J-S03008-17
                               2017 PA Super 106
COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

LAWRENCE DAVID AKRIE, IV

                          Appellant                 No. 215 WDA 2016


           Appeal from the Judgment of Sentence September 16, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013285-2014

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                               FILED APRIL 17, 2017

      Appellant, Lawrence David Akrie, IV, appeals from the judgment of

sentence entered on September 16, 2015, as made final by the denial of his

post-sentence motion on January 12, 2016. We hold that the trial court did

not abuse its discretion by excluding the specifics of the alleged excessive

force used by a police officer in this case and the results of the subsequent

investigation.   We further hold that the exclusion of this evidence did not

violate Appellant’s Confrontation Clause rights. As we also conclude that the

trial court did not abuse its discretion in determining that the jury verdict

was not against the weight of the evidence, we affirm.

      The trial court summarized the factual background of this case as

follows:

      In the early morning hours of May 11, 2014, Appellant visited
      Serenity Nightclub with his sisters Meredith Akrie, Sierra Akrie,
      and Iesha Akrie, in the East Liberty/Homewood section of the



* Retired Senior Judge assigned to the Superior Court
J-S03008-17


     City of Pittsburgh. At approximately 3:00 [a.m.], Sierra and
     Meredith were escorted out of the club by security because the
     two sisters were physically fighting with another woman.
     Appellant and Iesha followed their sisters outside.

     Several security guards and uniformed City of Pittsburgh police
     officers were stationed outside the club that evening. Appellant
     and his sisters were belligerent as they exited the club. Officer
     [Richard] McClain, one of the City of Pittsburgh police officers
     stationed outside, attempted to calm the group. He directed
     them towards their car and requested that they leave the
     premises, but Appellant and his sisters were very angry[ and]
     loud, and refused to leave.

     Officer McClain continued to try to calm the group, but Appellant
     yelled at Officer McClain, “Nobody better put their fucking hands
     on me.” Officer McClain responded that would not be necessary,
     and that Appellant and his sisters should return to their car.
     Appellant ran towards Officer McClain with his fists clenched,
     arm raised, and chest puffed out. He stopped within a few feet
     of Officer McClain and yelled at him, “I don’t have to go
     nowhere. If anybody touches me, I’ll mess you up. You can’t
     make me move. Don’t touch my sisters, pussy, I’ll kick your
     ass.” Officer McClain drew his taser gun and told Appellant to
     step away from him and go home, or he would deploy the taser.
     City of Pittsburgh police officer Kevin Kenney was approximately
     five feet away from Officer McClain, monitoring the situation as it
     developed.

     Officer McClain continued to attempt to calm Appellant and his
     sister[s], and have them return to their car. However, Appellant
     and his sisters refused to leave, and Appellant continued to yell
     and curse at Officer McClain. During this time, the woman whom
     Sierra and Meredith had been fighting inside the club walked
     outside.    Sierra and Meredith immediately ran towards the
     woman and resumed their attack on the woman. Officer McClain
     turned around to intervene in the altercation, and Appellant
     lunged at Officer McClain’s back.

     However, Officer Kenney ran between Appellant and Officer
     McClain before Appellant could make contact. Officer Kenney
     ordered Appellant to “get back,” and pushed Appellant
     backwards, away from Officer McClain.    As Officer Kenney



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     pushed Appellant backwards, Appellant attempted unsuccessfully
     to strike Officer Kenney’s face with his elbow.

     Appellant stumbled backwards a few feet, resumed a fighting
     stance, put his hands up, and ran towards Officer Kenney.
     Appellant grabbed Officer Kenney around the waist and legs and
     attempted to lift him into the air and onto the ground. Officer
     Kenney grabbed Appellant at the same time, and the two
     struggled with each other. Appellant was unable to push Officer
     Kenney to the ground, so he released his grip, stumbled
     backwards, and immediately resumed his fighting stance.

     Officer Kenney decided to arrest Appellant for attempting to
     strike a police officer, and he approached Appellant to effectuate
     the arrest. When Officer Kenney approached, Appellant ran
     away into the parking lot. Officer Kenney gave chase in order to
     effectuate the arrest, and attempted numerous times to grab
     Appellant in order to handcuff him, but Appellant continued to
     evade Officer Kenney.

     Shortly thereafter Appellant stopped running, faced Officer
     Kenney, and attempted to grab Officer Kenney. In response,
     Officer Kenney struck Appellant, and Appellant grabbed Officer
     Kenney around his waist and legs, attempting to knock him off
     his feet a second time. Officer Kenney struck Appellant in the
     face with his knee, and Appellant finally stopped fighting and
     dropped to the ground, where Officer Kenney was able to
     handcuff Appellant. Appellant suffered a lip injury as a result of
     the knee strike. Once Appellant was handcuffed, he apologized
     to Officer Kenney, and [advised] Officer Kenney that [the officer]
     knew Appellant’s mother.

     City of Pittsburgh police officers stopped the altercation between
     Appellant’s sisters and the unknown woman, and placed
     Meredith and Sierra in handcuffs. Officer Kenney acknowledged
     that he knew Appellant’s mother, and decided to give Appellant a
     “break” and issue Appellant a citation for summary level
     offenses, so he released Appellant that night to seek medical
     attention for his lip. . . . Appellant filed a complaint with the
     Pittsburgh Office of Municipal Investigations ([] “OMI”) against
     Officer Kenney for use of excessive force. As a result, Officer
     Kenney filed the misdemeanor charges originally contemplated
     against Appellant for his conduct that early morning outside the
     club.


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Trial Court Opinion, 6/22/16, at 8-11 (internal citations omitted).

        The procedural history of this case is as follows.   On November 14,

2014, the Commonwealth charged Appellant via criminal information with

two counts of simple assault,1 resisting arrest,2 and disorderly conduct.3 On

May 18, 2015, the Commonwealth moved in limine to prohibit Appellant

from referencing OMI’s investigation into Officer Kenney. On July 28, 2015,

the trial court granted in part and denied in part the Commonwealth’s

motion. Specifically, the trial court permitted Appellant to reference the OMI

complaint and the timing thereof.       The trial court, however, prohibited

Appellant from introducing or referencing the contents (including findings) of

OMI’s report. On July 30, 2015, Appellant was convicted on all four charges.

On September 16, 2015, the trial court sentenced Appellant to an aggregate

term of two years’ probation. On Monday, September 28, 2015, Appellant

filed a post-sentence motion. On January 12, 2016, the trial court denied

the post-sentence motion. This timely appeal followed.4


1
    18 Pa.C.S.A. § 2701(a)(3).
2
    18 Pa.C.S.A. § 5104.
3
    18 Pa.C.S.A. § 5503(a)(1).
4
  On March 2, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On April 12, 2016, Appellant filed his concise statement.
On June 22, 2016, the trial court issued its Rule 1925(a) opinion. Although
both of Appellant’s issues were included in his concise statement, the trial
(Footnote Continued Next Page)


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      Appellant presents two issues for our review:

   1. Did the trial court err in granting the Commonwealth’s [m]otion
      in [l]imine and excluding the results of the internal OMI
      investigation of the primary officer in this case, Officer
      Kenney . . . ?

   2. [A]re the guilty verdicts in this case against the weight of the
      evidence in that the verdict[s] should have shocked the
      conscience of the trial court because the testimony of Officer
      Kenney and the other officers was uncorroborated by
      uninterested parties, and the officers had great incentive to tailor
      their testimony in favor of Officer Kenney and discredit
      [Appellant]?

Appellant’s Brief at 8.

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

excluding the results of OMI’s investigation of Officer Kenney.              When

reviewing

      a trial court’s decision to grant or deny a motion in limine, we
      apply an evidentiary abuse of discretion standard of review. The
      admission of evidence is committed to the sound discretion of
      the trial court, and a trial court’s ruling regarding the admission
      of evidence will not be disturbed on appeal unless that ruling
      reflects manifest unreasonableness, or partiality, prejudice, bias,
      or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa. Super. 2016) (citation

omitted).

      Appellant argues that the trial court erred by prohibiting introduction

of the OMI investigation results.            He avers that the results of the OMI
                       _______________________
(Footnote Continued)
court contends that Appellant’s weight of the evidence claim is waived
because the concise statement was not concise. Although we agree with the
trial court that Appellant’s concise statement is not a model of clarity, we
decline to find waiver on this basis.



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investigation showed “Officer Kenney’s bias and motive to fabricate evidence

against [Appellant].” Appellant’s Brief at 20. Therefore, he contends that

the evidence was relevant under Pennsylvania Rule of Evidence 401.

Appellant also contends that the probative value of the evidence was not

“outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”         Pa.R.Evid. 403.   Finally,

Appellant argues that excluding the evidence violated his Confrontation

Clause rights.

      We conclude that the trial court did not abuse its discretion by

determining that the evidence was inadmissible. The probative value of the

evidence that the trial court excluded was very small.       As noted above,

Appellant sought to admit the substance of the OMI investigation report in

order to show Officer Kenney’s bias and his motivation for fabricating

evidence. The contents of the OMI report, including its findings, however,

were not central to showing Officer Kenney’s alleged bias and motivation for

fabricating evidence. Instead, the lynchpin of Appellant’s theory at trial was

that the filing of the OMI complaint was motivation for Officer Kenney filing

more serious charges against Appellant.        The substance of OMI’s report,

what Appellant seeks now to introduce, played no role in Officer Kenney’s

motivation to file the more serious charges.




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J-S03008-17


     Pursuant to the trial court’s ruling on the Commonwealth’s motion in

limine, Appellant was permitted to (and did) make all of these arguments.

See N.T., 7/28/15, at 10-11. The trial court specifically permitted Appellant

to cross-examine Officer Kenney about the fact that he originally charged

Appellant with only summary offenses; however, after Appellant filed a

complaint with OMI, Officer Kenney then filed the misdemeanor charges in

order to cover for himself. See id. at 10. Thus, there was little probative

value in admitting the substance of the OMI report.

     On the other hand, the risk of confusing the issues was great. 5      If

OMI’s report, and the findings thereof, were admitted into evidence it is

likely that the jury would have focused on Officer Kenney’s use of excessive

force instead of on whether Appellant committed the alleged offenses. We

find persuasive the decisions of courts in other jurisdictions which have

found the risk of confusing the issues by permitting evidence of the use of

excessive force outweighs any probative value such evidence may have in a

criminal case. E.g., United States v. Moore, 2014 WL 7344093, *2 (W.D.

Pa. Dec. 23, 2014); Washington v. Riojas, 2014 WL 5362042, *9, 184

Wash.App. 1013 (2014) (“A complete vetting of evidence as to the force

used in the arrest had a real potential for creating jury confusion about


5
  Appellant argues at great length that the OMI report, and the findings
thereof, were not unduly prejudicial. He fails to explain, however, why
admission of the OMI report would not confuse the issues for the jury. See
Appellant’s Brief at 17-20.



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whether the sergeant’s use of force mattered.”); New Jersey v. Zack, 2011

WL 112514, *5 (N.J. Super. Ct. App. Div. Jan. 14, 2011) (per curiam)

(“Whether the police used excessive force in arresting defendant . . . had the

capacity   to   confuse   the   issues   and   mislead   the   jury,   justifying   a

determination that it was inadmissible.”); California v. Alexander, 2010

WL 398249, *7 (Cal. Ct. App. Feb. 5, 2010) (“Given the slight, if any,

probative value of the evidence of excessive force, and the likelihood of

confusion of issues and undue consumption of time, we conclude that the

trial court did not err . . .    in excluding the evidence.”).     As the risk of

confusing the issues by admitting the OMI report outweighed any probative

value of the OMI report, we hold that the evidence was properly excluded

under Rule 403. Cf. Commonwelath v. O’Drain, 829 A.2d 316, 322 & n.7

(Pa. Super. 2003) (we may affirm the trial court’s admission or exclusion of

evidence on any basis supported by the record).

      Appellant also argues that exclusion of the OMI report violated his

Confrontation Clause rights.     Whether Appellant’s confrontation rights were

violated is a question of law; therefore, our standard of review is de novo

and our scope of review is plenary.6       Commonwealth v. Yohe, 79 A.3d

520, 530 (Pa. 2013). As this Court has explained, “the Sixth Amendment of

6
  Although a trial court’s granting of a motion in limine is subject to an abuse
of discretion standard of review, Ivy, 146 A.3d at 250 (citation omitted), an
error of law constitutes an abuse of discretion. Nat’l Cas. Co. v. Kinney,
90 A.3d 747, 753 (Pa. Super. 2014) (citation omitted). Thus, we ultimately
employ a de novo standard of review.



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the United States Constitution provides that, ‘In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses

against him[.]’     U.S. Const. Amend. VI. This protection has been

incorporated into the Fourteenth Amendment and thus is applicable in state

court prosecutions.”   Commonwealth v. Brown, 139 A.3d 208, 212 (Pa.

Super. 2016), appeal granted on other grounds, 2016 WL 7235309 & 2016

WL 7235589 (Pa. Dec. 14, 2016) (ellipsis in original; certain citation

omitted).

      In the context of cross-examining a testifying witness, this Court has

explained that a defendant’s right to confrontation

      means more than being allowed to confront the witness
      physically.    Indeed, the main and essential purpose of
      confrontation is to secure for the opponent the opportunity of
      cross-examination. Of particular relevance here, [the Supreme
      Court of the United States has] recognized that the exposure of
      a witness’ motivation in testifying is a proper and important
      function of the constitutionally protected right of cross-
      examination.      It does not follow, of course, that the
      Confrontation Clause of the Sixth Amendment prevents a trial
      judge from imposing any limits on defense counsel’s inquiry into
      the potential bias of a prosecution witness. On the contrary, trial
      judges retain wide latitude insofar as the Confrontation Clause is
      concerned to impose reasonable limits on such cross-
      examination based on concerns about, among other things,
      harassment, and prejudice, confusion of the issues, the witness’
      safety, or interrogation that is repetitive or only marginally
      relevant. . . . [T]he Confrontation Clause guarantees an
      opportunity for effective cross-examination, not cross-
      examination that is effective in whatever way, and to whatever
      extent, the defense might wish.

Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009) (internal

quotation marks and citations omitted; emphasis removed).


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J-S03008-17


      Appellant relies upon this Court’s statement in Bozyk that “[t]he

pertinent case law permits a police witness to be cross-examined about

misconduct as long as the wrongdoing is in some way related to the

defendant’s underlying criminal charges and establishes a motive to

fabricate.” Appellant’s Brief at 22, quoting Bozyk, 987 A.2d at 757. In this

case, as noted above, the trial court permitted Appellant to cross-examine

Officer Kenney regarding his motivation in testifying at trial. Specifically, the

trial court permitted Appellant to cross-examine Officer Kenney on whether

he was testifying against Appellant because Appellant filed an OMI complaint

against Officer Kenney. In other words, the trial court permitted Appellant

to cross-examine Officer Kenney regarding misconduct insofar as it related

to the underlying criminal charges.       The trial court exercised its broad

latitude, however, in limiting that cross-examination to avoid confusion of

the issues by not permitting Appellant to cross-examine Officer Kenney

about the findings of the report.

      Appellant also cites Commonwealth v. Sullivan, 402 A.2d 1019 (Pa.

1979), in support of his argument that his Confrontation Clause rights were

violated.   Sullivan, however, is distinguishable from the case at bar.       In

Sullivan, the investigation into the officer’s actions occurred prior to trial;

however, the outcome of that investigation depended upon whether the

defendant was convicted or acquitted at trial.      In other words, the police

officer would be suspended if the defendant were acquitted and would be



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J-S03008-17


exonerated if the defendant were convicted. See id. at 1020. In this case,

the OMI investigation fully concluded prior to trial. Thus, Officer Kenney’s

discipline did not depend on the outcome of Appellant’s criminal trial.

Furthermore, as noted above, in this case the trial court permitted Appellant

to cross-examine Officer Kenney regarding his motivation for testifying

against Appellant.      Accordingly, we hold that Appellant’s Confrontation

Clause rights were not violated. Therefore, Appellant is not entitled to relief

on his first claim of error.

      In his second issue, Appellant argues that the verdict in this case was

against the weight of the evidence.       A challenge to the weight of the

evidence must first be raised at the trial level “(1) orally, on the record, at

any time before sentencing; (2) by written motion at any time before

sentencing; or (3) in a post-sentence motion.” In re J.B., 106 A.3d 76, 97

(Pa. 2014) (citation omitted). Appellant properly preserved his weight of the

evidence claim by raising the issue in his post-sentence motion.

      “[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.” Commonwealth v. Tejada, 107 A.3d 788,

795-796 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015)

(internal alteration and citation omitted). “[W]e do not reach the underlying

question of whether the verdict was, in fact, against the weight of the

evidence. . . . Instead, this Court determines whether the trial court abused



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its discretion in reaching whatever decision it made on the motion[.]”

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015)

(citation omitted).

      Appellant argues that the verdict was against the weight of the

evidence because the police officers’ testimony at trial was not credible. As

this Court has explained:

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super. 2012), appeal

denied, 64 A.3d 630 (Pa. 2013) (citation omitted).

      In this case, the trial testimony was not so unreliable and/or

contradictory as to make the verdict mere conjecture. The testimony of all

of the Commonwealth’s witnesses was generally consistent.           Furthermore,

Appellant fails to explain how the testimony of the two non-police officer

witnesses who testified on behalf of the Commonwealth was tainted.

Instead, Appellant focuses only on the testimony of the police officers.

      Moreover, Appellant’s argument that the police officers who testified in

this case had a greater interest in the outcome of this case than he did is

without merit. Appellant was facing jail time when he testified at trial and

the jury determined that his testimony was as biased, if not more biased

than, the police officers’ testimony.         The trial court, who viewed the


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witnesses’ demeanors at trial, determined that the verdict did not shock its

sense of justice. We ascertain no abuse of discretion in this determination.

      In sum, we hold that the trial court did not abuse its discretion by

excluding the specifics of the alleged excessive force used by the police

officer in this case and the results of the subsequent investigation.     We

further hold that the exclusion of this evidence did not violate Appellant’s

Confrontation Clause rights.     As we also conclude that Appellant is not

entitled to relief on his weight of the evidence claim, we affirm.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2017




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