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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WAYNE NELSON, : No. 1085 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, March 13, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0002270-2017
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 15, 2019
Wayne Nelson appeals from the March 13, 2018 judgment of sentence
entered by the Court of Common Pleas of Delaware County following his
conviction of simple assault and possession of an instrument of crime.1 After
careful review, we affirm.
The trial court provided the following factual and procedural history:
On March 16, 2017 at a little after 8:00 a.m.
Chris Grandison was driving his daughter to Harris
School. As he turned left off of Clifton Avenue onto
Blackstone Avenue there were several cars stopped
in front of him traveling in both directions. The
traffic jam was caused by snow constricting the road
to one lane of travel. Mr. Grandison looked behind
him and realized that he could not back onto Clifton
Avenue because there were cars stopped behind
him. He could not pull forward either.
Mr. Grandison attempted to direct traffic to help
1 18 Pa.C.S.A. §§ 2701(a) and 907(a), respectively.
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people move out of the situation. [Appellant’s] car,
a white Infiniti, was two car lengths in front of him
facing the opposite direction in the same lane of
travel. [Appellant] and the witness exchanged some
words. Since the street had become a parking lot,
Mr. Grandison exited his vehicle and walked his
daughter to the school a half block away.
As Mr. Grandison walked his daughter to school they
walked by [appellant’s] vehicle. Mr. Grandison
testified that as he walked by the car [appellant]
began yelling at him. Mr. Grandison stated that
[appellant] told him he was going to “kill him.”
Mr. Grandison continued to the school but saw
[appellant] get out of his car, take something out of
the trunk and get back into his car. As
Mr. Grandison returned to his car he had a
premonition there might be trouble so he turned on
his cell phone video camera. As Mr. Grandison
passed by [appellant’s] car, [appellant] exited the
car and hit him from behind with a tire iron in the
head. [Mr.] Grandison and [appellant] then
struggled, as the witness stated “for my life[.”] As
they struggled, Mr. Grandison’s legally licensed
handgun went flying from his waistband and was
recovered by a bystander. Mr. Grandison believes
the two fought for several minutes. Bystanders
called the police. Upon hearing the sirens,
[appellant] fled on foot toward Harris School.
Morris Holcombe, a bystander, testified he was
sitting in a line of traffic. He observed
[Mr.] Grandison walk by his vehicle with his daughter
heading towards Harris School. He stated that
[Mr.] Grandison was saying loudly on his way back
to his vehicle that [appellant] stated he was going to
kill him. He stated that when [Mr.] Grandison got to
[appellant’s] vehicle, [appellant] exited his vehicle
and attacked him. He stated the two males began
physically fighting and he saw someone throw a
handgun into a snowbank. Mr. Holcombe testified he
went and picked up the gun, locked himself in his car
and called 911.
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Rachel Houseman, another bystander, testified she
pulled over on Blackstone Avenue to let cars get
down the street towards Harris School. She stated
that [appellant’s] white Infiniti attempted to go
around her blocking [Mr.] Grandison’s Toyota from
getting by. [Mr.] Grandison then put his hazard[]
lights on and got out and walked his daughter to
school leaving his vehicle in the middle of the street
blocking everyone in. When [Mr.] Grandison was
walking back to his car, [appellant] jumped out of his
car and attacked him. She testified the two men
began fighting and she heard someone say he has a
gun. She was unable to see who had the gun.
Ms. Houseman stated she stayed in her car at that
point and was unable to see anything else.
[Appellant] testified. He admitted exchanging words
with [Mr.] Grandison but insisted [Mr.] Grandison got
hot first. [Appellant] denied ever threatening him.
[Appellant] saw [Mr.] Grandison make a hand motion
towards his waist and adjust something. [Appellant]
believed [Mr.] Grandison was indicating to him [that]
he was armed. As [Mr.] Grandison walked past his
car door [appellant] testified [Mr.] Grandison told
him he’ll be right back. [Appellant] took that
comment as a threat that [Mr.] Grandison intended
to harm him when he returned. [Appellant]
admitted he retrieved a tire iron from his trunk but
said he did so because he feared for his life.
[Appellant] testified as [Mr.] Grandison got to the
back of his car he saw [Mr.] Grandison coming
toward him with his hand on his hips. He stated
[that he] was in fear for his life so he got out [of] the
car and hit [Mr.] Grandison with the tire iron.
[Appellant] then grabbed [Mr.] Grandison’s gun and
tossed it into a snowbank. [Appellant] stated he left
the scene because he was in fear for his life.
After a jury trial commencing on January 30, 2018,
the [j]ury acquitted [appellant] [of] two counts of
[a]ggravated [a]ssault and one count of [t]erroristic
[t]hreats and found [appellant] guilty of one count of
[s]imple [a]ssault[] and [p]ossession of
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[i]nstruments of [c]rime.[2] After sentencing,
[appellant] filed a timely [n]otice of [a]ppeal and a
timely [Pa.R.A.P. 1925(b) s]tatement of [errors]
[c]omplained of on [a]ppeal.
Trial court opinion, 5/17/18 at 1-4 (footnotes omitted). The trial court filed
an opinion pursuant to Pa.R.A.P. 1925(a) on May 17, 2018.
Appellant raises the following issues for our review:
1. Did the learned trial court err when [it]
prohibited trial counsel from attempting to
impeach Commonwealth witness,
Morris Holcombe[,] with a statement
inconsistent with his trial testimony? The
statement was given by him to defense
investigator, Donald Fredericks[,] who wrote a
report about the information provided by
Mr. Holcombe. Investigator Fredericks was not
permitted to testify about the prior inconsistent
statement nor was counsel permitted to ask
[Mr.] Holcombe questions about the
statement[.]
2. Did the learned trial court err in its jury
instruction on the issue of justification? Trial
counsel requested the court to instruct the jury
on the issue of justification as described
18 Pa. C.S.[A.] 505(b)(2.3) and the learned
trial court denied the request for this
instruction and erroneously instructed the jury
that the appellant had a duty to retreat.
Appellant’s brief at 4.
In his first issue on appeal, appellant avers that the trial court erred
when it did not permit appellant’s counsel to confront Morris Holcombe, a
2The trial court sentenced appellant to 11-23 months’ incarceration followed
by three years’ probation.
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Commonwealth witness, with evidence of an inconsistent statement made to
appellant’s private investigator, Donald Fredericks. (Appellant’s brief at
12-13.) Appellant further avers that the trial court erred when it did not
permit Fredericks to testify regarding statements made by Holcombe. (Id.
at 13.)
When reviewing a trial court’s refusal to admit evidence, we are held
to the following standard:
Appellate courts typically examine a trial court’s
decision concerning the admissibility of evidence for
abuse of discretion. See Commonwealth v.
Dengler, [] 890 A.2d 372, 379 ([Pa.] 2005). “An
abuse of discretion may not be found merely
because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support as to be clearly
erroneous.” Grady v. Frito-Lay, Inc., [] 839 A.2d
1038, 1046 ([Pa.] 2003).
Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007).
Pennsylvania Rule of Evidence 613 governs the use of prior
inconsistent statements for the purposes of impeaching a witness. Rule 613
provides, in relevant part:
(a) Witness’s Prior Inconsistent Statement to
Impeach. A witness may be examined
concerning a prior inconsistent statement
made by the witness to impeach the witness’s
credibility. The statement need not be shown
or its contents disclosed to the witness at that
time, but on request, the statement or
contents must be shown or disclosed to an
adverse party’s attorney.
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(b) Extrinsic Evidence of a Witness’s Prior
Inconsistent Statement. Unless the
interests of justice otherwise require, extrinsic
evidence of a witness’s prior inconsistent
statement is admissible only if, during the
examination of the witness,
(1) the statement, if written, is shown
to, or if not written, its contents
are disclosed to, the witness;
(2) the witness is given an opportunity
to explain or deny the making of
the statement; and
(3) an adverse party is given an
opportunity to question the
witness.
Pa.R.E. 613(a)-(b).
The use of prior inconsistent statements for the purpose of impeaching
a witness, however, is not without limitation. Indeed, this court has
previously held that,
“. . . it must be established that the witness, in fact,
made the allegedly inconsistent statement.”
Commonwealth v. Woods, 710 A.2d 626, 630
(Pa.Super. 1998), appeal denied, [] 729 A.2d 1129
([Pa.] 1998). “[A] summary of a witness’ statement
cannot be used for impeachment purposes absent
adoption of the statement by the witness as his/her
own.” Id. The rationale for this rule is: “[I]t would
be unfair to allow a witness to be impeached on a
police officer’s interpretation of what was said rather
than the witness’ verbatim words.”
Commonwealth v. Simmons, [] 662 A.2d 621,
638 ([Pa.] 1995).
McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006), appeal
denied, 921 A.2d 497 (Pa. 2007). In order for a statement to have been
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adopted by a witness, the statement must be either given under oath at a
formal legal proceeding, put in a writing signed and adopted by the witness,
or the statement may be a contemporaneous verbatim recording of a
witness’s statements. Commonwealth v. Brown, 52 A.3d 1139, 1154
n.15 (Pa. 2012), citing Commonwealth v. Lively, 610 A.2d 7, 10 (Pa.
1992). Our supreme court has further held that a contemporaneous
verbatim recording must be “electronic, audiotaped or videotaped . . . in
order to be considered as substantive evidence.” Commonwealth v.
Wilson, 707 A.2d 1114, 1118 (Pa. 1998).
Here, a review of the record reveals that appellant’s counsel sought to
impeach Holcombe’s credibility by confronting him with Fredericks’s
investigator’s report consisting of Fredericks’s notes. (Notes of testimony,
1/31/18 at 155.) There is no evidence of record that Holcombe gave his
statement under oath or put any statement in writing. Additionally, there is
no evidence of record that Fredericks made a contemporaneous verbatim
recording of Holcombe’s statement as defined by our supreme court. (Id.)
Accordingly, we find that the trial court did not abuse its discretion
when it refused to permit appellant’s counsel to attempt to impeach
Holcombe’s credibility by confronting him with Fredericks’s report.
Therefore, appellant’s first issue is without merit.
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In his second issue, appellant contends that the trial court erred when
it denied appellant’s request that the jury be provided with an instruction
pertaining to justification. (Appellant’s brief at 28-29.)
In deciding whether a trial court erred in refusing to
give a jury instruction, we must determine whether
the court abused its discretion or committed an error
of law. Von der Heide v. Commonwealth, Dep’t
of Transp., [] 718 A.2d 286, 288 ([Pa.] 1998).
Where a defendant requests a jury instruction on a
defense, the trial court may not refuse to instruct the
jury regarding the defense if it is supported by
evidence in the record. Commonwealth v.
Lightfoot, [] 648 A.2d 761, 764 ([Pa.] 1994).
When there is evidence to support the defense, it is
“for the trier of fact to pass upon that evidence and
improper for the trial judge to exclude such
consideration by refusing the charge.” Id. (internal
quote and citations omitted).
Commonwealth v. DeMarco, 809 A.2d 256, 260-261 (Pa. 2002).
In order, then, to be entitled to an
instruction on justification as a defense
to a crime charged, the actor must first
offer evidence that will show:
(1) that the actor was faced with a
clear and imminent harm, not
one which is debatable or
speculative;
(2) that the actor could reasonably
expect that the actor’s actions
would be effective in avoiding
this greater harm;
(3) that there is no legal
alternative which will be
effective in abating the harm;
and
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(4) that the Legislature has not
acted to preclude the defense
by a clear and deliberate
choice regarding the values at
issue.
As with any offer of proof, it is essential
that the offer meet a minimum standard
as to each element of the defense so that
if a jury finds it to be true, it would
support the affirmative defense—here
that of necessity. This threshold
requirement is fashioned to conserve the
resources required in conducting jury
trials by limiting evidence in a trial to
that directed at the elements of the
crime or at affirmative defenses raised
by the defendant. Where the proffered
evidence supporting one element of the
defense is insufficient to sustain the
defense, even if believed, the trial court
has the right to deny use of the defense
and not burden the jury with testimony
supporting other elements of the
defense.
[Commonwealth v. Capitolo, 498 A.2d [806,] 809
[(Pa. 1985).] It is the defendant’s burden to proffer
sufficient evidence for each of the Capitolo factors.
See Commonwealth v. Manera, 827 A.2d 482,
485 n. 7 (Pa.Super. 2003) (“Of course, the fact that
a defense is theoretically available for a given crime
does not mean that the Commonwealth must
disprove justification in every case. Because
justification is an affirmative defense, the defendant
has the burden of asserting an appropriate offer of
proof in order to be entitled to a jury instruction on
justification.”).
Commonwealth v. Clouser, 998 A.2d 656, 659 (Pa.Super. 2010), appeal
denied, 26 A.3d 1100 (Pa. 2011).
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We agree with the trial court’s conclusion that appellant failed to offer
evidence showing that he was faced with clear and imminent harm that was
not subject to debate or speculation. Specifically, the trial court reached the
following conclusion:
Grandison had passed by [appellant’s] car door when
[appellant] exited his vehicle and hit Grandison on
the head from behind with a tire iron. . . .
[Appellant] could have remained in his car and very
probably no altercation would have occurred. For
the same reason, [appellant] also fails the
“no alternative” prong of the test. He could have
remained in his car and avoided any possible harm
to himself. The same evidence also demonstrates
[appellant] could not reasonably expect that his
actions would be effective in avoiding . . . greater
harm. Therefore, [appellant] failed to show he was
entitled to a jury instruction on justification based on
the evidence at trial.
Trial court opinion, 5/17/18 at 11-12. We find that the trial court’s
conclusion is based on the evidence of record. Accordingly, the trial court
did not abuse its discretion, nor did it commit an error of law, when it denied
appellant’s request for a jury instruction on justification.
Judgment of sentence affirmed.
Lazarus, J. joins this Memorandum.
McLaughlin, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/19
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