J-S54030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROY MICHAEL HOGAN, JR.                     :
                                               :
                       Appellant               :   No. 474 MDA 2019

         Appeal from the Judgment of Sentence Entered March 13, 2019
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0000616-2018,
                           CP-54-CR-0000617-2018


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 10, 2020

        Roy Michael Hogan, Jr., appeals from the judgment of sentence, entered

in the Court of Common Pleas of Schuylkill County, after a jury convicted him

of numerous offenses, including two counts each of attempted murder 1 and

aggravated assault.2 Upon careful review, we affirm.

        The trial court aptly summarized the factual background of this matter

as follows:

____________________________________________


1   18 Pa.C.S.A. § 901(a).

2   18 Pa.C.S.A. § 2702(a)(1).

Hogan was also convicted of two counts each of terroristic threats, 18
Pa.C.S.A. § 2706(a)(1), possessing instruments of crime (“PIC”), 18 Pa.C.S.A.
§ 907(a), and criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(i), as well as one
count each of burglary, 18 Pa.C.S.A. § 3502(a)(1)(i), simple assault, 18
Pa.C.S.A. § 2701(a)(3), and four counts of recklessly endangering another
person (“REAP”), 18 Pa.C.S.A. § 2705.
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     Brooke Ditzler and Hogan had been in a two[-]year[-]long
     romantic relationship, which she ended in the summer of 2017.
     By March of 2018[, Ditzler] was seeing Michael Seltzer. On March
     17, 2018, Ditzler and Seltzer were out with two of their friends,
     Mallory Geiger and Andrew Matlock. They were celebrating St.
     Patrick’s Day by visiting several bars in the City of Pottsville.
     Hogan was present at one of those bars and saw Ditzler with
     Seltzer.

     After leaving the bar, the two couples went to a diner in the
     Borough of Schuylkill Haven to eat. They stayed for about an hour
     before going to Ditzler’s house, which was nearby. When they
     arrived at the house, the women went upstairs to Ditzler’s
     bedroom to change. They were startled to discover Hogan lying
     on the bed. He was staring at the ceiling, with his hand across his
     chest[,] and holding a pocketknife.

     Ditzler screamed and the women ran downstairs. Ditzler called
     the police. Hogan came down behind them. He was not then
     carrying the knife. Ditzler told her companions to hold Hogan
     there for the police. Matlock pinned him against the wall. As he
     did so, the knife fell from Hogan’s jacket, and Matlock backed
     away. Hogan then calmly walked out the front door.

     Ditzler had locked the front and back doors to her house before
     leaving that evening, and she had the only key, which she used
     to unlock the front door when the couples arrived. There was also
     a side door to the basement. [I]t was kept locked, but it had a
     doggie panel that was just covered in plastic.

     The police soon arrived and searched the area for Hogan to no
     avail. The two couples decided to stay at Ditzler’s home that night
     and to sleep together in the living room for safety. After making
     sure the doors were locked, they went to sleep. Matlock slept in
     the recliner. The other three slept on the couch with Seltzer
     closest to the front door and Ditzler in the middle.

     Sometime during the night, Hogan returned to the residence. He
     gained entry through the basement door. Once in the living room,
     Hogan stabbed Seltzer eight times, once in the temple area, twice
     in his che[e]k, twice on his right arm, once in the left shoulder
     area, once in the [] chest, and once in the abdomen. [Seltzer]
     had been asleep before the stabbing, and when he awoke, he had
     lost control of his right arm and was bleeding profusely.



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       Next, Hogan stabbed Matlock in the neck, near the carotid artery.
       Mat[l]ock was able to get out of the chair and run into the
       adjo[i]ning dining room with Hogan in pursuit. Matlock used the
       dining room chairs to defend himself. When he hit Hogan with a
       chair, Hogan was stunned enough for Matlock to run back into the
       living room, where he grabbed Seltzer and helped him out the
       front door. Outside, Matlock was able to pound on a neighbor’s
       door until the neighbor awoke and called the police. While this
       was occurring, Ditzler was calling 911 on her cellphone.

       After Matlock and Seltzer left, Hogan closed and locked the front
       door and turned his attention to Mallory Geiger, who was still
       sitting on the couch. He punched her hard in the chest before
       swiping the knife at her and cutting her chest. Ditzler [r]an over
       and pushed Hogan away. He pushed her back, knocking her to
       the floor. Geiger dropped to the floor and crawled to Ditzler. Both
       women were sitting on the floor near the door, screaming for help.
       Hogan went to Geiger and, while holding a knife to her chin, told
       her: “This is your last chance or I’m going to kill you.” Geiger
       stood up and started to walk toward the kitchen with Ditzler
       holding onto her leg and screaming for Geiger not to leave.

       After Geiger went into the kitchen, Hogan approached Ditzler and
       stood over her holding a knife to her face. At that moment, the
       police began banging on the door, which Ditzler reached up and
       unlocked. As an officer entered, Hogan ran past Geiger in the
       kitchen and out the back door. He was eventually spotted by a
       neighbor and apprehended without further incident.

Trial Court Opinion, 5/8/19, at 1-4.

       Hogan was tried on February 11-14, 2019, after which a jury convicted

him of the above-stated offenses. On March 13, 2019, the court sentenced

Hogan to an aggregate term of 35 to 70 years’ incarceration. Hogan did not

file post-sentence motions. He filed a timely notice of appeal,3 followed by a
____________________________________________


3 Hogan was charged at two separate docket numbers, but filed only one
notice of appeal listing both docket numbers. The Official Note to Pennsylvania
Rule of Appellate Procedure 341 provides as follows:




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____________________________________________


       Where . . . one or more orders resolves issues arising on more
       than one docket or relating to more than one judgment, separate
       notices of appeals must be filed. Commonwealth v. C.M.K., 932
       A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by
       single notice of appeal from order on remand for consideration
       under Pa.R.Crim.P. 607 of two persons’ judgments of sentence).

Pa.R.A.P. 341, Official Note.

In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court
construed the above language as constituting “a bright-line mandatory
instruction to practitioners to file separate notices of appeal.” Id. at 976-77.
Therefore, the Walker Court held that “the proper practice under Rule 341(a)
is to file separate appeals from an order that resolves issues arising on more
than one docket. The failure to do so requires the appellate court to quash
the appeal.” Id. at 977. The Court tempered its holding by making it
prospective only, recognizing that “[t]he amendment to the Official Note to
Rule 341 was contrary to decades of case law from this Court and the
intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, seldom quashed appeals as a result.” Id.

Subsequently, this Court, in Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019), read Walker “as instructing that we may not accept a notice of
appeal listing multiple docket numbers, even if those notices were included in
the records of each case.” Id. at 1144. Accordingly, Creese held that “a
notice of appeal may contain only one docket number.” Id.

More recently, in Commonwealth v. Johnson, 2020 PA Super. 164 (Pa.
Super. filed July 9, 2020) (en banc), this Court held that, in requiring notices
of appeal to contain no more than one docket number, Creese “imposed upon
appellants an additional requirement found in neither Walker nor Rule 341.”
Id. at *12. Accordingly, the Court held that, where an appellant otherwise
complies with the dictates of Walker, “in so far as Creese stated a notice of
appeal may contain only one docket number, that pronouncement is
overruled.” Id. (internal citation and quotation marks omitted).

Here, Hogan’s single counseled notice of appeal, referencing two docket
numbers, was filed in the Schuylkill County Court of Common Pleas on March
20, 2019, more than nine months after Walker was issued. However,
Hogan’s appeal relates to only one of the docket numbers listed on his notice
of appeal. Accordingly, Hogan is in compliance with Walker’s dictate that



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court-ordered concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b). Hogan raises the following claims for our review:

       1. Did the [t]rial [j]udge commit an error of law/abuse of
       discretion in ruling during the [m]otion in [l]imine hearing prior to
       trial that [Hogan] was prohibited from testifying or arguing about
       how the alleged victim’s . . . decision to abort his child affected
       him, which testimony would have added to the credibility of his
       claim that he had become suicidal by March 18, 2018?

       2. Did the [t]rial [j]udge commit an error of law and/or an abuse
       of discretion in ruling during the trial that general references to a
       [protection from abuse (“PFA”)] order and a [b]ail [o]rder
       pertaining to [Hogan] and existing on March 18, 2018 were
       admissible?

       3. Did the [t]rial [j]udge commit an error of law in failing to
       dismiss two [c]ounts of [c]riminal [a]ttempt to [c]riminal
       [h]omicide . . . after a [m]otion was made by [Hogan] at the
       conclusion of the Commonwealth’s case-in-chief for dismissal
       based on the offenses being incorrectly defined in the
       [i]nformation?

Brief of Appellant, at 4-5.

       Hogan’s first two claims concern evidentiary rulings by the trial court.

The admission of evidence is within the sound discretion of the trial court, and

a trial court’s evidentiary rulings will be reversed only upon an abuse of that

discretion. Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).

“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


____________________________________________


requires a separate notice of appeal for each lower court docket challenged on
appeal. We, therefore, decline to quash Hogan’s appeal on the basis of
Walker. Johnson, supra.


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unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Commonwealth v. Dillon, 925 A.2d

131, 136 (Pa. 2007).

      Hogan first asserts that the trial court erred in precluding him from

testifying about the fact that Ditzler had aborted his child and the manner in

which that abortion had affected him. At trial, the theory of Hogan’s defense

was that he did not have the intention to commit homicide when he broke into

Ditzler’s residence. Rather, he intended to “confront Ditzler and talk to her

about the break-up of their relationship and its aftermath.” Brief of Appellant,

at 12. Hogan claims he knew that the police would be called and, upon seeing

him with a knife, would shoot to kill him. Hogan argues that his true intent

was to commit “suicide by cop” in front of his former paramour. Hogan claims

that testimony regarding Ditzler’s abortion and its impact on his mental state

would have lent credibility to his claim that he was suicidal on the date of the

incident in question.

      Prior to trial, the Commonwealth filed a motion in limine seeking to

preclude the introduction of evidence of the abortion as inadmissible bad

character evidence relating to the victim. The trial court concluded that the

abortion, which occurred ten months prior to the incident, was “far removed

in time from the incidents giving rise to the trial and would in no way relate

to Hogan’s state of mind and intent when he stabbed Seltzer, Matlock, and

Geiger.” Trial Court Opinion, at 5. The court further found that Hogan’s sole

purpose in introducing the evidence was to “disparage Ditzler before the jury.”

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Id.   Accordingly, the trial court granted the Commonwealth’s motion and

precluded the defense from any mention of Ditzler’s abortion.

      Despite the court’s ruling, Hogan testified as follows during his direct

examination:

      Q: All right. Now, at the time you were [at Ditzler’s residence],
      did you have a knife in your possession?

      A: Yes.

      Q: Where was it?

      A: It was in my pocket.

      Q: What was your purpose in having the knife?

      A: Well, like I said, I was upset, you know, with everything going
      on, you know, her lying to me and killing my child.

            [COUNSEL FOR THE COMMONWEALTH]: Objection.

N.T. Trial, 2/11/19, at 310-11.

      After Hogan made reference to the abortion, the Commonwealth argued

for a mistrial, which the court ultimately denied after a 45-minute recess.

Thereafter, the Commonwealth advised the court that it did not wish for a

curative instruction. Thus, the ultimate result was that Hogan was able to

place before the jury the fact of Ditzler’s abortion and the impact of that

abortion on his mental state, and, because the Commonwealth declined a

curative instruction, the jury was free to consider that fact during

deliberations.   Accordingly, the trial court’s initial decision to preclude the

evidence did not prejudice Hogan. Because the evidence he sought to admit




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was, in fact, presented to the jury, his claim is moot and he is entitled to no

relief.

          Hogan next alleges that the trial court erred in allowing the

Commonwealth to refer generally to the existence of two court orders

prohibiting Hogan from having any contact with Ditzler at the time of the

incident. Specifically, Ditzler had obtained a PFA against Hogan because he

had been harassing her via text message. Ditzler had also filed harassment

charges against Hogan and, as a condition of his bail, Hogan was prohibited

from contacting Ditzler. Both prior to and during trial, defense counsel sought

to preclude mention of those orders during the Commonwealth’s cross-

examination of Hogan. The Commonwealth argued that it should be allowed

to cross-examine Hogan regarding the orders for the purpose of challenging

his credibility with respect to his claim that he went to Ditzler’s house merely

to speak with her.       The Commonwealth sought to raise doubt that Hogan

would risk incarceration for the sake of a mere conversation.           The court

indicated that it would allow the Commonwealth to cross-examine Hogan on

the orders, and the Commonwealth agreed that it would not specify the nature

of the orders, but refer to them simply as “court orders” that, if violated, could

result in Hogan’s incarceration.

          In an effort to “blunt the effect” of the jury learning about the orders

from the Commonwealth, defense counsel made reference to them during his

direct examination of Hogan. On cross-examination, the Commonwealth also

referenced the orders after Hogan testified that he had only gone to Ditzler’s

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residence to talk to her.         Hogan now asserts that the Commonwealth’s

reference to the orders was overly prejudicial, and resulted in an unfair trial.4

He is entitled to no relief.

       Generally, evidence of prior bad acts or unrelated criminal activity is

inadmissible to show that a defendant acted in conformity with those past acts

or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior

bad acts may be admissible when offered to prove some other relevant fact,

such as motive, opportunity, intent, preparation, plan, knowledge, identity,

and absence of mistake or accident.            Pa.R.E. 404(b)(2).   In determining

whether evidence of other prior bad acts is admissible, the trial court is obliged

to balance the probative value of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).                Evidence is

unduly prejudicial when its admission creates a danger “that it will stir such

passion in the jury as to sweep them beyond a rational consideration of guilt

or innocence of the crime on trial.” Commonwealth v. Ulatoski, 371 A.2d

186, 192 n.11 (Pa. 1977) (citation omitted).


____________________________________________


4 Hogan also argues on appeal that reference to the orders was cumulative
and unnecessary to impeach his claim regarding the purpose of his entry into
Ditzler’s home, because he admitted he entered the residence unlawfully and
subjected himself to criminal prosecution by doing so. However, Hogan did
not raise this theory at the motion in limine stage or when the issue arose
again during trial. “[T]his Court cannot review a legal theory in support of
that claim unless that particular legal theory was presented to the trial court.”
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). Accordingly, that claim is waived.

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      In Sherwood, our Supreme Court found that the trial court properly

admitted evidence that the defendant had previously struck the child he was

on trial for beating to death in order to refute the defendant’s self-serving

allegations that he did not intend to kill the victim and that he loved her.

Similarly, here, evidence of the orders prohibiting Hogan from contacting

Ditzler were relevant to refute his assertion that he simply wanted to speak

with Ditzler and did not go to her residence with the intention of harming her.

Moreover, by allowing the Commonwealth to refer only generically to “court

orders,” the court limited the possibility of undue prejudice. Accordingly, the

trial court did not err in allowing the Commonwealth to cross-examine Hogan

regarding the orders.

      Finally, Hogan claims that the trial court erred in refusing to dismiss

three counts of attempted homicide with which he was charged. Specifically,

Hogan argues that he was charged with criminal attempt to commit homicide,

generally, rather than criminal attempt to commit first-degree murder. Hogan

argues that, “[s]ince [f]irst-[d]egree murder carries an element different from

all other degrees of criminal homicide, [a]ttempted [f]irst[-d]egree [m]urder

is materially different from the original charge of [a]ttempted [c]riminal

[h]omicide” and, thus, amendment of the information should not have been

allowed.   Brief of Appellant, at 19.   The trial court, reasoning that it is

impossible to commit attempted second- or third-degree murder, found that

Hogan was not misled about what charges he was required to defend and was

not prejudiced in the preparation of his defense. We can discern no error.

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      Due process requires that the criminal information provide fair notice of

every crime of which a criminal defendant is accused. Commonwealth v.

Sims, 919 A.2d 931, 939 (Pa. 2007). See Pa.R.Crim.P. 560(C) (providing

that “[t]he information shall contain the . . . citation of the statute . . . or other

provision of law that the defendant is alleged therein to have violated”). To

comport with due process, the notice provided must be sufficiently specific so

as to allow the defendant to prepare any available defenses should he exercise

his right to a trial. Sims, 919 A.2d at 939, citing Commonwealth v. Little,

314 A.2d 270, 273 (Pa. 1974).               Such notice ensures that, if the

Commonwealth prevails at trial, the defendant’s conviction is not arbitrary or

oppressive. See Commonwealth v. Kratsas, 764 A.2d 20, 27 (Pa. 2001).

      Here, the criminal information alleged that Hogan, “having the intent to

commit [criminal homicide] . . . did intentionally stab” Mallory Geiger, Andrew

Matlock and Michael Seltzer with a large knife.         See Criminal Information,

4/30/18, at 1. The information clearly apprised Hogan of the intent element

of the charge and set forth the factual basis for the charges. As such, the

document provided Hogan with sufficient information to prepare his defense.

Sims, supra. Indeed, as the trial court properly noted, one cannot attempt

to commit murder of the second or third degree. See Commonwealth v.

Griffin, 456 A.2d 171, 177 (Pa. Super. 1983). Thus, there could have been

no confusion that the Commonwealth was proceeding under any theory other

than that Hogan attempted to commit first-degree murder. Demonstrating

his awareness of this fact, Hogan argued in a pre-trial habeas corpus motion

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that he did not possess the specific intent to kill Mallory Geiger. Additionally,

at the hearing on Hogan’s pre-trial motion in limine, defense counsel

acknowledged that the Commonwealth would present evidence of Hogan’s

specific intent to kill. Accordingly, Hogan was sufficiently apprised that he was

being charged with criminal attempt to commit first-degree murder and the

trial court did not err in declining to dismiss the charges.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2020




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