Case Information
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA
v. No. 69 MDA 2017 GARY L. COLEMAN,
Appellant Appeal from the Judgment of Sentence, December 9, 2016,
in the Court of Common Pleas of Lycoming County Criminal Division at No. CP-41-CR-0001183-2015 BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E. FILED AUGUST 01, 2017
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Gary L. Coleman appeals from the December 9, 2016 judgment of sentence entered in the Court of Common Pleas Lycoming County following conviction jury trial [1] count each of aggravated assault -- attempt, aggravated assault, possessing instruments of crime, and disorderly conduct, 2 counts of simple assault.' The imposed aggregate sentence of 80 120 months imprisonment. We affirm.
The court set forth the following factual history, gleaned from trial transcript: two victims this case, Jason Allen ("Allen"), Jordan Anderson Royal, went Anne's Tavern
with Christopher Allen Joshua King around p.m. July 2015. Jason Allen and ' Pa.C.S.A. §§ 2702(a)(4), 2702(a)(1), 907(a), 5503(a)(1), 2701(a)(1), respectively.
Joshua King are brothers, Christopher Allen is their cousin, and Jordan Anderson Royal their friend. At Anne's Tavern, Jason Allen played pool. While playing pool, Jason Allen greeted Angela Di[M]arco, acquaintance from school, who he grew up with and with whom he was friendly. Angela Di[M]arco is [appellant's] fiance[e] and mother [appellant's] two young children. [Appellant] observed Jason Allen speaking to Di[M]arco and concluded that Allen Di[M]arco did not said something like. [Appellant] and Allen talked with each other about what Allen may have said Di[M]arco. While body language signaled discord between [appellant] and Allen, they did not yell or argue. conversation ended and Allen resumed playing pool.
As Allen was taking shot at pool, [appellant] calmly walked around him and smashed glass beer mug over Allen's head with such force it broke into pieces. [Allen] lining up cue ball take his next shot when heard and felt glass breaking over him. [Appellant] then pushed Allen into a corner, swinging at him, kicking him, striking him pool sticks chairs on Allen's face, back and stomach area. Multiple people blocked assistance Allen other people joined striking Allen. After altercation, Allen was the only individual [Appellant] was seen striking observed bleeding.
Allen more than five times. As [appellant] was leaving Ann[e]'s Tavern, [appellant] struck Jordan Anderson Royal [on] right side his body. After [appellant] struck Royal, Royal fell to the ground. Once the ground, [appellant] others kicked stomped Royal's right side of his torso.
Allen lost lot of blood and required about 30-40 stitches. Prior stitching wounds, medical staff pulled out pieces glass from Allen.
Medical records indicate Allen suffered "a minor closed head injury, no concussion, multiple deep lacerations right . . periorbital area . right cheek area," noted "foreign body present, complicated repair." Medical staff advised Allen may have "a few small pieces of glass In his testimony, Allen rated his pain left behind." level a 9 a scale of [1] to 10, 10 being "the most extreme amount of pain[,]" lasting for about three to four days after the assault. Allen suffered scarring on his side and back from pool stick or chairs. Allen suffered swelling to face and mouth area jaw and inside his lip. Allen suffered permanent scarring on his face body. Allen was off work for two weeks. Allen endured eye twitching for a period of about four six months double vision of the right eye for a couple of months. Allen increased visits chiropractor. As a result of his injuries, Allen stopped playing semi -pro football for couple of weeks now uses a special padded helmet when playing football.
Trial court opinion, 4/5/17 at 3-5 (citations to notes of testimony omitted; one set of brackets original).
The record reflects appellant did not file post -sentence motions, but filed a timely notice of appeal.2 The then entered order directing appellant file concise statement of errors complained on appeal pursuant Pa.R.A.P. 1925(b). Appellant filed motion extension time which file his Rule 1925(b) statement reserved the right supplement his statement following receipt transcripts. court granted appellant's motion, appellant filed timely supplemental [2] Although the 30th day following imposition of sentence Sunday, January 8, 2017, timely filed notice of appeal Monday, January 2017. See Pa.C.S.A. § 1908, incorporated reference into Rules of Appellate Procedure, Pa.R.A.P. (omitting Saturdays, Sundays, and legal holidays from time computation).
- 3 - Rule 1925(b) statement following receipt of transcripts. Thereafter, the trial court filed its Rule 1925(a)opinion.
Appellant raises the following issues for our review:
[1.] Whether the trial court erred by allowing the
admission of exhibits 12, 13, 14, 17, and 19 despite their misleading unduly prejudicial nature?
[2.] Whether the verdict as the charge of
Aggravated Assault, Pa.C.S.[A.] 18 § 2702(a)(1), supported sufficient evidence regarding [appellant's] intent to injury given he cause serious bodily refrained from using available implements, such as shards of glass, certainly would have caused serious bodily injury?
[3.] Whether trial court erred in denying
[appellant's] Motion for Continuance Mistrial after the Commonwealth informed the Court defense witness, Angela DiMarco, was being investigated potential witness intimidation charges and, further, should be warned about potential perjury charge should testify planned, she choose thus preventing the defense from presenting the testimony needed support its theory of the case?
Appellant's brief (footnote omitted).3
Appellant first complains abused its discretion when it denied motion in limine exclude crime -scene photographs from being introduced into evidence at trial. We note the Commonwealth elected against filing brief opposition this matter. (See Commonwealth correspondence this court, docketed
5/22/17.)
"When reviewing the denial of a motion in limine, we apply an evidentiary abuse of discretion standard of review." Commonwealth v. Mitchell, 902 A.2d 430, 455 (Pa. 2006) (citation omitted). "In general, relevant evidence, i.e., evidence logically tends establish a material fact the case, tends make a fact issue more or less probable[,] or supports a reasonable inference or presumption regarding a material fact, is admissible." Commonwealth v. Jordan, 65 A.3d 318, 324 (Pa. 2013), cert. denied, 134 S. Ct. 1275, 188 L. Ed. 2d 311 (2014) (quotation quotation marks omitted). Although a may find evidence is relevant, it may nevertheless exclude the evidence if its probative value is outweighed the likelihood of unfair prejudice. Commonwealth v. Reid, 811 A.2d 550 (Pa. 2002), cert. denied, 540 U.S. 850 (2003) (citation omitted). Accordingly, exercising its discretion, the trial court must balance evidentiary value of the evidence against the potential dangers unfairly prejudicing the accused, inflaming the passions jury, or confusing the jury. Jordan, A.3d at 325. Additionally, "[t]he admission of photographs is matter resting the discretion of the court." Commonwealth v. Tharp, 830 A.2d 519, 530 (Pa. 2003). In v. Malloy, 856 A.2d (Pa. 2004), our supreme court outlined two-part test for admissibility of photographs.
First, court must decide whether photograph is inflammatory by its very nature. If the photograph deemed inflammatory, court must determine whether the essential evidentiary value of the photograph outweighs likelihood that the photograph will improperly inflame the minds passions jury.
Id. at 776.
Here, appellant does not contend that the crime -scene photos were irrelevant or inflammatory. Rather, appellant complains that the photos appellant, the blood that was were misleading because, according depicted the crime -scene photographs not necessarily Allen's blood, as such, the jury should not have seen those photographs because it "allowed the jury render decision on an improper basis" permitting it conclude "given the amount blood depicted, if all blood came from Allen, must have been seriously injured" appellant "must have committed aggravated assault." (Appellant's brief at 14.) In support of this argument, appellant relies on Leahy v. McClain, 732 A.2d 619 (Pa.Super. In negligence case, the trial court precluded the introduction 1999). into evidence of photographs failed accurately depict the accident scene at the time the accident occurred because the photographs were taken summer day when road was dry, the accident occurred winter night during snowstorm. As such, precluded admission of these photographs because they would mislead jury visibility conditions the time of the accident. Id. at 624-625.
Here, maintains similar the inadmissible photographs Leahy, the crime -scene photographs introduced into evidence at trial were misleading because they permitted the jury to infer that all of the blood depicted in the photographs came from Allen. Appellant's reliance Leahy is gravely misplaced because, unlike Leahy, the photographs shown to the jury in appellant's case were crime -scene photos, not photos taken months later under completely different conditions. Moreover, the record reflects the Commonwealth introduced evidence that Allen was the only person bleeding night. (Notes of testimony, 10/27/16 at 23-24, 51-52.) We find no abuse of discretion.
Appellant next complains the evidence insufficient convict him of aggravated assault because lacked the intent cause serious bodily injury Allen, as the facts demonstrate "did not take advantage of every opportunity seriously injure Allen" because appellant could have used "shards of [a] broken beer mug[,]" "which would have made excellent weapon." (Appellant's brief at 15-16.) standard we apply reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted light most favorable verdict winner, there is sufficient evidence to enable fact -finder to find every element crime beyond reasonable doubt. In applying the above test, we may not weigh the evidence substitute our judgment the fact -finder. In addition, we note the facts circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding defendant's guilt may be resolved the fact -finder unless evidence so weak inconclusive that matter law no probability fact may be drawn from combined circumstances. The Commonwealth may sustain its burden of proof of proving every element of the crime beyond reasonable doubt by means of wholly circumstantial evidence. Moreover, applying the above test, entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier fact while passing upon credibility of witnesses the weight of the evidence produced, free to believe all, part or none of the evidence. Commonwealth v. Pappas, 845 A.2d 835-836 (Pa.Super. 2004) (citation omitted).
Under Crimes Code, a person may be convicted of aggravated assault, first -degree felony, if he "attempts to cause serious bodily injury another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference the value of human life." Pa.C.S.A. § 2702(a)(1); see also Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa.Super. 2005).
In this case, jury convicted aggravated assault after finding caused Allen sustain serious bodily injury. "When victim actually sustains serious bodily injury, the Commonwealth can, but does not to, establish specific intent cause such harm." necessarily have v. Burton, A.3d 598, 602 (Pa.Super. 2010). Moreover, "statute's intent requirement can be met if defendant acts recklessly under circumstances manifesting extreme indifference human life." Id. (citation omitted). "The intent to cause serious bodily injury -- the only element aggravated assault issue here -- may be proven direct or circumstantial evidence." v. Hall, 830 A.2d 542 (Pa. 2003) (citation omitted).
Here, no dispute exists that appellant struck Allen the head with glass beer mug with such force that it shattered into pieces causing Allen to sustain multiple wounds that each required to 40 sutures to close. The Commonwealth presented eyewitness videotape evidence of appellant committing the assault. Additionally, appellant testified that he planned to hit Allen with the beer mug that he also intended to hit "somebody" with pool stick. (Notes of testimony, 10/27/17 124-126.) Eyewitness videotape evidence revealed that after appellant struck Allen with beer mug with such force that it shattered into pieces caused Allen to sustain multiple wounds that required emergency medical intervention, appellant repeatedly struck Allen with pool stick, inflicting further injury.
Despite this evidence, now complains that that because he could have used shards glass of the broken beer mug to assault Allen, the fact he chose not demonstrates that he lacked the requisite intent sustain aggravated assault conviction. Appellant gravely mistaken. At very least, the videotape evidence, together with eyewitness testimony appellant's admission struck Allen with beer mug head such force it shattered into pieces blow caused Allen sustain multiple wounds each required to 40 sutures close was sufficient prove intent cause serious bodily injury because it demonstrated acted recklessly with extreme indifference to Allen's life. Therefore, this claim lacks merit.
Appellant finally complains trial court abused its discretion when it denied motion for continuance/mistrial after defense witness Angela DiMarco came under investigation for witness intimidation of three prosecution witnesses, a result of investigation, Ms. DiMarco decided against testifying appellant's behalf.
In criminal trials, declaration a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into case or otherwise discovered at trial. By nullifying the tainted process former trial allowing a new convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed end in just judgments. Accordingly, the is vested with discretion grant a mistrial whenever alleged prejudicial event may reasonably be said deprive the defendant of fair impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, if so, . . assess . degree of any resulting prejudice. Our review of the resulting order is constrained determining whether court abused its discretion. Judicial discretion requires action in conformity [the] law facts circumstances before the trial court after hearing consideration. Consequently, the court abuses its discretion if, resolving the issue decision, it misapplies the law or exercises its discretion manner lacking reason. v. Tucker, A.3d 961 (Pa.Super. 2016) (citations
omitted). grant mistrial is an extreme remedy is required "only when incident such nature its unavoidable effect is
- - deprive the appellant a fair and impartial tribunal." v. Johnson, 719 A.2d 778, 787 (Pa.Super. 1998) (en banc) (citation omitted).
Here, the record reflects that Ms. DiMarco, appellant's fiancée and mother his two children, came under investigation for witness intimidation during appellant's trial. Defense counsel made oral motion for continuance/mistrial claiming counsel had planned to call Ms. DiMarco on appellant's behalf "[n]ot having her available greatly hampers [appellant's] defense." (Notes of testimony, 10/27/16 at 72.) trial court denied the oral motion continuance without prejudice deferred its ruling on the motion for mistrial until Ms. DiMarco decided whether she would testify appellant's behalf. (Id. at 78-79.) Counsel was then appointed advise Ms. DiMarco as the legal consequences her decision testify. Thereafter, Ms. DiMarco stated record she would not testify decision was of her own free will. (Id. 98.) Defense counsel did not renew the motion for continuance, court did not declare mistrial.
Appellant now complains that:
[h]ad continuance been granted until Ms. DiMarco's charges had been resolved, she would have been available witness these crucial facts could have come to light. Because she reasonably decided she would plead Fifth if she were called testify, [appellant] prejudiced was unable fully present the facts necessary to support theory of the case. Appellant's brief at 18-19 (citation to notes of testimony omitted).
Appellant fails to explain, and we cannot fathom, how defense witness who comes under investigation for witness intimidation and decides against testifying to reduce her exposure to criminal liability constitutes a prejudicial event deprived fair impartial trial. As explained:
A jury would likely view testimony by Di[M]arco as potentially biased. Di[M]arco was [appellant's] fiance[e] mother his small children. [Appellant] should not profit from alleged misconduct fiance[e].
There was no specific proffer as what Ms. Di[M]arco's testimony would have been or how it would advance [appellant's] theory case.
There no suggestion that [the] circumstances surrounding Ms. Di[M]arco's ability testify would change within reasonable time. The asserted those circumstances would not change. Any testimony Ms. Di[M]arco would be weighed as having some potential bias [appellant's] favor. Given the admissions by in [appellant] the video [evidence], Ms. Di[M]arco's testimony would not go toward whether [appellant] struck Allen glass beer mug attacked Allen but rather would likely have been cumulative evidence what transpired verbally between Allen [appellant]. Since [appellant] did not allege self-defense or defense of others so it is unclear what theory of case Di[M]arco's testimony could support. Court believes it was appropriate deny the continuance/mistrial.
After hearing consideration, the learned acted in conformity with law the facts circumstances came before it respect investigation Ms. DiMarco appellant's requested continuance/mistrial. Accordingly, we discern no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 8/1/2017
- - Trial court opinion, 4/5/17 (citations notes of testimony omitted). - -