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HomeMy WebLinkAboutCP-21-CR-0000277-2012 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : : NO. CP-21-CR-277-2012 GEOFFERY QUENTEN MULL : CHARGES: SIMPLE ASSAULT, : HARASSMENT IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., August 9, 2013:-- On January 28, 2013, a jury found the Defendant, Geoffery Quenten Mull, guilty of simple assault and the court found him guilty of the summary offense of harassment. After sentencing, the Defendant filed this timely appeal and complains of the following matter: The trial court erred or abused its discretion when it sustained the Commonwealth’s objection to defense counsel’s cross-examination of the alleged victim about the severity of the injuries to his eye because the alleged victim had given false testimony about the injuries at both the preliminary hearing 1 and at trial. I. Facts On August 18, 2011, Jarrod Sheeder, the victim, and his fiancée, Bridget Foor, were helping a friend, Lexi Mixell, remove her belongings from the home of Kelly 2 Harman, where she had been employed as a nanny. At about 4:00 p.m., Mixell arrived 3 at the home and a verbal altercation with Harman immediately ensued in the driveway. 4 As the altercation escalated, the Defendant exited the house and joined the affray 1 Concise Statement of Error Complained of on Appeal, filed May 10, 2013. 2 Notes of Testimony, Jan. 28, 2013 at 27 (hereafter N.T. at __) 3 N.T. at 30. 4 N.T. at 31. 5 frightening Mixell and causing her to cry. Seeing this, the victim left his car to defend 6 Mixell. Upon approaching the other parties, the victim stated “excuse me, I’m a friend of [Mixell’s]. I’m just here to get her belongings and see that she makes it safely to her 7 parents’ house.” Harman replied, “[w]ho the fuck do you think you are, you piece of 8 white fucking trash.” The verbal altercation continued until the victim said to Harman, “how can you call [Mixell] these names whenever she’s been more of a mother to your 9 son the past couple months than you have been?” At that point, the Defendant 10 attacked the victim and tackled him to the ground. After a brief scuffle, the victim stood and was again confronted by the Defendant who told him four times to, “get the fuck off 11 the property.” 12 As the victim turned and walked off the property, he heard Foor yell “watch out.” As he turned around the Defendant punched him in the face without warning causing 13 him to fall to the ground. Dazed from the punch and bleeding from his eye, the victim 14 rose, held onto the rear of his car, and called the police. Patrolmen Bradley Sheetz arrived at the scene and called an ambulance which transported the victim to the 15 hospital. While at the hospital, the victim was informed that he had passed out three 16 times in the ambulance. He then underwent a series of medical tests that revealed 5 . N.T. at 32 6 N.T. at 33. 7 N.T. at 34. 8 N.T. at 35. 9 N.T. at 36. 10 N.T. at 36. 11 N.T. at 36. 12 N.T. at 37. 13 N.T. at 37. 14 N.T. at 39. 15 N.T. at 41, 42. 16 N.T. at 42. four fractures to the left orbital, a great deal of swelling, a mild concussion, and blood 17 around the inside of his eye where the blood vessels had burst. The next day, the victim testified that while driving the vision in his left eye became obstructed preventing him from seeing light or objects and impairing his depth 18 perception. On cross-examination, the victim was asked whether he was still 19 complaining about loss of vision resulting from being punched in the eye. The 20 Commonwealth objected and a discussion was held at sidebar. Defense counsel stated that it was his intention to have a letter from a doctor introduced into evidence showing a diagnosis of malingering regarding blindness in the victim’s left eye and to 21 use this to impeach the victim’s credibility. The Commonwealth objected arguing that the introduction of the letter amounted to the impermissible use of expert testimony of a physician who was not present at trial. They further argued that on direct examination physicians were not discussed and the medical records stated that the victim was not blind which was consistent with the 22 victim’s testimony that his vision was obstructed. The Court sustained the Commonwealth’s objection and did not allow the medical records to be discussed in 23 cross-examination. 17 N.T. at 44. 18 N.T. at 44, 45. 19 N.T. at 61. 20 N.T. at 61. 21 N.T. at 61, 62. 22 N.T. at 62. 23 N.T. at 62. II. Discussion Whether a particular line of cross-examination is proper is a matter for the discretion of the trial judge. Fischer v. Commercial Nat. Bank, 184 A. 57, 59 (Pa. 1936); Thompson v. American Steel & Wire Co., 175 A. 541, 543 (Pa. 1934). A rightful exercise of discretion is presumed unless the contrary plainly appears. Rose v. Adelphia Hotel, 149 A. 644, 645 (Pa. 1930). To show an abuse of discretion, the Appellant must show error in the evidentiary ruling and resulting prejudice. Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 496 A.2d 762, 765 (Pa. Super. 1985). In order to preserve an objection to the exclusion of testimony the party seeking to have the testimony admitted must make an offer as to what the testimony is going to establish. Watson v. Philadelphia, 638 A.2d 489, 491 (Pa. Cmwlth. 1994). Generally, opinion evidence, such as a physician’s diagnosis, contained in hospital records is inadmissible where the physician who authored those records is unavailable for cross-examination. Williams v. McClain, 520 A.2d 1374, 1376 (Pa. 1987). However, under the business records exception to the hearsay rule, hospital records of a patient are admissible to show the fact of hospitalization, treatment prescribed, and the symptoms found. Id. Here, the physician’s letter was specifically offered to impeach the victim with the diagnosis of malingering. This is precisely the kind of opinion evidence that demands the presence and testimony of the physician who made the diagnosis. As such, the Court properly sustained the Commonwealth’s objection and ruled the physician’s letter inadmissible. Finally, even if this Honorable Court deems the excluded evidence to be relevant, as we noted to counsel at the time of the objection, “[t]his is a simple assault. It is not an aggravated assault. They have testified that he was punched and was in pain. I’m not 24 going to allow it.” Simply put, we employed the discretion provided by our Rules of Evidence to exclude what may arguably be relevant “if its probative value is outweighed by … confusion of the issues … or by … [a] waste of time …” Pa.R.E. 403. Had the Commonwealth not withdrawn Count 1 Aggravated Assault, we would have permitted full cross-examination of the victim on the nature and extent of his injuries. However, the issue before the jury was whether the Defendant blind-sided the victim, not whether the victim was blinded for an instant or eternity. If the question for the jurors to consider was whether the defendant had caused serious bodily injury, i.e. “serious, permanent disfigurement, or protracted loss or 25 impairment of the function of any bodily member or organ,” then the issue of the victim’s vision would have been relevant. Under those circumstances, we would have permitted the Defendant to delve into the possibility that the victim was malingering or exaggerating his injuries. However, in a simple assault case where the testimony was overwhelmingly clear that the victim was not only punched in the face, but also that he was in pain, there was absolutely no reason to venture down the rabbit hole of the 26 severity of his injuries. Such testimony would have served only to confuse the jurors as to what they needed to determine. Ultimately, the issue before the jurors was whether Defendant’s 24 N.T. at 63. 25 Pa. SSJI (Crim) 15.2702A 26 Although this opinion has focused on the simple assault charge before the jury, as the fact finder with respect to harassment, the court found the excluded line of questioning to be inconsequential in our determination of guilt. act of striking the victim was justified, not whether the victim was hit or injured. Therefore, as requested by the Defendant, we fully laid out the defense of justification in 27 our instructions. Allowing a side show on severity would have obscured the focal point, wasted everyone’s time and constituted an abdication of our responsibilities and discretion. III. Conclusion In short, the Court properly sustained the Commonwealth’s objection and the Defendant’s convictions should be affirmed in all respects. By the Court, Albert H. Masland, J. Matthew Smith, Esquire Assistant District Attorney William Fulton, Esquire For Defendant 27 N.T. at 169-71.