J-S77043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ASHLEY ROSE CURRY                       :
                                         :   No. 121 MDA 2017
                    Appellant

          Appeal from the Judgment of Sentence October 11, 2016
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0001038-2015


BEFORE:    BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 29, 2017

      Appellant Ashley Rose Curry appeals from the judgment of sentence

entered by the Court of Common Pleas of Lancaster County after a jury

convicted Appellant of Aggravated Assault, Ethnic Intimidation, and Simple

Assault. Appellant argues that the jury’s verdict was against the weight of the

evidence and contends that the trial court erred in denying her request for a

new trial based on after-discovered evidence. We affirm.

      Appellant was charged with the aforementioned offenses after she shot

Ms. Jamie Roland (“the victim”) on the afternoon of February 3, 2015.

Appellant proceeded to a jury trial, which was held on July 18-22, 2016. Both

the Commonwealth and the defense presented the testimony of numerous

witnesses who observed the altercation in question.




____________________________________
* Former Justice specially assigned to the Superior Court.
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     The Commonwealth first presented Ms. Alecia Glen-McCowin, who

testified that on the afternoon of February 3, 2015, she was driving on

Lancaster Avenue in Columbia, Pennsylvania, when she was forced to stop

behind a vehicle driven by Appellant. Although Appellant had the green light

and the right of way to turn, Appellant did not proceed even though there was

no traffic coming from the opposite direction.      Ms. Glen-McCowin chose to

“toot the horn” of her vehicle to get Appellant’s attention.   N.T. Jury Trial

(N.T.), July 18-22, 2016, at 278. Appellant looked back at Ms. Glen-McCowin

in her rearview mirror and continued to hesitate.

     After Appellant turned into the parking lot of Musser’s Market, Ms. Glen-

McCowin followed and parked near the Dollar Store. Appellant’s boyfriend,

Stephen Smith, exited Appellant’s vehicle and told Ms. Glen-McCowin that it

was rude of her to honk the horn.      Ms. Glen-McCowin asserted that she

approached the couple to explain why she honked her horn and to apologize

if she had offended them. Appellant began repeatedly yelling “nigger” out her

window to Ms. Glen-McCowin, who is African-American. Id. at 268, 278. Ms.

Glen-McCowin accused Appellant of being on drugs and responded, “I don’t

have time for this.” Id. at 268.

     After Appellant exited her vehicle, Ms. Glen-McCowin claimed Appellant

kicked her, spit at her, and spouted racial slurs. Appellant kicked Ms. Glen-

McCowin so hard that she caused an open cut to begin bleeding through her

pants. As Appellant continued to scream, the altercation got the attention of




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bystanders, several of whom rushed to assist Ms. Glen-McCowin, including the

victim. None of the bystanders knew Ms. Glen-McCowin before this encounter.

      Thereafter, Ms. Glen-McCowin observed Appellant pull out a firearm.

Although Ms. Glen-McCowin admitted that she did not “know where

[Appellant] got the gun from,” she indicated that when she saw the black gun,

“[w]e all thought we was gonna get shot.” N.T. at 284, 333-35. Ms. Glen-

McCowin testified that Appellant shot the victim in the stomach when the

victim was standing in front of Ms. Glen-McCowin. After the victim collapsed

to the ground, Appellant got in her car and remained there until the police

arrived.   Ms. Glen-McCowin averred that no one verbally or physically

threatened Appellant before the shooting and indicated that no one prevented

her from leaving the parking lot.

      The victim, who was survived the attack, testified that on the afternoon

in question, she was about to enter Musser’s Market with her sister, Crystal

Manfred, when they saw Appellant kicking and spitting on a black woman, who

was later identified as Ms. Glen-McCowin. The victim indicated that she and

Ms. Manfred ran to the Ms. Glen-McCowin’s aid while she was on the ground

near Appellant’s vehicle. The victim confirmed that Appellant was repeatedly

yelling racial slurs at all of them; all three women (the victim, Ms. Glen-

McCowin, and Ms. Manfred) are African-American.

      Observing Appellant retrieve a firearm from her vehicle, the victim heard

Appellant threaten to shoot Ms. Manfred. After “[a]drenaline kicked in,” the

victim “jumped and [Appellant] shot” her in the stomach. Id. at 366. The

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victim denied chasing or running after Appellant and testified that Appellant

could have walked or driven away during the entire encounter. As a result of

the shooting, the victim sustained a shattered hip and a broken femur.

      Ms. Manfred testified similarly, indicating that as she and the victim were

about to enter Musser’s Market on the day in question, they heard a

commotion between an older African-American woman and a younger

Caucasian woman, neither of whom she knew. Ms. Manfred indicated that she

and the victim felt it necessary to settle the conflict down because the younger

woman, confirmed to be Appellant, was screaming racial slurs at the African-

American woman (Ms. Glen-McCowin), who “was so much older.” Id. at 401-

402. Ms. Manfred observed Appellant reach into her vehicle, pull out a gun,

and shoot the victim. As Ms. Manfred’s immediate concern was for the victim,

who is her sister, she ran to the aid of the victim, who had collapsed behind

Appellant’s car.   Ms. Manfred was worried about the victim’s location as

Appellant stated that she would “run her… black ass over.” Id. at 407, 417.

Ms. Manfred denied hitting, grabbing, or threatening Appellant in any way.

      The prosecution also presented the testimony of Edward Hamilton

Young, who was employed as the store manager of Musser’s Market. Young

was about to enter the market when he heard Appellant repeatedly screaming

“fucking nigger” at a black woman in the store parking lot. Id. at 442-43.

Young had not met either woman before this occasion. Young approached the

women, thinking he would have to try to deescalate the situation as store

manager. Even after Appellant spit in Ms. Glen-McCowin’s face and kicked

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her, Mr. Young observed that Ms. Glen-McCowin “was amazingly calm, trying

to talk [Appellant] down a little bit.”    Id. at 445.

      Mr. Young also saw two women “race[] past” him to “form a wall… and

back[ Appellant] off, away from the original… black woman…to protect [her].”

Id. He also observed Appellant, who was empty-handed, enter the driver’s

side of her vehicle and return with a gun. At that point, Mr. Young rushed to

call authorities from the manager’s office and when he returned, Appellant

had shot the victim, and Ms. Manfred was hysterical on the ground.

      Sergeant Samuel Stein of the Columbia Borough Police Department

testified that after Appellant was arrested and transported to the station,

Appellant was placed in a cell, where she attempted to commit suicide by

removing her shirt and tying it around her neck and the bars of the call. When

officers found Appellant unconscious, they took her to the hospital where she

repeatedly became enraged and stated that “the bitch got what she deserved

and that she had shot her.” Id. at 504.

      Defense counsel first presented the testimony of Ms. Judy Kulish and

her husband, Mr. Donald Kulish, who had observed the incident from their

home on Barber Street. Ms. Kulish admitted that she was too far away to

hear what the parties were saying as the distance between her house and the

parking lot is “about the length of a football field.” Id. at 547. Mr. Kulish

testified that he had observed the incident, but admitted that he “wasn’t really

paying attention…to what race [the people in question] were.” Id. at 588,




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605. Mr. Kulish thought that the Caucasian male he observed running from

the scene of the shooting was the perpetrator.

      The defense also presented the testimony of Sharon Lintner, who did

not see the shooting occur nor hear the substance of the altercation. Smith,

who is Appellant’s boyfriend of thirteen years, claimed that he only heard “bits

and pieces” of the argument in question due to noise from the vehicle’s stereo

playing and air vent blowing and the fact that Ms. Glen-McCowin spoke softly.

N.T. at 633-37. He denied hearing Appellant use any racial slurs but indicated

that Appellant grabbed her firearm after a group of people rushed at Appellant

and threatened to hurt her. When the group continued to advance towards

Appellant, Smith indicated that a shot was fired.

      Appellant testified on her own behalf. She admitted to calling Ms. Glen-

McCowin a “dirty nigger scumbag” and “filthy bitch,” spitting her in the eye,

and kicking her in the leg.   Id. at 722, 724-25, 770-772, 734.       However,

Appellant asserted that Ms. Glen-McCowin initiated the altercation with the

same behavior. Appellant characterized the victim and Ms. Manfred as “two

extremely large women charging at me like wild animals coming fast.” Id. at

730. Appellant asserted that she attempted to go back to her car but observed

something resembling a weapon pointing at her inside Ms. Manfred’s pocket.

Thereafter, Appellant grabbed her firearm and took it out of the vehicle. She

claims that the victim threatened to take the firearm away from her. Appellant

contended that she shot the victim as she felt her life was in danger.




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      After the conclusion of the trial, the jury convicted Appellant of the

aforementioned charges. On September 8, 2016, Appellant filed a request for

a new trial based on after-discovered evidence that the victim allegedly

worked as an informant for the Lancaster County Probation and Parole

Department as well as the Pennsylvania Attorney General’s Office.            After

holding an evidentiary hearing, the trial court denied this motion.

      On October 11, 2016, the trial court imposed an aggregate sentence of

six years and two months to sixteen years’ imprisonment. On October 13,

2016, Appellant filed a post-sentence motion, which the trial court

subsequently denied on December 14, 2016.         This timely appeal followed.

Appellant complied with the trial court’s direction to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises two issues for our review on appeal:

      I.    Did the trial court err in finding that the jury’s verdict of
            guilty of aggravated assault was not against the weight of
            the evidence and was not so contrary thereto as to shock
            the conscience, where the testimony of the witnesses
            regarding the confrontations was so contradictory as to
            render any verdict based on this testimony unreliable?

      II.   Did the trial court err in refusing to grant a new trial based
            on the Commonwealth’s Brady violation, when it failed to
            disclose to defense counsel that Commonwealth witness
            Jamie Roland [(the victim)] was an informant for Lancaster
            County Probation and Parole in January–February 2016,
            that she was a paid informant for the Pennsylvania Attorney
            General’s Office in April–June 2016, and that a capias filed
            February 2, 2016, alleging that [the victim] had violated her
            probation, was dismissed, and [the victim’s] probation was
            terminated, on June 29, 2016, shortly before the


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            Commonwealth was expecting [the victim] to testify at trial
            against [Appellant]?

Appellant’s Brief at 8.

      When reviewing the trial court’s denial of a challenge to the weight of

the evidence, we are guided by the following standard:

         A claim alleging the verdict was against the weight of the
         evidence is addressed to the discretion of the trial court.
         Accordingly, an appellate court reviews the exercise of the trial
         court's discretion; it does not answer for itself whether the
         verdict was against the weight of the evidence. It is well settled
         that the jury is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses, and a new
         trial based on a weight of the evidence claim is only warranted
         where the jury's verdict is so contrary to the evidence that it
         shocks one's sense of justice. In determining whether this
         standard has been met, appellate review is limited to whether
         the trial judge's discretion was properly exercised, and relief
         will only be granted where the facts and inferences of record
         disclose a palpable abuse of discretion.

Commonwealth v. Akhmedov, ___A.3d___, 2017 PA Super 384 (Dec. 8,

2017) (quoting Commonwealth v. Houser, 610 Pa. 264, 18 A.3d 1128,

1135–36 (2011) (citations and internal quotation marks omitted)).

      Although Appellant argues that the prosecution witnesses gave

contradictory accounts of the shooting, she fails to show any material

inconsistencies in their testimony.    Based on our review of the record, we

agree with the trial court’s determination that there was ample evidence to

support the jury’s verdict. The jury weighed the evidence and determined

that Appellant committed aggravated assault against the victim when multiple

eyewitnesses asserted that Appellant (1) provoked the confrontation by

spitting, kicking, and screaming racial slurs at Ms. Glen-McCowin, (2)


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subsequently shot the unarmed victim, who sought to aid Ms. Glen-McCowin,

and (3) was never physically or verbally threatened or prevented from leaving

the parking lot. The jury was not persuaded by Appellant’s attempt to argue

she was justified in shooting the victim in self-defense.

       While Appellant requests this Court accept her version of the evidence

in question, the jury, sitting as factfinder, was free to believe all, part, or none

of the evidence against Appellant.           Akhmedov, supra.          We decline

Appellant's invitation to assume the role of fact-finder and to reweigh the

evidence. We discern no abuse of discretion in the trial court's determination

that the verdict did not shock one's sense of justice. Accordingly, Appellant's

first claim fails.

       Second, Appellant contends the trial court erred in denying her motion

for a new trial based on after-discovered evidence that the victim had acted

as an informant for the Pennsylvania Attorney General’s Office. Our review is

guided by the following standard:

       To obtain a new trial based on after-discovered evidence, the
       defendant must prove, by a preponderance of the evidence, that
       the evidence: (1) could not have been obtained before the
       conclusion of trial by the exercise of reasonable diligence; (2) is
       not merely corroborative or cumulative; (3) will not be used solely
       to impeach a witness's credibility; and (4) would likely result in a
       different verdict.

Commonwealth v. Murray, ___A.3d___, 2017 PA Super 363 (Nov. 15,

2017) (quoting Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292

(2008); Pa.R.Crim.P. 720(c)).



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      More specifically, Appellant claimed that the prosecution was required

to disclose the victim’s status as an informant to the defense pursuant to

Brady v. Maryland, 373 U.S. 83 (1963). Our Supreme Court has explained

that, pursuant to Brady:

      suppression by the prosecution of evidence favorable to an
      accused upon request violates due process where the evidence is
      material to either guilt or to punishment, irrespective of the good
      faith or bad faith of the prosecution. This Court has held that to
      prove a Brady violation, the defendant has the burden of
      demonstrating that: (1) the prosecution has suppressed evidence;
      (2) the evidence, whether exculpatory or impeaching, is helpful to
      the defendant, and (3) the suppression prejudiced the defendant.
      Prejudice is demonstrated where the evidence suppressed is
      material to guilt or innocence. Further, favorable evidence is
      material, and constitutional error results from its suppression by
      the government, if there is a reasonable probability that, had the
      evidence been disclosed to the defense, the result of the
      proceeding would have been different. A reasonable probability is
      a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 133 (Pa. 2012)

(internal quotation marks and citations omitted).

      Appellant argued that the victim’s status as a government informant

made her a biased witness in this case, pointing out that, shortly before the

victim testified in this case, a capias alleging the victim had violated her

probation was dismissed and the victim was released from probation. After

Appellant filed her motion for a new trial based on after-discovered evidence,

the parties stipulated to the following facts:

      1. That Attorney Michael would testify in accordance with the
         information contained in [Appellant’s] Exhibit 1 (Probation and
         Parole Services Report) and Exhibit 2 (Petition to Dismiss


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        Capias and Release from Non-Custodial Status and Order of
        Probation and Parole Services;

     2. That [the victim] gave the Probation Office information;

     3. That Attorney Michael did not know whether [the victim] was
        an informant for the Probation Office;

     4. That [the prosecutor,] Attorney Larsen had no knowledge of
        the information contained in [Appellant’s] Exhibit 1 and 2;

     5. That Attorney Larsen had no knowledge of [the victim] being a
        confidential informant either through Probation or through the
        Columbia Borough Police Department, but that he would have
        known that she was on probation;

     6. That Attorney Larsen believed that the Attorney General’s
        Office is separate from the Lancaster District Attorney’s Office;

     7. That Attorney Larsen was not aware of the capias being filed
        against [the victim] or its dismissal;

     8. That Attorney Larsen was not aware that [the victim] was a
        confidential informant;

     9. That Detective Matthew Leddy of the Columbia Borough Police
        Department had no knowledge if [the victim] was working as a
        confidential informant for the Columbia Borough Police
        Department or the Attorney General’s Office;

     10. That Cindy Tascione, a Lancaster County Probation Officer,
        was supervising [the victim] in January 2016, at which time
        she received information from [the victim] regarding other
        individuals that were subsequently prosecuted in a separate
        matter;

     11. That Ms. Tascione issued a capias against [the victim] on
        February 1, 2016, which is [Appellant’s] Exhibit 2, inasmuch as
        [the victim] admitted to drug use;

     12. That Ms. Tascione advised [the victim] that her probation
        would be terminated if she completed drug and alcohol
        counseling and treatment, which is consistent with the policy
        of the Probation and Parole Department of Lancaster County;

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     13. That, according to Ms. Tascione, [the victim] was not a
        confidential informant through the Probation and Parole
        Department of Lancaster County;

     14. That, according to Ms. Tascione, the Lancaster County
        Probation and Parole Department does not have confidential
        informants;

     15. That Ms. Tascione received a call from the Attorney
        General’s Office inquiring as to whether anybody that she was
        supervising would be interested in being a confidential
        informant and she forwarded [the victim’s] name to the agent;

     16. That Ms. Tascione did not tell anyone in the Lancaster
        County District Attorney’s Office, including Attorney Larsen, or
        the Columbia Borough Police Department, including Detective
        Leddy, that she gave [the victim’s] name to the Attorney
        General’s Office;

     17. That in accordance with [Appellant’s] Exhibit 2, on June 29,
        2016, Ms. Tascione filed a petition to dismiss the capias and
        release [the victim] from non-custodial status pursuant to
        Lancaster County Probation and Parole policy due to the fact
        that [the victim] had successfully completed drug and alcohol
        counseling at the Coatesville Treatment Center;

     18. That Ms. Tascione never made any promises to [the victim]
        throughout the entirety of her supervision;

     19. That [the victim] was a paid informant for the Pennsylvania
        Attorney General’s Office starting on April 5, 2016 until June
        14, 2016 as set forth by Agent Lauren Diller, a detective
        employed with the Pennsylvania Attorney General’s Office, as
        stated in [Appellant’s] Exhibit 5;

     20. That Agent Diller was not aware that [the victim] was a
        victim in a criminal court case or that she was going to testify
        for the Commonwealth;

     21. That Agent Diller made no promises to [the victim]
        regarding anything and that she was not aware of any open
        charges against [the victim];


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      22. That the Attorney General’s Office is a separate prosecuting
         agency from the Lancaster District Attorney’s Office and
         Columbia Borough Police Department; and

      23. That the Attorney General’s Office was not prosecuting [the
         victim].

Trial Court Opinion, 2/7/17, at 12-16 (citations omitted).

      As seen in the stipulations, Appellant concedes that the prosecutor

(Attorney Larsen) and the investigator (Detective Leddy) had no actual

knowledge that the victim (1) was an informant for the Attorney General’s

Office, which is a separate prosecuting agency from the Lancaster County

District Attorney’s Office, or that (2) the victim gave her probation officer

information regarding other individuals that were subsequently prosecuted in

a separate matter. Instead, Appellant argues that this knowledge should be

imputed to the prosecution as he contends that such information was available

to the Commonwealth.

      We need not review this particular argument in more detail as we agree

with the trial court’s finding that Appellant failed to prove that the relevant

information was helpful to Appellant. Although Appellant claims that evidence

of the dismissal of the victim’s probation gave her motive to testify favorably

for the Commonwealth, this claim is contradicted by her own stipulation:

         Ms. Tascione advised [the victim] that her probation would be
         terminated if she completed drug and alcohol counseling and
         treatment, which is consistent with the policy of the Probation
         and Parole Department of Lancaster County;

         That in accordance with [Appellant’s] Exhibit 2, on June 29,
         2016, Ms. Tascione filed a petition to dismiss the capias and
         release [the victim] from non-custodial status pursuant to

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         Lancaster County Probation and Parole policy due to the fact
         that [the victim] had successfully completed drug and alcohol
         counseling at the Coatesville Treatment Center;

         That Ms. Tascione never made any promises to [the victim]
         throughout the entirety of her supervision.

Trial Court Opinion, 2/7/17, at 12-16 (citations omitted).

      Moreover, the trial court correctly found that the alleged suppression of

the fact that Appellant was a confidential informant did not prejudice Appellant

in light of the overwhelming evidence against her. Even assuming arguendo

that the victim’s testimony were disregarded, three other eyewitnesses

testified consistently as to their account of Appellant’s shooting of the victim

and contradicting her claim of self-defense. In contrast, the witnesses for the

defense admitted that they were either too far away to accurately hear or see

the events, arrived after the shooting occurred, or misidentified the shooter

as a white male.

      We agree with the trial court’s finding that Appellant failed to show that

had the allegations regarding the victim’s status as an informant been

disclosed to the defense, that there is a reasonably probability that the result

of the proceeding would have been different. Moreover, the trial court did not

err in denying Appellant’s motion for a new trial based on after-discovered

evidence as she did not show that the admission of these allegations of the

victim’s bias would likely result in a different verdict.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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