Loading...
HomeMy WebLinkAbout94-1267 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 94-1267 CRIMINAL TERM : CHARGES: (B) SIMPLE ASSAULT : (C) UNLAWFUL RESTRAINT JOHN R. KING : OTN: E957195-1 : AFFIANT: PTL. JAMES FRENCH IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., July 11, 1995 In this criminal case Defendant has appealed to the Superior Court from a judgment of sentence imposed by the writer of this Opinion on charges of simple assault and unlawful restraint. The bases of the appeal are (1) that "[t]he evidence was not sufficient to support the [jury's] finding of guilt" and (2) that "[t]he Court erred in allowing photographs of the victim into evidence which, at least in part, dramatized prior injuries.-~ This Opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As a result of events occurring in the Borough of Shippensburg, Cumberland County, Pennsylvania, on Wednesday, June 29, 1994, Defendant was charged with aggravated assault,2 simple assault3 and unlawful restraint.4 A jury trial was held on the ~ Defendant's Concise Statement of Matters Complained of on Appeal, filed June 16, 1995. 2 Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S. ~2702(a) (1) (1995 Supp.). 3 Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. ~2701(a) (1), 2701(a)(3). 4 Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S. ~2902. NO. 94-1267 CRIMINAL TERM matter on March 14, 15 and 16, 1995. The jury found Defendant not guilty of aggravated assault, and guilty of simple assault and unlawful restraint. On Tuesday, May 4, 1995, the Court sentenced Defendant on the simple assault charge to a period of 23 months probation. It sentenced him on the charge of unlawful restraint to a term of imprisonment in the county prison of not less than eight months nor more than 23 months.5 On Wednesday, May 31, 1995, the Court modified the sentence as to unlawful restraint by reducing the minimum portion of the sentence to five-and-a-half months, due to a prior-record-score error in the original presentence investigation report.6 Evidence adduced at trial on behalf of the Commonwealth included testimony of the alleged victim of the offenses, several bystanders, an emergency medical services technician who responded to the scene, and a police officer who was dispatched to the scene. The alleged victim, Linda M. Poulin, testified that on the occasion in question, at a residence in Shippensburg which she shared with 5 Order of Court, May 4, 1995. 6 It is assumed that Defendant intended to appeal from the modified judgment of sentence issued May 31, 1995, rather than the judgment of sentence dated May 4, 1995. 2 NO. 94-1267 CRIMINAL TERM Defendant, Defendant asked her where their children were and, when she did not respond, poked her in the nose. Defendant thereafter, according to her testimony, variously dragged her upstairs, choked her twice, beat her and kept her in a bedroom. During one of the episodes of choking, she stated, she began to black out. She said that she thought she was going to die. Ms. Poulin testified that she was struck all over, was in "a lot of pain," and was taken to a hospital following her injuries. Pictures of Ms. Poulin revealed a badly bruised woman.7 With the exception of a finger which had been in a'splint at the time, she stated, all of the injuries depicted in the photographs were the result of the beating inflicted by the Defendant on this occasion. In addition, the splint itself was bent in the attack, she said. Ms. Poulin further testified that she did not have any visible injuries to her face and neck before the incident. Dorothy Ann Wise, an acquaintance of both the victim and Defendant, who was on the premises, testified that she saw Defendant poke Ms. Poulin in the face, and pull her upstairs. She stated that when Ms. Poulin came downstairs, she was red, bruised, scratched and crying. Ms. Wise's husband, according to Ms. Wise, went for the police. Ms. Wise identified the bruises from the incident being as depicted in the photographs. She also testified 7 Commonwealth's Exhibits 2-8, Trial, Commonwealth v. King, No. 94-1267 Criminal Term (Cumberland County). 3 NO. 94-1267 CRIMINAL TERM that prior to the incident she did not observe any bruises or marks on Ms. Poulin. Christine Bricker, another acquaintance of the victim and Defendant who happened to be on the premises, testified that she was upstairs cleaning at the time. She stated that she saw Defendant drag Ms. Poulin by the arm upstairs, choke her on the landing, drag her out of sight, and subsequently go downstairs. As a result of this attack, according to Ms. Bricker's testimony, Ms. Poulin was red, bruised and crying. Shortly thereafter, she stated, Defendant returned to the residence and carried Ms. Poulin upstairs again, as Ms. Poulin tried to resist by grabbing the bannister. The witness then heard a door slam upstairs, she said. Ms. Bricker also testified that prior to the incident Ms. Poulin's eyes were not black and that she did not have any marks on her face. Susan Boldosser, an emergency medical technician who responded to the scene, found the victim in the kitchen of the premises, according to her testimony. She stated that Ms. Poulin was upset, shaking, red and bruised. She testified as to blood on the victim's lip, contusions and abrasions. She said that the injuries shown in the photographs were what she had seen. Finally, Mid-Cumberland Valley Police Officer James French stated that he arrived on the scene within a minute of receiving the dispatch and that he saw no injuries on the Defendant. He 4 NO. 94-1267 CRIMINAL TERM stated that the photographs of the victim were taken by an ambulance attendant and that they depicted the injuries which he saw on Ms. Poulin. Defendant, for his part, contended in testimony that he was the real victim in the incident. He stated that Ms. Poulin had actually incurred her bruises previously in an incident in New York when someone named Brian beat her, that on the instant occasion Ms. Poulin slapped and kicked Defendant because he was leaving her, and that he had not punched her, swung at her or even raised his voice. He also attributed some of the marks on the victim to "suck marks" from sex, and maintained that she had fallen on her face. With regard to admissibility of the photographs, Defendant's counsel interposed the following objection: [T]here's been no witness presented by the Commonwealth that can distinguish between the old injuries demonstrated on those pictures and the injuries that may or are alleged to have been caused by Mr. King. Therefore, the nature of showing both injuries, the ones that may have occurred the week before and the ones that may have occurred in this particular incident makes those pictures not relevant and inflammatory.8 The Court overruled the objection and admitted the photographs into evidence. 8 N.T. 141, Hearing, March 14-16, 1995, Commonwealth v. King, No. 94-2239 Criminal Term. 5 NO. 94-1267 CRIMINAL TERM APPLICATION OF THE LAW Sufficiency of the evidence. Initially, it may be doubted whether a general assertion that "[t]he evidence was not sufficient to support the [jury's] finding of guilty" is precise enough to elicit judicial review of a sufficiency-of-the-evidence claim. Cf. Commonwealth v. Holmes, 315 Pa. Super. 256, 266, 461A.2d 1268, 1270 (1983) (holding general assertion of insufficiency of evidence inadequate for purposes of post-verdict motion). Nevertheless, the issue will be addressed herein on the merits. When reviewing a challenge to the sufficiency of the evidence, a court is to determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.9 It is within the province of the factfinder to determine the weight to be given to each witness's testimony and to believe all, part, or none of the evidence.~° Section 2701(a) of the Crimes Code provides, in pertinent part, that a person is guilty of simple assault if he: 9 Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2, (1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991). ~o Id. 6 NO. 94-1267 CRIMINAL TERM (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; [or] (3) attempts by physical menace to put another in fear of imminent serous bodily injury. ~ With regard to unlawful restraint, Section 2902 of the Code provides, in pertinent part: A person commits a misdemeanor of the first degree if he knowingly: ( 1 ) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; .... ~2 "Bodily injury" means "[i]mpairment of physical condition or substantial pain.''~3 "Serious bodily injury" means "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.''~4 In the present case, with respect to the charge of simple assault, it is believed that the evidence of Defendant's conduct in ~ Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S. ~2701. ~2 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. 2902. ~3 Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. §2301. ~ Id. NO. 94-1267 CRIMINAL TERM beating, bruising and choking the victim to the point that she suffered "a lot of pain," started to black out, and believed she was going to die permitted a finding of guilt by the jury on any of the several forms of simple assault upon which it was instructed. Similarly, with respect to the charge of unlawful restraint, the evidence of Defendant's actions in twice forcing the victim to the second floor of the dwelling, confining her in a bedroom and beating and choking her as aforesaid would seem to fully support the jury's verdict of guilty of the crime of unlawful detention as defined above. Admissibility of photoqraphs. "The modern system of [e]vidence rests upon two axioms: ... (1) None but facts having rational probative value are admissible ... [and] (2) All facts having rational probative value are admissible, unless some specific rule forbids." 1 Wigmore, Evidence ~S9-10, at 289-93 (3d ed. 1940). A fact having rational probative value is one which "reasonably tend[s] to prove or disprove a fact in issue or a fact relevant to the issue .... " Jenkins, Pennsylvania Trial Evidence Handbook S4.1, at 71-72 (1974). Stated concisely, "[e]vidence which tends to establish some fact material to the case, or which tends to make a fact at issue more or less probable, is relevant." Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978), appeal after remand, 496 Pa. 188, 436 A.2d 607 (1981); see Packel & Poulin, Pennsylvania Evidence §401 (1987). 8 NO. 94-1267 CRIMINAL TERM The question of admissibility of photographs "is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error.-~s Admissibility of photographs challenged as inflammatory is based on a two-tier analysis: The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not the photographs are admissible as are any evidentiary items, subject to qualifications of relevance. If photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors.~6 To be inflammatory, "the depiction must be of such a gruesome nature or be cast in such an unfair light that it would tend to cloud an objective assessment of the guilt or innocence of the defendant."~7 In the present case, to the extent that Defendant's challenge to the admission of the photographs in question is based on relevancy - and an underlying premise that the pictures depict injuries suffered in some incident different from that to which Commonwealth witnesses said they related - it is believed that the ~ Commonwealth v. Dotter, 403 Pa. Super. 507, 512, 589 A.2d 726, 729 (1991). ~ Id. ~ Id. NO. 94-1267 CRIMINAL TERM challenge is not legally compelling. If the admissibility of exhibits were subject to a judge's determination of the credibility of witnesses identifying them, the role of the jury as factfinder would be severely undermined. According to Commonwealth witnesses, the conditions shown in the photographs, not excluding the splint on a previously injured finger, pertained to the incident for which Defendant was being prosecuted. In revealing the alleged effects of the beating charged to Defendant, the photographs tended to make more likely the occurrence of events suggested by the Commonwealth, and in this sense met the test for relevancy recited above. To the extent that Defendant's challenge to the admission of the photographs is based on their allegedly inflammatory nature, the Court is of the view that the pictures, which show the upper body of a clothed woman, bruised but without open wounds or discernible blood, were not of a nature which would inflame the jury - a jury which, it will be remembered, found Defendant not guilty of the most serious charge against him. Should it be determined that the photographs were of an inflammatory nature, it is believed that in this case, where the occurrence and extent of injuries to the alleged victim were at issue, the value of pictorial evidence on the subject greatly outweighed the risk of a juror's being unfairly affected by the sight of bruises. 10 NO. 94-1267 CRIMINAL TERM CONCLUSION Based upon the foregoing, the jury's verdicts of guilty of simple assault and unlawful restraint seem to this Court to have been supported by sufficient evidence. In addition, the relevance, and non-inflammatory nature, of the photographs depicting injuries allegedly caused by Defendant led the Court to deem them admissible as indicated above. William I. Gabig, Esq. Sr. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender .rc 11