HomeMy WebLinkAboutCP-21-CR-1330-2004
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGES: (1) HARASSMENT (SUMMARY)
(2) SIMPLE ASSAULT
BEN T A TU CHIRIKADZI:
OTN: L195933-3
CP-21-CR-1330-2004
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., April 12, 2005.
In this criminal case, Defendant was found guilty following trial by a jury
of simple assault and by the court of summary harassment as a result of an
incident in which he attacked a woman with whom he was living. 1 On the charge
of simple assault, he was sentenced to pay the costs of prosecution and undergo
imprisonment in the Cumberland County Prison for a period of not less than three
months nor more than twenty-three months. 2
From the judgment of sentence, Defendant has filed a direct appeal to the
Pennsylvania Superior Court. 3 The bases for the appeal have been expressed in a
statement of matters complained of on appeal as follows:
1. The finding of guilt was based upon insufficient
evidence because the victim offered testimony which was
inconsistent with prior sworn testimony and thus lacked
credibility.
2. Denial of due process based upon the lack of a
stenographic record of the preliminary hearing such that the
inconsistencies of the victim's testimony could not be
demonstrated to the jury.
1 See Order of Court, November 2,2004.
2 Order of Court, December 7, 2004. On the charge of summary harassment, Defendant was
sentenced only to pay the costs of prosecution. Id.
3 Defendant's Notice of Appeal, filed March 15,2005. Defendant was permitted to file an appeal
nunc pro tunc following a hearing before this court on a petition under the Post Conviction Relief
Act. Order of Court, February 22,2005.
3. No medical records were subpoenaed or presented to
support bodily injury to the victim, as an element of proof of
defendant's guilt. 4
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925.
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, the
evidence is to be viewed "in the light most favorable to the Commonwealth" and
"all reasonable inferences in the Commonwealth's favor" are to be entertained.
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984)).
Viewed in this light, the evidence in this case may be summarized as
follows: On Wednesday, June 2, 2004, at about 1:45 a.m. the female victim
arrived home at an apartment in the Borough of Carlisle, Cumberland County,
Pennsylvania, which she shared with Defendant. 5 She had just finished a shift at
Roadway Express where she worked,6 and Defendant was asleep in his bedroom 7
after spending the evening at a bar. 8 The two-bedroom apartment reeked of
alcohol. 9
After about twenty minutes the victim went into Defendant's room and, as
she had done previously when he had been consuming alcohol, suggested that he
drink some water to minimize the effects of the alcohol. 10 After a minute,
4 Defendant's Concise Statement of Matters Complained of on Appeal, filed March 31, 2005.
5 Notes of Testimony, Trial, November 1-2,2004,21-22,24-25,35 (hereinafter NT ~.
6 NT 22.
7NT 41-42.
8 NT 22-23.
9 NT 24, 37,41.
10 NT 26.
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Defendant remembered that he was angry with the victim for embarrassing him
while he was at the bar by taking the keys to her automobile from him. 11
Defendant began shouting at the victim, called her a whore and a slut, and
ordered her out of the apartment. 12 The victim went into her bedroom to pack her
belongings, and Defendant went after her and attacked her. 13
Defendant pushed her onto her bed, held her arms immobile and, squatting
on top of her, proceeded to choke her three times while she screamed as loud as
she could for help.14 During the incident, Defendant variously used both hands to
throttle her, held a hand over her mouth to silence her, stuck his finger in her eye
as if to gouge it out, and told her three times, "Do you know what I can do to you
right now?,,15 The attack was described by the victim as frightening, traumatic,
and physically painful,16 and it left scratches17 and visible bruises. 18
With Defendant still on top of the victim, Carlisle Borough Police arrived
at the apartment door in response to a 2:00 a.m. call from a neighbor.19 They
could hear the victim's screams and, after failing to gain admittance after
knocking three times, broke the door down. 20 Defendant was arrested before he
could do her more serious injury?l
11 NT 26-27.
12 NT 27.
13 NT 28.
14 NT 28-30, 42.
15 NT 28-29.
16 NT 29-30, 45.
17 NT 32.
18 Commonwealth's Ex. 3.
19 30-31 57
, .
20 NT 30-31, 58.
21 NT 31, 59.
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Defendant's version of the incident was that he had had two beers at the
bar,22 that he had not been angry at the withdrawal of the car keys,23 and that the
victim had attacked him in the apartment when he refused to have sex with her. 24
He said that he regarded the victim as a whore and a slut, but had not referred to
her as such.25 Although he had attended the preliminary hearing in his case,26
Defendant did not testify at trial as to any inconsistencies between the victim's
trial testimony and her preliminary hearing testimony. 27
At the trial, the Commonwealth did not offer medical records of the victim
into evidence. This was not surprising inasmuch as the victim had not sought
medical treatment for her injuries?8
Prior to trial, at Defendant's preliminary hearing in the case, a stenographer
was not engaged by either side?9 Nor, apparently, did either the prosecution or
defense tape the preliminary hearing. 30 As a consequence, no transcript of the
preliminary hearing was available to either side for the trial.
DISCUSSION
Sufficiency of the evidence. In an evaluation of the sufficiency of the
evidence presented at trial, the proper test is "whether, viewing the evidence
admitted at trial in the light most favorable to the Commonwealth and drawing all
reasonable inferences in the Commonwealth's favor, there is sufficient evidence to
enable the trier of fact to find every element of the [crime] charged beyond a
reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d
22 NT 74, 86.
23 NT 79, 98.
24 NT 68-69, 87.
25 NT 73.
26 NT 7.
27 See generally NT 62-71.
28 NT 32.
29 See NT 32, Hearing on Defendant's PCRA petition, February 9, 2005.
30 See NT 10,33-34, Hearing on Defendant's PCRA petition, February 9,2005.
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1353, 1354 (1996) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96,
478 A.2d 1286, 1288 (1984)). The trier of fact is "free to believe all, part or none
of the evidence." Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d
1256, 1257 (1986).
The mere fact that a victim III the past may have made statements
inconsistent with his or her testimony at trial will not support a judgment of
acquittal based upon insufficiency of the evidence. See Commonwealth v.
Monroe, 281 Pa. Super. 328, 332, 422 A.2d 193, 195 (1980); Commonwealth v.
Boyle, 470 Pa. 343, 349, 368 A.2d 661, 664 (1977). Thus, in the present case,
even if there were evidence tending to show that the victim had given an
inconsistent prior statement with respect to the episode in question, it would not
warrant a vacation of the judgment of sentence due to insufficiency of the
evidence.
Absence of stenographic record of preliminary hearing as violation of due
process. With respect to the absence of a stenographic record of a preliminary
hearing at trial, the Pennsylvania Superior Court has stated that "[ w]e do not
believe . . . that the absence of notes of testimony from [a] preliminary hearing is a
per se denial of due process of law requiring a new trial." Commonwealth v.
Minifield, 225 Pa. Super. 149, 154, 310 A.2d 366, 369 (1973). In the present case,
Defendant, who was present at the preliminary hearing, did not bring to the jury's
attention during his testimony at trial any instance of inconsistency between the
victim's preliminary hearing testimony and her trial testimony,31 nor does the trial
record otherwise demonstrate that the availability of such a transcript would have
materially benefited his case.
Failure of Commonwealth to produce medical records of victim. It is well
settled that the offense of simple assault is not dependent upon receipt of medical
31 Cf Commonwealth v. Wischusen, 12 Pa. D. & C.3d 40, 46 (Delaware Co. 1979) (pointing out
testimony of witness to preliminary hearing as alternative to use of transcript for purposes of
impeachment of victim where transcript unavailable).
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treatment by the victim. Commonwealth v. Richardson, 431 Pa. Super. 496, 499,
636 A.2d 1195, 1196 (1994). For this reason, the Commonwealth's failure in the
instant case to present medical records of the victim where she sought no medical
treatment as a result of the incident did not render the evidence insufficient to
sustain the verdict.
For the foregoing reasons, it is believed that the judgment of sentence from
which Defendant has appealed was properly entered.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Nathan C. Wolf, Esq.
Suite 201
37 South Hanover Street
Attorney for Defendant
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