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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
WAYNE NELSON,                              :         No. 1085 EDA 2018
                                           :
                          Appellant        :


            Appeal from the Judgment of Sentence, March 13, 2018,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0002270-2017


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 15, 2019

        Wayne Nelson appeals from the March 13, 2018 judgment of sentence

entered by the Court of Common Pleas of Delaware County following his

conviction of simple assault and possession of an instrument of crime.1 After

careful review, we affirm.

        The trial court provided the following factual and procedural history:

              On March 16, 2017 at a little after 8:00 a.m.
              Chris Grandison was driving his daughter to Harris
              School. As he turned left off of Clifton Avenue onto
              Blackstone Avenue there were several cars stopped
              in front of him traveling in both directions. The
              traffic jam was caused by snow constricting the road
              to one lane of travel. Mr. Grandison looked behind
              him and realized that he could not back onto Clifton
              Avenue because there were cars stopped behind
              him.       He could not pull forward either.
              Mr. Grandison attempted to direct traffic to help

1   18 Pa.C.S.A. §§ 2701(a) and 907(a), respectively.
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          people move out of the situation. [Appellant’s] car,
          a white Infiniti, was two car lengths in front of him
          facing the opposite direction in the same lane of
          travel. [Appellant] and the witness exchanged some
          words. Since the street had become a parking lot,
          Mr. Grandison exited his vehicle and walked his
          daughter to the school a half block away.

          As Mr. Grandison walked his daughter to school they
          walked by [appellant’s] vehicle.       Mr. Grandison
          testified that as he walked by the car [appellant]
          began yelling at him. Mr. Grandison stated that
          [appellant] told him he was going to “kill him.”
          Mr. Grandison continued to the school but saw
          [appellant] get out of his car, take something out of
          the trunk and get back into his car.               As
          Mr. Grandison returned to his car he had a
          premonition there might be trouble so he turned on
          his cell phone video camera.       As Mr. Grandison
          passed by [appellant’s] car, [appellant] exited the
          car and hit him from behind with a tire iron in the
          head.       [Mr.] Grandison and [appellant] then
          struggled, as the witness stated “for my life[.”] As
          they struggled, Mr. Grandison’s legally licensed
          handgun went flying from his waistband and was
          recovered by a bystander. Mr. Grandison believes
          the two fought for several minutes.        Bystanders
          called the police.        Upon hearing the sirens,
          [appellant] fled on foot toward Harris School.

          Morris Holcombe, a bystander, testified he was
          sitting in a line of traffic.           He observed
          [Mr.] Grandison walk by his vehicle with his daughter
          heading towards Harris School.         He stated that
          [Mr.] Grandison was saying loudly on his way back
          to his vehicle that [appellant] stated he was going to
          kill him. He stated that when [Mr.] Grandison got to
          [appellant’s] vehicle, [appellant] exited his vehicle
          and attacked him. He stated the two males began
          physically fighting and he saw someone throw a
          handgun into a snowbank. Mr. Holcombe testified he
          went and picked up the gun, locked himself in his car
          and called 911.



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          Rachel Houseman, another bystander, testified she
          pulled over on Blackstone Avenue to let cars get
          down the street towards Harris School. She stated
          that [appellant’s] white Infiniti attempted to go
          around her blocking [Mr.] Grandison’s Toyota from
          getting by. [Mr.] Grandison then put his hazard[]
          lights on and got out and walked his daughter to
          school leaving his vehicle in the middle of the street
          blocking everyone in. When [Mr.] Grandison was
          walking back to his car, [appellant] jumped out of his
          car and attacked him. She testified the two men
          began fighting and she heard someone say he has a
          gun. She was unable to see who had the gun.
          Ms. Houseman stated she stayed in her car at that
          point and was unable to see anything else.

          [Appellant] testified. He admitted exchanging words
          with [Mr.] Grandison but insisted [Mr.] Grandison got
          hot first. [Appellant] denied ever threatening him.
          [Appellant] saw [Mr.] Grandison make a hand motion
          towards his waist and adjust something. [Appellant]
          believed [Mr.] Grandison was indicating to him [that]
          he was armed. As [Mr.] Grandison walked past his
          car door [appellant] testified [Mr.] Grandison told
          him he’ll be right back.         [Appellant] took that
          comment as a threat that [Mr.] Grandison intended
          to harm him when he returned.                [Appellant]
          admitted he retrieved a tire iron from his trunk but
          said he did so because he feared for his life.
          [Appellant] testified as [Mr.] Grandison got to the
          back of his car he saw [Mr.] Grandison coming
          toward him with his hand on his hips. He stated
          [that he] was in fear for his life so he got out [of] the
          car and hit [Mr.] Grandison with the tire iron.
          [Appellant] then grabbed [Mr.] Grandison’s gun and
          tossed it into a snowbank. [Appellant] stated he left
          the scene because he was in fear for his life.

          After a jury trial commencing on January 30, 2018,
          the [j]ury acquitted [appellant] [of] two counts of
          [a]ggravated [a]ssault and one count of [t]erroristic
          [t]hreats and found [appellant] guilty of one count of
          [s]imple    [a]ssault[]    and     [p]ossession     of



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            [i]nstruments of [c]rime.[2]        After sentencing,
            [appellant] filed a timely [n]otice of [a]ppeal and a
            timely [Pa.R.A.P. 1925(b) s]tatement of [errors]
            [c]omplained of on [a]ppeal.

Trial court opinion, 5/17/18 at 1-4 (footnotes omitted). The trial court filed

an opinion pursuant to Pa.R.A.P. 1925(a) on May 17, 2018.

      Appellant raises the following issues for our review:

            1.     Did the learned trial court err when [it]
                   prohibited trial counsel from attempting to
                   impeach         Commonwealth             witness,
                   Morris Holcombe[,]      with     a     statement
                   inconsistent with his trial testimony?       The
                   statement was given by him to defense
                   investigator, Donald Fredericks[,] who wrote a
                   report about the information provided by
                   Mr. Holcombe. Investigator Fredericks was not
                   permitted to testify about the prior inconsistent
                   statement nor was counsel permitted to ask
                   [Mr.] Holcombe       questions     about      the
                   statement[.]

            2.     Did the learned trial court err in its jury
                   instruction on the issue of justification? Trial
                   counsel requested the court to instruct the jury
                   on the issue of justification as described
                   18 Pa. C.S.[A.] 505(b)(2.3) and the learned
                   trial court denied the request for this
                   instruction and erroneously instructed the jury
                   that the appellant had a duty to retreat.

Appellant’s brief at 4.

      In his first issue on appeal, appellant avers that the trial court erred

when it did not permit appellant’s counsel to confront Morris Holcombe, a




2The trial court sentenced appellant to 11-23 months’ incarceration followed
by three years’ probation.


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Commonwealth witness, with evidence of an inconsistent statement made to

appellant’s private investigator, Donald Fredericks.          (Appellant’s brief at

12-13.)   Appellant further avers that the trial court erred when it did not

permit Fredericks to testify regarding statements made by Holcombe. (Id.

at 13.)

      When reviewing a trial court’s refusal to admit evidence, we are held

to the following standard:

            Appellate courts typically examine a trial court’s
            decision concerning the admissibility of evidence for
            abuse of discretion.       See Commonwealth v.
            Dengler, [] 890 A.2d 372, 379 ([Pa.] 2005). “An
            abuse of discretion may not be found 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 as to be clearly
            erroneous.” Grady v. Frito-Lay, Inc., [] 839 A.2d
            1038, 1046 ([Pa.] 2003).

Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007).

      Pennsylvania   Rule     of   Evidence   613   governs    the   use   of   prior

inconsistent statements for the purposes of impeaching a witness. Rule 613

provides, in relevant part:

            (a)   Witness’s Prior Inconsistent Statement to
                  Impeach.       A witness may be examined
                  concerning a prior inconsistent statement
                  made by the witness to impeach the witness’s
                  credibility. The statement need not be shown
                  or its contents disclosed to the witness at that
                  time, but on request, the statement or
                  contents must be shown or disclosed to an
                  adverse party’s attorney.



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            (b)   Extrinsic Evidence of a Witness’s Prior
                  Inconsistent Statement.            Unless the
                  interests of justice otherwise require, extrinsic
                  evidence of a witness’s prior inconsistent
                  statement is admissible only if, during the
                  examination of the witness,

                  (1)   the statement, if written, is shown
                        to, or if not written, its contents
                        are disclosed to, the witness;

                  (2)   the witness is given an opportunity
                        to explain or deny the making of
                        the statement; and

                  (3)   an adverse     party is given an
                        opportunity    to   question  the
                        witness.

Pa.R.E. 613(a)-(b).

      The use of prior inconsistent statements for the purpose of impeaching

a witness, however, is not without limitation.        Indeed, this court has

previously held that,

            “. . . it must be established that the witness, in fact,
            made       the   allegedly    inconsistent  statement.”
            Commonwealth v. Woods, 710 A.2d 626, 630
            (Pa.Super. 1998), appeal denied, [] 729 A.2d 1129
            ([Pa.] 1998). “[A] summary of a witness’ statement
            cannot be used for impeachment purposes absent
            adoption of the statement by the witness as his/her
            own.” Id. The rationale for this rule is: “[I]t would
            be unfair to allow a witness to be impeached on a
            police officer’s interpretation of what was said rather
            than        the      witness’      verbatim     words.”
            Commonwealth v. Simmons, [] 662 A.2d 621,
            638 ([Pa.] 1995).

McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006), appeal

denied, 921 A.2d 497 (Pa. 2007). In order for a statement to have been


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adopted by a witness, the statement must be either given under oath at a

formal legal proceeding, put in a writing signed and adopted by the witness,

or the statement may be a contemporaneous verbatim recording of a

witness’s statements.        Commonwealth v. Brown, 52 A.3d 1139, 1154

n.15 (Pa. 2012), citing Commonwealth v. Lively, 610 A.2d 7, 10 (Pa.

1992).    Our supreme court has further held that a contemporaneous

verbatim recording must be “electronic, audiotaped or videotaped . . . in

order to be considered as substantive evidence.”                Commonwealth v.

Wilson, 707 A.2d 1114, 1118 (Pa. 1998).

      Here, a review of the record reveals that appellant’s counsel sought to

impeach    Holcombe’s        credibility   by   confronting   him   with   Fredericks’s

investigator’s report consisting of Fredericks’s notes.         (Notes of testimony,

1/31/18 at 155.)     There is no evidence of record that Holcombe gave his

statement under oath or put any statement in writing. Additionally, there is

no evidence of record that Fredericks made a contemporaneous verbatim

recording of Holcombe’s statement as defined by our supreme court. (Id.)

      Accordingly, we find that the trial court did not abuse its discretion

when it refused to permit appellant’s counsel to attempt to impeach

Holcombe’s     credibility    by    confronting    him   with   Fredericks’s    report.

Therefore, appellant’s first issue is without merit.




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      In his second issue, appellant contends that the trial court erred when

it denied appellant’s request that the jury be provided with an instruction

pertaining to justification. (Appellant’s brief at 28-29.)

            In deciding whether a trial court erred in refusing to
            give a jury instruction, we must determine whether
            the court abused its discretion or committed an error
            of law. Von der Heide v. Commonwealth, Dep’t
            of Transp., [] 718 A.2d 286, 288 ([Pa.] 1998).
            Where a defendant requests a jury instruction on a
            defense, the trial court may not refuse to instruct the
            jury regarding the defense if it is supported by
            evidence in the record.          Commonwealth v.
            Lightfoot, [] 648 A.2d 761, 764 ([Pa.] 1994).
            When there is evidence to support the defense, it is
            “for the trier of fact to pass upon that evidence and
            improper for the trial judge to exclude such
            consideration by refusing the charge.” Id. (internal
            quote and citations omitted).

Commonwealth v. DeMarco, 809 A.2d 256, 260-261 (Pa. 2002).

                  In order, then, to be entitled to an
                  instruction on justification as a defense
                  to a crime charged, the actor must first
                  offer evidence that will show:

                  (1)    that the actor was faced with a
                         clear and imminent harm, not
                         one which is debatable or
                         speculative;

                  (2)    that the actor could reasonably
                         expect that the actor’s actions
                         would be effective in avoiding
                         this greater harm;

                  (3)    that    there   is   no     legal
                         alternative   which    will   be
                         effective in abating the harm;
                         and



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                (4)    that the Legislature has not
                       acted to preclude the defense
                       by a clear and deliberate
                       choice regarding the values at
                       issue.

                As with any offer of proof, it is essential
                that the offer meet a minimum standard
                as to each element of the defense so that
                if a jury finds it to be true, it would
                support the affirmative defense—here
                that of necessity.        This threshold
                requirement is fashioned to conserve the
                resources required in conducting jury
                trials by limiting evidence in a trial to
                that directed at the elements of the
                crime or at affirmative defenses raised
                by the defendant. Where the proffered
                evidence supporting one element of the
                defense is insufficient to sustain the
                defense, even if believed, the trial court
                has the right to deny use of the defense
                and not burden the jury with testimony
                supporting other elements of the
                defense.

           [Commonwealth v. Capitolo, 498 A.2d [806,] 809
           [(Pa. 1985).] It is the defendant’s burden to proffer
           sufficient evidence for each of the Capitolo factors.
           See Commonwealth v. Manera, 827 A.2d 482,
           485 n. 7 (Pa.Super. 2003) (“Of course, the fact that
           a defense is theoretically available for a given crime
           does not mean that the Commonwealth must
           disprove justification in every case.          Because
           justification is an affirmative defense, the defendant
           has the burden of asserting an appropriate offer of
           proof in order to be entitled to a jury instruction on
           justification.”).

Commonwealth v. Clouser, 998 A.2d 656, 659 (Pa.Super. 2010), appeal

denied, 26 A.3d 1100 (Pa. 2011).




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      We agree with the trial court’s conclusion that appellant failed to offer

evidence showing that he was faced with clear and imminent harm that was

not subject to debate or speculation. Specifically, the trial court reached the

following conclusion:

            Grandison had passed by [appellant’s] car door when
            [appellant] exited his vehicle and hit Grandison on
            the head from behind with a tire iron. . . .
            [Appellant] could have remained in his car and very
            probably no altercation would have occurred. For
            the same reason, [appellant] also fails the
            “no alternative” prong of the test. He could have
            remained in his car and avoided any possible harm
            to himself. The same evidence also demonstrates
            [appellant] could not reasonably expect that his
            actions would be effective in avoiding . . . greater
            harm. Therefore, [appellant] failed to show he was
            entitled to a jury instruction on justification based on
            the evidence at trial.

Trial court opinion, 5/17/18 at 11-12.         We find that the trial court’s

conclusion is based on the evidence of record. Accordingly, the trial court

did not abuse its discretion, nor did it commit an error of law, when it denied

appellant’s request for a jury instruction on justification.

      Judgment of sentence affirmed.



      Lazarus, J. joins this Memorandum.

      McLaughlin, J. concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/15/19




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