Com. v. Mucci, J.

• Court: Superior Court of Pennsylvania
• Decided: November 4, 2015
• Docket: 3455 EDA 2014
• Status: Unpublished

Opinion

J-S60019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN MUCCI A/K/A GIOVANNI ROBERT MUCCI

Appellant No. 3455 EDA 2014

Appeal from the Judgment of Sentence November 25, 2014 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007521-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 04, 2015

John Mucci, a/k/a Giovanni Robert Mucci, appeals pro se from the

judgment of sentence entered in the Court of Common Pleas of Montgomery

County after a jury convicted him of aggravated assault/serious bodily

injury,1 simple assault2 and recklessly endangering another person.3 Upon

review, we affirm, primarily on the basis of the comprehensive opinion

authored by the Honorable Garrett D. Page.

Mucci’s convictions stem from a work-related incident in which Mucci

struck a co-worker in the head with a padlock wrapped in a bandanna ____________________________________________

1 18 Pa.C.S.A.§ 2702(a)(1). 2 18 Pa.C.S.A. § 2701(a)(1). 3 18 Pa.C.S.A. § 2705. J-S60019-15

following an argument over the rights to scrap wire. Mucci represented

himself at a jury trial, which took place between July 28 and 31, 2014. After

the jury found him guilty of the above charges, the trial court sentenced

Mucci to an aggregate sentence of 10 to 20 years’ imprisonment followed by

two years of probation. Mucci’s post-sentence motions were denied and this

timely appeal follows,4 in which Mucci raises the following issues,5 verbatim:

1. Whether the Commonwealth committed reversible error when they admitted evidence of [Mucci’s] pre-arrest silence?

2. Whether the Commonwealth committed reversible error by addressing [Mucci’s] post-arrest silence?

3. Whether the trial court abused [its] discretion in allowing the Commonwealth to admit into evidence a demonstrative lock and handkerchief that was allegedly used by [Mucci] and whether the trial court erred in allowing the Commonwealth to use as evidence, alleged pictures of the victim’s injuries?

4. Whether the Commonwealth committed reversible error by admitting evidence regarding a challenged pre-trial lineup?

5. Whether the Commonwealth committed reversible error by not disclosing evidence that was favorable to [Mucci]?

6. Whether the [c]ourt imposed an illegal sentence upon [Mucci] by imposing a mandatory minimum sentence?

____________________________________________

4 We note that Mucci filed his notice of appeal prior to the date on which his post-sentence motions were denied by the trial court. Pursuant to Pa.R.A.P. 905(a)(5), “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.” 5 We have renumbered certain of Mucci’s claims for ease of disposition.

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7. Whether the evidence presented was sufficient to convict?

8. Whether the verdict was against the weight of the evidence?

Brief of Appellant, at 5.

Mucci’s first three assignments of error concern the trial court’s

admission of evidence. Our standard of review with regard to such claims is

well-settled:

The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of the evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)

(citation omitted). “An abuse of discretion is not merely an error of

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.” Id. “An

abuse of discretion may result where the trial court improperly weighed the

probative value of evidence admitted against its potential for prejudicing the

defendant.” Id. at 750.

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Mucci first asserts that the trial court erred by admitting evidence of

his pre-arrest silence.6 Specifically, Mucci objects to a statement by Officer

Brian Richard on direct examination that, prior to his arrest, Mucci declined

Officer Richard’s request to speak with him.

Both the Fifth Amendment of the United States Constitution and Article

I, Section 9 of the Pennsylvania Constitution protect an individual’s right not

to be compelled to be a witness against himself. Commonwealth v.

Lettau, 986 A.2d 114, 117 (Pa. 2009) (citation omitted); see also

Miranda v. Arizona, 384 U.S. 436 (1966). The Commonwealth may not

use pre-arrest silence as substantive evidence of guilt when a defendant

chooses not to testify. Commonwealth v. Molina, 33 A.3d 51, 63 (Pa.

Super. 2011). Nevertheless, “an appellant can open the door to the

Commonwealth using his or her pre-arrest silence under the ‘fair-response

doctrine’ even when the appellant does not testify.” Commonwealth v.

Fischere, 70 A.3d 1270, 1278 (Pa. Super. 2013).

Here, the trial court concluded that Mucci’s claim fails for three distinct

reasons: (1) he waived the issue by failing to make a timely objection; (2) ____________________________________________

6 In his statement of questions involved, Mucci also raises a claim regarding the alleged improper statements by the Commonwealth regarding his post- arrest silence. However, as the Commonwealth correctly notes in its counterstatement of questions involved, Mucci fails to develop any argument on this issue. Accordingly, the claim is waived. See Pa.R.A.P. 2119(a); Commonwealth v. Burton, 770 A.2d 771 (Pa. Super. 2001) (failure to develop argument results in waiver). Even if Mucci had not waived this claim, it would be meritless for the reasons set forth in Judge Page’s opinion.

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his opening statement “opened the door” to fair response by the

Commonwealth; and (3) the testimony regarding Mucci’s pre-arrest silence

was not offered as evidence of his guilt. Upon review of the record in this

matter, in particular the trial transcripts, as well as the briefs of the parties

and the applicable law, we conclude that the trial court has thoroughly and

accurately disposed of this issue. Accordingly, we affirm on the basis of

Judge Page’s opinion.

Mucci next asserts that the trial court erred in admitting the

demonstrative evidence of the Master lock and bandanna. He also asserts

that the court erred in allowing the Commonwealth to admit photographs of

the victim’s injuries because, he claims, they were not properly

authenticated.7

Demonstrative evidence is tendered for the purpose of rendering other

evidence more comprehensible to the trier of fact may and may be admitted

if its relevance outweighs any potential prejudicial effect. Commonwealth

v. Serge, 896 A.2d 1170, 1176 (Pa. 2006). The offering party must

authenticate such evidence, which may be accomplished by the presentation

of other evidence, such as witness testimony, sufficient to support a finding

7 In the argument portion of his brief, Mucci also argues that the photographs were prejudicial and inflammatory and also “because of the prosecutorial misconduct where the prosecutor failed to turn over this exculpatory evidence in a timely fashion.” Brief of Appellant, at 23. None of these objections were raised at trial and, accordingly, are waived.

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that the matter in question is what its proponent claims. Id.; see Pa.R.E.

901(a). The overriding principle in determining if any evidence, including

demonstrative, should be admitted involves a weighing of the probative

value versus prejudicial effect. Serge, supra. The trial court must decide

first if the evidence is relevant and, if so, whether it is more probative than

prejudicial. Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998).

With regard to the pictorial evidence of the victim’s injuries, it is well-

settled that:

A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury[.]

Commonwealth v. Braithwaite, 385 A.2d 423, 426 (Pa. Super. 1978)

(citations omitted).

Here, the trial court concluded that both the padlock/bandanna and

the photographs were properly authenticated by witnesses at trial and the

question whether either exhibit represented what it was purported to

represent was a question of fact for the jury to weigh. We rely on Judge

Page’s opinion in finding this claim to be without merit.

Mucci next alleges that the trial court erred by admitting evidence

regarding a pre-trial photographic lineup. Specifically, the victim made

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reference to the fact that the police had asked him to come down to the

station and view a photo lineup.8 Mucci asserts that the reference to the

lineup was: (1) unnecessary, as his identity was not in dispute and (2)

prejudicial because “the jury could possibly make the inference that he was

‘in the system’ so to speak, which would show that [he] was either arrested

or convicted [previously].” Brief of Appellant, at 19.

In its opinion, the trial court concluded that, although the photo lineup

was irrelevant to the Commonwealth’s case and the testimony was therefore

improper, Mucci was not prejudiced by the victim’s reference to the lineup

and, therefore, its admission was harmless error. Because the reference

was fleeting, we agree that there is no reasonable probability that the error

contributed to Mucci’s conviction. See Commonwealth v. Wood, 637 A.2d ____________________________________________

8 The brief exchange between counsel for the Commonwealth and the victim was as follows:

Q: So when did you go to the police station?

A: After being released from Mercy Suburban, I returned home to Westville. At that point, an officer from the Whitpain Township police contacted my telephone and asked me if I could come back to look at a lineup, a photo lineup to identify the defendant.

N.T. Trial, 7/29/14, at 37. The Commonwealth immediately moved on after Mucci objected. Although Mucci claims that the trial court had previously instructed the Commonwealth to refrain from making any reference to the photo lineup, this assertion is incorrect. At a hearing on pre-trial motions, the trial court deferred ruling on Mucci’s motion to exclude the lineup, indicating only that it was “leaning towards not letting it in.” N.T. Pre-Trial Motions Hearing, 7/23/14, at 72.

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1335, 1351 (Pa. Super. 1994). Accordingly, we affirm on the basis of the

trial court’s analysis.

Next, Mucci claims that the Commonwealth committed a Brady9

violation by not disclosing evidence that was favorable to him. Mucci asserts

that the Commonwealth failed to turn over video from a nearby Giant

grocery store showing him “calmly walking up and down aisles searching for

first aid care, which is contrary to the Commonwealth’s theory that [Mucci]

immediately fled the scene.” Brief of Appellant, at 34.

Under Brady and subsequent decisional law, the Commonwealth has

an obligation to disclose all exculpatory information material to the guilt or

punishment of an accused, including evidence of an impeachment nature.

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013), citing

Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa. 2011). To

establish a Brady violation, an appellant must prove three elements: (1)

the evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by

the prosecution, either willfully or inadvertently; and (3) prejudice ensued.

Id. However, “[n]o Brady violation can occur where the evidence is

available to the defense through non-governmental sources, or, with

9 Brady v. Maryland, 373 U.S. 83 (1963).

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reasonable diligence, the defendant could have discovered the evidence.”

Commonwealth v. Carson, 913 A.2d 220, 245 (Pa. 2006).

Here, the trial court concluded that the evidence in question: (1) was

not suppressed by the Commonwealth; (2) was equally available to the

defense through non-governmental sources, i.e., Giant grocery store; (3)

was not exculpatory; and (4) would not have affected the outcome of the

trial. We agree with the trial court’s analysis and affirm on that basis.

Next, Mucci claims that his sentence was illegal and unconstitutional

under Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that

any fact triggering the imposition of a mandatory minimum sentence must

be treated as an element of the offense, submitted to the jury, and proved

beyond a reasonable doubt. Mucci is entitled to no relief.

Here, Mucci received a mandatory minimum “second strike” sentence

under section 9714(a) of the Sentencing Code, which provides, in relevant

part:

Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. . . .

42 Pa.C.S.A. § 9714(a). Because Mucci had been previously convicted of

robbery and burglary, defined as crimes of violence under section 9714(c),

his instant conviction for aggravated assault constituted a second strike

under the statute and he was sentenced accordingly.

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In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the

Supreme Court held that the fact of a prior conviction was not an element of

the crime required to be charged in the indictment. In dicta, the Court

noted that the defendant

makes no separate, subsidiary, standard of proof claims with respect to his sentencing, perhaps because he admitted his recidivism at the time he pleaded guilty and would therefore find it difficult to show that the standard of proof could have made a difference to his case. Accordingly, we express no view on whether some heightened standard of proof might apply to sentencing determinations which bear significantly on the severity of sentence.

Id. at 247. However, in subsequent cases addressing the Sixth Amendment

and Due Process implications of facts increasing the prescribed range of

penalties, the Court left the prior-conviction exception intact. See

Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne, supra.

Accordingly, proof of Mucci’s prior convictions was not required to be placed

before the jury and his sentence is not illegal.

Mucci next challenges the sufficiency of the evidence to support his

convictions.

In challenges to the sufficiency of the evidence, our standard of review is de novo, however, our scope of review is limited to considering the evidence of record, and all reasonable inferences arising therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner. Evidence is sufficient if it can support every element of the crime charged beyond a reasonable doubt. The evidence does not need to disprove every possibility of innocence, and doubts as to guilt, the credibility of witnesses, and the weight of the evidence are for the fact-finder to decide. We will not disturb the verdict unless the evidence is so weak and inconclusive that as a matter of law

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no probability of fact may be drawn from the combined circumstances.

Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (internal

citations and quotation marks omitted).

Upon review of the record, the briefs and the relevant law, we

conclude that Judge Page thoroughly and correctly addresses this claim in

his opinion, and we affirm on that basis.

Finally, Mucci asserts that the verdict was against the weight of the

evidence. Our standard of review of such a claim is as follows:

Appellate review of a weight claim is a review of the [trial court’s] exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination [as to whether] the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted). Moreover,

A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. 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. It has often been stated that a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.

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Commonwealth v. Best, 2015 Pa. Super. LEXIS 409, *25 (Pa. Super.

2015) (internal citations and quotation marks omitted).

Here, the trial court reviewed the evidence adduced at trial and found

that “[v]ery little of the testimony was contradictory and favorable to

[Mucci].” Trial Court Opinion, 2/10/15, at 28. Accordingly, the court

concluded as follows:

Given the amount of uncontradicted evidence presented by the Commonwealth that [Mucci] was the sole aggressor, the severity of the injuries sustained by [c]omplainant, [Mucci’s] potential access to the truck after the altercation, and Fred[ Mignogna’s] testimony that he heard Shawn say to [Mucci], “What did you hit [complainant] with?” at the time of the incident, the undersigned did not find . . . the verdict of guilty to be shocking to one’s sense of justice.

Id.

Upon review of the record, we can discern no abuse of discretion on

the part of the trial court in concluding that the verdict was not against the

weight of the evidence.

Judgment of sentence affirmed.10

10 As we have affirmed in large part on the basis of Judge Page’s opinion, the parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/4/2015

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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DJVJSJON

COMMONWEALTH OF PENNSYLVANIA

·., No. 7521-2012 ~ \'S. °"Tl ~ C-: '•·~ 3381 EDA 2014 :;J 6 :::_ -O~o~ GIOVANNI MUCCI n'l~"YJ-' 0 :::e~-,,o ;a:....... -,, -0 >-

Page, J. February I 0, 2015

FACTS AND PROCEDURAL HISTORY

On November 26, 2012, Appellant Giovanni (John) Mucci was charged with Aggravated

Assault/Serious Bodily Injury (18 Pa.C.S.A. § 2702(a)(l)), Aggravated Assault/Bodily Injury

with a Deadly Weapon (18 Pa.C.S.A. § 2702(a){4)), Possessing Instruments of Crime (18

Pa.C.S.A. § 907(a)), Simple Assault (18 Pa.C.S.A. § 270l(a)(l)), and Recklessly Endangering

Another Person ("REAP") (18 Pa.CS.A. § 2705). Appellant represented himself before a jury at

the ensuing trial which took place between July 28, 2014 and July 31, 2014. The jury was

presented with the following evidence:

On September 5, 2012, Appellant was employed as a contractor at "G" · World

incorporated. Also employed were Brian Goodwin (hereinafter "Complainant") and Shawn

Goodwin, father and son. It was Complainant's first day on the job, and the crew was charged • • ••• - --·- .. - _ .... ·- • - • - • • .... -~ -~-- ff - ·~ • .. ••• - -- • ... - • -- • -· - .•• •••••• .•• •

with doing demolition work on what was once a Blockbuster Video and soon to be a Pet

Supplies Plus. Also present were two of the crew's supervisors, Fred Mignogna and Keith

Linker. Complainant, the Commonwealth's first witness, testified that on his first day of work,

he asked Keith if he was able to salvage the scraps of copper wire from the worksite for their Circulated 10/20/2015 04:09 PM

resale value. He was told that he could not, as the company policy was for the company to retain

0) the scraps. Complainant testified that he did not converse with Appellant that day regarding the

scrap wire.

The next day, September 6, 2012, at around 6:30am, Complainant arrived at the worksite

with his son, Shawn. Appellant had arrived with Fred in the company truck, which was parked

about twenty feet away from the Goodwin's vehicle. Complainant testified that while Fred was

away from his truck, Complainant and Shawn approached Fred's truck to gather their tools for

the day. Appellant started an argument with Complainant about the rights to the scrap wire,

blaming Complainant for inquiring about it the day before. Towards the end of the disagreement,

Appellant said, "You don't know who I am," to which Complainant responded, "I've probably

forgotten more than you know." Trial Tr. 20:4-19, July 29, 2014.

After the verbal exchange, Complainant looked away to continue gathering tools, and

was caught unawares when Appellant struck him on the left side of his head. Complainant

testified that he felt one hit and became "shaken and woozy," and that "it was only afterwards I

felt the other ones." Id. at 22:3-6. Complainant never testified exactly how many times he was

struck by Appellant. Complainant then pushed Appellant towards the open door of the truck, and

saw Appellant discard onto the passenger floor a Master padlock wrapped in a bandana, which

unraveled onto the floor. (A demonstrative padlock and bandana were admitted into evidence as

C-2 and C-3 and published to the jury.). Complainant defensively wrapped his arms around

Appellant, and both Shawn and Fred intervened to break up the fight. Once the parties separated,

Complainant testified that Appellant, while walking away, said to him, "Do yourself a favor,

don't pursue this, do not call the police." Id. at 30: 18-19.

2 Circulated 10/20/2015 04:09 PM

lJ~ Ct ·; DI ;, Complainant testified that he and Shawn left the scene, but returned after calling 911. i! ~) Police took photographs of the area (admitted as C-1) and of Complainant's injuries (admitted as l i~ .~l C-4 through C-7). The photographs showed that there was blood on his car and that his shirt was ' •, ~, :-•

-, torn.

?>~ Complainant then went to the hospital and received stitches in his ear.. His jaw was ~!I ,.. broken.' Screws were inserted into his gums and his jaw was wired shut, which restrained him to 't/1 :i a diet of liquid foods for thirty-one days. The medical records from the hospital that day and his

subsequent visits to. medical facilities were admitted as C-15 to C-17. Sometime after. the

hospital, Complainant went to· a police station, where more pictures taken (C-8 through C-10),

showing a contusion and slight cut on his ribcage. When he returned home that day,

Complainant's wife took more photographs of his injuries (C-l l through C-14).

On cross-examination, Complainant said he may have told the officer on the scene that he

believed Appellant "may [have been] or were coming back to the job site for the wire." Trial Tr.

59:11-12, July 29, 2014, but also that "I never said that your [sic] were thinking of taking the

wire." Id at 60:15-16, and then "My statement was 1 didn't say you were stealing it, J said you

had other motives for the wire at the time." id. at 64:2-4. Appellant also confronted Complainant

with a statement that Complainant made to a Sergeant Fenncrty directly after the incident

(admitted as 0-1 ), in which Complainant said that he had been hit once, and his medical records

which indicated that he told medical personnel that he had been hit in the jaw, the ribs, and the

skull.

Shawn Goodwin, Complainant's son, was next to testify. He corroborated his father's

story that on September S, 2012, Complainant asked Keith if he was able to retain the scrap

metal, and was told that he could not. On September 6, 2012, after arriving to the job site with I Complainant suffered a fractured left mandible. Circulated 10/20/2015 04:09 PM

lll Cl DI :1 his father and approaching Fred's truck to retain tools, he heard Appellant begin an argument

.,~ with Complainant about the scrap wire, and saw Appellant retrieve something from his back

~l pocket and take a swing at Complainant. Shawn did not know at the time whether his father was

struck. Shawn tried to break up the fight, but Appellant resumed the attack. Shawn saw .•, tt) Complainant "bear-hug" Appellant, who was still swinging the bandana. Fred ran over to the

group .and pulled Appellant away. Shawn saw Appellant throw the bandana on the floor of the ':.11 truck, and saw a padlock tumble out. Shawn testified that Fred told them that they were all fired

and should leave, and that Appellant was yelling at them not to call the police.

:J Keith Linker testified that on September 5, 2012, Complainant asked him about the scrap

i metal, which Keith said was a common occurrence on any laborer's first day. Towards the end of

the day, Keith saw both Complainant and Appellant standing next to the scrap pile, having some

son of argument. Keith could not hear what the argument was about, and it did not escalate.

On September 6, 2012, Keith arrived on the worksite after the altercation had occurred

and the Goodwins had left the scene. Keith testified that Appellant had a small cut, and that

Appellant asked about where to get a new t-shirt, as his was ripped and had blood on it. Keith

advised Appellant to go to the Giant supermarket in the same strip mall.

Fred Mignogna testified that he left work early on September 5, 2012, and did not

observe any of the parties discuss scrap metal or get into any arguments. On September 6, 2012,

he drove Appellant to the site and was away from the truck, setting up the worksite, when he

heard a scuffle. He described the scene as "three people going at it." Trial Tr. 28:5-6, July 30,

2014. He also heard Shawn say to Appellant, "What did you hit him with?" Id. at 4 I :21. Fred

pulled Shawn away, and then inserted himself between Complainant and Appcllant.2 He heard

Shawn say to Appellant, "My boys from North Philly will be down to get you." Id. at 36:4-5.

2 Fred testified that Shawn was pulled off first because he was "on top of the pile." Trial Tr. 35:20, July JO, 3014.

___ l,f•.,_ ~_ Circulated 10/20/2015 04:09 PM

tJl q QI ;1 Fred did not witness anyone throw a punch or sec any weapons. He observed some blood

~) on Appellant, but wasn't sure whose blood it was. He told all three workers to leave the ~!) )3 premises. Appellant left a small backpack in Fred's truck. After the police arrived, Fred called ·!..,

r• Appellant, who did not return to the site. Fred testified that the Goodwins' vehicle had been -~!I •, JI l>:t parked approximately twenty-five 10 thirty feet away from his truck. · .~~ ,.. Officer Brian Richard, the final witness, testified that when he arrived on the scene, he 01

interviewed the Goodwins and Fred Mignogna. He located a bag belonging to Appellant in

Fred's truck, but no padlock or bandana were recovered. He searched the area for other

witnesses, but found none. He searched the Giant for Appellant, but Appellant could not be

located. He received a call from Appellant at approximately 9:00am, but Appellant did not return

to the scene.

Appellant did not testify or call any additional witnesses for his defense. The jury

returned a verdict of guilty for the charges of Aggravated Assault, Simple Assault, and· REAP.

The jury found Appellant not guilty of Aggravated Assault· with a Deadly Weapon and of

Possessing Instruments of Crime. Accordingly, Appellant was sentenced on November 5, 2014,

to ten to twenty years imprisonment and two years of concurrent probation, and was ordered to

pay restitution. Appellant, still acting prose, filed several post-sentence motions for relief, which

were denied, and filed notice of the instant appeal on December 9, 2014.

5 Circulated 10/20/2015 04:09 PM

Ol Cl DI ;1 ISSUES

In his Statement of Matters Complained of on Appeal, Appellant contends the following:

I) The defendant's rights were violated when the prosecutor committed reversible error when she introduced evidence of defendant's pre-arrest silence. This is a violation to [sic] Article 1 Section 8 and 9 of the Pennsylvania Constitution and to [sic] the 4t\ s", 6th and 14th -. Amendments of the United States Constitution. 2) The defendant's rights were violated when the prosecutor committed reversible error when she introduced evidence of defendant's post-arrest silence. This is a violation to [sic] Article 1 Section 8 and 9 of the Pennsylvania Constitution and to (sic] the 4th, 5th' 6'\ and 141h Amendments of the United States Constitution. 3) The Court abused its discretion when they [sic] allowed certain evidence to be admitted that was prejudicial and inflammatory. Specifically, defendant argues that the Court should not have allowed the Commonwealth to admit a demonstrative lock and hankerchief [sic) that was allegedly used by the defendant as well as photographs of the victims [sic] injuries that were never authenticated, timed or dated. This is a violation to [sic] Anicle 1 Section 8 and 9 of the Pennsylvania Constitution and to [sic] the 4th and 14th Amendments of the United States Constitution. 4) The defendant argues that there was insufficient evidence to sustain a conviction for the charges of Aggravated Assault, Simple Assault and Recklessly Endangering Another Person. Defendant argues that the Commonwealth did not prove beyond a Reasonable Doubt that he acted with the intent and recklessness that is required to sustain a conviction. Defendant also argues that the Commonwealth did not prove beyond a Reasonable Doubt that he did not act in self-defense. This is a violation to [sic] Article I Section 8 and 9 of the Pennsylvania Constitution and to the 4th and I 41h Amendments of the United States Constitution. 5) The defendant did not receive a fair trial in that the verdict was against the weight of the evidence. The Commonwealth did not meet the burden of establishing the appropriate mens rea (intent) that is necessary to sustain a conviction for aggravated and simple assault nor did they meet the burden of establishing the required clement of recklessness that needs to be proven to sustain a conviction-for rcckleifsly·enaange·riii1f another" person: This is a violation Lo [sic] Article I Section 8 and 9 of the Pennsylvania Constitution and to the 4th and 14th Amendments of the Pennsylvania Constitution. 6) The defendant argues that the prosecutor committed reversible error when she introduced evidence of a pre-trial photo lineup that was presented to the victim at the police station. This was prejudicial to the defendant and played a factor in the jury's decision. This was a violation to [sic] Article

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1 Sec-lion 8 and 9 of the Pennsylvania Constitution and to [sic] the 4th and l 41h Amendments of the United States Constitution . .)) The defendant argues that his rights were violated when it was revealed 7) that the Affiant and Commonwealth did not make defendant aware that evidence existed that was favorable to his defense. This is a violation to [sic] Article I Section 8 and 9 of the Pennsylvania Constitution and to ,.. [sic] the 41\ 6'\ and l 41h Amendments of the United States Constitution. 8) The defendant argues that his rights were violated when the trial Court refused to grant him a mistrial when he objected to the presentation of his pre-arrest and post-arrest silence as well as when it was brought to the attention of the trial Court that the Alfiant and the Commonwealth were iq, aware of favorable evidence to the defendant and foiled to disclose this to the defendant. This is a violation· to-(s1c] Article I Section 8 and 9 ·onnc - -·-··- .. - - ··- .... -- Pennsylvania Constitution and to [sic] the 41\ 5•h, 61", and l 41h Amendments of the United States Constitution. 9) On November 251\ 2014, defendant was sentenced to serve a minimum· sentence of al least 10 years in a state correctional institution. Defendant argues that the imposition of the mandatory minimum sentence is unconstitutional under the precedent of Alleyne vs. United States 133 S.Ct. 2151, 186 L. Ed. 2d. 314 (2013) in that a) Pennsylvania maintains that the defendant docs not have to be notified prior to conviction that the Commonwealth would be looking to impose a mandatory sentence. Alleyne says that they do. b) That a judge must determine the applicability of the mandatory sentence by a preponderance of the truth. Alleyne says that a jury must determine the applicability or the mandatory sentence beyond a reasonable doubt. c) Pennsylvania maintains that a defendant does not have to be charged with a crime whose statute includes the clement that would trigger the mandatory sentence. Alleyne says that they must. d) Pennsylvania's repeat offender suuutc doesn't consider merely prior conviction but violent prior convictions. To that extent, Alleyne does arguably render repeat felon mandatory sentences unconstitutional insofar as the statute depends upon the character of the crime. 10) Defendant maintains that he should not be held to pay restitution in that · the attached hospital bills were not introduced into evidence during the . trial. . . . .. ' •j ;I., This opinion will not address Appellant's eighth issue, as it is redundant with Appellant's first,

second, and fourth issues.

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Ol q Pl :1 ANALYSIS Q~ I. Officer Richard's reference to Appellant's pre-arrest silence did not violate Q' Appellant's rights. r.J ·i ·,.~. I I I I Appellant asserts that his right against self-incrimination was violated during direct ' .,, Q~ I I examination of Officer Richard, who testified that prior to Appellant's arrest, Appellant refused ,., 11, ,.~ I I to answer the officer's questions about the event because Appellant wanted to speak to a lawyer.' ci, ti Appellant made no objection during the testimony, and on cross-examination pressed the officer

for further details." Al the close of the Commonwealth's case in chief, Appellant made a motion

for mistrial based on this portion of the officer's testimony, which was denied. Trial Tr. 76-80,

July 30, 2014. Appellant renewed his objection in a post-sentence motion.

To the extent that Appellant's challenge involves a constitutional right, it is a question of

law. Therefore, the appellate court's standard of review will be de nova, and its scope of review

will be plenary. Commonwealth v. Adams, I 04 A.3d S 11, 517 (Pa.2014).

) Officer Richard's testimony on direct examination included the following: I asked him ifhe would come in and speak to me, I would like to get his side of the story because I only had the one half of the story from the one side of the disturbance, and to gather all the information I had to get both sides of the story. And he said - he refused, and he said he wanted to speak to his lawyer and that he would contact me at a later date and I had to - I didn't hear from him. Trial Tr. 47-48, July 30, 2014. On direct examination, Fred Mignonga also testified to the following: I told him that they wanted him to come back [to the job site I and explain what happened. He said no, he didn'ttrust them. Id. nt 30:13-15. ~ During Appellant 's' cross-examination of Officer Richard, the following exchange transpired: Q: Isn't it true that I called your personal cell phone and told you that they jumped me and this whole thing was because they were the ones trying to steal the wire? A: I don't know if you called the station. I believe you called the station. Q: I think I spoke with you on your cell phone. A: Did you? Okay. Q: And I proclaimed my innocence and I told you that I was going to tum myself in, correct? Isn't that correct? A: It has been awhile, so [sic}. I remember asking you to come in and give your side of the story, you refused and told me you wanted to speak to a lawyer. And that was pretty much the extent of the conversation. Id. at 59.

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ti~ {! DI :1 I Appellant's argument fails for three reasons: he waived the issue by failing to make a

Q;1 -I Q[l I I contemporaneous objection, his opening statement "opened the door" for the testimony, and the

~. ·~ bl

...... testimony regarding Appellant's pretrial silence did not imply a tacit admission of guilt. First, it

is "well-settled that a defendant's failure to object to allegedly improper testimony at the

,~·~~ ~? ' appropriate stage in the questioning of the witness constitutes waiver." Commonwealth v q\l I II J.~t !1 Molina, 33 A.3d 51, 55 (Pa. Super. Ct. 2011) (quoting Commonwealth v. Redel, 484 A.2d 171, 01 l 175 (1984)), aff'd, 104 A.3d 430 (Pa. 2014). For example, in Commonwealth v, Molina, the 11 defendant refused to cooperate with investigators, and the Commonwealth instructed the jury

members during its closing argument that they should consider that factor to conclude the

defendant was guilty. Id. The defendant properly objected to the prejudicial statements made

during the Commonwealth's closing argument. Id. However, the Superior Court found, and the

Supreme Court affirmed, that the defendant's lack of objection during the direct examination of

the detective waived any challenge to the testimony itself. Id at 55-56.

In the instant case, Appellant failed to object during the course of direct examination of

Officer Richard.5 Instead, during cross-examination, Appellant recalled the pre-arrest

conversation and attempted to expound upon it. Appellant therefore waived his right to challenge

the testimony.

Second, Appellant opened the door for testimony regarding his pre-arrest statements to the

police during his opening argument. In United States v. Robinson, defense counsel, during his

closing argument, asserted that the government had not allowed ihc defendant to tell his side of

s In his post-sentence motion, Appellant claims he made a timely objection which was "sustained" by the Court. Appellant in fact made no objection during the officer's testimony, but first made a motion for mistrial after the Commonwealth rested and the jury was recessed. Trial Tr. 70, July 30, 2014.

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fl~ Ct 01 :, the story. 6 485 U.S. 25, 26 ( 1988). ln response, the prosecutor, during his closing argument,

declared that the defendant "could have taken the stand and explained it to you." Id. The

Supreme Court of the United States held that defense counsel's suggestions to the jury had ,.. opened the door to the prosecutor's comments. Id. at 31-32;7 see also Locke/Iv. Ohio, 438 U.S.

586 (1978) (holding that where defense counsel informed the jury during opening argument and

during the defense case in chief that the defendant would testify, and where defendant did not

testify, and where the prosecutor remarked in his closing argument that the evidence was

uncontradicted, the prosecutor's comments, taken in context, did not violate defendant's right to

remain silent); Commonwealth v. DiNicola, 866 A.2d 329, 336 (Pa. 2005) (applying Robinson's

fair response doctrine and finding that an investigator's testimony on cross-examination that

defendant had invoked his right to remain silent was a fair response to defense counsel's

allegations on direct examination that his investigation was flawed.).

Here, the Commonwealth's questioning of Officer Richard about his conversation with

Appellant was a fair response to allegations made by Appellant in his. opening statement. ·In his

opening statement, Appellant claimed he had a conversation with Officer Richard on the day or the event, in which Appellant denied being the initial aggressor." See Trial Tr. l 02- l03, July 28,

"Defense counsel in Robinson most explicitly referred to the defendant not having an opportunity to explain himself in the statements made to the police during the investigation, but was taken by the Court to refer also to his lack of opportunity to explain himself during the trial. United States v. Robinson. 485 U.S. 25, 28 n.2-31 ( 1988). 7 "In the present case it is evident that the prosecutorial comment did not treat the defendant's silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case .... (W)here as in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege [against compulsory self-incriniinauon]." Id. at 32. 3 Appellant's opening statement included the following: I take it a step further, I said please put the cop on, put the cop n (sic). I talked to a cop. I believe his name was Officer Richard. I said, listen, what's going on over there? He said this guy said you beat him up with a lock. I said, I didn't beat that guy up with a lock. I said this whole thing is because I demoted him in front of his son, hurt his ego, because I stopped him and confronted him from stealing the wire and because - pretty much trying 10 have him tired, and because Keith had

II Circulated 10/20/2015 04:09 PM

2014. Appellant also contended that he had offered to turn himself in to the police. Id. at 104.

Appellant offered this information to allow the jury to conclude his innocence. See id ("] called

the police officer, I said listen, I'm going to tum myself in. What kind of guilty person does that? .' Calls the police officer on his personal cell phone number and says 1 am going to tum myself

in.").9 By including these assertions in his opening statement, Appellant was indicating that he

,.. would be offering evidence during trial of the contents of the conversation, presumably through CJ1

his own testimony and that of Officer Richard. Although Appellant never took the stand, it was

only fair that the prosecutor, in response to such allegations, question the officer on their

veracity. Appellant cannot ask the jury to conclude innocence based on the contents of a

telephone conversation, and then object to evidence of the opposite. See OiNicola, 866 A.2d at

336.

Third, the testimony did not offend Appellant's right against self-incrimination because it

was not offered as evidence of Appellant's guilt. For example, in Molina, the testimony stating

that defendant had refused to cooperate with investigators was offered as evidence of the

evolution of the investigation. Molina, 33 A.3d al 56 ("The revelation of silence in this case was

limited to its context. The trooper revealed the exchange with Molina wherein a denial or

wrongdoing was immediate, and the decision to engage in further discussion with the trooper

was declined. ln this situation, the reference to silence was not used in any fashion that was

likely to burden Molina's Fifth Amendment right or lo create an inference of an admission of

to stop the job site and confront him about that. That's why he attacked me. Not the other way around. So when the police officer tells me, he's saying that you hit him with a Jock and we're going 10 charge you with aggravated assault, possession of an instrument of crime, simple assault, recklessly endangering another person and so on, okay. I said listen, I said this is a little bit too much. I said I'm going to have to call you back. Trial Tr. 102-03 July 28, 2014. 9 There is a discrepancy in Appellant's opening statement about how he contacted the police. He first asserted that he called the cell phone of Fred Moligna and asked him to "put the cop on." Moments later, he stated that he called the officer on his personal cell phone. The officer's testimony only alluded to one telephone call.

II

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guilt."); see also Adams, 104 A.3d at 517 (quoting Ditiico!a, 866 A.2d at 337) ("While we have

Q) interpreted the constitutional right against self-incrimination generally to prohibit prosecutors

from referencing a defendant's silence as substantive evidence of guilt, this Court has also -. concluded that the right against self-incrimination is not burdened when the reference to silence ·,... is 'circumspect' and does not 'create an inference of an admission of guilt."').

The prosecutor in the instant case did not refer to Appellant's statements to Officer

Richard during her closing argument, let alone instruct the jury to use Appellant's statements to

conclude Appellant's guilt. The context was limited to rebutting Appellant's claim that he should

be presumed innocent because had offered to tum himself into the police, when, according to the

Commonwealth's witness, he had not.

II. The Commonwealth's reference to Appellant's post-arrest silence was harmless error.

During the Commonwealth's closing argument, the prosecutor alluded to Appellant's

decision not to testify. Appellant made a timely objection, which was sustained by the Court.10

10 The conversation consisted of the following: {The Commonwealth); That is what I told you that l would prove to you during the course of this trial. Ladies and Gentleman, that is what I have proven to you. The defendant made a lot of claims in his opening and closing. Did you sec any evidence about the claims that the defendant made? He was attacked first and that he acted in self-defense? Absolutely not, Ladies and Gentleman. There is absolutely no evidence of any of that that came in through this witness stand. The defendant didn't come up onto this witness stand and swear to tell the truth, the whole truth and nothing but the truth like all of my witnesses did. I didn't have a chance to cross-examine the dcfcndant;·usk-him-qucstions about his-story. And surcrthe -defendant has-a right not to ·take the- stand al a criminal trial, but you cannot consider anything that he argued about in his opening and closing- [Appellant]: Can I object, Your Honor? The Court: Hold on, Ms. O'Brien. [Appellant): I have the right not 10 take the stand, Your Honor. I object to that. (The Commonwealth): Your Honor, I said that. The Court: But stay away from that argument. So sustained to the point that you are not to consider, Ladies and Gentleman, any election by the defendant not to take the witness stand . He has an absolute right not to testify in his case. Proceed. [The Commonwealth]: Absolutely, Ladies and Gentleman. The defendant has the right not to testify in this trial, however, the judge is going to instruct you at the close of this, of my argument,

I I ii., Circulated 10/20/2015 04:09 PM ii ~:i q 01 ;1 Appellant renewed his objection in a post-sentence motion, and now again challenges the

0) prosecutor's statements on appeal. Because the prosecutor's statements constituted harmless q~ error, Appellant should not be granted a mistrial on appeal. ·.,.~' I'>~

Any reference made at trial to a defendant's post-arrest silence is potentially prejudicial .. ' ~!I 11 1, !, ·. l'>l :1 to the defendant, as jurors might interpret a defendant's silence as an implicit admission of guilt. ,I . IJ~ i ~, ;,.- · 1 Commonwealth v. Clark, 626 A.2d 154, 156 (Pa. 1993) (citing Commonwealth v. Turner, 454

A.2d 537, 540 (Pa. 1982)). However, such improper references to post-arrest silence are subject

to harmless error analysis. Commonwealth v, Spots, 870 A.2d 822, 833 (Pa. 2005). To rise to the

level of reversible error, the remark must be such "that its unavoidable effect would be to

prejudice the jury, forming in their minds fixed bias and hostilitytowards the defendant, so that

they could not weigh the evidence and render a true verdict." Commonwealth v. Ervin, 766 A.2d

859, 864 (Pa. Super. Ct. 2000); see also DiNicola, 866 A.2d at 336-37 (quoting Commonwealth

v. Whitney, 708 A.2d 471, 478 (Pa. 1998)) ("Even an explicit reference to silence is not

reversible error where it occurs in a context not likely to suggest to the jury that silence is the

equivalent of a tacit admission of guilt.").

An error is harmless where the uncontradicted evidence of guilt is so overwhelming, that

by comparison the error is insignificant. Commonwealth v. Milche/1, 839 A.2d 202, 214 (Pa.

that arguments of counsel arc just that, they're arguments. They arc not evidence. So anything thal 'the defendant argued about to you-in his· opening-and closing.-Tbcyanacked me- first. I acted in-· self-defense. Thal is an argument. That is not evidence. And I.ask you 10 please follow the judge's instruction and do not consider thal. That did not come in through the witness stand. Closing Arg. Tr. 34: 15-36: JO. The prosecutor made similar statements later in her closing argument Now, as I told you before, the judge is going to instruct you [sic] the defendant's opening and closing arguments, those arc noi evidence and you arc not 10 consider them as such. Thal is exactly what the judge is going to instruct you. The defendant did not swear on the bible to tell the .: :1 truth in this case. I-le was not subject to cross-examination. He can't just throw out these theories and not back it up with evidence. There is absolutely nothing to back of the defendant's version of -I events that he was somehow pummeled by the victim and his son and acted in self-defense. There I is no evidence of that. Id. at 46:5-17.

13 Circulated 10/20/2015 04:09 PM 'I (!l !I (f I :, DI 2003). An error will be deemed harmless where the appellate court concludes beyond a

o~ reasonable doubt that the error could not have contributed lo the verdict. Id. q~ M A trial court may cure what might otherwise be reversible error by promptly and ~. "'13~~ adequately giving a cautionary instruction to the jury. See Commonwealth v, Shotwell, 717 A.2d ... ,.~~, l 039, 1043 (Pa. Super. Ct. 1998) (quoting Commonwealth v, Pearson, 685 A.2d 55 I, 554 (Pa. !!~ Super. Ct. 1996) ("To determine whether a cautionary instruction cured a reference to appellant's Gl post-arrest silence, this Court must consider: 'I) the nature of the reference to the defendant's

silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness

and adequacy of the cautionary instruction. If the reference to the accused's silence is of a nature

that would seriously compromise the jury's objectivity and is likely to deprive the accused of a

fair trial, curative instructions arc inadequate and a new trial is required."').

The reference made by the prosecutor co Appellant's post-arrest silence in the present

case constituted harmless error. In context, the prosecutor's statements were all directed towards

alerting the jury that Appellant's opening and closing remarks should not be construed as

testimony. Appellant was granted wide leeway during his opening and closing statements, due to

his status as a non-lawyer. Typically, arguments made should be supported by the evidence and

inferences reasonably derived from that evidence. Commonwealth v. Ervin, 766 A.2d 859, 864

(Pa. Super. Ct. 2000). Appellant strayed from this, allowing the jury to be exposed to case

theories that had no evidentiary foundation. Additionally, Appellant's choice to represent himself

gave him a chance to personally address the jury without being a sworn witness, potentially

causing further confusion to jury members, who might be tempted to consider Appellant's

arguments as valid testimony.

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t/l {I 01 ;, In order to combat these points of potential confusion, the prosecutor thought it necessary

o~ to reinforce to the jury that Appellant's statements were not to be considered evidence. This ~~ Court agrees with Appellant that the prosecutor may have leaned toward the line of .. t,)

,..' I I impermissible territory by pointing out that Appellant did not testify. A prosecutor cannot .~ ij9 I I I, I I whitewash remarks about a defendant exercising their right to silence by preceding them with the M I ,n ,.. I comment "And sure, the defendant has a right not to take the stand at a criminal trial, but ... " 01

Closing Arg. Tr. 35:5-6, July 30, 2014.

However, the prosecutor did not use her statements to imply Appellant's guilt. She did

not suggest that Appellant did not take the stand because he had something to hide. Her

comments revolved around the claims made in Appellant's opening and closing arguments and

the fact that they were not to be construed as evidence. Such remarks did not exploit Appellant's

silence and would not create within the jury "fixed bias and hostility towards the defendant,"

Ervin, 766 A.2d at 864, or suggest to the jury that Appellant's silence was a tacit admission of

guilt. Furthermore, the Court promptly and adequately instructed the jury not to consider

Appellant's decision not lo testify, and there was overwhelming uncontradicted evidence of

Appellant's guilt, as Appellant put on no evidence in his own defense. Therefore, the

prosecutor's remarks that Appellant's statements were not to be construed as evidence because

Appellant did not testify should be deemed harmless error.

JIL :-··The -Court di

Appellant argues· against the admission into evidence of a demonstrative padlock and

handkerchief, and photographs of Complainant's injuries. The Commonwealth initially presented

a motion in limine for the admission of the padlock and handkerchief, which was granted,

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contingent upon the Commonwealth's foundation and upon Appellant's objections at the time of

0) admission. Trial Tr. 23: 12-26:7, July 28, 2014. When the Commonwealth introduced the padlock

as exhibit C-2, Appellant objected, because "There was never a lock. There was never a bandana. -, ,.. And there certainly wasn't one recovered." Trial Tr. 23:4-7, July 29, 2014. After the witness ,. established that the demonstrative padlock was the same size, type, and brand of padlock that he

was describing in his testimony, id. at 22: 15-24: 14, Appellant objected to its being published to

the jury because he believed it was "inflammatory, prejudicial and it can be used to inflame the

jury." Id at 24: 19-20. The Court questioned the witness further on his knowledge of the padlock

before overruling the objection and allowing publication to· the jury. Id. at 24:21-26: I 0.

Introduction and publication of the demonstrative bandana, C-3, went much the same. Id. al

26:11-27:21.

Appellant also objected to the introduction of C-11 through C-14, photographs taken of

Complainant's injuries by his wife.11 Trial Tr. 40:7-42:9, July 29, 2014. Appellant argued that

the photos should not be admitted into evidence, asking "Is his wife here? How do we really

know that she's really the one who took the pictures, or when they were taken," and "For all we

know, they could have been taken three months after. There is no time, there is no date on them."

Id. at 40: 13-14, 41 :24-42:3. Appellant's objections were overruled. Id. at 42:4-8.

During the jury's deliberation, the foreman sent a message to the Court requesting that all

exhibits be sent lo the jury room. Trial Tr. 53:2-6, July 31, 2014. Regarding the photos,

Appellant objected lo their return to the jury on the grounds that the photos would be

inflammatory. Id. at 54:2-4. The Court overruled his objection, noting that Appellant had not

11 Appellant did not object to the introduction or C-4 through C- I 0, photographs of Complainant's injuries taken by the police. Trial Tr. 32:2-33:6, 35:20-36:24, 38:3-39:4, July 29, 2014. Appellant also argued against the admission of photographs he received on the day of trial, on the grounds that they were late discovery. See Trial Tr. 36-38, July 28, 2014. However, it is unclear on the record which photographs Appellant received in an untimely manner, and Appellant docs not include this argument in his Concise Statement.

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('Jl q l)J ;1 made this objection during the trial, but had in fact used the photos himself, in an attempt to

0) prove that his own blood was shed during the incident, a point which Appellant conceded on the ,u record. Id. at 54:8-2 I. The Court did not allow the demonstrative padlock and handkerchief to .•, t,l

I'~ return to the jury room. Id. at 54:23-55:22, 58: 10-59:2. In his post-sentence motion, Appellant IJ? '•, It~ renewed his argument that the padlock, handkerchief, and photographs were prejudicial and if~ IT~ inflammatory and that the photographs taken by Complainant's wife were not properly aJ1 authenticated. !I I I A. The Demonstrative Padlock and Handkerchief ! The purpose of demonstrative evidence is "rendering other evidence more

comprehensible to the trier of fact." Commonwealth v. Serge, 896 A.2d 1170, l 177 (Pa. 2006).

As with any other evidence, demonstrative evidence must be properly authenticated, it must be

relevant, and its probative value must outweigh its prejudicial eflcct. Id. Evidence is properly ' authenticated when its proponent produces evidence sufficient to support a finding that the item

in question is what the proponent claims it is. Pa. R. E. 90 I (a). "Demonstrative evidence such as

photographs, motion pictures, diagrams, and models have long been permitted to be entered into

evidence provided that the demonstrative evidence fairly and accurately represents that which it

purports to depict." Serge, 896 A.2d at 1177. The authenticating witness need not have prepared

the exhibit, but must simply have sufficient knowledge to authenticate it. Commonwealth v.

Rogers, 615 A.2d 55, 61 (Pa. Super. Ct. 1992); see, e.g., Commonwealth v. Reid, 811 A.2d 530,

552-SSJ (Pa. 2002) (allowing a demonstrative photograph of a gun where the witness testified

that it was similar to the gun that was sold to defendant and where she had adequate knowledge

to authenticate it).

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ti~ q DI :1 I Evidence is deemed relevant when it has "any tendency to make the existence of the fact I Q) II that is of consequence to the determination of the action more probable or less probable than . 110 I would be without the evidence." Pa. R. E. 4 0 l; compare Commonwealth v. De/Marmol, 2 l 4 .·~ hl I

~, '.i A.2d 264, 267 (1965) (holding that pen knife was irrelevant evidence when no one testified to its o~ ... I I existence and it was found at the scene of defendant's arrest, three days later), and ~~ . a~ .... . i Commonwealth v. Nutter, 389 A.2d 626, 628 (Pa. Super. Ct. J 978) (finding that flashlight and •0'1

lottery tickets should be admitted when found on defendant's possession and within the

burglarized premises, and where restaurant manager testified that they were missing from their

usual location).

However, relevant and authenticated evidence is to be excluded "if its probative value _is

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ... "

Pa. R. E. 403~ compare Commonwealth v. Maisonet, 3 l A.3d 689, 698 (Pa. 2011) (holding that

introduction of America's Most Wanted videotapes was overly inflammatory), with Serge, 896

A.2d al J 177 (computer-generated animation lo illustrate Commonwealth's theory of how

defendant committed murder was not overly prejudicial where it was devoid of drama). The

admission of demonstrative evidence is a matter within the discretion of the trial judge, and will

not be overturned absent an abuse of that discretion. Commonwealth v. Ford, 301 A.2d 856, 858

(Pa. 1973); accord Maisonet, J l A.3d at 697.

In the instant case, the Commonwealth produced two witnesses which testified to the .. . .. - . . .. ·• . ...-. .. . .. ~··· ·~ .

existence of a padlock and bandana which had been used to strike Complainant and then

discarded on the passenger side of Fred's truck. Two other witnesses testified that they did not

see a padlock or bandana, but that they also did not see how the light began. The investigating

officer testified that no padlock was recovered from the scene of the incident, which included

:II I

. ~~~-·l,._~~~~~~~~~~~~~ Circulated 10/20/2015 04:09 PM

~l ('J ~I ,i :1 ! search of Appellant's vehicle. Clearly, whether the padlock and bandana ever existed was

(p relevant and was a factual question to be put before the jury. Complainant properly authenticated IU I•~ I :,., the demonstrative padlock by testifying lo its size, shape, and brand. The padlock and bandana ' -, 11 ;..~ were not contraband, but household items. They were .not dramatic, terrifying, or otherwise Cl, •, . It~ disposed towards a "likelihood of inflaming the minds and passions of the jurors." . OS .., I i Commonwealth v. Powell, 241 A.. 2d 119, 121 (Pa. 1968). The Court did not abuse its discretion 01 · ;i 'I in admitting the demonstrative items into evidence. :1 B. The Photographs of Complainant's Injuries

While Appellant made a timely objection to the admission of C-11 through C-14 on the 12 grounds that the photographs were not properly authenticated, Appellant failed to object to the

introduction into evidence of any photographs on the grounds that they were prejudicial and

inflammatory. By foiling to make a timely objection, Appellant has waived his right to so

object. 13 Molina, 33 A.3d at SS. Also, '1S the Court noted on the record, Appellant used the

exhibits to his advantage, to impeach the witness by showing his own blood and Complainant's

ripped shirt.

Regarding the admission of C-1 l through C-14, the photographs taken by the

Complaiant's wife, Appellant's challenge to their authentication fails. "A photograph must be

verified either by the testimony of the person who took it or by another person with sufficient

knowledge to state that it fairly and accurately represents the object or place reproduced as it - .. -··- - .. - ·-· ·- ~- ,...... . . . . .

existed at the time of the accident." Nyce v. Muffley, 119 A.2d 530, 532 (Pa. 1956); accord

11 13 By questioningwho took the photos, and when, Appellant is attacking their authenticity. · The Court notes, however, that had Appellant made n timely objection, the photographs would still likely have been admitted. The}' show minimal amounts of blood and no severely disturbing images, and they were necessary to proving the degree ofharm, Compare Commonwealth v. Ford, 301 A.2d 856, 858-59 (Pa. 1973) (photographs showing stab wounds were admissible to show use of a deadly weapon on a vital pan of the body in order to in fer an intent to kill), and Rogers, 615 A.2d at 61 (where there was no question before the jury us to the degree of harm, gruesome photos were overly inflammatory),

19 Circulated 10/20/2015 04:09 PM

Commonwealth v. McKellick, 24 A.3d 982, 995 (Pa. Super. Ct. 20 J I) ("A photograph is merely

Q) pictorial testimony .... It is common knowledge that a given condition may be so photographed

from different angles as to produce conflicting views of the situation under the camera's lens ... ,.. .We are to remember, then, that a document purporting to be a map, picture, or diagram, is, for -, ttl evidential purposes simply nothing, except so far as it has a human being's credit to support it")

(internal quotations omitted).

The witness properly authenticated photos C- I I through C-14.14 It was the task of the

jury to weigh the witness's testimony and determine whether the photos represented truthful

depictions of the injuries the witness actually sustained. The Court did not abuse its discretion in

admitting the authenticated photographs into evidence.

IV. There was sufficient evidence to sustain a conviction for Aggravated Assault, Simple Assault, and RJ.:AJ\ and to find that Appellant did not act in self-defense.

Appellant argues that there was insufficient evidence to sustain a conviction for the

charges of Aggravated Assault, Simple Assault, and REAP. Specifically, Appellant argues that

the Commonwealth did not prove beyond a reasonable doubt that he acted with the necessary

intent and that he did not act in self-defense. At the close of the Commonwealth's case,

Appellant made a trial objection lo the legal sufficiency of the evidence. See Trial Tr. 70: 17-20,

'" The foundation was laid during trial as follows: [The Commonwealth]: Now showing you C-11 through C-14. Arc those the pictures that your wife took of your rib cage that day? [Witness]: Yes, they arc. [The Commonwealth]: Arc those a fair and accurate depiction of the injury to your rib - (Witness}: Yes. [The Commonwealth}:. as it appeared that day? [Witness]: Yes. [The Court]: "That day" being the 6"'? [Witness]: 6'h of September.

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0) (I DI ;1 July 30, 2014 ("No, Your Honor, I have no witnesses but at this time l would ask for an acquittal

0) of all charges based on the lack of evidence."). Q9 To judge a claim of insufficiency of evidence, an appellate court must determine whether . f>~

,,_' "the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when .·~ Q~

fl) viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient lo . ci, "~ enable the fact finder to conclude that the Commonwealth established all of the elements of the Q1 I offense beyond a reasonable doubt." Commonwealth v. Fears, 836 A.2d 52, 58-59 (Pa. 2003). i I I The Commonwealth may prove all elements beyond a reasonable doubt through the use of -J !I wholly circumstantial evidence. Id. The evidence is sufficient "unless the proof relied upon for a ·I ·1 conviction is so weak and inconclusive that as a matter of law no probability of fact can be .i Ii drawn from the combined circumstances." Commonwealth v. Rawles, 462 A.2d 619, 622 (Pa.

I 983). The trier of fact is "free to believe all, part, or none of the evidence." Commonwealth v

Burton, 2 A.3d 598, 601 (Pa. Super. Ct. 2010) (quoting Commonwealth v. Galvin. 985 A.2d 783,

789 (Pa. 2009)). Evidentiary sufficiency presents a question of law. Therefore, the appellate

court's standard of review is de novo, and its scope of review is plenary. Commonwealth v.

Meals, 912 A.2d 213, 218 (Pa. 2006).

A. Aggravated Assault

A person can be properly found guilty of aggravated assault when the Commonwealth

proves bcyo~~ ~ re~sonable d_o~~l- tha_t _he_ '.'a.ttempt[ ed] to cause _sc_rious~o~Jlt inj_ury J.<:. a.~?t_~er, I I or causc(d] such injury intentionally, knowingly or recklessly under circumstances manifesting !1 I extreme indifference to the value of human life." 18 Pa. C.S.A. § 2702(a)(J ). Appellant has I j challenged only the sufficiency of evidence surrounding the clement of mens rea, or criminal I intent. Therefore, this Court focuses its analyses on the sufficiency of the evidence that Appellant

21 Circulated 10/20/2015 04:09 PM

acted intentionally, knowingly, or recklessly under circumstances manifesting extreme

0) indifference to the value of human life, and not whether Complainant sustained serious bodily

injury caused by Appellant. ·.' The Pennsylvania Crimes Code defines each of the above mental states in section 302. It .'• says that a person acts "intentionally" when "it is his conscious object to engage in conduct of

that nature or to cause such a result." 18 Pa.C.S.A. § 302(b)( 1 )(i). Section I 03 further states that Q1

the words and phrases "with intent," "designed," and "with design" have the same meaning. 18

Pa.C.S.A. § J 03. A person acts "knowingly" when "he is aware that it is practically certain that

his conduct will cause such a result." 18 Pa.C.S.A. § 302(b)(2)(ii). Finally, a person acts

"recklessly" when

he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

18 Pa.C.S.A. § 302(b)(3).

The mental state required for aggravated assault was further elucidated by our Supreme

Court in Commonwealth v. Alexander, 4 77 Pa. 190, 383 A.2d 887 ( 1978):

The Court announced that the following factors can be utilized in ascertaining whether the defendant intended to inflict serious bodily injury by one blow: I) if the defendant "was disproportionately larger or stronger than the victim;" 2) whether the defendant would have escalated his attack but was restrained from doing-so; 3)"\vhcfhcr'the'-defc'ndant was in-possession' of a--\Vcapon;-and-4) "statements before, during, or after the attack which might indicate [defendant's] intent to inflict further injury upon the victim."

Commonwealth v. Bur/on, 2 A.3d 598, 602 (Pa. Super. Ct. 2010) (quoting Alexander, 383 A.2d

al 889).

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Ol I r.1 ·I DI :1 ;i Although Appellant's view of the incident differs from that presented by the 1· I OJ Commonwealth at trial, when viewing the evidence and all the reasonable inferences drawn from 'J9 ~) therein in the light most favorable the Commonwealth, it is clear that the evidence presented was •, ~~ sufficient to enable a fact-finder to conclude beyond a reasonable doubt that Appellant had the .•, 11~

r,~ requisite mental intent to commit aggravated assault. The Commonwealth presented 0:1 ,.. . o, Complainant and an eye-witness, both of which testified under oath that Appellant had struck

Complainant in the face with a padlock wrapped in a bandana. Believing the Appellant to have

armed himself with such a weapon, the jury could reasonably have drawn an inference that

Appellant had intended io cause serious bodily injury, or had at least acted with reckless

disregard for Complainant's life. See, e.g. Commonwealth v. Patrick, 933 A.2d l 043 (Pa. Super.

Ct. 2007) (holding that a punch to the head on an unsuspecting victim was sufficient to establish

reckless indifference necessary for a prima facie case of aggravated assault); Commonwealth v.

Wright, 832 A.2d 1104, 1110 (Pa. Super. Ct. 2003) (finding that the evidence "plainly satisfies

the standard for sufficiency" for a conviction of aggravated assault and recklessly endangering

another person where the appellant's testimony about the shooting contradicted that of the

victim's and two eye-witnesses); see also Burton, 2 A.3d at 603-05 .

B. Simple Assault

A person can be properly found guilty of simple assault when the Commonwealth proves

beyond a reasonable doubt that he "atternptjcd] to cause or intentionally, knowingly or recklessly

causejd] bodily injury to another" I 8 Pa. C.S.A. § 270l(a)( I). Simple assault is a lesser included

offense of aggravated assault, and therefore as there is sufficient evidence was presented to prove

aggravated assault, there was sufficient evidence to prove simple assault as a matter of course.

Commonwealth v, Calhoun, 52 A.3d 281 (Pa. Super. Ct. 2012). Also, Appellant concedes that at

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t>l (! 1)1 :1 the very least he punched Complainant (albeit in self-defense). Viewing the evidence presented Q) at trial in the light most favorable to the Commonwealth, a fact-finder could therefore find

beyond reasonable doubt that Appellant's actions were intended to cause bodily injury to '•,. ,.. Complainant. See. e.g. Commonwealth v. Torres; 766 A.2d 342, 344-45 (Pa. 200 I) (finding rhc

evidence sufficient to establish simple assault where defendant acknowledged that he

01 intentionally struck the victim.).

C. REAP

A person can be found guilty of REAP when the Commonwealth proves beyond a

reasonable doubt that he "recklessly engagcjd] in conduct which place] d] or may [have] place] d)

another person in danger of death or serious bodily injury." 18 Pa. C.S.A. § 2705. Viewed in the

light most favorable to the Commonwealth, the evidence is sufficient lo prove· beyond a

reasonable doubt that Appellant intended to swing a heavy metal object at Complainant's head.

His action caused severe bodily injury to Complainant by breaking his jaw, and placed him in

danger of losing an eye. The evidence presented by the Commonwealth was sufficient to prove

that Appellant had the requisite mental state to commit REAP.

D. Self-Defense

Section SOS of the Pennsylvania Crimes Code outlines when it is justifiable to use force

against another person in the interest of se)f-proteetion.15 See 18 Pa. C.S.A. § 505. A defendant

., § SOS. Use of force in self-protection (a) Use of force justifiable for protection of the pcrson.-The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. (b) Limitations on justifying necessity for use of force .... (2) The use of deadly force is not justifiablt.: under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

----'tl. _ !I i. Circulated 10/20/2015 04:09 PM

Ql c, 0! ;1 has no burden to prove he acted in self-defense. Commonwealth v. Smith, 97 A.3d 782, 786 (Pa.

Q} Super. Ct. 2014). But before the issue of self-defense may be submitted to a jury for ~~ fol consideration, there must be some evidence, from whatever source, to justify a finding of self- -, ..~ defense. Commonwealth v. Mayfield, 585 A.2d 1069, 1070-71 (Pa. Super. C1. 1991). "Such Q~ ·,, : r.) evidence may be adduced by the defendant as part of his case, or conceivably, may be found in 11n .,.~ the Commonwealth's own case in chief or be elicited through cross-examination." • e11

Commonwealth v. Ruse, 32 I A.2d 880, 884 (Pa. 1974).

The Commonwealth carries the burden to prove beyond a reasonable doubt that the

defendant was not acting in self-defense, and can carry that burden by establishing either that:

"I) the accused did not reasonably believe that he was in danger of death or serious bodily

injury; or 2) the accused provoked or continued the use of force; or 3) the accused had. a duty to

retreat and the retreat was possible with complete safety." Smith, 97 A.3d at 787. The defendant

must have had both a subjective belief that he was in imminent danger, and an objectively

I reasonable belief that the use of force was necessary to protect against death or serious bodily

,I I injuries: Id. The reasonableness of a defendant's belief can be determined by considering such

I I factors as "whether complainant was armed, any actual physical contact, size and strength

disparities between the parties, prior dealings between the parties, threatening or menacing 'I :! actions on the part of complainant, and general circumstances surrounding the incident." Id. at ·! I 788. The defendant also must not have "used more force than reasonably necessary to protect

(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be .... :j (3) Except as otherwise required by this subsection, a person employing protective force may I estimate the necessity thereof under the circumstances as he believes them to be when the force is i used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action .... 18 Pa. C.S.A. § 505.

25 I ! Circulated 10/20/2015 04:09 PM I! ~) i C! ' II DI :1 against death or serious bodily injury." Id. Finally, the defendant "must be free from fault in 0) provoking or escalating the altercation that Jed to the offense." Id. q~ b) A fact-finder is not required to believe the testimony of a defendant who raises the claim .-,. of self-defense. Id. However, disbelief of defendant 's testimony alone will not afford enough .•, ci,

hl affirmative proof to disprove the claim. Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001) .. . '!~

I (finding that there was insufficient evidence to disprove defendant's sel f-defcnse claim where the · 01 I

,I Commonwealth's case did not provide evidence of who the initial aggressor was, or a motive for

the defendant to be the initial aggressor). The testimony Complainant as a witness to the incident

is sufficient to refute a self-defense claim. Smith, 97 A.3d at 788. It is the province of the fact-

finder to weigh the affirmative evidence provided by the Commonwealth and decide if it proves

beyond a reasonable doubt that the defendant was not acting in self-defense. Commonwealth v,

Mayfield, 585 A.2d 1069, 1071 (Pa. Super. CL 1991) (quoting Commonwealth v. Rose, 344 A.2d

824, 826 (Pa. 1975)); see, e.g. Commonwealth v. Brown, 648 A.2d I 177, 1182 (Pa. 1994)

("Appellant's attack on the sufficiency of the evidence is, in essence, a spurious claim that if his

version of events were given credence, he killed in self-defense. In view of the conflicting

physical evidence and expert testimony, and in view of the inconsistency or appellant's accounts,

it is understandable that the jurors did not credit appellant's testimony. There was more than

sufficient evidence 10 prove every clement of the offense and to disprove the self-defense claim

beyond a reasonable doubt.").

In the case sub judice, there was sufficient evidence for the jury to conclude that

Appellant was not acting in self-defense. The Commonwealth produced two witnesses which

claimed that Appellant was the sole aggressor, and was not in fear of serious bodily injury. The

Commonwealth's witnesses also asserted that Appellant was armed and verbally threatened

26 Circulated 10/20/2015 04:09 PM

~) c, DI :1 Complainant before the cncoumer.l" whereas Complainant was unarmed. A fact-finder could

Q) reasonably infer from this evidence that Appellant was not acting in self-defense . .:n t•) •, V. The verdict wus not against the weight of the evidence. i,,•

ii, '•, Appellant asserts that the verdict returned by the jury was against the weight of the h) 17 .~· Q,

. o, :I evidence presented at trial. Appellant preserved this claim by raising it with the trial court. Pa.

ii R. Crim. P. 607(A).

On a motion for a new trial based on a challenge to the weight of the evidence, the trial

court is not obligated to view evidence in the light most favorable to the verdict winner.

Commonwealth v. Smith, 853 A.2d 1020, l 028 (Pa. Super. Ct. 2004) (quoting Commonwealth v,

Widmer, 744 A.2d 745, 751-52 (Pa. 2000)). Nor is a judge to sit as thirteenth juror and make her

own determination of guilt or innocence, nor is she to grant the motion for a new trial based on a

mere conflict in testimony. ld.; see, e.g.. Commonwealth v, Sanchez, 36 A.3d 24, 25-29 (Pa.

201 I) (finding that guilty verdict was not against weight where evidence was neither so

unreliable nor contradictory to undermine the verdict, questions of co-defendants' motives were

classic issues of credibility to be decided by the jury, co-defendants consistently identified

defendant as the shooter, and defendant's confession corroborated the identification). Rather, the

trial court may grant a new trial because the verdict is against the weight of the evidence only

when the verdict rendered is so contrary to the evidence as to shock one's sense of justice and the

award of a new trial is imperative so that right may be given another opportunity to 'prevail.

•~ One of the Commonwealth's witnesses also asserted that Complainant threatened Appellant after the attack. 17 "[Appellant): No, Your Honor, I have no witnesses but at this time I would ask for an acquittal or all charges based on the lack of evidence." Trial Tr. 70: 17-20, 74: 17-21, July 30, 2014. This objection could be more properly considered a challenge to the sufficiency of the evidence, rather than the weight, but Appellant more clearly raised a challenge to the weight of the evidence in his post-sentence motion. See Pa. R. Crim. P. 607.

~11 'I Circulated 10/20/2015 04:09 PM

lJ~ Cl D! :1 Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa. Super. Ct. 1997) (quoting Thompson v.

l)J City of Philadelphia, 493 A._2d 669, 672 (Pa. 1985)). ~~ f\) An appellate court docs not judge whether the verdict was against the weight of the -, . .. evidence, but is limited to a review of whether the trial court palpably abused its discretion in -, ruling on the weight claim. Commonwealth v. Lewis, 911 A.2d 558, 666 (Pa. Super. Cl. 2006). A

trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings. Commonwealth v, Diggs, 949 A.2d 873 (Pa. 2008).

In the instant case, the jury was presented with testimony of Complainant, an eye witness,

two other witnesses, and an investigating officer. Very little of the testimony was contradictory

and favorable to Appellant. For example, Complainant said he didn't talk to Appellant on

September 5, 2014, regarding the wire, whereas another witness, Keith, said that he had.

Complainant may also have waivercd in prior statements on how many times he was struck by

Appellant. One witness, Fred, heard Shawn threaten Appellant after the altercation and testified

that, contrary to Shawn's testimony that he tried to break up the fight, Shawn was "on lop of the

pile." Also, according to some of the Commonwealth's witnesses, Appellant did have at least a

minor cut and a tom shin, despite Complainant's testimony that he did not strike Appellant.

Notably, no lock or bandana were recovered.

However. this Court was not obligated to view any of the above conflicting evidence in i .i the light most favorable to Appellant. Smith, 853 A.2d at I 028. Rather, to overturn the jury's -·· . .. -·· - .... I verdict, the evidence must have enough weight to render the verdict shocking to one's sense of

justice. Goodwine, 692 /\.2d at 236. Given the amount of uncontradicted evidence presented by

the Commonwealth that Appellant was the sole aggressor, the severity of the injuries sustained

by Complainant, Appellant's potential access to the truck after the altercation, and Fred's

28 Circulated 10/20/2015 04:09 PM

02 (I 01. · ;1 testimony that he heard Shawn say to Appellant, "What did you hit [Complainant] with?" at the

i)) time of the incident, the undersigned did not find that the verdict of guilty to be shocking to ~~ · ~~ one's sense of justice. ·.,. ..~ VI. The reference to a pretrial photographic lineup was harmless error.

After the. incident on September 6, 2012, but before Appellant had been arrested, the · 0·1

police showed a lineup of photographs to Complainant in order to verify Appellant's identity.

The photographs used in the lineup, including that of Appellant, were photographs of prior

offenders that the police had on file.

On April 4, 2014, Appellant filed a Motion in Lirnine to suppress any references "to the

pretrial photo lineup from being made to the jury. Appellant's motion was argued before the

commencement of trial, at which point the Commonwealth indicated that the photographic

lineup would most likely not be referenced. The undersigned indicated that a definitive ruling on

the matter would be deferred, but that a reference to the lineup would probably not be allowed at

trial. Pretrial Motions Tr. 68:22-72:4, July 23, 2014 .

. On direct examination, the Commonwealth asked Complainant why he had returned to

the police station alter going to the hospital. Complainant answered, "AL that point, an officer

from the Whitpain Township police contacted my telephone and asked me if I could come back

to look at a lineup, a photo lineup to idcnti fy the defendant." Trial Tr. 3 7: 13-16, July 29, 2014.

Appellant made an objection, which was sustained, and the Commonwealth proceeded to a new line of questioning.

When inadmissible evidence is introduced at trial, a reversal is warranted only upon a

showing of actual prejudice. Commonwealth v. Sweger, 505 A.2d 331, 334 (Pa. Super. Ct. 1986) .

.,

...._ _ i ___; Circulated 10/20/2015 04:09 PM

"A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be

said to have deprived the moving party of a fair and impartial trial." Commonwealth v. Tharp,

830 A.2d S 19, 532-33 (Pa. 2003}. A decision denying a mistrial will only be reversed if the trial

court committed an abuse of discretion in denying the request Sweger, 505 A.2d at 334

The identity of Appellant, who had worked alongside Complainant and who admitted to

GJ1 being involved with the altercation, has never been in question. The photographic lineup was

therefore irrelevant to the Commonwealth's case, and testimony regarding the lineup was

properly not before the jury. Appellant, however, was not prejudiced by this remark and this

Court therefore properly denied his request for a mistrial. While Complainant stated before the

jury that he had been called in to the station to consider a photographic lineup, he did not testify

that he ever actually saw the lineup, that Appellant's photograph was included in the lineup, or

how a photographic lineup works. It is unlikely that the jury members would know the police

procedure of using photographs from prior arrests, or understood that such a photograph of

Appellant was used by the police in this case. Certainly no direct reference was made to

Appellant's criminal history. Appellant therefore suffered. no prejudice, and this Court did not

abuse its discretion in so finding.

VII. The Commonwealth did not suppress material, exculpatory evidence.

Appellant contends that the Commonwealth withheld video surveillance recorded by the

. Giant -supermarket.· Appellant . believes the video would have . . been beneficialto ApI:>cllan1'·s

defense. Appellant entered the Giant immediately after the incident, and alleges that the video

would show him calmly walking through the aisles, and therefore rebut any testimony that

indicated he fled the scene 10 avoid capture.

JO II I • Circulated 10/20/2015 04:09 PM

~l Cl ·01 ;1 Appellant's challenge was preserved at the trial level. On March 27, 201 J, the Office of ' » I

i the Public Defender submitted a request for discovery pursuant to Ruic 573 of the Pennsylvania ,1 I ~~ lt3 Rules of Criminal Procedure on Appellant's behalf. The request included general language ..' •,

Ii~ covering "All transcripts and recordings of any electronic surveillance and the authority by '>, ,)l which the said transcripts and recordings were obtained" and "The date, time and place of every

-~ ~~

. 91 occasion and search, surveillance, electronic surveillance, mechanical, visual or aural

surveillance and reports related thereto." On January 27, 2014, Appellant filed a prose motion to

compel all discovery "intended on being used at the time of trial." After the close of testimony,

Appellant moved for a mistrial because he had never received a copy of the video surveillance.

The motion was denied. Trial Tr. 80:23-86: 14, July 30, 2014.

Appellant essentially argues that the Commonwealth is m violation of Brody. v.

Maryland, 373 U.S. 83 (1963), which requires the Commonwealth to provide defense with

evidence in its possession that is favorable to the defense and material to guilt or punishment. id.

al 87. This rule is embodied in Ruic 573 of the Pennsylvania Rules of Criminal Procedure, which

states

In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items. (a) Any evidence favorable to the accused that is material either to guilt or . .. . .. .. . . - .to punishment; -and is -within the ·possession or control of. the-attorney-for- the Commonwealth ...

Pa. R. Crim. P. 573(8)( I )(a). Our Supreme Court has explained that this rule is breached when a

defendant shows that "(I) evidence was suppressed by the state, either wi II fully or inadvertently;

(2) the evidence was favorable to the defendant, either because it was exculpatory or because it

31 'II Circulated 10/20/2015 04:09 PM

Ql Cl Di ~I could have been used for impeachment; and (3) the evidence was material, in that its omission

l~ resulted in prejudice to the defendant." Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012). i~~ ft~ Appellant's argument fails on all three points.

.. '•

Q~ ' First, the evidence was not suppressed by the state. When asserting a Brady claim, the ,, \;1 burden rests with the defendant to prove, by reference to the record, that evidence was withheld ~n ·~ . l!f1 or suppressed by the prosecution. Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013). While the

officer testified that he viewed the footage while searching the store for Appellant, 1g the police

never retrieved the video from the Giant, and the District Allomcy's office never received a

video from the police. This docs not count as evidence "within the possession or control of the

attorney for the Commonwealth" under Ruic 573. Furthermore, no 8rady violation occurs where

the evidence is available to the defense through non-governmental sources, or, with reasonable

diligence, the defendant could have discovered the evidence. Commonwealth v. Carson, 913

A.2d 220, 245 (Pa. 2006).

Second, the evidence was not exculpatory to Appellant. There were limited facts

presented to the jury about Appellant's actions after the incident, but it is not disputed that 19 Appellant was told to leave the scene, that Appellant went to the Giant, and that Appellant did

not return to the scene afterwards. Appellant contends that this casual and meandering interlude

after the incident, along with his leaving his belongings in the truck, negates any inference that

he fled the scene due to guilt20-a. theory that Appellant was first to bring up in his opening

11 "[Officer Richard]: When we went looking for (the defendant) we went over to the Giant, we just checked the footage to sec ifhc actually went into the Giant" Trial Tr. 82:6-9, July JO, 2014. 1q This was asserted to in the Commonwealth's opening and was included in Fred's testimony. 20 The following three exchanges took place on cross-examination of Officer Richard: [Appellant]: Isn't it true that I left my belongings in the truck when I went to the store? [Officer Richard]: Yes. [Appellant]: Now, I left my medication, I left my car keys, my house keys, and my tools, correct? They were in the work bag? (Officer Richard]: I can only recall the tools and the prescription boulcs.

j

___ l !.'----- II Circulated 10/20/2015 04:09 PM

o~ {I

:, I ~l statement.21 However, no matter how pleasant and peaceful a shopping experience the Appellant

c~ enjoyed in the Giant that day, it does not controvert the fact that Appellant did not return to the q~

·~ ~l

,...!~ scene to talk to the police. The video footage would not show otherwise.

Third, the evidence is not material to the extent of causing prejudice to Appellant. As . q~ '• ~ . -~~ explained by our Supreme Court: . ~~ . :,,.~ . 7)1 [T]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, docs not establish materiality in the constitutional sense. Rather, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Willis, 46 A.3d at 656 (internal quotations and citations omitted). Had the tape been procured and

admitted, it would not have affected the outcome of the trial. Appellant's supervisor testified that

(Appellant I: And in your experience, don't people who usually commit a crime grab everything they can and get out of Dodge? ... [Officer Richard): In my expertise. that somebody who would commit a crime would want to leave the scene as fast as possible and would leave anything they can behind just to get out of the way, just to get out of there. {Appellant): And I did walk 10 the Giant store 001100 far away, correct? [Officer Richard}: J don't know how you got out of there. Trial Tr. 57: 11-58: I 0, July 30, 2014.

[Appellant}: Yes or no: Did you observe me on the video footage walking up and down the aisles of the Giant store that was right there? [Officer Richard): [ believe I can vaguely recall checking the security footage, and I believe I saw you on one of the videos in one of the aisles. That's what Ican recall. (Appellant]: And ii was right there, not too far away from the truck, correct? (Oflicer Richard]: What? (Appellant]: The store? [Officer Richard): It's a good distance from the parking lot. [Appellant): So I didn't really take off then, did I? (Officer Richard]: I don't know how you got there, sir. Id. at 58:.11-59:2.

[Appellant): I Jell my belongings in the truck, correct? [Officer Richard}: Yes. (Appellant'): Including my medication and tools, correct? (Officer Richard): Yes. (Appellant): So doesn't that show you that I really had no intentions of taking off? I lcfl my belongings . (Officer Richard]: l don't know what your motivation was for leaving. Id. at 69:8-16. 21 In his opening statement, Appellant alleged that after he was told by his supervisor 10 leave the premises, he went 10 the Giant for peroxide, eic., he exited, spotted police vehicles, learned via a telephone call to Fred and Officer Richard that he was being charged with several crimes, and decided not to return to the scene because he needed to prepare for the care for his children in the event that he was arrested. Trial Tr. 101:10-104: 15. July 28, 2014.

__ II .._ ...; !I !1:I Circulated 10/20/2015 04:09 PM

Ol Cl DI :, he told Appellant to leave. Complainant even testified that he himself had initially left the scene, ')~ until told by a 911 operator to return. The jury was not instructed on evidence of night or any . Q~ . ft) inference to be drawn from therein. lt is unlikely that they doubted what Appellant claims ...•,. I"~ occurred during his shopping trip, even without his having taken the stand. Appellant has not ~!) •, t1:I carried his burden of demonstrating a Brady violation by the Commonwealth. . 11!1 r.• Q1 VJJI. Imposition of the statutory minimum sentence was proper.

Appellant was sentenced according to Pennsylvania's "second strike" statute, which says

Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement ...

42 Pa. CS.A. § 9714(a). Because Appellant was convicted of Aggravated Assault, which is

included under the statute as a "crime of violence," and because Appellant had previously been

convicted of Robbery and Burglary under 42 Pa. C.S.A. § 370 I and 42 Pa. C.S.A. § 3502, also

deemed as crimes of violence per 42 Pa. C.S.A. § 9714, Appellant's· conviction for Aggravated

Assault constituted a second strike under the law, and Appellant was accordingly sentenced to

ten to twenty years' imprisonment.

· Appellant contends that the mandatory minimum sentence imposed by this statute is

unconstitutional according to the holding of Alleyne v. United Slates, 133 S. Cl. 2 J 5 I (2013).

Alleyne held that any fact that triggers the imposition of a mandatory minimum sentence must be

treated as an clement of the offense and therefore included within the charging document and

submitted to the jury to find beyond a reasonable doubt. Appellant included this argument in his

motion for reconsideration.

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o~ Ct l)l :1 Alleyne, however, carved out an exception for mandatory minimum sentences based on

C) prior convictions. 133 S.Ct. at 2151 n. I. This exception has been implemented numerous times

~,·. . Cf'. since the Alleyne decision. See, e.g.. Commonwealth v. Miller, 102 /\.Jd 988, 995 n.5 (Pa. Super. . .i i-~ I Ct. 2014), reargument denied (Dec. 5, 20 I 4). Therefore, imposition of the mandatory minimum "~,.~. -, sentence was proper, despite the fact that the jury did not find beyond a reasonable doubt that . Q~ . i!, Appellant had been previously convicted.22 Q1

IX. Appellant's judgment of restitution was proper.

As a condition of his sentence, Appellant was ordered to pay restitution

amounting to $9 ,782.38. Appellant maintains that he should not be held to pay restitution

because Complainant's hospital bills were not introduced into evidence.

In a criminal proceeding, an order of restitution is 'a sentence.· The Pcnnsyl vania

Crimes Code provides for orders of restitution in section l l 06, which states:

Upon conviction for any crime wherein property has been stolen, converted or ; otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly ·1 resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

18 Pa. C.S.A. § 1106(a). The code also explains that in determining the amount of restitution the

court shall consider the extent of the injury sufTered by the victim as presented by the district

attorney. See 18 Pa. C.S.A. § I J06(c)(2)(i),(4). "When imposed as a sentence, the injury to

property or person for which restitution is ordered must directly result from the crime."

Commonwealth v. Kinnan, 71 A.Jd 983, 986 (Pa. Super. Ct. 2013). Where a restitution order has ·

r>

22 It would be nonsensical to submit the facts of a prior conviction to a jury for consideration, when a defendant has already been found guilty on those facts (or pleaded guilty). In other words, Appellant does not currently have the right to insist that this second jury find him guilty of his prior Robbery and Burglary charges.

35 Circulated 10/20/2015 04:09 PM ~J, fl ; oi ! ~1 ! been challenged on the basis that it is unsupported by the record, it is a challenge to the legality

Q~ of the sentence, and therefore the standard of review on appeal is plenary. Id. 11~ r.:i The amount of restitution that Appellant was ordered to pay was suggested to the Court

by the Commonwealth, as provided for in § 1106. The prosecutor stated at the sentencing

hearing that the restitution amount came from medical bills dating from the time of the offense.

Sentencing Tr. 28:20-32:2, Nov. 25, 2014. Three medical bills were examined by the' Court.23

Complainant had to undergo several medical procedures, including getting stitches in his car and

having his jaw wired shut. The order of restitution was proper and supported by the record.

CONCLUSION

For all of the aforementioned reasons, this Court's order should be affirmed.

BY Tl-IE COURT:

Copies of the above Opinion Mailed on ·2:: - 1 r, - /, :5 By Firsf-Class Mail: Giovanni. Mucci, Pro Sc, Appellant By Inter-Office Mail: · Anne-Schools, Court Administration Montgomery County District Attorney- Appellate Division

~f..&,6µ. 23 There was a bill for $951 for the ambulance, which showed the date of service as September 6, 2012 (the date of the incident). There were two bills for Mercy Suburban Hospital, one of which was for S7,40 I, and· which showed the date of service as September 6, 2012, the date of the incident.