J-A08045-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LESTER C. DIETRICH, JR., :
:
Appellant : No. 1023 MDA 2014
Appeal from the Judgment of Sentence Entered October 10, 2012
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0004106-2011
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 28, 2015
Lester C. Dietrich, Jr. (Appellant) appeals from the October 10, 2012
judgment of sentence imposed following his convictions by a jury for
aggravated assault and resisting arrest.1 We affirm.
The trial court summarized the history of this case as follows.
On July 14, 2011, at approximately 2:00 a.m., Officer
Brent Smith was on duty as a patrol officer in Columbia
[Borough, Lancaster County]. Officer Smith noticed [Appellant]
standing on the corner of the street, appearing disoriented and
with several items lying on the ground in front of his feet.
Officer Smith decided to make contact with [Appellant] and
noticed a strong odor of alcohol coming from his breath, slurred
speech, disorientation, and an open, almost empty bottle of
Scotch whiskey at [Appellant’s] feet. While Officer Smith was
making contact with [Appellant], Sergeant [Marc] Tremblay
arrived to assist Officer Smith. When Officer Smith turned his
back to [Appellant], Sergeant Tremblay saw [Appellant] turn
1
The trial court also found Appellant guilty of the summary offense of public
drunkenness.
*Retired Senior Judge assigned to the Superior Court.
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sideways to Officer Smith, pull out a knife, open the blade, and
stand with the blade along his thigh. Sergeant Tremblay yelled
that [Appellant] had a knife and Sergeant Tremblay grabbed
[Appellant] and pushed him away from Officer Smith while
locking [Appellant’s] arm behind his back. [Appellant] was then
handcuffed and taken to Sergeant Tremblay’s police cruiser;
[Appellant] struggled with the police on the way to the cruiser.
When [Appellant] was finally in the cruiser, he laid his back
along the seat and kicked Sergeant Tremblay squarely in the
chest. [Appellant] was wearing work boots at the time and the
kick propelled Sergeant Tremblay back away from [Appellant].
Once Appellant arrived at the police station, he continued to be
aggressive and uncooperative; [Appellant] was placed in a cell
where he continued to yell, scream, and rattle the bars.
[Appellant] was charged with two counts of aggravated
assault, one count of resisting arrest, and one count of summary
public drunkenness. On December 21, 2011, at the time for
[Appellant’s] preliminary hearing, the district attorney present
agreed to withdraw the felony 1 aggravated assault charge
based on the understanding that [Appellant] would waive and
plead guilty to the felony 2 aggravated assault charge[].
[Appellant] waived his hearing, but elected to go to trial on July
16, 2012; the Commonwealth reinstated the count of aggravated
assault that had been previously withdrawn. At the time of trial,
defense counsel raised an objection to reinstating the original
charge of aggravated assault. Defense counsel also made two
oral motions in limine to prohibit any testimony about what
occurred at the police station after the arrest and to exclude any
testimony regarding the knife. The aggravated assault at count
1, regarding the assault by physical menace with the knife, was
withdrawn at the time of trial and the Commonwealth proceeded
only on the aggravated assault regarding the kick to Sergeant
Tremblay. The court denied [Appellant’s] motions in limine.
The case proceeded to trial on counts 2, 3, and 4. While
the jury was deliberating, it requested the police reports and
affidavit of arrest to read. The court denied the request, as the
reports and affidavit had not, in their entirety, been submitted
into evidence. On July 17, 2012, [the] jury found [Appellant]
guilty of aggravated assault and resisting arrest or other law
enforcement. The court found [Appellant] guilty of the summary
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public drunkenness charge. [Appellant] was sentenced on
October 12, 2013 to a term of one to two years [of]
incarceration, followed by three years of probation. [Appellant]
filed a timely post-sentence motion, which was denied by order
of November 2, 2012.
Trial Court Opinion, 9/25/2014, at 1-3 (citations, footnotes, and unnecessary
capitalization omitted).
Appellant’s first appeal was quashed by this Court as untimely filed.
Upon Appellant’s petition, the trial court reinstated Appellant’s direct appeal
rights, after which Appellant timely filed the instant appeal. Appellant
presents this Court with the following questions, which we have reordered
for ease of disposition.
I. Did the trial court err in denying [Appellant’s] motion
for a directed verdict of acquittal on the count of aggravated
assault and ther[e]by abuse its discretion?
II. Did the trial court abuse its discretion when it denied
[Appellant’s] motion for a directed verdict of acquittal on the
count of resisting arrest?
III. Did the trial court err in allowing the prosecution to
amend the charges 10 days prior to the trial date?
IV. Did the trial court err in denying [Appellant’s] motion
in limine regarding actions that may have occurred in the police
station where no subsequent charges were filed and in turn put
on character evidence of [Appellant] prior to any testimony from
any character witnesses of the defendant and in turn shift the
burden to [Appellant] and force [Appellant] to put on testimony?
V. Did the trial court err in denying [Appellant’s] motion
in limine regarding a knife in [Appellant’s] possession when the
Commonwealth failed to bring any charges in relation to the
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knife and went out of their way to amend the charges to remove
any charge relating to the knife?
VI. Did the trial court err when it refused to allow the
jurors to read the police reports and arrest affidavit when the
foreperson specifically requested it?
Appellant’s Brief at 7-8 (unnecessary capitalization omitted).
We first consider Appellant’s claims that the trial court erred in
denying his motion for judgment of acquittal on the aggravated assault and
resisting arrest charges.
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on a particular
charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
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Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa. Super. 2008)
(quoting Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super.
2006)). “Because evidentiary sufficiency presents a question of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa. 2014) (citations and
internal quotation marks omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
aggravated assault conviction. “A person is guilty of aggravated assault if
he: … attempts to cause or intentionally or knowingly causes bodily injury to
[a police officer] in the performance of duty[.]” 18 Pa.C.S. § 2702(a)(3) and
(c)(1). Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S. § 2301.
Appellant claims that his aggravated assault conviction is supported by
insufficient evidence because “Sergeant Tremblay, the victim of the kick,
clearly indicated that he did not feel substantial pain and was able to
perform his duties for the remainder of his shift.” Appellant’s Brief at 18
(citing Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997)).2
We disagree.
2
Appellant’s reliance upon Wertelet is misplaced. In that case, this Court
held that the evidence was insufficient to establish that the officer sustained
actual bodily injury, and did not discuss whether the evidence supported a
conviction based upon an attempt to cause injury. See Wertelet, 696
A.2d at 212-13 (holding evidence that woman kicked officer with the back of
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“‘[I]n a prosecution for aggravated assault on a police officer[,] the
Commonwealth has no obligation to establish that the officer actually
suffered a bodily injury; rather, the Commonwealth must establish only an
attempt to inflict bodily injury, and this intent may be shown by
circumstances which reasonably suggest that a defendant intended to cause
injury.’” Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013)
(quoting Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011))
(emphasis in original). “An ‘attempt’ exists when ‘the accused intentionally
acts in a manner which constitutes a substantial or significant step toward
perpetrating … bodily injury upon another.’” Commonwealth v.
Stevenson, 894 A.2d 759, 774 (Pa. Super. 2006) (quoting
Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001)).
Here, the Commonwealth offered testimony that Appellant reared back
and kicked Sergeant Tremblay squarely in his chest with the bottom of his
work-boot-clad foot with enough force to throw Sergeant Tremblay
backwards. N.T., 7/16/2012, at 50, 78-79. Although Sergeant Tremblay
was wearing a bulletproof vest at the time and was thus unhurt by the kick,
id. at 88, the jury had sufficient evidence upon which to conclude that
her heel as she flailed about was insufficient to prove that the officer
“experienced a ‘bodily injury’ within the meaning of the statute” where the
officer did not report any bruising or swelling as a result).
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Appellant acted with the intent to cause impairment or substantial pain. 3
Accordingly, the trial court did not err in denying Appellant’s motion for a
judgment of acquittal on the aggravated assault charge. See, e.g., Brown,
23 A.3d at 560 (holding evidence was sufficient to establish the attempt to
cause bodily injury to a police officer where Brown flailed his arms,
repeatedly striking the officer on the arm, shoulder, and mouth).
Appellant next claims that the evidence was insufficient to sustain his
conviction for resisting arrest. The relevant statute provides:
A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force
to overcome the resistance.
18 Pa.C.S. § 5104.
Officer Smith testified to the following description of the events
subsequent to the handcuffing of Appellant:
We had to physically move him to the police car, which is
maybe ten feet out to the street. So we had to physically escort
him. He wasn’t walking. And we got him to the side of the
police car and opened the back door, and he refused to get in.
We were able to turn him around. And it is easier to get
someone in by going around to the back of the other side and
grabbing him from behind and pulling him in. But we both
stayed on his side of the car and basically were able to push him
into the backseat of the car.
3
As we discuss infra, Appellant’s intent to cause bodily harm was further
evidenced by his aggressive conduct before and after the kick.
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N.T., 7/16/2012, at 49. After Appellant kicked Sergeant Tremblay as
previously described, Officer Smith did go to the other side of the car and
pulled Appellant all the way into the vehicle. Id. at 50.
Appellant argues his conviction cannot stand because there was no
testimony that Appellant resisted prior to being handcuffed; rather, “[a]ny
allegation of kicking occurred after [Appellant] was handcuffed, and
therefore already arrested.” Appellant’s Brief at 20. Again, we disagree.
The above testimony evidences that substantial force was required to
overcome Appellant’s resistance to being taken into custody. Appellant
cites, and we have found, no authority for the proposition that an arrest is
complete for purposes of subsection 5104 as soon as the arrestee is in
handcuffs. Even if such were true, the officers were clearly in the process of
discharging their duty to take the arrestee to the police station when
Appellant kicked and otherwise resisted. Accordingly, the trial court properly
denied Appellant’s motion for an arrest of judgment on the resisting arrest
charge. See Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa.
Super. 2007) (“Appellant’s use of passive resistance requiring substantial
force to overcome provided sufficient evidence for upholding the resisting
arrest conviction.”).
With his next issue, Appellant claims that the trial court erred in
allowing the Commonwealth to amend the charges ten days before trial.
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Appellant argues that he was prejudiced by the late amendment because
counsel had to “rethink [her] theory of the case and prepare new
arguments.” Appellant’s Brief at 14. Appellant suggests that he was denied
a meaningful opportunity to present a defense by the late amendment. Id.
at 15.
The trial court offered the following explanation for its decision to allow
the amendment.
In the instant case, [Appellant] was originally charged with
two counts of aggravated assault, resisting arrest, and public
drunkenness. At the preliminary hearing, the Assistant District
Attorney offered to withdraw the Felony 1 aggravated assault
charge with the understanding that [Appellant] would waive and
plead guilty to the Felony 2 aggravated assault charges. ADA
Lechner also noted that it was made clear to the defense counsel
present at the preliminary hearing that if [Appellant] chose not
to enter a guilty plea, the greater charge would be reinstated.
That scenario is precisely what happened here. [Appellant]
elected to go to trial, as is his right, and the prosecution
reinstated the original charges that [Appellant] was facing.
Defense counsel attempts to argue that because the
charge was reinstated ten days before trial, the defense was
prejudiced, as she did not have enough time to prepare. This
argument is senseless. Defense counsel was aware of the
charges [Appellant] faced at the time of the preliminary hearing
and knew that if [Appellant] elected to go to trial, the original
charges would be reinstated. In preparing for trial, defense
counsel should have been prepared for all the original charges,
considering the very fact that she was preparing for trial.
Furthermore, the events of that evening transpired over the
course of less than fifteen minutes; there was no additional or
different discovery that would have been provided….
Trial Court Opinion, 9/25/2014, at 4-5 (citations omitted).
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The trial court’s findings are supported by the record, and Appellant
has failed to persuade us that the trial court committed an error or abuse of
discretion. Accordingly, Appellant is entitled to no relief. Commonwealth
v. Claffey, 80 A.3d 780, 787 (Pa. Super. 2013) (“It is, of course, an
appellant’s burden to persuade us the trial court erred and relief is due.).
Appellant’s next two issues relate to the denial of his motions in
limine.
When reviewing the denial of a motion in limine, we apply
an evidentiary abuse of discretion standard. [A] motion in limine
is a procedure for obtaining a ruling on the admissibility of
evidence prior to trial, which is similar to a ruling on a motion to
suppress evidence, [therefore] our standard of review ... is the
same as that of a motion to suppress. The admission of
evidence is committed to the sound discretion of the trial court,
and our review is for an abuse of discretion.
Commonwealth v. Rosen, 42 A.3d 988, 993 (Pa. 2012) (internal quotation
marks and citations omitted).
Appellant claims that the trial court should have granted his motion in
limine to exclude as irrelevant and prejudicial testimony “as to the knife
[Appellant] legally had in his possession” and “as to what occurred at the
police station after the arrest.”4 Appellant’s Brief at 16, 15. Appellant
argues that allowing this testimony “put [Appellant’s] character at issue[,]”
“improperly switched the burden to [Appellant] to prove he was innocent
4
Appellant does not identify, by reference to the record or otherwise, the
testimony that was offered about “what occurred at the police station.”
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and forced [Appellant] to put on testimony to counteract the
Commonwealth’s attack on his character.” Id. at 15.
Rule 404(b) of the Rules of Evidence addresses the admissibility of the
evidence at issue as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. 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.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b).
In the instant case, the Commonwealth bore the burden of convincing
the jury, beyond a reasonable doubt, that Appellant kicked Sergeant
Tremblay with the intent to cause him bodily injury. The evidence of
Appellant’s conduct immediately before and after the assault were offered
not to prove that Appellant acted in conformity with a bad character or to
switch any burden onto Appellant, but to prove Appellant’s intent at the time
of the assault. As the Commonwealth explained,
the fact that [Appellant] pulled a knife from his pocket, flipped it
open, and concealed it behind his thigh when an officer turned
his back to him demonstrates an intent to inflict bodily injury.
Testimony regarding the knife was relevant for the purpose of
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proving that the kick by [Appellant] was committed with the
intent to injure a police officer.
Second, testimony regarding [Appellant’s] actions at [the
police] station is relevant to prove [Appellant’s] state of mind
with respect to the kick of Sgt. Tremblay. [Appellant’s]
aggressive behavior towards the police officers at the station
furthers the Commonwealth’s argument that [Appellant]
intended to cause bodily injury to Sgt. Tremblay when he kicked
him in the chest. Officers were forced to wrestle [Appellant] to
the ground on several occasions to [bring him] under control.
Although the charge resulted from the kick, the entire sequence
of events from the initial interaction until [Appellant was] placed
in [a] cell are relevant to show [Appellant’s] state of mind with
respect to the attempt to cause bodily injury to Sgt. Tremblay.
Commonwealth’s Brief at 13-14 (citations omitted).
The trial court agreed that the evidence was relevant to show
Appellant’s intent, and that the probative value outweighed any prejudice.
Trial Court Opinion, 9/25/2014, at 5. We discern no error or abuse of
discretion in the trial court’s ruling. See, e.g., Commonwealth v. Rivera,
597 A.2d 690, 694 (Pa. Super. 1991) (holding that evidence of other
incidents between the defendant and the victim fell within the intent
exception of Rule 404(b) in prosecution for aggravated assault).
Finally, Appellant purports that the trial court erred in declining to
send police reports and the arrest affidavit back with the jury during its
deliberations.
Pennsylvania Rule of Criminal Procedure 646 provides, in
relevant part, that, [u]pon retiring, the jury may take with it
such exhibits as the trial judge deems proper[.] [W]hether an
exhibit should be allowed to go out with the jury during
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deliberation is within the discretion of the trial judge, and such
decision will not be overturned absent an abuse of discretion.
Commonwealth v. Parker, 104 A.3d 17, 25 (Pa. Super. 2014) (internal
quotation marks and citations omitted). “Our courts have rarely found that
materials given to juries during deliberations constitute reversible error. In
the cases that have found reversible error, however, the prejudicial effect of
the evidence in question was severe and readily apparent.”
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012).
Appellant maintains that the jury, upon its request, should have been
permitted to read copies of the police reports and affidavits. Appellant’s
Brief at 20. His argument on this issue is, in its entirety, the following:
The defense relied on the inconsistencies and omissions of
the police reports for their theory of the case and failing to allow
the jurors to see the reports, was an abuse of discretion by the
trial court. [Appellant] admitted into evidence Officer Smith’s
police report, criminal complaint and affidavit of probable cause
and Sgt[.] Tremblay’s police report. [Appellant] also questioned
the officers about said reports and what was included and
shockingly what was omitted. Those documents were essential
to [Appellant’s] case and severely attacked the officers’
credibility which was essential to proving that the
Commonwealth failed to meet its burden.
Appellant’s Brief at 20 (unnecessary capitalization omitted).
The trial court explained its decision as follows:
The judge met with counsel and explained that because parts of
the reports were not made part of the record or testified to, it
would be inappropriate to send the reports back to the jurors.
The jury was brought back to the courtroom and the judge
explained to the members of the jury that the documents would
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not be provided; it was their recollections of the testimony and
the evidence that they needed to rely on during deliberations.
Because the reports and the affidavit in their entireties were not
made part of the record, it would have been inappropriate to
allow the jury to read them.
Trial Court Opinion, 9/25/2014, at 7 (citations omitted).
Our review of the record reveals that Appellant did offer, and the trial
court accepted, the reports and affidavit into evidence. N.T., 7/17/2012, at
24. It seems that the jury heard testimony about some, but not all, of the
contents of these documents, N.T., 7/16/2012, at 55-67, 82-88; however,
we cannot be certain because the subject exhibits are not included in the
certified record.
In any event, we are not persuaded that Appellant is entitled to relief.
First, Appellant does not even attempt to show that the trial court’s decision
was the result of “bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law.” Commonwealth v.
Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015).
Second, even if the trial court misstated the record status of the
exhibits, the decision to require the jury to rely on its recollections of the
officers’ testimony is sound. “The underlying reason for excluding certain
items from the jury’s deliberations is to prevent placing undue emphasis or
credibility on the material, and de-emphasizing or discrediting other items
not in the room with the jury.” Commonwealth v. Dupre, 866 A.2d 1089,
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1103 (Pa. Super. 2005) (quoting Commonwealth v. Strong, 836 A.2d 884,
888 (Pa. 2003)). Here, allowing the jury to have the reports upon which the
officers were cross-examined by defense counsel, but not the testimony
offered by the officers on direct examination,5 created an undue risk of the
jury emphasizing the documents over the testimony.
Third, Appellant has failed to convince us that he suffered “severe and
readily apparent” prejudice as a result of the trial court’s decision, such that
reversal is warranted. Barnett, 50 A.3d at 194. Accordingly, Appellant is
entitled to no relief from this Court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
5
Pursuant to Pa.R.Crim.P. 464(C)(1), the jury was not permitted to have
transcripts of any trial testimony during deliberations.
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