J-S83021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 PATRICK L. HILEMAN                       :
                                          :
                    Appellant             :   No. 701 WDA 2018

            Appeal from the Judgment of Sentence May 7, 2018
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0000663-2017


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                              FILED APRIL 5, 2019

      Appellant, Patrick L. Hileman, appeals from the judgment of sentence

entered on May 7, 2018, following a jury trial. We affirm.

      The facts of the crime are as follows. About 7:00 p.m. on July 2, 2016,

Rachel Pletcher (“the victim”), who was eighteen weeks pregnant, Appellant,

who was the victim’s boyfriend, and their two children, ages one and two, left

their home in Appellant’s vehicle to watch fireworks at a lookout point three

to four miles away. N.T., 4/2–3/18, at 20–22. As they started out, when the

car made a noise, Appellant screamed at the victim, called her names, and

accused her of failing to put oil in his vehicle. Id. at 24–25. After adding oil

to the car, Appellant began driving very fast and erratically, causing the

vehicle to fishtail on the gravel. Id. at 25, 27. When Appellant continued in

this manner, the victim told him “to stop, slow down, quit it, you’re scaring
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the kids. . . .” Id. at 27. After a mile or two, the victim told Appellant she

would call the police if he did not slow down. Id. at 28.

      As the victim reached for her purse on the floor to retrieve her cellular

telephone, Appellant stopped the car and put it in park, but left the engine

running.   N.T., 4/2–3/18, at 29–30.       The victim bent down to get her

telephone, and Appellant grabbed the back of her hair and slammed her head

off the dashboard multiple times. Id. at 29–30. When Appellant stopped the

assault, the victim struck Appellant in the face to stun him so she could exit

the vehicle. Id. at 32. As the victim attempted to get out of the car, Appellant

put the vehicle into drive and accelerated, dragging the victim in the process.

Id. at 32–34. When Appellant finally stopped, the victim pulled herself back

into the vehicle because, as she testified, her “kids were in there. I wasn’t

letting him take my kids.” Id. at 35.

      The victim asked Appellant to go back and get her shoes that had been

lost when she was dragged. N.T., 4/2–3/18, at 35. Appellant backed up,

stopped the car, and the victim put her legs out of the car while still seated,

to stand up. Id. at 37. Appellant pushed the victim out of the vehicle, causing

her to fall face-first to the ground. Id. at 38. Appellant then put the car into

drive and ran over the victim in the process. Id. at 39. At that point, the

victim lost consciousness. Id.

      The victim was life-flighted to the hospital, where she underwent brain

surgery for intracranial hemorrhage and surgeries on her leg and crushed


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ankle. N.T., 4/2–3/18, at 42–43. The victim was hospitalized from July 2,

2018, until August 2, 2018. Thereafter, because she contracted MRSA1 of the

brain after the initial brain surgery, the victim had to return to the hospital

twice, once for another brain surgery and again because the infection was not

responding to medication. Id. at 47–48. At the time of trial, the victim was

facing another surgery on her leg. Id. at 52. The trial court noted that the

victim suffers from headaches, has lost her sense of smell, and cannot hear

out of her right ear. Trial Court Opinion, 7/17/18, at 3.

       The jury found Appellant guilty of one count of aggravated assault by

vehicle, two counts of endangering the welfare of a child, and three counts of

recklessly endangering another person.2          On May 7, 2018, the trial court

sentenced Appellant to an aggregate term of imprisonment of one to two

years. Order, 5/7/18. Appellant did not file post-sentence motions. Appellant

filed a timely notice of appeal; both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant raises the following issues in this appeal:

       1. Whether the Honorable Trial Court erred in denying
       [Appellant’s] Motion For a Mistrial based upon learning that a
____________________________________________


1  MRSA refers to “methicillin-resistant staphylococcus aureus, . . . a
contagious bacterial infection.” Seebold v. Prison Health Servs., Inc., 57
A.3d 1232, 1234 (Pa. 2012).

2   75 Pa.C.S. § 3732.1, 18 Pa.C.S. § 4304, and 18 Pa.C.S. § 2705,
respectively. The jury acquitted Appellant of aggravated assault, aggravated
assault of unborn child, and simple assault. Trial Court Opinion, 7/17/18, at
1.

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       juror(s) had drawn on and marked a picture admitted into
       evidence showing injuries sustained by the victim?

       2. Whether the Trial court erred and abused its discretion in
       denying Defense Counsel’s request for continuance based upon
       unavailability for the prosecuting Pennsylvania State Trooper?

       3. Whether the Honorable Court erred in prohibiting Defense
       Counsel from using a prior inconsistent statement made by the
       victim contained in the probable cause affidavit of the arrest
       warrant to impeach the victim’s testimony during her cross-
       examination?

Appellant’s Brief at 4.

       Appellant first argues that the trial court erred in denying his motion for

a mistrial, where a juror had made markings on a photograph that had been

admitted into evidence.3 Appellant’s Brief at 9. In reviewing a trial court’s

denial of a motion for a mistrial, “our standard is abuse of discretion.”

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).                   “An abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion

the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will, ... discretion

is abused.”     Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014)

(citation omitted).     “A mistrial is an extreme remedy that is required only

where the challenged event deprived the accused of a fair and impartial trial.”



____________________________________________


3 While the Commonwealth described the mark as, “the jurors used a pen and
placed a bracket next to the injury [the] victim sustained from Appellant’s
actions,” we cannot confirm this description, as explained infra.
Commonwealth Brief at 6.

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Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011). Furthermore,

a mistrial may be granted “only where the incident upon which the motion is

based is of such a nature that its unavoidable effect is to deprive the defendant

of a fair trial by preventing the jury from weighing and rendering a true

verdict.” Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008)

(quoting Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007)).

      This issue is waived.    The record certified to us on appeal does not

include the photograph at issue, or any photographs admitted into evidence.

See Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008) (“The Rules

of Appellate Procedure place the burden on the appellant to ensure that the

record contains what is necessary to effectuate appellate review . . . .”); see

also Pa.R.A.P. 1921 note (“Ultimate responsibility for a complete record rests

with the party raising an issue that requires appellate court access to record

materials.”). We have stated:

             It is black letter law in this jurisdiction that an appellate
      court cannot consider anything which is not part of the record in
      the case. Commonwealth v. Boyd, 451 Pa. Super. 404, 679
      A.2d1284, 1290 (1996) (citing Commonwealth v. Young, 456
      Pa.102, 317 A.2d 258 (1974)). It is also well-settled in this
      jurisdiction that it is [the a]ppellant’s responsibility to supply this
      Court with a complete record for purposes of review.
      Commonwealth v. Hallock, 722 A.2d 180, 181 (Pa.
      Super.1998). “A failure by Appellant to insure that the original
      record certified for appeal contains sufficient information to
      conduct a proper review constitutes waiver of the issue sought to
      be examined.” Boyd, 679 A.2d at 1290 (quoting Smith v. Smith,
      431 Pa. Super. 588, 637 A.2d 622, 623 (1993), allocatur denied,
      539 Pa. 680, 652 A.2d 1325 (1994)).

Commonwealth v. Martz, 926 A.2d 514, 524–525 (Pa. Super. 2007).

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      Even if not waived, the issue lacks merit. Thus, in the alternative, we

would rely upon the trial court’s explanation, as follows:

         The Court:      We’ve been notified that the jury has arrived
         at verdicts in the case.

         [Defense Counsel]: May it please the Court, I have one
         issue before the jury is brought in. I’ve just been given the
         photographs from the jury deliberation room and I believe
         there’s been jury misconduct because they all adulterated
         the photographs they were considering, so I’m asking for a
         mistrial coming in at 6:05.

         The Court:   May I see what you’re referring to?            So
         they’ve made marking on the photographs?

         [Defense Counsel]: Yes.

         The Court:     How is that prejudicial?

         [Commonwealth]:      Your   Honor,    I   don’t   believe   it’s
         prejudicial.

         [Defense Counsel]: They’re not taking the evidence as is.
         They are taking it in some other consideration as to what
         those letters mean in the particular areas that they mean.
         They are not going by the evidence before the [c]ourt, they
         are creating evidence.

         The Court:    I don’t think that we can interpret this to
         mean that. You’re asking [f]or a mistrial or something,
         [defense counsel?]

         [Defense Counsel]: I am, yes.

         The Court:     That motion is denied. You may bring in the
         jury.

      N.T., 4/2-3/2018, at 135.

            The Record reveals that during deliberations the jury made
      markings on a photograph. The [c]ourt reviewed the exhibits
      including the markings and determined that the same was neither

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      “misconduct” by the jurors nor prejudicial to Appellant. It is within
      the discretion of the trial court to determine whether a defendant
      has been prejudiced by misconduct or impropriety to the extent
      that a mistrial is warranted. Commonwealth v. Cole, 167 A.3d 49
      (Pa. Super. 2017). Appellant makes vague assertions that the
      effect of the markings was “emotional and inflammatory” without
      any rationale as to how or why the same should result in the
      granting of a mistrial. The motion was properly denied, and is
      without merit in this appeal.

Trial Court Opinion, 7/17/18, at 4. Additionally, Appellant has provided us

with no case law in support of his claim, other than law relating to the denial

or grant of a mistrial. If not waived, we would conclude the issue lacked merit.

      Appellant next argues that the trial court erred in denying his request

for a continuance based upon the unavailability of the prosecuting officer,

Pennsylvania State Trooper, Joshua Janosko. Appellant’s Brief at 12; Criminal

Complaint, 3/31/17.     Our standard of review regarding continuances is

settled:

      The grant or denial of a motion for a continuance is within the
      sound discretion of the trial court and will be reversed only upon
      a showing of an abuse of that discretion. [A]n abuse of discretion
      is not merely an error of judgment. Rather, discretion is abused
      when the law is over-ridden or misapplied, or the result of
      partiality, prejudice, bias, or ill-will as shown by the evidence or
      the record. The grant of a continuance is discretionary and a
      refusal to grant is reversible error only if prejudice or a palpable
      and manifest abuse of discretion is demonstrated.

Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011). Further,

“[i]n reviewing a denial of a continuance, the appellate court must have regard

for the orderly administration of justice[.]”     Id.   (citation omitted).   “If

testimony which an absent witness would give is merely cumulative or


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available from another source, then a continuance may be properly denied.”

Commonwealth v. Howard, 353 A.2d 438, 439 (Pa. 1976).

      Appellant avers that defense counsel “was deprived of the ability to

exercise his client’s Sixth Amendment right to confrontation of a material

witness.” Appellant’s Brief at 13. In particular, Appellant contends, again

without citing case law in support, that the unavailability of the trooper

prevented Appellant from establishing that the victim “told him she

jumped/fell out of the car as set forth in the probable cause affidavit of the

arrest warrant.” Id. The Rules of Appellate Procedure require that appellants

adequately develop each issue raised with discussion of pertinent facts and

pertinent authority. Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa.

Super. 2014) (citing Pa.R.A.P. 2119). Appellant exacerbates this deficiency

by claiming that he “directly asked the Honorable Court to continue the matter

to allow him to have the prosecuting officer testify, but this motion was

denied,” yet he fails to identify where in the record the motion was made.

Appellant’s Brief at 14.

      Appellant’s failure to cite to the notes of testimony where the

continuance was requested is significant. It is not this Court’s responsibility

to comb through the record seeking the factual underpinnings of a claim.

Samuel, 102 A.3d at 1005; see also Commonwealth v. Perez, 93 A.3d

829, 838 (Pa. 2014) (claims failing to cite to the record are waived). The trial

court, as well, noted Appellant failed to cite to the place in the record where


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he made a motion for continuance based upon the unavailability of the

prosecuting trooper. The trial court stated as follows:

            In contemplation of this issue, we initially note that when
      the Assistant District Attorney called the case for trial, the [c]ourt
      inquired of Defense Counsel, to which he responded, “May it
      please the [c]ourt. We are also prepared to proceed on behalf of
      the defendant.” N.T., 4/2–3/2018, at 4.

             The Commonwealth did not call as a witness any police
      officer to testify at trial. Following the Commonwealth’s evidence,
      Defense Counsel made a motion, off-the-record, for a continuance
      to secure an Affidavit. The substance of the motion was not of-
      record, but following the discussion, the [c]ourt memorialized the
      following:

            The Court: And now that the jury is not here, also for
            purposes of the record, the [c]ourt did not permit the
            case to be continued for subpoenaing an Affidavit in a
            non-related case by a police officer. The [c]ourt has
            determined that the issue of falling versus pushed,
            one can certainly fall out [of] the vehicle if they are
            pushed, and that’s what she has testified to, so the
            [c]ourt feels that the relevancy of push or fall is of
            little importance in this case.

      N.T., 4/2–3/2018, at 88.

             The [c]ourt specifically refers to Defense Counsel requesting
      an “Affidavit” in a “non-related case.” This motion for continuance
      was not made for the absence of the prosecuting officer. Having
      failed to cite the Record, and the [c]ourt unable to ascertain the
      same, the allegation of error is without merit.

Trial Court Opinion, 7/17/18, at 5–6.

      We note that any testimony the trooper could have offered was

presented by the victim and apparently substantiated by the photographic

exhibits and the medical evidence admitted at trial. Howard, 353 A.2d at

439 (if testimony that absent witness would give is merely cumulative or

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available from another source, continuance is properly denied).         Further,

Appellant’s Sixth Amendment right to confront witnesses against him was not

deprived. At trial, three witnesses testified against Appellant, including the

victim.   While he cross-examined the victim, defense counsel declined to

cross-examine the other two witnesses, the victim’s friend, and a sister. N.T.,

4/2–3/18, at 55–113, 79, 84. The absent trooper’s report was not admitted

into evidence. We find no demonstration of a “palpable and manifest abuse

of discretion” by the trial court. Hansley, 24 A.3d at 418.

      Appellant’s final issue alleges trial court error in denying the use of the

affidavit of probable cause to impeach the victim’s testimony.       Appellant’s

Brief at 14. We “will not disturb a ruling on the admission of evidence ‘unless

that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.’” Commonwealth

v. Price, ___ A.3d ___, 2019 PA Super 19, *8 (Pa. Super. filed January 28,

2019) (quoting Commonwealth v. Akrie, 159 A.3d 982, 986-987 (Pa.

Super. 2017)).     Moreover, “an erroneous ruling by a trial court on an

evidentiary issue does not require us to grant relief where the error was

harmless.” Commonwealth v. Yockey, 158 A.3d 1246 (Pa. Super. 2017)

(citing Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005)).

      In denying this issue, the trial court stated as follows:

      Again, Appellant does not cite the record for this alleged error.
      The transcript reflects two sustained objections of counsel’s
      attempts to impeach using an Affidavit of Probable Cause.


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           At trial, Defense Counsel’s strategy was that [the victim]
     jumped from the car, rather than having been pushed by
     Appellant. N.T., 4/2–3/2018, at 97. First, on cross-examination
     following her direct examination, [the victim] was questioned by
     Defense Counsel as follows:

       [Defense counsel]: You would agree that you told the police
       under oath that you jumped out of the car, you would agree
       to that, correct?

       [The victim] No.

       Q: You would agree that you told Trooper Janosko that you
       fell from the car—

       A: No.

       Q: —that you were never pushed?

       A: (No audible response.)

       Q: What I have is an Affidavit of Probable Cause.

       The Court: Which is not admissible, [defense counsel], for
       impeachment purposes.

       [Defense counsel]: I’m sorry?

       The Court: It is not admissible for impeachment purposes,
       you would have to call the officer.

       [Commonwealth]: Your Honor, may we approach?

       The Court: Sure.

       [Defense counsel]: So your testimony is that you never told
       [Trooper] Janosko that you fell from the car?

       A: No.

       Q: You never said that?

       A: No.


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     N.T., 4/2–3/2018, at 72–73.

           Later, Appellant testified that he and [the victim] were
     arguing over a Protection from Abuse Order that she had received
     against him when she jumped from the SUV. Id. at 94. [The
     victim] was then called again by the Commonwealth as a rebuttal
     witness. Defense Counsel cross-examined on rebuttal as follows:

        Q: [Defense counsel] And it’s true that you told Officer
        Janosko that you fell from the car at the PFA we’re speaking
        of?

        A [The victim]:      No.

        [Commonwealth]:      Your Honor, I’m going to object.

        The Court:     What’s the basis of your objection?

        [Commonwealth]: It’s outside the scope of the statements
        she gave to Trooper Janosko with respect to the PFA
        violation.

        [Defense counsel]]: It is not, it is the violation, it’s right
        here.

        [Commonwealth]: And that is based off the Affidavit of
        Probable Cause and that’s Trooper Janosko’s statements.

        The Court:     Counsel, please approach.

        (Off the record discussion was held at the bench by Court
        and counsel.)

        The Court:     Objection sustained.

     N.T., 4/2–3/2018, at 115.

          With regard to both lines of questioning, it appears to the
     Court that Defense Counsel was referring to the Affidavit of
     Probable Cause in this criminal action. Pennsylvania Rules of
     Evidence provides for impeachment at Rule 607(b), “Evidence
     to Impeach a Witness. The credibility of a witness may be
     impeached by any evidence relevant to that issue, except as
     otherwise provided by statute or these rules.”

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            A review of the Affidavit of Probable Cause on the issue
      of whether [the victim] was pushed out of the vehicle or
      whether she jumped was not distinguished by Trooper Joshua
      Janosko in the Affidavit. Rather, the only mention of [the
      victim’s] ejectment from the vehicle stated, “This incident was
      described as a female falling from a pick-up truck.” Trooper
      Janosko’s use of the word “falling” does not indicate whether it
      was [the victim] who “jumped” or whether she was “pushed”
      by Appellant. Accordingly, the Affidavit of Probable Cause was
      not properly used for impeachment, first, because it is not
      relevant to the issue of whether or not [the victim] was
      “pushed” or “jumped” in accord with Defense Counsel’s line of
      questioning.      Second, the Affidavit was not proper
      impeachment evidence because the Trooper did not recite who
      provided the statement to him that [the victim] fell out of the
      vehicle. Specifically, the statement was not attributed as
      having been said by [the victim], and thus, cannot be used to
      impeach her credibility.     Third, for proper impeachment,
      Appellant could have subpoenaed Trooper Janosko for trial
      testimony as to the statement received by him in support of
      the Affidavit of Probable Cause, but failed to do so. Trooper
      Janosko was not an essential witness for the Commonwealth
      as his testimony was not required for the Commonwealth to
      meet its burden of proof[,] and he was not present at trial.

            Wherefore, this issue is also without merit and the appeal
      should be denied.

Trial Court Opinion, 7/17/18, at 6–8.     We have reviewed the Affidavit of

Probable Cause, and the verbiage and characterizations noted by the trial

court are consistent with our review. Relying on the trial court’s analysis, we

conclude this issue lacks merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2019




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