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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VERONICA ANN MOATE
Appellant No. 1011 WDA 2016
Appeal from the Judgment of Sentence April 7, 2016
In the Court of Common Pleas of Cameron County
Criminal Division at No(s): CP-12-CR-0000040-2014
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JULY 14, 2017
A jury convicted Appellant, Veronica Ann Moate, on two charges of
resisting arrest and found her not guilty of one charge of aggravated assault.
She received a sentence of two years of probation. These charges arose
from an incident where Emporium Borough Police Officers deployed a taser
at Moate three separate times while trying to subdue her son, Jacob Moate,
who was suspected of driving under the influence (“DUI”). On appeal, Moate
raises five separate challenges to her judgment of sentence, including a
claim of after-discovered video evidence and challenges to the weight and
sufficiency of the evidence at trial. After careful review, we affirm.
At trial, officer Patrick Straub testified to the following events. On
August 9, 2014, the Emporium police department received reports that
Jacob Moate had driven his vehicle through a local school playground at a
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high rate of speed. Officers quickly pulled Jacob’s vehicle over in front of his
mother’s home and began questioning him.
While police were continuing their investigation, Moate emerged from
her home and approached her son’s vehicle. At this time, officers were
requesting that Jacob alight from his vehicle to perform field sobriety
testing. Moate proceeded to place herself between officers and the driver’s
side door of Jacob’s vehicle, demanding to know why Jacob was under
arrest.
Officers instructed Moate to move away from the vehicle, but Moate
refused. Jacob exited from his vehicle, but remained behind his mother.
While the standoff continued, Jacob climbed onto the hood of his vehicle and
ran across the street. Officers quickly apprehended Jacob in the yard of the
house across the street.
Jacob resisted being placed in handcuffs and engaged in a scuffle with
officers. Moate approached the scuffle yelling, “Leave my son alone.” Officer
Straub warned her to stay away, but she continued on, approaching her son.
Officer Straub disengaged from Jacob and took Moate to the ground,
directing her to stay down. He then returned to assist in subduing Jacob.
Another officer had succeeded in handcuffing Jacob when Moate
charged him, attempting to push the officer away from her son. Officer
Straub directed her to cease interfering and tried to pull her away from the
other officer.
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At this point, Moate started striking and scratching officer Straub. He
deployed his taser, hitting Moate with one of the two barbs. She fell
backwards, and officer Straub approached her, informing her that she was
now under arrest.
Moate pulled the taser barb out of her chest and proceeded to attack
the officer that was subduing her son. The melee around Jacob resumed,
and officer Straub utilized the “drive stun” function1 of his taser to secure
Moate’s compliance. He shocked her in the back of the neck while she was
face down on the ground.
After being shocked in the back of her neck, Moate declared, “Okay. I
give up.” Officer Straub turned his taser off. As soon as the taser was off,
Moate attempted to roll back over and engage with officer Straub again. He
re-activated the taser and shocked Moate again. At this point, Pennsylvania
State Troopers and additional Emporium police officers had arrived on the
scene and ended the fracas.
In her first issue on appeal, Moate contends that she is entitled to a
new trial due to the discovery, on the eve of trial, of video recordings of the
event taken by officer Straub’s taser. At that time, the Commonwealth
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1
Officer Straub testified that this function utilizes “an electrical current that
fluctuates on the front of the taser, and you press that against the body part
or body area that you can.” The “drive stun” function does not incapacitate
the target, but causes pain. He described the “drive stun” function as a pain
compliance method. See N.T., Jury Trial, 8/12/15, at 61-62.
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presented Moate with a DVD of video taken from the taser. Officer David
Merritt testified that the camera on the taser would start recording when the
officer turned the taser on. See N.T., Post-Verdict Hearing, 12/9/15, at 18.
The taser would stop recording if it was subsequently turned off. See id.
In a post-verdict petition for extraordinary relief, Moate argued for a
new trial based upon the still photographs derived from the DVD. She
argued that the Commonwealth’s late production, coupled with the
compressed nature of the video, did not afford her an opportunity to utilize
the photographs at trial. She asserted that the photographs reveal that she
was not engaged with officers, and instead, was merely standing nearby
peacefully. She moved a box full of the photographs into evidence. The trial
court denied her post-verdict petition, and her subsequent post-sentence
motion.
On appeal, Moate argues that the late production of the taser videos
necessitates a new trial. However, we cannot reach this issue. Neither the
photographs nor the DVD from which they were derived are in the certified
record on appeal. It is an appellant’s responsibility to ensure that the
certified record contains all the items necessary to review his claims. See,
e.g., Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super. 2016);
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008). “When a
claim is dependent on materials not provided in the certified record, that
claim is considered waived.” Commonwealth v. Petroll, 696 A.2d 817, 836
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(Pa. Super. 1997) (citation omitted). As we are unable to review the
contents of the recorded video from the taser, Moate has failed to preserve
this issue for our review. Her first issue on appeal is therefore waived.
Next, Moate argues that her two convictions for resisting arrest are
against the weight of the evidence presented at trial.
The weight of the evidence is 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. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal
citations omitted).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotation marks and citations omitted).
Moate argues that “[t]he evidence proffered by the police and other
Commonwealth witnesses was contradictory and designed only to avoid civil
accountability for the extraordinary use of force on a middle-aged, disabled
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female.” Appellant’s Brief, at 21-22. In reviewing this challenge, the trial
court described its reasoning as follows.
The verdicts were not astonishing or fanciful and did not outrage
a sense of justice. The verdicts were amply supported by
relevant and competent evidence of sufficient weight. [Moate’s]
positing of her interpretation of the evidence is entirely
ineffectual and inconsequential. While [Moate] has promoted
that there was no disparate testimony regarding [her] actions
during a police investigation into a criminal episode involving her
son, it was solely within the province of the jury as the finders of
fact to assess the evidence and determine which of the evidence
it found to be competent and credible.
The evidence demonstrated that on May 9, 2014, Officers Alex
Burkett and Patrick Straub of the Emporium Borough Police
Department were in the course of investigating an incident
involving a vehicle operated by defendant’s son, Jacob Moate.
After the officers had received an alert to be on the lookout for a
teal Mercury Topaz being operated erratically, a traffic stop of
that vehicle was made in the driveway of the residence of both
[Moate] and Jacob Moate, who was the operator and sole
occupant of the automobile. As a result of their investigation and
interaction with Jacob Moate, the police charged him with [DUI],
resisting arrest, and institutional vandalism. During the course of
the investigation in the Moate driveway, [Moate] exited the
house and came into close proximity to both the officers and her
son. A physical confrontation then ensued which ultimately led to
the filing of the charges against [Moate]. The dynamics of that
confrontation were obviously at issue, but the jury was able to
view the demeanor and countenance of the various witnesses
and attribute the appropriate weight to all of the evidence. The
testimony included not only that of Officers Straub and Burkett,
but also of Emporium Police Officer and now Chief, David Merritt.
The defendant, her husband, Richard G. Moate, and son Jacob
Moate also testified. Moreover, neutral third-party witnesses
testified as to their observations, including Melinda Arbritus,
Jerry Crosby, and Harold Grimm. …
This court has duly considered the applicable standard to be
utilized in the analysis of the defendant’s weight of [the]
evidence claim. The court also had the benefit of presiding over
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the August 12, 2015 jury trial. [Moate’s] contention that the
weight of the evidence was inadequate is untenable[.]
Trial Court Opinion, 6/21/16, at 3-4.
We can discern no abuse of the trial court’s discretion in the above
quoted reasoning. The court’s factual summary is amply supported by the
record, and the conclusions are reasonable. As such, Moate is due no relief
on her second issue.
In her third issue on appeal, Moate argues that the evidence
supporting her convictions for resisting arrest was insufficient. Specifically,
she claims that she could not be convicted of resisting arrest because there
was no evidence that she had created “a substantial risk of bodily injury to
anyone.” Appellant’s Brief, at 22.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
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“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder.
See id. “As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.” Commonwealth v. Kinney, 863
A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “unless the evidence is so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the combined
circumstances.” Bruce, 916 A.2d at 661 (citation omitted).
Here, Moate was found guilty of two counts of resisting arrest.
The offense of resisting arrest is established when a ‘person …
with the intent of preventing a public servant from effecting a
lawful arrest or discharging any other duty … creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force
to overcome the resistance.’
Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)
(quoting 18 Pa.C.S.A. § 5104) (emphasis supplied).
Moate focuses on the portion of the statute that requires the creation
of a substantial risk of bodily injury, as she discounts the alternative basis
for a conviction, the use of means justifying substantial force to overcome
the resistance to arrest. Moate contends that the jury could not have found
that she employed such means since the jury found her not guilty of
aggravated assault. Furthermore, she asserts that such a finding would
“ignore[] all of the photographic and video evidence, it ignores substantial
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parts of testimony, and it ignores the fact that [Moate] is a middle-aged,
disabled female.” Appellant’s Brief, at 23.
However, we agree with the trial court that none of Moate’s
contentions defeat the jury’s prerogative to believe the testimony of officer
Straub, who testified that Moate continued to resist arrest even after she
had been hit by the taser twice. The jury was certainly entitled to conclude
that these actions “justified substantial force,” in the form of officer Straub
first taking Moate to the ground, and then deploying the taser multiple
times. Moate’s third issue on appeal merits no relief.
Next, Moate contends that the trial court erred in denying her request
to sequester officer Straub during opening arguments. “The purpose of
sequestration is to prevent a witness from molding his testimony with that
presented by other witnesses.” Commonwealth v. Stevenson, 894 A.2d
759, 767 (Pa. Super. 2006) (citation omitted). The power to sequester
witnesses is discretionary with the trial court. See Pa.R.E. 615. Thus, “a
request for sequestration must be specific and supported by a showing that
the interests of justice require it.” Stevenson, 894 A.2d at 767 (citation
omitted).
Moate believes that officer Straub had a motive to perjure himself in
order to insulate himself and his department from civil liability for excessive
use of force. Pursuant to this belief, she requested that officer Straub be
sequestered:
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[Defense Counsel:] … And your Honor, just a couple of other
small things. Could I ask that – obviously will be a sequestration
of defense but also with regard to Officer Straub, I would
request that he be sequestered for the whole trial because –
THE COURT: He’s the arresting officer. It’s appropriate that
he be here, unless the Commonwealth would acquiesce.
[Defense Counsel:] Your Honor, well, I would request that he
be called first then by the Commonwealth because otherwise his
testimony could be tainted.
THE COURT: And that’s fine.
N.T., Jury Trial, 8/12/15, at 14-15.
The trial court concludes that Moate waived this claim, as she
acquiesced to having officer Straub testify first. Straub counters that the trial
court had already made its ruling on his request for sequestration, and that
she made a second request to limit the damage caused by that ruling.
While Moate’s construction of the exchange appears to be the most
accurate, we note that Stevenson requires a finding of waiver. In that case,
the defendant challenged the trial court’s refusal to sequester an officer
Absten. The Stevenson panel quoted the following exchange:
[Appellant’s attorney]: Move to sequester, Your Honor.
[Commonwealth attorney]: Can I have Officer Absten to
assist?
The Court: [Officer Absten] can stay, and everyone else is
sequestered.
Stevenson, 894 A.2d at 767. The panel noted that “Appellant’s attorney
raised no objection at this point to the trial court’s ruling that Officer Absten
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could remain at counsel table while Officer Prilla, the Commonwealth’s first
witness, testified.” Id. Based upon these circumstances, the panel concluded
that Stevenson had waived “his argument that the trial court had abused its
discretion by refusing to sequester the two officers at trial[.]” Id.
We can find no way to distinguish the objection lodged by Moate in the
present case from the objection quoted in Stevenson. In both instances,
counsel requested sequestration. In both instances, the trial court denied the
request. The Stevenson panel required an explicit objection to that ruling
on pain of waiver. We therefore conclude that Moate’s argument on appeal is
waived.
In her fifth and final issue on appeal, Moate argues that the trial court
should have granted a mistrial when the district attorney improperly
inflamed the jury against her. Specifically, Moate takes issue with the district
attorney’s closing argument that “this is not Ferguson. Almost take it
personal[ly] that the defense lawyer would make that analogy what’s going
on in the country. This isn’t. This is our home.”
It is well established that a prosecutor is permitted to vigorously
argue his case so long as his comments are supported by the
evidence or constitute legitimate inferences arising from that
evidence.
In considering a claim of prosecutorial misconduct, our
inquiry is centered on whether the defendant was
deprived of a fair trial, not deprived of a perfect one.
Thus, a prosecutor’s remarks do not constitute reversible
error unless their unavoidable effect ... [was] to prejudice
the jury, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh the
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evidence objectively and render a true verdict. Further,
the allegedly improper remarks must be viewed in the
context of the closing argument as a whole.
Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted).
After reviewing the transcripts, we agree with the trial court’s
reasoning:
This statement was not made in a vacuum however. Appellant’s
counsel had previously commented about the use of force by the
police in the United States being “…a hot-button issue. It’s a hot
topic, whether police can use this kind of force on people without
there being at least kind of pushback from the community or
from jurors or from anybody else.” It was thus appellant’s
counsel who opened the discussion regarding the scope and
timeliness of the issue of the use of force by the police and the
response by the Commonwealth’s attorney was not so blatant
and egregious so as to inflame the jurors and detract from their
function as neutral and objective finders of fact. Indeed, alleged
improper comments by the prosecutor must be viewed within
the context of the conduct and remarks of the defense attorney.
In the context of the case at bar, the prosecutor’s comments
came nowhere near warranting a mistrial.
…
It was not the Commonwealth’s attorney who was the promoter
of the issue of whether the force utilized by the police in general
was a consideration for the jury, but rather defendant’s counsel
who drew the attention of the jurors to the issue and suggested
some form of resistance or “pushback” to the use of force by the
community at large or jurors in particular. In that context and
despite the subliminal suspicion of outsider isolation and home
field advantage, the comments of the District Attorney were not
tantamount to inciting partiality, predisposition and bias or to
otherwise detract from the jury’s capacity to fairly and
impartially weigh all the evidence and render a verdict based
solely on the evidence.
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Trial Court Opinion, 11/14/16, at 4-5. Also, the jury’s not guilty verdict on
the charge of aggravated assault, the most serious charge levied at Moate,
undercuts Moate’s assertion that jury did not decide this case on the facts
presented to it. If the jury had been inflamed with prejudice towards out-of-
county counsel, it would likely have convicted Moate of the most serious
charge against her. We find no abuse of discretion in the trial court’s
reasoning, and therefore Moate’s final issue on appeal merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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