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HomeMy WebLinkAbout01-1625 CRIMINALCOMMONWEALTH AMERICO TORRES RIVERA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1625 CRIMINAL TERM CHARGE: APPEAL FROM SUMMARY: HARASSMENT AFFIANT: TPR. JEFFREY STINE IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., January ,2002. In this summary offense case, a defendant who is an inmate at a state correctional institution has appealed from a judgment of sentence for harassment. The sentence consisted of a fine of $150.00. In a statement of matters complained of on appeal, Defendant has expressed the grounds for the appeal as follows: 1.) The Trial Judge, Oler, Jr. Abused his discretion when he denied Appellant's Request For an Continuance, such denied Appellant Adequate time to examine the Police Report that the Commonwealth turned over to Appellant a few minutes After the trial started, 2.) The Trial Court Abused its discretion when it denied Appellants Request for an Expert Witness.~ The Expert witness could of have testified about the impossibility of Appellants cell door or any other cell door being able to open by kicking or lifting up on them, Such testimony would have exculpate freed Appellant of Such Charge (false Allegation.) the denial of an expert witness denied Appellant due process of law and equal Protection as guaranteed to him by the United States and pennsylvania constitutions more Specifically, could of prove the truth in this case, the defendants case came down to credibility The Expert witness was a critical witness in this case. Therefore the trial court Abused its discretion in denying such witness. ~ in Ake v. Oklahoma 470 U.S. 68. 105 S.Ct. 1087 (1985) the court Ruled that due process required the State to provide funds for expert witness. [Footnote in statement of matters complained of on appeal] The Evidence was insufficient to warrant to the Guilty Finding. The Commonwealth's Exhibit the Medical incident/injury Report states that Michael Scott had no injuries Appellant testified that it was him who was assaulted that he never punched Mr. Scott. A officer is not entitled to any more credibility or believability than the defendant. The commonwealth of Pennsylvania, has the burden and before there may be a verdict of guilt, the commonwealth is required to prove the guilt of the defendant beyond a reasonable doubt. if a Reasonable Jury Find that two conclusions can be equally drawn from the evidence, one tending to establish guilt and the other tending to establish innocence of the crimes charged, it is its duty to accept the conclusions of innocence and acquit the defendant. Commonwealth v. Goodman. Pa. 350 A.2d 810 (1976). Commonwealth v. Hubbard 372 A.2d 687 (1977)1 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS General background. This case arises out of an incident on March 20, 2000, at the Camp Hill State Correctional Institution in Camp Hill, Lower Allen Township, Cumberland County, Pennsylvania, where Defendant was an inmate, on.2 As a result of the incident, Defendant was cited by Pennsylvania State Trooper Jeffrey Stine for summary harassment.3 The citation charged that Defendant had punched Michael Scott, a corrections officer, in the chest on the occasion in question.4 ~ Defendant's Statement of Matters Complained of on Appeal, filed October 4, 2001. Defendant's statement of matters complained of on appeal (filed October 4, 2001) was actually filed prior to the effective filing of his notice of appeal (filed October 15, 2001). Both filings were within 30 days of the judgment of sentence, which occurred on October 2, 2001. : N.T. 8-9, Trial, October 2, 2001 (hereinafter N.T. ~; see Non-Traffic Citation Q0075858-6, issued June 19, 2001, District Justice Transcript. ~ N.T. 30; see Non-Traffic Citation Q0075858-6, issued June 19, 2001, District Justice Transcript. 4 Non-Traffic Citation Q0075858-6, issued June 19, 2001, District Justice Transcript. 2 Following a trial before the Honorable Charles A. Clement, Jr., District Justice, Defendant was found guilty and sentenced to pay a fine of $150.00) On July 30, 2001, in response to Defendant's application to appeal from the conviction to this court in forma pauperis, an order was entered permitting him to file the appeal without payment of the customary filing fee.6 Defendant's appeal was filed on August 1,2001. Prior to the de novo summary trial before this court, Defendant submitted numerous requests and motions. These included a letter to the court requesting the appointment of counsel,7 a motion to compel discovery,8 a motion for appointment of an expert witness,9 a petition for writ of habeas corpus ad testificandum/ad prosequendum,~° a request to defer the de novo trial beyond September 20, 2001, and a request that he be housed at the Cumberland County Prison for the trial.~ (With respect to the request for appointment of counsel, the request was denied upon the court's determination that there was not a likelihood of imprisonment in the event of a conviction.~2 This action effectively limited the consequence of any conviction of Defendant to a fine.) At the trial on October 2, 2001, Defendant complained that a 19-minute recess granted at the outset for purposes of his review of a police report pertaining 5 Certification of Disposition, July 13, 2001, District Justice Transcript. Defendant was found guilty by the district justice and sentenced on July 13, 2001. Id. 6 Order of Court, July 30, 2001. v See Order of Court, August 10, 2001. 8 Defendant's Motion To Compel Discovery, filed August 15, 2001. 9 Defendant's Motion For an Court Appointed expert Witness, filed August 15, 2001. l0 Defendant's Petition for Writ of Habeas corpus Ad Testificandum/Ad Prosequendum, filed September 20, 2001. ~ Defendant's Request To have The De Novo Trial helded sometime After September 20, 2001, And Request To be helded at The Cumberland County Prison, filed September 6, 2001. ~2 Order of Court, August 10, 2001. 3 to the case had been unreasonably brief.~3 At a subsequent point in the trial he made a request for a continuance on this basis.TM During the course of the trial, Defendant's reaction to an invitation by the court to cross-examine the victim was that "there [is] no reason to proceed. It's bullshit.''~5 An admonition by the court that he temper his language elicited no response from Defendant.~6 When he was again asked whether he had any questions of the witness, his reply was: "Fuck that witness. He's a fuckin liar.''17 Motion for appointment of expert witness. As noted, among the pretrial requests and motions submitted by Defendant was a motion for appointment of an expert witness. The motion was premised upon a statement in the citation that Defendant had removed himself from his cell prior to the incident and Defendant's need, as a result of this assertion, for an expert witness in the person of a locksmith.~8 In response to the motion, the court issued a rule upon the Commonwealth to show cause why the relief requested should not be granted.~9 The Commonwealth's answer expressed its disinclination to facilitate a state prisoner's understanding of the operation of cell door locks.2° By order of court dated September 17, 2001, Defendant's motion for appointment of an expert witness was denied.2~ ~3 N.T. 6-7. ~4 N.T. 12-15. 15 N.T. 11. ~6 N.T. 11. ~7 N.T. 11. The court was constrained at this point to hold Defendant in contempt, and he was sanctioned with a $50.00 fine. N.T. 11-12. The trial proceeded thereafter without incident. ~8 Defendant's Motion For an Court Appointed expert Witness, filed August 15, 2001. ~9 Order of Court, August 17, 2001. 20 Commonwealth's Answer to Defendant's Request for Appointment of an Expert, filed September 12, 2001. 2~ Order of Court, September 17, 2001. 4 Request for continuance of trial. As noted, among the pretrial requests and motions submitted by Defendant was a motion to compel discovery.22 Specifically requested by Defendant were "copies of any reports, notes or memoranda prepared in the course of the investigation of this matter obtained From the Department of corrections''23 and "Disclosure of 'all work orders submitted by F-Block/SMU officers requesting repair of cell doors, also any memorandums/reports completed by maintenance worker Mr. Larry Long. After Such Repairs, Also a picture of a cell door when it off its track.''24 The motion noted that such materials "may be Favorable and/or exculpatory in nature.''25 In response to the motion, the court issued a Rule upon the Commonwealth to show cause why the relief requested should not be granted.26 The Commonwealth's answer indicated a willingness to furnish a copy of the police report to Defendant, but opposed additional compulsory disclosure.27 The court issued the following order with respect to Defendant's Motion To Compel Discovery: AND NOW, this 17th day of September, 2001, upon consideration of Defendant's Motion To Compel Discovery, and of the Commonwealth's Answer to the Defendant's Motion for Discovery, the motion is granted to the extent that the Commonwealth is directed to furnish Defendant with a copy of the police report in this case and any items of mandatory discovery under Pennsylvania Rule of Criminal Procedure 573(B)(1), and is denied in all other respects.2a :: Defendant's Motion To Compel Discovery, filed August 15,2001. :Sld. paragraph 1. :4 Id. paragraph 2. :6 Order of Court, August 17, 2001. :7 Commonwealth's Answer to the Defendant's Motion for Discovery, filed September 12, 2001. :8 Order of Court, September 17, 2001. Pennsylvania Rule of Criminal Procedure 517(B)(1) enumerates certain types of particularly critical evidence, such as evidence favorable to the accused, which must, in court cases, be disclosed to the defendant upon request. The court's order extended this right to Defendant in his summary case. 5 At the commencement of the de novo trial, Defendant complained that he had not received the promised police report or any other discovery materials.29 The chief deputy district attorney who was prosecuting the case indicated that he had sent the police report to Defendant at the State Correctional Institution at Pittsburgh where he was being regularly housed, but that it had perhaps not been received because Defendant had been temporarily transferred to a county prison for a Post-Conviction Relief Act hearing.3° The court then directed that any materials, such as the police report, which had been ordered disclosed to Defendant be again furnished to him and recessed for the purpose of permitting him to review the material.3~ At the conclusion of a 19-minute recess, the court reconvened.32 Defendant stated that it had not been his fault that he had recently been away from the Pittsburgh facility, that the court had not afforded him sufficient time to review the materials provided, and that the materials did not include work orders.33 He did not, however, at that point expressly request a continuance.34 Following the testimony on direct examination of the victim in the case, Defendant engaged in the outbursts referred to previously. Thereafter, when asked whether he wished to go forward with the trial, he engaged in the following exchange: MR. RIVERA: I request a continuance. THE COURT: On what ground? MR. RIVERA: On the grounds that I'm not ready to go through this trial. 29 N.T. 4-5. 3o N.T. 3-5. 3~ N.T. 6. 32 N.T. 6. 33 N.T. 6-8. 34 N.T. 7-8. Defendant's request that copies of "work orders" be immediately obtained from the State Correctional Facility at Camp Hill and turned over to him was denied. N.T. 8. 6 THE COURT: Mr. Keating. MR. KEATING: Your Honor, regardless of whether he's had a copy of the [police] report or not, he was present at the previous hearing before the district justice, and he's heard the testimony of this witness before that district justice, so he's had adequate time to prepare for this hearing. He's already gone through this hearing once before. So I'd argue that even if he hadn't received the police report, he has had enough-- MR. RIVERA: Excuse me. MR. KEATING: If I could finish my statement. He has had enough information on the Commonwealth's theory of the case to be prepared for today's summary harassment trial.35 When asked by the court what it was in the police report that he had not been prepared for, the following exchange occurred: MR. RIVERA: You know, I can't--I just read through this, you know what I'm saying. If there's inconsistencies here, if there's other--unconflicting documents here, you know what I'm saying. I haven't had time to read this. THE COURT: Specifically, what conflict are you referring to? MR. RIVERA: Conflicts to this officer, the Michael Scott, the victim's statements with other--what other alleged witnesses' statements in here, you know. I couldn't prepare to call for other witnesses because I didn't know who, you know what I'm saying, was all involved in this matter right here.36 The court ultimately denied Defendant's mid-trial request for a continuance.37 Defendant proceeded to cross-examine the Commonwealth's witness, and thereafter presented evidence on his own behalf.38 Sufficiency of the evidence. In the present case, the Commonwealth's case consisted primarily of the testimony of the victim, Michael Robert Scott.39 His testimony was to the following effect: 35 N.T. 12-13. 36 N.T. 14. 37 N.T. 14-15. 7 On Friday, March 10, 2000, he was a corrections officer at the Camp Hill State Correctional Institution in Cumberland County, Pennsylvania, assigned to the Special Management Unit.4° This unit housed inmates whose behavior had 4~ resulted in their removal from the general population for disciplinary reasons. At about 6:50 in the evening, the corrections officer observed Defendant lift up on the door of his cell in the unit and come out of the cell.42 When Defendant and the officer encountered each other, Defendant struck the officer on the left side of the chest with a closed right fist.43 The blow, which alarmed the victim, resulted in a second officer's coming to his assistance.44 The two officers forced Defendant back into his cell, and, during the ensuing struggle to subdue him, Defendant tried to strike the victim a second time.45 Ultimately, the officers succeeded in restraining him with handcuffs and shackles and a senior officer was summoned to the scene.46 The victim thereafter filed a misconduct report as a result of the incident.47 Defendant's testimony was to the effect that the incident involved the entry of five officers, including Officer Scott, into his cell while he was asleep and beating him up.48 He suggested that the attack may have been motivated by ~8 N.T. 27-39. 39 N.T. 8-26. 4o N.T. 8-9. 4~ N.T. 9. 42 N.T. 9, 20. The block in question had a long history of problems with the cell doors, according to the officer, and as of the trial date the doors were in the process of being replaced. N.T. 21-22. 43 N.T. 9-10. 44 N.T. 10. 45 N.T. 10. 46 N.T. 10. 47 N.T. 15. 48 N.T. 28-29. official annoyance at comments he had made about the handling of mail at the institution.49 DISCUSSION Motion for appointment of expert witness. With respect to appointment of expert witnesses on behalf of defendants in criminal cases, "there is no constitutional mandate, either federal or state, that experts be appointed at public expense to assist in the preparation of a defense whenever requested by one accused of crime." Commonwealth v. Gelormo, 327 Pa. Super. 219, 229, 475 A.2d 765, 770 (1984). The appointment of an expert in a criminal case is within the sound discretion of the trial court. Commonwealth v. Carter, 537 Pa. 233,257, 643 A.2d 61, 73 (1994). On this subject, the Pennsylvania Supreme Court has stated the following: We... note that the decision of whether or not to appoint an expert witness is within the sound discretion of the trial court .... While an accused in a capital case is entitled to the assistance of experts necessary to prepare his defense, there is no obligation on the part of the Commonwealth to pay for the services of an expert. Commonwealth v. Bridges, 563 Pa. 1, 17, 757 A.2d 859, 867 (2000). Where the effect of an expert's testimony would be simply to support or impeach the credibility of a witness, there is less exigency for the appointment of the expert than might otherwise exist. See Carter, 537 Pa. at 258, 643 A.2d at 73 (upholding denial of defendant's request for appointment of handwriting expert to impeach testimony of incriminating witness who had allegedly written prior inconsistent statement). Similarly, where the offense charged is a minor one, without the prospect of imprisonment, the expenditure of public funds for defense of the accused has been traditionally less sanctioned by the courts. See, e.g., Commonwealth v. Long, 455 Pa. Super. 337, 342-43, 688 A.2d 198, 201 (1996) 49 N.T. 36. 9 (noting the absence of a right to free counsel in summary cases in absence of likelihood that imprisonment will be imposed). In the present case, factors which militated against the appointment of a locksmith to assist Defendant with his case, at public expense, included the fact that the basic issue in the case was whether Defendant had struck the corrections officer as opposed whether his cell door was subject to manipulation, the testimony of a locksmith would have related to an incidental topic affecting credibility of witnesses heard by the court, the offense charged was a minor one without prospect of a consequence of imprisonment, and the information obtained from the locksmith could have been misused by a person in Defendant's position as a state prisoner. Request for continuance at trial. "It is well settled in this Commonwealth that the trial court has broad discretion on the granting of continuances during trial." Commonrvea/th v. Metzger, 498 Pa. 678, 682, 450 A.2d 981, 983 (1982). The propriety of a denial of a continuance during the course of a trial must be determined by the nature of the crime charged and the surrounding circumstances. Id. at 682, 450 A.2d at 983-84. In the present case, Defendant was charged with a minor offense without the prospect of a consequence of imprisonment. Surrounding circumstances included the fact that an extended period of time had already elapsed between the date of the alleged offense and the trial, that a continuance had previously been provided during the trial for Defendant's review of the police report, and that, upon inquiry, he was not able to specify any item in the police report which would necessitate further preparation on his part. Sufficiency of the evidence. The test for sufficiency of the evidence in a criminal case has been expressed by the Pennsylvania Superior Court as follows: The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have 10 based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Barnes, 310 Pa. Super. 480, 482-83, 456 A.2d 1037, 1038 (1983). The Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence, and the trier-of-fact is free to believe all, part, or none of the evidence presented. See Commonwealth v. Gease, 548 Pa. 165, 169, 696 A.2d 130, 132 (1997), cert. denied, 522 U.S. 935, 118 S. Ct. 343, 139 L. Ed. 2d 266 (1997); Commonwealth v. Tare, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The summary offense of harassment is committed "when, with intent to harass, annoy or alarm another, [a] person.., strikes, shoves.., or otherwise subjects [another] person to physical contact ." Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §2709(a)(1). In view of the unequivocal testimony of the victim in this case that Defendant had struck him with a closed fist in the chest on the occasion in question, and of the principles of law stated above, it is believed that the evidence was sufficient to sustain the conviction of Defendant for summary harassment. For all of the foregoing reasons, it is further believed that the judgment of sentence in the form of a fine of $150.00 was properly entered. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Americo Torres Rivera, DA-3309 SCI-Pittsburgh J. Wesley Oler, Jr., J. 11 P.O. Box 99901 Pittsburgh, PA 15233 Defendant, Pro Se 12