J-S14013-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               : IN THE SUPERIOR COURT OF
                                            :      PENNSYLVANIA
                    Appellee                :
                                            :
               v.                           :
                                            :
KENISHA TYLER,                              :
                                            :
                    Appellant               : No. 532 EDA 2014

           Appeal from the Judgment of Sentence January 16, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0008610-2012

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED APRIL 14, 2015

      Appellant, Kenisha Tyler (“Tyler”), appeals from the judgment of

sentence entered on January 16, 2014 following her convictions for simple

assault, 18 Pa.C.S.A. § 2701, aggravated assault, 18 Pa.C.S.A. § 2702, and

conspiracy, 18 Pa.C.S.A. § 903. For the reasons that follow, we affirm the

convictions.

      The trial court aptly summarized the evidence introduced at trial as

follows:

               The complainant, Ms. Joh'nae Nicole Thompson
               [(“Thompson”)], testified to two separate events
               occurring on March 18, 2012 and March 19, 2012.
               (N.T., 8/1 9/12 pgs. 26 — 83). On March 18, 2012
               at approximately 3:00 p.m., while walking to work,
               [Thompson] encountered [Tyler]. (N.T., 8/19/12 pg.
               27). [Tyler] began yelling at [Thompson] "Do you
               want to fight?"         (N.T., 8/1 9/12 pg. 28).
               [Thompson] answered [Tyler] that she did not want
               to fight her [and] that she was on her way to work[;]
J-S14013-15


          [Thompson] then continued walking to work. [Tyler]
          followed and yelled out to [Thompson] again asking
          her if she wanted to fight and [Thompson]
          responded in the same way, and continued walking.
          (N.T., 8/19/12 pg. 28).           [Tyler] then told
          [Thompson] "No, you want to fight me, so we're
          going to fight[,]" then threw a punch that hit
          [Thompson] on the left side of her face. (N.T.,
          8/19/12 pgs. 28, 29). [Thompson] felt she had no
          choice but to defend herself and began to fight back
          with [Tyler]. (N.T., 8/19/12 pg. 29, 53).

          [Thompson] testified that while she was engaged
          with [Tyler], more women, that she did not
          recognize, began punching, kicking, and jumping on
          her.   (N.T., 8/19/12 pgs. 29-30, 59, 60).       She
          recalled being beaten by the entire group, including
          [Tyler], for about three minutes until she was
          eventually pulled out from under the assailants by a
          neighbor. (N.T., 8/19/12 pg. 31). [Thompson] was
          shaken up by the incident but was able to walk
          home[;] her mother and father were home when she
          arrived, and they helped her to calm down.
          [Thompson] testified that she received a chipped
          tooth, a black eye, a few bumps on her face and
          several scrapes on her body from this incident.
          (N.T., 8/19/12 pg. 31). Her mother took pictures of
          her injuries shortly after she arrived home. (N.T.,
          8/19/12 pg. 44).

          On March 19, 2012 [Thompson] went to the police
          station to report the assault from the previous
          evening.     She was directed to the Southwest
          Detectives in the 18th district located on 55th Street
          and Pine Street, and spoke with Detective Campbell
          about the incident with [Tyler] that occurred March
          18, 2012. (N.T., 8/19/12 pg. 33). [Thompson]
          testified that she was speaking with the detective
          until about 2:30 p.m., after speaking with the
          detective she went directly home.

          When she arrived home from the police station[,]
          she was sitting outside with her mother, father,



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          aunts, cousins and some neighbors explaining what
          happened the night before and at the police station.
          [Thompson] stated that while she was outside she
          saw [Tyler]'s sisters, Kiera and Amarra, approaching
          from the corner. (N.T., 8/19/12 pg. 34). When
          Kiera saw her she taunted [Thompson] yelling "My
          sister mangled your face." [Thompson] responded
          "You are a stupid bitch and so is your sister." Kiera
          then threw a punch at her. (N.T., 8/19/12 pg. 35,
          64).

          [Thompson] defended herself and began fighting
          Kiera. While [Thompson] was already engaged with
          Kiera, Amarra began punching her as well. This
          altercation went on for about two minutes until
          neighbors broke the three of them apart. (N.T.,
          8/19/12 pgs. 35-36).

          Kiera and Amarra then left only to return five
          minutes later with [Tyler] and approximately thirty
          other people on foot and in vehicles. (N.T., 8/1 9/12
          pgs. 36, 67, 68). The crowd with [Tyler] and her
          sisters rushed over and attacked [Thompson]'s
          family. Kiera attacked [Thompson], and while they
          were engaged [Tyler] came from behind [Thompson]
          and punched her in the face.         [Tyler]'s punch
          knocked [Thompson] down on top of [Tyler]'s sister,
          Kiera.   (N.T., 8/19/12 pgs. 37, 68 69).        While
          [Thompson] was on the ground [Tyler] grabbed her
          hair and slammed her head into a cobblestone wall
          twice. The melee stopped shortly thereafter. (N.T.,
          8/19/12 pgs. 38, 70).

          [Thompson] was rushed to the University of
          Pennsylvania Hospital by ambulance. (N.T„ 8/19/12
          pg. 39). She was treated and admitted through
          emergency for multiple abrasions throughout her
          upper extremities, with a contusion to her orbital and
          orbital swelling resulting from a left orbital flora
          fracture[;] she stayed at the hospital for three days.
          (N.T., 8/19/12 pg. 41, 8/20/12 pg. 47).            She
          returned to the hospital March 26, 2012 for surgery
          to correct the broken bone, and was admitted to the



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           hospital, for recovery, for four days. (N.T., 8/19/12
           pg. 41).

           As a result of the injuries sustained during the
           incident, [Thompson] had quadruple vision for about
           four months, and was placed on medical deferment
           from enlisting in the military. (N.T., 8/19/12 pgs.
           42-43). She was cleared for active military duty on
           July 26th, 2013. N.T., 8/19/12 pg. 42).1

                                   *      *    *

           Philadelphia Police Officer Pamela Roberts testified
           that on March 19, 2012 she was working the activity
           desk inside the nineteenth district. (N.T., 8/20/13
           pg. 41, 42). On that day, [Thompson] came in to
           make a police report.       (N.T., 8/20/13 pg. 42).
           [Thompson] told Officer Roberts that she had been
           assaulted by the [Tyler]. (N.T., 8/20/13 pg. 44, 45).
           [Thompson] told Officer Roberts that she was
           walking to the store when [Tyler] approached her,
           alongside five to six black females, and asked if she
           wanted to fight. (N.T., 8/20/13 pg. 45). When
           [Thompson] came to make the police report, Officer
           Roberts noticed that she had a black right eye and
           her front bottom tooth was chipped. (N.T., 8/20/13
           pg. 45). Officer Roberts documented all of this on a
           75-48 incident report and later sent the report to
           Southwest Detectives. (N.T., 8/20/13 pg. 45).

Trial Court Opinion, 8/1/2014, at 4-8.

     On August 21, 2013, a jury convicted Tyler of the three above-

referenced crimes. The trial court sentenced her to 11 and one half to 23

months of confinement in the county prison on the simple assault conviction,

five years of probation on the aggravated assault conviction, and five years


1
   The trial court also summarized the testimony of Thompson’s mother,
Christina Miller-Marcus, whose recollection of events was consistent with and
supportive of Thompson’s testimony.


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of probation (concurrent) on the conspiracy conviction.             This appeal

followed, in which Tyler presents the following seven issues for our

consideration and determination:

      1.    Did the trial court err during jury selection by
            engaging in excessive rehabilitation of several
            potential jurors who stated that they would be more
            likely to believe police witnesses?

      2.    Did the trial court err in allowing inflammatory color
            photographs of [Thompson’s] facial injuries to be
            published to the jury?

      3.    Did the trial court err and cause irreparable harm
            and prejudice to [Tyler] when, while [Tyler] was
            testifying before the jury, the trial court told [Tyler]
            that she had committed a crime?

      4.    Did the trial court err in refusing to give a charge for
            Simple Assault with regard to the incident that
            occurred on March 19, 2012, because there was no
            risk of death to [Thompson] and [Thompson] did not
            suffer serious permanent disfigurement or protracted
            loss of the function of any bodily member or organ?

      5.    Did the trial court err in refusing to include malice
            and a definition thereof in its charge for Aggravated
            Assault as a Felony of the First Degree?

      6.    Did the trial court err in interrupting [Tyler’s] counsel
            and engaging in a lengthy soliloquy during closing
            argument, causing harm and prejudice to [Tyler],
            when counsel simply and correctly read the
            Aggravated Assault statute for which [Tyler] had
            been charged?

      7.    Was there sufficient evidence as a matter of law that
            [Tyler] was guilty of Aggravated Assault as a Felony
            of the First Degree and Conspiracy to commit the
            same as to events that occurred on March 19, 2012?

Tyler’s Brief at 4-5.


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      For her first issue on appeal, Tyler claims that she was not tried before

an impartial jury because during voir dire the trial court “excessively

rehabilitat[ed] potential jurors who stated that they would be more likely to

believe police testimony rather than testimony from civilian witnesses.”

Tyler'’ Brief at 10.   Conversely, Tyler contends that a “pro-defense juror”

was not similarly rehabilitated and then excused.     Id. According to Tyler,

the trial court’s conduct required her to use preemptory challenges against

jurors that should have been dismissed for cause.

      The scope of voir dire is at the discretion of the trial court.

Commonwealth v. Ellison,          902   A.2d   419,   424   (Pa.   2006).   “The

opportunity to observe the demeanor of the prospective juror and the tenor

of the juror's answers is indispensable to the judge in determining whether a

fair trial can be had in the community. Claims of impartiality by prospective

jurors are subject to scrutiny for credibility and reliability as is any

testimony, and the judgment of the trial court is necessarily accorded great

weight.” Commonwealth v. Bachert, 453 A.2d 931, 937 (Pa. 1982). This

Court should not reverse decisions of the trial judge concerning voir dire in

the absence of palpable error.     Ellison, 902 A.2d at 424.       The test for

determining whether a prospective juror should be disqualified is whether he

is willing and able to eliminate the influence of any scruples and render a

verdict according to the evidence.      Cordes v. Associates of Internal




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Med., 87 A.3d 829, 864 (Pa. Super.) (en banc), appeal denied, 102 A.3d

986 (Pa. 2014).

     Tyler directs our attention to the testimony of three jurors, each of

whom answered in the affirmative to a question on a jury questionnaire

regarding whether they would be more likely to believe the testimony of

police officers because of their job. The relevant testimony of these three

witnesses, against whom Tyler exercised preemptory challenges, is as

follows, beginning with juror Maurice O’Donnell:

     [COURT]:          You also said that you would be more likely to
                       believe the testimony of a police officer or anybody
                       in law enforcement because of their job; is that
                       right?

     [PANELIST]:       Yes, sir.

     [COURT]:          Here’s the real question: If a police officer comes in
                       here and testifies, are you able to evaluate his or her
                       testimony and make a determination – is he telling
                       the truth or not; is he exaggerating or not; is this
                       reliable or not – or are you telling me with this
                       answer that if a police officer testifies, it must be
                       true, he’s a police officer?

     [PANELIST]:       I think you have to take in the sense of this is a
                       member of the law enforcement community and that
                       he is a responsible – he or she is a responsible
                       individual; otherwise, they shouldn’t be in their
                       current position.

                       I know good police officers and bad police officers.

     [COURT]:          So if I understand what you’re saying, in some
                       cases, you might believe the police officers; in some
                       cases, you might not?




                                    -7-
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     [PANELIST]:       Yes, sir.

     [COURT]:          So based on your conversation and your
                       questionnaire, it’s my understanding that there’s no
                       reason why you would not be a fair juror.

                       There’s no reason why you can’t sit on this jury,
                       correct?

     [PANELIST]:       Correct.

N.T., 8/19/2013,2 at 40-41.

     The relevant testimony of juror Iwona Herok:

     [COURT]:          So you expect police officers to tell the truth?

     [PANELIST]:       Yes.

     [COURT]:          But the question is, if you’re sitting on this jury, are
                       you able to evaluate all of the witnesses, including
                       any police officers – I don’t know if there will be
                       police witnesses; but if there are police witnesses,
                       would you be able to evaluate their testimony and
                       make a determination whether they’re telling the
                       truth or not or since they’re a police officer, you’re
                       just going to accept whatever they say – it must be
                       the truth.

     [PANELIST]:       I would expect them to tell the truth since – I don’t
                       know. I think all police officers, it is their job. It’s
                       part of their job to be honest with everybody. So I
                       would expect them to be honest when they’re on the
                       jury stand. Like if it was me on there, everybody
                       would expect me to tell the truth, not to lie under
                       the oath and pay the consequences.

     [COURT]:          Okay. So you’re telling me you expect every witness
                       to tell the truth?



2
  The transcript of the jury selection process was incorrectly dated August
19, 2014.


                                    -8-
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     [PANELIST]:      Yes. If they’re honest, yes.

     [COURT]:         All right. So when you say you expect police officers
                      to tell the truth, it’s not because of their job; it’s
                      because they’re witnesses?

     [PANELIST]:      Because they’re under oath like myself; if you’re
                      under oath, you should be telling the truth, not doing
                      something that you would have to pay consequences
                      for.

     [COURT]:         Okay. Can you accept the possibility that sometimes
                      people testify and they don’t tell the truth?

     [PANELIST]:      That’s hard to believe, but it’s a possibility.

     [COURT]:         So are you able to sit on this jury and make that
                      kind of determination – is this witness telling the
                      truth or is this witness telling me something else?

     [PANELIST]:      True.

     [COURT]:         So then in some cases, you might believe a police
                      officer; in some cases, you might not?

     [PANELIST]:      True.

     [COURT]:         So having gone through all these questions with you
                      and reviewing your questionnaire, it’s my impression
                      that there’s no reason why you would not be a fair
                      juror.

                      There’s no reason why you can’t sit on this jury,
                      correct?

     [PANELIST]:      Correct.

Id. at 74-76.

     The relevant testimony of juror Robert Peck:

     [COURT]:         You also said that you would be more likely to
                      believe the testimony of a police officer or anybody



                                   -9-
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                       in law enforcement because of their job; is that
                       right?

     [PANELIST]:       Yes.

     [COURT]:          Here’s the real question: If a police officer comes in
                       here and testifies, are you able to evaluate his or her
                       testimony and make a determination – is he telling
                       the truth or not; is he exaggerating or not; is this
                       reliable or not – or are you telling me with this
                       answer that if a police officer testifies, it must be
                       true – he’s a police officer.

     [PANELIST]:       I would listen to him carefully and determine
                       whether he was telling the truth or not.

     [COURT]:          So in some cases, you might believe the police
                       officer; in some cases, you might not?

     [PANELIST]:       Correct.

     [COURT]:          Based on our discussion and your questionnaire, it
                       appears that there’s no reason why you would not be
                       a fair juror.

                       There’s no reason why you can’t serve on this jury,
                       correct?

     [PANELIST]:       Correct.

Id. at 92-93.

     Finally, the testimony of “pro-defense’ juror Lucas Brown, who the trial

court dismissed for cause:

     [COURT]:          When I was asking questions of the panel, you raised
                       your hand.

                       Do you remember what that was for?

     [PANELIST]:       That if I knew anybody was in here.




                                   - 10 -
J-S14013-15


     [COURT]:           Yes.

     [PANELIST]:        I mean, I don’t know you personally, but I know who
                        you are.

     [COURT]:           How do you know me?

     [PANELIST]:        My brother-in-law and my sister are defenders.

     [COURT]:           And they complain about me a lot?

     [PANELIST]:        I didn’t say that.

     [COURT]:           So you recognize my name, but we’ve never met.
                        I’ve never seen you as far as I know.

     [PANELIST]:        I’m not sure.

     [COURT]:           Okay. What you’ve just described, is there anything
                        about that that would prevent you from being a fair
                        juror if you were sitting on this case?

     [PANELIST]:        Beyond like my already personal opinions about this?

                        Probably not.

     [COURT]:           Well, while we’re on the subject, what are your
                        personal opinions that you think might prevent you
                        from being fair?

     [PANELIST]:        The system, I don’t really think it works. We have a
                        broken school district.    We put money into the
                        prisons left and right.

Id. at 55-56.

     Based upon our review of the above testimony in its entirety, we

cannot agree with Tyler that the trial court “excessively rehabilitat[ed]”

jurors O’Donnell, Herok, and Peck. Instead, the certified record reflects only

that the trial court questioned these jurors regarding their questionnaire



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answers and determined that each juror would consider the testimony of any

police witnesses objectively.3 Conversely, juror Brown suggested that he did

not think he could be fair based upon his “personal opinions” about the

school system and prisons. As set forth hereinabove, our standard of review

in this regard is extremely deferential to the trial court, which, unlike this

Court, had the opportunity to observe the prospective jurors when

determining whether they could serve as impartial arbiters of the evidence

presented. Bachert, 453 A.2d at 937 According the trial court’s decisions

with great weight, as we must, we cannot say that that the trial court

committed “palpable error” in its decisions during the voir dire process. No

relief is due on Tyler’s first issue on appeal.

      For her second issue on appeal, Tyler contends that the trial court

erred in publishing to the jury “inflammatory color photographs” of

Thompson’s facial injuries.     Tyler’s Brief at 13.   Tyler argues that these

photographs were cumulative evidence, prejudicial, and “inflammatory in

their color version.” Id.

      The admissibility of evidence is at the discretion of the trial court and

only a showing of an abuse of that discretion, and resulting prejudice,



3
   We note that only one police witness testified at trial. Officer Pamela
Roberts did not witness any of the events (fighting) at issue in this case, and
instead her testimony was limited to her observations when she took a
police report when Thompson came into the nineteenth district on March 18,
2012 to report Tyler’s attack on her earlier that day. N.T., 8/20/13 pg. 41-
42.


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constitutes reversible error. Commonwealth v. Malloy, 579 425, 856 A.2d

767, 776 (Pa. 2004). Relevant evidence makes “the existence of any fact

that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Pa.R.E. 401. Relevant

evidence may be excluded only if its probative value “is outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Pa.R.E. 403. Whether photographic evidence that is

alleged to be inflammatory is admissible involves a two-step analysis. First,

the court must decide whether a photograph is inflammatory by its very

nature.   Commonwealth v. Sanchez, 36 A.3d 24, 49 (Pa. 2011), cert.

denied, 133 S.Ct. 122 (2012). If the court decides that the photograph is

inflammatory, it must determine whether its essential evidentiary value

outweighs the likelihood that its publication will improperly inflame the

minds and passions of the jury.” Id.

       In this case, the trial court decided that the photographs in question

were    not   inflammatory,   and   were      relevant   because   they   depicted

Thompson’s injuries for the jury. Trial Court Opinion, 8/1/2014, at 12. We

are unable to conduct a meaningful review of the trial court’s discretion

because the allegedly objectionable photographs are not contained in the

certified record on appeal. See Commonwealth v. Cottam, 616 A.2d 988,

1002 n.7 (Pa. Super. 1992) (stating “it is [appellant’s] responsibility to



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provide a record replete with all exhibits necessary for this court to review

the issues raised”), appeal denied, 535 Pa. 673, 636 A.2d 632 (1993).

Accordingly, we find this claim to be waived.        See Commonwealth v.

Lassen, 659 A.2d 999, 1008 (Pa. Super. 1995) (holding appellant’s

assertion that photographs of the victim’s injuries were inadmissible based

on their inflammatory and prejudicial nature was waived because he failed to

include those photographs in the record).

      For her third issue on appeal, Tyler complains that the trial court

refused to grant a motion for mistrial or issue a curative instruction after the

trial judge “interject[ed] himself into a jury trial and [told Tyler] that she

was guilty of a crime.” The relevant portion of the transcript during Tyler’s

direct examination is as follows:

      A.    She was like, You know what, just drop your things -
            - okay.

            So we both put down our things. She gave the boy,
            Mike, who was with her – at that time, she gave him
            her bag and whatever else she had in her hand. I
            put my things down.

            She said, This is what you want; this is what you
            want; you are about to get it – okay.

            I threw my hands up as well.

      [COURT]: All right. So you’re saying that after you had
          some words, the two of you agreed –

      [TYLER]: Yes.

      [COURT]: -- that you were going to fight?



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      [TYLER]: Yes, sir.

      [COURT]: Okay.

      [TYLER]:    She gave him her things. I put my things
                  down. We both threw our hands up.

            She said, This is what you want.

            And then she swung. And then we wind up fighting.

      Q.    So the first swing was –

      A.    Was initially [Thompson].

      [COURT]: Well, it doesn’t matter who was the first swing.

            Before the first swing was swung, the two of you had
            agreed that you were going to fight, is that what
            you’re saying?

      [TYLER]: Yes.

      [COURT]: Okay. That’s – you understand that that’s
          against the law in Pennsylvania?

            You understand that two people cannot by mutual
            consent agree to a fight?

            It’s called simple assault, mutual consent, do you
            understand that?

      [TYLER]: Yes.

      [COURT]: Okay.

N.T., 8/20/2013, at 53-54.

      Rule 605(B) of the Pennsylvania Rules of Criminal Procedure governs

the granting of mistrials:




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      § 605. Mistrial.

             (B) When an event prejudicial to the defendant
             occurs during trial only the defendant may move for
             a mistrial; the motion shall be made when the event
             is disclosed. Otherwise, the trial judge may declare
             a mistrial only for reasons of manifest necessity.

Pa.R.Crim.P. 605(B).     Furthermore, it is within the sound discretion of the

trial court to determine whether a curative instruction is necessary, or even

desirable. Commonwealth v. Sanchez, 82 A.3d 943, 982 (Pa. 2013), cert.

denied sub nom., Sanchez v. Pennsylvania, 135 S. Ct. 154 (2014).

      The Commonwealth persuasively submits that this claim is waived.

Tyler did not move for a mistrial or request a curative instruction at the time

of the above-quoted testimony. Instead, Tyler did not move for relief until

much later that day, after the completion of Tyler’s testimony and that of

her cousin (Felicia Tyler). In contravention of Rule 605(B), then, Tyler did

not   make     a   timely   request    for     relief.4   Pa.R.Crim.P.   605(B);

Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super. 2008) (“[O]ne

must object to errors, improprieties or irregularities at the earliest possible

stage of the criminal or civil adjudicatory process to afford the jurist hearing

the case the first occasion to remedy the wrong and possibly avoid an

unnecessary appeal to complain of the matter.”) (quoting Commonwealth




4
   Tyler does not contend that manifest necessity existed on the facts
presented here.


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v. English, 667 A.2d 1123, 1126 (Pa. Super. 1995), affirmed, 699 A.2d 710

(Pa. 1997)).

      Moreover, even if not waived, we are not persuaded that that the trial

court erred in refusing to grant a mistrial. “A trial court need only grant a

mistrial where the alleged prejudicial event may reasonably be said to

deprive the defendant of a fair and impartial trial.”     Commonwealth v.

Jones, 542 464, 668 A.2d 491, 503 (Pa. 1995), cert. denied, 519 U.S. 826

(1996); Commonwealth v. Boczkowski, 454, 846 A.2d 75, 94-95 (Pa.

2004).    The extent to which Tyler was prejudiced by the trial court’s

questions, if at all, is unclear. Rather than stating an objection or requesting

a mistrial, counsel for Tyler responded to the trial court’s questions by

rehabilitating Tyler -- eliciting considerably more favorable testimony from

her, including that it was Thompson who wanted to fight, that she (Tyler) did

not want to do so, that she felt threatened and scared by Thompson’s

threats, and that she attempted to break up the fight when others joined in

against Thompson.      N.T., 8/20/2013, at 54-58.    To the extent that Tyler

suffered any prejudice, it did not rise to the high level necessitating the

grant of a mistrial.

      We are likewise not convinced that the trial court erred in refusing to

give a curative instruction. The transcript shows that the trial court offered

to consider giving one if drafted by Tyler’s counsel, but thereafter could not

agree with the strong language recommended by counsel. Id. at 97-98. In



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addition, while not specifically directed to the above-quoted questions, the

trial court gave an extended instruction during its charge to the jury to

ignore any of the trial court’s comments or opinions when reaching its

verdict:

            Likewise, if I have said or done anything during the
            trial or during this instruction that I’m giving you
            now which implies my opinion as to any witness, any
            evidence or what your verdict should be in this case,
            I want to tell you two things. First, I have no
            opinion. And second, if I had an opinion, it would be
            the least well-informed opinion in this courtroom,
            because, as I explained to you at the beginning of
            the trial, most of the time, I can hardly see the
            witness.

            I got a pretty good look at the witness who was in
            the scooter because she wasn’t in the chair. She
            was seated further back. She was an exception.

            I can’t see facial expression. I can’t see gestures.
            And I get distracted. I’m up here dealing with other
            things. As I told you at the outset, your job and my
            job are different.    So a lot of times, I’m going
            through papers, I’m looking through this file or files
            from other cases, I’m off on the side talking to the
            courtroom staff. So two things, one, I have no
            opinion; and second, if I did, you should disregard it,
            because the only opinion in this courtroom that
            matters is your opinion – your opinion of the
            evidence, your opinion of the witnesses and
            ultimately your opinion as to what the verdict should
            be in this case.

N.T., 8/21/2013, at 13-14.

      For her fourth issue on appeal, Tyler claims that the trial court erred in

refusing to give a jury charge on simple assault for her actions on March 19,




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2012.     Tyler argues that the jury could have found her guilty of simple

assault rather than aggravated assault, noting that there was no risk of

death to Thompson and Thompson did not in fact suffer a serious bodily

injury (serious impairment, disfigurement, or loss of the function of a bodily

member or organ). Tyler’s Brief at 17. The trial court, upon consideration

of the evidence presented at trial, determined that “[n]o evidence of simple

assault was presented.” Trial Court Opinion, 8/1/2014, at 20.

        In Commonwealth v. Sirianni, 428 A.2d 829 (Pa. Super. 1981), this

Court determined, based upon the following analysis of the two statutes,

that simple assault is a lesser included offense to aggravated assault:

             [W]e come to the next step of deciding whether or
             not simple assault, defined in section 2701(a)(1) as
             attempting to cause “bodily injury” is, in fact, a
             lesser included offense of aggravated assault,
             defined in section 2702(a)(1) as attempting to cause
             “serious bodily injury.” The “serious bodily injury”
             required to prove aggravated assault is defined as
             “(b)odily 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.” 18
             Pa.C.S. § 2301. On the other hand, the “bodily
             injury” required to prove simple assault is defined as
             “(i)mpairment of physical condition or substantial
             pain.” A comparison of the above-quoted sections
             indicates that the definition of “serious bodily injury”
             contains    “bodily    injury”    within    it.       In
             Commonwealth v. Wilds, this Court sitting en banc
             stated that “an offense is a lesser included offense if
             each and every element of the lesser offense is
             necessarily an element of the greater.” This test has
             been met here. “Simple assault” as an attempt to
             cause mere bodily injury is, therefore, a lesser



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            included offense of aggravated assault which is an
            attempt to cause serious bodily injury.

Id. at 632-33 (citations omitted).

      The proper focus in distinguishing between simple and aggravated

assault is thus on the defendant's intent and actions. Commonwealth v.

Thomas, 546 A.2d 116, 118 (Pa. Super. 1988). A defendant is entitled to a

jury instruction on a lesser included offense only where the evidence in the

record would permit the jury to find, rationally, that the defendant is guilty

of the lesser included offense but not of the greater offense. Id.

      A trial court has wide discretion with respect to its jury instructions,

and commits an abuse of discretion only when there is an inaccurate

statement of the law. Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.

Super. 2008); Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa. Super.

2006). Here the trial court, upon consideration of the evidence introduced

at trial, determined that “[n]o evidence of simple assault was presented”

and declined to instruct on simple assault for the events of March 19, 2012.

Trial Court Opinion, 8/1/2014, at 20.

      We conclude that the trial court did not abuse its discretion in refusing

to give an instruction on simple assault regarding Tyler’s actions on March

19, 2012, for two reasons. First, contrary to Tyler’s claims, it was within the

jury’s province to conclude that Thompson’s injuries resulting from the

events on March 19 did qualify as serious bodily injuries. The definition of




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“serious bodily injury” includes “protracted loss or impairment of the

function of any bodily member or organ.”        18 Pa.C.S.A. § 2301.       The

evidence showed that Thompson suffered a broken bone in the optical region

of her face that caused her to have double vision for four months, and this

injury eventually required surgery and a sustained deferment from military

service.   N.T., 8/19/2013, at 41; N.T., 8/20/2013, at 47.     The protracted

nature of these injuries to her eyes and vision could constitute serious bodily

injury (rather than mere bodily injury), and thus the intentional and/or

knowing nature of Tyler’s actions in inflicting these injuries would preclude

any rational finding that Tyler was guilty of only simple assault (rather than

aggravated assault).

      Second, even if Thompson did not suffer a serious bodily injury, the

trial court did not abuse its discretion in determining, based upon the

entirety of the evidence presented at trial, that the jury could not have

rationally found that Tyler was guilty of only simple, as opposed to

aggravated, assault for her actions on March 19, 2012.         This Court has

consistently held that multiple blows to a person’s head reflects an intention

to inflict serious bodily injury.   See, e.g., Commonwealth v. Pandolfo,

446 A.2d 939, 941 (Pa. Super. 1982); Commonwealth v. Bruce, 916 A.2d

657, 661-62 (Pa. Super. 2007); Commonwealth v. Burton, 2 A.3d 598,

605 (Pa. Super. 2010) (en banc) (single blow to the head knocking the

victim to the ground).     In the present circumstances, where the level of



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Tyler’s violence escalated from March 18 to March 19, and where Tyler twice

slammed Thompson’s head into a wall with enough force to break a bone in

her face and cause her to suffer double vision for four months, it was well

within the trial court’s discretion to decide that the evidence was consistent

with only a charge for aggravated assault.

      For her fifth issue on appeal, Tyler contends that the trial court erred

in failing to instruct the jury on the definition of malice in connection with its

charge on the elements of aggravated assault. This issue is without merit.

As defined by statute, aggravated assault involves an attempt “to cause

serious bodily injury to another, or causes such injury intentionally,

knowingly    or   recklessly   under     circumstances    manifesting    extreme

indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Parsing

this language, either of three mens rea will suffice:       intentional conduct,

knowing conduct, or reckless conduct with malice (i.e., under circumstances

manifesting extreme indifference to the value of human life.). As such, this

Court has held that malice is required for aggravated assault when the mens

rea at issue is recklessness. Commonwealth v. McHale, 858 A.2d 1209,

1212 (Pa. Super. 2004) (“Appellant was clearly negligent, but his actions did

not rise to the level of recklessness required to support a conviction for

aggravated assault.”); Commonwealth v. Myers, 722 A.2d 1074, 1077

(Pa. Super. 1998) (“[T]he trial court instruction included the critical

language ‘recklessly under circumstances manifesting extreme indifference



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to the value of human life.’ This adequately informed the jury a heightened

state of recklessness amounting to malice was required to convict under 18

Pa.C.S.   2702(a)(1).”),   appeal   denied,   722   A.2d   1074    (Pa.   1999);

Commonwealth v. Nichols, 692 A.2d 181, 186 (Pa. Super. 1997)

(“[w]here malice is based on the recklessness of consequences, it is not

sufficient to show mere recklessness as codified at 18 Pa.C.S.A. § 302(b)(3);

but rather, it must be shown that the defendant consciously disregarded an

unjustified and extremely high risk that his actions might cause death or

serious bodily harm.”) (emphasis in original) (quoting Commonwealth v.

Fierst, 4620 A.2d 1196, 1203 (Pa. Super. 1993)).

      In this case, the Commonwealth did not request, and the trial court did

not give, an instruction based upon recklessness, and instead the instruction

to the jury focused solely on intentional or knowing misconduct:

            [T]he next element is that the defendant acted
            intentionally, knowingly. A person acts intentionally
            with respect to serious bodily injury when it is her
            conscious object or purpose to cause such injury. A
            person acts knowingly with respect to serious bodily
            injury when she is aware that it is practically certain
            that her conduct will cause such a result. If you’re
            convinced that the Commonwealth has proven all of
            those elements beyond a reasonable doubt, then you
            must find the defendant guilty of aggravated assault.

N.T., 8/21/2013, at 43.     Because the trial court limited its instruction to

intentional or knowing actions, no instruction on malice was necessary. We

thus find no error.




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         For her sixth issue on appeal, Tyler posits that the trial court

interrupted her counsel’s closing argument and engaged the jury in a

lengthy soliloquy on the law.          Tyler contends that her counsel was only

attempting to read the text of the aggravated assault statute to the jury,

and that the trial judge’s actions reflected a hostility to her and her counsel

that resulted in prejudice to her. Tyler’s Brief at 19.

         We are unable to conduct meaningful appellate review of this claim

because the closing arguments of counsel were not transcribed and thus are

not part of the certified record on appeal.            See N.T., 8/20/2013, at 109

(“Whereupon closing arguments were stenographically taken but not

transcribed”). Consideration of Tyler’s claim would, at a minimum, require

this Court to review her counsel’s closing argument and the controverted

interruptions by the trial court to determine if counsel preserved the issue

for appeal and, if so, whether the interruptions were necessary, warranted,

and/or prejudicial.      Because the absence of a transcript precludes us from

doing so, we may not grant any relief on this issue.

         For her seventh issue on appeal, Tyler argues that the Commonwealth

failed    to   present   sufficient   evidence    to   support   the   convictions   for

aggravated assault and conspiracy on March 19, 2012. In particular, Tyler

posits that the Commonwealth did not disprove her self-defense defense.

On appeal, she contends that the evidence at trial showed that after the

fight on March 18, 2012, Thompson later appeared on the street with a gun,



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and that as a result the next day she (Tyler) had reason to fear for her life

on March 19, 2012. Tyler’s Brief at 25. Tyler further argues that she had no

duty to retreat on the 19th after she saw Thompson fighting with her sister

Kiera and came to Kiera’s aid. Id. Finally, Tyler claims that there was no

evidence of any agreement with anyone to commit aggravated assault. Id.

     We are guided by the following standard of review when presented

with a challenge to the sufficiency of the evidence supporting a defendant's

conviction:

              As a general matter, our standard of review of
              sufficiency claims requires that we evaluate the
              record in the light most favorable to the verdict
              winner giving the prosecution the benefit of all
              reasonable inferences to be drawn from the
              evidence.   Evidence will be deemed sufficient to
              support the verdict when it establishes each material
              element of the crime charged and the commission
              thereof by the accused, beyond a reasonable doubt.
              Nevertheless, the Commonwealth need not establish
              guilt to a mathematical certainty. Any doubt about
              the defendant's guilt is to be resolved by the fact
              finder unless the evidence is so weak and
              inconclusive that, as a matter of law, no probability
              of fact can be drawn from the combined
              circumstances.

              The Commonwealth may sustain its burden by
              means      of   wholly     circumstantial    evidence.
              Accordingly, the fact that the evidence establishing a
              defendant's participation in a crime is circumstantial
              does not preclude a conviction where the evidence
              coupled with the reasonable inferences drawn
              therefrom overcomes the presumption of innocence.
              Significantly, we may not substitute our judgment
              for that of the fact finder; thus, so long as the
              evidence adduced, accepted in the light most



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             favorable to the Commonwealth, demonstrates the
             respective elements of a defendant's crimes beyond
             a reasonable doubt, the appellant's convictions will
             be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa. Super.

2013) (citations and quotation marks omitted)).

      If a defendant introduces evidence of self-defense, the Commonwealth

bears the burden of disproving the self-defense claim beyond a reasonable

doubt.     Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009).

“Although the Commonwealth is required to disprove a claim of self-defense

... a jury is not required to believe the testimony of the defendant who

raises the claim.”   Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa.

2011) (quoting Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa.

1990)).

      With respect to the charge of aggravated assault on March 19, 2012,

we agree with the Commonwealth that Tyler did not present a self-defense

defense.    Instead, in her direct testimony, Tyler flatly denied that she hit

Thompson or slammed her head into the wall. N.T., 8/20/2013, at 62 (“Q.

Did you slam her face against a wall? A. No, I did not.”). As reflected in its

verdict, the jury obviously disbelieved this testimony, finding instead that

Tyler attacked Thompson, not for purposes of protecting herself but with the

intention to inflict serious bodily harm. Similarly, with respect to conspiracy,




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it was within the jury’s province to believe the evidence introduced by the

Commonwealth, namely that Tyler and her sisters organized a crowd of up

to 30 people to attack Thompson's family (during which melee Tyler twice

slammed Thompson’s head into a wall). N.T., 8/19/2013, at 37, 68 69. This

evidence was sufficient to establish a conspiracy.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2015




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