J-S51024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DANIEL STUART JONES                        :
                                               :
                       Appellant               :      No. 1562 MDA 2018

        Appeal from the Judgment of Sentence Entered August 24, 2018
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0006879-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED OCTOBER 23, 2019

        Appellant, Daniel Stuart Jones, appeals from the judgment of sentence

entered in the York County Court of Common Pleas, following his jury trial

conviction of simple assault and bench trial conviction of harassment. 1 We

affirm.

        The relevant facts and procedural history of this case are as follows. On

October 11, 2017, Appellant was staying with his friend of 25 to 30 years,

Mark Sipe, and helping him work on odd jobs at the time. After work one day,

Appellant and Mr. Sipe returned to Mr. Sipe’s house, drank beer and cooked

dinner. Later that evening, Mr. Sipe’s neighbor Dan Brown joined them. After

Mr. Brown stepped onto the porch to smoke a cigarette, a dispute arose


____________________________________________


1   18 Pa.C.S.A. § 2701(a)(1) and § 2709(a)(1), respectively.
J-S51024-19


regarding money Appellant claimed Mr. Sipe owed him. Mr. Sipe said that he

could pay Appellant the following day, but Appellant wanted his payment

immediately. As a result, Appellant struck Mr. Sipe in the face eight times.

Mr. Brown witnessed some of the altercation. Mr. Sipe did not respond to

Appellant physically or verbally while Appellant punched him. Mr. Sipe then

contacted the police, and Officer Matthew Berry arrived a few minutes later.

Officer Berry indicated that Appellant appeared intoxicated and had blood on

his knuckles.

      On July 20, 2018, a jury convicted Appellant of simple assault. During

the recess after the Commonwealth rested, but before the defense presented

its case, a juror sent a note to the court stating that the juror had been in the

elevator with Mr. Sipe, who appeared intoxicated. According to the juror, after

Mr. Sipe left the elevator, two other unidentified occupants of the elevator

commented that Mr. Sipe appeared intoxicated.              The Commonwealth

requested a mistrial, which the court denied, and the court cured the situation

by removing the juror and using an alternate.

      Defense counsel sought to call Appellant to testify that Mr. Sipe was

intoxicated on the witness stand, which Appellant claimed he could testify

about, based on knowing Mr. Sipe for 25 to 30 years.          The court barred

Appellant’s proffered testimony and noted that the court, defense counsel and

the Commonwealth had not observed any indicia of intoxication when Mr. Sipe

was on the stand.     Furthermore, defense counsel had the opportunity to


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J-S51024-19


question Mr. Sipe’s recollection of the attack on cross-examination.

      On August 24, 2018, the court sentenced Appellant to 6 days to 2 years

minus 2 days imprisonment for simple assault, merging the harassment

conviction for sentencing purposes.    Appellant timely filed a post sentence

motion on August 30, 2018, which the court denied on September 4, 2018.

On September 18, 2018, Appellant timely filed a notice of appeal. The court

ordered a Rule 1925(b) statement on September 19, 2018, which Appellant

timely filed on October 12, 2018.

      Appellant now raises one issue for review:

         THE TRIAL COURT ERRED IN LIMITING APPELLANT’S
         DIRECT TESTIMONY AS TO HIS OBSERVATIONS THAT THE
         VICTIM ATTENDED TRIAL INTOXICATED. APPELLANT WAS
         A LAY WITNESS COMPETENT TO RENDER SUCH AN OPINION
         PURSUANT TO PA.R.E. 701.     THE TESTIMONY WAS
         RELEVANT TO THE VICTIM’S RECOLLECTION AND
         ACCURACY OF HIS TESTIMONY DURING TRIAL AND WENT
         DIRECTLY TO HIS CREDIBILITY.     BY LIMITING THE
         TESTIMONY, THE TRIAL COURT USURPED THE FUNCTION
         OF THE JURY TO DETERMINE WHETHER THE VICTIM WAS
         INTOXICATED WHEN HE TESTIFIED AND WHETHER SUCH
         INTOXICATION AFFECTED HIS CREDIBILITY.

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Craig T.

Trebilcock, we conclude Appellant’s issue merits no relief. The trial court

opinion properly disposes of the question presented. (See Trial Court Opinion,

dated April 25, 2019, at 2-5) (finding: Appellant was free to attack Victim’s

recollection of assault on cross-examination; at no point during cross-

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J-S51024-19


examination of Victim did Appellant question Victim about whether he was

intoxicated at trial; Appellant made no mention of his belief that Victim might

be intoxicated, until a juror brought it to court’s attention; neither

Commonwealth nor defense counsel raised issue of Victim’s alleged

intoxication during his testimony; court did not observe any behavior while

Victim was on stand, to raise alarm that Victim might be in altered state or

incompetent to testify; Victim exhibited no signs of forgetfulness or issues

with recollection of events in question while testifying; Appellant’s proffered

opinion testimony of Victim’s alleged intoxication would not have been helpful,

would likely have confused and misled jury, and was irrelevant to issues being

litigated; even if intoxication testimony was marginally relevant to Victim’s

credibility, evidence was inadmissible under Pa.R.E. 403, as proposed

testimony sought to sway jury to decide case on improper basis; Appellant

was not in close proximity to Victim on day of trial to detect any odor of alcohol

on Victim; Appellant based his opinion solely on juror’s assessment, and then

belatedly   and   incredibly   claimed    Appellant   could   determine   Victim’s

intoxication based on Appellant’s own observations of Victim; jury was free to

make observations of Victim’s behavior on witness stand; court observed zero

indication that Victim was intoxicated while testifying and attributes juror’s

perception to error). Accordingly, we affirm based on the trial court opinion.




                                         -4-
J-S51024-19




     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




                                 -5-
                                                                                  Circulated 09/27/2019 02:39 PM
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1-,·,>·.        IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
                                    CRIMINAL DIVISION

           COMMONWEALTH

                   v.                                            NO. CP-67-CR-6879-2017

. r,,.     DANIEL JONES,
.,-. ,,
           Defendant/Appellant

           COUNSEL OF RECORD:

                   James Zamkotowicz, Esquire                    Anthony Tambourino, Esquire
                   Counsel for the Commonwealth                  Counsel for Defendant


                OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925(a) OF THE
                              RULES OF APPELLATE PROCEDURE

           I.     Introduction

                  The Defendant has timely appealed to the Superior Court of Pennsylvania from his

           convictions for Simple Assault and Harrasment. The Court directed the Defendant to file a

           Pa. R.A.P. 1925(b) statement ("Statement"), and he has done so. In his Statement, the

           Defendant challengeshis conviction, arguing that the Court erred in limiting the Defendant's

           direct testimony that the victim attended the trial intoxicated. After carefully reviewing the

           Statement, record, and governing law, the Court finds the Defendant's arguments lack merit.

           The Court therefore urges affirmance of the judgment of sentence.
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         II.    Background

                                              Trial and Sentencing

 "'             The Defendant's was convicted by jury verdict of simple assault against Mark Sipe,
(...)
         and found guilty by the Court of the summary offense of harassment for his actions against

         Mr. Sipe on July 201\ 2018. During the trial, the Court was given a note by one of the jurors

         that they were on an elevator with the victim prior to the victim testifying. After the victim
             '
         got 'off of the elevator, two other unknown occupants of the elevator remarked that the victim

         appeared intoxicated. (Notes of Testimony, 7/20/18 at 118). The Commonwealth requested

         a mistrial which the Court denied, and the Court cured the situation by dismissing the juror in

         question and seating the alternate juror. (N.T. at 124). At this point, the Defendant requested

         to be able to testify on direct that based upon his knowledge of the victim, he believed the

         victim was intoxicated during the victim's testimony, which the court denied. (N.T. at 126).

         The Defendant was sentenced to 6 days to 2 years minus 2 days incarceration at the York

         County Prison, with the harassment charge merging for sentencing purposes.

                The Defendant timely filed notice of appeal, and then submitted his Statement as

         directed.

         III.   Matters Complained of on Appeal

                In his Statement, the Defendant argues that the Court erred in limiting his direct

         testimony as to his observations that the victim, Mark Sipe, was intoxicated during his

         testimony at the trial. (Statement at 1.) For the following reasons, neither of these

         arguments is persuasive.

                                                        2
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                    The Defendant argues that while he is a lay person, because he has known the victim

            for 25 to 30 years, under Pa.RE. 70lhe could properly assess whether or not the victim was

            intoxicated during his testimony. The standard ofreview of a trial court's evidentiary ruling

            is whether the trial court abused its discretion. Commonwealth v. Hernandez, 39 A.3d 406
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            (Pa.Super. 2012). If a trial court decides that proffered lay opinion would not be helpful, or
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l/'I        even if helpful, would confuse, mislead, or prejudice the jury, or would waste time�the court
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            may exclude it. Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695/Pa.Super. 2000).

                   The Defendant was free to attack the recollection of the victim-witness on cross

            examination. At no point during the cross examination of the victim did the Defendant

            question the victim ifhe was currently intoxicated. The Defendant made no mention of the

            fact that he believed that the victim was intoxicated during the victim's testimony until it was

            brought up during the Court's handling of the situation with the juror who shared the elevator

            with the victim in those close quarters. (N.T. at 126). Neither the Commonwealth nor the

            defense counsel raised issue with the victim's competency with respected to intoxication

            during his testimony, nor did the Court observe any behaviors by the victim while on the

            stand to raise alarm that he might have been in an altered state or incompetent to testify. The

            victim exhibited no signs of forgetfulness or issues with recollection of the events in question

            while testifying to them on the witness stand. (N,T. at 78�96).

                   The proffered opinion testimony by the Defendant that the victim was intoxicated on

            the stand would not be helpful, and would likely confuse and mislead the jury. The Court

            found that such testimony was irrelevant to the issues being litigated. However, even if an


                                                             3
            argument could be cobbled together that there was marginal relevance to the issue of trial

            testimony credibility, the evidence was inadmissible under Pa.R.E. 403, as the proposed

            testimony sought to sway the jury to decide the case on an improper basis, i.e. that the victim
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            was a disreputable drunk. The Defendant was never in close proximity to the victim on the
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····,,.I    day of trial to smell any odor of alcohol, and was purely basing his supposed opinion on

            hearing the juror's assessment, and then belatedly and incredibly claiming he could

            determine intoxication based on his own observations of the victim. (N.T. at 123). However,

            the jury was privy to the same observations of the victim. They could make the same lay

            person determination about the credibility and fitness to testify based upon his appearance

            and behavior on the witness stand. The Defendant possessed no specialized expertise to

            determine if the victim was intoxicated to overcome the assessment made by every other

            professional in the case (the Commonwealth, the defense counsel, and the Court) that the

            victim was competent to testify1.

                     The Court believes the Defendant sought to create a trial within a trial regarding

            whether the victim was intoxicated or not for the purpose of distracting and confusing the

            jury from his own case. The Defendant's lay opinion on whether the victim was intoxicated

            on the witness stand or not was irrelevant to the charges and inadmissible. It had no

            relevance to the elements of the offense in question, nor any defenses, and the jury was able

            to hear and observe the victim's testimony and make its own credibility determinations as to



            I
             The Court observed zero indication that the victim was intoxicated while testifying and attributes the juror's
            perception to error, or to confusing the smell of an alcohol based product with intoxication.

                                                                    4
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,..•.,.      the accuracy of his testimony. As such, the court was correct to limit the Defendant's direct

             testimony and bar him from testifying to irrelevant issues designed solely to confuse the jury.
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             IV.    Conclusion

                    For the reasons stated above, this Court respectfully urges affirmance of the
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                                                           BY THE COURT,



             DATED: April fil_, 2019




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