUK, : : Appellant : No. 2227 EDA 2014

Appeal from the Judgment of Sentence May 2, 2014 In the Court of Common Pleas of Philadelphia County Civil Division No(s).: CP-51-CR-0003766-2012

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 13, 2015

Appellant, William Hlushmanuk,1 appeals from the judgment of

sentence entered following a bench trial in the Philadelphia County Court of

Common Pleas. Appellant was found guilty of simple assault, aggravated

assault, and recklessly endangering another person2 (“REAP”) for an incident

in which he, inter alia, choked his ex-wife at a gas station.3 On appeal, he

* Former Justice specially assigned to the Superior Court. 1 Appellant is also known as Bill Le. N.T. Sentencing, 5/2/14, at 61. 2 18 Pa.C.S. §§ 2701(a)(1), 2702(a)(1), 2705. 3 The trial court opinion referred to the complainant in this matter, Jacqueline Diana, as Appellant’s “ex-wife.” Trial Ct. Op., 1/29/15, at 3. At the January 2014 trial, Diana referred to Appellant as her “ex-husband,” and stated they separated in December 2010, but were not divorced. N.T. Trial, J.A21001/15

challenges the weight and sufficiency of the evidence, the admission of

evidence of a prior incident with his ex-wife, and the imposition of his

sentence to run consecutive to an unrelated federal sentence.4 We affirm.

The court conducted a bench trial on January 6, 2014. It summarized

the underlying facts as follows:

[O]n October 31, 2011, at approximately 9:45 p.m., [Appellant] violently attacked the victim, his ex-wife, [Diana,] at a gas station located at Welsh Road and Roosevelt Boulevard, Philadelphia, Pennsylvania. The attack was witnessed by three independent and unrelated individuals: Philadelphia Police Lt. John Stanford[ ], Rebecca McBride and Natasha Cintron. All three witnesses, as well as the victim, Ms. Diana, testified at trial. The witness testimony was consistent, in that [Appellant] physically attacked the victim and choked her to a point of unconsciousness. He was then observed dragging her around her vehicle and attempting to put her into a vehicle. All of this took place in front of his young daughter. [Appellant] was arrested at the scene by Philadelphia police.

Trial Ct. Op. at 3. The trial court opined of the Commonwealth’s witnesses

as follows:

The testimony presented at trial was consistent in

1/6/14, at 73, 94. They have two children together, one of whom, M., was present during the incident in this matter. Id. at 73. 4 We note the certified record transmitted on appeal does not include any notes of testimony. Appellant, however, has included copies of the full transcripts of trial, the sentencing hearing, and post-sentence motion hearing in his reproduced record. The Commonwealth does not object to these copies. “While we will consider the cop[ies of the transcripts] in the reproduced record, we caution counsel that it is the appellant’s burden to ensure that the certified record is complete. See Pa.R.A.P. 1921 . . . .” Commonwealth v. Landis, 89 A.3d 694, 697 n.5 (Pa. Super. 2014).

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regard to [Appellant’s] criminal conduct [and] sufficient to support this Court’s findings of guilt. The witnesses’ testimony was credible when taken both individually and was also consistent with one another when taken as a whole. Cross-examination revealed no bias, prejudice or mistake on the witnesses’ part and inconsistencies, if any, were minor and without negative effect upon the overall determinations made by this Court.

Id. at 4. Appellant did not testify or present evidence.

The trial court found Appellant guilty of aggravated assault, simple

assault, and REAP. On May 2, 2014, the court imposed an aggregate

sentence of four to eight years’ imprisonment and five years’ probation.5

The court ordered the sentence to run consecutive to an unrelated, seven

year and eight months’ “sentence for a federal Medicare fraud offense.”6

See N.T. Sentencing at 12, 19, 72-73. Appellant filed a timely post-

sentence motion which raised claims relating to, inter alia, the four issues

raised in the instant appeal. On July 9, 2014, the court granted partial relief

5 Specifically, the court imposed the following sentences: (1) for aggravated assault, a felony of the first degree, the court imposed four to eight years’ imprisonment and five years’ probation; (2) for simple assault, a misdemeanor of the second degree, a concurrent two years’ probation; and (3) for REAP, also a misdemeanor of the second degree, no further penalty as it merged with simple assault. Sentencing Order, 5/2/14. 6 Husband had an “ambulance business” and Diana “worked for him.” N.T. Trial at 94. Husband allegedly stole “a couple of million dollars from the federal government.” Id. According to Appellant’s counsel’s statements at the sentencing hearing, his federal sentence commenced on May 16, 2013, and included a consecutive “three years federal release.” N.T. Sentencing at 19. At the time of trial, Diana was “under indictment” and on “home arrest” for her role in that matter. N.T. Trial at 94, 95.

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by holding simple assault merged with aggravated assault and vacating the

concurrent two-year probation term. However, the court denied relief on

Appellant’s remaining claims. Appellant filed a timely notice of appeal and

complied with the court’s order to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.

We address Appellant’s first two issues together. First, he purports to

challenge the sufficiency of evidence for aggravated assault.7 Appellant

maintains Diana did not sustain serious bodily and the Commonwealth failed

to establish he acted intentionally, knowingly, or with a high degree of

recklessness. In support, Appellant cites the following perceived

inconsistent testimony by the Commonwealth’s witnesses: (1) Lieutenant

Stanford testified Appellant stood over Diana, who was lying on the ground

on the driver’s side of the vehicle, and then “Appellant picked up his wife by

the neck[,] dragged her around . . . to the passenger side,” and put two

hands around her neck in a chokehold; (2) witness Rebecca McBride testified

Diana was seated on the passenger side of the vehicle when “Appellant was

pulled off of her,” and Appellant was “‘pinning down’ his wife with one hand

by her neck on the seat and the other hand holding her mouth;” (3) witness

Natasha Cintron testified “the female was leaning into the passenger side of

the vehicle at which time Appellant had only one hand around her neck;” (4)

7 The relevant heading in Appellant’s brief articulated a sufficiency challenge to simple assault and REAP as well. However, his discussion addresses only the elements of aggravated assault.

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Diana “only recalled that Appellant was behind her when he put her into a

choke hold, and that she passed out without recalling anything more.”

Appellant’s Brief at 26. Furthermore, Appellant states that while Lieutenant

Stanford testified the daughter M. was outside of the vehicle, “the female

witnesses” indicated she was in the rear seat. Id. Appellant also notes

Diana’s testimony that “immediately before placing her into a chokehold,”

Appellant said “I’m never letting you go home. Do you hear me right now?

You’re not going home.” Id. at 27. However, he maintains, “none of the

eyewitnesses heard [him] make any statements before, during or after the

incident.” Id. at 28. Appellant, however, does note Diana’s testimony that

earlier that evening, he “yelled to her ‘I’m going to F’ing kill you.’” Id.

In his second claim on appeal, Appellant argues the verdicts for

aggravated assault and REAP were against the weight of the evidence. In

support, he reiterates: (1) although Diana testified he made threatening

statements, none of the other witnesses heard them; and (2) “[t]he

eyewitnesses have conflicting observations as to what Appellant did to his

wife.” Id. at 28. Appellant requests this Court to “carefully scrutinize[ ]”

Diana’s credibility,” as she pleaded guilty to federal charges “of Health Care

Fraud, Conspiracy to Commit Health Care Fraud, and Aiding and Abetting”

Appellant, all of which “are crimes of dishonesty.” Id. Appellant further

asserts Diana has “refused to allow [him] to see his children at times” and

that there have been no “reports of any violence and/or threats” since the

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underlying incident. Id. We find no relief is due.

Preliminarily, we hold Appellant’s first issue, which argues

inconsistencies in the witnesses’ testimony, goes to the weight, not

sufficiency, of the evidence. See Commonwealth v. Trinidad, 96 A.3d

1031, 1038 (Pa. Super. 2014) (stating (1) variances in testimony go to

credibility of witnesses and not sufficiency of evidence and (2) mere conflict

in testimony does not render evidence insufficient because it is within

province of fact finder to determine weight to be given to testimony and to

believe all, part, or none of evidence), appeal denied, 99 A.3d 925 (Pa.

2014). We thus consider Appellant’s first and second issues under weight of

the evidence guidelines.

“[A]ppellate review of a weight claim consists of a review of the trial

court’s exercise of discretion, not a review of the underlying question of

whether the verdict is against the weight of the evidence.” Commonwealth

v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) (citation omitted).

The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of “a mere conflict in the testimony” and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Id. (citations omitted).

As stated above, the trial court specifically found the Commonwealth’s

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“witness[es’] testimony was consistent,” “credible when taken both

individually and . . . also consistent with one another when taken as a

whole.” Trial Ct. Op. at 3-4. The trial court reproduced in detail the

testimony of Diana, Lieutenant Stanford, and eyewitnesses McBride and

Cintron. Id. at 4-23. We decline Appellant’s request to reweigh Diana’s

credibility, as our role is to “review of the trial court’s exercise of discretion,

not . . . the underlying question of whether the verdict is against the weight

of the evidence.” See Gonzalez, 109 A.3d at 723. Instead, the trial court,

sitting as finder of fact, was “free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses.” See id. After careful

review of the parties’ briefs, the trial court’s opinion, and the record,

including the trial transcript, we adopt the pertinent law and analysis set

forth in the trial court’s opinion. See Trial Ct. Op. at 24-26 (rejecting

Appellant’s claim that his actions did not put Diana in danger of serious

bodily injury and finding: (1) need for medical attention is not element of

crimes charged, (2) Appellant “is trained in karate and holds a black belt,

[which] compounded is ability to inflict harm,” (3) “trial evidence showed

[Appellant] specifically and successfully targeted Ms. Diana with his violent

actions,” (4) Diana and three witnesses testified Appellant choked her, Diana

lost consciousness, and her body went limp, and (5) Appellant’s assault “was

directed at her head and neck region and caused [Diana] to lose

consciousness”). We agree that the court’s verdict does not shock the

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conscience. See Gonzalez, 109 A.3d at 723. Accordingly, we find no relief

is due on Appellant’s first two issues.

Appellant’s third claim on appeal is that the trial court erred in allowing

evidence of a prior incident involving Diana.8 He asserts the prior act was

“too remote in time, and not part of the incident that occurred [in this case]

to be considered part of the same crime.” Appellant’s Brief at 35. We find

no relief is due.

At this juncture, we summarize the challenged evidence, which the

Commonwealth presented through direct examination of Diana. See N.T.

Trial at 74-85. Diana testified to the following. On December 20, 2011,

approximately ten months prior to the instant incident, she and the children

stayed at her parents’ house in Northeast Philadelphia. Around 1:00 a.m.,

Appellant called and said, “No, you’re coming home,” and “Even if I have to

come in there and drag you out,” and “curs[ed Diana] out.” Id. at 75. “[A]

few minutes later,” while Diana was still on the phone with him, Appellant

was at the door, and “it sounded like he was kicking the door in.” Id. at 76.

Diana went to the basement, someone called the police,9 and Diana heard

her father open the door and tell Appellant to leave. Diana’s father called

8 The Commonwealth filed a pre-trial motion to admit this evidence of a prior bad act. The parties argued the motion immediately prior to trial, and the court granted it. 9 Diana testified only, “We already called the police.” N.T. Trial at 77.

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Appellant’s father, who arrived, and eventually Diana went outside.

Appellant “grabbed [Diana’s] neck in midair and body slammed [her] on the

ground.” Id. at 79-80. Appellant “was on top of” Diana, her “chest really

hurt,” and she could not breathe. Id. at 80-81. Both Diana’s father and

Appellant’s father attempted “to help by getting [Appellant] off” of her. Id.

at 81. Finally, Diana and her father returned inside, the police arrived,

Diana gave a statement to them, but Appellant was not charged. 10 Id. at

82. Diana went to the hospital at 2:00 a.m. the following night, believing

she had a broken rib, but learned she “was just bruised.” Id. at 97-98.

This Court has stated: “Questions regarding the admission of evidence

are left to the sound discretion of the trial court, and we, as an appellate

court, will not disturb the trial court’s rulings regarding the admissibility of

evidence absent an abuse of that discretion.” Trinidad, 96 A.3d at 1036

(citation omitted).

“[E]vidence of crimes other than the one in question is not admissible solely to show the defendant’s bad character or propensity to commit crime.” [S]ee Pa.R.E. 404(b)(1). Nevertheless, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2)[.] “In order for evidence of prior bad acts to be admissible as evidence of motive, the prior bad acts ‘must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the

10 In his brief, Appellant states he was “charged, but the charges were withdrawn after his wife failed to appear for court.” Appellant’s Brief at 32- 33.

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prior set of facts and circumstances.’” “Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts.”

Commonwealth v. Ferguson, 107 A.3d 206, 211 (Pa. Super. 2015) (some

citations omitted).

In the case sub judice, the trial court allowed Diana’s testimony about

the prior incident under Rule of Evidence 404(b)(2), finding:

[E]vidence that [Appellant] had previously assaulted and committed physical violence upon his estranged wife by choking her previously to the night in question was relevant and probative of [Appellant’s] motive and intent for committing the assaults upon his ex-wife.

The factual basis of the present charges against [Appellant] indicated that he became violently aggressive towards her, choking until the point of lost consciousness. Evidence that [Appellant] had previously engaged in the same behavior with Ms. Diana was relevant and admissible as it was closely linked in similarity and nature to the charged offenses. This degree of similarity is an important factor in determining the admissibility of other crimes or bad acts as relevant to show a common scheme or plan.

Trial Ct. Op. at 34 (citation omitted). We agree with the court’s analysis and

find no abuse of discretion. See Pa.R.E. 404(b)(2); Ferguson, 107 A.3d at

211; Trinidad, 96 A.3d at 1036.

Appellant’s final issue on appeal is a challenge to the discretionary

aspects of his sentence. As stated above, the court imposed an aggregate

term of four to eight years’ imprisonment, to run consecutive to his federal

sentence of seven years and eight months. Appellant alleges “the imposition

of this sentence, albeit within the Standard Guideline range, but ordered to

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run consecutively to his federal sentence, was unreasonable[,] inconsistent

with his rehabilitative needs,” and “not consistent with the protection for the

public and the victim.” Appellant’s Brief at 37, 38. He explains the

underlying incident occurred when he and his wife were separated, they

were “under review by the federal law enforcement authorities regarding

their ambulance business,” “and the parties were under a tremendous

amount of stress.” Id. at 37-38. Although he acknowledges the prior,

December 2010 incident, he avers “[t]here was no prior history of violence

between” them. Id. at 38. Appellant further avers his sentence “goes

above and beyond what should be considered appropriate to rehabilitate

him,” where “[h]is prior record does not show any violence towards a

person.11 Id. Instead, Appellant maintains, he “has demonstrated several

years in the community as being a productive member of society by

obtaining education, and being employed.” Id. He adds the fact he now has

a girlfriend “demonstrates that he no longer poses a threat to his wife as he

has accepted the ending of their marital relationship.” Id. at 39. Appellant

concludes his sentence should have been imposed to run concurrently with

this federal sentence. We find no relief is due.

We note:

11 Appellant, however, acknowledges: (1) when he was eighteen years old, “he entered an auto auction” and was “charged with Burglary, for which he was placed on juvenile probation;” (2) at age twenty-one, he pleaded guilty to Possession of a Firearm; and (3) at age twenty-nine, he pleaded guilty to illegal transfer of a firearm. Appellant’s Brief at 38.

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Before this Court can address such a discretionary challenge, an appellant must comply with the following requirements:

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

* * *

“The determination of what constitutes a substantial question must be evaluated on a case-by-case basis.” Further:

A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Caldwell, ___ A.3d ___, ___ 2015 WL 3444594 at *2

(Pa. Super. May 29, 2015) (en banc) (some citations omitted), alloc. filed,

408 EAL 2015 (Pa. Jun. 29, 2015).

In Caldwell, an en banc panel of this Court stated:

A court’s exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only “the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.”

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To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), . . . appeal denied, 91 A.3d 161 (Pa. 2014) (emphasis in original).

Caldwell, 2015 WL 3444594 at *3 (some citations omitted). This Court has

also held that a “claim that the trial court erred in ordering [a sentence] to

run consecutively, instead of concurrently, to a previously imposed sentence

does not raise a substantial question.” Commonwealth v. Pass, 914 A.2d

442, 446 (Pa. Super. 2006).

With respect to a claim that the trial court failed to consider a

defendant’s rehabilitative needs, the Caldwell Court noted:

“[O]rdinarily, a claim that the sentencing court failed to consider or accord proper weight to a specific sentencing factor does not raise a substantial question.” Specifically,

[t]here is ample precedent to support a determination that [a claim that the trial court failed to consider an appellant’s rehabilitative needs] fails to raise a substantial question . . . .

Similarly, “this Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.”

However, “prior decisions from this Court involving whether a substantial question has been raised by claims that the sentencing court ‘failed to consider’ or ‘failed to

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adequately consider’ sentencing factors has been less than a model of clarity and consistency.” In . . . Dodge, this Court determined an appellant’s claim that the sentencing court “disregarded rehabilitation and the nature and circumstances of the offense in handing down its sentence” presented a substantial question. Dodge, [77 A.3d] at 1273.

This Court has also held that “an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question.” Additionally:

In determining whether a substantial question exists, this Court does not examine the merits of whether the sentence is actually excessive. Rather, we look to whether the appellant has forwarded a plausible argument that the sentence, when it is within the guideline ranges, is clearly unreasonable. Concomitantly, the substantial question determination does not require the court to decide the merits of whether the sentence is clearly unreasonable.

Caldwell, 2015 WL 3444594 at *3-*4.

In the case sub judice, Appellant has filed a timely notice of appeal,

preserved his sentencing claims in a post-sentence motion, and included a

Pa.R.A.P. 2119(f) statement in his brief. See id. at *2. With respect to the

consecutive nature of his sentence, we find Appellant has not raised a

substantial question. His minimum sentence of four years is at the low end

of the standard sentencing guideline, see Appellant’s Brief at 37 (stating

standard sentencing guideline was forty-eight to sixty-six months), and we

decline to find this sentence, when coupled with his seven year and eight

month-federal sentence, falls within “the most extreme circumstances” and

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is so “clearly unreasonable” and excessive as to support a substantial

question. Cf. Caldwell, 2015 WL 3444594 at *2-*3 (holding challenge to

imposition of consecutive sentences, together with claim that court failed to

consider rehabilitative needs, presented substantial question where

aggregate sentence for aggravated assault, robbery, and related offenses

was thirty-one to sixty-two years); Dodge, 77 A.3d at 1273 (holding

defendant set forth substantial question with respect to consecutive nature

of his sentence, which aggregated forty years and seven months to eighty-

one years and two months, but upholding sentence on merits). See also

Pass, 914 A.2d at 446.

However, in light of the discussion in Caldwell, we hold Appellant has

raised a substantial question that the trial court failed to consider his

rehabilitative needs and the protection of the public. See Caldwell, 2015

WL 3444594 at *3-*4. We thus consider the merits of his claim.

We note the relevant standard of review:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Id. at *4 (citation omitted).

The trial court opined:

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[T]he Presentence report revealed [Appellant] has had numerous contacts with the Court, making him RRRI ineligible. . . .

The Sentencing Guidelines recommended a sentence of 48 to 66 months (+/- 12 months). The Commonwealth recommended incarceration of 4 to 8 years incarceration, plus ten (10) years of reporting probation, in addition to other conditions. [Appellant’s] counsel suggested a mitigated sentence of 3 to 6 years.

This Court imposed a sentence of 4 to 8 years incarceration, plus 5 years probation on the aggravated assault charge[,] to run consecutive to his federal prison term. The sentence imposed is well below the maximum sentence for a felony of the first degree of not more than twenty (20) years confinement.

To further support the imposition of a consecutive sentence, at his sentencing hearing, [Appellant] exercised his right of allocution. At no point during this address to the Court did he show any remorse, sorrow or any semblance of humanity. There was no apology to the victim, the mother of his children [or] members of his family. Instead, [Appellant] deflected blame to the victim and her family. He failed to accept any responsibility whatsoever for any of his actions.

In fact, the Presentence Report notes “During the interview, [Appellant] expressed anger and hatred towards [Diana] in the current offense, which suggested that he remains a threat to her safety.” This same attitude and belief was compounded by [Appellant’s] own words in a presentence letter to this Court. This Court clearly considered the safety concerns of both Ms. Diana and her children in considering both the term and nature of [Appellant’s] sentence.

In imposing this sentence, this Court took into consideration (1) the nature and circumstances of the offense and the history and characteristics of [Appellant], including the Pre-Sentence Report; (2) the opportunity of the Court to observe [Appellant]; (3) the findings upon

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which this sentence was based; and (4) the appropriate guidelines[.]

Trial Ct. Op. at 35-37.

Appellant’s claim that the trial court failed to consider his rehabilitative

needs and the protection of the public is belied by the above, lengthy

analysis. The court specifically considered his lack of “any remorse[ or]

sorrow” for the attack on Diana, “fail[ure] to accept any responsibility

whatsoever for any of his actions,” and his “deflect[ion] of blame to the

victim and her family.” See id. at 36. Accordingly, we find no abuse of

discretion in the court’s sentence. See Caldwell, 2015 WL 3444594 at *2.

Finding no merit to Appellant’s claims, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2015

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t »

.·, . . {···,··.· FIRST JUDICIAL DISTRICT OF PENNSYLVANIA _, · · JI COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION

COMMONWEALTHOF PENNSYLVANIA CP-51-CR-0003766-2012

v. SUPERIOR COURT NO.:

WILLIAM HLUSHMANUK 2227 ED A 2014

OPINION OF THE TIUAL COURT

Defendant, William Hlushmanuk, appeals this Court's findings of guilt on the charges of

aggravated assault', simple assault', and recklessly endangering another person (REAP)3 at a

non-jury trial held on January 6, 2014.

The defendant was sentenced to 4 to 8 years incarceration, followed by 5 years probation

on the aggravated assault charge, along with other conditions" imposed by this Court, This

sentence was ordered to run consecutive to the defendant's federal conviction and incarceration

for crimes not related to or in any way factually similar to this incident'. CP-5 l-CR.0003766-2012 Comm v. Hlus~manuk, lflrn!am Op,n:on 1 18 Pa.C.S. §2702(a)(l).

I llllllll / 1/ I Ill 2 18 Pa.C.S. §2701(a)(l). 3 18 Pa.C.S. §2705. IIIII IIII7251082571 4 The defendant was also sentenced to participate in anger management counseling, drug/alcohol screening and treatment programs, and undergo a mental health evaluation and receive treatment if necessary, plus court costs.

5 For clarity, on May 2, 2014, the defendant was sentenced to 4-8 years on the aggravated assault charge, in addition to 5 years reporting probation. He was also sentenced to an additional 2 years reporting probation to run concurrent on the simple assault and REAP charges. On July 9, 2014, upon consideration of defendant's Motion Pursuant to Rule 720, this Court, inter alia, modified its original sentence by determining that the simple assault and REAP charges should merged with the aggravated assault charge for sentencing purposes

1 Circulated 07/31/2015 03:06 PM

The defendant filed a timely Notice of Appeal to the Superior Court on July 24, 2014. A

l925(b) Order was issued by this Court, to which the defendant timely filed his 1925(b)

Statement of Matters Complained of on Appeal on August 26, 2014.

On appeal, the defendant has raised the following four (4) issues:

"1. Whether there was insufficient evidence to support the verdict of guilty on the charges of Aggravated Assault, Simple Assault, and Recklessly Endangering Another Person when the eyewitnesses provided conflicting accounts of the alleged assault, and the credibility of the complainant, and her testimony do not support the convictions?

2. Whether the verdict was against the weight of the evidence because it fails to establish that the appellant placed the complainant in danger of serious bodily injury for purposes of Aggravated Assault and Recklessly Endangering Another Person?

3. Whether the trial court violated appellant's constitutional rights by granting the Motion of the Commonwealth to introduce prior bad act evidence at the trial, which unfairly prejudiced appellant?

4. Whether the trial court abused its discretion in imposing the state sentence in this matter to nm consecutively to a federal sentence where both the complainant and appellant were federally indicted, and for which appellant commenced serving his federal sentence just prior to the imposition of the state sentence as he did not have the benefit of rehabilitation?"

The weight and sufficiency of the evidence clearly shows the Commonwealth met its

burden by proving each element of the aforesaid charges beyond a reasonable doubt and this

Court's findings of guilt were appropriate based upon the totality of the evidence in weight,

sufficiency and credibility.

Further, for the reasons set forth herein, this Court properly admitted evidence of the

defendant's prior bad acts, as said acts were similar in nature to the crimes charged, involved the

same person and occurred during a nearly identical scenario, i.e., a domestic violence incident

and re-imposed the sentence set forth above to be served on the aggravated assault charge only. This Court's modification of its sentence structure is not subject to this appeal, except for the consecutive running of this sentence with his federal prison sentence.

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involving physical contact by the defendant upon the victim, his former spouse, Jacqueline

Diana.

Lastly, the defendant is currently serving a seven (7) year federal pnson term for

Medicare fraud. Since this other criminal activity and the instant matter are unrelated in any way,

this Court imposed its sentence in this matter to run consecutive to the defendant's federal term

of imprisonment. Such a sentence structure is well within the discretion of this Court and

warranted under the circumstances. This defendant clearly should not be given the benefit of

serving one prison term for committing two wholly separate and distinct crimes. This manner of

sentence is legal, within the powers of this Court and is neither an abuse of discretion nor an

enor of law.

For the reasons set forth herein, the defendant's claims of error are without merit or legal

basis and, therefore, it is requested that the findings of guilt on all charges, the evidentiary rnling

and the manner and structure of sentence imposed be affirmed on appeal.

In summary, on October 31, 2011, at approximately 9:45 p.m., the defendant violently

attacked the victim, his ex-wife, at a gas station located at Welsh Road and Roosevelt Boulevard,

Philadelphia, Pennsylvania. The attack was witnessed by three independent and unrelated

individuals: Philadelphia Police Lt. John Stanford", Rebecca McBride and Natasha Cintron. All

three witnesses, as well as the victim, Ms. Diana, testified at trial. The witness testimony was

consistent, in that the defendant physically attacked the victim and choked her to a point of

unconsciousness. He was then observed dragging her around her vehicle and attempting to put

her into a vehicle. All of this took place in front of his young daughter. The defendant was

arrested at the scene by Philadelphia police.

6 Lt. Stanford was promoted to his current rank in April, 2012. At the time of this incident, he held the rank of Sergeant.

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The testimony presented at trial was consistent in regard to the defendant's criminal

conduct against the victim on the night in question and it was sufficient to support this Court's

findings of guilt. The witnesses' testimony was credible when taken both individually and was

also consistent with one another when taken as a whole. Cross-examination revealed no bias,

prejudice or mistake on the witnesses' part and inconsistencies, if any, were minor and without

negative effect upon the overall determinations made by this Court.

At the non-jury trial of January 6, 2014, the three independent eyewitnesses testified on

behalf of the Commonwealth. The first witness was Lt. John Stanford who testified as follows:

Page 22

[15] Q. Officer Stanford, how long have you been a [ 16] Philadelphia police officer? [17] A. 11 years. [18] Q. When did you become a lieutenant? [19] A. In April of 2012. [20] Q. Okay. So what was your position, title, duty, [21] assigned on October 31, 2011? [22] A. On the date of this incident, I was a sergeant. [23] Q. And around 10:00 p.m. that evening, could you please [24] tell me what you were doing? [25] A. It was approximately 9:45 p.m. on the 31st. I was

Page 23

[lJ driving southbound on the nine thousand block of Roosevelt [2] Boulevard. It was just before Welsh and the Boulevard. I [3] was in the -- just for clarity, there's lanes that run [ 4] southbound. You have inner lanes and outer lanes. I was in [5] the middle of the outer lane traveling southbound when I [ 6] observed the defendant standing over a female choking her. [7J This was on the sidewalk, which was at a Sunoco Gas Station [8] at that location.

Page 24

[7] Q. If you could please continue. You said you saw him [8] choking her and then what happened? [9] A. So at that point in time I had to maneuver around a

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[ 1 OJ few cars to pull over. One of the things that moved me at [ 11 J that particular time was -- she had to be at least five years [12J of age -- a little girl standing there. [13J THE COURT: Wait. Wait. Wait. The little [ 14J girl five years of age was being choked? [15J THE WITNESS: No. No. No. She was [ 16J standing there observing -- standing there screaming and [ l 7J yelling observing the defendant choking her mother.

Page 25

[ 1 J vehicles and made my way onto the Sunoco parking lot [2J there. It was at that point in time as I began to exit [3 J my -- I called 911 first. As Iwas beginning to exit my [4J vehicle, a 7th District lieutenant arrived on location. [SJ Iwas assisting her in getting the male off of the [ 6J female and placing the male under arrest.

[13J A. When I first observed it, he was standing -- all of [14J this was happening on the driver's side of the vehicle. The [ 1 SJ vehicle was also parked on the Sunoco parking lot just right [ 16J alongside of the pavement there. Just a few feet off of the [ l 7J bus stop. The defendant was standing over the female on the [ l 8J driver's side ground area, right on the driver's side of the [ l 9J vehicle. The little girl was standing just closer towards [20J the rear of the vehicle. [21J I observed the defendant, what appeared to me, [22J choking her on the ground. At that point he picked her up by [23J her neck and began to drag her around the rear of that [24 J vehicle into the passenger's side of that vehicle. At that [25J particular time when I was able to finally exit my vehicle

Page 26

[lJ and approach the defendant, he was straddling the female. [2] Her body was half way into the vehicle in the passenger's (3 J side. He was straddling her and he was continuously choking [4] her. [5] Q. When you say "choking," do you me two hands around [6] her throat or one? What do you mean? [7] A. Two hands around her throat area.

[ 18] A. Her body appeared limp to me. At one particular [19] time actually, it appeared she was unconscious. [20] Q. Was that on the sidewalk or when she was on the [2 I J passenger's side of the car?

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[22] A. It appeared as he was dragging her around to the [23] rear of the vehicle, she was unconscious at that particular [24] time. Once he actually set her up into the vehicle -- when I [25] say "into the vehicle," she wasn't completely inside of the

Page 27

[lJ vehicle. She was unconscious or appeared to be unconscious [2] at that point.

[ 11 J was going on. At first I thought they were like joking [ 12] around. I'm looking. When I saw -- what drew my [ 13] attention to it was the little girl screaming, 11Get off [14] of my mommy." [ 15] That's when I was like, This is serious [ 16] and I maneuvered around the vehicle.

Page 28

[9] A. Well, after calling 9 I 1, as I stated, after I was [ 1 OJ able to exit my vehicle and walk towards the defendant at his [ 11] vehicle -- at the vehicle that they were at. It was a [ 12] lieutenant from the 7th District that pulled up. She exited [13] her vehicle and the two of us together apprehended the [ 14 J defendant. [15] Q. Okay. So to be clear, the both of you had to -- [ 16] when you say get him off of her, what do you mean? [ 17] A. I physically had to pull him off of her and assisted [ 18] the lieutenant in handcuffing him. She had handcuffs. [ 19] Obviously I did not. I was off duty. I had to physically [20] pull him off of her.

Page 29

[8] Q. Do you remember about how much time elapsed from the [9] time that you first saw the defendant choking the complainant [l OJ on the sidewalk until you were able to pull the defendant off [1 I] of the female? [ 12] A. I would say only a few minutes. [ 13 J Q. And could you tell me did you have an opportunity to [ 14] see the demeanor of the female once the defendant was pulled [ 15] off of her? [16] A. Well, at that point as I said she appeared to be [ 17] unconscious. Some other folks came over to assist. At that ( 18] point I was just assisting the lieutenant in getting the [ 19] defendant into a vehicle.

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[20] Q. Okay. Did you observe any injuries on the [21] complainant? [22] A. I didn't look for any.

N.T., 01-06-2014, Pgs. 22-29.

On cross-examination by defense counsel, Lt. Stanford's testimony remained consistent

throughout and failed to reveal any bias, prejudice or inconsistencies which would serve to

discredit the weight, sufficiency or credibility of his testimony. In fact, on cross-examination, Lt.

Stanford's testimony solidified the Commonwealth's evidence in regard to the charges of

aggravated assault and REAP, as follows:

Page 40

[1] A. No, sir. What I'm saying to you is once I pulled [2] up, I observed the defendant standing over the female who was [3] laying on the ground on the driver's side of the vehicle. He [4] was choking her. There was a little girl standing at the [5] rear of that vehicle screaming and yelling and crying. [ 6] As I continued to maneuver my vehicle, I could still [7] see the defendant choking her and dragging her. At that [8] point he began to drag her towards the back of the vehicle. [9] As I maneuvered into the Sunoco's parking lot, I kept keeping [ 1 OJ my eyes on him. As a police officer, I'm trained a little [11] bit more than the average citizen. My concern was whether or [12] not he had a weapon of some sort. So I continued to -

Page 42

[19] Q. He was handcuffed. After he was handcuffed, where [20] was the complaining witness? [21 J A. Still laying -- or at that point falling onto the [22] ground on the passenger's side of the vehicle. [23] Q. Was she conscious or unconscious? [24] A. Initially, she appeared to be unconscious.

N. T., 01-06-2014, Pgs. 40 - 42.

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Redirect examination by the Commonwealth, further clarified the physical condition of

the victim upon the arrest of the defendant.

Page 45

[3] Q. And you said that she appeared to be unconscious. [4] Can you describe for me what about her, other than being [5] limp, which you've already testified to, made you believe [6] that she was unconscious for most of this incident that you [7] described? [8] A. Because her eyes were closed and she didn't have any [9] movement.

N. T., 01-06-2014, Pg. 45.

Lt. Stanford's testimony was deemed both credible and reliable by this Court,

The Commonwealth next called Rebecca McBride to testify as to her observations and

actions on the night of October 31, 2011. Ms. McBride testified that she:

Page 46

[ 16] A. ... was just getting out of school. [17] Q. What were you in school for at that time? [18] A. EMT.

[21] A. At that time I was getting out, it was right at [22] Welsh and the Boulevard. I was pretty much walking through [23] the Boulevard so I could cross it to catch the bus home. [24] While I was on the opposite side of the Boulevard, that's [25] when you could hear somebody screaming. You could see a car.

Page 47

[I J I think it was an SUV parked on the opposite side of the [2] comer. [3] Q. Okay. When you heard that screaming, what did you [4] do? [5] A. Well, I was getting across the street as quick as [6] possible. [7] Q. To get to the screaming? [8] A. Yes.

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Page 48

[4] Q. So you were trying to get over to where this [5] screaming is at the SUV. Did you see anything at that point? [6] A. At that point parked on the curb was the car. You [7] could see people standing back behind the car -- outside the [8] car. And that's where you heard the commotion and that's [9] what I saw. [ l OJ Q. Okay. So what did you see exactly? [ 11] A. From that point as I got half way to the Boulevard, [ 12] that's when you could see people. I did see two figures like [ 13] standing out there screaming. By the time I got to the [14] corner where it was happening, they had disappeared and they [ 15] had gone to the passenger's side. [16] Q. Okay. At some point did you have a view of the [ 17] passenger's side? [18] A. Yes. Once I got to that corner, this car was maybe [ 19] ten feet away from me. [20] Q. Okay. And so what did you see? [21] A. Well, you saw the car door open. The passenger's [22] side door was open. You saw the figure standing actually -- [23] he was standing in, like right at the car door.

Page 49

[l] Q. So what did you see that person doing? [2] A. At that point you saw him holding down somebody. [3] Q. Okay. And was that a man or a female? [4] A. A female. [5] Q. When you say holding her down, exactly what do you [6] mean? [7] A. He had her pinned down. She was sitting in the [8] passenger's seat. You saw him with his arm up holding her [9] mouth and -- [ 10] THE COURT: Ma'am, you keep saying, "You saw." [1 I] We're interested in what you saw. [12] THE WITNESS: Yeah. From what I saw, he had [ 13] his arm up and the hand blocking her mouth. His other (14] hand was by her neck, like it was on the seat. [l 5J MR. MOZENTER: On the seat? (16] THE WITNESS: Yes. Yeah. It was by her neck. [ 17] You could see -- at that point I wasn't right up to the [ l 8] car. I was still like I said 10 feet away. You saw a [19] arm up, because you could see that through the glass, [20] and then the other hand was, from what I saw, kind of [21] looked like it was on the back of the seat.

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Page 50

[ 4] A. It was just nothing but screams. "Help me. Help [5] me. Help me. He's choking me. Help me." [6] Q. At that point what happened? [7] A. I proceeded to walk towards the car. [8] Q. Then what happened when you started walking? [9] A. When I walked towards it, by the time I was a couple [ l O] feet away, by that time I did see the lady go limp. You [ 11] could see her eyes roll back. She was flailing and then she [ 12] stopped flailing. By the time I got two feet towards the [ 13] car, the police lady was right there right behind me. I saw [ 14] her and I stepped out of the way and let her do what she had [ 15] to do and then I went to check the lady, because like I said, [ 16] I went to school -- I was in the process of becoming an EMT [ 17] so I'm trained, like medically to check her breathing, check [ 18] her blood pressure. I had all my stuff on me.

[22] Q. And did you notice any injuries on her when you were [23] treating her? [24] A. You could tell her neck was red. She had a scratch [25] on her neck. She was hyperventilating. She was trying to,

Page 51

[l] you know, breathe. [2] Q. Okay. Let's go back to when you said when she went [3] limp and her eyes rolled back in her head and that she was [ 4] flailing and then it stopped. At that point, did the [5] screaming and any kind of speech stop as well? [6] A. Pretty much.

[17] Q. Could you tell me exactly what the defendant did [ 18] directly after the time that you noticed her go limp? ( 19] A. By that time, like I said, the cop was like right [20] behind me and she had pulled him off. And when she had [21] pulled him off, that's when I, you know, stepped back over to [22] her. That's when she started becoming, you know, conscious [23] again. You could tell she -- her eyes started blinking. She (24] was coming to.

Page 52

[9] Q. Did the defendant say or do anything after that [ 10) female officer pulled him off the female?

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[ 11] A. Once the female officer had pulled him off, he was [12] freaking out. He was freaking out about his phone. He lost [13] his phone somewhere. He was in the cop's car banging on the [14] windows saying he wanted to see his wife. He wanted to see [15] his wife. At that point I was kind of not worried about him [ 16] anymore. I was worried about her.

N.T., 01-06-2014, Pgs, 46 -52.

Cross-examination of Ms. McBride failed to show inconsistencies in her testimony nor

did it reveal any conflicts between her testimony and the testimony of Lt. Stanford which would

cause any doubt or concern with this Court.

Next, Natasha Cintron testified in the Commonwealth's case in chief. Ms. Cintron was

with Ms. McBride at the time and was her fellow classmate. They were walking together to the

bus stop at Welsh Road and Roosevelt Boulevard. N.T., 01-06-2014, Pg. 58, L. 1-9, 17-21.

As Ms. Cintron was walking toward the bus stop, she stated:

Page 58

[14] A. There was a truck there and we heard -- there was a [ 15] whole bunch of people watching the truck. We were waiting [16] for the bus.

Page 59

[7] A. They were behind the truck -- in the back of the [8] truck outside. I heard screaming and then they ended up to [9] the passenger's side of the truck and he was choking her.

Page 60

[3 J A. Like inside the car and he's in front of her. His [4 J hand was around her neck. I could only see one hand. [5] MR. MOZENTER: You what? I can't hear you. [6] THE WITNESS: I could only see one hand. His [7] hand was around her neck.

Page 61

[5] Q. Tell us again what you observed the defendant doing

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[6] just so we're clear? [7] A. He was standing in front of her. I only saw one [8] hand. He was choking her. I couldn't tell if he had a [9] weapon on the other hand. [10] Q. Why do you bring that up? [11] A. Because since there was a whole bunch of us, we [ 12] didn't know if we should jump in or not. I didn't want to [ 13] get hurt. I can't fight. [14] Q. Did you jump in at any point? [ 15] A. When he let go of her. Somebody came and stopped. [16] Then I helped the lady, the complainant. [ 17] Q. Natasha, when you say that the defendant had one [ 18] hand and was choking the lady, was he saying anything? [ 19] A. I couldn't understand what he was saying.

Page 62

[3] THE WITNESS: I remember her arms. They were [ 4] like, it looked like they were fighting, like flailing [5] and then I remembered they just stopped. That was it. [ 6] Not for long. [7] BY MS. RHOADS: [8] Q. Okay. Could you describe for me a little bit more [9] about what the lady looked like when the defendant was pulled [ l O] off of her? [ 11] A. She looked like she was hyperventilating. She was [12] scared. She was nervous. She didn't know what to do. She [13] had a red neck. [14] Q. Did you notice anything else about her physical [ 15] appearance at that point? [16] A. Not that I remember.

N.T., 01-06-2014, Pgs. 58 -62.

On cross-examination, Ms. Cintron did testify that she did not see the defendant dragging

the victim around the car, but thought she had walked around the vehicle.

Page 65

[5] Q. All right. And she walked behind the truck into the [6J car; isn't that correct? [7] A. To the passenger's side, yeah. [8] Q. Nobody dragged her there; is that correct?

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[9] A. From what I remember. [10) Q. Yeah. We don't want you to make up anything. What [ 11] you remember seeing is that she physically on her own walked [ 12] from the back of the vehicle to the passenger's side of the [13) car? [14] A. I think so, yes. [15] Q. You didn't see anyone drag her there, did you? [16] A. I don't think I did.

N.T., 01-06-2014, Pg. 65.

Despite this inconsistency with the testimony of the previous witnesses, this Court did not

deem it significant, as the charges stem from the choking of Ms. Diana, to which she did testify.

This 'after-the-fact' testimony failed to raise any doubt in this Court's decision to find the

defendant guilty for his other actions on the night in question.

There was also a stipulation between counsel that two (2) other witnesses, both police

officers, if called to the stand would have testified as follows:

Page 71

[15] MS. RHOADS: Yes. There's a stipulation by [16] and between counsel that if Officer Black were to [ 17] testify -- [ 18] THE COURT: B-L-A-C-K? [19] MS. RHOADS: Yes. And he is present. If he [20] were called to testify, he would testify that he [21] responded to the location of nine thousand Roosevelt [22] Boulevard on October 31, 2011 around 9:50 p.m. and that [23] he observed complainant Jacqueline Diana, age 31, and [24] she complained of pain to the neck. That there were [25] visible injuries. The officer would testify that there

Page 72

[ 1] was redness around the neck area.

[3] There's also a stipulation that Detective Robert Schill [ 4] would testify that he investigated this case and as part [5] of this investigation, he took statements from Sergeant [6] John Stanford, who testified here, Natasha Cintron, who [7] just testified, Rebecca McBride, who also testified, and

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[8] from the complainant, who would testify.

N.T., 01-06-2014, Pgs. 71-72.

The Commonwealth's last witness, the defendant's ex-wife, Jacqueline Diana, testified

not only to the events which were witnessed by the above witnesses, but also the events

occurring earlier that day between her and the defendant, as well as an incident which had

occurred in a similar manner and situation that had occurred on December 20, 2010. This prior

incident is the subject of defendant's issue on appeal relative to his prior bad acts and is

discussed hereinafter.

In regard to the events of October 31, 2011, Ms. Diana testified as follows:

Page 86

[7] A. That day, I spoke to him that day and I even invited [8] him to go out for Halloween with us. He said that he was [9] business and, you know, he couldn't come. So then I decided [l O] to take my oldest daughter to go trick or treating with her [ 11] friends around Knights Road or somewhere. I wasn't familiar [ 12] with the area. It was my first time there. He called. He [13] was asking where we was. I picked up the phone. I wasn't [ 14] being disrespectful. I told him where we are. I don't know. [ 15] I tried to tell him the streets and then he showed up at the [ 16] house where we were. I was already at the car.

[20] I was sitting in the car. Iwouldn't open the door [21] for a little while because he's, you know, yelling or [22] whatever, cursing. I don't exactly remember if I did open [23] the door. I know he left. But as we're driving away, he [24] comes back. He turns around. He comes back. Makes a U turn [25] and tells me to pull over. He wanted to talk to me, but his

Page 87

[ 1 J demeanor says otherwise. So he's trying to run me off the [2] road.

[1 I] A. lfI'm driving, he's try to lean me towards to go to [I 2] the side of the road, like he's almost going to hit me, but [ 13] he's not. So, you know, I decided to call the police.

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[ 17] A. I decided to call the police to tell them, you know, [ 18] that he's being aggressive towards us and I feel like we're [ 19] in danger. I pulled over to like Knights Road or something [20] at a gas station. While we're there, I still wouldn't open [21] the door. He's yelling at me. I don't even remember half of [22] the things he's saying. Because we're fighting so much that [23] my oldest daughter, M•, was so upset that she started [24] crying. She opened the door and tried to run in the middle [25] of the street. She said she couldn't take it anymore. She

Page 88

[ 1] just wants to kill herself because we continue to fight this [2] way. [3] So he runs after her in the middle of the street. [4] While he's holding her, he's siting there saying, I'm going [5] to F'ing kill you. So we get back in the car. [6] Q. Who's "we" exactly? [7] A. Me, M., and now Bill is in the car. But before he [8] actually got into the car, he actually broke my car door [9] because he was trying so hard to open the door. I wouldn't [ 1 O] open the door until the police officers got there. So when [ 11] the police officers got there, he makes up this lie to where [ 12] he says I don't let him see the girls and this and that. [ 13] When in truth, that's not the case. I've been trying. [14] Q. I just want to be clear. This incident that you're [15] still talking about with the door handle and the car, that's [ 16] still at a location where you guys were trick or treating? [ 17] A. Yeah. It's near there still. [18] Q. So when the police come, do you speak with the [ 19] officers? [20] A. Yes. I explained to them, but basically since I [21] didn't have a protective order, they couldn't do anything. [22] They sent me my way and they sent him his way. We're just [23] going home. Even on the drive home, he's still behind us. [24] He's like, you know, on me, arguing with me.

Page 89

[1] A. Like, he's still behind me and following me. He's [2] still urging me to pull over. [3] Q. At any point, did he call you or is this all just [4] via the cars? [5] A. I think we were on the phone. I finally pulled [6] over. I pulled over. This time it was Welsh and the

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[7J Boulevard or Grant and the Boulevard. It's a gas station. I [8] pulled up right there. Now my daughter's window is cracked [9] open maybe like this much. So that was his way of getting [1 OJ into the car, because I didn't want to open the door again. [11 J When he got into the car, he was holding her and he [12] was hugging her, but then he grabbed the keys out of the [13] ignition and said, "I'm never letting you go home. Do you [ 14] hear me right now? You're not going home. 11 [15] So when he did that, I grabbed my cell phone and I (16J tried to call the police again. I don't know which way he [l 7J went. All I know is I dropped the phone. I'm trying to [ 18J shuffle with it. He's behind me now in a choke hold. Now I [l 9J can't breathe. I can't scream. I can't do nothing. I'm [20] trying to get the people's attention at the bus stop, because [21 J there's a bus stop right there, to help me. [22J THE COURT: Are you out of the car at this [23J point? [24 J THE WITNESS: Yes. At that time I had an [25J Escalade so it's a pretty long car. So from the

Page 90

[l J beginning of the car, all the way to the back, he's [2J dragging me. He's not even dragging me anymore. I'm in [3 J the air. I'm choking. I can't breathe. All I could [ 4 J hear -- I just focused on M8's voice and she's [SJ screaming for me. I don't even remember if he's saying [6] anything to me. He just trying to make me, like stop [7J jumping around and screaming. So finally I completely [8] passed out. I don't remember anymore. I just saw [9] black. That's it. Then I wake up and I'm on the ground [ 1 OJ and he's rubbing my chest and he's rubbing my back. You [11] know, of course my daughter is screaming her eyes out. [12] And then after that, I see like everybody coming near [13] us. So he tried to grab me, like he's kissing me to [14] make it look like we're, you know -- [15] MR. MOZENTER: Objection to "make it look [16] like." [17] THE COURT: Sustained.

[19] Q. Let me ask you this: When you come to and he's [20] rubbing your chest and back, where are you at this point? [21 J A. I'm probably like a car away from my car, like all [22] the way in the back. [23] Q. Okay. So your near the rear of your car? [24 J A. Yeah.

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[25] Q. On the ground or --

Page 91

[l] A. On the ground. [2] Q. And at that point, you say he grabbed you how? [3] A. He tried to pretend like he's kissing me. [4] Q. Just tell me specifically what he did? (5] A. He grabbed me by my head. He grabbed me by my face [6] because now I got to. I'm screaming now. I'm like, "Help. [7] Help. Help. Someone help me." [8] And he dragged me back into the car. So now I'm [9] sitting on the passenger's side like on the floor of my car. [ 1 O] He's trying to calm me down because now he's panicking. [ 11] Everybody is coming, you know, and then he's still like [12] face-to-face to me like this trying to shut me up and that's [13] when the cops came and put handcuffs on him. [14] Q. How did you get from the rear of your vehicle to the [ 15] passenger's side? He carried you? [ 16] A. He didn't carry me. He just dragged me.

[22] Q. Exactly how did you get back to the passenger's [23] side? [24] A. He dragged me there. [25] Q. And where were his hands or arms when he dragged

Page 92

[1] you? [2] A. They were on my head, like they were on my face. [3] He's pretending he's kissing me, but we're not. [4] Q. When you're in the car, could you describe how you [5] felt in the car physically? [6] A. I don't really remember physically. All I know is [7] that I was just knocked out. He really could have killed me. [8] He meant to kill me. [9] Q. Okay. And, Jacqueline, when you're in the car, you [10] said that you blacked out. Were you unconscious when you're [11] in the passenger's side as well? [12] A. No. [13] Q. Not that you remember? [14] A. No. No. [15] Q. Do you remember at any point if you were fighting [ 16] the defendant? Like were you ever flailing your arms? [ 17] A. I was. When he was trying to choked me, like when [ 18] he had me from the back.

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Page 93

[5] Q. Okay. And, Jacqueline, did you have any injuries as [ 6] a result of this? [7] A. Just my neck was very swore. That's it. I didn't [8] go to the hospital. I just wanted to get home.

[17] Q. Other than the soreness or redness on your neck, did [ 18] you have any other problems after that incident physically? [19] A. No. Well, just for a few days I was probably swore. [20] I couldn't swallow. Other than that, I was fine. [21] Q. When you say "swore," exactly where on your body [22] were you swore? [23] A. My throat. [24] Q. Okay. Do you remember speaking with females at the [25] actual sight of the gas station after this?

Page 94

[ 1] A. I spoke to -- they were actually students at the [2] time that were EMTs. When they placed him in the police car, [3] they were just checking to see if I was okay, like my neck, [ 4] my heart rate and whatever.

N.T., 01-06-2014, Pgs. 86-94.

Cross-examination, although intensive and specific to the details on the night of this

assault, failed to elicit any exculpatory or justification testimony. Ms. Diana remained consistent

throughout, was deemed credible by this Court and her testimony further supported the findings

of guilt. On cross-examination, Ms. Diana stated:

[ 16] A. Right now we're separated. We're not divorced. [17] Q. Okay. And you were also partners with him in [ 18} business; isn't that correct? [19] A. Not really. [20] Q. Well, you worked for him, right? [21] A. Yes. [22] Q. And you're under indictment, aren't you? [23] A. Yes. (24 J Q. For stealing a couple of million dollars from the

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[25] federal government as a result of this ambulance business

Page 95

[l] that you and your husband were in, right? [2] A Right. [3] Q. And your husband is serving 8 years in a [ 4] penitentiary as a result of that; is that correct? [5] A I'm actually on home arrest right now for that as [6] well. [7] Q. That's because you cooperated with the federal [8] government? [9] A Absolutely. I wasn't going to lie. [10] Q. Okay. So you cooperated with the government because [11] you didn't want to go to jail? [12] A Absolutely. I have two children to take care of.

Page 105

[19] Q. Why did you pull into the Sunoco Station? [20] A. Yes. He told me he's calm now. He said he was [21] going to be nice. He just wants to talk. I said fine, you [22] know. I pulled over to Welsh and the Boulevard to try to [23] speak to him. But at the time, I didn't want to open the [24] door yet until I knew that his demeanor was okay. So inside [25] of that, he slid the window open and he just reached in and

Page 106

[ l] opened the door.

Page 107

[18] Q. Now, you got to -- and at that time, did you call -- [19] when he was following you, did you call 911? [20] A. No, not yet because he was promising me that he was [21] going to be nice. He was going to calm down. He just wanted [22] to talk to me and M• and that's it. [23] Q. Okay. [24] A And he was just going to let me go home. [25] Q. And then you pulled over to the Sunoco Station?

Page 108

[ 1 J A Right. [2] Q, He got out of his car and you let him in your car?

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(3] A. No. I didn't let him in my car. I wouldn't let him (4] in at first because I wanted to make sure that his demeanor (5] was normal. Since I would'nt open the car, he just reached [6] in through the cracked window from the passenger's side and (7] opened the car door.

(11] Q. I see. All right. Does he get in the car now? (12] A. Yes. He gets in the car. (13] Q. In the passenger's side? (14] A. On the passenger's side with my daughter. (15] Q. The daughter was on the passenger's side? (16] A. Yes. (17] Q. Okay. So, was the daughter in the front of the (18] car? (19] A. Yes. (20] Q. What happened to the daughter? Did she get out of (21] the car? Did he remove her from the front seat? (22] A. No. No. She was really upset, distraught. (23] Q. Physically, where was your daughter when he got in (24] the car? (25] A. Physically, she was sitting on the passenger's [seat].

Page 109

(9] Q. As a matter of fact, he never hit you with his fist ( l O] at any time, did he? (11] A. No. (12] Q. Did the argument continue when he got into the car (13] at the Sunoco Station? [14] A. At first it wasn't. He was just talking to my (15] daughter and then he saw the car -- the car keys were still ( 16] in the ignition. He pulled it out and said, "You're not ( 17] going home. I'm not letting you go home this time."

Page 110

(13] Q. Okay. Now, while he's in the front seat with his [14] child, did you leave the car? Did you get out of the car? [15] A. I was just sitting there. I'm still frightened. [ 16] Because our conversations go like this, if I don't pick up [ 17] the phone, or if I don't answer his calls, he would threaten [18] me or if he sees me, he would try to choke me. He never hits ( 19] me. His main thing to hurt me is by choking me. [20] Q. When he got into the car with your child, did he [21 J choke you at that time? [22) A. No. He just grabbed the key and he --

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[23] Q. Did he strike you at that time? [24] A. No.

Page 111

[1] A. And threatened that he was not going to let me go [2] home. He always threatens me that he's going to hurt me. [3] That's why I freaked out. I jumped out of the car and I [ 4] tried to call the police. [5] Q. When you jumped out of the car, did you nm? [6] A. No. I was just trying to call. [7] Q. And did you call when you jumped out of the car? [8] A. No, because he got behind me already or whatever. [9] The phone flew off and he was already choking me from [ 1 O] behind. [11] Q. With what hand did he choke you? [ 12J A. It was a choke hold. [13J Q. Show us. [ 14] A. I don't exactly remember. I know a choke hold is [ 15] like this. So he has me like this. [16] MS. RHOADS: For the record, the complaining [ 17] witness is lifting both arms up and wrapping one mm in [ 18] front of the other one and pulling.

[20] Q. Show us again where his position was? [21] A. It's a choke hold. I had my neck right here. I [22] can't breathe. [23] Q. But he didn't put two hands around your neck and [24J squeeze you? [25] A. No.

Page 112

[8] Q. He never wrapped his hands around your neck and [9] choked you? [10] A. No. [ 11] Q. Did you break away from him at any point? [ 12] A. No, I couldn't. [13] Q. Did you fight back? [14] A. I couldn't fight back. I'm up in the air. [15] Q. And then what happened? [ 16] A. Nothing. All I could do is try to scream. I was [ 17] trying to scream for help from the people at the bus stop. [18] Q. And there were a lot of people at the bus stop? [ I 9] A. There were a lot of people.

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[20] Q. Did you get back into the vehicle? [21] A. No, not yet. [22] Q. How did you get back into the vehicle? [23] A. When I woke up from blacking out, I was on the [24] ground. He had me sitting up and he was rubbing my back and [25] my chest.

Page 113

[l] Q. And you said it looked like he was trying to kiss [2] you; is that right? [3] A. When I started to freak out and realize, like, Oh, [ 4] my God. I actually blacked out. That's when I started [5] screaming at the top of my lungs for help. [6] Q. Do you have any physical condition that would cause [7] you to hyperventilate at times? Strike that. Did you ever [8] hyperventilate prior to this accident? [9] A. Not exactly. [10] Q. What do you mean by, "not exactly?" [ 11] A. I mean, I only do that when I'm in complete [ 12] anxiety. [ 13] Q. And were you in complete anxiety? [ 14] A. Absolutely. I'm in terror.

N.T., 01-06-2014, Pgs. 94-113.

In order to fully clarity the record and this Court's understanding of the facts, given the

extensive nature of Ms. Diana's testimony, the chaos of that night in question and the manner in

which the testimony was presented, it was necessary for this Court to briefly question this

witness as follows:

Page 120

[2] THE COURT: All right. When you got out of [3] the car to make a phone call, that's when you indicated [ 4] that the defendant came up from behind you and did what [5] you called a choker hold on you? [6] THE WITNESS: Yes. [7] THE COURT: Is that when you passed out? [8] THE WITNESS: I didn't pass out for a little [9] bit. I tried to hold on to try to scream for help. I [ I 0] don't remember exactly when I passed out. [11] THE COURT: Do you know how you got to the

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( 12] ground? (13] THE WITNESS: No. (14] THE COURT: And do you know what happened to (15] you while you were on the ground? (16] THE WITNESS: No. Just when I woke up, I was (17] sitting up.

N.T., 01-06-2014, Pgs.120.

Despite the overwhelming testimony as to the violent nature of the acts committed upon

the victim by the defendant, the defense focused upon the Commonwealth's alleged failure to

prove that the defendant's estranged wife was in danger of death or serious bodily injury, and,

therefore, the defendant could not have been convicted of either aggravated assault or REAP.

The defendant's argument fails on both counts, as the testimony of the victim and the

several eyewitnesses' testimony had satisfactorily proven that the defendant perpetrated the

violent act of choking the victim to a point of unconsciousness and which could have resulted in

serious injury to her. Neither REAP nor aggravated assault require that the victim actually suffer

a serious injury, but only be faced with the risk of such as a result of the defendant's criminal

conduct.

A person is guilty of simple assault if he attempts to cause or intentionally, knowingly or

recklessly causes bodily injury to another. 18 Pa.C.S. §270l(a)(l). A person is guilty of

aggravated assault if he "attempts to cause serious bodily injury to another, or causes such injury

intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to

the value of hurnan life. 18 Pa.C.S. §2702(a)(l).

Reckless endangerment is defined as "recklessly engag[ing] in conduct which places or

may place another person in danger of death or serious bodily injury." 18 Pa. C.S. § 2705.

Serious bodily injury is defined as "[b ]odily injury which creates a substantial risk of death or

which causes serious, permanent disfigurement, or protracted loss or impairment of the function

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of any bodily member or organ" and the term "bodily injury" relates to an "impairment of

physical condition or substantial pain." 18 Pa.C.S. § 2301.

The victim clearly sustained bodily injury and an impairment of a physical condition, i.e.,

loss of consciousness, when she was choked by the defendant's intentional and reckless acts.

Based upon the evidence adduced at trial, this Court determined that the Commonwealth had met

its burden of proving each of the elements of these crimes sufficiently in order to support the

findings of guilt on all charges.

In order to "sustain a conviction under Section 2705, the Commonwealth must prove that

the defendant had an actual present ability to inflict harm and not merely the apparent ability to

do so. Danger, not merely the apprehension of danger, must be created." Commonwealth v.

Cordoba, 902 A.2d 1280, 1288 (Pa. Super. 2006) (citing Commonwealth v. Hopkins, 747 A.2d

910, 915-16 (Pa. Super.2000)). "[T]he mere fact that the victim only sustained minor injuries and

did not sustain 'serious bodily injury' does not[,] ipso facto[,] establish that appellant's actions

did not place others in danger of such injury [pursuant to a REAP charge]." Commonwealth v.

Lawton, 414 A.2d 658, 663 (Pa.Super. 1979).

In the present case, defendant claimed that because the victim did not receive medical

care as a result of his violent acts, he could not be convicted of either REAP or aggravated

assault since she did not sustain what would be considered a serious injury. In reaching this

conclusion, the defendant would have this Court totally dismiss the testimony of the victim and

three (3) eyewitnesses who all testified that the victim was choked by the defendant, had lost

consciousness and caused her body to go limp. The need for medical attention is not an element

of the crime required for conviction.

This Court acknowledges that the injuries ultimately sustained by the victim were

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apparently minor, but this does not negate the fact that the defendant's violent actions upon the

victim at the time of the assault placed her in danger of serious bodily injury, inasmuch as the

outcome could have been devastating. Choking a person into unconsciousness places one in

danger of serious injury. The defendant's acts gave rise to the potential to have caused serious

injuries, but for the intervention of the police and witnesses.

The quality of injury actually sustained by a victim is not determinative in this context.

See Lawton, supra. Rather, it is the assailant's potential, or "actual present ability," to inflict

serious bodily injury, that controls the situation. See Cordoba, supra. The fact that the victim did

not ultimately "suffer serious bodily injury" does not negate a finding of guilt on REAP or

aggravated assault charges.

In Lawton, the Superior Court determined that an unarmed man committed REAP when

he threatened several people in a crowded Philadelphia subway station, and then "started

swinging [punches] indiscriminately into a crowd of students." Lawton, 414 A.2d at 662. The

panel in Lawton discussed Section 2705 and sufficiency of the evidence, as follows:

Reckless endangerment is defined in 18 Pa.C.S. § 2705 as "conduct which places or may place another person in danger of death or serious bodily injury." Section 2705 is derived from section 211.2 of the Model Penal Code. The commentary to the Model Penal Code provides that section establishes a general prohibition of recklessly engaging in conduct which places or may place another person in danger of death or serious bodily injury. It does not require any particular person to be actually placed in danger, but deals with potential risks, as well as cases where a specific person actually is within the zone of danger.

Relying upon this standard, we concluded that "while appellant may have only strnck the victim and another unidentified individual, his action of swinging indiscriminately into a crowd of students was sufficient to establish beyond a reasonable doubt that he may have placed other persons in danger of serious bodily injury." [Internal citations omitted.]

While there is no allegation in the instant case that the defendant's acts placed anyone but

the victim herself in immediate danger, Lawton stands for the general proposition that a victim

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of REAP, who is also an assault victim, need not actually sustain "serious bodily injury" in order

for a defendant's underlying conviction to be upheld. Moreover, the assailant in Lawton was

found to have committed REAP on the basis of nothing more than swinging his fists, with no

apparent target selected in advance. Here, by contrast, the trial evidence showed that the

defendant specifically and successfully targeted Ms. Diana with his violent actions.

With respect to the merits of defendant's challenge to the sufficiency evidence, it should

be noted that the evidence presented by the Commonwealth suggested that the defendant did not

merely attack the victim, but choked her until she lost consciousness. This testimony was also

sufficient for this Court to conclude that defendant committed an aggravated assault upon Ms.

Diana. With that, the defendant also committed a simple assault as well.

Additionally, the loss consciousness at the defendant's hands and sustained directly from

the defendant's assault clearly demonstrates that the defendant possessed an actual ability to

inflict physical harm upon her, and not merely a theoretical ability to do so. Taking into account

testimony that the defendant is trained in karate and holds a black belt, further compounded his

ability to inflict harm when such training is employed in criminal activity. N. T., 01-06-2014,

Pgs. 112, L. 2-7.

Moreover, defendant's assault upon Ms. Diana was directed at her head and neck region

and caused the victim to lose consciousness. See Commonwealth v. Alexander, 383 A2d 887,

889 (Pa. 1978) ("[T]here can be no dispute about the physiological significance of the head.").

An attack upon the head area cannot be assumed to carry only a de minim is risk of serious bodily

injury. See Commonwealth v. Burton, 2 A.3d 598, 605 (Pa. Super. 2010) (en bane) (upholding

assailant's conviction for aggravated assault upon basis of a single punch, that placed "victim ...

in real danger of dying").

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Therefore, based upon the foregoing discussion, this Court concluded that there was

sufficient evidence to determine that defendant had committed REAP, aggravated and simple

assault upon the victim in this case and the convictions were properly supported by the evidence,

as the Commonwealth proved each element of the respective crimes beyond a reasonable doubt.

Defendant's next issue challenges this Court's decision to permit the Commonwealth to

introduce in its case-in-chief testimony from the victim of an earlier physical assault by the

defendant upon her on December 20, 2010. This episode involved a nearly identical situation

where the defendant allegedly choked the victim and slammed her to the ground during a

domestic dispute thereby, qualifying as a "prior bad act" under Pa.R.E. 404(b).

The appellate standard of review applicable to an issue contesting the admissibility of

evidence is abuse of discretion. Commonwealth v. Rosen, 2012 \VL 1415771 (Pa. 2012). An

abuse of discretion is not merely an error in 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.

Co111111011weafth v. Harris, 884 A.2d 920 (Pa. Super. 2005), appeal denied, 928 A.2d I 289 (Pa.

2007). A discretionary ruling cannot be overturned simply because a reviewing court disagrees

with the trial court's conclusion. Commonwealth v. Lomax, 8 A.3d 1264 (Pa. Super. 2010).

This discretionary ruling on the admissibility of the defendant's prior bad act falls

directly within the requirements for admissibility as set forth in Pa.R.E. 404(b ), which states:

(b) Other crimes, wrongs, or acts.

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

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(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.

(4) In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Pa. R.E. 404(b).

As the Rule indicates, generally "[ e Jvidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith."

Pa. R.E. 404(b)(l). However, there are many exceptions to this Rule.

Generally, evidence of other crimes is independently admissible in a trial for a distinct

crime to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme,

plan or design embracing commission of two or more crimes so related to each other that proof

of one tends to prove the others; or (5) identity, where there is such a logical connection between

the crimes that proof of the extraneous crime naturally tends to show that the accused committed

the crime with which he is charged Commonwealth v. Nalravandian, 849 A.2d 1221 (Pa. Super.

2004), re-argument denied, appeal granted, vacated on other grounds, 888 A.2d 815 (Pa. 2006).

This Court determined that the "prior bad acts" evidence that the Commonwealth wished

to introduce in its case-in-chief, that is the defendant's previous assault upon his ex-wife, was

relevant and admissible under Pa. R.E. 404(b) to show Defendant's motive, malice and intent.

Commonwealth v. Nahavandiau, supra.

In this regard, Ms. Diana testified:

Page 74

(5] Q. Okay. At what point did this relationship end? [6] A. In 2010, we had a really big fight and that's when I [7J decided to leave.

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[22]Q. Jacqueline, are you talking about December 20, 201 O? [23] A. Yes. [24] Q. So could you tell me about what happened on that [25] date?

Page 75

[1] A. Okay. He hadn't been home for the whole weekend, [2] which was about three days. I couldn't get in contact with [3] him. He wouldn't call me back. I left him a message. I [ 4] went back to Northeast Philadelphia to stay with my parents. [5] I left him a message. I said we're going to go Christmas [ 6] shopping with the girls and I'll just come home when I take [7] Ml to school in the morning, which is going to be a Monday. [8] I didn't hear from him until like after midnight, [9] which was around 1 o'clock in the morning. He called and [ l O] he's like, "No, you're coming home." He starts cursing me [l 1] out. [ 12] He said, "Even if I have to come in there and drag [13] you out."

[22] Q. You could continue with what you were saying. [23] A. He said he was going to drag me out of the house and [24] he's going to come pick us up. I said don't do that because [25] my parents don't want you here anymore because every time you

Page 76

[ 1] would come, we could fight. So, a few minutes later, he's at [2] the door. I'm still on the phone with him. He said he was [3] knocking on the door, but it sounded like he was kicking the [4J door in.

Page 78

[19] Q. Did you hear the defendant say anything in English [20] to his father? [21 J A. He did. He told him to go home and let him handle [22] his family business. That's what he said. [23] Q. What's the next thing that happened after you heard [24] that? [25] A. When I heard him say that, I ran outside. My

Page 79

[ 1] parents tried to stop me because the cops weren't there yet.

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(2] So while I was running, in midair -- I'm trying to scream for (3] him. I'm jumping up and down, he grabs me -- [ 4] Q. Who were you trying to scream for? [5] A. For his dad. [6] Q. Okay. So his dad had actually come to the [7] location? [8] A. Yes. (9] Q. So you saw his dad at your parent's house and you [ 1 O] were screaming for him to stop? (11] A. Yes, because he was driving away. (12] Q. Okay. [ 13] A. So I said, "Dad, please stop. Come back." And (14] while I was doing that, he grabbed my neck in midair and body (15] slanuned me on the ground.

Page 80

[6] Q. What part of your body did he grab? (7] A. My neck. [8] Q. Did he grab you with one hand or two hands? (9] A. I don't remember. (10] Q. You said he body slammed you? (11] A. Yes. (12] Q. Did your body make contact with the ground? (13] A. Absolutely. (14] Q. What happened after your body made contact with the (15] the ground? (16] A. I couldn't breathe. My chest really hurt. I [ 17] thought I probably broke a rib or something. Then my dad [ 18] came outside

Page 81

[l] When you were on the ground, did the defendant do anything to [2] you? [3] A. Yes. He was on top of me. I don't remember exactly [4] what he was saying. I know that it was something like [5] whether I like to or not, that I was coming back home with [ 6] him and with the kids. [7J Q. Where were his hands? [8] A. I don't even remember. I don't remember. All I [9] know is that I'm on the ground and I can't breathe. [10] Q. How did that come to an end where he had you on the [ I 1] ground? [12] A. My dad pushed him off of me and then I saw his dad [ 13] try to help out as well. ...

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[22] Q. Okay. So how did eventually that stop? [23] A. Me and my dad went ahead inside while his dad was [24] trying to stop him and calm him down. [25] Q. Jacqueline, I want to go back. You're on the ground

Page 82

[1] and you said that you couldn't breathe. You said that you [2] were dazed and you couldn't really see. Can you tell me if [3] something happened to your vision while you were on the [4] ground or do you remember anything specifically like that? [SJ A. I don't think so. It was probably because I was in [6] shock and with just being slammed on the ground. [7] Q. Did your head hit the ground? [8] A. Yes. [9] Q. Did you receive any medical treatment? [10] A. I didn't go to the hospital right away. My first [ 11] instinct was to just get away as fast as I can because he [12] would not leave. Like the police finally came. They told [ 13] him he has to leave, but he wouldn't leave. He kept coming [ 14] back. I just grabbed the children just for our safety and [ 15] just got out of there.

Page 85

[4] Q. Ms. Diana, would it be fair to say that you never [5] went to court against Mr. Hlhusmanuk or against Bill? [6] A. To be honest, I didn't want to press charges on him. [7] I just wanted him to stop and leave me alone and we'll go [8] through a divorce and do all of that the correct way. He [9] didn't want to do that. He would keep, you know, trying to [ 1 OJ hurt me or whatever the case may be. I just wanted to be [ 11] left alone. [12] Q. What was the state of your relationship up until [13] October 31, 201 I after this incident that we just discussed [14] in December? [ I 5] A. I did place -- what you call that -- [ 16] Q. Just don't tell me details. Just the nature of it. [ 17] Can you just describe it? [ 18] A. It wasn't very good. I tried very hard to be as [ 19] understanding or nice or I would even still take his phone [20] calls and talk to him or even agree to see him with the girls (21 J even though I knew that, you know, I'm in risk of having him, [22] you know, hurt me. Since he refuses to try to want to see [23] the girls or have a schedule or something. He doesn't want [24] to go to the police district and met up with me. He would

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[25] just show up in school. If he sees me down the road, he

[ l] would drive me off the road and try to speak to me.

N. T., 01-06-2014, Pgs. 74 -86.

Cross-examination on this prior incident confirmed its violent nature and extent of abuse.

Ms. Diana sought medical treatment for injuries to her ribs as a result of her being slammed to

the ground. Clearly, this evidence shows the violent propensity of the defendant towards Ms.

Diana, the acting out on those propensities and her sustaining injury.

Page 97

[12] Q. I'm asking whether or not you personally went to the [ 13] hospital for any physical injuries that allegedly occurred on [ 14] this incident back in 2010? [15] A. I did. ( 16] Q. Yet, the police said to you that they couldn't ( 17] arrest -- [18] A. What happened was, the first time they told me that ( 19] they couldn't arrest him, that's fine and -- [20] THE COURT: \Vhen you say "the first time," you [21 J mean after the 20 l O incident? [22] THE WITNESS: Yes. So at that time they told [23] me that they couldn't arrest him even though he did all (24] those things. They weren't there. They didn't see what [25] happened. The next day I really thought that I broke a

Page 98

[l] rib so that's when I went that morning. It was at 2 [2] o'clock in the morning. I went to Jefferson to check [3 J myself in to just check to see if I'm okay. I was just [4] bruised. I didn't break any ribs or anything. [5] So they took another police report and I told [6J them exactly what happened because that police report [7] from my house and the police report I gave at the [8] hospital, were two different reports. [9] THE COURT: Okay. [10] BY MR. MOZENTER: [11] Q. Well, where is that report?

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[12] THE COURT: Which report? [13] MR. MOZENTER: I don't know. The second [14] report, I only have one. [ 15] BY MR. MOZENTER: [ 16] Q. Regardless, between 2010 and 2011, you were not [ 17] living with the defendant? [18] A. No. [19] Q. But you were still working at that business that you [20] two had? [21] A. No. [22] Q. That was over? [23] A. That was over.

N.T., 01-06-2014, Pgs. 97-98.

This Court concluded that the above testimony was sufficient evidence to demonstrate

long standing physical and mental abuse and malice towards Ms. Diana. See Commonwealth v.

Liliock, 740 A.2d 237, 244 (Pa. Super. 1999), appeal denied, 795 A.2d 972 (Pa. 2000), post-

conviction relief denied, 2002 WL 34400883 (West. 2002), ajfd, 833 A.2d 1147 (Pa. 2003),

appeal denied, 847 A.2d 1281 (Pa. 2004) (prior relations between the defendant and a victim

may be relevant to show intent or malice).

It also showed the defendant's repeated and continued efforts to threaten, intimidate and

physically harm the victim. See Commonwealth v. Claypool, 495 A.2d 176 (Pa. 1985) (evidence

of defendant's statement regarding his prior criminal activity, which he made to threaten and

intimidate the victim, was admissible when force or threat of harm is an element of the crime for

which he is standing trial); and as a part of the res gestae.

The introduction at trial in the Commonwealth's case-in-chief evidence of prior charged

or uncharged physical abuse perpetrated by an accused upon the complainant to prove one of the

lawful purposes for which such evidence is authorized under Pa.RE. 404(b )(2) was also proper.

See Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), cert, denied, Sherwood v.

Pennsylvania, 130 S.Ct. 2415 (U.S. Pa. 2010), habeas corpus dismissed. Sherwood v. Beard,

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2011 \VL 6888653 (M.D. Pa. 2011) (evidence of defendant's prior physical assaults upon four

year-old victim was admissible to show intent, lack of mistake, ill-will, and malice, in

prosecution for first degree murder.); Commonwealth v. Drumheller, 808 A.2d 893 (Pa. 2002),

reargument denied, cert. denied, Drumheller v. Pennsylvania, 123 S.Ct. 2284 (U.S. Pa. 2003)

(evidence of prior acts of abuse admissible to show the sequence of events that formed the case

and demonstrates defendant's motive, malice, intent and ill-will toward the victim);

Commonwealth v. Chandler, 721 A.2d 1040 (Pa. 1998) (abusive domestic relations between

defendant and homicide victim admissible to show malice); Commonwealth v. Lilliock, 740

A.2d 237 (Pa. Super. 1999), appeal' denied, 795 A.2d 972 (Pa. 2000), post-conviction relief

denied, 2002 WL 34400883 (West. 2002), aff'd, 833 A.2d 1147 (Pa. Super. 2003), appeal

denied, 847 A.2d 1281 (Pa. 2004) (prior protective orders between victim and defendant

admissible to show intent or malice); Commonwealth v. Odum, 584 A.2d 953 (Pa. Super. 1990)

( defendant's abusive relationship with the deceased, an elderly aunt, over a ten-year period was

admissible during his trial for her murder).

Thus, evidence that the defendant had previously assaulted and committed physical

violence upon his estranged wife by choking her previously to the night in question was relevant

and probative of defendant's motive and intent for committing the assaults upon his ex-wife.

The factual basis of the present charges against this defendant indicated that he became

violently aggressive towards her, choking until the point of lost consciousness. Evidence that the

defendant had previously engaged in the same behavior with Ms. Diana was relevant and

admissible as it was closely linked in similarity and nature to the charged offenses. This degree

of similarity is an important factor in determining the admissibility of other crimes or bad acts as

relevant to show a common scheme or plan. Commonwealth v. Einhorn, 911 A.2d 960

34 Circulated 07/31/2015 03:06 PM

(Pa.Super. 2006), appeal denied, 920 A.2d 831 (Pa. 2007).

Here, this Court concluded that the Commonwealth's evidence of defendant's December

20, 2010 assault upon Ms. Diana was admissible as evidence of a common plan, scheme or

design to injure, intimidate, place in fear and control her. In both incidents, the defendant

grabbed Ms. Diana by the neck and choked her. It was reasonable for this Court to infer that

both incidents were precipitated and induced by defendant's desire to place and keep the victim

in a constant state of fear and intimidation. This Court's ruling on the Commonwealth's evidence

of defendant's prior choking of Ms. Diana was admissible as a prior bad act under Pa.RE. 404(b)

and was, therefore, not an abuse of discretion.

Lastly, the defendant claims that this Court's sentencing structure is also an abuse of

discretion since he is required to serve his sentence for these violent crimes subsequent to him

serving a federal sentence for fraud. Since the crimes are wholly separate and apart from each

other, the sentences themselves should be separate and apart as well. The defendant believes he

is entitled to a concurrent sentence structure, but provided no support for this request. He simply

desires to have the benefit of concurrent confinement. Such relief is not warranted.

By history, the Presentence report revealed that this defendant has had numerous contacts

with the Court, making him RRRl ineligible. Given the grading of the aggravated assault charge

as an F-1, the Offense Gravity Score was a ten (10) and his Prior Record Score was a four (4).

The Sentencing Guidelines recommended a sentence of 48 to 66 months(+/- 12 months).

The Commonwealth recommended incarceration of 4 to 8 years incarceration, plus ten (10) years

of reporting probation, in addition to other conditions. Defendant's counsel suggested a mitigated

sentence of 3 to 6 years.

This Court imposed a sentence of 4 to 8 years incarceration, plus 5 years probation on the

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aggravated assault charge. Confinement was ordered to run consecutive to his federal prison

term. The sentence imposed is well below the maximum sentence for a felony of the first degree

of not more than twenty (20) years confinement.

To further support the imposition of a consecutive sentence, at his sentencing hearing, the

defendant exercised his right of allocution. At no point during this address to the Court did he

show any remorse, sorrow or any semblance of humanity. There was no apology to the victim,

the mother of his children. There was no apology to members of his family. Instead, the

defendant deflected blame to the victim and her family. He failed to accept any responsibility

whatsoever for any of his actions.

In fact, the Presentence Report notes "During the interview, the defendant expressed

anger and hatred towards [Ms. Diana] in the current offense, which suggested that he remains a

threat to her safety." This same attitude and belief was compounded by the defendant's own

words in a presentence letter to this Court. This Court clearly considered the safety concerns of

both Ms. Diana and her children in considering both the term and nature of the defendant's

In imposing this sentence, this Court took into consideration (1) the nature and

circumstances of the offense and the history and characteristics of the Defendant, including the

Pre-Sentence Report; (2) the opportunity of the Court to observe this Defendant; (3) the findings

upon which this sentence was based; and (4) the appropriate guidelines per Commonwealth v.

Coulverson, 2011 Pa. Super. 255, 317, 34 A.3d 135, 143-144 (Pa. Super. 2011).

Within the constraints of the Sentencing Code, a trial court has broad discretion to

fashion a sentence consistent with the need for protection of the public, the gravity of the

offense, and the rehabilitative needs of the defendant. Commonwealth v. 1l1011zo11, 571 Pa. 419,

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423, 812 A.2d 617, 620 (2002). The sentence imposed upon this defendant falls well within this

Court's discretion and is neither excessive nor unreasonable under the circumstances. Clearly, the

sentence imposed upon this defendant took into consideration all of the above factors.

Therefore, for the foregoing reasons, this Court's findings of guilt, evidentiary rulings and

imposed sentence should be affirmed on appeal.

BY THE COURT:

l qt§ Date: January~. 2015

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COMMONWEALTH vs. WILLIAM HLUSHMANUK

CP-51-CR- 0003766 -2012

SUPERIOR COURT NO.: 2227 EDA 2014

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Opinion upon the person(s),

And in the manner indicated below, which satisfies the requirements of Pa. R. Crim. P. 114:

COUNSEL:

Hugh J. Burns, Jr., Esquire Chief, Appeals Unit Three South Penn Square Philadelphia District Attorney's Office Philadelphia, PA 19107

Erin Lentz-McMahon, Esq. 21 West Airy Street Norristown, PA 19401 Attorney for William Hlushmanuk

Susan Cho, Esq. Assistant District Attorney Philadelphia District Attorney's Office Three South Penn Square Philadelphia, PA 19107

TYPE OF SERVICE: FIRST CLASS MAIL

DATED: January~ 1±L-- 2015