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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROY MICHAEL HOGAN, JR. :
:
Appellant : No. 474 MDA 2019
Appeal from the Judgment of Sentence Entered March 13, 2019
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000616-2018,
CP-54-CR-0000617-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 10, 2020
Roy Michael Hogan, Jr., appeals from the judgment of sentence, entered
in the Court of Common Pleas of Schuylkill County, after a jury convicted him
of numerous offenses, including two counts each of attempted murder 1 and
aggravated assault.2 Upon careful review, we affirm.
The trial court aptly summarized the factual background of this matter
as follows:
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1 18 Pa.C.S.A. § 901(a).
2 18 Pa.C.S.A. § 2702(a)(1).
Hogan was also convicted of two counts each of terroristic threats, 18
Pa.C.S.A. § 2706(a)(1), possessing instruments of crime (“PIC”), 18 Pa.C.S.A.
§ 907(a), and criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(i), as well as one
count each of burglary, 18 Pa.C.S.A. § 3502(a)(1)(i), simple assault, 18
Pa.C.S.A. § 2701(a)(3), and four counts of recklessly endangering another
person (“REAP”), 18 Pa.C.S.A. § 2705.
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Brooke Ditzler and Hogan had been in a two[-]year[-]long
romantic relationship, which she ended in the summer of 2017.
By March of 2018[, Ditzler] was seeing Michael Seltzer. On March
17, 2018, Ditzler and Seltzer were out with two of their friends,
Mallory Geiger and Andrew Matlock. They were celebrating St.
Patrick’s Day by visiting several bars in the City of Pottsville.
Hogan was present at one of those bars and saw Ditzler with
Seltzer.
After leaving the bar, the two couples went to a diner in the
Borough of Schuylkill Haven to eat. They stayed for about an hour
before going to Ditzler’s house, which was nearby. When they
arrived at the house, the women went upstairs to Ditzler’s
bedroom to change. They were startled to discover Hogan lying
on the bed. He was staring at the ceiling, with his hand across his
chest[,] and holding a pocketknife.
Ditzler screamed and the women ran downstairs. Ditzler called
the police. Hogan came down behind them. He was not then
carrying the knife. Ditzler told her companions to hold Hogan
there for the police. Matlock pinned him against the wall. As he
did so, the knife fell from Hogan’s jacket, and Matlock backed
away. Hogan then calmly walked out the front door.
Ditzler had locked the front and back doors to her house before
leaving that evening, and she had the only key, which she used
to unlock the front door when the couples arrived. There was also
a side door to the basement. [I]t was kept locked, but it had a
doggie panel that was just covered in plastic.
The police soon arrived and searched the area for Hogan to no
avail. The two couples decided to stay at Ditzler’s home that night
and to sleep together in the living room for safety. After making
sure the doors were locked, they went to sleep. Matlock slept in
the recliner. The other three slept on the couch with Seltzer
closest to the front door and Ditzler in the middle.
Sometime during the night, Hogan returned to the residence. He
gained entry through the basement door. Once in the living room,
Hogan stabbed Seltzer eight times, once in the temple area, twice
in his che[e]k, twice on his right arm, once in the left shoulder
area, once in the [] chest, and once in the abdomen. [Seltzer]
had been asleep before the stabbing, and when he awoke, he had
lost control of his right arm and was bleeding profusely.
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Next, Hogan stabbed Matlock in the neck, near the carotid artery.
Mat[l]ock was able to get out of the chair and run into the
adjo[i]ning dining room with Hogan in pursuit. Matlock used the
dining room chairs to defend himself. When he hit Hogan with a
chair, Hogan was stunned enough for Matlock to run back into the
living room, where he grabbed Seltzer and helped him out the
front door. Outside, Matlock was able to pound on a neighbor’s
door until the neighbor awoke and called the police. While this
was occurring, Ditzler was calling 911 on her cellphone.
After Matlock and Seltzer left, Hogan closed and locked the front
door and turned his attention to Mallory Geiger, who was still
sitting on the couch. He punched her hard in the chest before
swiping the knife at her and cutting her chest. Ditzler [r]an over
and pushed Hogan away. He pushed her back, knocking her to
the floor. Geiger dropped to the floor and crawled to Ditzler. Both
women were sitting on the floor near the door, screaming for help.
Hogan went to Geiger and, while holding a knife to her chin, told
her: “This is your last chance or I’m going to kill you.” Geiger
stood up and started to walk toward the kitchen with Ditzler
holding onto her leg and screaming for Geiger not to leave.
After Geiger went into the kitchen, Hogan approached Ditzler and
stood over her holding a knife to her face. At that moment, the
police began banging on the door, which Ditzler reached up and
unlocked. As an officer entered, Hogan ran past Geiger in the
kitchen and out the back door. He was eventually spotted by a
neighbor and apprehended without further incident.
Trial Court Opinion, 5/8/19, at 1-4.
Hogan was tried on February 11-14, 2019, after which a jury convicted
him of the above-stated offenses. On March 13, 2019, the court sentenced
Hogan to an aggregate term of 35 to 70 years’ incarceration. Hogan did not
file post-sentence motions. He filed a timely notice of appeal,3 followed by a
____________________________________________
3 Hogan was charged at two separate docket numbers, but filed only one
notice of appeal listing both docket numbers. The Official Note to Pennsylvania
Rule of Appellate Procedure 341 provides as follows:
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Where . . . one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate
notices of appeals must be filed. Commonwealth v. C.M.K., 932
A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court
construed the above language as constituting “a bright-line mandatory
instruction to practitioners to file separate notices of appeal.” Id. at 976-77.
Therefore, the Walker Court held that “the proper practice under Rule 341(a)
is to file separate appeals from an order that resolves issues arising on more
than one docket. The failure to do so requires the appellate court to quash
the appeal.” Id. at 977. The Court tempered its holding by making it
prospective only, recognizing that “[t]he amendment to the Official Note to
Rule 341 was contrary to decades of case law from this Court and the
intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, seldom quashed appeals as a result.” Id.
Subsequently, this Court, in Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019), read Walker “as instructing that we may not accept a notice of
appeal listing multiple docket numbers, even if those notices were included in
the records of each case.” Id. at 1144. Accordingly, Creese held that “a
notice of appeal may contain only one docket number.” Id.
More recently, in Commonwealth v. Johnson, 2020 PA Super. 164 (Pa.
Super. filed July 9, 2020) (en banc), this Court held that, in requiring notices
of appeal to contain no more than one docket number, Creese “imposed upon
appellants an additional requirement found in neither Walker nor Rule 341.”
Id. at *12. Accordingly, the Court held that, where an appellant otherwise
complies with the dictates of Walker, “in so far as Creese stated a notice of
appeal may contain only one docket number, that pronouncement is
overruled.” Id. (internal citation and quotation marks omitted).
Here, Hogan’s single counseled notice of appeal, referencing two docket
numbers, was filed in the Schuylkill County Court of Common Pleas on March
20, 2019, more than nine months after Walker was issued. However,
Hogan’s appeal relates to only one of the docket numbers listed on his notice
of appeal. Accordingly, Hogan is in compliance with Walker’s dictate that
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court-ordered concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b). Hogan raises the following claims for our review:
1. Did the [t]rial [j]udge commit an error of law/abuse of
discretion in ruling during the [m]otion in [l]imine hearing prior to
trial that [Hogan] was prohibited from testifying or arguing about
how the alleged victim’s . . . decision to abort his child affected
him, which testimony would have added to the credibility of his
claim that he had become suicidal by March 18, 2018?
2. Did the [t]rial [j]udge commit an error of law and/or an abuse
of discretion in ruling during the trial that general references to a
[protection from abuse (“PFA”)] order and a [b]ail [o]rder
pertaining to [Hogan] and existing on March 18, 2018 were
admissible?
3. Did the [t]rial [j]udge commit an error of law in failing to
dismiss two [c]ounts of [c]riminal [a]ttempt to [c]riminal
[h]omicide . . . after a [m]otion was made by [Hogan] at the
conclusion of the Commonwealth’s case-in-chief for dismissal
based on the offenses being incorrectly defined in the
[i]nformation?
Brief of Appellant, at 4-5.
Hogan’s first two claims concern evidentiary rulings by the trial court.
The admission of evidence is within the sound discretion of the trial court, and
a trial court’s evidentiary rulings will be reversed only upon an abuse of that
discretion. Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
“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
____________________________________________
requires a separate notice of appeal for each lower court docket challenged on
appeal. We, therefore, decline to quash Hogan’s appeal on the basis of
Walker. Johnson, supra.
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unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Commonwealth v. Dillon, 925 A.2d
131, 136 (Pa. 2007).
Hogan first asserts that the trial court erred in precluding him from
testifying about the fact that Ditzler had aborted his child and the manner in
which that abortion had affected him. At trial, the theory of Hogan’s defense
was that he did not have the intention to commit homicide when he broke into
Ditzler’s residence. Rather, he intended to “confront Ditzler and talk to her
about the break-up of their relationship and its aftermath.” Brief of Appellant,
at 12. Hogan claims he knew that the police would be called and, upon seeing
him with a knife, would shoot to kill him. Hogan argues that his true intent
was to commit “suicide by cop” in front of his former paramour. Hogan claims
that testimony regarding Ditzler’s abortion and its impact on his mental state
would have lent credibility to his claim that he was suicidal on the date of the
incident in question.
Prior to trial, the Commonwealth filed a motion in limine seeking to
preclude the introduction of evidence of the abortion as inadmissible bad
character evidence relating to the victim. The trial court concluded that the
abortion, which occurred ten months prior to the incident, was “far removed
in time from the incidents giving rise to the trial and would in no way relate
to Hogan’s state of mind and intent when he stabbed Seltzer, Matlock, and
Geiger.” Trial Court Opinion, at 5. The court further found that Hogan’s sole
purpose in introducing the evidence was to “disparage Ditzler before the jury.”
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Id. Accordingly, the trial court granted the Commonwealth’s motion and
precluded the defense from any mention of Ditzler’s abortion.
Despite the court’s ruling, Hogan testified as follows during his direct
examination:
Q: All right. Now, at the time you were [at Ditzler’s residence],
did you have a knife in your possession?
A: Yes.
Q: Where was it?
A: It was in my pocket.
Q: What was your purpose in having the knife?
A: Well, like I said, I was upset, you know, with everything going
on, you know, her lying to me and killing my child.
[COUNSEL FOR THE COMMONWEALTH]: Objection.
N.T. Trial, 2/11/19, at 310-11.
After Hogan made reference to the abortion, the Commonwealth argued
for a mistrial, which the court ultimately denied after a 45-minute recess.
Thereafter, the Commonwealth advised the court that it did not wish for a
curative instruction. Thus, the ultimate result was that Hogan was able to
place before the jury the fact of Ditzler’s abortion and the impact of that
abortion on his mental state, and, because the Commonwealth declined a
curative instruction, the jury was free to consider that fact during
deliberations. Accordingly, the trial court’s initial decision to preclude the
evidence did not prejudice Hogan. Because the evidence he sought to admit
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was, in fact, presented to the jury, his claim is moot and he is entitled to no
relief.
Hogan next alleges that the trial court erred in allowing the
Commonwealth to refer generally to the existence of two court orders
prohibiting Hogan from having any contact with Ditzler at the time of the
incident. Specifically, Ditzler had obtained a PFA against Hogan because he
had been harassing her via text message. Ditzler had also filed harassment
charges against Hogan and, as a condition of his bail, Hogan was prohibited
from contacting Ditzler. Both prior to and during trial, defense counsel sought
to preclude mention of those orders during the Commonwealth’s cross-
examination of Hogan. The Commonwealth argued that it should be allowed
to cross-examine Hogan regarding the orders for the purpose of challenging
his credibility with respect to his claim that he went to Ditzler’s house merely
to speak with her. The Commonwealth sought to raise doubt that Hogan
would risk incarceration for the sake of a mere conversation. The court
indicated that it would allow the Commonwealth to cross-examine Hogan on
the orders, and the Commonwealth agreed that it would not specify the nature
of the orders, but refer to them simply as “court orders” that, if violated, could
result in Hogan’s incarceration.
In an effort to “blunt the effect” of the jury learning about the orders
from the Commonwealth, defense counsel made reference to them during his
direct examination of Hogan. On cross-examination, the Commonwealth also
referenced the orders after Hogan testified that he had only gone to Ditzler’s
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residence to talk to her. Hogan now asserts that the Commonwealth’s
reference to the orders was overly prejudicial, and resulted in an unfair trial.4
He is entitled to no relief.
Generally, evidence of prior bad acts or unrelated criminal activity is
inadmissible to show that a defendant acted in conformity with those past acts
or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to prove some other relevant fact,
such as motive, opportunity, intent, preparation, plan, knowledge, identity,
and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the trial court is obliged
to balance the probative value of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009). Evidence is
unduly prejudicial when its admission creates a danger “that it will stir such
passion in the jury as to sweep them beyond a rational consideration of guilt
or innocence of the crime on trial.” Commonwealth v. Ulatoski, 371 A.2d
186, 192 n.11 (Pa. 1977) (citation omitted).
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4 Hogan also argues on appeal that reference to the orders was cumulative
and unnecessary to impeach his claim regarding the purpose of his entry into
Ditzler’s home, because he admitted he entered the residence unlawfully and
subjected himself to criminal prosecution by doing so. However, Hogan did
not raise this theory at the motion in limine stage or when the issue arose
again during trial. “[T]his Court cannot review a legal theory in support of
that claim unless that particular legal theory was presented to the trial court.”
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). Accordingly, that claim is waived.
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In Sherwood, our Supreme Court found that the trial court properly
admitted evidence that the defendant had previously struck the child he was
on trial for beating to death in order to refute the defendant’s self-serving
allegations that he did not intend to kill the victim and that he loved her.
Similarly, here, evidence of the orders prohibiting Hogan from contacting
Ditzler were relevant to refute his assertion that he simply wanted to speak
with Ditzler and did not go to her residence with the intention of harming her.
Moreover, by allowing the Commonwealth to refer only generically to “court
orders,” the court limited the possibility of undue prejudice. Accordingly, the
trial court did not err in allowing the Commonwealth to cross-examine Hogan
regarding the orders.
Finally, Hogan claims that the trial court erred in refusing to dismiss
three counts of attempted homicide with which he was charged. Specifically,
Hogan argues that he was charged with criminal attempt to commit homicide,
generally, rather than criminal attempt to commit first-degree murder. Hogan
argues that, “[s]ince [f]irst-[d]egree murder carries an element different from
all other degrees of criminal homicide, [a]ttempted [f]irst[-d]egree [m]urder
is materially different from the original charge of [a]ttempted [c]riminal
[h]omicide” and, thus, amendment of the information should not have been
allowed. Brief of Appellant, at 19. The trial court, reasoning that it is
impossible to commit attempted second- or third-degree murder, found that
Hogan was not misled about what charges he was required to defend and was
not prejudiced in the preparation of his defense. We can discern no error.
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Due process requires that the criminal information provide fair notice of
every crime of which a criminal defendant is accused. Commonwealth v.
Sims, 919 A.2d 931, 939 (Pa. 2007). See Pa.R.Crim.P. 560(C) (providing
that “[t]he information shall contain the . . . citation of the statute . . . or other
provision of law that the defendant is alleged therein to have violated”). To
comport with due process, the notice provided must be sufficiently specific so
as to allow the defendant to prepare any available defenses should he exercise
his right to a trial. Sims, 919 A.2d at 939, citing Commonwealth v. Little,
314 A.2d 270, 273 (Pa. 1974). Such notice ensures that, if the
Commonwealth prevails at trial, the defendant’s conviction is not arbitrary or
oppressive. See Commonwealth v. Kratsas, 764 A.2d 20, 27 (Pa. 2001).
Here, the criminal information alleged that Hogan, “having the intent to
commit [criminal homicide] . . . did intentionally stab” Mallory Geiger, Andrew
Matlock and Michael Seltzer with a large knife. See Criminal Information,
4/30/18, at 1. The information clearly apprised Hogan of the intent element
of the charge and set forth the factual basis for the charges. As such, the
document provided Hogan with sufficient information to prepare his defense.
Sims, supra. Indeed, as the trial court properly noted, one cannot attempt
to commit murder of the second or third degree. See Commonwealth v.
Griffin, 456 A.2d 171, 177 (Pa. Super. 1983). Thus, there could have been
no confusion that the Commonwealth was proceeding under any theory other
than that Hogan attempted to commit first-degree murder. Demonstrating
his awareness of this fact, Hogan argued in a pre-trial habeas corpus motion
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that he did not possess the specific intent to kill Mallory Geiger. Additionally,
at the hearing on Hogan’s pre-trial motion in limine, defense counsel
acknowledged that the Commonwealth would present evidence of Hogan’s
specific intent to kill. Accordingly, Hogan was sufficiently apprised that he was
being charged with criminal attempt to commit first-degree murder and the
trial court did not err in declining to dismiss the charges.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2020
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