J-S56012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OMAR SHARIFF BEST,

                            Appellant                No. 2070 MDA 2014


          Appeal from the Judgment of Sentence September 12, 2014
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001772-2013


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 23, 2015

        Appellant, Omar Shariff Best, appeals from the judgment of sentence

entered on September 12, 2014, in the Centre County Court of Common

Pleas. We affirm.

        On July 25, 2013, Appellant, while incarcerated at the            State

Correctional Institution at Rockview, physically attacked and raped a female

employee at the facility. Following a jury trial, Appellant was found guilty of,

inter alia, aggravated assault causing serious bodily injury,1 aggravated



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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
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assault of an employee at a correctional institution,2 rape by forcible

compulsion,3 and rape of an unconscious person.4 The trial court sentenced

Appellant on September 12, 2014, and on September 22, 2014, Appellant

filed a timely post-sentence motion, which was denied in an order filed on

November 21, 2014. This timely appeal followed. Both Appellant and the

trial court have complied with Pa.R.A.P. 1925.

        On appeal, Appellant raises the following issues for this Court’s

consideration:

        I. Did the Trial Court err in denying [Appellant’s] pre-Trial Motion
        in Limine and allowing the admissibility at Jury Trial of
        inflammatory color photographs of the petechial hemorrhaging of
        the sclera of both of [the victim’s] eyes?

        II. Did the Trial Court err in granting the Commonwealth’s pre-
        Trial Motion in Limine and preventing the defense from using an
        illustration of reasonable doubt during closing summation?

        III. Did the Sentencing Court err in imposing two separate
        sentences on Count 1 and on Count 2 for one single act of
        Aggravated Assault, and in imposing two separate sentences on
        Count 3 and on Count 4 for one single act of Rape?

Appellant’s Brief at 11 (verbatim).

        In Appellant’s first two issues, he claims the trial court erred in its

ruling on two motions in limine.           The well-settled standard of review we
____________________________________________


2
    18 Pa.C.S. § 2702(a)(2).
3
    18 Pa.C.S. § 3121(a)(1).
4
    18 Pa.C.S. § 3121(a)(3).




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apply when reviewing a trial court’s ruling on a motion in limine is as

follows:

      When reviewing the denial of a motion in limine, this Court
      applies an evidentiary abuse of discretion standard of review. It
      is well-established that the admissibility of evidence is within the
      discretion of the trial court, and such rulings will not form the
      basis for appellate relief absent an abuse of discretion. Thus, the
      Superior Court may reverse an evidentiary ruling only upon a
      showing that the trial court abused that discretion. A
      determination that a trial court abused its discretion in making
      an evidentiary ruling may not be made merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Further, discretion is abused when the law is
      either overridden or misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (internal

citations, ellipsis, and quotation marks omitted).

      In Appellant’s first issue, he argues that the trial court erred in

denying his motion in limine and permitting the Commonwealth to introduce

seven photographs depicting the hemorrhaging in the victim’s eyes caused

by the attack. Appellant’s Brief at 22.

      The test for determining whether photographs are admissible
      involves a two-step analysis. First, the court must decide
      whether a photograph is inflammatory by its very nature. If the
      photograph is deemed inflammatory, the court must determine
      whether the essential evidentiary value of the photograph
      outweighs the likelihood that the photograph will improperly
      inflame the minds and passions of the jury.

Commonwealth v. Lowry, 55 A.3d 743, 753 (Pa. Super. 2012) (citations

and quotation marks omitted).




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     At the hearing on the motion in limine, the following exchange

occurred:

     [Appellant’s Counsel]: The second Motion in Limine is with
     respect to colored photographs of [the victim]. This picture of
     her eyes. For the record I marked this as Defendant’s Exhibits 1
     through 7. We’re asking the court to review those and to enter
     an Order that the Commonwealth be precluded from using them.
     I would suggest to the Court that those are highly inflammatory.

           The witnesses can testify as to what they observed. [The
     victim] can testify to her injuries.   To submit or admit the
     photographs would just be cumulative I would suggest to the
     Court. Another alternative would be to have them in black and
     white as opposed to color if the Court was inclined to admit
     them.

     The Court: You know I have had some horrendous photographs
     of autopsies and bodies that are mangled and damaged and I
     can see in those cases why – especially when there is the
     presence of blood splatters and pools of blood and all of that,
     why you would want that to be in black and white because it is a
     bit inflammatory. I am looking at these photos and they really
     are not shocking at all to me. It actually just shows this
     woman’s eyes to be red and I am not taken back by this. I
     really am not. I don’t think a jury would be either.

     [Assistant District Attorney]: Commonwealth doesn’t believe
     that they are inflammatory at all. They are direct proof of what
     [the victim] says, that she was choked unconscious by
     [Appellant] and received these injuries based on what [Appellant
     did]. We have a burden of proof here to show that he attempted
     to cause her serious bodily injury or caused her serious bodily
     injury. They are direct evidence of that.

     The Court: What is the Commonwealth’s theory as to why her
     eyes are red like this? Is this because of alleged strangulation?

     [Assistant District Attorney]: Yes, Your Honor. Absolutely. The
     allegation here is that [Appellant] entered the room, came up
     behind her, strangled her, threatened her with a knife, and
     chocked [sic] her to the point that she was unconscious, where
     he then raped her. This is direct evidence of that. And if

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       [Appellant] is going to argue that they had consensual sex and
       this is somehow part of their consensual sex this evidence
       dispels that and is important for that purpose as well.

       The Court: Yeah. I am not going to preclude these photos.

N.T., Motion in Limine, 5/14/14, at 19-21.

       Additionally, in its opinion, the trial court stated:

             This Court denied [Appellant’s] Motion in Limine and
       concluded the photographs were relevant and their probative
       value outweighed any prejudice to [Appellant]. The photographs
       were not precluded because the Commonwealth had the burden
       to prove to the jury that [the victim] suffered a serious bodily
       injury pursuant to the elements of the Aggravated Assault
       counts. Although [the victim] did testify regarding her injuries,
       including the injury to her eyes, [Appellant] offered a consent
       defense and he testified that [the victim] asked him to choke her
       for her own erotic pleasure. Nurse Hubler could not testify about
       the petechial hemorrhaging in the sclera of [the victim’s] eyes
       because only minor redness was immediately noticeable.
       Therefore, the evidence was not cumulative. The photographs
       depicted virtually all of the white of [the victim’s] eyes to be
       very red but there was nothing particularly ghastly about the
       images. Therefore, this Court maintains there was no err in
       denying the Motion in Limine regarding these photographs.

Trial Court Opinion, at 2/4/15, at 2-3.

       We discern no abuse of discretion. The trial court determined that the

images were not inflammatory and were relevant and probative of the

elements of the crimes with which Appellant was charged.         Appellant is

entitled to no relief on this issue.5

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5
  Assuming the trial court had concluded that the photos were inflammatory,
we would conclude that the evidentiary value of the photographs outweighed
the likelihood that they would improperly inflame the minds and passions of
(Footnote Continued Next Page)


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      In his second issue, Appellant argues that the trial court erred in

granting the Commonwealth’s motion in limine precluding the defense from

using an illustration of reasonable doubt during its closing. The trial court

addressed this issue as follows:

             In their Motion in Limine, the Commonwealth sought to
      preclude defense counsel from using an illustration in her closing
      argument regarding reasonable doubt. The illustration involved
      using one’s common sense and experience to make a decision
      regarding whether to ice skate on a pond after making
      observations such as the weather, the appearance of the ice,
      etc.    This Court precluded defense counsel from using this
      illustration as it is not that useful in understanding reasonable
      doubt, can tend to confuse the jury, involves an experience that
      many people cannot relate to as not everyone ice skates on open
      bodies of water, and involves a fearful concept. The thought of
      making a mistake in assessing the security of ice on which to
      skate, falling through the ice into the water, and the potential
      results of hypothermia, frost bite, or drowning are such
      unpleasant thoughts, this Court concluded that this particular
      illustration is not appropriate. See Com. v. Fisher, 572 Pa. 105,
      127, 813 A.2d 761, 774 (2002) Justice Saylor concurring.
      Defense counsel was free to use another illustration or to
      describe the concept of reasonable doubt in another manner for
      the jury.

Trial Court Opinion, at 2/4/15, at 3.

      Appellant cites to Commonwealth v. Jones, 858 A.2d 1198, 1200

(Pa. Super. 2004), which stands for the proposition that the trial court may

use an illustration to explain reasonable doubt.     Appellant’s Brief at 33.
                       _______________________
(Footnote Continued)

the jury. Lowry, 55 A.3d at 753. Appellant’s defense was that he had
consensual intercourse with the victim and choked her as part of that
allegedly consensual act. The photos were direct evidence proving the
injuries the victim sustained, established the force used in the attack, and
Appellant’s intent to injure the victim.



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However, that fact is not in dispute as it is the trial court’s responsibility to

instruct the jury on the applicable law.    Commonwealth v. Hallman, 67

A.3d 1256, 1262 (Pa. Super. 2013) (citing Commonwealth v. Hart, 565

A.2d 1212, 1216 (Pa. Super. 1989)). Therefore, it was the trial court’s duty

to explain reasonable doubt to the jury, not Appellant’s.

      Appellant has not argued that the jury received an inadequate or

improper instruction on reasonable doubt; he complains only that he was

unable to provide his own analogy.      Moreover, we point out that the trial

court did not bar Appellant from providing the jury with an illustration of

reasonable doubt — it only precluded Appellant from using the example of

walking across a frozen body of water.      Trial Court Opinion, 2/4/15, at 3.

Appellant has offered no authority that would cause this Court to find that

the trial court abused its discretion by precluding the proffered frozen-pond

analogy. Accordingly, we conclude that no relief is due.

      Finally, Appellant avers that the trial court erred in imposing separate

sentences on the two aggravated-assault convictions and in imposing

separate sentences on the two rape convictions.          Appellant argues that

aggravated assault causing serious bodily injury and aggravated assault of

an employee at a correctional institution should merge, and he claims that

rape by forcible compulsion and rape of an unconscious person should

merge.




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        The issue of merger is a pure question of law, and our standard of

review is plenary. Commonwealth v. Yeomans, 24 A.3d 1044, 1050 (Pa.

Super. 2011). In 2002, our Legislature enacted the merger statute, which

reads as follows:

        § 9765. Merger of sentences

        No crimes shall merge for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the
        other offense. Where crimes merge for sentencing purposes, the
        court may sentence the defendant only on the higher graded
        offense.

42 Pa.C.S. § 9765.6        Following the enactment of the merger statute, our

Supreme Court determined that when each offense contains an element that

the other does not, merger is inappropriate. Commonwealth v. Baldwin,

985 A.2d 830, 837 (Pa. 2009).

        To determine whether offenses are greater and lesser-included
        offenses, we compare the elements of the offenses. If the
        elements of the lesser offense are all included within the
        elements of the greater offense and the greater offense has at
        least one additional element, which is different, then the
        sentences merge. If both crimes require proof of at least one
        element that the other does not, then the sentences do not
        merge.

Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super. 2012) (internal

citations and quotation marks omitted).



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6
    42 Pa.C.S. § 9765 became effective on February 7, 2003.



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      As noted above, Appellant was charged with and convicted of

aggravated assault causing serious bodily injury and aggravated assault of

an employee at a correctional institution. The elements of these crimes are

set forth as follows:

      A person is guilty of aggravated assault if he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life;

      (2) attempts to cause or intentionally, knowingly or recklessly
      causes serious bodily injury to any of the officers, agents,
      employees or other persons enumerated in subsection (c) or to
      an employee of an agency, company or other entity engaged in
      public transportation, while in the performance of duty;

18 Pa.C.S. § 2702 (a)(1) and (2).               Additionally, for purposes of our

discussion of 18 Pa.C.S. 2702(a)(2), an employee at a correctional

institution   is   a   specifically   enumerated   person   under   18   Pa.C.S.   §

2702(c)(9).

      Pursuant to Section 9765, aggravated assault causing serious bodily

injury is not a lesser included offense of aggravated assault of an employee

at a correctional institution because, while aggravated assault causing

serious bodily injury requires extreme indifference to the value of human

life, aggravated assault of an employee at a correctional institution does not.

Moreover, aggravated assault of an employee at a correctional institution

requires the victim to be employed at a correctional institution, while

aggravated assault causing serious bodily injury has no such employment

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requirement.    Therefore, neither crime is a lesser included offense of the

other, and they do not merge under Section 9765.

      With respect to the rape charges, Appellant was convicted of rape by

forcible compulsion and rape of an unconscious person.            The elements of

these crimes are set forth as follows:

      A person commits a felony of the first degree when the person
      engages in sexual intercourse with a complainant:

      (1) By forcible compulsion.

                                     * * *

      (3) Who is unconscious or where the person knows that the
      complainant is unaware that the sexual intercourse is occurring.

18 Pa.C.S. § 3121(a)(1) and (3).

      The only element that these two crimes have in common is sexual

intercourse, because rape by forcible compulsion does not require the victim

to be unconscious, and rape of an unconscious person does not require

forcible compulsion. Therefore, neither crime is a lesser included offense of

the other, and these crimes do not merge under Section 9765.

      Finally, Appellant claims that there is a double jeopardy component of

his   merger    claim.   Appellant’s     Brief   at    38.     Appellant   cites    to

Commonwealth v. Dobbs,              682 A.2d     388    (Pa.   Super.   1996)      and

Commonwealth v. Rhoads, 636 A.2d 1166 (Pa. Super. 1994) to support

his argument.     In Dobbs, this Court explained that if a defendant has

engaged in a single criminal act violating more than one section of a statute,


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and if those sections are designed to proscribe a single harm, then the

sentences merge. Dobbs, 682 A.2d at 391. In Rhoads, this Court stated

that convictions of two separate subsections of the simple assault statute

constitute one offense for sentencing when the factual predicate for both

convictions was one underlying act because the subsections of the simple

assault statute were drafted with the disjunctive “or,” and are, therefore,

alternative bases for conviction. Rhoads, 636 A.2d at 1167-1168.

      After review of the aforementioned cases and their analysis on merger,

however, we must point out that those cases were decided prior to the

enactment of 42 Pa.C.S. § 9765. Our Supreme Court affirmed the adoption

of an elements-based approach to merger analysis under Section 9765 in

Baldwin, and thus implicitly rejected the argument that case law decided

before the enactment of Section 9765 should control. Baldwin, 985 A.2d at

835-837.   Moreover, this Court has concluded that there is no bar to the

legislature defining merger in a purely elemental fashion and that Section

9765 does not violate double jeopardy. Commonwealth v. Wade, 33 A.3d

108, 121 (Pa. Super. 2011). Accordingly, we need not address the double

jeopardy issue based on the pre-Section 9765 cases further, and we

conclude there was no error in the trial court sentencing Appellant

separately for both aggravated assault convictions and for both rape

convictions.




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     For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgement of sentence.

     Judgment of sentence affirmed.

     Judge Jenkins joins the memorandum.

     Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2015




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