Com. v. Jones, G.

• Court: Superior Court of Pennsylvania
• Decided: March 26, 2025
• Docket: 279 MDA 2024
• Status: Unpublished

Opinion

J-A23039-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GREGORY CHARLES JONES : : Appellant : No. 279 MDA 2024

Appeal from the Judgment of Sentence Entered January 22, 2024 In the Court of Common Pleas of Berks County Criminal Division at No: CP-06-CR-0001330-2022

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED: MARCH 26, 2025

Appellant, Gregory Charles Jones, appeals from his judgment of

sentence of 5-14 years’ imprisonment for aggravated assault against a police

officer, disarming a law enforcement officer, simple assault and resisting

arrest. We affirm.

On the evening of March 19, 2022, Officer Michael Balch of the Reading

Police Department was dispatched to 150 North Fourth Street in Reading to

take a report of a domestic incident. N.T., 6/13/23, at 53 (trial transcript).

Officer Balch spoke to three witnesses who complained that Appellant forced

his way into an apartment, brandished a knife, struck one woman on the head,

and took another woman’s cell phone. Id. at 53-54. The witnesses described

Appellant as a 5’9”-5’10” Hispanic male with a thin build, wearing a gray

sweatshirt, blue jeans, black boots and a gray, chest-length beard. Id. One

witness received a call informing them that Appellant may be in the 400 block J-A23039-24

of Walnut Street, close to a house that was excessively decorated for

Halloween. Id. at 55. Officer Balch then walked the half block to this house,

where he encountered Appellant sitting on the stoop. Id. at 56-57. Appellant

fit the description that the witnesses had given the officer. Because Appellant

met the description of the perpetrator of the incident he was investigating,

the officer ordered Appellant to come over so they could speak. Id. at 57.

Officer Balch was wearing a full Reading Police Department uniform,

including badge, shoulder patches, gun belt and “police” in reflective lettering

on the back of the uniform. Id. at 69-70; Commonwealth’s Exhibit No. 1. In

response to this request, Appellant attempted to run away, so the officer

grabbed his right hand. Id. at 58. Appellant punched the officer in the face

with his free hand, and an object fell out of his hand, which the officer believed

to be a knife. Id. at 58-59. Officer Balch punched Appellant in the face, and

the two exchanged several blows before the officer could take Appellant to the

ground. Id. at 59. In the ensuing struggle, Officer Balch attempted to sit on

Appellant, but Appellant kicked his legs away and struck the officer repeatedly.

Id. Appellant was able to get back on his feet, but the officer grabbed the

sides of his head with his forearms and forced him back to the ground. Id. at

60. The officer was then able to sit on Appellant, but Appellant attempted to

grab his duty weapon several times. Id. at 60-62. Appellant also bit the

officer and told him that he had AIDS. Id. at 61. When other officers arrived,

Appellant was eventually taken into custody. Id. at 63.

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While criminal charges were initially filed related to the forced entry into

the apartment, those charges were withdrawn at the preliminary hearing when

the necessary witnesses failed to appear for court. N.T., 6/8/23, at 3-4

(hearing on Appellant’s motion in limine). For this reason, the lower court

entered an order permitting only limited testimony from Officer Balch to

explain his presence in the area, including his belief that a weapon might be

present. Order, 6/12/23. Additionally, the court precluded all testimony from

the witnesses involved in the forced entry into the apartment. Id. The only

information presented at trial regarding this prior assault was that Appellant

was involved in a prior domestic incident and possessed a knife, along with a

description of Appellant. N.T., 6/13/23, at 53-55 (trial transcript).

Following a two-day trial, the jury found Appellant guilty of the above-

mentioned charges. On January 19, 2024, the court imposed sentence. On

February 16, 2024, Appellant filed a timely notice of appeal. On February 26,

2024, the court ordered Appellant to file a concise statement of errors

complained of on appeal within twenty-one days. On March 20, 2024, two

days after the deadline, Appellant filed a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. On March 26, 2024, the court filed a Pa.R.A.P.

1925(a) opinion.

Appellant raises three issues in this appeal:

I. Whether the trial court erred by denying the Appellant’s Motion(s) in Limine thereby allowing the Commonwealth to introduce testimony related to an alleged criminal domestic incident perpetrated by Appellant which he was not currently charged.

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II. Whether the admission of the testimony violated Appellant’s right to be confronted with the witnesses against him under the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.

III. Whether the trial court erred in denying to instruct the jury regarding Appellant’s initial mistaken identity that Officer Balch was a private citizen.

Appellant’s Brief at 6.

Preliminarily, we note that Appellant raised all three issues in his

untimely Rule 1925(b) statement, but the trial court only addressed the first

and third issues. The court did not address the second issue relating to the

Sixth Amendment and Article I, Section 9 of the Pennsylvania Constitution.

In Commonwealth v. Baker, 311 A.3d 12 (Pa. Super. 2024), the

Commonwealth filed an untimely Rule 1925(b) statement. The trial court filed

an opinion addressing the merits of the issue in the Commonwealth’s Rule

1925(b) statement. In a footnote, we stated that we found the issue waived

due to the untimely filing of the Rule 1925(b) statement. We observed, “It is

well settled that only issues properly raised in a timely Rule 1925(b) statement

are preserved for appellate review. Id. at 17 (citing Pa.R.A.P.

1925(b)(4)(vii)). We added, however, that “[i]f there has been an untimely

filing [of a Rule 1925(b) statement], this Court may decide the appeal on the

merits if the trial court had adequate opportunity to prepare an opinion

addressing the issues being raised on appeal.” Id. at 17-18. “Under these

circumstances,” we concluded, “where the trial court had adequate

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opportunity to prepare an opinion addressing the issue raised, we decline to

find waiver and will address the issue on its merits.” Id. at 18.

Pursuant to Baker, we will review the first issue in Appellant’s untimely

Rule 1925(b) statement. The trial court had “adequate opportunity” to

prepare an opinion on this issue because it actually addressed this issue in its

opinion. Baker, 311 A.3d at 18.

The first issue in Appellant’s Rule 1925(b), and his first argument on

appeal, is that the court erred in denying Appellant’s pretrial motion in limine

to prohibit Officer Balch from testifying about the domestic incident that led

to the police dispatch prior to Appellant’s arrest. Appellant argues that this

evidence was inadmissible as “other acts” evidence under Pa.R.E. 404(b)(1).

We disagree.

We review the denial of a motion in limine for abuse of discretion.

Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000). Similarly,

the admission of evidence is committed to the sound discretion of the trial

court and the review is for an abuse of discretion. Commonwealth v.

Stokes, 78 A.3d 644, 654 (Pa. Super. 2013).

The Rules of Evidence define relevant evidence as that which establishes

a material fact or makes the existence of a material fact more or less probable.

Pa.R.E. 401. The Rules caution that even if evidence is relevant, it may

nevertheless be inadmissible if its probative value is outweighed by several

factors, including undue delay, waste of time and the presentation of

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cumulative evidence. Pa.R.E. 403. “In determining whether the evidence is

so remote that the prejudicial effect outweighs the probative value, the court

has no fixed standard on which to rely, but must instead consider the nature

of the crime, the evidence being offered, and all attendant circumstances.”

Commonwealth v. Smith, 808 A.2d 215, 225 (Pa. Super. 2002).

In addition, Pa.R.E. 404(b) governs the admissibility at trial of evidence

of prior bad acts committed by the defendant. This rule provides in relevant

part:

(b) Other crimes, wrongs, or acts.

(1) Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

(3) In a criminal case the prosecutor must provide reasonable written notice in advance of trial so that the defendant has a fair opportunity to meet it, or during trial if the court excuses pretrial notice on good cause shown, of the specific nature, permitted use, and reasoning for the use of any such evidence the prosecutor intends to introduce at trial.

Id. Rule 404(b)(3) requires the application of a balancing test before the

evidence is admissible. Notably, it is not necessary for the prior act to have

resulted in a conviction. Commonwealth v. Saez, 225 A.3d 169, 174 n.3

(Pa. Super. 2019) (Rule 404(b) “is not limited to evidence of crimes that have

been proven beyond a reasonable doubt in court. It encompasses both prior

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crimes and prior wrongs and acts, the latter of which, by their nature, often

lack definitive proof”) (emphasis in original).

Accordingly, the evidence of the bad act sought to be admitted must be

relevant for a special purpose other than to prove the defendant’s bad

character or propensity for the commission of crimes, and the probative value

of the evidence to be admitted must outweigh the risk of prejudice. Pa.R.E.

404(b)(1), (2). This rule, however, is subject to “numerous exceptions” in

which courts permit the admission of evidence of prior bad acts.

Commonwealth v. Billa, 555 A.2d 835, 840 (Pa. 1992). Some of these

exceptions

include (but are not limited to): (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 naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where [the] defendant’s prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called “res gestae” exception).

Id. Since all evidence admitted against a defendant at trial is prejudicial, the

question is whether the evidence is so prejudicial that it would inflame the

jury to deliberate based upon something other than the legal propositions

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relevant to the case. Commonwealth v. Serge, 837 A.2d 1255, 1261 (Pa.

Super. 1997).

The trial court acted within its discretion in admitting limited testimony

regarding the report to Officer Balch of Appellant’s alleged break-in and

assault earlier in the evening. This evidence established the res gestae, that

is, the sequence of events which formed the history of the case and its natural

development.1 See Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa.

2009) (court properly admitted prior bad acts to demonstrate absence of

mistake and res gestae). Officer Balch testified that he took a report from

several witnesses complaining that Appellant forced his way into an

apartment, brandished a knife, struck one woman on the head, and took

another woman’s telephone. The witnesses gave a detailed description of

Appellant’s physical attributes and clothing. One witness received a call that

Appellant might be close to a nearby house that was excessively decorated

for Halloween. Officer Balch walked to this house and encountered Appellant,

who fit the witnesses’ description. This testimony placed the officer’s

interaction with Appellant in proper context. The witnesses’ report of an

assault by a man with a knife explained why Officer Balch was on the street

near the “Halloween house” in the early morning hours. The witnesses’

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1 Furthermore, while the charges relating to the break-in and assault in the

apartment were discharged, Rule 404(b) does not require prior bad acts to have resulted in a conviction. Saez, 225 A.3d at 174 n.3.

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description of the assailant explained why Appellant attracted Officer Balch’s

attention. Without any information regarding the forced entry incident which

Officer Balch was investigating, the jury would have been left with the

impression that Officer Balch arbitrarily singled out Appellant on the street

and had no reason to detain or fight Appellant. Thus, Appellant’s argument

fails.

The second issue in Appellant’s Rule 1925(b) statement, and his second

argument in this appeal, is the contention that the court violated his rights

under the Confrontation Clause of the Sixth Amendment by admitting

statements of out-of-court witnesses (the individuals who observed Appellant

break into the apartment) through Officer Balch’s testimony.

Arguably, Appellant waived this issue because he filed an untimely Rule

1925(b) statement and the trial court did not address this issue in its opinion.

Even if preserved, however, the issue would not entitle him to relief. Officer

Balch’s testimony did not violate Appellant’s Confrontation Clause rights

because the court admitted it for a non-hearsay purpose, namely to explain

the officer’s course of conduct.

The question whether admission of evidence violated an accused’s rights

under the Confrontation Clause is a question of law for which our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Agnew, 299 A.3d 1001, 1007 (Pa. Super. 2023).

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Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. Pa.R.E. 801(c). Hearsay is not admissible except as

provided by the Rules of Evidence, by other rules prescribed by the

Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. If, however, the

statement is offered not for the truth of the matter asserted, but instead to

explain a witness’s course of conduct, the statement is not hearsay.

Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012). More

specifically, an out-of-court statement offered to explain a police officer’s

course of conduct is not hearsay. Commonwealth v. Goldman, 252 A.3d

668, 679 (Pa. Super. 2021). The Confrontation Clause is not implicated for

statements which are not hearsay, such as statements that explain an officer’s

course of conduct. Agnew, 299 A.3d at 1007.

The trial court correctly reasoned that Officer Balch’s testimony about

the eyewitnesses’ statements was not hearsay, because it was offered for the

non-hearsay purpose of explaining his course of conduct. The witnesses’

statements showed why Officer Balch was on the street with the Halloween

house, why Appellant attracted his attention, why he approached Appellant,

and why he grabbed Appellant’s hand when Appellant tried to run away. Since

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Officer Balch’s testimony was not hearsay, it did not violate Appellant’s

Confrontation Clause rights under the Sixth Amendment.2

The final issue in Appellant’s Rule 1925(b) statement, and his final

argument on appeal, is the contention that the court erred by denying his

request to instruct the jury that it could find that Appellant acted on the

mistaken belief that Officer Balch was a private citizen. Appellant was charged

with aggravated assault against a police officer under 18 Pa.C.S.A. §

2702(a)(3), which provides that a person is guilty of aggravated assault if he

“attempts to cause or intentionally or knowingly causes bodily injury to [a

police officer] in the performance of duty.” Appellant testified that he

mistakenly believed Officer Balch was a private citizen because he was focused

on the officer’s face, not on what he was wearing. According to Appellant,

“Considering the facts and testimony a jury instruction of potential mistaken

identity was necessary because it was important for the [j]ury to know they

must consider whether the Appellant acted with the mistaken belief that he

was threatened with an intentional tort by a private citizen.” Appellant’s Brief

at 23. Pursuant to Baker, we again will review this final issue in Appellant’s

untimely Rule 1925(b) statement because the trial court had “adequate

2 We need not discuss whether Officer Balch’s testimony violated Appellant’s

right of confrontation under Article I, Section 9 of the Pennsylvania Constitution, because Appellant merely recites its text without explaining why his rights under this provision may be greater than his right of confrontation under the Sixth Amendment.

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opportunity” to prepare an opinion on this issue and actually addressed this

issue in its opinion. Baker, 311 A.3d at 18.

Nonetheless, we hold that this argument lacks merit. In a challenge to

a jury instruction, the only true issue is whether the area covered by the

instruction adequately, clearly and accurately presents the issue to the jury.

Commonwealth v. Saranchak, 675 A.2d 268, 276 (Pa. 1996). The trial

court shall instruct a jury only on those matters which have been made an

issue in the case and evidence would reasonably support such a verdict.

Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007).

Appellant cites Commonwealth v. Flemings, 652 A.2d 1282 (Pa.

1995), in support of his claim that a “mistaken belief” instruction was

necessary. The defendant in Flemings was convicted of aggravated assault

under Section 2702(a)(3) for assaulting an undercover police officer by

stealing his duty weapon and holding him at gunpoint. The defendant

requested the court to instruct the jury that he must have known the

undercover officer was a police officer to be found guilty under Section

2702(a)(3). The court declined to give this instruction, and our Supreme

Court held that the court’s decision was correct:

[Section 2702(a)(3)’s] requirement that the officer be “in the performance of duty” in no way implies that liability depends on whether the defendant is aware of his victim’s official status. The duties of a police officer, . . . frequently include undercover investigation in which the officer’s official status is intentionally concealed. We do not interpret the language “in performance of duty” to require a defendant to have knowledge of the officer’s official status since such a reading would all but strip the

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undercover officer of the protection the legislature intended to afford him. Rather, we hold that a defendant’s lack of knowledge should only be considered in those cases in which a defendant acts with the mistaken belief that he is threatened with an intentional tort by a private citizen . . . [Otherwise,] the offender must take his victim as he finds him.

Id. at 1285 (emphasis in original).

Here, as in Flemings, the trial court correctly concluded that the

evidence did not warrant a “mistaken belief” instruction. Indeed, the evidence

in this case cuts even more strongly against giving a “mistaken belief”

instruction than in Flemings. Whereas the officer in Flemings was in

plainclothes due to his undercover status, Officer Balch was in a full, marked

uniform and was visibly identifiable as a police officer. Appellant had no basis

to claim under these circumstances that he did not realize that Officer Balch

was a police officer. Additionally, when Officer Balch asked to speak with

Appellant, Appellant attempted to flee, an act that demonstrated he knew

Officer Balch was a police officer. Thus, the record did not support the

proposed jury instruction of mistaken belief, and the trial court properly denied

Appellant’s request to give this instruction to the jury.3

3 Two additional points deserve mention. First, Appellant, not Officer Balch, elevated this encounter into a violent fight. When Officer Balch grabbed Appellant’s hand to prevent his flight, Appellant punched the officer in the face. Since the record is clear that Appellant threw the first punch, his claim that he was attacked rings hollow. Like the defendant in Flemings, Appellant was not acting in self-defense but instead initiated an assault on a uniformed police officer. Second, although the court declined to give a “mistaken belief” instruction, it did not prohibit the defense from arguing that Appellant mistook (Footnote Continued Next Page)

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For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 3/26/2025

Officer Balch as an ordinary citizen. Defense counsel argued that Appellant believed a stranger grabbed him without explanation when he stood up to walk away. N.T., 6/14/23, at 196-97.

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