HomeMy WebLinkAboutCP-21-CR-0003015-2014
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
JASON DANIEL ARTZ : CP-21-CR-3015-2014
OTN: T563689-0 :
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925(a)
Peck, J., September 2, 2015..
Following a jury trial on March 19, 2015, Appellant Jason Artz (hereinafter the
“Defendant”) was convicted of the sole count of Harassment, a misdemeanor of the third
degree, resulting from a phone call he placed to Pennsylvania State Police Corporal
Douglas Howell (hereinafter “Corporal Howell”) on August 20, 2014. On April 14,
2015, Defendant was sentenced to pay the costs of prosecution, a $100.00 fine, and to
undergo imprisonment in the Cumberland County Prison for no less than one month and
1
no more than twelve months. The Defendant further was to have no contact, directly or
indirectly, with any witness to the case or with Corporal Howell or his family members.
Defendant was to obtain a mental health evaluation. Defendant has appealed his
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conviction, and this Court has summarized the following list of errors from his Concise
Statement of Errors Complained of on Appeal:
1.The Court erred by denying Defendant’s Motion for Judgment of Acquittal, at
the conclusion of evidence at trial and in his post-sentence motion.
2.The verdict of the jury was against the weight of the evidence.
3.The evidence presented was insufficient as a matter of law to support a guilty
verdict.
4.The Court improperly allowed Deputy Sheriff Sheldon Marshall to testify as to
Defendant’s actions in the courtroom.
1
Sentencing Order of Court, April 14, 2015.
2
The lengthy Concise Statement of Errors Complained of on Appeal reads more like a brief than a concise
statement of errors, and does not clearly state those errors which Appellant claims that this Court has made in an
organized format. Therefore, this Court compiled this list of issues raised on appeal, which it believes accurately
reflects all of the issues contained in Defendant’s Concise Statement of Errors.
1
This Court offers the following Opinion, pursuant to Pa. R.A.P. 1925(a), in
support of its decision.
FACTUAL AND PROCEDURAL HISTORY
The present matter concerns Defendant’s arrest and conviction for Harassment, a
misdemeanor of the third degree, stemming from a phone call that Defendant made to
Corporal Howell on August 20, 2014. On the date in question, an unnamed male called
the Pennsylvania State Police Barracks in Carlisle and asked to speak with Corporal
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Howell. After being informed that Corporal Howell was not working in that barracks,
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the caller was given a phone number where he could directly reach Corporal Howell. A
short time later, on the same phone line that was given out by the State Police Barracks,
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Corporal Howell received a phone call from a blocked number. Corporal Howell
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testified that the entire phone call with the unnamed caller consisted of the following:
Hey Dougie, you said you were always going to be here, but you are not.
You said you were always going to win, but now you lose. Fuck you,
Dougie. Fuck You. Fuck you, Dougie. Fuck you, Dougie.
Furthermore, Corporal Howell testified that the caller spoke very loudly, and was
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“basically screaming into the phone.” Because the phone call was made to Corporal
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Howell’s direct number, it was not recorded by the State Police’s recording system.
Although the caller did not state his name and the incoming phone number was
blocked, Corporal Howell testified that he immediately recognized the voice as belonging
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to Defendant based on their numerous previous encounters; this was so despite the fact
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that Corporal Howell had not seen or spoken to the Defendant in roughly two years.
Corporal Howell also testified to the fact that he felt threatened by the phone call from
3
Notes of testimony March 19, 2015 (hereinafter “N.T.”) at 36.
4
N.T. at 36.
5
N.T. at 21.
6
N.T. at 21.
7
N.T. at 21.
8
N.T. at 80.
9
N.T. at 20.
10
N.T. at 25.
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the Defendant, specifically the portion where the Defendant said “you said you were
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always going to win, but now you lose.” Corporal Howell testified that he feared that
the Defendant’s comments implied that the Defendant would do something to “make me
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lose.” As a result of the phone call, Corporal Howell immediately called his family to
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warn them to look out for the Defendant, since Corporal Howell feared for their safety.
During trial, it was brought to the Court’s attention that the Defendant had made
eye contact with Corporal Howell in the courtroom and mouthed the word “homo” to him
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during a sidebar. This fact was brought to the Court’s attention after the Commonwealth
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had originally rested its case, but before the Defendant opened his case. This Court
found the proposed testimony regarding the Defendant’s in-court actions and statements
to be relevant, and that the probative value outweighed any potential prejudice;
accordingly, this Court allowed the Commonwealth to reopen its case to call Corporal
Howell and Deputy Sheriff Sheldon Marshall (hereinafter “Deputy Marshall”) to testify
about the Defendant’s conduct and statements in the courtroom before the Defendant
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opened his defense. Deputy Marshall testified that he does not know either the
Defendant or Corporal Howell personally, and that he witnessed the Defendant make eye
contact with Corporal Howell in the courtroom and mouth the word “homo” towards him
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which in the courtroom. Deputy Marshall testified that Corporal Howell did nothing
that would have caused the Defendant to do this, and said nothing in return to the
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Defendant. Corporal Howell testified that he felt threatened by the Defendant’s
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conduct. The Defendant later testified that he made eye contact with Corporal Howell in
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the courtroom, but denied saying anything to him during the trial.
11
N.T. at 25.
12
N.T. at 25.
13
N.T. at 25.
14
N.T. at 86, 88-92, 100.
15
N.T. at 86, 88-92, 100.
16
N.T. at 100.
17
N.T. at 100-102
18
N.T. at 102.
19
N.T. at 104.
20
N.T. at 114.
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After the Commonwealth again rested its case, the Defendant took the stand and
admitted that he was the unnamed caller who called both the Pennsylvania State Police
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Barracks and Corporal Howell on the day in question. Although the Defendant admitted
that he called Corporal Howell directly at a different station than the Pennsylvania State
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Police Barracks in Carlisle, rather than leaving a message for him, he denied making the
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harassing statement as testified to by Corporal Howell. Instead, the Defendant testified
that the nature of his call was non-threatening, and he was simply trying to get Corporal
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Howell to leave him alone. Specifically, the Defendant said that he was concerned
because he had seen unmarked police vehicles regularly drive past his home and stop at
the end of the driveway, and he believed that Corporal Howell was responsible for these
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vehicles showing up at his home. The Commonwealth contradicted this statement on
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rebuttal. Trooper Timothy Janosco (hereinafter “Trooper Janosco”) testified on rebuttal
that he did drive past the Defendant’s home in an unmarked police vehicle, but that it was
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after the Defendant had already placed the phone call to Corporal Howell. Furthermore,
both Corporal Howell and Trooper Janosco stated on rebuttal that they had not driven
unmarked police vehicles past the Defendants home immediately prior to the August 20,
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2014 phone call.
On the stand, the Defendant also admitted that he had not had any dealings with
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Corporal Howell in approximately three years before this incident. The Defendant
further admitted he dialed “Star 67” before calling Corporal Howell on the day in
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question so that his phone number wasn’t available to Corporal Howell.
At the close of evidence, the Defendant made a Motion for Directed
Verdict/Motion for Judgment of Acquittal, which was denied by the Court. Based on all
21
N.T. at 109-110, 113, 116-118.
22
N.T. at 113, 117.
23
N.T. at 111-114, 118.
24
N.T. at 111.
25
N.T. at 109-110.
26
N.T. at 139-141.
27
N.T. at 139.
28
N.T. at 136, 139.
29
N.T. at 108, 123.
30
N.T. at 122, 67.
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of the evidence presented at trial, the jury found the Defendant guilty of Harassment. The
Defendant filed Post-Sentence Motions, including a Motion for Judgment of Acquittal,
which was also denied. This appeal followed.
DISCUSSION
Motions for Directed Verdict/Judgment of Acquittal at the conclusion of the
evidence, and in the Post-Sentence Motion.
The Pennsylvania Superior Court has noted that “\[a\] motion for judgment of
acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular
charge, and is granted only in cases in which the Commonwealth has failed to carry its
burden regarding that charge.” Commonwealth v. Emmanuel, 86 A.3d 892, 894 (Pa.
Super. 2014). Under the relevant provisions of the Criminal Code, to prove its case for
Harassment, the Commonwealth had the burden of proving that “…with the intent to
harass, annoy or alarm another, the person: …(4) communicated to or about such other
person any lewd, lascivious, threatening or obscene words, language, drawings, or
caricatures…” 18 Pa. C.S. § 2709(a)(4). Furthermore, “\[a\]n intent to harass may be
inferred from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719,
721 (Pa. Super. 2013).
In the present case, Artz admitted to communicating with Corporal Howell by
making the phone call in question, but denied that he said anything of a threatening
nature in that call. Defendant therefore argues that the Commonwealth failed to meet its
burden of proof for the crime of harassment by: (1) not proving that the Defendant made
the call with the intent to harass, annoy or alarm; and (2) that the statements made in the
call were not lewd, lascivious, threatening or obscene.
The Defendant argues that he had a legitimate purpose to call Corporal Howell to
tell him to leave him alone, as the Defendant said that he thought Corporal Howell was
driving past his home regularly. On rebuttal, Trooper Janosco testified that he had driven
past the Defendant’s residence in reference to a call the Pennsylvania State Police
received from someone identified as “Jason,” who had a phone number matching the
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number belonging to the Defendant, about someone stalking his neighborhood. Trooper
Janosco testified that this was after the harassing phone call to Corporal Howell had taken
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place. On this basis, the jury was free to disbelieve the Defendant’s purported legitimate
purpose for making the call to Corporal Howell.
Additionally, the Commonwealth presented evidence, and the Defendant agreed,
that Corporal Howell had not spoken to, or had any contact with, the Defendant in two
years leading up to the phone call on August 20, 2014. The Defendant called the Carlisle
State Police Barracks, where the Defendant believed Corporal Howell worked, to talk
specifically to Corporal Howell. He did not ask to speak to anyone else at that station, he
refused to leave a message for Corporal Howell, he refused to identify himself to the
phone operator at the barracks, and he requested to know the station where Corporal
Howell worked and said that he wanted to speak to Corporal Howell. The Defendant then
called Corporal Howell from a blocked phone number, did not otherwise identify himself,
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and screamed into the phone. Corporal Howell testified that he felt threatened by the
contents of the phone call, to the point that he felt compelled to call his family to put
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them on the lookout for the Defendant. Such evidence, when viewed in its totality, was
sufficient for the jury to deduce that the call was made with the intent to harass, annoy or
alarm.
The Defendant has repeatedly argued that, even if Corporal Howell’s version of
the phone call is accepted as true and that the Defendant did make the call with the intent
to harass, then this Court should have entered a judgment of acquittal on the harassment
charge nevertheless, because the statements made are not lewd lascivious, threatening or
obscene. In support of this contention, the Defendant cites to Commonwealth v. Fenton,
750 A.2d 863 (Pa. Super. 2000), as authority that “fuck you” does not constitute
harassment. Fenton is not on point here. The Defendant in Fenton, in anger because of
an insurance issue, phoned his insurance adjuster, and threatened to kill people and shoot
31
N.T. at 138-142.
32
N.T. at 138-142.
33
N.T. at 21.
34
N.T. at 25.
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a Congressman’s “Fucking head off”. 750 A.2d at 263. The Superior Court concluded
that such language was not related to sex and therefore was not lewd or lascivious. Id. at
865.
The issue here is not whether the Defendant’s language was lewd or lascivious,
but rather whether it was obscene or threatening in nature. The Defendant did not merely
say “fuck you” to an officer in the heat of the moment, but rather specifically sought out
Corporal Howell, after two years of having no contact with him, and said to him, “you
said you were always going to win, but now you lose.” Corporal Howell testified that he
interpreted that specific comment as meaning that the Defendant was “going to do
something to make \[Corporal Howell\] lose.” Thus, it was not merely the “fuck you”
language that made Corporal Howell feel threatened, it was the attendant circumstances
and the Defendant telling Corporate Howell that he would now “lose,” which Corporal
Howell believed was a threat to his or his family’s safety.
Such facts were sufficient to send the question to the jury to decide of whether
such language amounted to a threat under the circumstances. Such facts were equally
sufficient for the jury to deduce, as they did, that such conduct by the Defendant was
obscene or threatening. This Court properly denied the Defendant’s Motion for Judgment
of Acquittal, both at the close of the evidence and in the post-sentence motions, and its
decision should be upheld on appeal.
Weight of the Evidence
The Defendant next claims that the jury’s verdict was against the clear weight of
the evidence. The standard of review when an appeal has been made on the basis that a
verdict was against the weight of the evidence has been stated as follows:
The weight of the evidence is exclusively for the finder of fact who is free
to believe all, part, or none of the evidence and to determine the credibility
of the witnesses. An appellate court cannot substitute its judgment for that
of the finder of fact. Thus, we may only reverse the jury’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
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Commonwealth v. Gooding, 818 A.2d 546, 552 (Pa. Super. 2003)(quoting
Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001)). Moreover,
\[W\]here the trial court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of whether the verdict
is against the weight of the evidence… rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling on the weight
claim.
Commonwealth v. Kim, 888 A.2d 847, 850 (Pa. Super. 2005)(quoting Commonwealth v.
Shampney, 832 A.2d 403, 408 (Pa. 2003)).
In the present case, the Court ruled against the Defendant’s weight of the evidence
claim when it denied his Post-Sentence Motions. As the factual analysis supra shows, the
jury’s verdict was not against the weight of the evidence. The jury’s verdict reflects that
they found Corporal Howell’s testimony regarding the August 20, 2014 phone call more
credible than the Defendant’s testimony regarding the same. In short, the jury’s verdict
fell far short of shocking this Court’s sense of justice. The jury likewise credited Trooper
Janosco’s account of the events over the Defendant’s, as Trooper Janosco directly
rebutted the Defendant’s contentions that the phone call was for legitimate purposes.
Although the Defendant presented character witnesses, who were not present for any of
the alleged events, the jury chose to credit the Commonwealth’s witnesses. The jury’s
verdict was not against the weight of the evidence presented in that the Defendant’s
actions of seeking out Corporal Howell in a secretive, deliberate manner, after several
years of not having contact with him and threatening the Corporal’s safety amounted to at
least harassment. Thus, this Court’s decision regarding the weight of the evidence should
be upheld on appeal.
Sufficiency of the Evidence
The Defendant claims there was insufficient evidence as a matter of law to support
the jury’s guilty verdict. In reviewing sufficiency of the evidence claims, a court
“…must determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all the elements of
the offense. Additionally, to sustain a conviction, the facts and
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circumstances which the Commonwealth must prove, must be such that
every essential element of the crime is established beyond a reasonable
doubt… The fact finder is free to believe all, part, or none of the evidence
presented at trial.”
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011)(internal citations
omitted). Additionally, the jury is not obligated to accept a defendant’s evidence.
Commonwealth v. Morales, 91 A.3d 80, 90 (Pa. 2014).
As set forth earlier in this Opinion, for the Commonwealth to prove its case for
harassment, it had the burden of proving that the Defendant communicated lewd,
lascivious, threatening or obscene words or language to or about Corporate Howell with
the intent to harass, annoy or alarm. 18 Pa. C.S. § 2709(a)(4). Furthermore, the
Defendant’s intent to harass, annoy or alarm can be inferred from the totality of the
circumstances. Cox, 72 A.3d at 721.
In Commonwealth v. Hartzell, the Pennsylvania Superior Court similarly
considered whether a defendant’s conviction for harassment under 18 Pa. C.S. §
2709(a)(4) was supported by legally sufficient evidence. Commonwealth v. Hartzell, 988
A.2d 141 (Pa. Super. 2009). In Hartzell, the defendant was known to exit his home and
yell obscenities while taking a picture of anyone who used the gated dirt road that abutted
his home. Hartzell, 988 A.2d at 141. In the incident which gave rise to criminal charges
in Hartzell, the defendant yelled obscenities at a neighboring property owner and
discharged a rifle into a creek near where the neighbor and his guest were standing. Id.
The Superior Court, noting that it was unable to find any other cases construing the
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“relatively new” subsection (a)(4) of 18 Pa. C.S. § 2709, held that yelling obscenities,
35
Like the Superior Court noted, this Court’s extensive research has revealed a dearth of case law regarding 18 Pa.
C.S. 2709(a)(4). Therefore, while noting Superior Court Internal Operating Procedure 65.37 regarding unpublished
decisions, this Court would like to direct attention to the Superior Court’s unpublished decision in Paine. In Paine,
the Superior Court held that the phrase “you will pay big time” amounted to an “unequivocal threat.”
Commonwealth v. Paine, 2013 Pa. Super. Unpub. LEXIS 3413 at *10. This Court believes that the phrase “you will
pay big time” contains a similar threat to the phrase “now you lose,” which was used in the present case.
Furthermore, the Superior Court in Paine noted that the efforts that the defendant took to track down the victim’s
phone number were evidence of the defendant’s intent to harass and annoy the victim, Id. at 11, just as the
Defendant’s efforts to obtain Corporal Howell’s phone number in the present case are evidence of his intent to
harass, annoy or alarm.
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on its own, was enough to satisfy the actus reus of Section 2709(a)(4). Id. at 144.
Furthermore, the Superior Court held that the Commonwealth met its burden of proving
that the defendant acted with the requisite intent to harass, annoy or alarm based on the
surrounding circumstances, including the defendant’s history of yelling obscenities and
the discharging of the rifle into the creek. Id. at 144-145.
In the present case, accepting Corporal Howell’s recollection of the phone call as
true, as the Court must do given the Commonwealth’s status as the verdict-winner, this
Court found that sufficient evidence was presented at trial to establish each of the
elements of harassment beyond a reasonable doubt. The Commonwealth presented
competent evidence that the contents of the phone call were threatening to Corporal
Howell, specifically in light of the anonymous nature of the call, the tone and volume of
the call, and the fact that Corporal Howell had not spoken to the Defendant in two years.
The circumstances surrounding the phone call, including the Defendant’s efforts to obtain
Corporal Howell’s phone number after having no contact with him for two years, the fact
that the Defendant blocked his phone number so that Corporal Howell could not see who
was calling, and the loud tone that the Defendant used when speaking, also support the
finding that the Defendant had the requisite intent to harass, annoy, or alarm Corporal
Howell by making the call. The Defendant achieved his goal because the phone call did
alarm Corporal Howell such that he phoned his family because he felt their safety had
been threatened. The jury clearly did not believe the Defendant’s testimony regarding his
recollection of the phone call to Howell, which was well within its prerogative as the fact
finder. The verdict was supported by sufficient evidence and should be upheld on appeal.
Testimony regarding the Defendant’s actions during trial
The final issue the Defendant raises on appeal is that this Court erred by allowing
improper “rebuttal” testimony by Deputy Marshall “following the conclusion of the
defense case.” The Defendant claims that the admission of Deputy Marshall’s testimony
was error because it was not proper rebuttal testimony and that its prejudicial impact
10
outweighed its probative value. For the reasons that follow, Defendant’s assertions are
rife with errors.
The record reflects that Deputy Marshall was not called to the stand as a rebuttal
witness. His testimony was made part of the Commonwealth’s case-in-chief after the
Court allowed the Commonwealth to reopen the same. Furthermore, Deputy Marshall’s
testimony was not permitted “following the conclusion of the defense case,” as
Defendant asserts in his concise statement. Deputy Marshall took the stand after the
Commonwealth initially rested its case, but before the defense had called a single witness
or opened its case. The Defendant’s characterization of Deputy Marshall’s testimony as
improper rebuttal testimony after the conclusion of the defense’s case is erroneous.
Additionally, the Defendant’s claim that the admission of Deputy Marshall’s
testimony was more prejudicial than probative is a challenge to one of this Court’s
evidentiary rulings. When a party appeals an evidentiary ruling of the trial court, the
following standard of review applies;
On a challenge to a trial court’s evidentiary ruling, our standard of review is
one of deference. The admissibility of evidence is solely within the
discretion of the trial court and will be reversed only if the trial court has
abused its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
or prejudice, ill-will or partiality, as shown by the evidence of record.
Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012 (quoting
Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004)).
Deputy Marshall was permitted to testify that the Defendant made eye contact
with Corporal Howell while in the courtroom and during the jury trial of this case, and
that the Defendant mouthed the word “homo” to Deputy Marshall. Deputy Marshall
knew neither the Defendant nor Corporal Howell personally. It is, of course, the
Deputy’s job to ensure safety in the courtroom. The decision to allow this testimony was
not the result of bias, prejudice, ill-will, or partiality. The testimony was allowed as to
the Defendant’s intent toward Corporal Howell in “harassing” or “annoying” him.
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Corporal Howell had previously testified that the Defendant’s phone call on the day in
question was unprovoked, since the two hadn’t spoken in two years. Deputy Marshall
testified that the Defendant’s actions in the courtroom were unprovoked. The evidence
was not overwhelmingly prejudicial to the Defendant in light of the fact that the jury was
free to witness the Defendant’s conduct during trial and may have seen the conduct
testified to anyway. The probative value of the evidence as to Defendant’s intent
outweighed any potential for prejudice. Therefore, this Court’s decision to allow the
Commonwealth to reopen its case to call Deputy Marshall was not an abuse of discretion,
and this evidentiary ruling should be upheld on appeal.
CONCLUSION
In conclusion, this Court properly denied the Defendant’s Motions for Judgment
of Acquittal/Directed Verdict, that the verdict was supported by the weight of the
evidence, that the verdict was supported by sufficient evidence, and that the Court
properly allowed the Commonwealth to reopen its case to call Deputy Marshall to testify
in regards to the Defendant’s actions in Court. Therefore, the issues the Defendant raises
on appeal are all without merit and the verdict should be upheld.
BY THE COURT,
___________________________
Christylee L. Peck, J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
John M. Shugars, Esq.
Senior Assistant Public Defender
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