Com. v. Howard, M.

• Court: Superior Court of Pennsylvania
• Decided: January 17, 2023
• Docket: 247 WDA 2022
• Status: Unpublished

Opinion

J-S36039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW JAMES HOWARD : : Appellant : No. 247 WDA 2022

Appeal from the Judgment of Sentence Entered January 27, 2022 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000372-2020

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JANUARY 17, 2023

Appellant, Matthew James Howard, appeals from the judgment of

sentence of 7 to 14 years’ incarceration and 1 year of probation imposed on

him after he was convicted by a jury of aggravated assault serious bodily

injury, aggravated assault bodily injury with a deadly weapon, simple assault,

reckless endangerment, terroristic threats, and possession of an instrument

of crime.1

This case arises out of an incident on July 24, 2020, in which Appellant

stabbed another man (Victim) in the neck with a knife. Appellant was charged

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* Retired Senior Judge assigned to the Superior Court. 118 Pa.C.S. §§ 2702(a)(1) and (a)(4), 2701(a)(1), 2705, 2706(a)(1), and 907(a), respectively. J-S36039-22

with the above offenses and those charges were tried to a jury on December

20, 2021. Defendant did not appear for his trial despite having been told of

the trial date and, following a one-hour delay during which counsel for

Appellant repeatedly tried to reach Appellant without success, the trial court

denied Appellant’s counsel’s request for a continuance, granted the

Commonwealth’s request to proceed with the trial, and proceeded with the

trial in Appellant’s absence. N.T. Trial at 10-12; Stipulation of Commonwealth

and Appellant.

Three eyewitnesses to the incident, Victim, Victim’s girlfriend and

Victim’s mother, testified at trial. Victim testified that he and Appellant knew

each other and were not friends and that in the early evening of July 24, 2020,

when Victim was outdoors talking to two of his friends and his mother,

Appellant approached him and called him a racial slur. N.T. Trial at 82-87,

107-09. Victim testified that he responded verbally, asking why Appellant was

saying that, and that Appellant pulled out a pocket knife, pointed it at Victim,

and said to Victim “I’m going to f[—]king kill you” or “I’m going to f-ing stab

you.” Id. at 86-88, 106, 109-10. Victim testified that he stepped back when

he saw the knife and Appellant then threw a drink at him and stabbed him in

the neck. Id. at 86-93, 114. Victim testified that after Appellant stabbed

him, he punched Appellant in the face to prevent Appellant from attacking him

again and that Appellant smiled and ran away. Id. at 91-92. Victim testified

that he did not have any gun, knife, or other weapon on him when Appellant

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attacked him and did not say to Appellant at any time during the encounter

that he had any weapon. Id. at 89.

Victim’s girlfriend testified that she was 10 or 15 feet away at the time

when the incident began and that she saw Appellant cross the road and walk

up to Victim and heard Appellant and Victim arguing, although she did not

know what was said by either Appellant or Victim. N.T. Trial at 134-37, 144-

47, 149-50. Victim’s girlfriend testified that she saw Appellant move his arm

toward Victim and throw a drink at Victim and then saw Victim bleeding from

the neck and soaked in blood. N.T. Trial at 135, 137-38, 146-48. Victim’s

girlfriend testified that she asked Appellant if he just stabbed Victim and that

Appellant ran away smiling and said nothing. Id. at 135, 139. Victim’s mother

testified that while she was standing talking with one of Victim’s friends, a

family friend, and Victim, Appellant came up and bumped Victim in the

shoulder. Id. at 152-57, 161-63. Victim’s mother testified that Appellant

pushed Victim and Victim pushed Appellant back and that Appellant said “I’m

going to f-ing kill you.” Id. at 154, 156-57, 164-66. Victim’s mother testified

that Appellant then came at Victim with something in his hand and she saw

blood all over Victim’s shirt and blood spurting from Victim’s neck. Id. at 154-

59, 164-66. Victim’s mother testified that the only thing she recalled Victim

saying to Appellant during the encounter was “Not right now.” Id. at 157-58,

162-64, 169.

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Appellant’s counsel presented no witnesses and introduced no exhibits

in evidence. N.T. Trial at 195-96. At the close of the evidence, Appellant’s

counsel requested that the jury be instructed on self-defense, the defense of

justification. Id. at 197-201. The trial court denied this request on the ground

that there was no evidence that supported this defense because it was

undisputed that Appellant provoked the incident and that Appellant could have

left if he was concerned for his safety. Id. at 205-07. The trial court in its

charge instructed the jury that the defense of justification as matter of law

was not legally supported and could not be considered. Id. at 228.

Appellant’s counsel timely objected to the trial court’s failure to instruct the

jury that it could find Appellant not guilty based on the justification defense.

Id. at 206, 238.

On December 20, 2021, the jury found Appellant guilty of all six charges.

N.T. Trial at 242-43; Verdict Sheet. Because Appellant had failed to appear

for trial, a bench warrant was issued on December 21, 2021 and Appellant

was apprehended on this bench warrant on January 11, 2022. Trial Court

Opinion at 2. On January 27, 2022, the trial court sentenced Appellant in this

case to 7 to 14 years’ incarceration plus 1 year of probation pursuant to 61

Pa.C.S. § 6137.2 for aggravated assault serious bodily injury and imposed

concurrent sentences of 2 to 4 years’ incarceration for aggravated assault

bodily injury with a deadly weapon and 1 to 2 years’ incarceration for each of

the other four convictions, simple assault, reckless endangerment, terroristic

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threats, and possession of an instrument of crime. N.T. Sentencing at 14-16;

Sentencing Order.2 This timely appeal followed.

Appellant presents the following two issues for our review:

(1) Did the trial Court err in granting the Commonwealth’s request to proceed to trial in absentia on December 20, 2021?

(2) Did the trial Court err in denying the request of defense counsel to instruct the jury on the issue of self-defense?

Appellant’s Brief at 6 (suggested answers omitted). Neither of these issues

merits relief.

A defendant has a constitutional right to be present at his trial.

Commonwealth v. Wilson, 712 A.2d 735, 737 (Pa. 1998); Commonwealth

v. Sullens, 619 A.2d 1349, 1351 (Pa. 1992); Commonwealth v. Kelly, 78

A.3d 1136, 1141 (Pa. Super. 2013), overruled on other issue,

Commonwealth v. King, 234 A.3d 549 (Pa. 2020). A defendant in a non-

capital case, however, may waive this right, either expressly or implicitly by

his actions. Wilson, 712 A.2d at 737; Sullens, 619 A.2d at 1351; Kelly, 78

A.3d at 1141. Where the defendant has notice of the trial date and fails to

appear, the court may properly find that he voluntarily waived his right to be

present and may proceed to try him in absentia, unless there is cause for his

absence. Sullens, 619 A.2d at 1352-53; Kelly, 78 A.3d at 1140-44;

2 The trial court also imposed a consecutive sentence of 1 to 2 years’ incarceration for an offense to which Appellant pled guilty in another criminal docket. N.T. Sentencing at 15; Sentencing Order.

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Commonwealth v. Johnson, 734 A.2d 864, 866-69 (Pa. Super. 1999).

Where a defendant refuses to remain in contact with his counsel, there is a

presumption that his failure to appear is without cause. Kelly, 78 A.3d at

1144.

Here, the record at the time of trial showed that Appellant had notice of

the December 20, 2021 trial date. Appellant’s counsel represented to the

court that he had advised Appellant that the trial was scheduled for December

20, 2021 and that Appellant had to be at the courthouse for trial at 8:00 a.m.

that morning. N.T. Trial at 10-11; Stipulation of Commonwealth and

Appellant. In addition, Appellant’s counsel advised the trial court that he knew

of no reason that Appellant was unable to appear and represented that he was

unable to reach Appellant despite numerous efforts to contact him through all

of the contact numbers that Appellant had given his office. N.T. Trial at 11-

12; Stipulation of Commonwealth and Appellant. After a delay of the start of

trial until 9:30 a.m. to permit Appellant’s counsel to further attempt to find

Appellant, Appellant’s counsel remained unable to reach Appellant, Appellant

still had not appeared for his trial, and there was no indication that there was

any reason for Appellant’s absence other than his choice not to appear. N.T.

Trial at 10-12; Stipulation of Commonwealth and Appellant. Given these facts,

the trial court properly concluded that Appellant had notice of his December

20, 2021 trial and that his failure to appear was knowing and voluntary. The

trial court therefore did not err in proceeding with the trial in Appellant’s

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absence. Sullens, 619 A.2d at 1352-53; Commonwealth v. Turner, No.

1393 MDA 2020, slip op. at 7-8 (Pa. Super. filed June 29, 2021) (non-

precedential decision); Commonwealth v. Percha, No. 215 WDA 2020, slip

op. at 5-7 (Pa. Super. filed August 26, 2020) (non-precedential decision).

Appellant argues that the Commonwealth did not meet its burden of

showing that Appellant waived his right to be present at trial because it did

not before trial proceeded affirmatively show the reason for Appellant’s

absence. We do not agree. Where the record at the time of trial shows that

the defendant was notified of the trial date and there is no suggestion or basis

to conclude that the defendant’s absence was involuntary or for a reason that

would justify his failure to appear, the trial court may properly proceed with

trial despite the defendant’s absence without affirmative proof as to the reason

for the defendant’s absence, subject to the possibility that defendant may be

entitled to a new trial if it is later determined that there was cause for his

failure to appear. Sullens, 619 A.2d at 1352-53; Percha, slip op. at 5-7.

Moreover, in determining whether trial in absentia constitutes reversible

error that entitles a defendant to a new trial, we are not limited to examining

the record at the time that trial proceeded and must affirm if the entire record

before us, including evidence from subsequent hearings, shows that the

defendant’s absence was without cause. Sullens, 619 A.2d at 1352-53; see

also Johnson, 734 A.2d at 866-67. That record shows that there was no

cause for Appellant’s failure to appear. Appellant admitted at his bench

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warrant hearing on January 11, 2022 that there was nothing that prevented

him from being present for his trial and that the only reason for his absence

was his decision to not appear for his trial “because I was high and I was

scared.” N.T. Bench Warrant Hearing at 3.

In his remaining issue, Appellant contends that the trial court erred in

not permitting the jury to consider the defense of justification. That argument

likewise fails.

Justification is a defense to a charge involving use of deadly force by a

defendant who is not in his home or place of work only if all of the following

elements are present: 1) the defendant reasonably believed that he was in

imminent danger of death, serious bodily injury, kidnapping, or sexual assault

and that it was necessary to use deadly force to prevent such harm; 2) the

defendant did not provoke that threat or danger; and 3) the defendant could

not safely retreat. 18 Pa.C.S. § 505(b)(2); Commonwealth v. Miller, 172

A.3d 632, 640 (Pa. Super. 2017); Commonwealth v. Smith, 97 A.3d 782,

786-87 (Pa. Super. 2014). Where sufficient evidence of self-defense is

introduced at trial, the burden is on the Commonwealth to disprove at least

one of these elements. Commonwealth v. Steele, 234 A.3d 840, 846 (Pa.

Super. 2020); Miller, 172 A.3d at 640; Smith, 97 A.3d at 787. A jury

instruction on justification, however, is required only where there is evidence

at trial that supports all three elements of the defense. Commonwealth v.

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Green, 273 A.3d 1080, 1085-87 (Pa. Super. 2022); Commonwealth v.

Hansley, 24 A.3d 410, 420-21 (Pa. Super. 2011).

As the trial court correctly held, N.T. Trial at 205-07; Trial Court Opinion

at 7-8, there was no evidence at trial to support at least two of the elements

of a justification defense, absence of provocation by defendant and inability

to safely retreat. All three eyewitnesses testified that Appellant went out of

his way to initiate the contact and confrontation with Victim by crossing the

street and approaching Victim. N.T. Trial at 84, 86-87, 104-07, 122, 134-37,

144-46, 153-56, 162. The testimony concerning what was said by Appellant

and Victim before the attack was that Appellant called Victim a racial slur and

threatened to kill or stab him and that Victim did not threaten Appellant. Id.

at 86-89, 105-10, 116-18, 154, 156-57, 162-67, 169. In addition, the

witnesses to the incident testified that before Appellant stabbed him, Victim

either had no physical contact with Appellant at all or, at most, gestured with

his arm to wave Appellant off and pushed Appellant after Appellant pushed

him. Id. at 89-90, 113, 135, 148-50, 154, 157, 164-67.

There was also no evidence that would permit a conclusion that

Appellant could not have safely retreated if he felt threatened by Victim. The

encounter was on a public street, the evidence was undisputed that no one

blocked Appellant’s ability to walk away, and there was no evidence that

Victim was armed or that Appellant had any reason to believe that Victim was

armed. N.T. Trial at 83-87, 89-90, 96-97, 134-35, 152-54. While there was

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evidence that one or two people chased Appellant when he ran away after

stabbing Victim and that Appellant escaped into a nearby business, id. at 91-

92, 129-30, 166, 169, the mere fact that people pursue the defendant after

he has committed a serious assault does not support an inference that anyone

would pursue him, harm him, or interfere with his retreat if he simply walked

away without physically harming anyone.

Appellant contends that there was evidence supporting his self-defense

claim because Victim allegedly swung a fist at Appellant before Appellant

stabbed him. This argument is without merit for two reasons. First, there

was no evidence of that alleged fact at trial. Appellant’s argument is based

solely on a prior out-of-court statement by Victim’s mother that his counsel

used cross-examining her, not on the testimony that she gave at trial, in which

she denied that Victim swung at Appellant before Appellant stabbed him. N.T.

Trial at 167-68, 191-93. A prior out-of-court statement of a witness is

admissible to impeach the witness’s credibility and not as substantive

evidence, unless the statement was given under oath, is a writing signed by

the witness, or is a verbatim electronic recording of the witness’s statement,

or the witness has no recollection of the events as to which she is called to

testify. Pa.R.E. 613(a)-(b), 803.1. Neither of those requirements was

satisfied here, as the statement in question was an oral statement of Victim’s

mother to a police officer that the police officer set forth in his report, N.T.

Trial at 191-93, not an electronically recorded statement or a written

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statement signed by Victim’s mother, and Victim’s mother had sufficient

memory of the events to which she testified to testify based on her recollection

at the time of trial. Indeed, neither this statement nor any other prior

statement of any witness was even admitted in evidence. N.T. Trial at 195-

96, 202.

Second, even if this allegation were considered, it would not change the

fact that there was no evidence that Appellant could not have safely retreated.

Because at least one of the three elements of the justification defense would

remain unsupported, there was no basis to permit the jury to consider the

defense of justification even if there were evidence that Victim had swung his

fist at Appellant before Appellant stabbed him.

Because the trial court did not err in proceeding with Appellant’s trial

after he chose not to attend and there was no basis for a jury instruction on

justification, both of Appellant’s issues in this appeal fail. We therefore affirm

Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/17/2023

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