Commonwealth v. Constant

point specific objections grant- it was

ing it “[Appellees]’ as asserted that Pre- I, II,

liminary Objections to Counts [Appellants’]

III of Complaint Amended

аre hereby Appellees’ sustained....” oth- preliminary objections

er were found to

have been rendered moot this determi- such,

nation. Appellants As were made

aware that court had focused its

analysis upon Appellees’ Preliminary Ob-

jections to the in Appel- first three counts Complaint.

lants’ Significantly, the issues

Appellants develop in their brief relate to

Appellees’ objecting reasons for to Counts

I, II, III, Complaint. of their

¶ 4 Accordingly, Appellants I would find appeal.

have waived all issues on Pennsylvania,

COMMONWEALTH of

Appellee CONSTANT, Appellant.

Edward

Superior Pennsylvania. Court

Argued Dec. 2007. May

Filed vehi

sylvania. They separate arrived Kite, officer and Officer first cles arrive, on the front door. knocked and, ac door answered [Constant] Kite, angry, bel cording to was Officer Rieg soon ligerent and hostile. Officer began to also [Constant] arrived and him. referred [Constant] berate bastards,” told them as “Nazi officers fine in the everything house door in their faces. and slammed the dis Because the call was for domestic they had talked to turbance and [Susan], obvi light [Constant’s] and in again angry disposition, officers ous greet They door. were knocked [Susan,] ap who also ed time they told angry and them peared and husband needed leave her her shut the attempted again alone. She Rudovsky, Philadelphia, appel- David for door, so, could [Con but before she do lant. wife, reappeared still behind his stant] Timothy Lyon, Atty., J. Asst. Dist. Pitts- state, and angry agitated an and Com., burgh, appellee. wife, causing fall to grabbed his her to got up, she the floor. she back When MUSMANNO, BEFORE: BENDER door, again attempted to shut the but POPOVICH, and JJ. doing by Officer prevented was from so foot in the door Rieg, placed who his MUSMANNO, OPINION BY J.: fell[,] way. After [Susan] [Constant] (“Constant”) ap- 1 Edward Constant hallway left soon briefly the front but from en- peals judgment sentence returned, magnum a .44 carrying caliber following tered his conviction of two counts pointed weapon direct revolver. He (homicide), three attempt of criminal pulled trigger. ly Rieg at Officer assault, aggravated counts of and one chest, the officer in the The bullet struck recklessly endangering count of another door through him back propelling person.1 We affirm. way, porch front and over onto the ¶ 2 the facts The trial court summarized porch the front railing of the front into underlying appeal the instant as follows: Rieg’s protective pre vest yard. Officer entering from his the bullet 26, 2002, vented Mt. Po May Lebanon

[O]n body. Rieg Jeffrey lice Officers Daniel respond shot, to the re left the

Kite were called to After Officer Kite He of a to find cover. port porch attempted domestic disturbance again. Officer with fire [Constant] residence that shared heard [Constant] [“Susan”], front wife, laying in the Rieg, who now Susan Constant was gun to- Lebanon, point saw Piper yard, in Mt. Penn [Constant] Drive §§ 1. 18 Pa.C.S.A.

wards him again and fire several posed more another yеar ten term probation, times, missing him. As [Constant] to be served consecutive to the sentence at him, came off the porch approached II, Count but concurrent to Constant’s Rieg Officer pull able to his own sentence at Count III. The trial court weapon and fire twelve rounds towards imposed no penalties further for Con- [Constant]. One of his shots struck remaining stant’s Thereafter, convictions. buttocks, in the causing [Constant] him Constant timely filed the instant appeal. to fall to the ground. Other officers ar- ¶ 5 presents following rived and were able to subdue [Con- claims for our review: so, they doing stant]. As were [Con- stant] continued to resist and referred 1. Whether the trial court erred in de- to the officers as “Nazi bastards.” nying The Motion to [Constant’s] Dismiss handgun that was seized from based on jеopardy [Con- double principles and contained six spent cartridges, stant] in- whether the court erred failing to dicating that it had been fired six times. recuse itself from consideration of this Motionf?] Opinion, 1/20/06, Trial Court at 4-5. jury 3 A guilty found Constant 2. Whether the trial court denied [Con- charges

above-described after a trial be- right stant] his constitutional public to a fore the Honorable David R. Cashman. precluded trial when it from at- [Susan] However, the trial court granted Constant tending jury selection[?] a new trial upon based improper comments 3. Whether the trial court erred in its from a Judge member of Cashman’s staff (a) evidentiary rulings by: admitting ev- jury. trial, to the Prior to the new Con- idence of alleged assault on [Constant’s] stant dismiss, filed a Motion to asserting [Susan] after [Constant] had been ac- that a new trial was barred by the United quitted charge trial; of that at his first States Pennsylvania Constitutions, as (b) denying admission of evidence of the well by § as 18 Pa.C.S.A. 109. Constant bias; (c) complainant’s admitting ev- also filed a Motion to Judge recuse Cash- idence of unrelated bad acts[?] Judge man. Cashman denied the Motion 4. Whether the trial court erred in pre- dismiss, but ultimately granted the Mo- evidence, cluding including expert testi- tion to recuse. The case was then as- mony, of level [Constant’s] of intoxi- ‍‌​​‌‌​‌‌​‌​‌‌‌‌​‌​​‌‌‌‌​​​‌‌​‌‌​​​​​​​​‌​‌‌​​‌​​‍signed to the Jeffrey Honorable A. Man- cation and in instructing jury that ning for trial. could [Constant] be convicted of in- ¶ trial, 4 At the conclusion of the second tentional attempted crime of murder again convicted Constant of the even if never had [Constant] the con- above-described offenses. At Count I scious intеnt to kill[?] (criminal attempt), the trial court sen- tenced prison Constant to a term of 96 to 5. Whether the trial court by erred (criminal 192 (a) months. At II Count at- failing jury[ to instruct the that it ] tempt), the trial imposed court a consecu- could consider the evidence of [Con- prison tive term of 78 to 156 months. At stant’s] character for truthfulness in as- assault), (aggravated (b) Count III the trial sessing credibility; his that the de- imposed probation term of 10 fense of others applicable to this years, (c) to be case; served consecutive to Con- assault physical stant’s sentence at II. At Count Count IV menace awas lesser offense for which assault), (aggravated the trial court im- could be [Constant] eonvicted[?]

815 Thomas, 42, 352, A.2d Pa. 292 355 Appellant Brief of at 5. We will address 448 Melton, (1972) v. (citing these claims order. Cоmmonwealth (1962) A.2d 343, Pa. 728 and Com 406 178 6 Constant first claims that Banmiller, rel. v. monwealth ex Patrick trial court his improperly denied Motion (1960)); 163, Pa. 157 A.2d 214 see 398 upon dismiss federal prosecution based Einhorn, 960, v. 911 A.2d Commonwealth protections against constitutional state (recognizing that be (Pa.Super.2006) 969 that a jeopardy. double Constant claims petition a new appellant’s cause Judge engaged member of staff Cashman’s granted, appellant trial had been impermissible contact with the deliber claim). jeopardy waived double ating per intent jury, “with the clear jury to suade the [Constant].” convict however, asserts, 9 basis, at 15. On this Constant asserts clause will bar a retrial jeopardy double protection against the constitutional double prosecutorial judicial or over- where jeopardy disagree. bars retrial. We reaching prejudice “was intended deny him a fair thereby defendant and Jeopardy 7 The Double Clause 14 Appellant (quoting trial.” Brief the Fifth “no Amendment commands that 177, Smith, v. 532 Pa. 615 ... person subject be for the same shall (1992) 321, A.2d and Commonwealth put jeopardy offence to be twice of life 1221, Martorano, 533, Pa. 741 A.2d McGee, limb.” Commonwealth v. (1999)). Smith, Pennsylvania (2000) Pa. (quoting prosecutor’s held Supreme Court that the V). U.S. Const. Amend. Under ip implications misconduct “had constitutional Clause, placed jeop once a defendant is under the which jeopardy double clause offense, ardy jeopardy for an and termi Smith, 615 A.2d at 321- prohibit retrial.” offense, respect nates with to that the 22. The had been defendant Smith may pun defendant neither be tried nor his Following accused of murder. Id. а time ished second the same offense. Dixon, 696, appeal, the defendant discovered 688, direct United v. 509 States U.S. (1993). 2849, prosecutor informa- that the had withheld 113 S.Ct. 125 L.Ed.2d 556 sentencing a rec- Pennsylvania The rec tion favorable Supreme Court has given prosecution’s “the to the ognized corresponding proscrip that ommendation had Pennsylvania prosecution tion contained in and that the the Consti chief witness Const, tution, 10, 1, § knowingly exculpatory physical Pa. art. ‘involves the withheld ]’; thus, meaning, purpose, Pennsylvania same evidence. Id. at 323. The end[ generally jeop- it has been construed as coexten Supreme held that the double Court at counterpart.” sive with its federal Id. “when the ardy prohibits retrial clause n. 2 v. (quoting intentionally 756 prosecutor of the conduct McCane, 340, 489, Pa. A.2d 346 n. 517 539 prejudice the defendant undertaken to (1988)). 5 fair Id. point the the denial of a trial.” basis, Supreme at 325. On this Court case, In this Constant filed 8 court, which order of the trial reversed the trial, trial a new which the Motion for dis- the defendant’s motion to had denied granted, upon based conduct miss, discharged the defendant. firmly “It judge’s tipstaff. trial Martorano, Pennsylvania Su- 10 that a been established defendant who has the Smith standard amplified Court upon preme secures convicted and his own motion re- jeopardy double barred and held that may jeopardy a new trial double plead prosecutor of the where trial.” Commonwealth defendant second 816 including,

committed misconduct “blatantly Constant waived his double jeopardy disregarding evidentiary claim, the trial аny court’s Judge error Cashman in rulings, disparaging integrity of the denying the recusal Motion to consid- trial court in front jury, ering Motion to dismiss was harmless. repeatedly alluding to evidence that Samuels, See Commonwealth v. 566 Pa. prosecutor knew did not exist.” (2001) Martora- 109, 638, (stating 778 A.2d 641 no, Pennsylvania 741 A.2d at 1222. The will judgment of sentence be affirmed in that, Supreme prose- Court held where the spite only of an error the reviewing where prosecutor’s cutor’s action “evinces the in- beyond court concludes a reasonable doubt trial; deprive tent to Appellant of a fair the error did not contribute to the ignore the legitimate advocacy; bounds of verdict). Accordingly, Constant is not en- short, by any to win a conviction means titled to relief on claims. these necessary!,]” jeopаrdy protection double ¶ 13 Constant next claims that the applies. trial court erred when it precluded his ¶ However, 11 both Smith and Martora- wife, Susan, attending from selec no application involved the of the double Constant, tion proceedings. According to jeopardy clause where the defendant had the trial him ruling deprived court’s of his not filed a motion for a new trial. The right public to a trial. of Appellant Brief Pennsylvania Supreme express- Court has additionally points 24-25. Constant out ly refused to bar retrial jeopar- on double upheld the federal courts have dy grounds where the defendant has filed right family of a defendant’s members to Thomas, a motion for a new trial. See attend the criminal trial. Id. at 25. (stating A.2d that an appellant’s voluntary act of sеeking receiving right The Sixth Amendment new trial constitutes a waiver of any dou- a public trial in a criminal binding case is claim); jeopardy ble Commonwealth v. process on the through states the due Sanford, 442, 1220, 497 Pa. 441 A.2d 1221 clause of the Fourteenth Amendment. (1982) (same). Pennsylvania Supreme The Johnson, Pa.Super. Commonwealth v. exceptions Court has allowed no under (1982) (citing Dun scenario, procedural by and we are bound Louisiana, 145, can v. 391 U.S. 88 S.Ct. holdings. Accordingly, its we conclude 1444, (1968); 20 L.Ed.2d 491 United States that because granted Constant ‍‌​​‌‌​‌‌​‌​‌‌‌‌​‌​​‌‌‌‌​​​‌‌​‌‌​​​​​​​​‌​‌‌​​‌​​‍was a new Rundle, ex rel. v. Bennett 419 F.2d 599 Motion, trial on his own he has waived his (3rd Cir.1969)). Pennsylvania The Consti claim protection that the constitutional guarantees tution likewise an accused’s against jeopardy double bars his retrial. 1, right public to a trial. Pa. Const. Art. 9, 11. right public sec. The tо trial is ¶ 12 Constant also asserts that applicable to proceedings. voir dire Judge improperly Cashman refused to re- Press-Enterprise Company Superior v. prior resolving cuse himself to the Motion Court, 501, 508-10, 819, 464 U.S. 104 S.Ct. dismiss, evidentiary to or to conduct an (1984); Johnson, 78 L.Ed.2d 629 455 A.2d However, hearing on the Motion. as stat at 659. supra, ed voluntary Constant’s act of seek ¶ case, ing receiving and a new trial In constituted this defense counsel re- jeopardy waiver of his quested permission pres- double claim. See for Susan to be Thomas, N.T., 1/20-21/05, supra. evidentiary An hearing during ent voir dire. counsel, would not have assisted in the resolution of 165. Defense who made this re- addition, quest day Constant’s claim. because at the close of the first of voir dire, of a record for later review.” making that wanted to the indicated Susan be she loves her husband Id. present “[b]ecause The wants to be there.” Id. at 166. ¶ case, permit- the trial court 17 In acknowledged “the

trial court that media proceed- to voir ted media attend dire the partieipate[.]” to Id. at generally allowed proceedings were transcribed ings, and the However, 167. the trial court denied Su- 1/20-21/05, N.T., by reporter. a court that permission stating to attend “[w]e san in the trial court’s Keeping mind appeal, have space.”2 don’t On Con- limitations, we space of the assessment challenge does trial stant not court’s conclude that Constant was denied cannot during space assessment of the limitations public his trial because of right to voir dire. general pub- of a member of exclusion determining liс, Susan, 16 In whether the from Accord- proceedings.3 in the instant case procedure voir dire on ingly, entitled relief trial, right a public violated Constant’s this claim. in keep right

we mind that such serves two claims that the trial 18 Constant next (1) general prevent an ac purposes: evidentiary court of its erred several subject being cused from to a star cham that rulings. Specifically, Constant claims (2) proceeding; pub ber to assure (1) evi- improperly the trial court admitted being lic standards of fairness are alleged assault on dence of Constant’s Harris, observed. Commonwealth 550 wife, acquitted he had of after been 441, (1997) (citing Pa. A.2d (2) admission of evidence charge; denied v. Berrigan, 509 Pa. (3) bias; complainant’s (1985)). public’s right 501 A.2d 226 “The criminal admitted evidence of unrelated absolute, to attend a trial is not and exists Appellant acts. Brief of at 27. willWe guarantee judicial as a fairness con in turn. each contention address during duct criminal proceedings.” court 19 Constant first asserts that Berrigan, 234. “Where trial improperly admitted evidence perceive orderly courts a threat to the assault on his wife. alleged related to justice administration their court Constant, acquitted he was by According unmanageable public, they rooms an trial, may always assaulting his wife in the which place reasonable restrictions did courtroom, jury access indicate that the not believe long to the so as the would guarantees testimony police of the officers. Con preserved basic of fairness are rejected presence press argues such as stant because Opinion, In its Court’s attention to the court denied Con- 3. Constant directs this trial regarding the (1) several federal court decisions stant a new trial on two the bases: record pro- family of members at court attendance support did not that Constant's claim his wife Pennsylvania ceedings. Constant cites no during was barred from the courtroom voir supporting his conten- state court decisions dire; (2) prej- Constant failed to establish Giffin, Pa.Su- See Commonwealth v. 407 tion. the a udice. We affirm trial court’s denial of 101, 15, (1991) per. (stating that 595 A.2d 107 trial, grounds. new albeit on different See ruling particular on a in absence of a the 769, Singletary, 803 A.2d Court, Supreme question by the States United (Pa.Super.2002) (stating that 772-73 "[i]t appel- the federal intermediate decision correсt, well settled that where the result is district court is panel late federal may appellate an a lower court affirm court’s courts). Pennsylvania We decline binding on regard any ground decision on without to the holdings the under apply the federal court's itself”). ground upon by the relied lower presented in this case. circumstances testimony the of the officers in the judgment any prior adjudica- includes trial, the doctrine of estoppel collateral tion of an in issue another action that is preclude should the same in evidence this sufficiently firm to be accorded conclu- disagree. trial. We sive effect. (footnotes Initially, we are mindful that Id. at 502-03 citations omit-

the ted). admission of evidence is a matter com mitted to the sound discretion of ¶ 22 In Opiniоn, its the trial court deter- court, and the evidentiary court’s decisions estop- mined that the doctrine of collateral will not be overturned absent an abuse of pel preclude did not the admission of the Edwards, discretion. Commonwealth v. police testimony officers’ in the instant (2006). 151, 1139, 588 Pa. stated, case. The trial court ¶ 21 “The doctrine of collateral case, jury’s acquittal this of [Con- estoppel is a part of the Fifth Amend simple assault did not stant] necessar- ment’s guarantee against jeopardy, double ily found, fact, jury mean that the aas which was made applicable to the states not, that did [Constant] as the officers through the Fourteenth Amendment.” testified, cause his wife to fall to the Holder, Commonwealth v. 569 Pa. ground. pushed Whether or not he her (2002) (citatiоns omitted). A.2d ground was not an fact ultimate ... phrase The “collateral estoppel,” that had to be decided regard with also known as “issue preclusion,” simply charge simple jury assault. The law, means when an issue of eviden- just easily could have based their verdict fact, tiary or ultimate fact has been de- bodily injury on a lack of aor lack of by termined a valid judgment, and final intent to bodily injury. jury cause The that issue cannot litigated again be be- very could well have believed the offi- tween the parties any same future testimony cer^’] [Constant] lawsuit. Collateral estoppel does not knocked his wife to the ground and still automatically subsequent bar a prosecu- guilty found him not of that offense. tion, rather, but it bars redetermination Because fact [Constant] in а prosecution second of those issues knocked his wife to the ground was not necessarily determined par- between the necessarily decided when proceeding ties a first that has be- they acquitted Assault, Simple him of come a final judgment. correctly Court denied [Constant’s] Traditionally, Pennsylvania courts seeking any motion to preclude refer- have applied estoppel collateral doc- ence to that occurrence. only trine if following threshold re- 1/20/06, Opinion, Trial Court at 7-8. The 1) quirements are met: the issues in the sound, trial court’s rationale is and we sufficiently two actions are similar and affirm on that basis. sufficiently justify material to invoking ¶23 2) doctrine; Constant next asserts that actually the issue was 3) the trial court litigated action; improperly denied admis the first sion of judgment complain final evidence specific issue in trial, question was issued in ant’s bias. Constant asserts that at the first action. An actually litigated sought issue is it he to establish the bias of when Officer raised, properly Rieg by introducing submitted for of determi- evidence Officer nation, actually Rieg’s against and then civil determined. suit Constant. Brief estoppel suit, For collateral purposes, Appellant a final for at In that 29. which home, and was at the time the instant Constant’s between Constant pending of trial, for sought damages Rieg Officer from the Mount Lebanon Police officers injuries by caused ‍‌​​‌‌​‌‌​‌​‌‌‌‌​‌​​‌‌‌‌​​​‌‌​‌‌​​​​​​​​‌​‌‌​​‌​​‍Constant. Id. Con- at Brief for 30. Department. Appellant improper- stant that the trial court asserts that such evidence was Constant asserts ly precluded asking questions him from inadmissible, sought portray to Con- suit, regarding the nature of the other Id. at “violence-prone person.” stant as a than the fact of existence. Id. its argues that this 31. further evi- Constant implicated prior Constant in “bad again, Opinion the trial dence Once court’s concisely conduct,” link addresses this claim: and that there was no be- incident prior tween the and Constant’s fact ignores

[Constant’s] claim case. permitted was to introduce motive the instant Id. We dis- [Constant] Rieg fact into evidence the that Officer agree. filed a lawsuit against [Con- had civil Pennsylvania of Rule Evidence seeking damages wife for stant] 404(b) of provides that “evidence other injuries Rieg] [Officer suffered as a crimes, wrongs, acts is admissible to or not this result of incident. What Court a prove person the character of order to do; however, permit counsel did to conformity Pa. show action therewith.” get specific

was to into the details of 404(b). However, R.E. “evidence of other that lawsuit. of the While existence crimes, wrongs, may acts admitted be Rieg against civil suit Officer filed of mo- purposes, proof other such as may marginal have had [Constant] some tive, intent, plan, opportunity, preparation, in showing relevance Rieg that Officer knowledge, identity or of mistake absence may have had an interest in the outcome or accident.” Id. matter, of specific any of details completely such lawsuit were irrelevant. Opinion, court stated its trial To the extent wanted the [Constant] prior encounter regarding evidence jury tо know had an Rieg Officer inter- and the Lebanon between Constant Mount est in the of outcome this case because Department was admissible to rebut Police action, he had filed separate civil of shooting claim that the Offi- Constant’s placed jury. fact Any before the Rieg cer was an accident. Trial Court beyond information that would have Opinion, 1/20/06, 15. at The completely been irrelevant stated that the evidence was also further properly Court refused permit [Con- to impeach properly admitted to Constant’s further into inquiry stant] make shooting Officer denial of a motive for details lawsuit. Rieg. supports trial court’s The record (cita- Opinion, 1/20/06, Trial Court at 13-14 determination. omitted). adopt tion We the sound reason- court, ing the trial on that аffirm ¶28 trial, sought Prior basis. prior two encounters preclude evidence of Constant, police officers and between

¶25 allegation In his next of er in an or the which did not result arrest ror, that the trial court Constant asserts N.T., 1/25/05-2/2/05, charges. filing permitted improperly the Commonwealth time, ac- At that defense counsel 3-4. prior to introduce evidence unrelated would not be Constant, knowledged that the evidence According bad acts. something opens the admitted “unless permitted to introduce Commonwealth was encounter, door[.]” evidence statements, citizen, 29 During opening being law-abiding Con- reputa-

stant’s counsel introduced the defense the- tion for Id. at non-violence. 639-77. Dur- ories that not requi- Constant did have the ing Susan, his direct examination of de- site intent to commit the charged crimes testimony fense counsel elicited supporting because he drinking, had been and that the theory the defense that Constant had been shooting was an accident. Id. at 49. Re- have drinking requisite and did incident, garding the counsel stated that intent the crimes charged. to establish [Constant], in a of panic state and in a May Susan testified that after fear, drunk, state of scared about his 7:45 Constant were both p.m., she and wife, wanting only one thing, get to under of alcohol. Id. 688. the influence there, people these out get to them that acknowledged po- Susan when further there, out of back gun comes with this door, angry lice was came to the Constant and as the police say, officers he turned According agitated. Id. at the corner and it went off. Thаt was it. off, Susan, first gun went after Constant’s

Now, hallway front “totally she was noticed that Constant house very, very, very is a small area as further dazed.” Susan de- Id. at 710. you will see in If pictures. gun that “irresponsive [sic].” scribed Constant as goes off holding and he is it towards people these it going to hit somebody cross-examination, the Com- During it did. This isn’t situation where monwealth to rebut evidence re- sought in, aimed, he came took his time. No. intent, lack of garding Constant’s gun He comes out wanting with sought a motive and Con- to establish everybody go goes and it off. stant’s state Susan admitted that of mind.

Id. at 53. also stated Counsel the follow- “Nazi Constant had called the officers bas- ing: asked if tards.” Id. at 770. When she ... You jury] going are hear [the why knew had such her husband hatred lot of testimony in this case. A lot of it officers, and contеmpt for Susan police is about facts that are not essentially in responded, “I think that [Constant] don’t dispute points but there are fine police. very hates I think that he was you will you have to decide and when upset and made some misstatements.” Id. testimony hear all of the and all of the Susan later follows: testified as evidence it to come going down to the Q. you ... Did Commonwealth]: [The question mind, state [Constant’s] any ever to know [Con- have reason whether specific he had a intent to com- contempt or for had a hatred stant] mit degree aggravated first murder and police? assault or whether he had acted in a every A. I In fact had reason [Susan]: reckless, panicked fashion improperly, not have believe that he did hatred perhaps illegally, specif- without the but contempt police. for the ic intent. Q. every reason to You had believe Thus, Id. at 61. counsel introduced the that he did not? theory that Constant was drunk and did A. Yes. officers, not intend to shoot at and that Q. Why shooting an is that? accident. trial, presented Well, 30 At several A. I known Ed Constant 25 have years. character These I him witnesses. witnesses tes- have known to be a law- tified regarding reputation abiding, person had a upstanding Constant’s who

821 significance the great, pert testimony regarding great respect po- deal of for the negate to admissible the lice. of this evidence is ‍‌​​‌‌​‌‌​‌​‌‌‌‌​‌​​‌‌‌‌​​​‌‌​‌‌​​​​​​​​‌​‌‌​​‌​​‍attempted crime of intent of the element Q. angry know him you get Did ever to disagree. at murder. We police the before? time, point

Id. 772. At this defense at ¶ not is a de- Voluntary 35 intoxication objected to the the counsel introduction of attempted murder. fense to the crime of po- incidents between Constant and Williams, Ultimately, lice officers. the trial court 309 of the 512 Section (Pa.Super.1999). ruled that such evidence relevant to use of Crimes limits the evidence Code “thought processes Constant’s motive and intoxication, provides fol- related to and as at time.” Id. at 776. the lows: ¶ 32 upon foregoing, Based the this voluntary intoxication nor vol- Neither by of Court discerns no abuse discretion untary condition is a to drugged defense placed the trial court. Constant his state may nor evidence of charge, criminal mind, motive, including of intent and to negate such be introduced conditions beginning issue from the of the Evi- trial. offense, the intent of the element of regarding alleged dence Constant’s hatred except of such intoxication that evidence officers, police including prior of incidents drugged condition of defendant officers, police and was between Constant may by be offered the defendant when- relevant to intent Constant’s and motive ever it to reduce murder is relevant shooting, the time of the a proper to a lower higher degree degree from subject Accordingly, of cross-examination. of murder. we grant cannot Constant relief on this § 18 Pa.C.SA claim. ¶ Williams, this Court acknowl- error, allegation 33 In his fourth of dictates[,] clearly § edged that “[a]s Constant claims that the trial court im- only legal voluntary of the significance properly evidence regarding excluded Con- it is consumption of alcohol is when rele- intoxication, level of tes- expert stant’s higher from a vant to reduce murder de- timony regarding significance of murder.” gree degree to a of lower presents argu- evidence. Constant three omitted). “In an (quotation attempted First, regard. in this as- ments Constant degree lowering murder case serts that evidence of his of intoxi- level simply logically There is no impossible. expert testimony cation second or third attempted such crime as of his intoxication relevant effects were Thus, degree murder.” Id. necessary negate to element that evidence related to properly ruled attempted intent for the crime of murder. intoxication, and its ef- Constant’s level Second, claims evi- Constant that such fects, Accordingly, was Con- inadmissible. necessary support his claim dence on this claim. stant is entitled to relief memory. Finally, of a lack of that the trial court erred refus- asserts asserts also 37 Constant instructions, ing, jury permit in its necessary to rebut such evidence is intoxication to consider evidence challenge Constant’s Commonwealth’s kill. We of intent to will address issue According memory lack of of the incident. each in turn. claim Constant, attacked prosecutor Con caused his claim that a blackout that ev stant’s Constant first asserts Appellant at memory lapses. Brief for 34- and ex- idence of his level intoxication 35. Constant contends that the evidence in jury the trial court its charge. See of his level of expert Williams, intoxication and testi- at 730 A.2d 511 (concluding that mony regarding necessary its effects were voluntary intoxication is not a defense to him for to defend against murder). these attacks. attempted Accordingly, Con- Id. at 35. stant is not entitled to relief this claim.

¶ Initially, 38 we note that Con error, allegation In of 40 his fifth Con- permitted stant present to testimony presents separate stant claims. three that he had consumed alcohol to the First, trial Constant that the court claims See, N.T., 1/25/05-2/2/05, incident. e.g., improperly jury instruct refused to (wherein 933-34 Constant testified that he of it evidence Con- could consider alcohol, had consumed “a lot” of and had assessing his credi- stant’s character when martinis). drinking been gin Following Second, bility. claims Constant cross-examination, Constant’s defense trial granted court should have re- sought counsel to introduce the intoxi quested jury instruction de- cation evidence to rebut the Common Third, fense of Constant others defense. wealth’s attack on Constant’s credibility claims that the trial court should have regarding Constant’s recollection of the crime of jury instructed the on the lesser events. Supreme Id. at 1020. Our Court Brief for by physical Ap- assault menace. repeatedly has expert testimony held that pellant at 36. will address these We cannot be used to credibility bolster the in claims order. Minerd, a witness. Commonwealth v. 562 ¶ 41 first asserts that 46, (2000) 225, Pa. 753 A.2d (citing 230 to in improperly the trial court refused Counterman, Commonwealth v. 553 Pa. 370, struct it consider char 284, (1998)). jury could 719 A.2d 302-03 assessing acter in Constant’s evidence expert’s opinion “Whether the is offered to Constant, his enhance, credibility. According attack or to it assumes the same impact—an by character for truthfulness “was assailed ‘unwarranted appearance of authority subject prosecution on cross-examination.” credibility which facility Appellant within the Brief for Constant con ordinary juror ” Fulton, to assess.’ tends that Spence, Commonwealth v. (1993) 1176, (2003), 534 Pa. 574 Pa. A.2d 567 the Penn (citation omitted). sylvania when Accordingly, Supreme we dis held that Court cern prosecutor’s no error or abuse actual ef by questions of discretion “have the in excluding veracity[,]” fect of assailing this evidence. the witness’s Brief jury charge required. such for ¶ 39 Constant also asserts error Fulton, Appellant A.2d (quoting at 37 because trial court refused permit “[t]he 577-78). disagree. We jury to consider intoxication evidence Fulton, on the issue of intеnt to kill appellant and further 42 In claimed instructed the that [Constant] could ineffective of counsel based assistance specific be convicted of the upon present intent of at character counsel’s failure tempted claim, if murder even he did not have a addressing witnesses. conscious intent to kill.” Brief Appel Pennsylvania Supreme specifically Court However, lant at 32. because evidence of stated that evidence of the de- “character voluntary intoxication only is inadmissible to fendant’s truthfulness is admissible if: (1) negate the intent element of the crime of the character trait of truthfulness is murder, attempted by we discern no error implicated by charged the elements of the (2) offenses; protect person. use of a third We the defendant’s character force disagree. for truthfulness was attacked evidence reputation.” bad Id. at 569. The provides, The Crimes Code rele- Pennsylvania Supreme Court further ex- part, vant as follows: plained that character for truth- “[o]ne’s force toward the upon The use of or suggestions partic- fulness refers not to of justifiable protect to person of another honesty dishonesty, instances of or ular person a when: third reputation to general but rather one’s community telling for the truth.” the “Thus, prosecution

at the has 573. where merely denying introduced evidence or (3) the actor believes that his interven- contradicting the facts to which the defen- necessary protection tion for the of testified, but has not assailed the dant рerson. such other community reputation defendant’s for 506(a). § 18 Pa.C.S.A. generally, truthfulness evidence of the de- alleged for reputation fendant’s truthful- ¶ 46 of Our review the record discloses ness is not admissible.” Id. support charge that did the evidence not justifiable use of force for regarding the ¶ case, In this 43 the Commonwealth did As protection person. the of a third the community not assail reputa- Constant’s in its Opinion, court stated truthfulness, tion for generally, but intro- It important is... note that [Constant] evidence contradicting duced Constant’s he intentionally pulled did claim that the not shooting. version of Under such cir- cumstances, trigger weapon. the of the He claimed character evidence not was admissible, at trial that he had recollection of no[ ] and the trial cоurt’s admission get[ting] weapon the of the of evidence that decision such was an error benefit- the However, getting weapon. even of He did not ed Constant. because the char- fired at was, fact, testify gun that he the Officer acter evidence at issue inad- missible, he his Rieg feared for wife’s we cannot that because conclude the trial fact, claimed safety or life. he that denying jury court erred Constant a just “went If he did not gun that off.” charge Accordingly, evidence. to shoot the make conscious decision Constant is not entitled to relief on his officer, he claim that then cannot he claim. in defense of wife. Common

acted his ¶ Harris, allegation 44 In 542 Pa. 665 his next of er wealth v. A.2d (1995). ror, Constant claims that the trial court never testified [Constant] gun Rieg failed that at improperly charge jury re he fired Officer justifiable garding the use of force he feared for the life of wife. for because her, but protection of He that he feared for could person. another Constant said points to retrieve the out both he and Susan testified recall decision gun did not intend to ground by that Susan knocked to the and stated he ([N.T. 1/25/05-2/2/05,] police Appellant pull trigger. officers. Brief 951) totality did not claim [Constant] asserts that Because Constant testimony in defense of his wife when defense was consistent with his he acted shooting he the act of Officer having gun fired in defense of his wife. committed Thus, have was not entitled to argues Rieg, that he was entitled he justifiable jury on that matter. an instruction instructed 1/20/06, Opinion, Trial Court Accordingly, 18. We on his claims. we affirm the agree reasoning court, judgment with the the trial sentence.

and affirm on this basis. ¶ Judgment of sentence affirmed. Finally, Constant claims that POPOVICH, J., files a concurring the trial court improperly failed to instruct statement. on the lesser included offense of BY CONCURRING STATEMENT by physical assault menace. Constant con POPOVICH, J.: tends that “disputed because there was concerning evidence” the number of shots majority’s 1 I affirma- agree with the fired, intent, Constant’s and the direction tion of I write judgment of sentence. fired, in which the shots were he was disapproval separately express my entitled to an instruction on the lesser tipstaff the Judge actions of Cashman’s ‍‌​​‌‌​‌‌​‌​‌‌‌‌​‌​​‌‌‌‌​​​‌‌​‌‌​​​​​​​​‌​‌‌​​‌​​‍charge. Appellant Brief for at 39. during jury’s the at the first deliberations

trial. It a in our principle is fundamental ¶ A48 trial court charge must on justice system jury rеmains that a free a lesser included if offense there is some rendering from its outside influence when disputed concerning evidence an element decision. greater of the charge or if the undisputed ¶2 jury testified The members of the capable evidence is of more than ra one during regarding the actions de- tipstaffs

tional inference. Commonwealth v. Haw jury’s testimony liberations. While the kins, 37, 1198, 419 Pa.Super. 614 A.2d 1200 was not as to who completely consistent (1992); Ferrari, Commonwealth v. initiated the the conversation 12, (1991). Pa.Super. 846, 593 A.2d intent, jurors issue of that the it is evident in tipstaff being recalled the involved their brief, 49 In appellate pro- Constant system degree. deliberations to some Our no legal argument vides in support of his justice that a has rules to ensure aggravated assertion that by physi- assault solely to base the evidence its decision cal menace ais lesser included offense of argument presented and the in the court- any of charged the offenses. Constant influence, any room and not on outside does not identify greater even the offense. especially judge’s a staff. member provides He analysis no comparing the 412, Pa. Ogrod, See v. crime, elements any of each or application (2003). In my opinion, 839 A.2d 294 of that analysis to the evidence. Accord- tipstaffs during jury’s actions delibera- ingly, we deem this claim to be waived.4 tions, by juror best as described See Rodriguez, Commonwealth v. deliberations, present during she was Pa.Super. 1325 n. 6 and, wholly were at worst inappropriate as (1996) (deeming a claim waived upon based jurors some of that she ac- described appellant’s develop argu- failure to her tively participated in the deliberations brief). in appellate ment posing jury, hypothetical questions upon foregoing, 50 Based we con- appalling usurped independence were clude that is not jury. tipstaff only entitled to relief from the Whether claim, 2702(a)(6). 4. Even § if Constant had not waived this defined at 18 Pa.C.S.A. Accord- we would ingly, deem it without merit. theAs we would have affirmed on the basis of Opinion, Opinion regard court noted in its the evidence the trial court’s with to this 1/20/06, support charge Opinion, would not on the offense of claim. See Trial Court menace, aggravated by physical assault as 18-19. actively agreement her head in nodded

participated the deliberations immate- minds, jurors’

rial because several of tipstaff played part

Judge Cashman’s jury’s deliberations. As a former trial judge, dismayed I tran- am what

spired. Pennsylvania,

COMMONWEALTH of

Appellant PAUL, Jr., Appellee.

Ronald F.

Superior Pennsylvania. Court 22, 2007.

Submitted Jan. May

Filed

Case Details

Case Name: Commonwealth v. Constant

Court Name: Superior Court of Pennsylvania

Date Published: Dec 5, 2007

Citation: 925 A.2d 810

Court Abbreviation: Pa. Super. Ct.