J-S36029-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SETH R. MCHENRY : : Appellant : No. 425 MDA 2024
Appeal from the Judgment of Sentence Entered February 15, 2024 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000128-2023
BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and BENDER, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 30, 2024
Seth R. McHenry appeals from the judgment of sentence entered
following his convictions for strangulation, simple assault, harassment, and
three counts of recklessly endangering another person (“REAP”).1 McHenry
challenges the sufficiency and the weight of the evidence, the denial of his
motion for a mistrial, evidentiary rulings, and discretionary aspects of his
sentence. We affirm.
The Commonwealth charged McHenry with the above offenses following
a domestic dispute with his live-in paramour of 15 years and the mother of
his two children (“Victim”). The incident occurred from January 30, 2023
through January 31, 2023. The following evidence was presented at McHenry’s
jury trial. ____________________________________________
1 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1), 2709(a)(1), and 2705, respectively. J-S36029-24
Victim testified that on the night of January 30, 2023, she and McHenry
had an argument. N.T. Trial I, 1/19/24, at 19.2 3 She attempted to leave their
residence, but McHenry followed her outside to her car in the driveway, broke
the driver’s side mirror, pulled her to the back seat, and strangled her. Id. at
20. He then dragged her back into the house. Id. at 20-21. Victim testified
that in the house, she heard McHenry deleting footage from their security
cameras of the driveway. Id. at 21-22. She stated that McHenry confirmed
that he was deleting the footage. Id. at 22. Victim testified that throughout
the night and into the next morning, McHenry kicked her with his boots on,
pushed her face into a concrete floor, and strangled her to the point of
unconsciousness. Id. at 22-24. Victim testified that at some point, McHenry
fell asleep in the basement. Id. at 24.
While he was asleep, Victim took her five-year-old daughter outside,
and Victim’s father drove up the driveway. Id. at 24-25. She testified that she
told her father what happened, he asked her if she wanted to leave, and she
____________________________________________
2 There are two transcripts of “Portions of Jury Trial” from January 19, 2024
because select portions were ordered at different times. References to the first transcript, where Victim and McHenry testified, will be referred to as “N.T. Trial I, 1/19/24.” References to the second transcript, where Victim’s father, Mark Yurkiewicz, and Officer Jarrod Noss testified, will be referred to as “N.T. Trial II, 1/19/24.” The sentencing hearing transcript will be referred to as “N.T. Sentencing, 2/15/24.”
3 Although the trial transcript is dated January 19, 2023, the trial took place
on January 19, 2024. See Docket Number: CP-19-CR-0000128-2023, entry filed on 1/19/24.
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replied, “Yes.” Id. at 25. Victim then packed a bag of clothes and put her two
children in her car. Id. at 26. Victim drove a white Jeep at the time. Id.
She testified that as she pulled out of the driveway, with her father
following her in his car, she noticed McHenry following them in his Tracker.
Id. at 27. While at a stop sign, she saw McHenry weaving in and out of traffic
to try to get in front of her. Id. at 27-28. She said that there was then a car
accident where “all three of us hit at some point.” Id. at 28. Victim testified
that she backed up and turned left onto a two-lane road. Id. She said that
McHenry followed her and was passing cars to get in front of her. Id. He finally
got in front of her and blocked the road with his vehicle. Id. Victim stated
McHenry got out of his vehicle, got on the hood of her car, and pounded on
her windshield. Id. at 28-30. She stated that during this time, there was
oncoming traffic in the opposite lane and cars were stopped behind her. Id.
at 69. McHenry then returned to his vehicle. Id. Victim said that she “didn’t
know where to go [or] what to do” and was “in a panic.” Id. Victim began
driving again, and McHenry again followed her. Id. at 31. At some point, she
turned around and went back to the scene of the accident, with McHenry still
following her. Id.
When she arrived back at the scene of the accident, she saw Officer
Jarrod Noss and her father. Id. at 32. Victim testified that she told Officer
Noss what had happened. Id. Officer Noss told Victim to go to the police
station the following day. Id.
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Victim testified that she did as Officer Noss instructed and went to the
police station the next day, February 1, 2023. Id. at 33. She gave a written
statement, and a female officer took photographs of her body. Id. The
Commonwealth introduced the photographs, which depicted bruising and
other injuries. Id. at 34-50; Ex. C-1 to C-14. Victim testified that all her
injuries in the photographs were caused by McHenry during the incidents on
January 30 and 31, 2023. N.T. Trial I, 1/19/24, at 50.
On cross-examination, defense counsel introduced a video of Victim
outside of the home on the morning of January 31, 2023, the morning after
the attack. Id. at 75. The video showed Victim with her daughter walking
outside feeding their chickens and doing other household chores. Id. at 75-
81. Victim testified that although McHenry had caused injuries to her, she was
still able to walk around and lift things. Id. at 76.
Victim’s father testified that when he arrived at Victim’s house on
January 31, 2023, he encountered Victim and her daughter walking up the
driveway. N.T. Trial II, 1/19/24, at 3-4. He said that he immediately “noticed
something [was] really wrong.” Id. at 4. He noted that Victim’s “skin was a
different color and she looked bad.” Id. Victim informed him that she and
McHenry had been fighting. Id. Victim’s father asked her if she wanted to
leave, and she said yes. Id. at 4-5. He said that he stood in the driveway with
Victim’s daughter while Victim went into the house to retrieve some clothes
and her other daughter. Id. at 5-6. He then followed behind Victim’s car in his
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own vehicle onto Shellhammer Road. Id. at 6. He drove a F-150 truck at the
time. Id. at 3.
At some point, he noticed McHenry in his Tracker behind him. Id. at 6.
McHenry passed Victim’s father’s vehicle and went in front of him. Id. at 7.
Victim’s father said when he came to the end of Shellhammer Road, he saw
that McHenry had pulled in front of Victim and Victim was behind McHenry in
a “T-bone” position. Id. Victim’s father testified that he then drove into
McHenry’s vehicle because he “was trying to stop him from chasing” Victim
with the children in her car. Id. He stated that McHenry proceeded to follow
Victim, and he pulled over to the side of the road and called the police. Id. at
8. Victim’s father testified that Victim stayed at his house that night. Id. at 9.
An eyewitness to the car accident, Mark Yurkiewicz, testified that on
January 31, 2023, he saw a white Jeep (Victim’s vehicle) hit a black Tracker
(McHenry’s vehicle) “and pushed him into a bank.” Id. at 14-15. He also saw
a third vehicle (Victim’s father’s vehicle) stopped at the stop sign near the
other two vehicles. Id. He then saw Victim’s vehicle drive away and McHenry’s
vehicle following her. Id. at 16. Yurkiewicz observed McHenry go in front of
Victim and get out of his vehicle and onto the hood of her car. Id. at 16-17.
Yurkiewicz said that when McHenry was on the hood, “he was just yelling at
her to stop and stop, and she was trying to continue to go.” Id. at 17.
Yurkiewicz thought he had witnessed a hit-and-run when he saw Victim’s car
hit McHenry’s car, so he stopped McHenry after he got off of Victim’s car and
said, “Hey, I saw everything” and gave him his information. Id.
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Officer Noss testified that on January 31, 2023, he was dispatched for a
call “for a motor vehicle accident and . . . a rolling domestic fight situation.”
Id. at 25. When he arrived at the scene, he encountered Victim’s father, who
admitted that he had struck McHenry’s vehicle. Id. at 26, 40. A few minutes
later, he observed Victim’s vehicle arriving at the scene with McHenry’s vehicle
following her. Id. at 28. Officer Noss testified that Victim told him “what was
going on over the weekend and th[e] particular incident with the crash.” Id.
at 29. The prosecutor asked him if what Victim told him was “[c]onsistent with
her testimony here today[.]” Id. Defense counsel lodged an objection, and
the court overruled it. Id. Officer Noss responded that what Victim had told
him on the day of the incident was consistent with her testimony at trial. Id.
at 29-30.
Officer Noss testified that Victim and her father came to the police
station the next day. Id. at 33. He stated that he observed injuries on Victim’s
face and neck area. Id. at 39. When Officer Noss interviewed McHenry,
McHenry explained that he followed Victim’s car because “he was trying to get
to his kids.” Id. at 32.
McHenry testified on his own behalf and denied that any argument or
assault took place between himself and Victim. N.T. Trial I, 1/19/24, at 95,
101-02. He stated that on January 31, 2023, he was sleeping in the basement
and was awakened by his house’s security system alerting him that someone
was in his driveway. Id. at 94. He then observed Victim and the children
leaving the residence. Id. McHenry testified that he followed Victim in his
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Tracker because Victim had taken the children away from him in the past. Id.
at 94, 96. He stated that after Victim’s father struck his vehicle, he continued
to follow Victim and sat on the hood of her vehicle yelling at her to stop. Id.
at 97. McHenry stated that he did not hit or ram into Victim’s vehicle at any
time. Id. at 98.
On cross-examination, the Commonwealth asked McHenry, who is a
professional security system installer, to explain why there was no video
footage from the night of January 30, 2023 when Victim said she was beaten
in the driveway. Id. at 104-05. Defense counsel objected claiming that
McHenry did not have to prove his innocence by producing any such video.
Id. The court overruled the objection and stated, “He’s on the stand and he
doesn’t have to prove his innocence, . . . but it’s cross[-]examination and he
can ask the question.” Id. at 105. McHenry responded that there was no
footage of that night because Victim made up the incident. Id. He testified
that there must be movement for the cameras to record and there was no
movement in the driveway that night. Id. at 105. He also stated that Victim’s
car was parked in a blind spot with no camera coverage. Id.
At the conclusion of the trial, the jury found McHenry guilty of the above
offenses. The court sentenced him to 24 to 96 months’ incarceration for
strangulation, one to six months’ incarceration for simple assault, and one to
six months’ incarceration on each of the three counts of REAP. The sentences
were to run consecutively, for an aggregate prison term of 28 to 120 months.
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McHenry filed post-sentence motions, which were denied. This appeal
followed.
McHenry raises the following issues:
1. Was the evidence presented insufficient to sustain a guilty verdict on the three (3) counts of recklessly endangering another person?
2. Alternatively, was the jury’s finding of guilt on all counts so against the weight of the evidence presented as to shock one’s conscience and sense of justice?
3. Did the trial court err in denying [McHenry’s] motion for a mistrial?
4. Did the trial court abuse its discretion and err as a matter of law when it overruled [McHenry’s] objection to the bolstering testimony of Officer Noss and permit the testimony as a prior consistent statement?
5. Did the trial court err when it overruled defense counsel’s objection to the Commonwealth questioning [McHenry] about his failure to present video evidence at trial, thereby placing an improper burden on [McHenry] to prove his innocence?
6. Did the trial court abuse its discretion when it sentenced [McHenry] to an aggregate sentence of 28 to 120 months within a state correctional institution; sentencing [McHenry] at the top of the standard range and running each count consecutive to the other[?]
McHenry’s Br. at 6.
McHenry first argues the evidence was insufficient to support his
convictions for three counts of REAP. Id. at 31. He maintains that the
Commonwealth failed to present evidence showing that he “possessed the
required mens rea for REAP, or engaged in such behavior or meet the actus
rea requirement.” Id. at 33. He argues that the evidence showed that he
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traveled the speed limit during the incident, did not ram or attempt to ram
into Victim’s vehicle, and did not engage “in any other intentional or reckless
behaviors which created a risk of serious bodily injury or death to [Victim] or
the children, or that would have caused any reasonable person to believe they
were at risk for serious bodily injury or death.” Id. at 34. McHenry points out
that Victim described his behavior as only following her, and not as a car
chase. Id. He also emphasizes that Victim did not describe his behavior as
aggressive or violent, and Victim never testified that during the time they were
traveling in their vehicles that she or the children were afraid. Id. In his view,
“[f]ollowing behind someone’s vehicle, traveling at the speed limit at
reasonable distances, and engaging in no aggressive or threatening behavior
or actions does not amount to reckless behavior sufficient to convict an
individual for REAP.” Id. at 35.
The sufficiency of the evidence is a question of law. Therefore, “[o]ur
standard of review is de novo, and our scope of review is plenary.”
Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa.Super. 2019). When
reviewing a challenge to the sufficiency of the evidence, we “must determine
whether the evidence admitted at trial, and all reasonable inferences drawn
therefrom, when viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable doubt.”
Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013) (en banc)
(citation omitted). “Where there is sufficient evidence to enable the trier of
fact to find every element of the crime has been established beyond a
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reasonable doubt, the sufficiency of the evidence claim must fail.” Id. (citation
omitted). This standard applies equally where the Commonwealth’s evidence
is circumstantial. Commonwealth v. Patterson, 180 A.3d 1217, 1229
(Pa.Super. 2018). The factfinder, “while passing on the credibility of the
witnesses and the weight of the evidence[,] is free to believe all, part, or none
of the evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa.Super.
2017). In conducting the sufficiency analysis, “we may not substitute our
judgment for that of the factfinder.” Commonwealth v. Griffith, 305 A.3d
573, 576 (Pa.Super. 2023), appeal denied, 319 A.3d 503 (Pa. 2024).
A person commits REAP “if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S.A. § 2705. To prove REAP, the Commonwealth must show
that the defendant “(1) possessed a mens rea [of] recklessness, (2)
committed a wrongful deed or guilty act (‘actus reus’), and (3) created by
such wrongful deed the danger of death or serious bodily injury to another
person.” Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa.Super. 2006)
(cleaned up).
“Recklessness” is defined as “a conscious disregard of a known risk of
death” or serious bodily injury to another person. Id. (citation omitted).
“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 of any bodily member or organ.” 18
Pa.C.S.A. § 2301. REAP “requires the creation of danger, so the
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Commonwealth must prove the existence of an actual present ability to inflict
harm to another.” Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa.Super.
2019).
Here, the court found that the evidence was sufficient for the jury to
find McHenry guilty of three counts of REAP. See Trial Court Opinion, 5/13/24,
at 9. We agree that the evidence was sufficient. The evidence showed that
McHenry weaved in and out of traffic while he chased Victim in his vehicle. He
eventually got in front of her and stopped his vehicle at a stop sign, wherein
an eyewitness saw Victim’s Jeep hit McHenry’s Tracker. McHenry then followed
Victim as she drove away while passing cars to get in front of her. He finally
got in front of her and blocked the road with his vehicle. McHenry then exited
his vehicle, got on the hood of Victim’s car, and pounded on her windshield.
During this time, there was oncoming traffic in the opposite lane and there
were cars stopped behind Victim. Victim testified that she was “in a panic”
while she tried to escape McHenry with her two young children in the car.
McHenry possessed the mens rea of recklessness when he initiated wrongful
conduct that created an actual danger of death or serious bodily injury to
Victim and the children. Thus, the evidence was sufficient to support his
convictions of REAP.
McHenry next argues that the guilty verdicts of REAP, simple assault,
and strangulation were against the weight of the evidence. He asserts that the
testimony of Victim and Victim’s father lacked credibility and that both
witnesses were unfairly biased as to the outcome of the case. McHenry’s Br.
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at 38. As to the REAP convictions, McHenry argues that Victim’s testimony did
not support the jury’s guilty verdict. Id. at 39. He points out that Victim did
not testify that he chased her, but rather only that he followed, and that she
could not remember certain details of the incident. Id. He also notes that
there was no testimony that he rammed her, threatened her, or “engaged in
any other reckless behavior that created a risk to her or the minor children.”
Id.
As to the simple assault and strangulation convictions, McHenry argues
that the photographs of Victim taken by the police contradicted Victim’s
testimony. He maintains that, contrary to the Victim’s version of events, they
showed that “the bruises were in different stages of healing and could not
have all occurred on the same date, and just a day or two prior to being
photographed.” Id. at 40. He asserts that the photographs also did not
support Victim’s claim that McHenry kicked her in her hips wearing boots,
stepped on her back, or pushed her face into the ground. Id. McHenry
concludes that “[i]n consideration of the voluminous contradictory testimony
and demonstrative evidence, and the lack of ability of [Victim] to testify in
more specificity or detail, the jury’s guilty verdicts are not supported by the
weight of the evidence presented on the record, and the finding of guilt shocks
the conscience and sense of justice.” Id. at 41.
“We review a trial court’s order denying a weight challenge for an abuse
of discretion.” Commonwealth v. Fallon, 275 A.3d 1099, 1107 (Pa.Super.
2022). Because the trial court heard the testimony firsthand, we must “give
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the gravest consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict is against
the weight of the evidence.” Id. (citation omitted). A weight claim requires
the defendant to first convince the trial court that “the evidence is so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017)
(internal quotation marks and citation omitted). This Court then reviews the
trial court’s decision in this regard for an abuse of discretion. Id. Further,
“[t]he weight of the evidence is 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.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.
2003) (citation omitted). “When the challenge to the weight of the evidence
is predicated on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited.” Commonwealth v. Bowen, 55 A.3d 1254,
1262 (Pa.Super. 2012) (citation omitted).
Here, we cannot say that the trial court abused its discretion in finding
the verdicts did not shock the conscience. The jury was free to believe all,
part, or none of the evidence presented in judging the credibility of the
witnesses and evidently credited the Commonwealth’s witnesses. Champney,
832 A.2d at 408. No relief is due.
McHenry next argues the trial court erred in denying his motion for a
mistrial. During Victim’s testimony at trial, she stated that after the driving
incident, Officer Noss advised her to get a Protection from Abuse (“PFA”) order
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against McHenry. N.T. Trial I, 1/19/24, at 32. The mention of a PFA came up
again later in her testimony when the Commonwealth asked her, “So you
mentioned that you did pursue getting a [PFA] against Mr. McHenry, is that
correct?” She responded, “Yes.” Id. at 50. The Commonwealth then asked,
“Is that Order still in effect?” At that point, defense counsel lodged an
objection. Id. During a sidebar discission, defense counsel moved for a
mistrial claiming the reference to the existence of a PFA was prejudicial. Id.
at 51. The Commonwealth countered that evidence of a PFA went to Victim’s
credibility as “her follow-thru that she continues to believe that she’s in danger
from Mr. McHenry.” Id. The court sustained the objection, struck the question
and response from the record, denied the motion for mistrial, and gave the
following cautionary instruction to the jury:
You have heard that there was some thought of a PFA, maybe some pursuit of it. Defense, you heard, objects to that. I’m going to sustain that objection and strike that reference, any reference to PFA from the record, mainly because it really doesn’t matter what happened in PFA proceedings, if they existed.
What matters is your judgement in this case what happened independent of that. So, really, I’m telling you that the PFA references are irrelevant. You get to make an independent decision what happened in this case from the testimony you hear in this case. So please purge that from your memory and don’t consider it.
Id. at 51-53.
McHenry argues that the trial court should have granted his motion for
a mistrial. McHenry’s Br. at 43. In his view, “the Commonwealth intentionally
elicited the testimony regarding the PFA for the purpose of prejudicing [him]
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and removing his right to a fair trial before an impartial jury.” Id. at 44. He
points out that the Commonwealth elicited testimony concerning the PFA at
two separate times. Id. at 44-45. McHenry concludes that “[t]he
Commonwealth’s actions in eliciting the information multiple times, and its
failure to adequately notify the defense of its intention to do so prior to trial,
clearly shows that it was not by mistake or happenstance, but rather an
intentional strategy to present the inadmissible and improper evidence to the
jury[.]” Id. at 45.
We review the trial court’s grant or denial of a motion for a mistrial for
an abuse of discretion. Commonwealth v. Chamberlain, 30 A.3d 381, 422
(Pa. 2011). An abuse of discretion is where the court misapplies or overrides
the law, exercises its judgment in a manifestly unreasonably way, or if its
decision is “the result of partiality, prejudice, bias or ill-will[.]”
Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008) (citation omitted).
A mistrial is required “only when an incident is of such a nature that its
unavoidable effect is to deprive the [defendant] of a fair and impartial trial.”
Commonwealth v. Bennett, 225 A.3d 883, 890 (Pa.Super. 2019) (citation
omitted). “A mistrial is not necessary where cautionary instructions are
adequate to overcome prejudice.” Chamberlain, 30 A.3d at 422.
Here, the trial court determined that the denial of a mistrial was
appropriate:
The first disclosure of PFA proceedings against [McHenry], including the securing of a PFA Order (“. . . he advised me to get a PFA on [McHenry] and I did . . .”) was
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entered into the record without objection. Therefore, the jury already knew about the PFA proceedings without objection. The second reference was the subject [of] an objection. The court sustained the objection and gave a very explicit cautionary instruction, telling the jury that the PFA result was “irrelevant” and that the jury in the present case had to determine “what happened” on their own accord, without regard to the PFA proceedings.
Trial Ct. Op. at 7 (citations to record omitted).
The trial court was within its discretion in denying McHenry’s motion for
a mistrial. The Commonwealth did not intentionally elicit the information from
the witness for the purpose of prejudicing McHenry. Rather, as the
Commonwealth stated at sidebar, the purpose of the inquiry was to strengthen
Victim’s credibility. Moreover, the trial court gave a cautionary instruction and
directed the jury not to consider the PFA in reaching its decision. We do not
believe that McHenry was prejudiced such that the “unavoidable effect [was]
to deprive [him] of a fair and impartial trial.” Bennett, 225 A.3d at 890
(citation omitted).
McHenry next argues that the trial court erred when it overruled
McHenry’s objection to Officer Noss’s testimony that the Victim’s testimony
was consistent with her statements at the time of the incident. McHenry
maintains that the testimony constituted improper bolstering and that the
court improperly admitted Officer Noss’s testimony as a prior consistent
statement. McHenry’s Br. at 29. McHenry argues that the trial court
“improperly allowed the testimony as a prior consistent statement, despite no
specific statement being referenced, and no impeachment by the defense on
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[Victim’s] testimony as being non-credible due to improper motive or lack of
memory.” Id. at 29-30. In his view, this testimony was “nothing more than
cumulative, served no other purpose than to buttress and corroborate
[Victim’s] trial testimony, and was presented to influence the jury’s weighing
of [Victim’s] testimony and credibility in favor of the Commonwealth.” Id. at
49.
Evidence of a witness’s prior consistent statement is admissible for
rehabilitation purposes if “the opposing party is given an opportunity to cross-
examine the witness about the statement and the statement is offered to rebut
an express or implied charge of . . . fabrication, bias, improper influence or
motive, or faulty memory and the statement was made before that which has
been charged existed or arose.” Pa.R.E. 613(c)(1); see also Commonwealth
v. Harris, 852 A.2d 1168, 1175 (Pa. 2004). “Admission of prior consistent
statements on such grounds is a matter left to the sound discretion of the trial
court, to be decided in light of the character and degree of impeachment.”
Commonwealth v. Bond, 190 A.3d 664, 668 (Pa.Super. 2018) (citation
omitted). We will reverse the trial court’s admission or exclusion of evidence
only for a clear abuse of discretion. Commonwealth v. Baker, 313 A.3d
1112, 1122 (Pa.Super. 2024).
For a prior consistent statement to be admissible to rehabilitate a
witness’s testimony, pursuant to Rule 613(c)(1), the claim that the witness
fabricated her testimony or has a faulty memory does not have to be explicit
or direct. Bond, 190 A.3d at 668. Rather, “it may be implied, inferred, or
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insinuated either by cross-examination, presentation of conflicting evidence,
or a combination of the two.” Id. (citation omitted).
Here, in finding that the testimony was admissible as a prior consistent
statement, the court explained:
Prior consistent statements would have been permitted to rehabilitate [Victim’s] credibility after being heavily cross[-]examined by defense counsel during which there were multiple efforts made by defense counsel to impeach her credibility . . .
[T]he entire point of the defense was to demonstrate that [Victim] was lying about the assaults. She was heavily cross[-]examined on the details and presented with videos (Ex. D-1) which the defense argued showed that the victim . . . was not limping, and was supposedly going about her business as if nothing had happened. [McHenry] testified and blanketly denied perpetrating the assaults. [McHenry] used surveillance video on cross[-]examination of [Victim] to attempt to prove that the events did not occur as described by [Victim] and to show that she was going about her day as with any other day. Officer Noss’ testimony that [Victim’s] testimony at trial was consistent with her prior statements was admissible.
Trial Ct. Op. at 7-8.
The court did not abuse its discretion in permitting the testimony. The
testimony was offered to rebut an implied charge of fabrication or faulty
memory against Victim. Moreover, even if the court erred in admitting the
testimony, we find the error was at most harmless, beyond a reasonable
doubt. There was strong evidence – including the testimony of a disinterested
eyewitness – supporting McHenry’s convictions, the record indicates McHenry
received a fair trial, and this specific portion of Officer Noss’ testimony was
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cumulative of other evidence corroborating the Victim’s testimony. See
Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super. 2004).
McHenry next argues that the trial court erred when it overruled defense
counsel’s objection to the Commonwealth’s questioning him about his failure
to present video footage from the night of January 30, 2023, the time when
Victim said she was beaten in the driveway. According to McHenry, “[t]he
Commonwealth’s questioning before the jury unconstitutionally shifted the
burden of proof from the Commonwealth’s sole burden of proving guilt onto
[him] having any burden whatsoever to prove his innocence.” McHenry’s Br.
at 50. He emphasizes that the burden of proof rested solely on the
Commonwealth and, as the defendant, he was not required to present any
evidence to prove his innocence. Id. He claims that he suffered prejudice as
a result of this questioning. Id. at 51.
The “[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Shelton, 170 A.3d 549, 552
(Pa.Super. 2017) (citation omitted). We will not find an abuse of discretion
unless the “ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.” Id. (citation
omitted).
“Cross-examination may be employed to test a witness’ story, to
impeach credibility, and to establish a witness’[] motive for testifying.”
Commonwealth v. Ballard, 80 A.3d 380, 394 (Pa. 2013) (quoting
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Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005)). “The scope of
cross-examination is a matter within the discretion of the trial court” and we
will not reverse absent an abuse of that discretion. Id. (quoting Chmiel, 889
A.2d at 527).
The trial court explained why it overruled the objection:
[Victim], on direct during the Commonwealth’s case in chief, testified that the [McHenry] deleted surveillance video of the time periods during which the assault occurred. It was admitted that the [McHenry’s] profession is the installation and maintenance of surveillance video systems. Thereafter, in [McHenry’s] case in chief, [McHenry] chose to testify. On direct, he spent significant time confirming his expertise in video surveillance.
During cross[-]examination of [McHenry], the Commonwealth followed up on this theory, which began with [Victim’s] testimony that [McHenry] . . . deleted the footage of the assault. The Commonwealth asked [McHenry] on cross[-]examination: “Where is the video from the night of Monday, the 30th, outside?” Defense counsel objected, asserting that [McHenry] did not have to prove his innocence. The court overruled the objection, noting for the jury that [McHenry] did not have to prove his innocence, but that it was cross[-] examination and that the question would be permitted.
***
The question was proper cross[-]examination, given that destruction of the video was put at issue by the Commonwealth in [its] case in chief, and given that [McHenry] waived his 5th Amendment right and chose to testify and subject himself to cross[-]examination. At no time was a burden of proving innocence imposed upon [McHenry], and this court expressly confirmed otherwise.
Trial Ct. Op. at 10-11 (citations to record omitted).
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The court did not abuse its discretion in overruling the objection. The
issue of the potential destruction of evidence was already put into issue in the
Commonwealth’s case-in-chief and McHenry chose to waive his Fifth
Amendment right and testify. The Commonwealth was therefore within its
rights to attempt to undermine McHenry’s credibility by posing the question.
Further, the court emphasized to the jury that McHenry did not have to prove
his innocence. Thus, the question on cross-examination was proper.
McHenry’s final argument is that his sentence was manifestly excessive
and the court failed to adequately consider all relevant sentencing factors.
This goes to the discretionary aspects of his sentence. “The right to appellate
review of the discretionary aspects of a sentence is not absolute, and must be
considered a petition for permission to appeal.” Commonwealth v. Conte,
198 A.3d 1169, 1173 (Pa.Super. 2018). Before reviewing the merits of
McHenry’s claim, we must determine whether:
(1) the appeal [wa]s timely; (2) the appellant has preserved his issue; (3) his brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to the discretionary aspects of his sentence; and (4) the concise statement raises a substantial question whether the sentence is inappropriate under the Sentencing Code.
Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); Pa.R.A.P.
2119(f) (stating that an appellant who challenges the discretionary aspects of
a sentence “shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence”).
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Here, McHenry timely appealed and preserved his challenge in a post-
sentence motion. He has included a Rule 2119(f) statement in his brief and
raises a substantial question claiming that his sentence is excessive and the
court failed to consider all relevant sentencing factors. See McHenry’s Br. at
26-27; Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015)
(en banc) (“an excessive sentence claim – in conjunction with an assertion
that the court failed to consider mitigating factors – raises a substantial
question”) (citation omitted). Therefore, we will address McHenry’s sentencing
claim on the merits.
McHenry argues that his sentence is manifestly excessive. McHenry’s
Br. at 26. He argues that the court failed to adequately consider all sentencing
factors, and fashioned its sentence based almost entirely on the impact on
Victim. Id. at 26, 54. He maintains that the court “gave only a perfunctory
consideration to [his] individual circumstances, including his rehabilitative
needs, his lack of criminal history, or any other specific information pertaining
to [him] necessary in fashioning an appropriate and individualized sentence
as required.” Id. at 55. McHenry contends that the court did not review any
pre-sentence investigation (“PSI”) report and did not state on the record its
reasons for sentencing him in the top of the standard range on each count.
“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.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super.
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2018) (citation omitted). An abuse of discretion occurs where “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. (citation omitted). In imposing a sentence, the sentencing court
must consider “the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).
Where the court has the benefit of a pre-sentence investigation (“PSI”)
report, we presume the court was aware of all appropriate sentencing factors
and considerations and consider the requirement that the court place its
reasoning on the record to be satisfied. Commonwealth v. Johnson-
Daniels, 167 A.3d 17, 26 (Pa.Super. 2017). In conducting appellate review,
we may not reweigh the sentencing factors and impose our own judgment in
place of that of the trial court. See Commonwealth v. Macias, 968 A.2d
773, 778 (Pa.Super. 2009).
Here, at the sentencing hearing, the court heard testimony from
McHenry, McHenry’s father, and Victim. N.T. Sentencing, 2/15/24, at 3-5, 9-
12, 14-15. It also admitted into evidence three character letters on behalf of
McHenry. Id. at 2. The court also had reviewed the PSI report4 and noted that
4 Despite McHenry’s assertion to the contrary, the record reflects that the court had the benefit of a PSI report. See N.T. Sentencing, 2/15/24, at 2-3 (wherein the court asks defense counsel if there were “any additions or corrections to the PSI report?” and counsel responds, “No additions or corrections”).
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McHenry’s prior record score was zero. Id. at 2-3, 16. Prior to imposing
sentence, the court stated:
[T]his involved the victim trying to escape, [McHenry] chasing her while she had the kids in the car, and that’s the Recklessly Endangering counts, putting the kids at risk. It was a total mess. And [McHenry] brought it on himself.
I’m going to have immediate incarceration because I am concerned with the violence of this incident, and I don’t want to subject the victim to any kind of retaliation . . .
So considering all the factors in [204 Pa.Code §] 303.11, [42 Pa.C.S.A. §] 9721, rehabilitation opportunities, punishment, protection of the victim, seriousness of the offense, the victim’s injuries, incapacitation, all those for purposes of sentencing I have considered and factor into my decision here on the sentences.
Id. at 16-17.
The court did not abuse its discretion. The court took into consideration
the protection of the public, the gravity of the offense, and the rehabilitative
needs of the defendant, as required under 42 Pa.C.S.A. § 9721(b).
Additionally, because the sentencing court considered the PSI report, we
presume the court was aware of all appropriate sentencing factors and
consider the requirement that the court place its reasoning on the record to
be satisfied. See Johnson-Daniels, 167 A.3d at 26. Because the court
sentenced McHenry within the standard range of the sentencing guidelines,
albeit at the high end of the range, we cannot conclude that the sentence is
on its face excessive or unreasonable. See Commonwealth v. Moury, 992
A.2d 162, 171 (Pa.Super. 2010) (stating “where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
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appropriate under the Sentencing Code”). Moreover, the court did not err in
imposing the sentences consecutively. A sentencing court “has discretion to
impose sentences consecutively or concurrently[.]” Id. A defendant is not
entitled to a “volume discount” for his crimes by having all his sentences run
concurrently. Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super.
1995). Accordingly, McHenry’s final claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 12/30/2024
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