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HomeMy WebLinkAbout98-2334 criminalCOMMONWEALTH go TROY A. NENNINGER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · ' NO. 98-2334 CRIMINAL TERM IN RE' OPINION PURSUANT TO PA. R.A.P. 1925 Guido, J., March 27, 2000 On July 21, 1999, a jury convicted defendant of aggravated assault,~ simple assault2 and recklessly endangering another person.3 On August 31, 1999, we sentenced defendant on all of the charges. Defendant filed a timely postsentence motion, which we denied. This appeal followed. Pursuant to our request, defendant has filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa. Rule of Appellate Procedure 1925(b). He has indicated that he intends to raise the following allegations of error on appeal: 1) We refused to give his requested point for charge in connection with the count of aggravated assault. 2) We erred in denying his request for a "mutual affray" charge. 3) We erred in failing to sua sponte declare a mistrial as a result of the prosecutor's allegedly improper closing argument. We will discuss each issue in the opinion that follows. 1 18 Pa. C.S.A. § 2702(a)(1) and (4). 2 18 Pa. C.S.A. § 2701(a)(1)and (3). 3 18 Pa. C.S.A. § 2705. 98-2334 CRIMINAL FACTUAL BACKGROUND The incident giving rise to these charges occurred sometime after midnight on November 21, 1998. Trouble had been brewing for several months between the defendant and victim, Sean Espirim. On the fateful night, the defendant drank himself into an intoxicated stupor. He then proceeded to make several harassing phone calls to Espirim's home. Having obtained no satisfaction from the phone calls, he concealed a butcher knife under his shirt and went to Espirim's home to settle matters. The victim was at home with his girlfriend and several of their friends. The defendant continuously rang the doorbell and yelled for Espiritu to come out. Despite being told repeatedly to go home, the defendant continued his loud and obnoxious behavior. Espirim concealed a retractable baton4 in his back pocket and went outside to confront the defendant. Accompanied by a friend, Espirim encouraged the defendant to go home. They repeatedly requested that he "just go home." Defendant refused. Instead, he pulled out the butcher knife and took a swipe at Espirim and his friend. Espirim pulled out his baton5 and began backing up, yelling for someone to get help or to call the police. The friend immediately ran back to the house and called the police. In an attempt to stop his advance, Espirim hit the defendant several times in the head with his baton. However, the blows had no effect and the defendant kept coming with the knife. He lunged at Espirim, tackled him and stabbed him in the leg. At all times prior to the stabbing, defendant could have safely retreated from the confrontation. 4 This item is a martial arts weapon. 5 Prior to this time the defendant was not aware that Espirim had a baton, nor was Espirim aware that defendant had a knife. 98-2334 CRIMINAL Espirim bled profusely from his wound and eventually became unconscious from the loss of blood. He was taken by ambulance to a local emergency room. He was then flown by helicopter to a trauma unit which was better equipped to deal with his injuries. He very nearly died. DISCUSSION Refusal To Charge The Jury In Language Requested By The Defendant. At the conclusion of our charge to the jury, we invited counsel to side bar to discuss any additions or corrections. Defendant's counsel made the following request: MR. ROMINGER' I think they are free to infer intent from the harm caused, but they are also free to infer intent from harm caused. I'd like them to hear they are free to infer from the harm caused, there was intent but reciprocal. They don't have to infer that he intended serious bodily injury just because it happened.6 While we did not totally understand his request, we felt that we had adequately charged the jury in accordance with the law on aggravated assault. We have broad discretion in phrasing the charge and can choose our own wording so long as the law is accurately presented to the jury. Commonwealth v. Hawkins, 549 Pa. 352, 391,701 A.2d 492, 511 (1997) cert. denied, 523 U.S.1083, 118 S.Ct. 1535, 140 L. Ed 2d 685 (1998). Stated another way, we need not accept counsel's wording for an instruction, as long as the charge given correctly reflects the law...Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983). We are satisfied that our instructions to the jury did so. 6 Notes of Testimony, p. 515. 98-2334 CRIMINAL Failure To Charge Mutual Affray As A Lesser Included Offense. Defendant alleges that we erred in failing to give his requested charge in connection with simple assault entered into by mutual consent. A request for a charge of simple assault by mutual consent is "analogous to a request for an instruction on a lesser included offense." Commonwealth v. Coleman, 344 Pa. Super. 481,485,496 A.2d 1207, 1209 (1985). We must charge on a lesser included offense only if there is evidence in the record sufficient to justify such a charge. Commonwealth v. Lark, 548 Pa. 441,698 A.2d 43 (1997). In the instant case, neither party testified that he intended to enter into the fight. Both testified that they were trying to avoid a fight and acted only in self defense. Under the circumstances, we felt that a charge on simple assault by mutual consent was not justified by the evidence and would serve only to confuse the jury. However, even if we committed an error in refusing the requested charge, we feel that it was a harmless error. Failure to give a charge on a lesser included offense is harmless error if it does not prejudice the defendant, or its impact on the jury is minimal. Commonwealth v. Terry., 513 Pa. 381,521 A.2d 398 (1987). Any error that may have occurred would not have affected the more serious offenses of aggravated assault.7 Therefore, even if we erred in refusing the requested instruction, we fail to see how the defendant has been prejudiced. 7 While the crime of simple assault by mutual consent is not a lesser included offense of any crime, it can be considered "analogous" to a lesser included offense to the crime of simple assault. See Commonwealth v, Coleman, supra. It cannot be considered a lesser included offense of aggravated assault under Section 2702(a)(1) or (4) because mutual consent is not an element of either of those charges. See Commonwealth v. Ferrari, 406 Pa. Super. 12, 593 A.2d 846 (1991). Furthermore, one cannot agree to enter into a deadly struggle since there is a duty to retreat before using deadly force. 18 Pa. C.S.A. § 505(b)(2). 98-2334 CRIMINAL Improper Argument By Prosecutor. Defendant's final issue involves allegedly improper remarks made by the prosecutor in his closing argument. Although he failed to Object at trial, defendant's counsel now contends that certain portions of the prosecutor's closing remarks were so prejudicial that defendant is entitled to a new thai. We disagree for several reasons. In the first instance, defense counsel's failure to object to the alleged prosecutorial misconduct operates as a waiver of the issue. Commonwealth v. ~oins, 508 Pa. 270, 495 A.2d 527 (1985); Commonwealth v. Jones, 374 Pa. Super. 431,543 A.2d 548 (1988). Furthermore, we are far from convinced that the prosecutor's closing argument was improper. In his closing argument defense counsel argued 'that the prosecutor took the unusual step of responding to the crime scene in person with a team of his own investigators. He further intimated that the prosecution was trying to hide something because, at the prosecutor's direction, the state police lab did not conduct certain tests on the blood obtained from the crime scene. The prosecutor responded by arguing that he and his investigators went to the crime scene because they thought the case might very well be a homicide.8 He also argued that he was not trying to hide anything by pointing out that all of the blood evidence collected at the scene was made available to the defendant who could have performed tests upon it if he so desired. A prosecutor is entitled to "respond fully to defense arguments and those responses are to be evaluated in context." Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923, 931 (1999). A new trial will be granted "only if the unavoidable effect of the supposedly offending language would prejudice the jurors and form in their minds a fixed 8 He explained that it is standard procedure for the District Attorney's office to control the investigation in homicide cases. 98-2334 CRIMINAL bias and hostility toward the defendant such that they could not weigh the evidence and render a true verdict." Id. We are satisfied that all of the above arguments were a fair response to the arguments made by defense counsel. Even if the arguments exceeded the bounds of propriety, they were not so outrageous as to justify a new trial under the above standard. Finally, defendant argues that the prosecutor's remarks were such that we should have declared a mistrial sua sponte. However, this extraordinary relief may be granted "only for reasons of manifest necessity." Pa. Rule of Criminal Procedure 1118(b). If a mistrial is declared without the defendant's request or consent, the defendant cannot be retried unless the mistrial was based upon manifest necessity. Commonwealth v. Rivera, 715 A.2d 1136 (Pa. Super. 1999). Mere acquiescence in the court's declaration of a mistrial does not operate as a waiver of the defendant's double jeopardy claims. Id. As the Rivera Court stated: "[t]he determination of whether to declare a mistrial after jeopardy has attached is one of utmost importance since the defendant has a substantial interest in having his fate determined by the jury first impaneled." Commonwealth v. McCord, 700 A.2d 938, 943 (Pa. Super. 1997). There is no rigid role for determining whether manifest necessity for a mistrial existed; rather each case must "mm on the particular facts." Commonwealth v. Balog, 395 Pa. Super. 15'8, 576 A.2d 1092, 1095 (1990), quoting Commonwealth v. Bolden, 472 Pa. 602, 638, 373 A.2d 90, 107 (1977). 715 A.2d at 1138. Any doubt relative to the existence of manifest necessity will be resolved in favor of the defendant in determining whether retrial will violate his double jeopardy rights. Commonwealth v. McCord, 700 A.2d 938 (Pa. Super. 1997). In light of the law quoted above, it is quite disingenuous for defense counsel to argue that we should have declared a mistrial sua sponte. Had we done so, we are convinced that counsel would now be arguing that we violated his client's constitutional 98-2334 CRIMINAL fight against double jeopardy by declaring a mistrial that he did not request. This is especially tree in light of his final words to the jury in his closing argument: "Now, I'm going to rest and close my argument and I will promise you I will not interrupt Mr. Abom no matter what he says. Thank you ladies and gentleman of the jury.''9 Inasmuch as the prosecutor, Mr. Abom, had interrupted defense counsel at least four times with objections during his closing, the choice not to interrupt the prosecutor was, arguably, a valid trial tactic. We were not in a position to second guess that tactic at the time. MARCH O~7 ,2000 Edward E. Guido, J. Jaime Keating, Esquire For the Commonwealth Karl Rominger, Esquire For the Defendant 'sld 9 Trial Transcript, p. 460.