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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRYAN RECKEWEG,
Appellant No. 2497 EDA 2014
Appeal from the Judgment of Sentence entered August 8, 2014,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0001123-2014
BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED MAY 01, 2015
Bryan Reckeweg (“Appellant”) appeals from the judgment of sentence
imposed after the trial court found him guilty of simple assault and
harassment.1 We affirm.
The trial court summarized the facts of record as follows:
On Thursday, December 26th 2013 at 00:01 hours, the
Ridley Township Police were called to 112 Kedron Avenue for a
report of a family domestic dispute. On arrival, the police found
a female whose nose was actively bleeding and had swollen
injury areas on her face. The investigating officer, Joseph
Zielke, testified that the woman was visibly upset, crying, and
excited. The female victim, Teresa Craven, told the
Investigating Officer that she has been involved in an argument
with her boyfriend, [Appellant] Bryan Reckeweg. She told the
Officer that during this argument, [Appellant] held her down on
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1
18 Pa.C.S.A §§ 2701(a)(1) and 2709(a)(1).
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the floor and struck her several times with his closed fist,
causing the above injuries. She stated that [Appellant] held his
hand over her face and she bit his hand in an attempt to defend
herself. She further stated that [Appellant] eventually let her up
and she ran to telephone the police for assistance. Officer Zielke
testified that he found [Appellant] calm and sitting in a seat in
the living room area where he was cooperative. Officer Zielke
stated that [Appellant] admitted to an altercation that Ms.
Craven had initiated and that she had bit him causing the
laceration on his left hand. Officer Zielke did not recall if there
was an odor of alcohol on either the victim or the [Appellant] but
noticed a beer can sitting in the vicinity of where [Appellant] was
found seated. Officer Zielke testified that he noticed signs of a
struggle in that furtniture had been misplaced and there was a
broken lamp in the area where Ms. Craven had stated that the
altercation took place. Officer Zielke stated that he asked Ms.
Craven if she was willing to come back to the station to write a
statement and she agreed. Officer Zielke testified that he
observed Ms. Craven as she wrote her statement out and she
seemed able to understand his questions and communicate and
respond appropriately. He also stated that she was able to get
into the police station and leave unassisted. Officer Zielke
testified that neither he nor any of the other officers told Ms.
Craven what to put in the statement and that they “...just told
her to be as detailed as possible.”
Teresa Craven testified at trial that she had been living
with [Appellant] at the address where the incident occurred for
approximately six months. Ms. Craven testified that she was
“extremely intoxicated” the night of the incident[,] had
consumed copious amounts of alcohol as well as Klonopin and
was in a “blackout” state. She testified that she remembered
being home, there being “some sort of chaos”, and being in the
police station at one point. When the Commonwealth showed
her a written statement, Ms. Craven testified that it was her
handwriting, and contained her signature, phone number, the
date “12/26/13” and the time “12:38 am.” She further testified
that she wrote everything in that statement although she could
not recall writing it when questioned at trial due to her being in a
drunken state at the time she wrote it. When further
questioned, Ms. Craven testified that she recalled making a
statement but could not recall writing these particular words.
[Appellant] testified that he had been drinking the day of
the incident as well but he did not consider himself drunk. He
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claimed that around 11:15 p.m. he noticed that Ms. Craven had
begun pouring bleach on his new clothing that was in the
washing machine and he responded by grabbing the bleach
bottle away from her. He stated that she then took a beer mug
and smashed it against the laptop computer screen, breaking the
mug but not the computer screen. [Appellant] claimed that this
did not make him angry and that Ms. Craven has destroyed his
property numerous times in the past while she was intoxicated.
[Appellant] claimed that between 11:45 p.m. and 12:30 a.m.
Ms. Craven began striking him and he responded by holding her
and covering her mouth in order to not awake[n] the children
sleeping downstairs. [Appellant] claimed that he never struck,
hit, or punched Ms. Craven and that she received the bloody
nose and the injury to the side of her face from struggling to get
away from him and that he was “...simply protecting [his]
belongings...” [Appellant] testified that [he] was unsure exactly
how long Ms. Craven was struggling to get away but that he held
her “...until she would get tired...” and that eventually she
passed out in bed.
Trial Court Opinion, 12/15/14, at 1-4 (citations to notes of testimony
omitted).
A non-jury trial commenced on June 12, 2014, at the conclusion of
which the trial court found Appellant guilty of the aforementioned crimes.
Following a hearing on August 8, 2014, the trial court sentenced Appellant to
credit for time served for simple assault, and a consecutive ninety days of
probation for harassment. No post-sentence motions were filed. Appellant
filed a notice of appeal on August 29, 2014. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did the [trial] court err in denying [Appellant’s] objection to the
admission of witness Teresa Craven’s pre-trial written statement
after she denied that she remembered writing it?
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2. Was the evidence insufficient to find [Appellant] guilty of the
charges of simple assault and harassment since the
Commonwealth failed to prove beyond a reasonable doubt that
his actions satisfied the elements of these crimes?
3. Did the [trial] court err in imposing separate sentences for
simple assault and harassment when the offenses properly
should have merged?
Appellant’s Brief at 5.
In his first issue, Appellant argues that the trial court erred in allowing
the Commonwealth to introduce Teresa Craven’s written statement into
evidence, when Ms. Craven had no recollection of writing the statement.
Appellant’s Brief at 11-14. Specifically, Appellant argues that Ms. Craven’s
written statement constitutes inadmissible hearsay because Ms. Craven
could not vouch for its accuracy, and that the trial court erred in admitting
the written statement over Appellant’s objection.2 Id.
“A trial court has broad discretion to determine whether evidence is
admissible and a trial court's ruling on an evidentiary issue will be reversed
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2
Ms. Craven’s written statement to the police reads as follows:
I, Teresa Craven, would like to say what occurred on 12/26/13.
My boyfriend and I were having an argument and I was tackled
and punched in the face numerous times, resulting in a bloody
nose and minor facial injury. I was threatened and intimidated
and had to hide upstairs to call 911. He told his “friends” to lie
for him and say I was the aggressor.
Teresa Craven’s Written Statement, 12/26/13.
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only if the court abused its discretion. Accordingly, a ruling admitting
evidence will not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
At trial, Appellant raised a timely objection to the introduction of the
written statement on the basis that the statement constituted hearsay
because Ms. Craven had no recollection of writing it. N.T., 6/12/14, at 13-
16. The trial court, however, admitted the written statement under the
“past recollection recorded” exception to the hearsay rule.
Our Supreme Court, addressing the “past recollection recorded”
hearsay exception, has explained:
Four elements are required for a hearsay statement to be
admitted as a past recollection recorded: (1) the witness must
have had firsthand knowledge of the event; (2) the written
statement must be an original memorandum made at or near
the time of the event and while the witness had a clear and
accurate memory of it; (3) the witness must lack a present
recollection of the event; and (4) the witness must vouch for the
accuracy of the written memorandum.
Commonwealth v. Young, 748 A.2d 166, 177 (Pa. 1999).3
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See also Commonwealth v. Shaw, 431 A.2d 897, 900 (Pa. 1981)
(“[T]he fact that [the witnesses’] lack of recall may have been the product of
a ‘selective memory’ a conscious desire to withhold certain information is not
bar to the establishment of this requirement.”).
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Here, Appellant specifically disputes the fourth requirement of the
exception, which requires the witness to “vouch for the accuracy of the
written statement.” Id. Appellant argues that although Ms. Craven
acknowledged that the statement was in her handwriting, she stated that
she had no recollection of writing it, and therefore, Appellant maintains that
she was unable to vouch for its accuracy to permit its admission under the
“past recollection recorded” exception. Appellant references the following
testimony:
Assistant District Attorney: Do you recognize this document ... and
that’s your handwriting?
Ms. Craven: That is my handwriting, correct.
Assistant District Attorney: Okay. Is that your signature right there
at the bottom?
Ms. Craven: That is my signature, correct.
***
Assistant District Attorney: Okay. So you wrote everything in that
statement, correct?
Ms. Craven: Apparently, yes.
***
I recall writing -- I don’t know – I don’t
remember writing that particular
statement, no. But I – I’m saying that is
my handwriting, but I don’t recall writing
it. I was in a drunken state.
Assistant District Attorney: Okay. But you recall the statement ...
Ms. Craven: I’m saying...
Assistant District Attorney: You just don’t recall writing these words?
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Ms. Craven: ... I believe I did, yes. ... I mean – but I
don’t recall writing it. ... I was in a state
of mind where I don’t recall it.
N.T., 6/12/14, at 13-16.
Based on the foregoing testimony, Appellant argues that Ms. Craven’s
written statement was inadmissible under the past recollection recorded
exception because Ms. Craven could not vouch for the accuracy or truth of
the statement. In Commonwealth v. Floyd, 476 A.2d 414 (Pa. Super.
1984), we explained:
The reason for excepting any particular category of out-of-
court statement to the hearsay rule is because experience shows
that it is substantially more trustworthy than hearsay in general.
We think that a fresh statement of identification made soon after
a crime or other occurrence by a witness thereto is substantially
more trustworthy than hearsay in general only if the witness
vouches for the identification under oath at trial. Absent
this important indicium of trustworthiness, we do not
think that it merits exception to the hearsay rule.
Floyd, 476 A.2d at 418 (emphasis added).
Our review of the limited case law of this Commonwealth addressing
the “past recollection recorded” exception reveals that our courts have
upheld the admissibility of the written statement as having been properly
“vouched for” only where the witness has been able to recall making the
statement and has avowed that the statement was true. See e.g. Young,
748 A.2d at 176 (although witness had no present recollection of the events,
the witness identified his signature on the statement, recalled making and
signing it, and testified that he told the police the truth when he made it);
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Commonwealth v. Shaw, 431 A.2d 897 (Pa. 1981) (witness twice
admitted on direct examination that he had told the truth when he made his
written statement).
However, where the witness has been unable to affirm that the written
statement was true, thereby failing to vouch for its accuracy, we have found
the written statement inadmissible. For example, in Floyd, supra, the
witness, on the day after a murder, made a statement identifying the
perpetrator as a man who resembled the defendant. On the date of trial,
however, the witness did not testify that his prior statement of identification
was a truthful one. We concluded that because the “past recollection
recorded” exception required the witness to vouch for the truth and accuracy
of the statement and this requirement had not been met, the evidence was
inadmissible.
Similarly, in Hammel v. Christian, 610 A.2d 979 (Pa. Super. 1992),
this Court addressed a scenario where the witness professed to lack any
recollection of the incident at issue, and either could not or would not vouch
for the accuracy of the statement, stating instead that she did not remember
giving the statement. Under these circumstances, we concluded that the
trial court did not err when it held that the written statement was hearsay
and inadmissible under the “past recollection recorded” exception.
In the present case, Ms. Craven, as in Floyd and Hammel, did not
vouch for the accuracy of the statement, testifying instead that she did not
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recall writing it. Under these circumstances, the record reflects that Mrs.
Craven did not vouch for the accuracy of the written statement to satisfy the
fourth prong of the “past recollection recorded” exception. Although, as the
trial court noted, Ms. Craven acknowledged that the handwriting was hers,
she could not say that the statement itself was accurate. Given that Ms.
Craven could not vouch for the statement’s accuracy, we conclude that the
trial court erred in admitting it under the past-recollection recorded
exception to the hearsay rule. See also Commonwealth v. Cooley, 398
A.2d 637 (Pa. 1979) (holding that the Commonwealth did not lay a proper
foundation for admissibility of a writing as a past recollection recorded where
it was not established that witness had determined that the writing was
accurate).
Nonetheless, we must determine whether the trial court’s admission of
Ms. Craven’s written statement constituted harmless error. “The harmless
error doctrine, as adopted in Pennsylvania, reflects the reality that the
accused is entitled to a fair trial, not a perfect trial.” Commonwealth v.
Rasheed, 640 A.2d 896, 898 (Pa. 1994).
Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
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Commonwealth v. Hawkins, 701 A.2d 492, 507 (1997).
Here, only three witnesses testified at trial: Ms. Craven, who testified
that she could not recollect any of the events in question; Officer Zielke, who
responded to the report of a domestic disturbance at Appellant’s residence;
and Appellant, who testified on his own behalf. Ms. Craven testified that on
the date of the incident, she was intoxicated from alcohol and prescription
pill consumption, and that she had in the past similarly “blacked out [yet]
functioned” without subsequently being able to remember what she said or
did. N.T., 6/12/14, at 12-13. Officer Zielke testified that on his arrival at
Appellant’s residence, he was met at the door by Ms. Craven, who was
“visibly upset” and “crying” and bleeding from her nose. Id. at 21. The
officer testified that Ms. Craven stated that Appellant had hit her. Id. at 22.
The officer additionally observed that the furniture in the apartment was
misplaced, that there were signs of a struggle, and that Appellant had an
injury to his left hand. Id. at 22-23. Finally, Appellant testified that he did
not strike Ms. Craven, that she was intoxicated, and that she attempted to
destroy his personal property. Id. at 32-38. Appellant admitted to a
struggle with Ms. Craven, testifying that because Ms. Craven was destroying
his property, he “held her” and “covered her mouth, because it was 12:30 –
there were kids sleeping ... That’s where she got the brush on her face, and
that’s where she got the bloody nose from struggling to get away from me.”
Id. at 37.
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We conclude that based on the foregoing, although the trial court
erred in admitting Ms. Craven’s written statement, the error was harmless.
Ms. Craven’s written statement was merely cumulative of the substantially
similar and untainted testimony of Officer Zielke, who related that Ms.
Craven told him Appellant had hit her, and testified to his observations of
Ms. Craven’s and Appellant’s injuries and the disarray in the residence that
evidenced a struggle. Moreover, Appellant admitted to a struggle with Ms.
Craven that resulted in her injuries. In light of the foregoing, we conclude
that the trial court’s error in admitting Ms. Craven’s written statement was
harmless, and that Appellant is not entitled to relief on this claim.
Appellant next argues that the evidence was insufficient to support his
convictions of simple assault and harassment because the Commonwealth
failed to prove beyond a reasonable doubt that his actions satisfied the
elements of these crimes. Appellant’s Brief at 15-17. When reviewing a
challenge to the sufficiency of the evidence, we are bound by the following:
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
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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).
To support a conviction for simple assault pursuant to 18 Pa.C.S.A §
2701(a)(1), the Commonwealth was required to prove that Appellant
attempted to cause or intentionally, knowingly or recklessly caused bodily
injury to Ms. Craven.
To support a conviction for harassment pursuant to 18 Pa.C.S.A §
2709(a)(1), the Commonwealth was required to prove that Appellant, with
the intent to harass, annoy or alarm another, struck, shoved, kicked or
otherwise subjected Ms. Craven to physical contact, or attempted or
threatened to do the same.
Here, Officer Zielke’s testimony that Ms. Craven reported to him that
“her boyfriend had beat her and hit her,” together with his observation of
evidence of a struggle in the apartment and injuries to Appellant, was
sufficient to support the trial court’s determination that Appellant was guilty
of simple assault and harassment. N.T., 6/12/14, at 22. In addition, as the
trial court observed, Appellant admitted that he struggled with Ms. Craven,
and in the process she received a bloody nose. See Trial Court Opinion,
12/15/14, at 5-6. Viewing this evidence and all reasonable inferences drawn
therefrom in a light most favorable to the Commonwealth as verdict winner,
we conclude that the evidence was sufficient for the trial court to conclude
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that Appellant intentionally, knowingly or recklessly caused bodily injury Ms.
Craven to support his simple assault conviction, and that Appellant, with
intent to harass, annoy or alarm, struck, shoved, kicked or otherwise
subjected Ms. Craven to physical contact, to support the conviction for
harassment.
In his third and final issue, Appellant asserts that his sentences for
simple assault and harassment should have merged because they arose
from the same event. Appellant’s Brief at 18.
42 Pa.C.S.A. § 9765, pertaining to the merger of sentences, provides:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements
of the other offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant only on the
higher graded offense.
We have explained that “the legislature has provided us with clear
direction by its enactment of [s]ection 9765 [which] makes the legislature's
intent with respect to merger manifest. That intent focuses solely on the
elements of the offenses for which a criminal defendant has been convicted.”
Commonwealth v. Jenkins, 96 A.3d 1055, 1058 (Pa. Super. 2014). As
discussed above, simple assault requires proof that the defendant attempted
to cause or intentionally, knowingly or recklessly caused bodily injury to
another. 18 Pa.C.S.A. § 2701. Harassment is proven if the defendant, with
the intent to harass, annoy or alarm another person, strikes, shoves, kicks
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or otherwise subjects the other person to physical contact, or attempts or
threatens to do the same. 18 Pa.C.S.A. § 2709. As the trial court properly
concluded, and is evident from the express statutory language, the crime of
harassment requires an element (intent to harass, annoy or alarm) that is
distinct and separate from the crime of simple assault (intentionally,
knowingly or recklessly intending to cause bodily injury). Therefore, the
crimes do not merge for sentencing purpose.
Based on the foregoing, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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