J.A21001/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM HLUSHMANUK, :
:
Appellant : No. 2227 EDA 2014
Appeal from the Judgment of Sentence May 2, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: CP-51-CR-0003766-2012
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 13, 2015
Appellant, William Hlushmanuk,1 appeals from the judgment of
sentence entered following a bench trial in the Philadelphia County Court of
Common Pleas. Appellant was found guilty of simple assault, aggravated
assault, and recklessly endangering another person2 (“REAP”) for an incident
in which he, inter alia, choked his ex-wife at a gas station.3 On appeal, he
*
Former Justice specially assigned to the Superior Court.
1
Appellant is also known as Bill Le. N.T. Sentencing, 5/2/14, at 61.
2
18 Pa.C.S. §§ 2701(a)(1), 2702(a)(1), 2705.
3
The trial court opinion referred to the complainant in this matter,
Jacqueline Diana, as Appellant’s “ex-wife.” Trial Ct. Op., 1/29/15, at 3. At
the January 2014 trial, Diana referred to Appellant as her “ex-husband,” and
stated they separated in December 2010, but were not divorced. N.T. Trial,
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challenges the weight and sufficiency of the evidence, the admission of
evidence of a prior incident with his ex-wife, and the imposition of his
sentence to run consecutive to an unrelated federal sentence.4 We affirm.
The court conducted a bench trial on January 6, 2014. It summarized
the underlying facts as follows:
[O]n October 31, 2011, at approximately 9:45 p.m.,
[Appellant] violently attacked the victim, his ex-wife,
[Diana,] at a gas station located at Welsh Road and
Roosevelt Boulevard, Philadelphia, Pennsylvania. The
attack was witnessed by three independent and unrelated
individuals: Philadelphia Police Lt. John Stanford[ ],
Rebecca McBride and Natasha Cintron. All three
witnesses, as well as the victim, Ms. Diana, testified at
trial. The witness testimony was consistent, in that
[Appellant] physically attacked the victim and choked her
to a point of unconsciousness. He was then observed
dragging her around her vehicle and attempting to put her
into a vehicle. All of this took place in front of his young
daughter. [Appellant] was arrested at the scene by
Philadelphia police.
Trial Ct. Op. at 3. The trial court opined of the Commonwealth’s witnesses
as follows:
The testimony presented at trial was consistent in
1/6/14, at 73, 94. They have two children together, one of whom, M., was
present during the incident in this matter. Id. at 73.
4
We note the certified record transmitted on appeal does not include any
notes of testimony. Appellant, however, has included copies of the full
transcripts of trial, the sentencing hearing, and post-sentence motion
hearing in his reproduced record. The Commonwealth does not object to
these copies. “While we will consider the cop[ies of the transcripts] in the
reproduced record, we caution counsel that it is the appellant’s burden to
ensure that the certified record is complete. See Pa.R.A.P. 1921 . . . .”
Commonwealth v. Landis, 89 A.3d 694, 697 n.5 (Pa. Super. 2014).
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regard to [Appellant’s] criminal conduct [and] sufficient to
support this Court’s findings of guilt. The witnesses’
testimony was credible when taken both individually and
was also consistent with one another when taken as a
whole. Cross-examination revealed no bias, prejudice or
mistake on the witnesses’ part and inconsistencies, if any,
were minor and without negative effect upon the overall
determinations made by this Court.
Id. at 4. Appellant did not testify or present evidence.
The trial court found Appellant guilty of aggravated assault, simple
assault, and REAP. On May 2, 2014, the court imposed an aggregate
sentence of four to eight years’ imprisonment and five years’ probation.5
The court ordered the sentence to run consecutive to an unrelated, seven
year and eight months’ “sentence for a federal Medicare fraud offense.”6
See N.T. Sentencing at 12, 19, 72-73. Appellant filed a timely post-
sentence motion which raised claims relating to, inter alia, the four issues
raised in the instant appeal. On July 9, 2014, the court granted partial relief
5
Specifically, the court imposed the following sentences: (1) for aggravated
assault, a felony of the first degree, the court imposed four to eight years’
imprisonment and five years’ probation; (2) for simple assault, a
misdemeanor of the second degree, a concurrent two years’ probation; and
(3) for REAP, also a misdemeanor of the second degree, no further penalty
as it merged with simple assault. Sentencing Order, 5/2/14.
6
Husband had an “ambulance business” and Diana “worked for him.” N.T.
Trial at 94. Husband allegedly stole “a couple of million dollars from the
federal government.” Id. According to Appellant’s counsel’s statements at
the sentencing hearing, his federal sentence commenced on May 16, 2013,
and included a consecutive “three years federal release.” N.T. Sentencing at
19. At the time of trial, Diana was “under indictment” and on “home arrest”
for her role in that matter. N.T. Trial at 94, 95.
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by holding simple assault merged with aggravated assault and vacating the
concurrent two-year probation term. However, the court denied relief on
Appellant’s remaining claims. Appellant filed a timely notice of appeal and
complied with the court’s order to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.
We address Appellant’s first two issues together. First, he purports to
challenge the sufficiency of evidence for aggravated assault.7 Appellant
maintains Diana did not sustain serious bodily and the Commonwealth failed
to establish he acted intentionally, knowingly, or with a high degree of
recklessness. In support, Appellant cites the following perceived
inconsistent testimony by the Commonwealth’s witnesses: (1) Lieutenant
Stanford testified Appellant stood over Diana, who was lying on the ground
on the driver’s side of the vehicle, and then “Appellant picked up his wife by
the neck[,] dragged her around . . . to the passenger side,” and put two
hands around her neck in a chokehold; (2) witness Rebecca McBride testified
Diana was seated on the passenger side of the vehicle when “Appellant was
pulled off of her,” and Appellant was “‘pinning down’ his wife with one hand
by her neck on the seat and the other hand holding her mouth;” (3) witness
Natasha Cintron testified “the female was leaning into the passenger side of
the vehicle at which time Appellant had only one hand around her neck;” (4)
7
The relevant heading in Appellant’s brief articulated a sufficiency challenge
to simple assault and REAP as well. However, his discussion addresses only
the elements of aggravated assault.
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Diana “only recalled that Appellant was behind her when he put her into a
choke hold, and that she passed out without recalling anything more.”
Appellant’s Brief at 26. Furthermore, Appellant states that while Lieutenant
Stanford testified the daughter M. was outside of the vehicle, “the female
witnesses” indicated she was in the rear seat. Id. Appellant also notes
Diana’s testimony that “immediately before placing her into a chokehold,”
Appellant said “I’m never letting you go home. Do you hear me right now?
You’re not going home.” Id. at 27. However, he maintains, “none of the
eyewitnesses heard [him] make any statements before, during or after the
incident.” Id. at 28. Appellant, however, does note Diana’s testimony that
earlier that evening, he “yelled to her ‘I’m going to F’ing kill you.’” Id.
In his second claim on appeal, Appellant argues the verdicts for
aggravated assault and REAP were against the weight of the evidence. In
support, he reiterates: (1) although Diana testified he made threatening
statements, none of the other witnesses heard them; and (2) “[t]he
eyewitnesses have conflicting observations as to what Appellant did to his
wife.” Id. at 28. Appellant requests this Court to “carefully scrutinize[ ]”
Diana’s credibility,” as she pleaded guilty to federal charges “of Health Care
Fraud, Conspiracy to Commit Health Care Fraud, and Aiding and Abetting”
Appellant, all of which “are crimes of dishonesty.” Id. Appellant further
asserts Diana has “refused to allow [him] to see his children at times” and
that there have been no “reports of any violence and/or threats” since the
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underlying incident. Id. We find no relief is due.
Preliminarily, we hold Appellant’s first issue, which argues
inconsistencies in the witnesses’ testimony, goes to the weight, not
sufficiency, of the evidence. See Commonwealth v. Trinidad, 96 A.3d
1031, 1038 (Pa. Super. 2014) (stating (1) variances in testimony go to
credibility of witnesses and not sufficiency of evidence and (2) mere conflict
in testimony does not render evidence insufficient because it is within
province of fact finder to determine weight to be given to testimony and to
believe all, part, or none of evidence), appeal denied, 99 A.3d 925 (Pa.
2014). We thus consider Appellant’s first and second issues under weight of
the evidence guidelines.
“[A]ppellate review of a weight claim consists of a review of the trial
court’s exercise of discretion, not a review of the underlying question of
whether the verdict is against the weight of the evidence.” Commonwealth
v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) (citation omitted).
The weight of the evidence is a matter exclusively for the
finder of fact, who is free to believe all, part, or none of
the evidence and to determine the credibility of the
witnesses. A new trial is not warranted because of “a
mere conflict in the testimony” and must have a stronger
foundation than a reassessment of the credibility of
witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.
Id. (citations omitted).
As stated above, the trial court specifically found the Commonwealth’s
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“witness[es’] testimony was consistent,” “credible when taken both
individually and . . . also consistent with one another when taken as a
whole.” Trial Ct. Op. at 3-4. The trial court reproduced in detail the
testimony of Diana, Lieutenant Stanford, and eyewitnesses McBride and
Cintron. Id. at 4-23. We decline Appellant’s request to reweigh Diana’s
credibility, as our role is to “review of the trial court’s exercise of discretion,
not . . . the underlying question of whether the verdict is against the weight
of the evidence.” See Gonzalez, 109 A.3d at 723. Instead, the trial court,
sitting as finder of fact, was “free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses.” See id. After careful
review of the parties’ briefs, the trial court’s opinion, and the record,
including the trial transcript, we adopt the pertinent law and analysis set
forth in the trial court’s opinion. See Trial Ct. Op. at 24-26 (rejecting
Appellant’s claim that his actions did not put Diana in danger of serious
bodily injury and finding: (1) need for medical attention is not element of
crimes charged, (2) Appellant “is trained in karate and holds a black belt,
[which] compounded is ability to inflict harm,” (3) “trial evidence showed
[Appellant] specifically and successfully targeted Ms. Diana with his violent
actions,” (4) Diana and three witnesses testified Appellant choked her, Diana
lost consciousness, and her body went limp, and (5) Appellant’s assault “was
directed at her head and neck region and caused [Diana] to lose
consciousness”). We agree that the court’s verdict does not shock the
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conscience. See Gonzalez, 109 A.3d at 723. Accordingly, we find no relief
is due on Appellant’s first two issues.
Appellant’s third claim on appeal is that the trial court erred in allowing
evidence of a prior incident involving Diana.8 He asserts the prior act was
“too remote in time, and not part of the incident that occurred [in this case]
to be considered part of the same crime.” Appellant’s Brief at 35. We find
no relief is due.
At this juncture, we summarize the challenged evidence, which the
Commonwealth presented through direct examination of Diana. See N.T.
Trial at 74-85. Diana testified to the following. On December 20, 2011,
approximately ten months prior to the instant incident, she and the children
stayed at her parents’ house in Northeast Philadelphia. Around 1:00 a.m.,
Appellant called and said, “No, you’re coming home,” and “Even if I have to
come in there and drag you out,” and “curs[ed Diana] out.” Id. at 75. “[A]
few minutes later,” while Diana was still on the phone with him, Appellant
was at the door, and “it sounded like he was kicking the door in.” Id. at 76.
Diana went to the basement, someone called the police,9 and Diana heard
her father open the door and tell Appellant to leave. Diana’s father called
8
The Commonwealth filed a pre-trial motion to admit this evidence of a prior
bad act. The parties argued the motion immediately prior to trial, and the
court granted it.
9
Diana testified only, “We already called the police.” N.T. Trial at 77.
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Appellant’s father, who arrived, and eventually Diana went outside.
Appellant “grabbed [Diana’s] neck in midair and body slammed [her] on the
ground.” Id. at 79-80. Appellant “was on top of” Diana, her “chest really
hurt,” and she could not breathe. Id. at 80-81. Both Diana’s father and
Appellant’s father attempted “to help by getting [Appellant] off” of her. Id.
at 81. Finally, Diana and her father returned inside, the police arrived,
Diana gave a statement to them, but Appellant was not charged. 10 Id. at
82. Diana went to the hospital at 2:00 a.m. the following night, believing
she had a broken rib, but learned she “was just bruised.” Id. at 97-98.
This Court has stated: “Questions regarding the admission of evidence
are left to the sound discretion of the trial court, and we, as an appellate
court, will not disturb the trial court’s rulings regarding the admissibility of
evidence absent an abuse of that discretion.” Trinidad, 96 A.3d at 1036
(citation omitted).
“[E]vidence of crimes other than the one in question is not
admissible solely to show the defendant’s bad character or
propensity to commit crime.” [S]ee Pa.R.E. 404(b)(1).
Nevertheless, “[t]his evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Pa.R.E. 404(b)(2)[.] “In
order for evidence of prior bad acts to be admissible as
evidence of motive, the prior bad acts ‘must give sufficient
ground to believe that the crime currently being
considered grew out of or was in any way caused by the
10
In his brief, Appellant states he was “charged, but the charges were
withdrawn after his wife failed to appear for court.” Appellant’s Brief at 32-
33.
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prior set of facts and circumstances.’” “Additionally,
evidence of other crimes may be admitted where such
evidence is part of the history of the case and forms part
of the natural development of the facts.”
Commonwealth v. Ferguson, 107 A.3d 206, 211 (Pa. Super. 2015) (some
citations omitted).
In the case sub judice, the trial court allowed Diana’s testimony about
the prior incident under Rule of Evidence 404(b)(2), finding:
[E]vidence that [Appellant] had previously assaulted and
committed physical violence upon his estranged wife by
choking her previously to the night in question was
relevant and probative of [Appellant’s] motive and intent
for committing the assaults upon his ex-wife.
The factual basis of the present charges against
[Appellant] indicated that he became violently aggressive
towards her, choking until the point of lost consciousness.
Evidence that [Appellant] had previously engaged in the
same behavior with Ms. Diana was relevant and admissible
as it was closely linked in similarity and nature to the
charged offenses. This degree of similarity is an important
factor in determining the admissibility of other crimes or
bad acts as relevant to show a common scheme or plan.
Trial Ct. Op. at 34 (citation omitted). We agree with the court’s analysis and
find no abuse of discretion. See Pa.R.E. 404(b)(2); Ferguson, 107 A.3d at
211; Trinidad, 96 A.3d at 1036.
Appellant’s final issue on appeal is a challenge to the discretionary
aspects of his sentence. As stated above, the court imposed an aggregate
term of four to eight years’ imprisonment, to run consecutive to his federal
sentence of seven years and eight months. Appellant alleges “the imposition
of this sentence, albeit within the Standard Guideline range, but ordered to
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run consecutively to his federal sentence, was unreasonable[,] inconsistent
with his rehabilitative needs,” and “not consistent with the protection for the
public and the victim.” Appellant’s Brief at 37, 38. He explains the
underlying incident occurred when he and his wife were separated, they
were “under review by the federal law enforcement authorities regarding
their ambulance business,” “and the parties were under a tremendous
amount of stress.” Id. at 37-38. Although he acknowledges the prior,
December 2010 incident, he avers “[t]here was no prior history of violence
between” them. Id. at 38. Appellant further avers his sentence “goes
above and beyond what should be considered appropriate to rehabilitate
him,” where “[h]is prior record does not show any violence towards a
person.11 Id. Instead, Appellant maintains, he “has demonstrated several
years in the community as being a productive member of society by
obtaining education, and being employed.” Id. He adds the fact he now has
a girlfriend “demonstrates that he no longer poses a threat to his wife as he
has accepted the ending of their marital relationship.” Id. at 39. Appellant
concludes his sentence should have been imposed to run concurrently with
this federal sentence. We find no relief is due.
We note:
11
Appellant, however, acknowledges: (1) when he was eighteen years old,
“he entered an auto auction” and was “charged with Burglary, for which he
was placed on juvenile probation;” (2) at age twenty-one, he pleaded guilty
to Possession of a Firearm; and (3) at age twenty-nine, he pleaded guilty to
illegal transfer of a firearm. Appellant’s Brief at 38.
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Before this Court can address such a discretionary
challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (1) whether appellant has
filed a timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3)
whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code.
* * *
“The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.”
Further:
A substantial question exists only when the appellant
advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2)
contrary to the fundamental norms which underlie
the sentencing process.
Commonwealth v. Caldwell, ___ A.3d ___, ___ 2015 WL 3444594 at *2
(Pa. Super. May 29, 2015) (en banc) (some citations omitted), alloc. filed,
408 EAL 2015 (Pa. Jun. 29, 2015).
In Caldwell, an en banc panel of this Court stated:
A court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Rather, the imposition of consecutive
rather than concurrent sentences will present a substantial
question in only “the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering
the nature of the crimes and the length of imprisonment.”
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To make it clear, a defendant may raise a
substantial question where he receives consecutive
sentences within the guideline ranges if the case
involves circumstances where the application of the
guidelines would be clearly unreasonable, resulting
in an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.
Super. 2013), . . . appeal denied, 91 A.3d 161 (Pa. 2014)
(emphasis in original).
Caldwell, 2015 WL 3444594 at *3 (some citations omitted). This Court has
also held that a “claim that the trial court erred in ordering [a sentence] to
run consecutively, instead of concurrently, to a previously imposed sentence
does not raise a substantial question.” Commonwealth v. Pass, 914 A.2d
442, 446 (Pa. Super. 2006).
With respect to a claim that the trial court failed to consider a
defendant’s rehabilitative needs, the Caldwell Court noted:
“[O]rdinarily, a claim that the sentencing court failed to
consider or accord proper weight to a specific sentencing
factor does not raise a substantial question.” Specifically,
[t]here is ample precedent to support a
determination that [a claim that the trial court failed
to consider an appellant’s rehabilitative needs] fails
to raise a substantial question . . . .
Similarly, “this Court has held on numerous occasions that
a claim of inadequate consideration of mitigating factors
does not raise a substantial question for our review.”
However, “prior decisions from this Court involving
whether a substantial question has been raised by claims
that the sentencing court ‘failed to consider’ or ‘failed to
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adequately consider’ sentencing factors has been less than
a model of clarity and consistency.” In . . . Dodge, this
Court determined an appellant’s claim that the sentencing
court “disregarded rehabilitation and the nature and
circumstances of the offense in handing down its sentence”
presented a substantial question. Dodge, [77 A.3d] at
1273.
This Court has also held that “an excessive sentence
claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial
question.” Additionally:
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Caldwell, 2015 WL 3444594 at *3-*4.
In the case sub judice, Appellant has filed a timely notice of appeal,
preserved his sentencing claims in a post-sentence motion, and included a
Pa.R.A.P. 2119(f) statement in his brief. See id. at *2. With respect to the
consecutive nature of his sentence, we find Appellant has not raised a
substantial question. His minimum sentence of four years is at the low end
of the standard sentencing guideline, see Appellant’s Brief at 37 (stating
standard sentencing guideline was forty-eight to sixty-six months), and we
decline to find this sentence, when coupled with his seven year and eight
month-federal sentence, falls within “the most extreme circumstances” and
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is so “clearly unreasonable” and excessive as to support a substantial
question. Cf. Caldwell, 2015 WL 3444594 at *2-*3 (holding challenge to
imposition of consecutive sentences, together with claim that court failed to
consider rehabilitative needs, presented substantial question where
aggregate sentence for aggravated assault, robbery, and related offenses
was thirty-one to sixty-two years); Dodge, 77 A.3d at 1273 (holding
defendant set forth substantial question with respect to consecutive nature
of his sentence, which aggregated forty years and seven months to eighty-
one years and two months, but upholding sentence on merits). See also
Pass, 914 A.2d at 446.
However, in light of the discussion in Caldwell, we hold Appellant has
raised a substantial question that the trial court failed to consider his
rehabilitative needs and the protection of the public. See Caldwell, 2015
WL 3444594 at *3-*4. We thus consider the merits of his claim.
We note the relevant standard of review:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
Id. at *4 (citation omitted).
The trial court opined:
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[T]he Presentence report revealed [Appellant] has had
numerous contacts with the Court, making him RRRI
ineligible. . . .
The Sentencing Guidelines recommended a sentence of
48 to 66 months (+/- 12 months). The Commonwealth
recommended incarceration of 4 to 8 years incarceration,
plus ten (10) years of reporting probation, in addition to
other conditions. [Appellant’s] counsel suggested a
mitigated sentence of 3 to 6 years.
This Court imposed a sentence of 4 to 8 years
incarceration, plus 5 years probation on the aggravated
assault charge[,] to run consecutive to his federal prison
term. The sentence imposed is well below the maximum
sentence for a felony of the first degree of not more than
twenty (20) years confinement.
To further support the imposition of a consecutive
sentence, at his sentencing hearing, [Appellant] exercised
his right of allocution. At no point during this address to
the Court did he show any remorse, sorrow or any
semblance of humanity. There was no apology to the
victim, the mother of his children [or] members of his
family. Instead, [Appellant] deflected blame to the victim
and her family. He failed to accept any responsibility
whatsoever for any of his actions.
In fact, the Presentence Report notes “During the
interview, [Appellant] expressed anger and hatred towards
[Diana] in the current offense, which suggested that he
remains a threat to her safety.” This same attitude and
belief was compounded by [Appellant’s] own words in a
presentence letter to this Court. This Court clearly
considered the safety concerns of both Ms. Diana and her
children in considering both the term and nature of
[Appellant’s] sentence.
In imposing this sentence, this Court took into
consideration (1) the nature and circumstances of the
offense and the history and characteristics of [Appellant],
including the Pre-Sentence Report; (2) the opportunity of
the Court to observe [Appellant]; (3) the findings upon
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which this sentence was based; and (4) the appropriate
guidelines[.]
Trial Ct. Op. at 35-37.
Appellant’s claim that the trial court failed to consider his rehabilitative
needs and the protection of the public is belied by the above, lengthy
analysis. The court specifically considered his lack of “any remorse[ or]
sorrow” for the attack on Diana, “fail[ure] to accept any responsibility
whatsoever for any of his actions,” and his “deflect[ion] of blame to the
victim and her family.” See id. at 36. Accordingly, we find no abuse of
discretion in the court’s sentence. See Caldwell, 2015 WL 3444594 at *2.
Finding no merit to Appellant’s claims, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
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.·, .
. {···,··.·
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA _, · · JI
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTHOF PENNSYLVANIA CP-51-CR-0003766-2012
v. SUPERIOR COURT NO.:
WILLIAM HLUSHMANUK 2227 ED A 2014
OPINION OF THE TIUAL COURT
Defendant, William Hlushmanuk, appeals this Court's findings of guilt on the charges of
aggravated assault', simple assault', and recklessly endangering another person (REAP)3 at a
non-jury trial held on January 6, 2014.
The defendant was sentenced to 4 to 8 years incarceration, followed by 5 years probation
on the aggravated assault charge, along with other conditions" imposed by this Court, This
sentence was ordered to run consecutive to the defendant's federal conviction and incarceration
for crimes not related to or in any way factually similar to this incident'.
CP-5 l-CR.0003766-2012 Comm v. Hlus~manuk, lflrn!am
Op,n:on
1
18 Pa.C.S. §2702(a)(l).
I llllllll / 1/ I Ill
2
18 Pa.C.S. §2701(a)(l).
3
18 Pa.C.S. §2705. IIIII IIII7251082571
4
The defendant was also sentenced to participate in anger management counseling, drug/alcohol screening and
treatment programs, and undergo a mental health evaluation and receive treatment if necessary, plus court
costs.
5
For clarity, on May 2, 2014, the defendant was sentenced to 4-8 years on the aggravated assault charge, in
addition to 5 years reporting probation. He was also sentenced to an additional 2 years reporting probation to
run concurrent on the simple assault and REAP charges. On July 9, 2014, upon consideration of defendant's
Motion Pursuant to Rule 720, this Court, inter alia, modified its original sentence by determining that the
simple assault and REAP charges should merged with the aggravated assault charge for sentencing purposes
1
Circulated 07/31/2015 03:06 PM
The defendant filed a timely Notice of Appeal to the Superior Court on July 24, 2014. A
l925(b) Order was issued by this Court, to which the defendant timely filed his 1925(b)
Statement of Matters Complained of on Appeal on August 26, 2014.
On appeal, the defendant has raised the following four (4) issues:
"1. Whether there was insufficient evidence to support the verdict of guilty
on the charges of Aggravated Assault, Simple Assault, and Recklessly
Endangering Another Person when the eyewitnesses provided conflicting
accounts of the alleged assault, and the credibility of the complainant, and
her testimony do not support the convictions?
2. Whether the verdict was against the weight of the evidence because it
fails to establish that the appellant placed the complainant in danger of
serious bodily injury for purposes of Aggravated Assault and Recklessly
Endangering Another Person?
3. Whether the trial court violated appellant's constitutional rights by
granting the Motion of the Commonwealth to introduce prior bad act
evidence at the trial, which unfairly prejudiced appellant?
4. Whether the trial court abused its discretion in imposing the state
sentence in this matter to nm consecutively to a federal sentence where both
the complainant and appellant were federally indicted, and for which
appellant commenced serving his federal sentence just prior to the
imposition of the state sentence as he did not have the benefit of
rehabilitation?"
The weight and sufficiency of the evidence clearly shows the Commonwealth met its
burden by proving each element of the aforesaid charges beyond a reasonable doubt and this
Court's findings of guilt were appropriate based upon the totality of the evidence in weight,
sufficiency and credibility.
Further, for the reasons set forth herein, this Court properly admitted evidence of the
defendant's prior bad acts, as said acts were similar in nature to the crimes charged, involved the
same person and occurred during a nearly identical scenario, i.e., a domestic violence incident
and re-imposed the sentence set forth above to be served on the aggravated assault charge only. This Court's
modification of its sentence structure is not subject to this appeal, except for the consecutive running of this
sentence with his federal prison sentence.
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involving physical contact by the defendant upon the victim, his former spouse, Jacqueline
Diana.
Lastly, the defendant is currently serving a seven (7) year federal pnson term for
Medicare fraud. Since this other criminal activity and the instant matter are unrelated in any way,
this Court imposed its sentence in this matter to run consecutive to the defendant's federal term
of imprisonment. Such a sentence structure is well within the discretion of this Court and
warranted under the circumstances. This defendant clearly should not be given the benefit of
serving one prison term for committing two wholly separate and distinct crimes. This manner of
sentence is legal, within the powers of this Court and is neither an abuse of discretion nor an
enor of law.
For the reasons set forth herein, the defendant's claims of error are without merit or legal
basis and, therefore, it is requested that the findings of guilt on all charges, the evidentiary rnling
and the manner and structure of sentence imposed be affirmed on appeal.
In summary, on October 31, 2011, at approximately 9:45 p.m., the defendant violently
attacked the victim, his ex-wife, at a gas station located at Welsh Road and Roosevelt Boulevard,
Philadelphia, Pennsylvania. The attack was witnessed by three independent and unrelated
individuals: Philadelphia Police Lt. John Stanford", Rebecca McBride and Natasha Cintron. All
three witnesses, as well as the victim, Ms. Diana, testified at trial. The witness testimony was
consistent, in that the defendant physically attacked the victim and choked her to a point of
unconsciousness. He was then observed dragging her around her vehicle and attempting to put
her into a vehicle. All of this took place in front of his young daughter. The defendant was
arrested at the scene by Philadelphia police.
6
Lt. Stanford was promoted to his current rank in April, 2012. At the time of this incident, he held the rank of
Sergeant.
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The testimony presented at trial was consistent in regard to the defendant's criminal
conduct against the victim on the night in question and it was sufficient to support this Court's
findings of guilt. The witnesses' testimony was credible when taken both individually and was
also consistent with one another when taken as a whole. Cross-examination revealed no bias,
prejudice or mistake on the witnesses' part and inconsistencies, if any, were minor and without
negative effect upon the overall determinations made by this Court.
At the non-jury trial of January 6, 2014, the three independent eyewitnesses testified on
behalf of the Commonwealth. The first witness was Lt. John Stanford who testified as follows:
Page 22
[15] Q. Officer Stanford, how long have you been a
[ 16] Philadelphia police officer?
[17] A. 11 years.
[18] Q. When did you become a lieutenant?
[19] A. In April of 2012.
[20] Q. Okay. So what was your position, title, duty,
[21] assigned on October 31, 2011?
[22] A. On the date of this incident, I was a sergeant.
[23] Q. And around 10:00 p.m. that evening, could you please
[24] tell me what you were doing?
[25] A. It was approximately 9:45 p.m. on the 31st. I was
Page 23
[lJ driving southbound on the nine thousand block of Roosevelt
[2] Boulevard. It was just before Welsh and the Boulevard. I
[3] was in the -- just for clarity, there's lanes that run
[ 4] southbound. You have inner lanes and outer lanes. I was in
[5] the middle of the outer lane traveling southbound when I
[ 6] observed the defendant standing over a female choking her.
[7J This was on the sidewalk, which was at a Sunoco Gas Station
[8] at that location.
Page 24
[7] Q. If you could please continue. You said you saw him
[8] choking her and then what happened?
[9] A. So at that point in time I had to maneuver around a
4
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[ 1 OJ few cars to pull over. One of the things that moved me at
[ 11 J that particular time was -- she had to be at least five years
[12J of age -- a little girl standing there.
[13J THE COURT: Wait. Wait. Wait. The little
[ 14J girl five years of age was being choked?
[15J THE WITNESS: No. No. No. She was
[ 16J standing there observing -- standing there screaming and
[ l 7J yelling observing the defendant choking her mother.
Page 25
[ 1 J vehicles and made my way onto the Sunoco parking lot
[2J there. It was at that point in time as I began to exit
[3 J my -- I called 911 first. As Iwas beginning to exit my
[4J vehicle, a 7th District lieutenant arrived on location.
[SJ Iwas assisting her in getting the male off of the
[ 6J female and placing the male under arrest.
[13J A. When I first observed it, he was standing -- all of
[14J this was happening on the driver's side of the vehicle. The
[ 1 SJ vehicle was also parked on the Sunoco parking lot just right
[ 16J alongside of the pavement there. Just a few feet off of the
[ l 7J bus stop. The defendant was standing over the female on the
[ l 8J driver's side ground area, right on the driver's side of the
[ l 9J vehicle. The little girl was standing just closer towards
[20J the rear of the vehicle.
[21J I observed the defendant, what appeared to me,
[22J choking her on the ground. At that point he picked her up by
[23J her neck and began to drag her around the rear of that
[24 J vehicle into the passenger's side of that vehicle. At that
[25J particular time when I was able to finally exit my vehicle
Page 26
[lJ and approach the defendant, he was straddling the female.
[2] Her body was half way into the vehicle in the passenger's
(3 J side. He was straddling her and he was continuously choking
[4] her.
[5] Q. When you say "choking," do you me two hands around
[6] her throat or one? What do you mean?
[7] A. Two hands around her throat area.
[ 18] A. Her body appeared limp to me. At one particular
[19] time actually, it appeared she was unconscious.
[20] Q. Was that on the sidewalk or when she was on the
[2 I J passenger's side of the car?
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[22] A. It appeared as he was dragging her around to the
[23] rear of the vehicle, she was unconscious at that particular
[24] time. Once he actually set her up into the vehicle -- when I
[25] say "into the vehicle," she wasn't completely inside of the
Page 27
[lJ vehicle. She was unconscious or appeared to be unconscious
[2] at that point.
[ 11 J was going on. At first I thought they were like joking
[ 12] around. I'm looking. When I saw -- what drew my
[ 13] attention to it was the little girl screaming, 11Get off
[14] of my mommy."
[ 15] That's when I was like, This is serious
[ 16] and I maneuvered around the vehicle.
Page 28
[9] A. Well, after calling 9 I 1, as I stated, after I was
[ 1 OJ able to exit my vehicle and walk towards the defendant at his
[ 11] vehicle -- at the vehicle that they were at. It was a
[ 12] lieutenant from the 7th District that pulled up. She exited
[13] her vehicle and the two of us together apprehended the
[ 14 J defendant.
[15] Q. Okay. So to be clear, the both of you had to --
[ 16] when you say get him off of her, what do you mean?
[ 17] A. I physically had to pull him off of her and assisted
[ 18] the lieutenant in handcuffing him. She had handcuffs.
[ 19] Obviously I did not. I was off duty. I had to physically
[20] pull him off of her.
Page 29
[8] Q. Do you remember about how much time elapsed from the
[9] time that you first saw the defendant choking the complainant
[l OJ on the sidewalk until you were able to pull the defendant off
[1 I] of the female?
[ 12] A. I would say only a few minutes.
[ 13 J Q. And could you tell me did you have an opportunity to
[ 14] see the demeanor of the female once the defendant was pulled
[ 15] off of her?
[16] A. Well, at that point as I said she appeared to be
[ 17] unconscious. Some other folks came over to assist. At that
( 18] point I was just assisting the lieutenant in getting the
[ 19] defendant into a vehicle.
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[20] Q. Okay. Did you observe any injuries on the
[21] complainant?
[22] A. I didn't look for any.
N.T., 01-06-2014, Pgs. 22-29.
On cross-examination by defense counsel, Lt. Stanford's testimony remained consistent
throughout and failed to reveal any bias, prejudice or inconsistencies which would serve to
discredit the weight, sufficiency or credibility of his testimony. In fact, on cross-examination, Lt.
Stanford's testimony solidified the Commonwealth's evidence in regard to the charges of
aggravated assault and REAP, as follows:
Page 40
[1] A. No, sir. What I'm saying to you is once I pulled
[2] up, I observed the defendant standing over the female who was
[3] laying on the ground on the driver's side of the vehicle. He
[4] was choking her. There was a little girl standing at the
[5] rear of that vehicle screaming and yelling and crying.
[ 6] As I continued to maneuver my vehicle, I could still
[7] see the defendant choking her and dragging her. At that
[8] point he began to drag her towards the back of the vehicle.
[9] As I maneuvered into the Sunoco's parking lot, I kept keeping
[ 1 OJ my eyes on him. As a police officer, I'm trained a little
[11] bit more than the average citizen. My concern was whether or
[12] not he had a weapon of some sort. So I continued to -
Page 42
[19] Q. He was handcuffed. After he was handcuffed, where
[20] was the complaining witness?
[21 J A. Still laying -- or at that point falling onto the
[22] ground on the passenger's side of the vehicle.
[23] Q. Was she conscious or unconscious?
[24] A. Initially, she appeared to be unconscious.
N. T., 01-06-2014, Pgs. 40 - 42.
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Redirect examination by the Commonwealth, further clarified the physical condition of
the victim upon the arrest of the defendant.
Page 45
[3] Q. And you said that she appeared to be unconscious.
[4] Can you describe for me what about her, other than being
[5] limp, which you've already testified to, made you believe
[6] that she was unconscious for most of this incident that you
[7] described?
[8] A. Because her eyes were closed and she didn't have any
[9] movement.
N. T., 01-06-2014, Pg. 45.
Lt. Stanford's testimony was deemed both credible and reliable by this Court,
The Commonwealth next called Rebecca McBride to testify as to her observations and
actions on the night of October 31, 2011. Ms. McBride testified that she:
Page 46
[ 16] A. ... was just getting out of school.
[17] Q. What were you in school for at that time?
[18] A. EMT.
[21] A. At that time I was getting out, it was right at
[22] Welsh and the Boulevard. I was pretty much walking through
[23] the Boulevard so I could cross it to catch the bus home.
[24] While I was on the opposite side of the Boulevard, that's
[25] when you could hear somebody screaming. You could see a car.
Page 47
[I J I think it was an SUV parked on the opposite side of the
[2] comer.
[3] Q. Okay. When you heard that screaming, what did you
[4] do?
[5] A. Well, I was getting across the street as quick as
[6] possible.
[7] Q. To get to the screaming?
[8] A. Yes.
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Page 48
[4] Q. So you were trying to get over to where this
[5] screaming is at the SUV. Did you see anything at that point?
[6] A. At that point parked on the curb was the car. You
[7] could see people standing back behind the car -- outside the
[8] car. And that's where you heard the commotion and that's
[9] what I saw.
[ l OJ Q. Okay. So what did you see exactly?
[ 11] A. From that point as I got half way to the Boulevard,
[ 12] that's when you could see people. I did see two figures like
[ 13] standing out there screaming. By the time I got to the
[14] corner where it was happening, they had disappeared and they
[ 15] had gone to the passenger's side.
[16] Q. Okay. At some point did you have a view of the
[ 17] passenger's side?
[18] A. Yes. Once I got to that corner, this car was maybe
[ 19] ten feet away from me.
[20] Q. Okay. And so what did you see?
[21] A. Well, you saw the car door open. The passenger's
[22] side door was open. You saw the figure standing actually --
[23] he was standing in, like right at the car door.
Page 49
[l] Q. So what did you see that person doing?
[2] A. At that point you saw him holding down somebody.
[3] Q. Okay. And was that a man or a female?
[4] A. A female.
[5] Q. When you say holding her down, exactly what do you
[6] mean?
[7] A. He had her pinned down. She was sitting in the
[8] passenger's seat. You saw him with his arm up holding her
[9] mouth and --
[ 10] THE COURT: Ma'am, you keep saying, "You saw."
[1 I] We're interested in what you saw.
[12] THE WITNESS: Yeah. From what I saw, he had
[ 13] his arm up and the hand blocking her mouth. His other
(14] hand was by her neck, like it was on the seat.
[l 5J MR. MOZENTER: On the seat?
(16] THE WITNESS: Yes. Yeah. It was by her neck.
[ 17] You could see -- at that point I wasn't right up to the
[ l 8] car. I was still like I said 10 feet away. You saw a
[19] arm up, because you could see that through the glass,
[20] and then the other hand was, from what I saw, kind of
[21] looked like it was on the back of the seat.
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Page 50
[ 4] A. It was just nothing but screams. "Help me. Help
[5] me. Help me. He's choking me. Help me."
[6] Q. At that point what happened?
[7] A. I proceeded to walk towards the car.
[8] Q. Then what happened when you started walking?
[9] A. When I walked towards it, by the time I was a couple
[ l O] feet away, by that time I did see the lady go limp. You
[ 11] could see her eyes roll back. She was flailing and then she
[ 12] stopped flailing. By the time I got two feet towards the
[ 13] car, the police lady was right there right behind me. I saw
[ 14] her and I stepped out of the way and let her do what she had
[ 15] to do and then I went to check the lady, because like I said,
[ 16] I went to school -- I was in the process of becoming an EMT
[ 17] so I'm trained, like medically to check her breathing, check
[ 18] her blood pressure. I had all my stuff on me.
[22] Q. And did you notice any injuries on her when you were
[23] treating her?
[24] A. You could tell her neck was red. She had a scratch
[25] on her neck. She was hyperventilating. She was trying to,
Page 51
[l] you know, breathe.
[2] Q. Okay. Let's go back to when you said when she went
[3] limp and her eyes rolled back in her head and that she was
[ 4] flailing and then it stopped. At that point, did the
[5] screaming and any kind of speech stop as well?
[6] A. Pretty much.
[17] Q. Could you tell me exactly what the defendant did
[ 18] directly after the time that you noticed her go limp?
( 19] A. By that time, like I said, the cop was like right
[20] behind me and she had pulled him off. And when she had
[21] pulled him off, that's when I, you know, stepped back over to
[22] her. That's when she started becoming, you know, conscious
[23] again. You could tell she -- her eyes started blinking. She
(24] was coming to.
Page 52
[9] Q. Did the defendant say or do anything after that
[ 10) female officer pulled him off the female?
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[ 11] A. Once the female officer had pulled him off, he was
[12] freaking out. He was freaking out about his phone. He lost
[13] his phone somewhere. He was in the cop's car banging on the
[14] windows saying he wanted to see his wife. He wanted to see
[15] his wife. At that point I was kind of not worried about him
[ 16] anymore. I was worried about her.
N.T., 01-06-2014, Pgs, 46 -52.
Cross-examination of Ms. McBride failed to show inconsistencies in her testimony nor
did it reveal any conflicts between her testimony and the testimony of Lt. Stanford which would
cause any doubt or concern with this Court.
Next, Natasha Cintron testified in the Commonwealth's case in chief. Ms. Cintron was
with Ms. McBride at the time and was her fellow classmate. They were walking together to the
bus stop at Welsh Road and Roosevelt Boulevard. N.T., 01-06-2014, Pg. 58, L. 1-9, 17-21.
As Ms. Cintron was walking toward the bus stop, she stated:
Page 58
[14] A. There was a truck there and we heard -- there was a
[ 15] whole bunch of people watching the truck. We were waiting
[16] for the bus.
Page 59
[7] A. They were behind the truck -- in the back of the
[8] truck outside. I heard screaming and then they ended up to
[9] the passenger's side of the truck and he was choking her.
Page 60
[3 J A. Like inside the car and he's in front of her. His
[4 J hand was around her neck. I could only see one hand.
[5] MR. MOZENTER: You what? I can't hear you.
[6] THE WITNESS: I could only see one hand. His
[7] hand was around her neck.
Page 61
[5] Q. Tell us again what you observed the defendant doing
11
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[6] just so we're clear?
[7] A. He was standing in front of her. I only saw one
[8] hand. He was choking her. I couldn't tell if he had a
[9] weapon on the other hand.
[10] Q. Why do you bring that up?
[11] A. Because since there was a whole bunch of us, we
[ 12] didn't know if we should jump in or not. I didn't want to
[ 13] get hurt. I can't fight.
[14] Q. Did you jump in at any point?
[ 15] A. When he let go of her. Somebody came and stopped.
[16] Then I helped the lady, the complainant.
[ 17] Q. Natasha, when you say that the defendant had one
[ 18] hand and was choking the lady, was he saying anything?
[ 19] A. I couldn't understand what he was saying.
Page 62
[3] THE WITNESS: I remember her arms. They were
[ 4] like, it looked like they were fighting, like flailing
[5] and then I remembered they just stopped. That was it.
[ 6] Not for long.
[7] BY MS. RHOADS:
[8] Q. Okay. Could you describe for me a little bit more
[9] about what the lady looked like when the defendant was pulled
[ l O] off of her?
[ 11] A. She looked like she was hyperventilating. She was
[12] scared. She was nervous. She didn't know what to do. She
[13] had a red neck.
[14] Q. Did you notice anything else about her physical
[ 15] appearance at that point?
[16] A. Not that I remember.
N.T., 01-06-2014, Pgs. 58 -62.
On cross-examination, Ms. Cintron did testify that she did not see the defendant dragging
the victim around the car, but thought she had walked around the vehicle.
Page 65
[5] Q. All right. And she walked behind the truck into the
[6J car; isn't that correct?
[7] A. To the passenger's side, yeah.
[8] Q. Nobody dragged her there; is that correct?
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[9] A. From what I remember.
[10) Q. Yeah. We don't want you to make up anything. What
[ 11] you remember seeing is that she physically on her own walked
[ 12] from the back of the vehicle to the passenger's side of the
[13) car?
[14] A. I think so, yes.
[15] Q. You didn't see anyone drag her there, did you?
[16] A. I don't think I did.
N.T., 01-06-2014, Pg. 65.
Despite this inconsistency with the testimony of the previous witnesses, this Court did not
deem it significant, as the charges stem from the choking of Ms. Diana, to which she did testify.
This 'after-the-fact' testimony failed to raise any doubt in this Court's decision to find the
defendant guilty for his other actions on the night in question.
There was also a stipulation between counsel that two (2) other witnesses, both police
officers, if called to the stand would have testified as follows:
Page 71
[15] MS. RHOADS: Yes. There's a stipulation by
[16] and between counsel that if Officer Black were to
[ 17] testify --
[ 18] THE COURT: B-L-A-C-K?
[19] MS. RHOADS: Yes. And he is present. If he
[20] were called to testify, he would testify that he
[21] responded to the location of nine thousand Roosevelt
[22] Boulevard on October 31, 2011 around 9:50 p.m. and that
[23] he observed complainant Jacqueline Diana, age 31, and
[24] she complained of pain to the neck. That there were
[25] visible injuries. The officer would testify that there
Page 72
[ 1] was redness around the neck area.
[3] There's also a stipulation that Detective Robert Schill
[ 4] would testify that he investigated this case and as part
[5] of this investigation, he took statements from Sergeant
[6] John Stanford, who testified here, Natasha Cintron, who
[7] just testified, Rebecca McBride, who also testified, and
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[8] from the complainant, who would testify.
N.T., 01-06-2014, Pgs. 71-72.
The Commonwealth's last witness, the defendant's ex-wife, Jacqueline Diana, testified
not only to the events which were witnessed by the above witnesses, but also the events
occurring earlier that day between her and the defendant, as well as an incident which had
occurred in a similar manner and situation that had occurred on December 20, 2010. This prior
incident is the subject of defendant's issue on appeal relative to his prior bad acts and is
discussed hereinafter.
In regard to the events of October 31, 2011, Ms. Diana testified as follows:
Page 86
[7] A. That day, I spoke to him that day and I even invited
[8] him to go out for Halloween with us. He said that he was
[9] business and, you know, he couldn't come. So then I decided
[l O] to take my oldest daughter to go trick or treating with her
[ 11] friends around Knights Road or somewhere. I wasn't familiar
[ 12] with the area. It was my first time there. He called. He
[13] was asking where we was. I picked up the phone. I wasn't
[ 14] being disrespectful. I told him where we are. I don't know.
[ 15] I tried to tell him the streets and then he showed up at the
[ 16] house where we were. I was already at the car.
[20] I was sitting in the car. Iwouldn't open the door
[21] for a little while because he's, you know, yelling or
[22] whatever, cursing. I don't exactly remember if I did open
[23] the door. I know he left. But as we're driving away, he
[24] comes back. He turns around. He comes back. Makes a U turn
[25] and tells me to pull over. He wanted to talk to me, but his
Page 87
[ 1 J demeanor says otherwise. So he's trying to run me off the
[2] road.
[1 I] A. lfI'm driving, he's try to lean me towards to go to
[I 2] the side of the road, like he's almost going to hit me, but
[ 13] he's not. So, you know, I decided to call the police.
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[ 17] A. I decided to call the police to tell them, you know,
[ 18] that he's being aggressive towards us and I feel like we're
[ 19] in danger. I pulled over to like Knights Road or something
[20] at a gas station. While we're there, I still wouldn't open
[21] the door. He's yelling at me. I don't even remember half of
[22] the things he's saying. Because we're fighting so much that
[23] my oldest daughter, M•, was so upset that she started
[24] crying. She opened the door and tried to run in the middle
[25] of the street. She said she couldn't take it anymore. She
Page 88
[ 1] just wants to kill herself because we continue to fight this
[2] way.
[3] So he runs after her in the middle of the street.
[4] While he's holding her, he's siting there saying, I'm going
[5] to F'ing kill you. So we get back in the car.
[6] Q. Who's "we" exactly?
[7] A. Me, M., and now Bill is in the car. But before he
[8] actually got into the car, he actually broke my car door
[9] because he was trying so hard to open the door. I wouldn't
[ 1 O] open the door until the police officers got there. So when
[ 11] the police officers got there, he makes up this lie to where
[ 12] he says I don't let him see the girls and this and that.
[ 13] When in truth, that's not the case. I've been trying.
[14] Q. I just want to be clear. This incident that you're
[15] still talking about with the door handle and the car, that's
[ 16] still at a location where you guys were trick or treating?
[ 17] A. Yeah. It's near there still.
[18] Q. So when the police come, do you speak with the
[ 19] officers?
[20] A. Yes. I explained to them, but basically since I
[21] didn't have a protective order, they couldn't do anything.
[22] They sent me my way and they sent him his way. We're just
[23] going home. Even on the drive home, he's still behind us.
[24] He's like, you know, on me, arguing with me.
Page 89
[1] A. Like, he's still behind me and following me. He's
[2] still urging me to pull over.
[3] Q. At any point, did he call you or is this all just
[4] via the cars?
[5] A. I think we were on the phone. I finally pulled
[6] over. I pulled over. This time it was Welsh and the
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[7J Boulevard or Grant and the Boulevard. It's a gas station. I
[8] pulled up right there. Now my daughter's window is cracked
[9] open maybe like this much. So that was his way of getting
[1 OJ into the car, because I didn't want to open the door again.
[11 J When he got into the car, he was holding her and he
[12] was hugging her, but then he grabbed the keys out of the
[13] ignition and said, "I'm never letting you go home. Do you
[ 14] hear me right now? You're not going home. 11
[15] So when he did that, I grabbed my cell phone and I
(16J tried to call the police again. I don't know which way he
[l 7J went. All I know is I dropped the phone. I'm trying to
[ 18J shuffle with it. He's behind me now in a choke hold. Now I
[l 9J can't breathe. I can't scream. I can't do nothing. I'm
[20] trying to get the people's attention at the bus stop, because
[21 J there's a bus stop right there, to help me.
[22J THE COURT: Are you out of the car at this
[23J point?
[24 J THE WITNESS: Yes. At that time I had an
[25J Escalade so it's a pretty long car. So from the
Page 90
[l J beginning of the car, all the way to the back, he's
[2J dragging me. He's not even dragging me anymore. I'm in
[3 J the air. I'm choking. I can't breathe. All I could
[ 4 J hear -- I just focused on M8's voice and she's
[SJ screaming for me. I don't even remember if he's saying
[6] anything to me. He just trying to make me, like stop
[7J jumping around and screaming. So finally I completely
[8] passed out. I don't remember anymore. I just saw
[9] black. That's it. Then I wake up and I'm on the ground
[ 1 OJ and he's rubbing my chest and he's rubbing my back. You
[11] know, of course my daughter is screaming her eyes out.
[12] And then after that, I see like everybody coming near
[13] us. So he tried to grab me, like he's kissing me to
[14] make it look like we're, you know --
[15] MR. MOZENTER: Objection to "make it look
[16] like."
[17] THE COURT: Sustained.
[19] Q. Let me ask you this: When you come to and he's
[20] rubbing your chest and back, where are you at this point?
[21 J A. I'm probably like a car away from my car, like all
[22] the way in the back.
[23] Q. Okay. So your near the rear of your car?
[24 J A. Yeah.
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[25] Q. On the ground or --
Page 91
[l] A. On the ground.
[2] Q. And at that point, you say he grabbed you how?
[3] A. He tried to pretend like he's kissing me.
[4] Q. Just tell me specifically what he did?
(5] A. He grabbed me by my head. He grabbed me by my face
[6] because now I got to. I'm screaming now. I'm like, "Help.
[7] Help. Help. Someone help me."
[8] And he dragged me back into the car. So now I'm
[9] sitting on the passenger's side like on the floor of my car.
[ 1 O] He's trying to calm me down because now he's panicking.
[ 11] Everybody is coming, you know, and then he's still like
[12] face-to-face to me like this trying to shut me up and that's
[13] when the cops came and put handcuffs on him.
[14] Q. How did you get from the rear of your vehicle to the
[ 15] passenger's side? He carried you?
[ 16] A. He didn't carry me. He just dragged me.
[22] Q. Exactly how did you get back to the passenger's
[23] side?
[24] A. He dragged me there.
[25] Q. And where were his hands or arms when he dragged
Page 92
[1] you?
[2] A. They were on my head, like they were on my face.
[3] He's pretending he's kissing me, but we're not.
[4] Q. When you're in the car, could you describe how you
[5] felt in the car physically?
[6] A. I don't really remember physically. All I know is
[7] that I was just knocked out. He really could have killed me.
[8] He meant to kill me.
[9] Q. Okay. And, Jacqueline, when you're in the car, you
[10] said that you blacked out. Were you unconscious when you're
[11] in the passenger's side as well?
[12] A. No.
[13] Q. Not that you remember?
[14] A. No. No.
[15] Q. Do you remember at any point if you were fighting
[ 16] the defendant? Like were you ever flailing your arms?
[ 17] A. I was. When he was trying to choked me, like when
[ 18] he had me from the back.
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Page 93
[5] Q. Okay. And, Jacqueline, did you have any injuries as
[ 6] a result of this?
[7] A. Just my neck was very swore. That's it. I didn't
[8] go to the hospital. I just wanted to get home.
[17] Q. Other than the soreness or redness on your neck, did
[ 18] you have any other problems after that incident physically?
[19] A. No. Well, just for a few days I was probably swore.
[20] I couldn't swallow. Other than that, I was fine.
[21] Q. When you say "swore," exactly where on your body
[22] were you swore?
[23] A. My throat.
[24] Q. Okay. Do you remember speaking with females at the
[25] actual sight of the gas station after this?
Page 94
[ 1] A. I spoke to -- they were actually students at the
[2] time that were EMTs. When they placed him in the police car,
[3] they were just checking to see if I was okay, like my neck,
[ 4] my heart rate and whatever.
N.T., 01-06-2014, Pgs. 86-94.
Cross-examination, although intensive and specific to the details on the night of this
assault, failed to elicit any exculpatory or justification testimony. Ms. Diana remained consistent
throughout, was deemed credible by this Court and her testimony further supported the findings
of guilt. On cross-examination, Ms. Diana stated:
Page 94
[ 16] A. Right now we're separated. We're not divorced.
[17] Q. Okay. And you were also partners with him in
[ 18} business; isn't that correct?
[19] A. Not really.
[20] Q. Well, you worked for him, right?
[21] A. Yes.
[22] Q. And you're under indictment, aren't you?
[23] A. Yes.
(24 J Q. For stealing a couple of million dollars from the
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[25] federal government as a result of this ambulance business
Page 95
[l] that you and your husband were in, right?
[2] A Right.
[3] Q. And your husband is serving 8 years in a
[ 4] penitentiary as a result of that; is that correct?
[5] A I'm actually on home arrest right now for that as
[6] well.
[7] Q. That's because you cooperated with the federal
[8] government?
[9] A Absolutely. I wasn't going to lie.
[10] Q. Okay. So you cooperated with the government because
[11] you didn't want to go to jail?
[12] A Absolutely. I have two children to take care of.
Page 105
[19] Q. Why did you pull into the Sunoco Station?
[20] A. Yes. He told me he's calm now. He said he was
[21] going to be nice. He just wants to talk. I said fine, you
[22] know. I pulled over to Welsh and the Boulevard to try to
[23] speak to him. But at the time, I didn't want to open the
[24] door yet until I knew that his demeanor was okay. So inside
[25] of that, he slid the window open and he just reached in and
Page 106
[ l] opened the door.
Page 107
[18] Q. Now, you got to -- and at that time, did you call --
[19] when he was following you, did you call 911?
[20] A. No, not yet because he was promising me that he was
[21] going to be nice. He was going to calm down. He just wanted
[22] to talk to me and M• and that's it.
[23] Q. Okay.
[24] A And he was just going to let me go home.
[25] Q. And then you pulled over to the Sunoco Station?
Page 108
[ 1 J A Right.
[2] Q, He got out of his car and you let him in your car?
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(3] A. No. I didn't let him in my car. I wouldn't let him
(4] in at first because I wanted to make sure that his demeanor
(5] was normal. Since I would'nt open the car, he just reached
[6] in through the cracked window from the passenger's side and
(7] opened the car door.
(11] Q. I see. All right. Does he get in the car now?
(12] A. Yes. He gets in the car.
(13] Q. In the passenger's side?
(14] A. On the passenger's side with my daughter.
(15] Q. The daughter was on the passenger's side?
(16] A. Yes.
(17] Q. Okay. So, was the daughter in the front of the
(18] car?
(19] A. Yes.
(20] Q. What happened to the daughter? Did she get out of
(21] the car? Did he remove her from the front seat?
(22] A. No. No. She was really upset, distraught.
(23] Q. Physically, where was your daughter when he got in
(24] the car?
(25] A. Physically, she was sitting on the passenger's [seat].
Page 109
(9] Q. As a matter of fact, he never hit you with his fist
( l O] at any time, did he?
(11] A. No.
(12] Q. Did the argument continue when he got into the car
(13] at the Sunoco Station?
[14] A. At first it wasn't. He was just talking to my
(15] daughter and then he saw the car -- the car keys were still
( 16] in the ignition. He pulled it out and said, "You're not
( 17] going home. I'm not letting you go home this time."
Page 110
(13] Q. Okay. Now, while he's in the front seat with his
[14] child, did you leave the car? Did you get out of the car?
[15] A. I was just sitting there. I'm still frightened.
[ 16] Because our conversations go like this, if I don't pick up
[ 17] the phone, or if I don't answer his calls, he would threaten
[18] me or if he sees me, he would try to choke me. He never hits
( 19] me. His main thing to hurt me is by choking me.
[20] Q. When he got into the car with your child, did he
[21 J choke you at that time?
[22) A. No. He just grabbed the key and he --
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[23] Q. Did he strike you at that time?
[24] A. No.
Page 111
[1] A. And threatened that he was not going to let me go
[2] home. He always threatens me that he's going to hurt me.
[3] That's why I freaked out. I jumped out of the car and I
[ 4] tried to call the police.
[5] Q. When you jumped out of the car, did you nm?
[6] A. No. I was just trying to call.
[7] Q. And did you call when you jumped out of the car?
[8] A. No, because he got behind me already or whatever.
[9] The phone flew off and he was already choking me from
[ 1 O] behind.
[11] Q. With what hand did he choke you?
[ 12J A. It was a choke hold.
[13J Q. Show us.
[ 14] A. I don't exactly remember. I know a choke hold is
[ 15] like this. So he has me like this.
[16] MS. RHOADS: For the record, the complaining
[ 17] witness is lifting both arms up and wrapping one mm in
[ 18] front of the other one and pulling.
[20] Q. Show us again where his position was?
[21] A. It's a choke hold. I had my neck right here. I
[22] can't breathe.
[23] Q. But he didn't put two hands around your neck and
[24J squeeze you?
[25] A. No.
Page 112
[8] Q. He never wrapped his hands around your neck and
[9] choked you?
[10] A. No.
[ 11] Q. Did you break away from him at any point?
[ 12] A. No, I couldn't.
[13] Q. Did you fight back?
[14] A. I couldn't fight back. I'm up in the air.
[15] Q. And then what happened?
[ 16] A. Nothing. All I could do is try to scream. I was
[ 17] trying to scream for help from the people at the bus stop.
[18] Q. And there were a lot of people at the bus stop?
[ I 9] A. There were a lot of people.
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[20] Q. Did you get back into the vehicle?
[21] A. No, not yet.
[22] Q. How did you get back into the vehicle?
[23] A. When I woke up from blacking out, I was on the
[24] ground. He had me sitting up and he was rubbing my back and
[25] my chest.
Page 113
[l] Q. And you said it looked like he was trying to kiss
[2] you; is that right?
[3] A. When I started to freak out and realize, like, Oh,
[ 4] my God. I actually blacked out. That's when I started
[5] screaming at the top of my lungs for help.
[6] Q. Do you have any physical condition that would cause
[7] you to hyperventilate at times? Strike that. Did you ever
[8] hyperventilate prior to this accident?
[9] A. Not exactly.
[10] Q. What do you mean by, "not exactly?"
[ 11] A. I mean, I only do that when I'm in complete
[ 12] anxiety.
[ 13] Q. And were you in complete anxiety?
[ 14] A. Absolutely. I'm in terror.
N.T., 01-06-2014, Pgs. 94-113.
In order to fully clarity the record and this Court's understanding of the facts, given the
extensive nature of Ms. Diana's testimony, the chaos of that night in question and the manner in
which the testimony was presented, it was necessary for this Court to briefly question this
witness as follows:
Page 120
[2] THE COURT: All right. When you got out of
[3] the car to make a phone call, that's when you indicated
[ 4] that the defendant came up from behind you and did what
[5] you called a choker hold on you?
[6] THE WITNESS: Yes.
[7] THE COURT: Is that when you passed out?
[8] THE WITNESS: I didn't pass out for a little
[9] bit. I tried to hold on to try to scream for help. I
[ I 0] don't remember exactly when I passed out.
[11] THE COURT: Do you know how you got to the
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( 12] ground?
(13] THE WITNESS: No.
(14] THE COURT: And do you know what happened to
(15] you while you were on the ground?
(16] THE WITNESS: No. Just when I woke up, I was
(17] sitting up.
N.T., 01-06-2014, Pgs.120.
Despite the overwhelming testimony as to the violent nature of the acts committed upon
the victim by the defendant, the defense focused upon the Commonwealth's alleged failure to
prove that the defendant's estranged wife was in danger of death or serious bodily injury, and,
therefore, the defendant could not have been convicted of either aggravated assault or REAP.
The defendant's argument fails on both counts, as the testimony of the victim and the
several eyewitnesses' testimony had satisfactorily proven that the defendant perpetrated the
violent act of choking the victim to a point of unconsciousness and which could have resulted in
serious injury to her. Neither REAP nor aggravated assault require that the victim actually suffer
a serious injury, but only be faced with the risk of such as a result of the defendant's criminal
conduct.
A person is guilty of simple assault if he attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another. 18 Pa.C.S. §270l(a)(l). A person is guilty of
aggravated assault 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 hurnan life. 18 Pa.C.S. §2702(a)(l).
Reckless endangerment is defined as "recklessly engag[ing] in conduct which places or
may place another person in danger of death or serious bodily injury." 18 Pa. C.S. § 2705.
Serious bodily injury 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
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of any bodily member or organ" and the term "bodily injury" relates to an "impairment of
physical condition or substantial pain." 18 Pa.C.S. § 2301.
The victim clearly sustained bodily injury and an impairment of a physical condition, i.e.,
loss of consciousness, when she was choked by the defendant's intentional and reckless acts.
Based upon the evidence adduced at trial, this Court determined that the Commonwealth had met
its burden of proving each of the elements of these crimes sufficiently in order to support the
findings of guilt on all charges.
In order to "sustain a conviction under Section 2705, the Commonwealth must prove that
the defendant had an actual present ability to inflict harm and not merely the apparent ability to
do so. Danger, not merely the apprehension of danger, must be created." Commonwealth v.
Cordoba, 902 A.2d 1280, 1288 (Pa. Super. 2006) (citing Commonwealth v. Hopkins, 747 A.2d
910, 915-16 (Pa. Super.2000)). "[T]he mere fact that the victim only sustained minor injuries and
did not sustain 'serious bodily injury' does not[,] ipso facto[,] establish that appellant's actions
did not place others in danger of such injury [pursuant to a REAP charge]." Commonwealth v.
Lawton, 414 A.2d 658, 663 (Pa.Super. 1979).
In the present case, defendant claimed that because the victim did not receive medical
care as a result of his violent acts, he could not be convicted of either REAP or aggravated
assault since she did not sustain what would be considered a serious injury. In reaching this
conclusion, the defendant would have this Court totally dismiss the testimony of the victim and
three (3) eyewitnesses who all testified that the victim was choked by the defendant, had lost
consciousness and caused her body to go limp. The need for medical attention is not an element
of the crime required for conviction.
This Court acknowledges that the injuries ultimately sustained by the victim were
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apparently minor, but this does not negate the fact that the defendant's violent actions upon the
victim at the time of the assault placed her in danger of serious bodily injury, inasmuch as the
outcome could have been devastating. Choking a person into unconsciousness places one in
danger of serious injury. The defendant's acts gave rise to the potential to have caused serious
injuries, but for the intervention of the police and witnesses.
The quality of injury actually sustained by a victim is not determinative in this context.
See Lawton, supra. Rather, it is the assailant's potential, or "actual present ability," to inflict
serious bodily injury, that controls the situation. See Cordoba, supra. The fact that the victim did
not ultimately "suffer serious bodily injury" does not negate a finding of guilt on REAP or
aggravated assault charges.
In Lawton, the Superior Court determined that an unarmed man committed REAP when
he threatened several people in a crowded Philadelphia subway station, and then "started
swinging [punches] indiscriminately into a crowd of students." Lawton, 414 A.2d at 662. The
panel in Lawton discussed Section 2705 and sufficiency of the evidence, as follows:
Reckless endangerment is defined in 18 Pa.C.S. § 2705 as "conduct which places
or may place another person in danger of death or serious bodily injury." Section
2705 is derived from section 211.2 of the Model Penal Code. The commentary to
the Model Penal Code provides that section establishes a general prohibition of
recklessly engaging in conduct which places or may place another person in
danger of death or serious bodily injury. It does not require any particular person
to be actually placed in danger, but deals with potential risks, as well as cases
where a specific person actually is within the zone of danger.
Relying upon this standard, we concluded that "while appellant may have only
strnck the victim and another unidentified individual, his action of swinging
indiscriminately into a crowd of students was sufficient to establish beyond a
reasonable doubt that he may have placed other persons in danger of serious
bodily injury." [Internal citations omitted.]
While there is no allegation in the instant case that the defendant's acts placed anyone but
the victim herself in immediate danger, Lawton stands for the general proposition that a victim
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of REAP, who is also an assault victim, need not actually sustain "serious bodily injury" in order
for a defendant's underlying conviction to be upheld. Moreover, the assailant in Lawton was
found to have committed REAP on the basis of nothing more than swinging his fists, with no
apparent target selected in advance. Here, by contrast, the trial evidence showed that the
defendant specifically and successfully targeted Ms. Diana with his violent actions.
With respect to the merits of defendant's challenge to the sufficiency evidence, it should
be noted that the evidence presented by the Commonwealth suggested that the defendant did not
merely attack the victim, but choked her until she lost consciousness. This testimony was also
sufficient for this Court to conclude that defendant committed an aggravated assault upon Ms.
Diana. With that, the defendant also committed a simple assault as well.
Additionally, the loss consciousness at the defendant's hands and sustained directly from
the defendant's assault clearly demonstrates that the defendant possessed an actual ability to
inflict physical harm upon her, and not merely a theoretical ability to do so. Taking into account
testimony that the defendant is trained in karate and holds a black belt, further compounded his
ability to inflict harm when such training is employed in criminal activity. N. T., 01-06-2014,
Pgs. 112, L. 2-7.
Moreover, defendant's assault upon Ms. Diana was directed at her head and neck region
and caused the victim to lose consciousness. See Commonwealth v. Alexander, 383 A2d 887,
889 (Pa. 1978) ("[T]here can be no dispute about the physiological significance of the head.").
An attack upon the head area cannot be assumed to carry only a de minim is risk of serious bodily
injury. See Commonwealth v. Burton, 2 A.3d 598, 605 (Pa. Super. 2010) (en bane) (upholding
assailant's conviction for aggravated assault upon basis of a single punch, that placed "victim ...
in real danger of dying").
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Therefore, based upon the foregoing discussion, this Court concluded that there was
sufficient evidence to determine that defendant had committed REAP, aggravated and simple
assault upon the victim in this case and the convictions were properly supported by the evidence,
as the Commonwealth proved each element of the respective crimes beyond a reasonable doubt.
Defendant's next issue challenges this Court's decision to permit the Commonwealth to
introduce in its case-in-chief testimony from the victim of an earlier physical assault by the
defendant upon her on December 20, 2010. This episode involved a nearly identical situation
where the defendant allegedly choked the victim and slammed her to the ground during a
domestic dispute thereby, qualifying as a "prior bad act" under Pa.R.E. 404(b).
The appellate standard of review applicable to an issue contesting the admissibility of
evidence is abuse of discretion. Commonwealth v. Rosen, 2012 \VL 1415771 (Pa. 2012). An
abuse of discretion is not merely an error in judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.
Co111111011weafth v. Harris, 884 A.2d 920 (Pa. Super. 2005), appeal denied, 928 A.2d I 289 (Pa.
2007). A discretionary ruling cannot be overturned simply because a reviewing court disagrees
with the trial court's conclusion. Commonwealth v. Lomax, 8 A.3d 1264 (Pa. Super. 2010).
This discretionary ruling on the admissibility of the defendant's prior bad act falls
directly within the requirements for admissibility as set forth in Pa.R.E. 404(b ), which states:
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident.
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(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2)
of this rule may be admitted in a criminal case only upon a showing that
the probative value of the evidence outweighs its potential for prejudice.
(4) In criminal cases, the prosecution shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such evidence it intends to
introduce at trial. Pa. R.E. 404(b).
As the Rule indicates, generally "[ e Jvidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith."
Pa. R.E. 404(b)(l). However, there are many exceptions to this Rule.
Generally, evidence of other crimes is independently admissible in a trial for a distinct
crime to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme,
plan or design embracing commission of two or more crimes so related to each other that proof
of one tends to prove the others; or (5) identity, where there is such a logical connection between
the crimes that proof of the extraneous crime naturally tends to show that the accused committed
the crime with which he is charged Commonwealth v. Nalravandian, 849 A.2d 1221 (Pa. Super.
2004), re-argument denied, appeal granted, vacated on other grounds, 888 A.2d 815 (Pa. 2006).
This Court determined that the "prior bad acts" evidence that the Commonwealth wished
to introduce in its case-in-chief, that is the defendant's previous assault upon his ex-wife, was
relevant and admissible under Pa. R.E. 404(b) to show Defendant's motive, malice and intent.
Commonwealth v. Nahavandiau, supra.
In this regard, Ms. Diana testified:
Page 74
(5] Q. Okay. At what point did this relationship end?
[6] A. In 2010, we had a really big fight and that's when I
[7J decided to leave.
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[22]Q. Jacqueline, are you talking about December 20, 201 O?
[23] A. Yes.
[24] Q. So could you tell me about what happened on that
[25] date?
Page 75
[1] A. Okay. He hadn't been home for the whole weekend,
[2] which was about three days. I couldn't get in contact with
[3] him. He wouldn't call me back. I left him a message. I
[ 4] went back to Northeast Philadelphia to stay with my parents.
[5] I left him a message. I said we're going to go Christmas
[ 6] shopping with the girls and I'll just come home when I take
[7] Ml to school in the morning, which is going to be a Monday.
[8] I didn't hear from him until like after midnight,
[9] which was around 1 o'clock in the morning. He called and
[ l O] he's like, "No, you're coming home." He starts cursing me
[l 1] out.
[ 12] He said, "Even if I have to come in there and drag
[13] you out."
[22] Q. You could continue with what you were saying.
[23] A. He said he was going to drag me out of the house and
[24] he's going to come pick us up. I said don't do that because
[25] my parents don't want you here anymore because every time you
Page 76
[ 1] would come, we could fight. So, a few minutes later, he's at
[2] the door. I'm still on the phone with him. He said he was
[3] knocking on the door, but it sounded like he was kicking the
[4J door in.
Page 78
[19] Q. Did you hear the defendant say anything in English
[20] to his father?
[21 J A. He did. He told him to go home and let him handle
[22] his family business. That's what he said.
[23] Q. What's the next thing that happened after you heard
[24] that?
[25] A. When I heard him say that, I ran outside. My
Page 79
[ 1] parents tried to stop me because the cops weren't there yet.
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(2] So while I was running, in midair -- I'm trying to scream for
(3] him. I'm jumping up and down, he grabs me --
[ 4] Q. Who were you trying to scream for?
[5] A. For his dad.
[6] Q. Okay. So his dad had actually come to the
[7] location?
[8] A. Yes.
(9] Q. So you saw his dad at your parent's house and you
[ 1 O] were screaming for him to stop?
(11] A. Yes, because he was driving away.
(12] Q. Okay.
[ 13] A. So I said, "Dad, please stop. Come back." And
(14] while I was doing that, he grabbed my neck in midair and body
(15] slanuned me on the ground.
Page 80
[6] Q. What part of your body did he grab?
(7] A. My neck.
[8] Q. Did he grab you with one hand or two hands?
(9] A. I don't remember.
(10] Q. You said he body slammed you?
(11] A. Yes.
(12] Q. Did your body make contact with the ground?
(13] A. Absolutely.
(14] Q. What happened after your body made contact with the
(15] the ground?
(16] A. I couldn't breathe. My chest really hurt. I
[ 17] thought I probably broke a rib or something. Then my dad
[ 18] came outside
Page 81
[l] When you were on the ground, did the defendant do anything to
[2] you?
[3] A. Yes. He was on top of me. I don't remember exactly
[4] what he was saying. I know that it was something like
[5] whether I like to or not, that I was coming back home with
[ 6] him and with the kids.
[7J Q. Where were his hands?
[8] A. I don't even remember. I don't remember. All I
[9] know is that I'm on the ground and I can't breathe.
[10] Q. How did that come to an end where he had you on the
[ I 1] ground?
[12] A. My dad pushed him off of me and then I saw his dad
[ 13] try to help out as well. ...
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[22] Q. Okay. So how did eventually that stop?
[23] A. Me and my dad went ahead inside while his dad was
[24] trying to stop him and calm him down.
[25] Q. Jacqueline, I want to go back. You're on the ground
Page 82
[1] and you said that you couldn't breathe. You said that you
[2] were dazed and you couldn't really see. Can you tell me if
[3] something happened to your vision while you were on the
[4] ground or do you remember anything specifically like that?
[SJ A. I don't think so. It was probably because I was in
[6] shock and with just being slammed on the ground.
[7] Q. Did your head hit the ground?
[8] A. Yes.
[9] Q. Did you receive any medical treatment?
[10] A. I didn't go to the hospital right away. My first
[ 11] instinct was to just get away as fast as I can because he
[12] would not leave. Like the police finally came. They told
[ 13] him he has to leave, but he wouldn't leave. He kept coming
[ 14] back. I just grabbed the children just for our safety and
[ 15] just got out of there.
Page 85
[4] Q. Ms. Diana, would it be fair to say that you never
[5] went to court against Mr. Hlhusmanuk or against Bill?
[6] A. To be honest, I didn't want to press charges on him.
[7] I just wanted him to stop and leave me alone and we'll go
[8] through a divorce and do all of that the correct way. He
[9] didn't want to do that. He would keep, you know, trying to
[ 1 OJ hurt me or whatever the case may be. I just wanted to be
[ 11] left alone.
[12] Q. What was the state of your relationship up until
[13] October 31, 201 I after this incident that we just discussed
[14] in December?
[ I 5] A. I did place -- what you call that --
[ 16] Q. Just don't tell me details. Just the nature of it.
[ 17] Can you just describe it?
[ 18] A. It wasn't very good. I tried very hard to be as
[ 19] understanding or nice or I would even still take his phone
[20] calls and talk to him or even agree to see him with the girls
(21 J even though I knew that, you know, I'm in risk of having him,
[22] you know, hurt me. Since he refuses to try to want to see
[23] the girls or have a schedule or something. He doesn't want
[24] to go to the police district and met up with me. He would
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[25] just show up in school. If he sees me down the road, he
Page 86
[ l] would drive me off the road and try to speak to me.
N. T., 01-06-2014, Pgs. 74 -86.
Cross-examination on this prior incident confirmed its violent nature and extent of abuse.
Ms. Diana sought medical treatment for injuries to her ribs as a result of her being slammed to
the ground. Clearly, this evidence shows the violent propensity of the defendant towards Ms.
Diana, the acting out on those propensities and her sustaining injury.
Page 97
[12] Q. I'm asking whether or not you personally went to the
[ 13] hospital for any physical injuries that allegedly occurred on
[ 14] this incident back in 2010?
[15] A. I did.
( 16] Q. Yet, the police said to you that they couldn't
( 17] arrest --
[18] A. What happened was, the first time they told me that
( 19] they couldn't arrest him, that's fine and --
[20] THE COURT: \Vhen you say "the first time," you
[21 J mean after the 20 l O incident?
[22] THE WITNESS: Yes. So at that time they told
[23] me that they couldn't arrest him even though he did all
(24] those things. They weren't there. They didn't see what
[25] happened. The next day I really thought that I broke a
Page 98
[l] rib so that's when I went that morning. It was at 2
[2] o'clock in the morning. I went to Jefferson to check
[3 J myself in to just check to see if I'm okay. I was just
[4] bruised. I didn't break any ribs or anything.
[5] So they took another police report and I told
[6J them exactly what happened because that police report
[7] from my house and the police report I gave at the
[8] hospital, were two different reports.
[9] THE COURT: Okay.
[10] BY MR. MOZENTER:
[11] Q. Well, where is that report?
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[12] THE COURT: Which report?
[13] MR. MOZENTER: I don't know. The second
[14] report, I only have one.
[ 15] BY MR. MOZENTER:
[ 16] Q. Regardless, between 2010 and 2011, you were not
[ 17] living with the defendant?
[18] A. No.
[19] Q. But you were still working at that business that you
[20] two had?
[21] A. No.
[22] Q. That was over?
[23] A. That was over.
N.T., 01-06-2014, Pgs. 97-98.
This Court concluded that the above testimony was sufficient evidence to demonstrate
long standing physical and mental abuse and malice towards Ms. Diana. See Commonwealth v.
Liliock, 740 A.2d 237, 244 (Pa. Super. 1999), appeal denied, 795 A.2d 972 (Pa. 2000), post-
conviction relief denied, 2002 WL 34400883 (West. 2002), ajfd, 833 A.2d 1147 (Pa. 2003),
appeal denied, 847 A.2d 1281 (Pa. 2004) (prior relations between the defendant and a victim
may be relevant to show intent or malice).
It also showed the defendant's repeated and continued efforts to threaten, intimidate and
physically harm the victim. See Commonwealth v. Claypool, 495 A.2d 176 (Pa. 1985) (evidence
of defendant's statement regarding his prior criminal activity, which he made to threaten and
intimidate the victim, was admissible when force or threat of harm is an element of the crime for
which he is standing trial); and as a part of the res gestae.
The introduction at trial in the Commonwealth's case-in-chief evidence of prior charged
or uncharged physical abuse perpetrated by an accused upon the complainant to prove one of the
lawful purposes for which such evidence is authorized under Pa.RE. 404(b )(2) was also proper.
See Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), cert, denied, Sherwood v.
Pennsylvania, 130 S.Ct. 2415 (U.S. Pa. 2010), habeas corpus dismissed. Sherwood v. Beard,
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2011 \VL 6888653 (M.D. Pa. 2011) (evidence of defendant's prior physical assaults upon four
year-old victim was admissible to show intent, lack of mistake, ill-will, and malice, in
prosecution for first degree murder.); Commonwealth v. Drumheller, 808 A.2d 893 (Pa. 2002),
reargument denied, cert. denied, Drumheller v. Pennsylvania, 123 S.Ct. 2284 (U.S. Pa. 2003)
(evidence of prior acts of abuse admissible to show the sequence of events that formed the case
and demonstrates defendant's motive, malice, intent and ill-will toward the victim);
Commonwealth v. Chandler, 721 A.2d 1040 (Pa. 1998) (abusive domestic relations between
defendant and homicide victim admissible to show malice); Commonwealth v. Lilliock, 740
A.2d 237 (Pa. Super. 1999), appeal' denied, 795 A.2d 972 (Pa. 2000), post-conviction relief
denied, 2002 WL 34400883 (West. 2002), aff'd, 833 A.2d 1147 (Pa. Super. 2003), appeal
denied, 847 A.2d 1281 (Pa. 2004) (prior protective orders between victim and defendant
admissible to show intent or malice); Commonwealth v. Odum, 584 A.2d 953 (Pa. Super. 1990)
( defendant's abusive relationship with the deceased, an elderly aunt, over a ten-year period was
admissible during his trial for her murder).
Thus, evidence that the defendant had previously assaulted and committed physical
violence upon his estranged wife by choking her previously to the night in question was relevant
and probative of defendant's motive and intent for committing the assaults upon his ex-wife.
The factual basis of the present charges against this defendant indicated that he became
violently aggressive towards her, choking until the point of lost consciousness. Evidence that the
defendant had previously engaged in the same behavior with Ms. Diana was relevant and
admissible as it was closely linked in similarity and nature to the charged offenses. This degree
of similarity is an important factor in determining the admissibility of other crimes or bad acts as
relevant to show a common scheme or plan. Commonwealth v. Einhorn, 911 A.2d 960
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(Pa.Super. 2006), appeal denied, 920 A.2d 831 (Pa. 2007).
Here, this Court concluded that the Commonwealth's evidence of defendant's December
20, 2010 assault upon Ms. Diana was admissible as evidence of a common plan, scheme or
design to injure, intimidate, place in fear and control her. In both incidents, the defendant
grabbed Ms. Diana by the neck and choked her. It was reasonable for this Court to infer that
both incidents were precipitated and induced by defendant's desire to place and keep the victim
in a constant state of fear and intimidation. This Court's ruling on the Commonwealth's evidence
of defendant's prior choking of Ms. Diana was admissible as a prior bad act under Pa.RE. 404(b)
and was, therefore, not an abuse of discretion.
Lastly, the defendant claims that this Court's sentencing structure is also an abuse of
discretion since he is required to serve his sentence for these violent crimes subsequent to him
serving a federal sentence for fraud. Since the crimes are wholly separate and apart from each
other, the sentences themselves should be separate and apart as well. The defendant believes he
is entitled to a concurrent sentence structure, but provided no support for this request. He simply
desires to have the benefit of concurrent confinement. Such relief is not warranted.
By history, the Presentence report revealed that this defendant has had numerous contacts
with the Court, making him RRRl ineligible. Given the grading of the aggravated assault charge
as an F-1, the Offense Gravity Score was a ten (10) and his Prior Record Score was a four (4).
The Sentencing Guidelines recommended a sentence of 48 to 66 months(+/- 12 months).
The Commonwealth recommended incarceration of 4 to 8 years incarceration, plus ten (10) years
of reporting probation, in addition to other conditions. Defendant's counsel suggested a mitigated
sentence of 3 to 6 years.
This Court imposed a sentence of 4 to 8 years incarceration, plus 5 years probation on the
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aggravated assault charge. Confinement was ordered to run consecutive to his federal prison
term. The sentence imposed is well below the maximum sentence for a felony of the first degree
of not more than twenty (20) years confinement.
To further support the imposition of a consecutive sentence, at his sentencing hearing, the
defendant exercised his right of allocution. At no point during this address to the Court did he
show any remorse, sorrow or any semblance of humanity. There was no apology to the victim,
the mother of his children. There was no apology to members of his family. Instead, the
defendant deflected blame to the victim and her family. He failed to accept any responsibility
whatsoever for any of his actions.
In fact, the Presentence Report notes "During the interview, the defendant expressed
anger and hatred towards [Ms. Diana] in the current offense, which suggested that he remains a
threat to her safety." This same attitude and belief was compounded by the defendant's own
words in a presentence letter to this Court. This Court clearly considered the safety concerns of
both Ms. Diana and her children in considering both the term and nature of the defendant's
sentence.
In imposing this sentence, this Court took into consideration (1) the nature and
circumstances of the offense and the history and characteristics of the Defendant, including the
Pre-Sentence Report; (2) the opportunity of the Court to observe this Defendant; (3) the findings
upon which this sentence was based; and (4) the appropriate guidelines per Commonwealth v.
Coulverson, 2011 Pa. Super. 255, 317, 34 A.3d 135, 143-144 (Pa. Super. 2011).
Within the constraints of the Sentencing Code, a trial court has broad discretion to
fashion a sentence consistent with the need for protection of the public, the gravity of the
offense, and the rehabilitative needs of the defendant. Commonwealth v. 1l1011zo11, 571 Pa. 419,
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423, 812 A.2d 617, 620 (2002). The sentence imposed upon this defendant falls well within this
Court's discretion and is neither excessive nor unreasonable under the circumstances. Clearly, the
sentence imposed upon this defendant took into consideration all of the above factors.
Therefore, for the foregoing reasons, this Court's findings of guilt, evidentiary rulings and
imposed sentence should be affirmed on appeal.
BY THE COURT:
l qt§
Date: January~. 2015
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COMMONWEALTH vs. WILLIAM HLUSHMANUK
CP-51-CR- 0003766 -2012
SUPERIOR COURT NO.: 2227 EDA 2014
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Opinion upon the person(s),
And in the manner indicated below, which satisfies the requirements of Pa. R. Crim. P. 114:
COUNSEL:
Hugh J. Burns, Jr., Esquire
Chief, Appeals Unit
Three South Penn Square
Philadelphia District Attorney's Office
Philadelphia, PA 19107
Erin Lentz-McMahon, Esq.
21 West Airy Street
Norristown, PA 19401
Attorney for William Hlushmanuk
Susan Cho, Esq.
Assistant District Attorney
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
TYPE OF SERVICE: FIRST CLASS MAIL
DATED: January~
1±L--
2015