J-S40040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KIMBERLY N. REEVES                         :
                                               :
                       Appellant               :   No. 883 EDA 2017

           Appeal from the Judgment of Sentence February 10, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000967-2016


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 31, 2018

        Kimberly Reeves appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, after a jury convicted her of one

count of aggravated assault – serious bodily injury,1 one count of aggravated

assault – serious bodily injury of an enumerated person,2 two counts of

aggravated assault – bodily injury of an enumerated person,3 two counts of

attempting to put an enumerated person in fear of imminent serious bodily




____________________________________________


1   18 Pa.C.S. § 2702(a)(1).

2   18 Pa.C.S. § 2702(a)(2).

3   18 Pa.C.S. § 2702(a)(3).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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injury,4 two counts of simple assault,5 two counts of attempting to put another

in fear of imminent serious bodily injury by physical menace,6 and two counts

of recklessly endangering another person.7 Upon careful review, we affirm.

        The trial court summarized the relevant facts underlying this case as

follows:

        Briana Levanture (hereinafter [] Levanture) is employed by the
        Delaware County Children and Youth Services (hereinafter CYS)
        and has been so employed for the past three years. Through her
        employment, [] Levanture had the occasion to become involved
        with [Reeves] as her caseworker. On January 26, 2016, []
        Levanture, along with her co-worker, [] Samantha Dawson
        (hereinafter [] Dawson), went to visit [Reeves] at her home,
        located at 279 Windermere Avenue in Lansdowne, PA. The visit
        was scheduled via appointment made with [] Levanture’s superior
        Kenneth Kelly; [] Levanture attempted an unannounced visit the
        week prior without success.

        [] Levanture and [] Dawson timely arrived for the scheduled home
        visit at 3:00 p.m. [Reeves’] aunt, [Janet] McDaniel, let the
        women into [Reeves’] home; it was not unusual for [] McDaniel to
        be present during home visits. [Reeves], [] Dawson, [] Levanture,
        and [] McDaniel all sat around the dining room table. [] Levanture
        was aware that a [protection from abuse order (“PFA”)] had been
        issued against [Reeves] earlier that day; however, without any
        responsibility or authority to inform [Reeves] of the PFA, []
        Levanture did not mention the PFA to [Reeves] during the
        beginning of the meeting.

        Within the initial 40-45 minutes of the visit, [Reeves] did not
        inquire about the whereabouts of her children; however, once

____________________________________________


4   18 Pa.C.S. § 2702(a)(6).

5   18 Pa.C.S. § 2701(a)(1).

6   18 Pa.C.S. § 2701(a)(3).

7   18 Pa.C.S. § 2705.

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      [she] became concerned that the children were not home from
      school at their usual time, [] Levanture made the decision to
      inform [Reeves] that the children were with their father pursuant
      to the PFA issued against her.

      After hearing the news, [Reeves] became increasingly agitated,
      got up from the table and started pacing around the dining room
      and living room using profanity. [Reeves] called [] Levanture and
      [] Dawson ‘bitches’ and accused them of using crack cocaine.
      [She] told the women to get the ‘fuck out of her house.’

      At [Reeves’] demand, [] Levanture immediately began to gather
      her things and got up from the table. [] Dawson was in the
      process of answering a question posed by [] McDaniel when
      [Reeves] approached [] Levanture and punched her in the face,
      on the right side of her nose[,] causing [] Levanture to fall into
      the chair behind her. The assault did not stop there; [Reeves]
      continued to hit [] Levanture after she fell, leaving [] Levanture
      helpless and unable to exit the situation. [Reeves] did not stop
      assaulting [] Levanture despite [] Dawson and [] McDaniel yelling
      at [Reeves] to stop.

      In order to help her co-worker, [] Dawson grabbed a hold of
      [Reeves’] shoulders, pulling her off of [] Levanture. [Reeves] then
      grabbed [] hold of [] Dawson’s hair and began punching her face
      several times. [] McDaniel attempted to pull [Reeves] off of []
      Dawson, which caused [] Dawson to fall to the floor. With []
      [Mc]Daniel restraining [Reeves’] hands, [Reeves] kicked []
      Dawson in the jaw while she lay on the floor.

      [] Dawson screamed for [] Levanture to call 911. With the
      commotion, [Reeves’] oldest daughter (not a subject of the PFA)
      came down from upstairs asking what was going on and
      attempting to control [Reeves]. When [] Levanture and [] Dawson
      were finally able to free themselves from [Reeves’] assault, they
      called 911 and reported the situation; Lansdowne Police
      Department responded to the call within minutes. After [Reeves’]
      arrest, [] Levanture and [] Dawson were taken to the Lansdowne
      Police Department where their injuries were photographed and
      then both women went to Delaware County Memorial Hospital for
      treatment.

Trial Court Opinion, 10/25/17, at 1-3 (internal citations omitted).



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      At trial, the Commonwealth presented medical records from Delaware

County Memorial Hospital that showed Levanture suffered fractured nasal

bones and a sprain to the left shoulder joint. As a result of these injuries,

Levanture missed several days of work and required one month of physical

therapy for her shoulder. Levanture eventually went out on medical leave for

her mental health and wellbeing following this incident in Reeves’ home.

Dawson’s medical records indicated she suffered sprains to the cervical and

thoracic spines and a laceration to her face.     Therefore, Dawson missed

several days of work for doctor’s appointments and physical therapy, and

lacked a full range of motion in her neck for a period of time. As a result of

this incident, Dawson no longer works for CYS for her own wellbeing.

      After a trial, held December 6-7, 2016, a jury found Reeves guilty of the

above charges. On February 10, 2017, the trial court sentenced Reeves to

twenty-four to forty-eight months’ confinement and four years of consecutive

probation. In March 2017, trial counsel filed a timely notice of appeal, but

subsequently petitioned the trial court to withdraw, which request was

granted. The Office of the Public Defender was appointed to represent Reeves

and requested an extension of time to file a Pa.R.A.P. 1925(b) statement.

Thereafter, the Office of the Public Defender filed an application to withdraw

its representation due to a conflict.   New counsel was appointed to assist

Reeves, who filed another conflict petition and application to withdraw, which

the trial court granted. On June 27, 2017 new counsel was again appointed,

and filed an application for an extension in which to file a Rule 1925(b)

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statement. The trial court granted that request and, on September 12, 2017,

counsel filed a timely statement of matters complained of on appeal.

     Reeves presents the following issues for our consideration on appeal:

     1. Whether the [t]rial [c]ourt erred in denying [Reeves’] motion
        to charge the jury with [Reeves’] defense of [property
        justification], and denying [her] request to charge the jury with
        the definition of ‘trespass,’ when substantial evidence was
        adduced at trial to substantiate the giving of said instructions
        in that [Reeves] requested multiple times for the alleged
        victims to leave and said alleged victims did not leave upon
        request[?]

     2. Whether the [t]rial [court] erred in not instructing the jury on
        the relationship between [Reeves’] requested charge of [a
        defense of property justification], and the instruction given for
        [the use of non-deadly force in self-defense justification], when
        the [t]rial [c]ourt denied [Reeves’] oral motion to charge the
        jury with [Reeve’s] [defense of property justification][?]

     3. Whether the [t]rial [c]ourt erred in limiting the jury’s
        consideration of the issues in [Reeves’] case in violation of
        [Reeves’] rights under Article I, Section 9 of the Pennsylvania
        Constitution, and under the Sixth and Fourteenth Amendments
        to the United States Constitution, when the [t]rial [j]udge
        instructed the jury that ‘[t]his case is about an alleged assault
        and Defendant’s contention that she acted in self-defense.
        That’s what this case is about, nothing else’[?]

     4. Whether the [t]rial [c]ourt abused its discretion in sustaining
        the Commonwealth’s objections on grounds of legal
        conclusions to [Reeves’] cross-examination, when said
        questions were proper subjects of cross-examination[?]

     5. Whether the [t]rial [c]ourt erred in denying [Reeves’] request
        to treat [] Ken Kelly as a hostile witness pursuant to Pa.R.E.
        611(c) when [] Kelly was a hostile witness and/or a witness
        identified with an adverse party in that [] Kelly worked for the
        Delaware County Children and Youth Services, the same
        agency for which the alleged victims worked at the time of the
        alleged altercation[?]



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      6. Whether the [t]rial [c]ourt erred in sustaining the
         Commonwealth’s objection during [d]efense [c]ounsel’s closing
         argument, when the Commonwealth opened the door to
         [d]efense [c]ounsel’s comment on why the Commonwealth did
         not call the doctor who diagnosed the victims for purposes of
         worker’s compensation by eliciting testimony through the
         victims of said doctor’s diagnoses, respectively, and by
         mentioning in its opening statement that the alleged victims
         ‘went to the hospital to have their injuries tended to’[?]

Appellant’s Brief, at 4-6.

      Reeves’ first two arguments concern the refusal of the trial court to

administer jury instructions regarding her defense of property justification.

Our standard of review is well-settled:

      In reviewing a jury charge, we determine whether the trial court
      committed a clear abuse of discretion or an error of law which
      controlled the outcome of the case. We must view the charge as
      a whole; the trial court is free to use its own form of expression
      in creating the charge. Our key inquiry is whether the instruction
      on a particular issue adequately, accurately and clearly presents
      the law to the jury, and is sufficient to guide the jury in its
      deliberations.

Commonwealth v. Wise, 171 A.3d 784, 787-88 (Pa. Super. 2017) (internal

citations and quotations omitted).

      Defendants are generally entitled to jury instructions they request, so

long as they are supported by the evidence. Commonwealth v. Hairston,

84 A.3d 657, 668, (Pa. 2014).        The Pennsylvania Supreme Court has

explained:

      [T]he reason for this rule is that instructing the jury on legal
      principles that cannot rationally be applied to the facts presented
      at trial may confuse them and place obstacles in the path of a just
      verdict. A criminal defendant must, therefore, establish that the
      trial evidence would reasonably support a verdict based on the



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         desired charge and may not claim entitlement to an instruction
         that has no basis in the evidence presented during trial.

Id. (internal citations and quotations omitted). A trial court’s refusal to give

a requested charge does not merit reversal unless the defendant was

prejudiced by that refusal. Commonwealth v. Sandusky, 77 A.3d 663, 667

(Pa. Super. 2013), quoting Commonwealth v. Thomas, 904 A.2d 964, 970

(Pa. Super. 2006).

         A defendant is entitled to the defense of property instruction where she

believes force is immediately necessary “to prevent or terminate an unlawful

entry or other trespass upon land.” 18 Pa.C.S. § 507(a)(1). Reeves has not

demonstrated that she was entitled to such an instruction.

         Levanture and Dawson were present in Reeves’ home for a pre-arranged

visit.   While Reeves herself did not physically admit the workers onto her

property, the two were invited guests until about forty-five minutes into the

meeting, when Levanture informed Reeves of the existence of the PFA against

her. Once Reeves became angry and demanded that Levanture and Dawson

leave, the CYS workers did not attempt to stay longer than the time necessary

to collect their belongings.    In the course of their attempted exit, Reeves

began her assault.       Reeves presented no evidence that the two women

lingered on her property or showed any sign of refusing to leave. The sole

evidence conceivably supporting a defense of property instruction came from

Reeves’ own testimony that she screamed for the women to leave. Morever,

there was no evidence that the force used by Reeves was necessary to eject

the workers from her home. Indeed, Reeves’s own testimony indicated that

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Levanture began to place her belongings into her bag after being asked to

leave.   N.T. Trial, 12/7/16, at 125 (“And she’s sitting there with her legs

crossed, and then I see her sliding what looks to be like her cell phone down

in her bag.”). In light of the foregoing, it was not an abuse of discretion for

the trial court to refuse to give the defense of property justification.8

       Reeves     next   argues     the    trial   court   erred   by   sustaining   the

Commonwealth’s objections to defense counsel’s cross-examination of

Levanture on the grounds that the questions called for legal conclusions.

Reeves argues that, in sustaining the objections, Reeves was improperly

prohibited from eliciting testimony from Levanture regarding her personal

perception of her injuries. Reeves is entitled to no relief.

       Questions regarding the admission of evidence are left to the
       sound discretion of the trial court, and we, as an appellate court,
       will not disturb the trial court’s rulings regarding the admissibility
       of evidence absent an abuse of that discretion. An abuse of
       discretion is not merely an error of judgment; rather, discretion is
       abused when the law is overridden or misapplied, or the judgment
       exercised is manifestly unreasonable, or the result of partiality,
       prejudice, bias, or ill-will, as shown by the evidence or the record.

Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

____________________________________________


8Because we find that Reeves was not entitled to an instruction on defense of
property, we need not address her next two claims that she was entitled to
an instruction clarifying the interplay between the defenses of self-defense
and defense of property and that the trial court improperly “limited” the jury’s
consideration of the issues.




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       Here, trial court sustained the Commonwealth’s objections to the

following questions on the basis that they called for legal conclusions because

the phrasing of the questions tracked the statute:9

       DEFENSE COUNSEL: At any point in time did you believe that you
       might lose the function of some type of body organ or—

                                           ...

       DEFENSE COUNSEL: In regard to your injury, you really didn’t
       have any impairment [of] physical condition, did you?

N.T.   Trial,   12/6/16,    at   148,    149.    After   the   court   sustained   the

Commonwealth’s objections, counsel rephrased his questions as follows:

       DEFENSE COUNSEL: Did you lose your sense of smell?

       WITNESS: No.

       DEFENSE COUNSEL: So your nose still works?

       WITNESS: Yes.

Id. at 149. Because counsel was able to effectively cross-examine the witness

regarding her injuries, Reeves suffered no prejudice.

       Reeves also claims that the trial court improperly sustained the

Commonwealth’s general objection to the following question:

       DEFENSE COUNSEL: But you didn’t find your injuries severe
       enough to require you to go to the hospital—

       COMMONWEALTH: Objection Judge.


____________________________________________


9See 42 Pa.C.S. § 6302 (defining serious bodily injury as “injury which creates
a substantial risk of death or which causes serious, permanent disfigurement
or protracted loss or impairment of the function of any bodily member or
organ”).

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Id. at 150. Defense counsel immediately rephrased the question as follows:

      DEFENSE COUNSEL: You didn’t request to the police officer to go
      to the hospital immediately?

      WITNESS: No.

Id.

      Again, Reeves was able to elicit the desired information from Levanture

upon rephrasing the questions. Accordingly, even if the trial court erred in

sustaining the Commonwealth’s non-specific objection, Reeves cannot

demonstrate that she suffered any prejudice as a result of the court’s ruling.

      Next, Reeves argues the trial court erred in denying her request to treat

Ken Kelly as a hostile witness. Particularly, Reeves argues that Kelly should

have been deemed a hostile witness based upon his employment at CYS,

which rendered him “a witness identified with an adverse party.” Appellant’s

Brief, at 37, quoting Pa.R.E. 611(c). Rule 611(c) provides:

      Leading questions should not be used on direct or redirect
      examination except as necessary to develop the witness’s
      testimony. Ordinarily, the court should allow leading questions:

       (1) on cross-examination; and

       (2) when a party calls a hostile witness, an adverse party, or a
      witness identified with an adverse party. A witness so examined
      should usually be interrogated by all other parties as to whom the
      witness is not hostile or adverse as if under redirect examination.

Pa.R.E. 611(c).

      A witness may be treated as hostile where “the testimony of the witness

is unexpected, contradictory to earlier statements, and harmful to the party

calling the witness, and where an injustice would result if the request to treat


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the witness as hostile is denied.” Commonwealth v. Bibbs, 970 A.2d 440,

453 (Pa. Super. 2009), citing Commonwealth v. Lambert, 765 A.2d 306,

357-59 (Pa. Super. 2000). Trial courts have wide discretion in controlling the

use of leading questions, and a court’s decision to allow or disallow them will

not be reversed absent an abuse of discretion. Id. at 453.

         Here, Reeves called Kelly to establish that Reeves had had previous,

unfavorable interactions with Levanture in the course of Levanture’s

employment with CYS. His testimony was elicited to lend credibility to the

claim that Reeves’ assault was justified. The trial court observed that “Kelly’s

testimony was cooperative, not biased or unexpected, and his demeanor

towards counsel was professional and appropriate. There was no reason to

treat [] Kelly as a hostile witness solely because he was employed by CYS as

well.”    Trial Court Opinion, 10/25/17, at 13.        We can discern no abuse of

discretion on the part of the trial court in refusing Reeves’ groundless request

to treat Kelly as a hostile witness.

         Finally,   Reeves   argues   the   trial   court   erred   in   sustaining   a

Commonwealth objection to defense counsel’s closing argument. The relevant

portion of the closing is as follows:

         DEFENSE COUNSEL: But, funny, the doctor [Levanture and
         Dawson] go to the [day after the assault] finds fractures, spinal
         injuries, and all these other injuries. This is a determination you
         can make, but I don’t think the emergency room would have
         missed those things. I don’t think they would have. If there were
         serious injuries, the emergency room would have caught that.
         They wouldn’t have discharged them with just ibuprofen . . .[.]
         But funny, the doctor who’s responsible for putting people on
         worker’s [compensation] and some other things, he finds a host

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      of injuries. Why didn’t that doctor appear?     I argue that he
      probably knew—

      COMMONWEALTH: Objection, Judge.

      THE COURT: Basis?

      COMMONWEALTH:         Speculation with regard to why evidence
      wasn’t presented.

      THE COURT: Sustained.

N.T. Trial, 12/7/16, 205-06.

      At trial, both Levanture and Dawson testified as to their injuries and

diagnoses; neither witness’s testimony provoked an objection from defense

counsel.   There is no evidence that Reeves ever subpoenaed the treating

physicians to assess what they did or did not know, and they did not testify

at trial. A closing argument must be based upon evidence in the record or

reasonable inferences therefrom. Commonwealth v. Culver, 51 A.3d 866,

878 (Pa. Super. 2012) (internal citations omitted).    Here, there was no

evidence of record to support counsel’s speculative statements. Accordingly,

the trial court properly sustained the Commonwealth’s objection, and Reeves’

final claim is meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/18



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