J-A23022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEENAN AND SHADE LAWSON, H/W : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
ALBERT EINSTEIN MEDICAL CENTER : No. 889 EDA 2019
Appeal from the Judgment Entered October 3, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 3214 June Term 2016
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 02, 2020
Keenan (Lawson) and Shade Lawson, h/w (collectively, the Lawsons)
appeal nunc pro tunc from the judgment entered on October 3, 2019, in favor
of Albert Einstein Medical Center (Einstein) in the Court of Common Pleas of
Philadelphia County (trial court). Specifically, the Lawsons argue that the trial
court erred in giving a misleading non-standard citizen’s arrest jury
instruction.
This contention is perplexing because Lawson did not plead there was
false imprisonment, an illegal detention or an illegal citizen’s arrest and
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* Retired Senior Judge assigned to the Superior Court.
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Einstein did not plead that there was a proper citizen’s arrest as a defense.1
Nonetheless, both the Lawsons and Einstein and the trial court focus on the
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1 “The concept of citizen’s arrest as it has been developed by the courts is
almost exclusively used as defense or justification on the part of the arresting
person. In tort law the citizen’s arrest is defined as a privilege that prevents
an intentional invasion of another person’s interests, which otherwise would
constitute assault, battery, and false imprisonment, from being tortious and,
therefore, the basis for civil liability. The conditions required to establish the
privilege, generally stated, are that a felony has been committed and that the
actor reasonably suspects that the person whom he arrests has committed
the felony. See Mahaffey v. Byers, 25 A. 93 (Pa. 1892); see generally
Restatement (Second) of Torts, §§ 118, 119, 127.” Commonwealth v.
Corley, 491 A.2d 829, 833–34 (Pa. 1985).
Section 118 of the Restatement (Second) provides that “a private person is
privileged to arrest another without a warrant for a criminal offense
(a) if the other has committed the felony for which he is arrested,
or
(b) if an act or omission constituting a felony has been committed
and the actor reasonably suspects that the other has committed
such act or omission, or
(c) if the other, in the presence of the actor, is committing a
breach of the peace or, having so committed a breach of the
peace, he is reasonably believed by the actor to be about to renew
it, or
(d) if the other has attempted to commit a felony in the actor’s
presence and the arrest is made at once or upon fresh pursuit, or
(e) if the other knowingly causes the actor to believe that facts
exist which would create in him a privilege to arrest under the
statement in Clauses (a) to (d).
Our Supreme Court expressly declined to reach “the propriety of the Superior
Court’s holding that a citizen may arrest for a misdemeanor breach of the
peace committed in his presence.” Commonwealth v. Corley, 491 A.2d
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propriety of a citizen’s arrest, even though they differ on when the citizen’s
arrest occurred and for what offense he was arrested.
Nonetheless, for the reasons that follow, we affirm.
I.
We take the following factual background and procedural history from
the trial court’s April 11, 2019 opinion and our independent review of the
certified record.
On June 28, 2016, the Lawsons filed a civil personal injury complaint
against Einstein for assault and battery, intentional infliction of emotional
distress and loss of consortium related to an incident that occurred at
approximately 3:00 A.M. on the morning of July 1, 2014. The Complaint
alleged Lawson picked up a husband and wife and transported the husband to
the hospital because he was shot. After Einstein Security Officers secured the
car and Lawson exited (First Interaction), the Complaint alleged:
7. Upon [Lawson’s] arrival at the front entrance of the
emergency room, the woman [(wife)], who was assisting the
wounded man [(husband)] inside, requested that Plaintiff Keenan
Lawson hold a few items while she assisted him into the hospital.
8. Plaintiff Keenan Lawson noticed that one of the items was
a bag which appeared to contain a small amount of marijuana and
he indicated to the woman that “she couldn’t take that into the
hospital with her.”
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829, 834 (Pa. 1985). We note that Corley was a suppression case and a
citizen’s arrest was not being used as a defense to a civil claim.
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9. While Plaintiff Keenan Lawson was holding the items, an
Albert Einstein security guard stated that “you better get rid of
that before the police arrive.”
10. Plaintiff Keenan Lawson walked a few steps to throw the
bag into a nearby trash can when suddenly and without warning,
he was attacked by about five (5) Albert Einstein security guards,
one of whom stated “oh, so now you are trying to run.
11. At that juncture, Plaintiff Keenan Lawson, in the
presence of his wife, Shade Lawson, was handcuffed by these
security guards and then brutally beaten despite the fact that
Plaintiff Keenan Lawson offered no resistance whatsoever
[(Second Interaction)].
(Complaint, 6/28/16, at 2) (pagination provided).
Einstein filed an Answer with New Matter on September 7, 2016, in
which it stated, in relevant part, that it did not “wrongfully, maliciously,
intentionally, or without cause illegally or wantonly assault [Lawson].”
(Answer with New Matter, 9/07/16, at Paragraph 34). It did not raise a
citizen’s arrest defense. At trial, the following pertinent facts were adduced.
A.
1.
Lawson testified that at approximately 3:00 A.M. on the morning of July
1, 2014, he woke up hungry and went to a local Chinese restaurant where a
woman, Monique Taylor, asked him if he would give her a ride home. (See
N.T. Trial, 3/29/18 (Volume 1), at 69-70). As the two drove on Germantown
Pike in Philadelphia, a man bleeding from a gunshot wound and his wife
flagged down Lawson because they had just been robbed and needed a ride
to the emergency room. (See id. at 70-71). The two individuals got in the
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back seat of Lawson’s vehicle and he took them to Einstein. (See id. at 72-
73). The gunshot victim went into the hospital and his wife stayed behind to
give Lawson some marijuana in her possession so she would not be caught
with it in the hospital. (See id. at 73-74). He testified that without providing
him any reason, the Einstein security guards immediately told him to give
them the keys to his car and that he and Taylor had to vacate the vehicle.
(See id. at 74-76). Lawson immediately got out of the car, gave the security
guards his keys and walked away to call his mother. (See id. at 74, 76).
While on the phone, several security guards rushed him, threw him to the
ground, punched and kicked him and started searching his pockets. (See id.
at 76-77). Lawson testified that he immediately told the officers he was
licensed to carry a firearm. (See id. at 77).
2.
Einstein Security Officer Wesley Applegate testified to slightly different
facts. During his testimony, he explained to the jury what was occurring on
an Einstein security tape of the incident and his motivations for the actions
shown on that video. The officer testified that when Lawson pulled up in his
vehicle, he approached to ask what was going on and to see if there was any
blood or bullet holes inside of it because it could be a crime scene (First
Interaction). (See N.T. Trial, 4/03/18 (Volume 3), at 149, 152-154). The
security guards do not carry guns or wear bulletproof vests. (See id. at 155).
The officer saw blood “all over the back seat.” (Id. at 152). He did not see
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any weapons and neither Lawson nor Ms. Taylor told him that they possessed
either a gun or marijuana. (See id. at 152, 158). He testified that out of the
corner of his eye, he might have seen the gunshot victim’s companion hand
something to Lawson, but he was not sure. (See id. at 155-56). When
Lawson got out of the vehicle so that the security guards could tape off the
area as a crime scene, Lawson was cursing and upset. (See id. at 155, 158).
Officer Applegate, who was trained to de-escalate such situations, explained
to the visibly upset Lawson that the police were on their way and would want
to talk to him, but that he was not in trouble. (See id. at 154-58). The officer
stated that he did not know at what point Lawson decided that he would stay.
(See id. at 155).
As Lawson began to walk away from the officer, a verbally aggressive
Ms. Taylor approached, “yelling and cursing at [him].” (Id. at 159, 162). The
videotape showed that Lawson had walked to an adjacent parking lot for
patients and visitors to the emergency room and labor and delivery. (See id.
at 159-60). At the time of the incident, Officer Applegate was focused on de-
escalating the situation with Ms. Taylor and did not see where Lawson walked
off to when the guard “heard someone say, ‘He has a gun, he has a gun.’”
(Id. at 162; see id. at 159). The officer’s immediate concern was for the
safety of patients, visitors, himself and his fellow officers. (See id. at 163-
65).
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Upon hearing “he has a gun,” Officer Applegate and approximately four
or five other security officers ran to the area. (See id. at 166, 172). “[They]
perceived that [Mr. Lawson] had tripped and fell and then one of [the] officers
jumped on top of him because they see his hand keep going to his waistband.”
(Id.). The responding officers did not beat, kick or punch Lawson or tear at
his clothes. (See id. at 171). Officer Applegate explained that two officers
could be seen on the videotape trying to grab Lawson’s arms out from under
him because he could be reaching for the gun to shoot others or it could go
off and harm him, and it was the officers’ responsibility to protect everyone
on Einstein property, including Lawson. (See id. at 172-73). He testified that
in his experience, when he sees someone reaching into his waistband, it has
been for a weapon. (See id. at 167).
The officer agreed with counsel that prior to the gun incident, the
videotape showed at least four minutes of him trying to de-escalate the
situation before Mr. Lawson walked away. (See id. At 166-67). When asked
if there “would [have] been anything preventing [Lawson,] if he had not shown
that he was going for his gun[,] from just walking down that driveway and
walking on out of there[,]” the officer responded, “No, ma’am.” (Id. at 167).
3.
Corporal Raymond Sutton, Einstein Security Supervisor, also testified
about what was occurring on the security videotape and his involvement in
the incident. He testified that after Officer Applegate called in a gunshot
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victim, Corporal Sutton and other security guards came outside. (See id. at
206). As he approached, the corporal observed Officer Applegate speaking
with an agitated Lawson who had slammed the car door after Officer Applegate
opened it upon seeing blood in the backseat. (See id. at 208, 213). Upon
walking up to the scene, Corporal Sutton went to the passenger side of the
car where Ms. Taylor was. (See id. at 208). When asked to identify what the
gunshot victim’s companion handed Lawson, the corporal said he did not know
what it was. (See id. at 212). He could see Officer Applegate still telling
Lawson to calm down because he was so agitated. (See id. at 209). Corporal
Sutton said the first method of dealing with a situation is de-escalation. (See
id. at 210). He said such anger and agitation was concerning in this situation
because of whom Lawson brought in. He said that “[n]ever once did we look
at [] Lawson as the perpetrator.” (Id. at 214). “Only thing we know is there
is a bleeding man on the inside with a gunshot who was not telling us
anything.” (Id. at 215-16). The security guards stood around Lawson’s car
because it had blood evidence and the gunshot victim was dropped off after
riding in it, and their only purpose was to put cones and caution tape around
the vehicle to “make that area sterile” for the Philadelphia Police. (Id. at
217); (see N.T. Trial, 2/04/18 (Volume 4), at 15-16). He testified that the
security guards did not pose a threat to Lawson and that “[h]e was able to
walk away from his car. He was able to have whatever dialogue he had with
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Ms. Taylor. He was not apprehended where he was restricted. He was allowed
to walk.” (N.T. Trial, 4/03/18 (Volume 3), at 216-17).
Corporal Sutton testified that as Officer Applegate was talking with
Lawson, Ms. Taylor walked up behind him and the officer started focusing on
her. (See N.T. Trial, 4/04/18 (Volume 4), at 16). While Officer Applegate
was talking with Ms. Taylor, Lawson walked unhindered toward the parking lot
with no restraint and, because Corporal Sutton had moved the security
vehicle, the corporal could see Lawson reaching for his waistband as he
reached a grassy area. (See id. at 16-17, 19). Corporal Sutton testified that
if he had just kept walking and had not reached into his pants, he could have
just kept going. (See id. at 19-20). Instead, Lawson reached into his
waistband and upon seeing this, Corporal Sutton yelled, “He has a gun, he
has a gun.” (Id.). He testified that he did this to alert his fellow officers
because, although none of them were armed, they still were responsible for
what occurred on Einstein property. (See id. at 17-18).
At that point, Corporal Sutton jumped out of his vehicle, met Security
Officer Branham and the two men approached Lawson to speak with him.
(See id. at 23). Lawson started trying to run from the security guards, saying
“I ain’t do nothing, I ain’t do nothing,” and “next thing you know he was on
the ground and he fell flat forward covering his mid side[,]” having tripped
over the curb. (Id. at 25; see id. at 23-24). The two officers got on either
side of Lawson on the ground at the top of his shoulders and tried to pull
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Lawson’s arms from around him as he was trying to get up to prevent him
from reaching for his weapon. (See id. at 27). Corporal Sutton testified that
no officer threw Lawson to the ground, tried to punch or kick him or kneed
him in the back. (See id. at 28, 31-32, 44). He said there was no video of
officers punching Lawson because it did not happen. (See id. at 32). All of
this occurred on the grass. (See id. at 32). At no point did Lawson tell the
officers that he had a firearm in his possession. (See id. at 29).
After the incident, Corporal Sutton and Security Officer Branham placed
Lawson in the Einstein Security vehicle, a jeep. (See id. at 33-34). The
officers stayed on both sides of the jeep because Lawson continued trying to
squirm and move, laying down across the backseat. (See id. at 34). Neither
officer punched him while he was inside the jeep, and Corporal Sutton reached
in and was able to secure the weapon from the squirming Lawson. (See id.
at 35-38). There was no indication that Lawson was injured, gasping for air
or losing his breath at any time. (See id. at 39-41). Corporal Sutton testified
that his only intent that night was to protect everyone on the Einstein campus
and prevent a potential shooting. (See id. at 46-47). Corporal Sutton
testified that Einstein Security did not arrest Lawson and merely held him after
the gun incident until the Philadelphia Police arrived pursuant to Einstein
policy. (See id. at 43-44).
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4.
The Lawsons presented Attorney Samuel Stretton as a legal expert. He
testified that, theoretically, if a security guard tells an individual he is not free
to leave, that person would be arrested. (See N.T. Trial, 4/03/18 (Volume
3), at 22-23). Furthermore, although initially testifying that a felony must be
committed in an arrestor’s presence to justify a citizen’s arrest, he conceded
that pursuant to Corley, the only case he relied on in his expert report, a
citizen could make an arrest for a felony or misdemeanor breach of the peace.
(See id. at 39, 65).
Einstein provided the testimony of William Birks, who testified as a
security expert. Mr. Birks testified that after reviewing the videotape, it was
his expert opinion, within a reasonable degree of professional certainty, that
the security guards complied with Einstein’s policy and did a good job. (See
N.T. Trial, 4/04/18 (Volume 4), at 124-25). He agreed that the video evidence
was as the guards described it at trial. (See id. at 131, 143).
B.
At the conclusion of testimony, the court charged the jury, in pertinent
part, on justification-defense of others as follows:
The defendant has raised the issue of whether its security
guards acted in defense of another when they restrained the
plaintiff. So this defense is called justification in the law of
Pennsylvania. If the defendant’s actions were justified, you
cannot find them liable for the intentional torts of assault and
battery. The defendant has the burden to prove that the security
guards actually believed that another was in danger of becoming
the victim of unlawful force such that the defendant’s employees
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needed to use force to defend the other person or persons at the
moment the guards used it and that the guards belief that they
needed to use such force was reasonable in light of all the
circumstances known to them.
Keep this in mind. A person is justified in using force against
someone not only when he or she believes another is in actual
danger of unlawful attack, but also when the defendant mistakenly
but reasonably believes they are. A person is entitled to estimate
the necessity for the use of force he or she employs under the
circumstances as he or she reasonably believes them to be at the
time. In the heat of a conflict a person who sees another attacked
ordinarily has neither time nor composure to evaluate carefully
the danger and make nice judgments about exactly how much
force is needed to protect the other person.
Consider the realities of the situation faced by … defendant
here when you assess whether it has proven that its employees
believed another was actually in danger of unlawful force to the
extent that they needed to use such force in their defense, and
that their belief was reasonable.
Unlawful force means any form of force that is employed
without the consent of the person against whom it is directed
where its use would constitute an offense or actionable tort.
If you find that the Albert Einstein Medical Center’s
personnel were justified in their actions, plaintiffs cannot recover
any damages.
(N.T. Trial, 4/05/16 (Volume 5), at 177-79).
It then went on to charge on what was a lawful citizen’s arrest:
Under Pennsylvania law a private person who makes a
lawful arrest is justified in using any force which he or she believes
to be necessary to effect the arrest and of any force which he
believes to be necessary to defend himself or another from bodily
harm while making the arrest.
And also under Pennsylvania law a layperson, that is
someone who is not a police officer, may arrest another person
only if he or she believes the person being arrested committed a
felony or breach of the peace, and that the felony or breach of the
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peace was committed in the presence of that person making the
arrest.
An arrest is the taking of another person into custody under
an assertion of legal authority to do so and for the purpose of
bringing that person before a court or otherwise securing the
administration of law. An arrest may be accomplished by any act
that indicates an intention to take that person into custody and
that subjects the person to control of another. An arrest is
improper where it’s made without probable cause.
Probable cause means that the person making the arrest
believed at the time of the arrest, and a reasonable person under
the same circumstances would have also believed, that he or she
had sufficient information of both the facts and the applicable law
to reasonably believe that a crime had been or was being
committed and that the person arrested was guilty of committing
the crime.
If you find that Albert Einstein Medical Center’s personnel
had probable cause to arrest the plaintiff, the plaintiffs cannot
recover damages.
(Id. at 179-81).
On April 5, 2018, the jury began its deliberations and was provided with
a Verdict Sheet, which requested the jury answer “yes” or “no” to the following
pertinent interrogatories:
QUESTION 1:
Do you find that Defendant, Albert Einstein Medical Center,
committed assault against Plaintiff Keenan Lawson?
QUESTION 2:
Do you find that Defendant, Albert Einstein Medical Center,
committed battery against Plaintiff Keenan Lawson?
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QUESTION 3:
Do you find that Defendant Albert Einstein Medical Center[’s]
actions were justified as the defense of others?
If you Question 3 “Yes,” Plaintiff cannot recover and you
should not answer any further questions. Tell the court crier that
you have reached a verdict.
(Verdict Sheet, at 1-2). The Verdict Sheet did not ask the jury to decide if a
citizen’s arrest had occurred. (See id.).
On April 6, 2018, the jury returned a verdict in favor of Einstein, finding
that Einstein security guards did not commit an assault on Lawson during the
Second Interaction and that, although it committed a battery, it was justifiable
in the defense of others. (See id.).
The Lawsons filed a timely post-sentence motion for a new trial on the
basis that they were prejudiced by the erroneous non-standard jury
instruction on a citizen’s arrest that relied on the language of Corley, supra.
(See Plaintiffs’ Motion for Post-Trial Relief (Motion for a New Trial), 4/11/18).
They maintained that the citizen’s arrest instruction, as stated to the jury,
incorrectly used the word “crime” instead of “breach of the peace,” which
would allow anyone to arrest for any perceived crime, and included marijuana
when it should not have been that broad. They also argued that Corley
contradicted other Pennsylvania law. (See id. at Paragraph 7(g) and (h), and
Paragraph 10). The trial court denied the motion on May 30, 2018. On
October 3, 2018, the Lawsons filed a praecipe to enter judgment. They filed
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a timely appeal nunc pro tunc on February 19, 2019.2 Both they and the trial
court complied with Rule 1925. See Pa.R.A.P. 1925.
II.
A.
On appeal, the Lawsons contend that the trial court committed
reversible error when it gave a non-standard jury instruction to the jury
regarding when a “citizen’s arrest” was legal. They assert that by informing
them that a citizen’s arrest could be made for a felony or breach of the peace
committed in that person’s presence, “but then failing to explain the definition
of what constituted a ‘breach of the peace,’ the jury was erroneously misled
into believing that possession of marijuana[3] could have constituted breach
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2 The Lawsons filed an appeal of the trial court’s order denying their post-trial
motion that ultimately was quashed on September 7, 2018, because judgment
had not been entered. After filing their praecipe to enter judgment on October
3, 2018, the Lawsons filed a Petition to Appeal Nunc Pro Tunc in this Court on
October 9, 2018, which was unnecessary since it was filed within the 30-day
appeal period. This Court denied the motion on November 9, 2018, beyond
the 30-day appeal period without prejudice to the Lawsons seeking the relief
in the trial court. On November 19, 2018, the Lawsons filed a Petition to
Appeal Nunc Pro Tunc that the trial court granted on February 11, 2019,
finding the delay in filing an appeal was due to a breakdown in the court’s
operations and non-negligent happenstance.
3 The Lawsons claim the charge was in error because it “include[d] marijuana
when it should not have been that broad,” since marijuana possession is not
a breach of the peace justifying a citizen’s arrest. (The Lawsons’ Brief, at 11)
(emphasis omitted); (see id. at 15).
However, the Lawsons’ argument is belied by the record because marijuana
possession is not mentioned in the instruction provided to the jury. Although
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of the peace, which absolutely runs contrary to the law of this
Commonwealth.” (The Lawsons’ Brief, at 4) (emphases omitted).
The Lawsons maintain that an illegal citizen’s arrest occurred during the
First Interaction, i.e., when Einstein security guards asked Lawson to get out
of his car and secured it until the police arrived. (See id. at 5, 9, 11).4 They
argued that if the original detention was illegal, as testified by the Lawsons’
legal expert witness, the events subsequent to that, including the battery and
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a reference to marijuana possession was in a draft version of the jury
instruction, it was removed from the final version, following the Lawsons’
objection. (See N.T. Trial, 4/05/18, at 39); (see also Trial Ct. Op., 4/11/19,
at 7). Therefore, any challenge to the jury instruction based on the inclusion
of marijuana possession as a breach of the peace is simply not supported by
even a cursory reading of the record.
4 The Lawsons assume that based on the instruction, the jury thought a legal
citizen’s arrest had occurred during the First Interaction. Not only is the
Lawsons’ assumption speculative, it is just as possible that the jury did not
think there was a citizen’s arrest. The record reflects that Lawson testified
that upon arriving at Einstein and dropping off the gunshot victim, he
immediately was asked for his keys and to exit the vehicle, which he did,
walking away to make a phone call. Einstein presented testimony that,
although the Lawsons’ car was seized in order to preserve a crime scene due
to the presence of blood and the fact that he had just dropped off a gunshot
victim, he was not a suspect in the shooting and was free to leave. The officers
did not testify that they were arresting him for possession of marijuana or
anything else since, at the time of the First Interaction, they did not even
know he possessed them. The jury was free to believe all, some or none of
this testimony and find that Lawson was not under arrest. See Allegheny
Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 64 (Pa. Super.
2012), appeal denied, 69 A.3d 599 (Pa. 2013) (affirming because “fact finder,
was free to believe all, part of none of the evidence presented[.]”).
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any perceived "justification" for the battery, would not have otherwise
occurred but for the illegal detention.
In response, Einstein contends that a valid citizen’s arrest occurred
during the Second Interaction when the guards jumped on Lawson when he
went into his waistband to reach for a firearm. Einstein contends that the jury
charge was proper as accurately reflecting the law of the Commonwealth and,
even if it was not proper, it was harmless error.
We disagree with the Lawsons for the following reasons.
B.
Addressing those positions is difficult because they do not really address
what was necessary for the jury to find no liability on Einstein’s part. As stated
previously, a citizen’s arrest was introduced, not as a claim or defense, but as
an expert opinion that an illegal arrest occurred during the First Interaction
for which no claim was made. Einstein’s position that there was a valid
citizen’s arrest during the Second Interaction, where the purported injuries
occurred, was not raised as a defense to that interaction. It is not surprising,
then, that since no damages are claimed as a result of the First Interaction
(where the Lawsons claim the purported illegal citizen’s arrest occurred), and
Einstein did not raise citizen’s arrest as a defense to the Second Interaction,
that the Lawsons’ argument that the charge of citizen’s arrest, i.e., false
imprisonment or unlawful detention, is irrelevant as to whether they made out
their case that there was an unlawful assault by Einstein security guards in
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the Second Interaction. Moreover, even if a citizen’s arrest is not totally
irrelevant, the Lawsons have failed to make out their claim for the following
reasons.
First, even if properly pled, the only relevance of a citizen’s arrest would
have been if there were a claim of false imprisonment or illegal detention to
which a citizen’s arrest would have been a valid defense. The Lawsons brought
no such claims – only that Lawson was illegally assaulted. In answering that
question, the jury found that although Einstein security guards committed a
battery on Lawson, they were acting in justified defense of others when they
did so and, therefore, Einstein was not liable. Once that determination was
made, whether there was a citizen’s arrest was irrelevant, even if it had been
pled as a defense to a claim of false imprisonment or illegal detention. In fact,
the jury interrogatories asked nothing about a citizen’s arrest. The jury made
no finding about a citizen’s arrest.
Second, the Lawsons’ argument that “but for” the purported illegal
citizen’s arrest that they contend occurred during the First Interaction - when
he was asked him to get out of the car, he would not have been assaulted in
the Second Interaction, is nonsensical. It is the same as saying that if he had
not picked up the couple and gone to the hospital, he would not have been
assaulted. In other words, even assuming asking him to get out his car and
securing the vehicle was illegal, there is no legal cause and effect that the
First Interaction resulted in the Second Interaction in which he was assaulted.
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Third, even if a citizen’s arrest is somehow relevant, it was not made
out during the First Interaction. For there to be a citizen’s arrest, there has
to be an arrest – someone has to be taken into custody. Only when a person
is taken into custody do we then go on to determine whether the conduct
involved was a felony or breach of the peace. In this case, the testimony
supported that Lawson was never taken into custody. Corporal Sutton stated
that Lawson walked unhindered toward the parking lot with no restraint, and
that if he had just kept walking and had not reached into his pants where
there was a gun, he could have just kept going. In other words, they never
made a citizen’s arrest because they never intended or took him into custody
during the First Interaction. It was the Second Interaction that the jury found
constituted justifiable battery on the part of the Einstein Security guards.
Fourth, even if there was any evidence that Lawson was taken into
custody, the Lawsons’ argument that the trial court’s failure to “define[] what
constituted a breach of the peace” was reversible error that was “compounded
by the probable cause charge which, together, could have truly confused the
jury[,]” lacks merit. (The Lawsons’ Brief, at 17).5 They provide no evidence
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5 Even if this argument were not irrelevant, it would be waived for the
Lawsons’ failure to provide any law to support this claim to identify where in
the record they preserved this issue in the trial court and for not raising it in
their post-trial motion. (See the Lawsons’ Brief, at 17); see also Pa.R.A.P.
302(a); Pa.R.A.P. 2119(a)-(b), (e); Board of Supervisors of Williston
Township v. Main Line Gardens, Inc., 155 A.3d 39, 44 (Pa. 2017) (“If an
issue has not been raised in a post-trial motion, it is waived for appeal
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that the trial court’s failure to define breach of the peace confused the jury,
or that the probable cause instruction caused them to be perplexed about a
citizen’s arrest in any way. In fact, the record reflects that the jury asked
three questions about the jury charge, so they knew to ask questions if they
did not understand, and none of their questions involved breach of the peace.
(See N.T. Trial, 4/05/18, at 193 (jury question asking for definition of
assault); N.T. Trial, 4/06/18, at 3 (jury questions regarding how intent is
defined for assault and battery); N.T. Trial, 4/06/18, at 14-15 (jury question
requesting written copy of the assault and battery intent definitions)).
Moreover, contrary to the Lawsons’ argument, when reading the two
instructions together, the “crime” referred to in the probable cause instruction
logically was the “felony or breach of the peace” identified in the immediately
preceding citizen’s arrest charge. The Lawsons did not establish that the
charge as a whole was inadequate, unclear, misleading or confusing to justify
a new trial merely because the trial court did not include a specific definition
for breach of peace or because the instruction, when read with the probable
cause charge, was allegedly confusing. See Smith v. Morrison, 47 A.3d 131,
____________________________________________
purposes.”) (citation omitted); see also Newman Dev. Group of
Pottstown, LLC v. Genuardi’s Family Market, Inc., 98 A.3d 645, 648 n.16
(Pa. Super. 2014), appeal denied, 117 A.3d 1281 (Pa. 2015) (“A new
argument cannot be raised in support of an issue on appeal if it was not first
presented before the trial court.”) (citation omitted).
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134-35 (Pa. Super. 2012), appeal denied, 57 A.3d 71 (Pa. 2012) (citation
omitted).
Finally, even if the citizen’s arrest charge was somehow relevant,
misleading or erroneous (which we find it was not), it would be harmless error.
(N.T. Trial, 4/04/18, at 179-81); see Commonwealth v. Allshouse, 36 A.3d
163, 182 (Pa. 2012), cert. denied, 569 U.S. 972 (2013). In fact, whether the
instruction could have resulted in the jury panel finding that a citizen’s arrest
occurred and, thus, affected its justified battery verdict, is merely a
hypothetical question that we are precluded from reviewing where the jury did
not actually make such a finding. See Crystal Lake Camps v. Alford, 923
A.2d 482, 489 (Pa. Super. 2007) (“A court should not render advisory
decisions on hypothetical facts.”).
Accordingly, for all these reasons, even if properly before this Court, the
Lawsons’ arguments regarding the citizen’s arrest jury instruction would lack
merit. See Morrison, supra at 134-35. The Lawsons are due no relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/20
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