Commonwealth v. Bracey

831 A.2d 678, 2003 Pa. Super. 309, 2003 Pa. Super. LEXIS 2534
CourtSuperior Court of Pennsylvania
DecidedAugust 22, 2003
StatusPublished
Cited by55 cases

This text of 831 A.2d 678 (Commonwealth v. Bracey) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bracey, 831 A.2d 678, 2003 Pa. Super. 309, 2003 Pa. Super. LEXIS 2534 (Pa. Ct. App. 2003).

Opinions

OPINION BY

McEWEN, P.J.E.:

¶ 1 Appellant, Avery Everette Bracey, brings this appeal from the judgment of sentence to serve a total term of imprisonment of from six years to fourteen years, imposed after the jury found him guilty of robbery, aggravated assault, and theft by unlawful taking.1 We affirm in part and vacate in part.

¶2 The prosecution of appellant arose from crimes committed in Lancaster County on December 19, 2001, when an assailant beat and robbed 60 year-old Billy Mitchell of eight dollars ($8.00) while he was a guest in the apartment of a friend, and then took Mr. Mitchell’s truck. Mitchell reported the assault and theft to the police at approximately 10:00 p.m. of the same evening, and in less than one-half hour, appellant was apprehended behind the wheel of Mr. Mitchell’s truck. When appellant was brought to the police station, the police noticed blood stains on his clothes and hands. Pieces of appellant’s blood stained clothes were seized for lab testing, and samples of blood were recovered from his hands. The blood tests determined that the blood was of human origin with a high probability that some of it came from Mr. Mitchell. A jury, on July 9, 2002, found appellant guilty of the above referenced crimes. The trial judge imposed sentence on September 13, 2002, and appellant thereafter filed this timely appeal.

¶ 3 Appellant, in the brief submitted in support of this appeal, presents the following questions for our review:

Did the trial court err in prohibiting defense counsel from introducing evidence of the victim’s prior conviction for aggravated assault, where defense coun[681]*681sel’s theory of the case was that the victim had been in a fight with someone prior to encountering the defendant, and the Commonwealth opened the door to the victim’s prior record by claiming that the victim was “at his essence ... a decent person”?
Did the trial court err in denying defendant’s motion for a mistrial where the Assistant District Attorney, in his closing argument, improperly raised the fact that defendant chose to remain silent at the time of his arrest, and the court gave no corrective instruction?
Did the trial court err in repeatedly instructing the jury incorrectly regarding the elements and required culpability necessary to convict defendant of aggravated assault, where the Commonwealth conceded that the victim had not sustained serious bodily injury, and was seeking a conviction solely on the basis that defendant had allegedly attempted to cause serious bodily injury?

¶ 4 Appellant first argues that the trial court erred in refusing to permit defense counsel to use on cross examination the victim’s 1996 conviction for aggravated assault. He contends that:

[H]e should have been permitted to introduce evidence to show that Billy Mitchell had been convicted in 1996 of aggravated assault. Defendant’s theory of the case was that Mr. Mitchell had already been assaulted during an altercation with someone else when he encountered him. Thus, Mr. Mitchell’s violent nature was relevant because it tended to add credence to defendant’s version of events.

Brief of Appellant, p. 18. Our consideration of these contentions must include two salient factors: (1) the trial judge originally addressed this question during a pretrial ruling on defense counsel’s motion in limine, and (2) appellant did not assert a justification defense.

¶ 5 In reviewing a trial court ruling on the admissibility of evidence our standard of review is one of deference. It is firmly established that “[qjuestions concerning the admissibility of evidence lie within the sound discretion of the trial court, and [a reviewing court] will not reverse the court’s decision on such a question absent a clear abuse of discretion.” Commonwealth v. Chmiel, 658 Pa. 478, 498, 738 A.2d 406, 414 (1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000).

¶ 6 It merits mention that appellant does not urge that the judge’s pretrial ruling constituted an error of law. Rather, he contends that a comment made by the Assistant District Attorney during his opening address to the jury constituted an impermissible reference to the victim’s character, thereby “opening the door” to an attack on the victim’s character, and that, therefore, it was an abuse of discretion for the trial judge to refuse to permit the use of the victim’s prior conviction. The alleged offending comment of the prosecutor was contained within the following introductory remarks:

[This case is] also about the victim, Billy Mitchell who, as I said, is 60 years old. Mr. Mitchell is not like a lot of us. He’s had a hard life. He’s nervous about testifying today. He’s not the most social character but at his essence, he’s a decent person and he didn’t deserve what happened to him.

N.T. July 8, 2002, p. 41 (emphasis supplied).

¶ 7 This comment, when read in the context of the trial, was not a depiction of the victim’s character, but was an effort to negate the anticipated attempt of the defense to portray Mr. Mitchell as hapless [682]*682and unworthy because he was a sixty year old homeless man who, during cold spells, traded beer and cigarettes to Mends in return for a place to sleep. In fact, though drug use was denied by Mr. Mitchell, defense counsel, in an obvious attempt to discredit Mr. Mitchell, referred to him as a “crack head” at times during the trial. The Commonwealth’s comment was no more than a reminder to the jury that Mr. Mitchell, though living on the margin of society, was nonetheless deserving of the protection of the law. The trial judge appreciated this fact,2 and ruled that there was no attempt by the Commonwealth to invoke the victim’s character in behalf of his credibility. We find no basis upon which to disagree with this decision.

¶ 8 Moreover, since the trial judge correctly applied Pa.R.E. 609,3 and since appellant was not asserting a self-defense claim, we detect no basis upon which to find that the trial judge erred or abused his discretion in refusing to allow defense counsel to cross examine the victim about his prior conviction for aggravated assault.

¶ 9 Appellant next argues that the Commonwealth impermissibly referred to his pre-arrest silence, and that the trial court erred in refusing to grant his request for a mistrial. The standard governing our review of a trial court’s refusal to grant a request for a mistrial has been previously well summarized by this Court:

The decision to declare a mistrial is within the sound discretion of the court and will not be reversed absent a “flagrant abuse of discretion.” Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 997 (1992); Commonwealth v. Gonzales, 415 Pa.Super. 564, 570, 609 A.2d 1368, 1370-71 (1992). A mistrial is an “extreme remedy ... [that] ... must be granted only when an incident is of such a nature that its unavoidable effect is to deprive defendant of a fair trial.” Commonwealth v. Vazquez, 421 Pa.Super. 184, 617 A.2d 786, 787-88 (1992) (citing Commonwealth v. Chestnut, 511 Pa. 169,

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Cite This Page — Counsel Stack

Bluebook (online)
831 A.2d 678, 2003 Pa. Super. 309, 2003 Pa. Super. LEXIS 2534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bracey-pasuperct-2003.