Com. v. Palumbo, B.
Com. v. Palumbo, B. No. 141 EDA 2017
| Pa. Super. Ct. | Aug 17, 2017Background
- Defendant Bartholomew Palumbo visited his on‑again/off‑again girlfriend, Alexandra Swartz; after disputes about text messages, he twice returned and physically assaulted her, including punching her, dragging her down basement stairs, attempting to gag her, and later telling others he thought he had killed her.
- Swartz survived with facial fractures and significant bleeding; she whispered to police that Palumbo had assaulted her and was treated at a hospital.
- Palumbo was arrested, gave a videotaped statement claiming Swartz was the aggressor and that her injuries resulted from falling and/or seizure, and testified at trial offering a largely passive‑defense account (raising arms, accident) inconsistent with prosecution evidence.
- A jury convicted Palumbo of attempted homicide, aggravated assault, terroristic threats, and recklessly endangering another person; he was sentenced to 12–24 years’ imprisonment.
- Post‑trial, Palumbo raised claims including (1) trial court’s refusal to instruct on self‑defense, (2) admission of a pre‑treatment color photograph of Swartz, (3) denial of a mistrial after testimony that Palumbo had been on house arrest, (4) prosecutorial misconduct in closing, and (5) excessive sentence.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Palumbo) | Held |
|---|---|---|---|
| Trial court refused to instruct jury on self‑defense | Self‑defense not supported by evidence; prosecution must be required to disprove only if instruction properly given | Palumbo argued his testimony that Swartz attacked him and he raised his arms entitled him to a self‑defense instruction | Court: No self‑defense instruction required because Palumbo denied using force (his account was passive/accident); self‑defense legally requires use of force, so instruction was properly refused |
| Admission of graphic color photo taken in ambulance | Photo was probative to refute defendant’s self‑injury/accident theory | Photo was inflammatory and prejudicial | Court: Photo not so gruesome as to inflame jury; it had essential evidentiary value (others were post‑treatment); admission was not an abuse of discretion |
| Motion for mistrial after brother’s testimony referencing house arrest | Reference to prior criminal activity prejudiced jury and warranted mistrial | Reference was a passing, nonresponsive remark by defense witness and not intentionally elicited; cautionary instruction offered | Court: Denial of mistrial not an abuse of discretion; remark was passing, nonprejudicial, and could be understood as relating to bail/conditions for current case |
| Prosecutorial misconduct in closing (improper statements) | Prosecutor’s comments were improper and required new trial or sua sponte mistrial | Palumbo claimed trial court should have declared mistrial sua sponte because comments were clearly improper; alternatively, counsel’s failure to object should be excused | Court: Claim waived for failure to object at trial; court not required to declare mistrial sua sponte absent manifest necessity; no relief granted |
| Discretionary sentencing claim (excessive/unreasonable) | Sentence within standard range for attempted homicide and reflected gravity of offense | Sentence excessive given mitigating factors and minimal prior record | Court: Reviewable despite minor briefing defect; sentence within statutory range and not an abuse of discretion; claim denied |
Key Cases Cited
- Commonwealth v. Houser, 18 A.3d 1128 (Pa. 2011) (Commonwealth bears burden to disprove self‑defense once evidence of it is introduced)
- Commonwealth v. Mayfield, 585 A.2d 1069 (Pa. Super. 1991) (pulling a knife can constitute use of deadly force and support a self‑defense instruction)
- Commonwealth v. McFadden, 587 A.2d 740 (Pa. Super. 1991) (self‑defense instruction can be appropriate even where defendant claims injury was accidental if defendant concedes use of force)
- Commonwealth v. Gonzalez, 483 A.2d 902 (Pa. Super. 1984) (pointing a gun can be sufficient use of force to require self‑defense consideration)
- Commonwealth v. Harris, 665 A.2d 1172 (Pa. 1995) (self‑defense is mutually exclusive with accident or mistake when defendant’s theory admits no use of force)
- Commonwealth v. Haney, 131 A.3d 24 (Pa. 2015) (standard for reviewing admissibility of photographs and inflammatory nature)
- Commonwealth v. Funk, 29 A.3d 28 (Pa. Super. 2011) (photograph admissibility: inflammatory vs. essential evidentiary value)
- Commonwealth v. Lewis, 567 A.2d 1376 (Pa. 1989) (presence of blood alone does not render a photograph inflammatory)
- Commonwealth v. Brooker, 103 A.3d 325 (Pa. Super. 2014) (standard of review for denial of mistrial)
- Commonwealth v. Bruner, 564 A.2d 1277 (Pa. Super. 1989) (passing references to criminal activity do not mandate mistrial absent prejudice)
- Commonwealth v. Montgomery, 861 A.2d 304 (Pa. Super. 2004) (failure to comply with Pa.R.A.P. 2119(f) can waive discretionary sentencing review if Commonwealth objects)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (standard‑range sentence generally appropriate under Sentencing Code)