HomeMy WebLinkAboutCP-21-CR-1379-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. : CP-21-CR-1379-2008
:
: CHARGES: (2) HARASSMENT
:
:
RICKI C. CHISHOLM, JR., :
OTN: K443269-1 : AFFIANT: PTL. BRANDON JONES
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, J., December 22, 2008 –
Defendant, Ricki C. Chisholm, was found guilty of harassment on September 23, 2008.
Defendant now appeals on the following matter:
1.The court erred in granting restitution in the instant case. As the jury found the
defendant not guilty of simple assault, which includes the element of bodily injury,
granting restitution based on the court’s finding the defendant guilty of harassment
which does not contain the bodily injury element and then ordering restitution based
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on the victim’s bodily injury was in error.
Statement of the Facts
The victim, Jennifer Schlesinger, testified that on the evening of March 26, 2008,
Defendant Ricki Chisholm assaulted her in her apartment after an argument. Schlesinger and
Defendant’s sister, Colette Chisholm, had been paying for a cell phone for Defendant to use.
After the argument, Schlesinger attempted to get the cell phone back from Defendant at his
sister’s request. Schlesinger testified that upon her request for Defendant to return the cell phone,
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Defendant took her by the side of her head and slammed her to the floor. Schlesinger testified
that Defendant then punched her in the face, the force of which threw her to the floor. He then
1
See Concise Statement of Matters Complained of on Appeal, filed Nov. 12, 2008.
2
Notes of Testimony held September 22 and 23, 2008, p. 36 (hereinafter “N.T. ___”).
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grabbed her arms, stepped on her left foot, and threw her to the ground. Schlesinger says that
she heard her knee pop and that she experienced extreme pain in her lower leg from her knee to
her foot. The victim called the Defendant’s sister, Colette Chisholm who actually drove her to
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the emergency room.
The emergency room doctor, Dr. Gatrell, examined Schlesinger when she arrived at the
hospital on the evening of March 26, 2008. Dr. Gatrell confirmed that the victim had injuries to
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her face, knee, and ankle which were reportedly sustained through a domestic violence incident.
Schlesinger reported to Dr. Gatrell that she was punched in the face and thrown to the floor,
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which caused her leg to be twisted. The victim stated that she felt like her knee was giving way.
Schlesinger was examined by an orthopedic surgeon, Dr. Hely, on April 2, 2008 for
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injuries to her left leg. Dr. Hely testified that there was swelling in Schlesinger’s leg, that there
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was no fracture, but there were injuries to the muscles and ligaments from the foot to the knee.
Dr. Hely testified that Schlesinger reported to him during the examination that her foot was
stepped on while she was pushed backward, which caused extending of the foot and stretching of
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the knee. Dr. Hely said this resulted in tearing of the muscles and ligaments. In Dr. Hely’s
expert opinion, substantial force was required to cause this type of injury. He reported that severe
impact similar to the nature of football or soccer contact would be the type of force that would
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cause such injury.
3
N.T. 37.
4
N.T. 37-38.
5
N.T. 23.
6
N.T. 23-24.
7
N.T. 11-13.
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N.T. 13-14.
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N.T. 14.
10
N.T. 15.
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Schlesinger testified that she first asked for the police to be called when she arrived at the
hospital, but then said she felt pressured by Collette and Collette’s mother (who is also
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Defendant’s mother) not to report the incident to police.
Defendant now claims that he was with his mother while moving on March 26, 2008.
Defendant did not provide any indication of an alibi when he had the opportunity to do so when
he was arrested. He did not provide any information about his whereabouts at the time of the
incident when he was questioned by Officer Jones. Officer Jones testified that when asked if
there were any witnesses or anyone who could corroborate his whereabouts, Defendant simply
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shook his head. Defendant claims Officer Jones did not ask him for such information.
Defendant’s sister, Marcella Chisholm, testified that she was moving and that her mother
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and Defendant were helping her move on the date of the incident. However, she also testified
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that she was not there the entire day. Defendant’s mother, Shelby Stevens, testified that
Defendant was with her helping her pack in preparation for moving the entire week of
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March 26. However, she said that Defendant was not there all the time in the evenings.
Procedural History
Defendant was arrested on April 11, 2008, when he arrived at Schlesinger’s apartment to
pick up some of his belongings. Defendant was charged with simple assault and harassment.
The assault charge was tried to a jury, and the Court decided the summary harassment charge. In
the trial which concluded on September 23, 2008, the jury found Defendant not guilty on the
misdemeanor simple assault charge. This Court found beyond a reasonable doubt that the
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N.T. 41-42.
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N.T. 162-163.
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N.T. 126.
14
N.T. 126.
15
N.T. 120.
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N.T. 120-121.
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Commonwealth had proven the harassment charge, and accordingly found Defendant guilty on
the summary offense of harassment. At the sentencing hearing on October 14, 2008, this Court
ordered that Defendant pay restitution to the Pennsylvania Commission on Crime Delinquency in
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the amount of $3,725.23. This sum represented the medical expenses of the victim paid for by
the Crime Victims Compensation Assistance Program. Defendant now appeals based on the
awarding of restitution.
Discussion
For summary offenses, “the trial judge shall determine all questions of law and fact and
render a verdict which shall have the same force and effect as a verdict of a jury.”
Commonwealth v. Wharton, 594 A.2d 696, 699 (Pa. Super. 1991). In the present case, we
concluded that the victim’s testimony about Defendant’s punching her in the face and throwing
her to the ground was sufficient to support Defendant’s harassment conviction.
The Superior Court has consistently held that when a defendant is subject to a trial
involving charges to be decided by jury and summary offenses to be decided by the Court, a trial
judge’s conviction on summary offenses cannot be disturbed, even if the respective verdicts of
the jury and the trial court were inconsistent. Commonwealth v. Barger, 956 A.2d 458, 460 (Pa.
Super. 2008). In Barger, the Superior Court relied on its previous decisions in Commonwealth v.
Wharton, 594 A.2d 696 (Pa. Super. 1991) and Commonwealth v. Yachymiak, 505 A.2d 1024 (Pa.
Super. 1986). The Court confirmed that inconsistent verdicts are permissible in Pennsylvania.
Commonwealth v. Barger, 956 A.2d 458, 460-461 (Pa. Super. 2008). The Court reasoned that
“an acquittal cannot be interpreted as a specific finding in relation to some of the evidence
presented; an acquittal may represent the jury's exercise of its historic power of lenity; and a
contrary rule would abrogate the criminal procedural rules that empower a judge to determine all
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See Order of Court, Oct. 20, 2008.
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questions of law and fact as to summary offenses.” Barger at 461 (citing Wharton, 594 A.2d at
698-699 and Yachymiak, 505 A.2d at 1026-1027.)
Furthermore, the Pennsylvania Superior Court in Wharton clearly dismissed the trial
court’s reasoning in Commonwealth v. Bittinger, Somerset County, 25 Pa. D. & C.3d 627 (1982),
when the Bittinger Court ruled that "a criminal accused is protected against inconsistent findings
of essential facts by different fact-finders in a consolidated jury-nonjury trial of misdemeanor
and summary offenses arising from a single episode of conduct," (Wharton 594 A.2d at 698).
The Wharton court ruled instead that
It was for the trial court…to weigh the evidence and render a verdict on the
summary charges. That the court's verdict was not consistent with the jury's
verdict on the felony and misdemeanor charges is not an adequate basis for
granting relief, for, as the decision in Commonwealth v. Yachymiak instructs, in a
consolidated jury/nonjury trial, the trial court is not required to defer to the
findings of the jury on common factual issues. Instead, the trial court is free to
conclude, as it did in the instant case, that appellant was driving the vehicle at the
time of the accident and, therefore, was guilty of the summary offenses charged.
Wharton, 594 A.2d at 699. (emphasis added).
Regardless of the jury’s findings on the simple assault charge, we find the victim’s
testimony compelling and believe that she was injured when Defendant punched her and threw
her to the ground. As is often stated, the trier of fact, while passing upon the credibility of
witnesses and weight of the evidence produced is free to believe all, part or none of the evidence.
Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005). After hearing all of the
testimony, this Court simply did not believe the Defendant’s alibi defense for several reasons.
First, after observing the victim’s testimony, it is inconceivable that she totally fabricated the fact
that the Defendant caused her injuries to obtain some type of insurance coverage. The victim
even had the Defendant’s own sister drive her to the emergency room and immediately told both
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treating doctors that her injuries were the result of a domestic violence incident. Secondly, the
Defendant did not offer any information at the time of his arrest regarding his alibi and offered
no plausible explanation for failing to do so. Again it is inconceivable that a Defendant who was
actually in the presence of his mother and another sister at the very time that this criminal
incident was to have occurred would not have immediately produced this information to the
investigating police. Third, the Court was allowed to take into consideration that the
Defendant’s only alibi witnesses, his mother and sister, have a clear bias in favor of the
Defendant. It must be recalled that the mother was text messaging the victim at the emergency
room asking the victim not to call the police or to get her son in trouble. Finally, neither alibi
witness was absolutely positive of the times in which the Defendant was in their presence during
the supposed move. In short, the Defendant’s alibi was simply not believable.
Defendant now appeals on the basis that this Court erred when it awarded restitution for a
charge that does not include a bodily injury element. Restitution is justly awarded when the
victim suffered personal injury directly resulting from the crime. The relevant section of the
statute states:
(a) General rule.--
Upon conviction for any crime wherein property has been
stolen, converted or otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime, or wherein the victim suffered personal
injury directly resulting from the crime, the offender shall be sentenced to make
restitution in addition to the punishment prescribed therefore.
8 Pa.C.S.A. § 1106. (emphasis added).
In this case, this Court determined that the injuries to Schlesinger’s knee directly resulted
from the crime of harassment. The relevant portion of the harassment statute is:
(a) Offense defined.--
A person commits the crime of harassment when, with
intent to harass, annoy or alarm another, the person:
(1) strikes, shoves, kicks or otherwise subjects the other person to physical
contact, or attempts or threatens to do the same
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18 Pa.C.S.A. § 2709 (a)(1).
Physical contact is an element of harassment, even though there is no bodily injury
requirement. This Court sufficiently found that physical contact did result when Defendant
punched the victim and threw her to the ground, and concluded that her injuries were a direct
result of this contact. Awarding of restitution only requires that personal injury result directly
from the crime, and this Court determined that the victim’s injuries were a direct result of the
physical contact as part of the crime of harassment.
Conclusion
This Court properly found Defendant guilty of the summary offense of harassment. The
fact that this ruling is inconsistent with the jury’s verdict of not guilty for the simple assault
charge based on the same conduct is irrelevant. This Court found the victim’s testimony
compelling and Defendant’s alibi defense unconvincing. Furthermore, we properly concluded
that the victim suffered serious injuries to her leg as a result of the criminal physical contact
perpetrated by the Defendant when he committed the harassment offense. Restitution is properly
awarded when personal injury directly results from a crime, and in this case we determined the
victim’s injuries to be a direct result of physical contact perpetrated during the commission of the
crime of harassment. Therefore, this Court properly ordered Defendant to pay restitution.
By the Court,
M.L. Ebert, Jr. J.
Daniel J. Sodus, Esquire
Senior Assistant District Attorney
For the Commonwealth
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Michael Halkias, Esquire
Assistant Public Defender
For the Defendant
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