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HomeMy WebLinkAboutCP-21-CR-0001306-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1306-2008 V. : : CHARGE: 1. OFFICIAL OPPRESSION : AARON C. NIGRO : OTN: K386415-1 : AFFIANT: TPR. KIRK PERKINS IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., February 8, 2010 – Defendant was found guilty by jury on February 24, 2009. A final Order was entered on 1 April 28, 2009. Defendant now appeals on the following matters: 1. The Court erred by failing to find that Aaron Nigro, a duly appointed State Constable and a municipal police officer with all the training that that entails, had the legal authority to make an arrest for the suspected driving under the influence in this case and or the disorderly conduct that occurred thereafter. 2. The verdict was not supported by sufficient evidence in that it was not proven beyond a reasonable doubt that Aaron Nigro knew he was acting beyond his legal authority, if, in fact, he was so acting. 3. The Court erred by refusing the three jury instructions tendered by the Defense regarding Aaron Nigro’s authority to act as a State Constable and as an off duty municipal police officer. 4. The Court erred by allowing the Commonwealth, over Defense objection, to cross examine Aaron Nigro to suggest Aaron Nigro’s bad character, when Aaron Nigro did not place his character into evidence. Facts and Procedural History Defendant is 28-year-old Aaron Nigro. Defendant was appointed a state constable of 2 South Middleton in December 2005. On March 14, 2008, Defendant was involved in a motor vehicle accident with Duane Kough. At the time of the incident, Defendant was also a police 1 Concise Statement of the Errors Complained of on Appeal, filed Dec. 22, 2009. 2 N.T. 145-146. 3 officer for the Borough of Newville. Each party tells a different account of what exactly happened, but the only undisputed facts are these. Shortly after Kough pulled out of an intersection onto Route 641, a pickup truck driven by Defendant passed Kough on a double 4 yellow line. Kough continued driving behind Defendant until Defendant at some point, still on Route 641, applied his brakes and Kough hit Defendant from behind. Kough testified that Defendant’s truck was going eighty to ninety miles an hour when it 56 passed him and that he had to pull over into a parking lot of a restaurant to avoid getting hit. Kough tried to catch up with the vehicle to see its license plate so he could report it to State 7 Police. Kough hit the truck when the truck applied its brakes and stopped abruptly in front of 8 him. According to Kough’s testimony, Defendant then got out of his truck and asked Kough 9 “what the fuck [he] was doing.” Kough said that when he opened his door, Defendant grabbed 10 him and pulled him out of his truck. Defendant identified himself as a police officer but did 11 not give his name to Kough. Defendant asked Kough if he had any weapons, and Kough 12 turned over his pocket knife. Defendant asked Kough if he had been drinking, and Kough 13 testified that Defendant then shoved him over the side of the bed of the truck. Kough tried to get Defendant to agree to move the vehicles because it was a non-reportable accident, but Kough testified that Defendant then threw him over the bed of the truck a second time and then 3 N.T. 145. 4 N.T. 25. 5 N.T. 26. 6 N.T. 25. 7 N.T. 26. 8 N.T. 27-28. 9 N.T. 28. 10 N.T. 29. 11 N.T. 30. 12 N.T. 31. 13 N.T. 31. 2 14 handcuffed him. Kough testified that Defendant made him sit on the curb by pushing down on 15 his shoulder and then kicking his feet out from under him. Kough also testified that, in response to his questions to Defendant about whether he was on-duty as a police officer, Defendant replied that he had been a police officer in Pittsburgh for six years and that “…if I 16 would have met up with you in Pittsburgh, he said it would be ending differently for you.” Kough testified that Defendant then grabbed his gun, pulled it halfway up out of the holster, took 17 a step towards him and said “You’d be done.” Defendant tells a very different story of the incident. He says that he passed Kough 18 going about 40-45 miles an hour. He says that Kough then approached him from behind at a 19 high rate of speed and kept getting closer and backing off. He testified that Kough hit him 20 from behind as Defendant signaled to turn into the parking lot of Saylor’s Market. Defendant testified that as he opened his door after the incident, he heard Kough screaming and swearing at 21 him. He says he did not pull Kough out of his truck. Defendant said that he smelled alcohol on Kough’s breath. Defendant said he felt threatened by Kough. Defendant said that Kough was 22 combative and that he handcuffed Kough when Kough said he was going to leave. Defendant 23 testified that he did not recall making any derogatory comments to Kough. Defendant also testified that he did not have to force Kough to sit down on the curb and did not kick Kough’s 24 feet out from under him. 14 N.T. 32. 15 N.T. 33. 16 N.T. 35. 17 N.T. 35. 18 N.T. 144. 19 N.T. 144. 20 N.T. 145. 21 N.T. 149. 22 N.T. 152. 23 N.T. 163. 24 N.T. 153. 3 Trooper Perkins responded to the call in West Pennsboro Township for a non-reportable 25 incident between an off-duty police officer and a possible drunk driver. When he arrived at the 26 scene, he saw Duane Kough seated on a curb in the parking lot of Saylor’s Market. Chief Finkey of the Newville Borough Police Department was also on the scene. Perkins indicated in 27 the Affidavit of Probable Cause that Defendant was dressed in his state constable outfit. Defendant told Trooper Perkins that he was involved in an accident, that Defendant believed Kough was intoxicated, and that Defendant had placed Kough in custody because of a possible 28 arrest for Driving Under the Influence. DUI is a violation of the Motor Vehicle Code and 29 beyond the enforcement authority for state constables. Trooper Perkins administered a Preliminary Breath Test (PBT) to Kough and determined that he did not have a level of 30 intoxication that would support an arrest for DUI. Trooper Perkins testified that there was no 31 reason for Kough to be in custody. Perkins also noted in the affidavit that even though Defendant was at the time a Newville Borough Police Officer, the incident took place in West Pennsboro Township, not in Newville Borough, and that Defendant has no authority outside of Newville Borough nor does he have authority as a state constable to enforce the Pennsylvania 32 Vehicle Code. That night, Defendant was wearing a jacket with a “Pennsylvania State 33 Constable” patch on it. Trooper Perkins expressed disappointment to Defendant that 34 Defendant had placed Kough in custody. When Defendant suggested to Trooper Perkins that he could arrest Kough for disorderly conduct instead of DUI, Trooper Perkins told Defendant 25 Affidavit of Probable Cause, filed Apr. 3, 2008. 26 N.T. 106. 27 Affidavit of Probable Cause. 28 N.T. 110-111. 29 N.T. 99. 30 N.T. 111. 31 N.T. 111. 32 Affidavit of Probable Cause. 33 N.T. 147. 34 N.T. 113 4 that Defendant had created the disorderly conduct and it was not appropriate to arrest Kough for 3536 it. Trooper Perkins testified that Defendant then “apologized profusely.” Newville Borough’s Chief of Police, Randy Finkey, testified that State Police have jurisdiction on PA Route 641, and Newville Borough would have jurisdiction on Saylor’s Market 37 property. Chief Finkey testified that the two vehicles involved in the incident were still on 38 Route 641 where the incident occurred. Chief Finkey determined that because the incident occurred on Route 641, State Police had jurisdiction over the incident. Defendant filed an Omnibus Pretrial Motion on September 19, 2008 which included a Motion to Dismiss the Complaint and/or Quash the District Justice Return and/or for Writ of Habeas Corpus to establish a prima facie case, Motion to Renew Motion for a Bill of Particulars, Motion to Dismiss the Information for Vagueness, Motion to Remand the Case to District Justice for Preliminary Hearing, and Motion to Suppress Statements. A hearing was held on October 14, 2008 for Defendant’s Omnibus Pretrial Motions, all of which were denied. A jury trial was held on February 23-24, 2009. A jury found Defendant guilty of the charge of Official Oppression, and the Court found the Defendant not guilty on the summary offense of Careless Driving. Defendant now appeals the jury verdict. Discussion A. Defendant’s Authority as a Matter of Law Defendant continues to argue that the Court should have ruled as a matter of law that Defendant had the proper authority to place Kough in custody for a breach of the peace. As raised in his Pretrial Motion and in his Motion for Acquittal, Defendant argues that the 35 N.T. 113. 36 N.T. 214. 37 N.T. 83. 38 N.T. 85. 5 Commonwealth did not meet its burden to prove that Defendant knew his conduct was illegal. Defendant continues to frame this argument on the issue of whether Defendant had authority as a state constable, or as a Newville Police Officer, to place Kough in custody for breach of the peace and disorderly conduct. However, the issue is whether Defendant, under the particular facts and circumstances in this case knew his conduct was illegal. The facts of this case are unique in that a motor vehicle accident occurred between the parties and emotions were high, bordering on road rage. The issue was not whether constables or police generally have authority in certain situations, but whether in the facts unique to this case Defendant was abusing his authority and knew he was doing so. That is a question of fact for the jury and not a matter of law for the Court to decide. B. Jury Verdict Was Supported by the Evidence The law is well-established that a jury verdict will not be disturbed as long as there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Com. v. Bostick, 958 A.2d 543, 559- 560 (Pa.Super.2008) (citing Commonwealth v. Smith, 956 A.2d 1029, 1035-36 (Pa.Super.2008). Furthermore, the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Com. v. Ingram, 926 A.2d 470, 474 (Pa. Super. 2007) (citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001). The trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence. Id. The Commonwealth is entitled to the benefit of all reasonable inferences to be drawn from the evidence. Id. 6 The Pennsylvania Supreme Court has held that constables possess no authority to enforce motor vehicle laws because there is no statutory provision granting them such authority, nor can such authority be derived from the common law. Com. v. Roose, 710 A.2d 1129, 1130 (Pa. 1998). The jury heard testimony from Philip Intrieri, an instructor at Harrisburg Area 39 Community College (HACC) for constable training, that Defendant, as part of constable training, would have been instructed that they are to avoid enforcement of the Motor Vehicle 4041 Code. Defendant attended training conducted by Intrieri. Defendant identified himself as a 42 constable. The charge of Official Oppression is unique in that it requires the offender to know that his conduct was illegal. A person is guilty of Official Oppression when he is . . . [A]cting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal , he: (1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or (2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity. 18 Pa.C.S.A. § 5301. (emphasis added). Defendant has attempted to frame his argument on the premise that he did think his conduct as a constable was legal because he was arresting Kough for breach of the peace and disorderly conduct, which are both within a constable’s authority. Alternatively, he also claims 39 N.T. 203. 40 N.T. 210. 41 N.T. 147. 42 N.T. 151. 7 that because Saylor’s Market was within the Newville Borough jurisdiction, he did not know that he was illegally using his authority as a Newville police officer when he placed Kough in custody for behavior resulting from an incident that occurred on State Route 641, close to but not in Newville’s jurisdiction. The main point at issue is not the authority of a state constable or an off-duty police officer. The issue is whether Defendant’s behavior in placing Kough in custody was an abuse of his authority, not because he lacked authority to do so, but because he did so for reasons that were not for a legitimate law enforcement purpose. The jury had to decide as a question of fact whether Defendant was acting in his official capacity, or whether he was using his purported authority as a state constable or a police officer to intimidate Kough as a result of his anger caused by a driving incident. The jury listened to all the testimony and was free to weigh each witness’s testimony in making determinations of fact. The jury could have chosen to believe some witnesses and not others, and it clearly found that Defendant’s actions were not a result of Defendant’s belief that Kough was disorderly in any way or was breaching the peace. The jury could have believed a scenario where this was simply a case of “road rage” and Defendant decided to use the threat of his police or constable authority to intimidate Kough. The jury believed that Defendant knew that what he was doing was illegal and that he did not have legal grounds to place Kough in custody. B. Cross-Examination on Character Defendant claims that the Court erred by allowing the Commonwealth to cross-examine Defendant to reveal bad character when Defendant did not place his character into evidence. Defendant is referring to the Court’s allowing the Commonwealth to question Defendant as to 8 43 why he left his position as a police officer in Stowe Township in Allegheny County. At side bar, the District Attorney indicated that on Defendant’s application to the Newville Police Department, when asked if there were any reasons that would prevent him from being a police 44 officer, Defendant answered “open for discussion.” The Court allowed the District Attorney to make limited inquiry into the matter. The record reflects the following exchange: Q: Sir, I’ve handed you what’s been marked as Commonwealth’s Exhibit No. 1. Now, before I ask you about that, I’m going to ask you a question - - my question that I had just asked you. Why did that employment end when you were employed as a police officer in Allegheny County? A: I resigned from the position. Q: You resigned? 45 A: I have a letter of council accepting my resignation. There is certainly nothing in this exchange which prejudiced the Defendant. The District Attorney then went on to question the Defendant regarding his application for hire as a Police Officer in Newville Borough. The following exchange occurred: Q: There’s a question on your application asked by the Borough of Newville before they hired you at the top of that page. Go ahead and read that for the jury. A: Have you ever been discharged, asked to resign, furloughed, or put on inactive status for cause or subject to disciplinary action while in any position except military. If yes, state reason. Q: What did you write there? A: Open for discussion. Q: Open for discussion? A: Yes. 43 N.T. 164-165. 44 N.T. 165-166. 45 N.T. 168-169. 9 Q: Go ahead and read Question No. 22 that the Borough of Newville asked you about your qualifications to be a police officer? A: Are there any incidents in your life not mentioned herein which may reflect upon your suitability to perform the duties which you may be called upon to take or which might require further explanation. If yes, give details. Q: What did you tell the Borough of Newville when you Answered that question? 46 A: Open for discussion. The Defendant could not remember when he was hired and after another side bar the Defendant finally stated that he was hired by the Newville Borough Council as a Police Officer on June 5, 47 2007. Again, no specific bad acts were placed before the jury which in any way prejudiced the Defendant. Clearly this evidence shows that the Newville Borough Council was satisfied that the Defendant was a fit person to be a Police Officer. A fair reading of this entire section of the transcript shows that the District Attorney was concentrating on how the Defendant had been trained for legitimate police work. Although Defendant claims that the Commonwealth questioned him on this point to introduce prior bad acts, Defendant’s own attorney did not know what was meant by the answer “open for discussion.” No bad acts or any other negative character traits were argued in the Commonwealth’s closing. The questioning by the Commonwealth which went no further than eliciting the answer by the Defendant “open for discussion” did not reveal any prior bad acts or negative character. C. Denial of Proposed Jury Instructions Defendant appeals based on this Court’s denial of his proposed jury instructions. A charge is considered adequate unless the jury was misled or unless there is an omission which 46 N.T. 172. 47 N.T. 177 10 constitutes fundamental error. Com. v. Brown, 911 A.2d 576, 583 (Pa. Super. 2006) (citing Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). The trial court has wide discretion in fashioning jury instructions. Id. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal. Id. In this case, the Court gave the standard jury instruction for official oppression, which properly included all of the elements of the offense. Defendant’s proposed instructions dealing with authority of constables and police officers was unnecessary because the key issue for the jury was whether or not Defendant knew what he was doing was illegal. Conclusion This case is not about constable or police authority. Instead, it is about whether Defendant knew he was not acting in an official capacity when he placed Kough in custody for what he claims to have believed was a breach of the peace and disorderly conduct. He was the one who passed Kough on Route 641 and offered no testimony that he ever suspected that Kough was doing anything out of the ordinary. It was only after he was involved in an accident with Kough that he decided to use his constable or police authority to place Kough in custody. The jury listened to all of the testimony and decided that Defendant could not have believed that he had a legal purpose for detaining Kough, therefore Defendant knew that his conduct was illegal. The Court at no time could have found that Kough had the authority as a matter of law, because the case was a matter of fact for the jury to determine whether he knew what he was doing was 11 illegal based on the specific facts and circumstances of this case. The jury instructions properly reflected the jury’s role in determining Defendant’s state of mind, not the authority of constables or police officers. By the Court, ________________________________ M. L. Ebert, Jr., J. Taylor P. Andrews, Esquire Public Defender Michelle Sibert, Esquire Chief Deputy District Attorney 12