J-A30003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK J. BROWN
Appellant No. 2098 EDA 2013
Appeal from the Judgment of Sentence March 18, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009516-2008
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 09, 2015
Frank J. Brown appeals, nunc pro tunc, from the judgment of sentence
imposed by the Court of Common Pleas of Philadelphia County, following a
waiver trial. We affirm.
The trial court summarized the facts of this matter as follows:
On December 18, 2007, Kathleen Kirchner (victim) and Barbara
Kirchner (victim, 91 years-old) were returning to Barbara’s home
around 10 p.m.; Kathleen double-parked to allow Barbara to
easily enter her home. As Kathleen began to escort Barbara up
the front steps, [Brown] came up from behind and held a gun to
Kathleen’s neck and demanded cash. With the gun embedded in
her neck, Kathleen managed to turn over her wallet filled with
cash to [Brown]. Kathleen also went into Barbara’s purse and
retrieved $500.00 in cash and handed it to [Brown]. After taking
the money, [Brown] ordered both to lie down in street or they
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A30003-14
would be shot. When Kathleen refused, [Brown] fled the scene
and ran down the street.
Trial Court Opinion, 12/17/13, at 2.
At trial, Brown testified on his own behalf and offered an alibi defense.
He stated he was working in South Carolina at a satellite television company
on the date the crimes took place in Philadelphia. Although Brown
established his employment through pay stubs and time sheets, the
company indicated that Brown was not working at the company from
December 14, 2007 through December 22, 2007. Brown also had two
family members offer testimony that he was employed with the same
company in South Carolina, but neither could rule out the possibility that
Brown was present in Philadelphia on the day in question.
On February 1, 2010, the court found Brown guilty of two counts each
of the following crimes: aggravated assault,1 robbery,2 firearms not to be
carried without a license,3 unlawful restraint,4 theft by unlawful taking,5
receiving stolen property,6 terroristic threats,7 simple assault,8 recklessly
____________________________________________
1
18 Pa.C.S. § 2702(a).
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
18 Pa.C.S. § 6106(a)(1).
4
18 Pa.C.S. § 2902(a)(1).
5
18 Pa.C.S. § 3921(a).
6
18 Pa.C.S. § 3925(a).
-2-
J-A30003-14
endangering another person,9 and false imprisonment.10 The court also
found Brown guilty of one count each of carrying firearms in public 11 and
possession of an instrument of a crime.12 On March 18, 2010, the court
sentenced Brown to an aggregate term of 7 to 14 years’ incarceration,
followed by a term of 15 years’ reporting probation. The court appointed
counsel to represent Brown on direct appeal; however, counsel failed to file
an appellate brief. As a result, this Court dismissed Brown’s appeal. On July
11, 2013, the trial court reinstated Brown’s direct appeal rights nunc pro
tunc. This timely appeal followed.
On appeal, Brown presents the following issues for our review:
1. Did the trial court commit reversible error when the court
elicited testimony that Brown was wanted by the police for
other crimes?
2. Did the trial court commit reversible error when the court
conducted an extensive cross-examination of Brown when he
took the stand at trial including eliciting testimony that he did
not file taxes and was fired from his job?
_______________________
(Footnote Continued)
7
18 Pa.C.S. § 2706(a)(1).
8
18 Pa.C.S. § 2701(a).
9
18 Pa.C.S. § 2705.
10
18 Pa.C.S. § 2903(a).
11
18 Pa.C.S. § 1608.
12
18 Pa.C.S. § 907(a).
-3-
J-A30003-14
3. Did the prosecution commit a Brady violation when the
prosecution failed to provide the defense a copy of the line-up
photograph prior to trial?
4. Did the trial court abuse its discretion when the court denied
Brown’s motion for acquittal because there was insufficient
evidence to convict Brown of aggravated assault against
Kathleen or Barbara Kirchner?
5. Did the trial court abuse its discretion when the court denied
the verdict in this case was against the weight of the
evidence?
Brief of the Appellant, at 5.
In his first issue, Brown argues that the questions asked by the
Honorable Peter F. Rogers to Detective Timothy Tague elicited information in
13
violation of Pa.R.E. 404(b). Brown bases his claim on the following
exchange:
THE COURT: All right. When you say a candidate is a prime
suspect, how did that get developed?
DETECTIVE: From earlier contact with [Brown].
THE COURT: Earlier when?
DEFENSE COUNSEL: I’m going to object.
THE COURT: Objection is noted. Overruled.
DETECTIVE: Prior arrest, Your Honor, which occurred right
across the street from this instance.
N.T. Trial, 2/1/10, at 38.
____________________________________________
13
Rule 404(b) states: Evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character.
Pa.R.E. 404(b).
-4-
J-A30003-14
The Commonwealth contends, and Brown concedes, that Brown
waived this claim because he failed to object to the evidence upon its
admission. However, Brown, relying on Commonwealth v. Hammer, 494
A.2d 1054 (Pa. 1985),14 urges this Court to overlook the waiver doctrine and
address the merits of his claim on appeal. We find Brown’s reliance on
Hammer misplaced and his claim waived.
To preserve a claim of error for appellate review, a party must make a
specific objection to the alleged error before the trial court in a timely
fashion and at the appropriate stage of the proceedings; failure to raise an
objection results in waiver of the underlying issue on appeal.
Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super. 2011).
Additionally, a defendant’s failure to raise a contemporaneous objection to
evidence at trial waives such a claim on appeal. See Pa.R.Crim.P. 302(a);
see also Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (failure
to raise contemporaneous objection to evidence at trial waives claim on
appeal). Here, Brown concedes he did not object to the complained of
testimony. Additionally, our Supreme Court specifically overruled Hammer,
indicating that, “generally, the appellate courts will not overlook defense
counsel’s failure to object and, with regard thereto, an appellant may
____________________________________________
14
In Hammer, our Supreme Court concluded that justice would not be
served by strictly enforcing the waiver doctrine where the record revealed
that objection by counsel would be meaningless and, in fact, intensifies
judicial animosity.
-5-
J-A30003-14
present claims of ineffective assistance of counsel in a PCRA petition.”
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Accordingly, Brown’s
claim is waived and we cannot address it.
In his second issue, Brown argues that the court erred when Judge
Rogers elicited testimony from Brown that he did not file taxes and was fired
from his job. Our Supreme Court has described the role of a judge as
follows:
Witnesses should be interrogated by the judge only when he
conceives the interest of justice so requires. It is better to
permit counsel to bring out the evidence and clear up disputed
points on cross-examination unaided by the court; but where an
important fact is indefinite or a disputed point needs to be
clarified, the court may see that it is done by taking part in the
examination. . . . Judges should refrain from extended
examination of witnesses; they should not, during the trial,
indicate an opinion on the merits, a doubt as to the witnesses’
credibility, or do anything to indicate a leaning to one side or the
other, without explaining to the jury that all these matters are
for them.
Commonwealth v. Seabrook, 379 A.2d 564, 567 (Pa. 1977) (citations and
quotations omitted). A new trial is required “only when the trial court’s
questioning is prejudicial, that is when it is of such nature or substance or
delivered in such a manner that it may be reasonably be said to have
deprived the defendant of a fair and impartial trial.” Commonwealth v.
Manuel, 844 A.2d 1, 9 (Pa. Super. 2004).
Our review of the record shows that Judge Rogers’ questioning was not
prejudicial. Manuel, supra. Rather, the purpose of his questions was to
clarify Brown’s employment status as it related to his alibi defense. N.T.
-6-
J-A30003-14
Trial, 2/1/10, at 140-60. To the extent Brown felt Judge Rogers’ questioning
was protracted, we disagree and highlight that this was a bench trial so
there was no jury to mislead. See Seabrook, supra. Accordingly, Brown is
not entitled to a new trial.
In his third issue, Brown argues that the Commonwealth’s failure to
provide a copy of the photograph of the pretrial lineup constituted a Brady15
violation. In Brady, the Supreme Court of the United States held that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. A Brady violation is comprised of
three elements: (1) suppression by the prosecution, (2) of either
exculpatory or impeachment evidence favorable to the defendant, and (3)
resulting prejudice of the defendant. Commonwealth v. Paddy, 800 A.2d
294, 305 (Pa. 2002).
Brown’s claim is meritless because the Commonwealth introduced the
photograph of the pretrial lineup at trial. N.T. Trial, 2/1/10, at 4-5; see
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (Brady
claim meritless when evidence disclosed during trial). Thus, Brown is not
entitled to relief.
____________________________________________
15
Brady v. Maryland, 373 U.S. 83 (1963).
-7-
J-A30003-14
In his fourth issue, Brown challenges the sufficiency of the evidence
sustaining his convictions for aggravated assault against Kathleen and
Barbara. Our standard of review for sufficiency of the evidence claims is
well settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail. The
evidence established at trial need not preclude every possibility
of innocence and the fact-finder is free to believe all, part, or
none of the evidence presented. It is not within the province of
this Court to re-weigh the evidence and substitute our judgment
for that of the fact-finder. The Commonwealth’s burden may be
met by wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations
omitted). Additionally,
A person may be convicted of aggravated assault graded as a
first-degree felony if he attempts to cause serious bodily injury
to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference
to the value of human life. “Serious bodily injury” has been
defined as [b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily
member or organ. For aggravated assault purposes, an
“attempt” is found where an accused who possesses the
required, specific intent acts in a manner which constitutes a
substantial step toward perpetrating a serious bodily injury upon
another. An intent ordinarily must be proven through
-8-
J-A30003-14
circumstantial evidence and inferred from acts, conduct or
attendant circumstances.
Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc)
(citations and quotations omitted). In Fortune, this Court found the
evidence sufficient to sustain a conviction for aggravated assault where, in
the course of a robbery, the defendant “appeared before the victim without
warning, pointed a gun at the middle of her forehead, demanded her keys,
and threatened to ‘blow [her] head off’ if she did not comply.” Fortune,
supra at 987.
In the case sub judice, Brown approached the women as Kathleen was
assisting Barbara, who is elderly and infirm, up the steps. Brown then
pressed a gun to Kathleen’s neck, and demanded cash from both women
saying, “If you don’t give me your money, I’m going to blow your fucking
head off.” N.T. Trial, 2/10/10, at 62-63. When Barbara verbally resisted
giving up her money, Kathleen told her to “be quiet. He’s got a gun,” N.T.
2/10/10, at 71, indicating that Brown’s explicit threat included both women.
Brown kept the gun against Kathleen’s neck for the duration of the
encounter. After Kathleen gave Brown their money, Brown ordered both
women to lie in the street, threatening to shoot them if they did not comply.
Given the similarity in facts, we find Fortune dispositive, and conclude
that the trial court properly determined that the evidence was sufficient to
support a guilty verdict for the charges of aggravated assault against
Kathleen and Barbara. Although Brown may not have directly addressed
Barbara, his threat to “blow your head off” was directed at both women. In
-9-
J-A30003-14
addition, Kathleen was holding Barbara by the arm when Brown pressed the
gun into her neck. Had Brown fired his gun, Barbara was well within the
range of a bullet. Because Brown took a substantial step towards seriously
injuring both women, no relief is due.
Lastly, we address Brown’s challenge to the weight of the evidence
supporting the verdict. Brown argues that the verdict is against the weight
of the evidence because the Commonwealth failed to prove beyond a
reasonable doubt that he was the assailant on the night in question. Our
standard of review of a weight of the evidence claim is as follows:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses. As an appellate court, we cannot substitute our
judgment for that of the finder of fact. Therefore, we will
reverse a jury’s verdict and grant a new trial only where the
verdict is so contrary to the evidence as to shock one’s sense of
justice. Our appellate courts have repeatedly emphasized that
“[o]ne 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.”
Furthermore,
Where the trial court has ruled on the weight claim below,
an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)
(citations omitted). “A motion for a new trial on the grounds that the verdict
is contrary to the weight of the evidence[] concedes that there is sufficient
- 10 -
J-A30003-14
evidence to sustain the verdict[.]” Commonwealth v. Brown, 48 A.3d
426, 431-32 (Pa. Super. 2012).
Here, Kathleen provided a detailed account to the police regarding the
events of the night in question. Kathleen also positively identified Brown
from a photo array and in court. In addition, Brown’s alibi defense failed
because he could not establish that he was working in South Carolina on the
night in question. Further, no witness could verify that Brown was, or was
not, in South Carolina on the date the robbery occurred. Based on this
evidence, the trial court concluded that the Commonwealth proved beyond a
reasonable doubt that Brown was the assailant on the night in question, and
therefore the verdict was not against the weight of the evidence. Upon our
review, we ascertain no abuse of discretion by the trial court Rabold,
supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2015
- 11 -