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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENISHA TYLER, :
:
Appellant : No. 532 EDA 2014
Appeal from the Judgment of Sentence January 16, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0008610-2012
BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED APRIL 14, 2015
Appellant, Kenisha Tyler (“Tyler”), appeals from the judgment of
sentence entered on January 16, 2014 following her convictions for simple
assault, 18 Pa.C.S.A. § 2701, aggravated assault, 18 Pa.C.S.A. § 2702, and
conspiracy, 18 Pa.C.S.A. § 903. For the reasons that follow, we affirm the
convictions.
The trial court aptly summarized the evidence introduced at trial as
follows:
The complainant, Ms. Joh'nae Nicole Thompson
[(“Thompson”)], testified to two separate events
occurring on March 18, 2012 and March 19, 2012.
(N.T., 8/1 9/12 pgs. 26 — 83). On March 18, 2012
at approximately 3:00 p.m., while walking to work,
[Thompson] encountered [Tyler]. (N.T., 8/19/12 pg.
27). [Tyler] began yelling at [Thompson] "Do you
want to fight?" (N.T., 8/1 9/12 pg. 28).
[Thompson] answered [Tyler] that she did not want
to fight her [and] that she was on her way to work[;]
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[Thompson] then continued walking to work. [Tyler]
followed and yelled out to [Thompson] again asking
her if she wanted to fight and [Thompson]
responded in the same way, and continued walking.
(N.T., 8/19/12 pg. 28). [Tyler] then told
[Thompson] "No, you want to fight me, so we're
going to fight[,]" then threw a punch that hit
[Thompson] on the left side of her face. (N.T.,
8/19/12 pgs. 28, 29). [Thompson] felt she had no
choice but to defend herself and began to fight back
with [Tyler]. (N.T., 8/19/12 pg. 29, 53).
[Thompson] testified that while she was engaged
with [Tyler], more women, that she did not
recognize, began punching, kicking, and jumping on
her. (N.T., 8/19/12 pgs. 29-30, 59, 60). She
recalled being beaten by the entire group, including
[Tyler], for about three minutes until she was
eventually pulled out from under the assailants by a
neighbor. (N.T., 8/19/12 pg. 31). [Thompson] was
shaken up by the incident but was able to walk
home[;] her mother and father were home when she
arrived, and they helped her to calm down.
[Thompson] testified that she received a chipped
tooth, a black eye, a few bumps on her face and
several scrapes on her body from this incident.
(N.T., 8/19/12 pg. 31). Her mother took pictures of
her injuries shortly after she arrived home. (N.T.,
8/19/12 pg. 44).
On March 19, 2012 [Thompson] went to the police
station to report the assault from the previous
evening. She was directed to the Southwest
Detectives in the 18th district located on 55th Street
and Pine Street, and spoke with Detective Campbell
about the incident with [Tyler] that occurred March
18, 2012. (N.T., 8/19/12 pg. 33). [Thompson]
testified that she was speaking with the detective
until about 2:30 p.m., after speaking with the
detective she went directly home.
When she arrived home from the police station[,]
she was sitting outside with her mother, father,
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aunts, cousins and some neighbors explaining what
happened the night before and at the police station.
[Thompson] stated that while she was outside she
saw [Tyler]'s sisters, Kiera and Amarra, approaching
from the corner. (N.T., 8/19/12 pg. 34). When
Kiera saw her she taunted [Thompson] yelling "My
sister mangled your face." [Thompson] responded
"You are a stupid bitch and so is your sister." Kiera
then threw a punch at her. (N.T., 8/19/12 pg. 35,
64).
[Thompson] defended herself and began fighting
Kiera. While [Thompson] was already engaged with
Kiera, Amarra began punching her as well. This
altercation went on for about two minutes until
neighbors broke the three of them apart. (N.T.,
8/19/12 pgs. 35-36).
Kiera and Amarra then left only to return five
minutes later with [Tyler] and approximately thirty
other people on foot and in vehicles. (N.T., 8/1 9/12
pgs. 36, 67, 68). The crowd with [Tyler] and her
sisters rushed over and attacked [Thompson]'s
family. Kiera attacked [Thompson], and while they
were engaged [Tyler] came from behind [Thompson]
and punched her in the face. [Tyler]'s punch
knocked [Thompson] down on top of [Tyler]'s sister,
Kiera. (N.T., 8/19/12 pgs. 37, 68 69). While
[Thompson] was on the ground [Tyler] grabbed her
hair and slammed her head into a cobblestone wall
twice. The melee stopped shortly thereafter. (N.T.,
8/19/12 pgs. 38, 70).
[Thompson] was rushed to the University of
Pennsylvania Hospital by ambulance. (N.T„ 8/19/12
pg. 39). She was treated and admitted through
emergency for multiple abrasions throughout her
upper extremities, with a contusion to her orbital and
orbital swelling resulting from a left orbital flora
fracture[;] she stayed at the hospital for three days.
(N.T., 8/19/12 pg. 41, 8/20/12 pg. 47). She
returned to the hospital March 26, 2012 for surgery
to correct the broken bone, and was admitted to the
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hospital, for recovery, for four days. (N.T., 8/19/12
pg. 41).
As a result of the injuries sustained during the
incident, [Thompson] had quadruple vision for about
four months, and was placed on medical deferment
from enlisting in the military. (N.T., 8/19/12 pgs.
42-43). She was cleared for active military duty on
July 26th, 2013. N.T., 8/19/12 pg. 42).1
* * *
Philadelphia Police Officer Pamela Roberts testified
that on March 19, 2012 she was working the activity
desk inside the nineteenth district. (N.T., 8/20/13
pg. 41, 42). On that day, [Thompson] came in to
make a police report. (N.T., 8/20/13 pg. 42).
[Thompson] told Officer Roberts that she had been
assaulted by the [Tyler]. (N.T., 8/20/13 pg. 44, 45).
[Thompson] told Officer Roberts that she was
walking to the store when [Tyler] approached her,
alongside five to six black females, and asked if she
wanted to fight. (N.T., 8/20/13 pg. 45). When
[Thompson] came to make the police report, Officer
Roberts noticed that she had a black right eye and
her front bottom tooth was chipped. (N.T., 8/20/13
pg. 45). Officer Roberts documented all of this on a
75-48 incident report and later sent the report to
Southwest Detectives. (N.T., 8/20/13 pg. 45).
Trial Court Opinion, 8/1/2014, at 4-8.
On August 21, 2013, a jury convicted Tyler of the three above-
referenced crimes. The trial court sentenced her to 11 and one half to 23
months of confinement in the county prison on the simple assault conviction,
five years of probation on the aggravated assault conviction, and five years
1
The trial court also summarized the testimony of Thompson’s mother,
Christina Miller-Marcus, whose recollection of events was consistent with and
supportive of Thompson’s testimony.
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of probation (concurrent) on the conspiracy conviction. This appeal
followed, in which Tyler presents the following seven issues for our
consideration and determination:
1. Did the trial court err during jury selection by
engaging in excessive rehabilitation of several
potential jurors who stated that they would be more
likely to believe police witnesses?
2. Did the trial court err in allowing inflammatory color
photographs of [Thompson’s] facial injuries to be
published to the jury?
3. Did the trial court err and cause irreparable harm
and prejudice to [Tyler] when, while [Tyler] was
testifying before the jury, the trial court told [Tyler]
that she had committed a crime?
4. Did the trial court err in refusing to give a charge for
Simple Assault with regard to the incident that
occurred on March 19, 2012, because there was no
risk of death to [Thompson] and [Thompson] did not
suffer serious permanent disfigurement or protracted
loss of the function of any bodily member or organ?
5. Did the trial court err in refusing to include malice
and a definition thereof in its charge for Aggravated
Assault as a Felony of the First Degree?
6. Did the trial court err in interrupting [Tyler’s] counsel
and engaging in a lengthy soliloquy during closing
argument, causing harm and prejudice to [Tyler],
when counsel simply and correctly read the
Aggravated Assault statute for which [Tyler] had
been charged?
7. Was there sufficient evidence as a matter of law that
[Tyler] was guilty of Aggravated Assault as a Felony
of the First Degree and Conspiracy to commit the
same as to events that occurred on March 19, 2012?
Tyler’s Brief at 4-5.
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For her first issue on appeal, Tyler claims that she was not tried before
an impartial jury because during voir dire the trial court “excessively
rehabilitat[ed] potential jurors who stated that they would be more likely to
believe police testimony rather than testimony from civilian witnesses.”
Tyler'’ Brief at 10. Conversely, Tyler contends that a “pro-defense juror”
was not similarly rehabilitated and then excused. Id. According to Tyler,
the trial court’s conduct required her to use preemptory challenges against
jurors that should have been dismissed for cause.
The scope of voir dire is at the discretion of the trial court.
Commonwealth v. Ellison, 902 A.2d 419, 424 (Pa. 2006). “The
opportunity to observe the demeanor of the prospective juror and the tenor
of the juror's answers is indispensable to the judge in determining whether a
fair trial can be had in the community. Claims of impartiality by prospective
jurors are subject to scrutiny for credibility and reliability as is any
testimony, and the judgment of the trial court is necessarily accorded great
weight.” Commonwealth v. Bachert, 453 A.2d 931, 937 (Pa. 1982). This
Court should not reverse decisions of the trial judge concerning voir dire in
the absence of palpable error. Ellison, 902 A.2d at 424. The test for
determining whether a prospective juror should be disqualified is whether he
is willing and able to eliminate the influence of any scruples and render a
verdict according to the evidence. Cordes v. Associates of Internal
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Med., 87 A.3d 829, 864 (Pa. Super.) (en banc), appeal denied, 102 A.3d
986 (Pa. 2014).
Tyler directs our attention to the testimony of three jurors, each of
whom answered in the affirmative to a question on a jury questionnaire
regarding whether they would be more likely to believe the testimony of
police officers because of their job. The relevant testimony of these three
witnesses, against whom Tyler exercised preemptory challenges, is as
follows, beginning with juror Maurice O’Donnell:
[COURT]: You also said that you would be more likely to
believe the testimony of a police officer or anybody
in law enforcement because of their job; is that
right?
[PANELIST]: Yes, sir.
[COURT]: Here’s the real question: If a police officer comes in
here and testifies, are you able to evaluate his or her
testimony and make a determination – is he telling
the truth or not; is he exaggerating or not; is this
reliable or not – or are you telling me with this
answer that if a police officer testifies, it must be
true, he’s a police officer?
[PANELIST]: I think you have to take in the sense of this is a
member of the law enforcement community and that
he is a responsible – he or she is a responsible
individual; otherwise, they shouldn’t be in their
current position.
I know good police officers and bad police officers.
[COURT]: So if I understand what you’re saying, in some
cases, you might believe the police officers; in some
cases, you might not?
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[PANELIST]: Yes, sir.
[COURT]: So based on your conversation and your
questionnaire, it’s my understanding that there’s no
reason why you would not be a fair juror.
There’s no reason why you can’t sit on this jury,
correct?
[PANELIST]: Correct.
N.T., 8/19/2013,2 at 40-41.
The relevant testimony of juror Iwona Herok:
[COURT]: So you expect police officers to tell the truth?
[PANELIST]: Yes.
[COURT]: But the question is, if you’re sitting on this jury, are
you able to evaluate all of the witnesses, including
any police officers – I don’t know if there will be
police witnesses; but if there are police witnesses,
would you be able to evaluate their testimony and
make a determination whether they’re telling the
truth or not or since they’re a police officer, you’re
just going to accept whatever they say – it must be
the truth.
[PANELIST]: I would expect them to tell the truth since – I don’t
know. I think all police officers, it is their job. It’s
part of their job to be honest with everybody. So I
would expect them to be honest when they’re on the
jury stand. Like if it was me on there, everybody
would expect me to tell the truth, not to lie under
the oath and pay the consequences.
[COURT]: Okay. So you’re telling me you expect every witness
to tell the truth?
2
The transcript of the jury selection process was incorrectly dated August
19, 2014.
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[PANELIST]: Yes. If they’re honest, yes.
[COURT]: All right. So when you say you expect police officers
to tell the truth, it’s not because of their job; it’s
because they’re witnesses?
[PANELIST]: Because they’re under oath like myself; if you’re
under oath, you should be telling the truth, not doing
something that you would have to pay consequences
for.
[COURT]: Okay. Can you accept the possibility that sometimes
people testify and they don’t tell the truth?
[PANELIST]: That’s hard to believe, but it’s a possibility.
[COURT]: So are you able to sit on this jury and make that
kind of determination – is this witness telling the
truth or is this witness telling me something else?
[PANELIST]: True.
[COURT]: So then in some cases, you might believe a police
officer; in some cases, you might not?
[PANELIST]: True.
[COURT]: So having gone through all these questions with you
and reviewing your questionnaire, it’s my impression
that there’s no reason why you would not be a fair
juror.
There’s no reason why you can’t sit on this jury,
correct?
[PANELIST]: Correct.
Id. at 74-76.
The relevant testimony of juror Robert Peck:
[COURT]: You also said that you would be more likely to
believe the testimony of a police officer or anybody
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in law enforcement because of their job; is that
right?
[PANELIST]: Yes.
[COURT]: Here’s the real question: If a police officer comes in
here and testifies, are you able to evaluate his or her
testimony and make a determination – is he telling
the truth or not; is he exaggerating or not; is this
reliable or not – or are you telling me with this
answer that if a police officer testifies, it must be
true – he’s a police officer.
[PANELIST]: I would listen to him carefully and determine
whether he was telling the truth or not.
[COURT]: So in some cases, you might believe the police
officer; in some cases, you might not?
[PANELIST]: Correct.
[COURT]: Based on our discussion and your questionnaire, it
appears that there’s no reason why you would not be
a fair juror.
There’s no reason why you can’t serve on this jury,
correct?
[PANELIST]: Correct.
Id. at 92-93.
Finally, the testimony of “pro-defense’ juror Lucas Brown, who the trial
court dismissed for cause:
[COURT]: When I was asking questions of the panel, you raised
your hand.
Do you remember what that was for?
[PANELIST]: That if I knew anybody was in here.
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[COURT]: Yes.
[PANELIST]: I mean, I don’t know you personally, but I know who
you are.
[COURT]: How do you know me?
[PANELIST]: My brother-in-law and my sister are defenders.
[COURT]: And they complain about me a lot?
[PANELIST]: I didn’t say that.
[COURT]: So you recognize my name, but we’ve never met.
I’ve never seen you as far as I know.
[PANELIST]: I’m not sure.
[COURT]: Okay. What you’ve just described, is there anything
about that that would prevent you from being a fair
juror if you were sitting on this case?
[PANELIST]: Beyond like my already personal opinions about this?
Probably not.
[COURT]: Well, while we’re on the subject, what are your
personal opinions that you think might prevent you
from being fair?
[PANELIST]: The system, I don’t really think it works. We have a
broken school district. We put money into the
prisons left and right.
Id. at 55-56.
Based upon our review of the above testimony in its entirety, we
cannot agree with Tyler that the trial court “excessively rehabilitat[ed]”
jurors O’Donnell, Herok, and Peck. Instead, the certified record reflects only
that the trial court questioned these jurors regarding their questionnaire
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answers and determined that each juror would consider the testimony of any
police witnesses objectively.3 Conversely, juror Brown suggested that he did
not think he could be fair based upon his “personal opinions” about the
school system and prisons. As set forth hereinabove, our standard of review
in this regard is extremely deferential to the trial court, which, unlike this
Court, had the opportunity to observe the prospective jurors when
determining whether they could serve as impartial arbiters of the evidence
presented. Bachert, 453 A.2d at 937 According the trial court’s decisions
with great weight, as we must, we cannot say that that the trial court
committed “palpable error” in its decisions during the voir dire process. No
relief is due on Tyler’s first issue on appeal.
For her second issue on appeal, Tyler contends that the trial court
erred in publishing to the jury “inflammatory color photographs” of
Thompson’s facial injuries. Tyler’s Brief at 13. Tyler argues that these
photographs were cumulative evidence, prejudicial, and “inflammatory in
their color version.” Id.
The admissibility of evidence is at the discretion of the trial court and
only a showing of an abuse of that discretion, and resulting prejudice,
3
We note that only one police witness testified at trial. Officer Pamela
Roberts did not witness any of the events (fighting) at issue in this case, and
instead her testimony was limited to her observations when she took a
police report when Thompson came into the nineteenth district on March 18,
2012 to report Tyler’s attack on her earlier that day. N.T., 8/20/13 pg. 41-
42.
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constitutes reversible error. Commonwealth v. Malloy, 579 425, 856 A.2d
767, 776 (Pa. 2004). Relevant evidence makes “the existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Pa.R.E. 401. Relevant
evidence may be excluded only if its probative value “is outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Pa.R.E. 403. Whether photographic evidence that is
alleged to be inflammatory is admissible involves a two-step analysis. First,
the court must decide whether a photograph is inflammatory by its very
nature. Commonwealth v. Sanchez, 36 A.3d 24, 49 (Pa. 2011), cert.
denied, 133 S.Ct. 122 (2012). If the court decides that the photograph is
inflammatory, it must determine whether its essential evidentiary value
outweighs the likelihood that its publication will improperly inflame the
minds and passions of the jury.” Id.
In this case, the trial court decided that the photographs in question
were not inflammatory, and were relevant because they depicted
Thompson’s injuries for the jury. Trial Court Opinion, 8/1/2014, at 12. We
are unable to conduct a meaningful review of the trial court’s discretion
because the allegedly objectionable photographs are not contained in the
certified record on appeal. See Commonwealth v. Cottam, 616 A.2d 988,
1002 n.7 (Pa. Super. 1992) (stating “it is [appellant’s] responsibility to
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provide a record replete with all exhibits necessary for this court to review
the issues raised”), appeal denied, 535 Pa. 673, 636 A.2d 632 (1993).
Accordingly, we find this claim to be waived. See Commonwealth v.
Lassen, 659 A.2d 999, 1008 (Pa. Super. 1995) (holding appellant’s
assertion that photographs of the victim’s injuries were inadmissible based
on their inflammatory and prejudicial nature was waived because he failed to
include those photographs in the record).
For her third issue on appeal, Tyler complains that the trial court
refused to grant a motion for mistrial or issue a curative instruction after the
trial judge “interject[ed] himself into a jury trial and [told Tyler] that she
was guilty of a crime.” The relevant portion of the transcript during Tyler’s
direct examination is as follows:
A. She was like, You know what, just drop your things -
- okay.
So we both put down our things. She gave the boy,
Mike, who was with her – at that time, she gave him
her bag and whatever else she had in her hand. I
put my things down.
She said, This is what you want; this is what you
want; you are about to get it – okay.
I threw my hands up as well.
[COURT]: All right. So you’re saying that after you had
some words, the two of you agreed –
[TYLER]: Yes.
[COURT]: -- that you were going to fight?
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[TYLER]: Yes, sir.
[COURT]: Okay.
[TYLER]: She gave him her things. I put my things
down. We both threw our hands up.
She said, This is what you want.
And then she swung. And then we wind up fighting.
Q. So the first swing was –
A. Was initially [Thompson].
[COURT]: Well, it doesn’t matter who was the first swing.
Before the first swing was swung, the two of you had
agreed that you were going to fight, is that what
you’re saying?
[TYLER]: Yes.
[COURT]: Okay. That’s – you understand that that’s
against the law in Pennsylvania?
You understand that two people cannot by mutual
consent agree to a fight?
It’s called simple assault, mutual consent, do you
understand that?
[TYLER]: Yes.
[COURT]: Okay.
N.T., 8/20/2013, at 53-54.
Rule 605(B) of the Pennsylvania Rules of Criminal Procedure governs
the granting of mistrials:
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§ 605. Mistrial.
(B) When an event prejudicial to the defendant
occurs during trial only the defendant may move for
a mistrial; the motion shall be made when the event
is disclosed. Otherwise, the trial judge may declare
a mistrial only for reasons of manifest necessity.
Pa.R.Crim.P. 605(B). Furthermore, it is within the sound discretion of the
trial court to determine whether a curative instruction is necessary, or even
desirable. Commonwealth v. Sanchez, 82 A.3d 943, 982 (Pa. 2013), cert.
denied sub nom., Sanchez v. Pennsylvania, 135 S. Ct. 154 (2014).
The Commonwealth persuasively submits that this claim is waived.
Tyler did not move for a mistrial or request a curative instruction at the time
of the above-quoted testimony. Instead, Tyler did not move for relief until
much later that day, after the completion of Tyler’s testimony and that of
her cousin (Felicia Tyler). In contravention of Rule 605(B), then, Tyler did
not make a timely request for relief.4 Pa.R.Crim.P. 605(B);
Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super. 2008) (“[O]ne
must object to errors, improprieties or irregularities at the earliest possible
stage of the criminal or civil adjudicatory process to afford the jurist hearing
the case the first occasion to remedy the wrong and possibly avoid an
unnecessary appeal to complain of the matter.”) (quoting Commonwealth
4
Tyler does not contend that manifest necessity existed on the facts
presented here.
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v. English, 667 A.2d 1123, 1126 (Pa. Super. 1995), affirmed, 699 A.2d 710
(Pa. 1997)).
Moreover, even if not waived, we are not persuaded that that the trial
court erred in refusing to grant a mistrial. “A trial court need only grant a
mistrial where the alleged prejudicial event may reasonably be said to
deprive the defendant of a fair and impartial trial.” Commonwealth v.
Jones, 542 464, 668 A.2d 491, 503 (Pa. 1995), cert. denied, 519 U.S. 826
(1996); Commonwealth v. Boczkowski, 454, 846 A.2d 75, 94-95 (Pa.
2004). The extent to which Tyler was prejudiced by the trial court’s
questions, if at all, is unclear. Rather than stating an objection or requesting
a mistrial, counsel for Tyler responded to the trial court’s questions by
rehabilitating Tyler -- eliciting considerably more favorable testimony from
her, including that it was Thompson who wanted to fight, that she (Tyler) did
not want to do so, that she felt threatened and scared by Thompson’s
threats, and that she attempted to break up the fight when others joined in
against Thompson. N.T., 8/20/2013, at 54-58. To the extent that Tyler
suffered any prejudice, it did not rise to the high level necessitating the
grant of a mistrial.
We are likewise not convinced that the trial court erred in refusing to
give a curative instruction. The transcript shows that the trial court offered
to consider giving one if drafted by Tyler’s counsel, but thereafter could not
agree with the strong language recommended by counsel. Id. at 97-98. In
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addition, while not specifically directed to the above-quoted questions, the
trial court gave an extended instruction during its charge to the jury to
ignore any of the trial court’s comments or opinions when reaching its
verdict:
Likewise, if I have said or done anything during the
trial or during this instruction that I’m giving you
now which implies my opinion as to any witness, any
evidence or what your verdict should be in this case,
I want to tell you two things. First, I have no
opinion. And second, if I had an opinion, it would be
the least well-informed opinion in this courtroom,
because, as I explained to you at the beginning of
the trial, most of the time, I can hardly see the
witness.
I got a pretty good look at the witness who was in
the scooter because she wasn’t in the chair. She
was seated further back. She was an exception.
I can’t see facial expression. I can’t see gestures.
And I get distracted. I’m up here dealing with other
things. As I told you at the outset, your job and my
job are different. So a lot of times, I’m going
through papers, I’m looking through this file or files
from other cases, I’m off on the side talking to the
courtroom staff. So two things, one, I have no
opinion; and second, if I did, you should disregard it,
because the only opinion in this courtroom that
matters is your opinion – your opinion of the
evidence, your opinion of the witnesses and
ultimately your opinion as to what the verdict should
be in this case.
N.T., 8/21/2013, at 13-14.
For her fourth issue on appeal, Tyler claims that the trial court erred in
refusing to give a jury charge on simple assault for her actions on March 19,
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2012. Tyler argues that the jury could have found her guilty of simple
assault rather than aggravated assault, noting that there was no risk of
death to Thompson and Thompson did not in fact suffer a serious bodily
injury (serious impairment, disfigurement, or loss of the function of a bodily
member or organ). Tyler’s Brief at 17. The trial court, upon consideration
of the evidence presented at trial, determined that “[n]o evidence of simple
assault was presented.” Trial Court Opinion, 8/1/2014, at 20.
In Commonwealth v. Sirianni, 428 A.2d 829 (Pa. Super. 1981), this
Court determined, based upon the following analysis of the two statutes,
that simple assault is a lesser included offense to aggravated assault:
[W]e come to the next step of deciding whether or
not simple assault, defined in section 2701(a)(1) as
attempting to cause “bodily injury” is, in fact, a
lesser included offense of aggravated assault,
defined in section 2702(a)(1) as attempting to cause
“serious bodily injury.” The “serious bodily injury”
required to prove aggravated assault is 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.” 18
Pa.C.S. § 2301. On the other hand, the “bodily
injury” required to prove simple assault is defined as
“(i)mpairment of physical condition or substantial
pain.” A comparison of the above-quoted sections
indicates that the definition of “serious bodily injury”
contains “bodily injury” within it. In
Commonwealth v. Wilds, this Court sitting en banc
stated that “an offense is a lesser included offense if
each and every element of the lesser offense is
necessarily an element of the greater.” This test has
been met here. “Simple assault” as an attempt to
cause mere bodily injury is, therefore, a lesser
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included offense of aggravated assault which is an
attempt to cause serious bodily injury.
Id. at 632-33 (citations omitted).
The proper focus in distinguishing between simple and aggravated
assault is thus on the defendant's intent and actions. Commonwealth v.
Thomas, 546 A.2d 116, 118 (Pa. Super. 1988). A defendant is entitled to a
jury instruction on a lesser included offense only where the evidence in the
record would permit the jury to find, rationally, that the defendant is guilty
of the lesser included offense but not of the greater offense. Id.
A trial court has wide discretion with respect to its jury instructions,
and commits an abuse of discretion only when there is an inaccurate
statement of the law. Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.
Super. 2008); Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa. Super.
2006). Here the trial court, upon consideration of the evidence introduced
at trial, determined that “[n]o evidence of simple assault was presented”
and declined to instruct on simple assault for the events of March 19, 2012.
Trial Court Opinion, 8/1/2014, at 20.
We conclude that the trial court did not abuse its discretion in refusing
to give an instruction on simple assault regarding Tyler’s actions on March
19, 2012, for two reasons. First, contrary to Tyler’s claims, it was within the
jury’s province to conclude that Thompson’s injuries resulting from the
events on March 19 did qualify as serious bodily injuries. The definition of
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“serious bodily injury” includes “protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. The
evidence showed that Thompson suffered a broken bone in the optical region
of her face that caused her to have double vision for four months, and this
injury eventually required surgery and a sustained deferment from military
service. N.T., 8/19/2013, at 41; N.T., 8/20/2013, at 47. The protracted
nature of these injuries to her eyes and vision could constitute serious bodily
injury (rather than mere bodily injury), and thus the intentional and/or
knowing nature of Tyler’s actions in inflicting these injuries would preclude
any rational finding that Tyler was guilty of only simple assault (rather than
aggravated assault).
Second, even if Thompson did not suffer a serious bodily injury, the
trial court did not abuse its discretion in determining, based upon the
entirety of the evidence presented at trial, that the jury could not have
rationally found that Tyler was guilty of only simple, as opposed to
aggravated, assault for her actions on March 19, 2012. This Court has
consistently held that multiple blows to a person’s head reflects an intention
to inflict serious bodily injury. See, e.g., Commonwealth v. Pandolfo,
446 A.2d 939, 941 (Pa. Super. 1982); Commonwealth v. Bruce, 916 A.2d
657, 661-62 (Pa. Super. 2007); Commonwealth v. Burton, 2 A.3d 598,
605 (Pa. Super. 2010) (en banc) (single blow to the head knocking the
victim to the ground). In the present circumstances, where the level of
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Tyler’s violence escalated from March 18 to March 19, and where Tyler twice
slammed Thompson’s head into a wall with enough force to break a bone in
her face and cause her to suffer double vision for four months, it was well
within the trial court’s discretion to decide that the evidence was consistent
with only a charge for aggravated assault.
For her fifth issue on appeal, Tyler contends that the trial court erred
in failing to instruct the jury on the definition of malice in connection with its
charge on the elements of aggravated assault. This issue is without merit.
As defined by statute, aggravated assault involves an attempt “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.” 18 Pa.C.S.A. § 2702(a)(1). Parsing
this language, either of three mens rea will suffice: intentional conduct,
knowing conduct, or reckless conduct with malice (i.e., under circumstances
manifesting extreme indifference to the value of human life.). As such, this
Court has held that malice is required for aggravated assault when the mens
rea at issue is recklessness. Commonwealth v. McHale, 858 A.2d 1209,
1212 (Pa. Super. 2004) (“Appellant was clearly negligent, but his actions did
not rise to the level of recklessness required to support a conviction for
aggravated assault.”); Commonwealth v. Myers, 722 A.2d 1074, 1077
(Pa. Super. 1998) (“[T]he trial court instruction included the critical
language ‘recklessly under circumstances manifesting extreme indifference
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to the value of human life.’ This adequately informed the jury a heightened
state of recklessness amounting to malice was required to convict under 18
Pa.C.S. 2702(a)(1).”), appeal denied, 722 A.2d 1074 (Pa. 1999);
Commonwealth v. Nichols, 692 A.2d 181, 186 (Pa. Super. 1997)
(“[w]here malice is based on the recklessness of consequences, it is not
sufficient to show mere recklessness as codified at 18 Pa.C.S.A. § 302(b)(3);
but rather, it must be shown that the defendant consciously disregarded an
unjustified and extremely high risk that his actions might cause death or
serious bodily harm.”) (emphasis in original) (quoting Commonwealth v.
Fierst, 4620 A.2d 1196, 1203 (Pa. Super. 1993)).
In this case, the Commonwealth did not request, and the trial court did
not give, an instruction based upon recklessness, and instead the instruction
to the jury focused solely on intentional or knowing misconduct:
[T]he next element is that the defendant acted
intentionally, knowingly. A person acts intentionally
with respect to serious bodily injury when it is her
conscious object or purpose to cause such injury. A
person acts knowingly with respect to serious bodily
injury when she is aware that it is practically certain
that her conduct will cause such a result. If you’re
convinced that the Commonwealth has proven all of
those elements beyond a reasonable doubt, then you
must find the defendant guilty of aggravated assault.
N.T., 8/21/2013, at 43. Because the trial court limited its instruction to
intentional or knowing actions, no instruction on malice was necessary. We
thus find no error.
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For her sixth issue on appeal, Tyler posits that the trial court
interrupted her counsel’s closing argument and engaged the jury in a
lengthy soliloquy on the law. Tyler contends that her counsel was only
attempting to read the text of the aggravated assault statute to the jury,
and that the trial judge’s actions reflected a hostility to her and her counsel
that resulted in prejudice to her. Tyler’s Brief at 19.
We are unable to conduct meaningful appellate review of this claim
because the closing arguments of counsel were not transcribed and thus are
not part of the certified record on appeal. See N.T., 8/20/2013, at 109
(“Whereupon closing arguments were stenographically taken but not
transcribed”). Consideration of Tyler’s claim would, at a minimum, require
this Court to review her counsel’s closing argument and the controverted
interruptions by the trial court to determine if counsel preserved the issue
for appeal and, if so, whether the interruptions were necessary, warranted,
and/or prejudicial. Because the absence of a transcript precludes us from
doing so, we may not grant any relief on this issue.
For her seventh issue on appeal, Tyler argues that the Commonwealth
failed to present sufficient evidence to support the convictions for
aggravated assault and conspiracy on March 19, 2012. In particular, Tyler
posits that the Commonwealth did not disprove her self-defense defense.
On appeal, she contends that the evidence at trial showed that after the
fight on March 18, 2012, Thompson later appeared on the street with a gun,
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and that as a result the next day she (Tyler) had reason to fear for her life
on March 19, 2012. Tyler’s Brief at 25. Tyler further argues that she had no
duty to retreat on the 19th after she saw Thompson fighting with her sister
Kiera and came to Kiera’s aid. Id. Finally, Tyler claims that there was no
evidence of any agreement with anyone to commit aggravated assault. Id.
We are guided by the following standard of review when presented
with a challenge to the sufficiency of the evidence supporting a defendant's
conviction:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish
guilt to a mathematical certainty. 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.
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Accordingly, the fact that the evidence establishing a
defendant's participation in a crime is circumstantial
does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment
for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most
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favorable to the Commonwealth, demonstrates the
respective elements of a defendant's crimes beyond
a reasonable doubt, the appellant's convictions will
be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa. Super.
2013) (citations and quotation marks omitted)).
If a defendant introduces evidence of self-defense, the Commonwealth
bears the burden of disproving the self-defense claim beyond a reasonable
doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009).
“Although the Commonwealth is required to disprove a claim of self-defense
... a jury is not required to believe the testimony of the defendant who
raises the claim.” Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa.
2011) (quoting Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa.
1990)).
With respect to the charge of aggravated assault on March 19, 2012,
we agree with the Commonwealth that Tyler did not present a self-defense
defense. Instead, in her direct testimony, Tyler flatly denied that she hit
Thompson or slammed her head into the wall. N.T., 8/20/2013, at 62 (“Q.
Did you slam her face against a wall? A. No, I did not.”). As reflected in its
verdict, the jury obviously disbelieved this testimony, finding instead that
Tyler attacked Thompson, not for purposes of protecting herself but with the
intention to inflict serious bodily harm. Similarly, with respect to conspiracy,
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it was within the jury’s province to believe the evidence introduced by the
Commonwealth, namely that Tyler and her sisters organized a crowd of up
to 30 people to attack Thompson's family (during which melee Tyler twice
slammed Thompson’s head into a wall). N.T., 8/19/2013, at 37, 68 69. This
evidence was sufficient to establish a conspiracy.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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