J-S46006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WAYNE KOPACK,

                            Appellant                    No. 1660 EDA 2015


          Appeal from the Judgment of Sentence Entered May 5, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002959-2014


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED AUGUST 04, 2016

        Appellant, Wayne Kopack, appeals from the judgment of sentence of

an aggregate term of 1½ to 5 years’ incarceration, imposed after a jury

convicted him of two counts each of terroristic threats and simple assault,

and a single count of possessing an instrument of crime.               On appeal,

Appellant challenges the court’s ruling to permit the admission of Appellant’s

prior crimen falsi convictions, as well as the court’s instruction to the jury on

self-defense. After careful review, we affirm.

        The trial court set forth the facts of Appellant’s case, as follows:

               On March 28, 2014 at approximately 9:30 p.m., Lisa Freed
        and her husband, Curtis Freed, were driving in the vicinity of 2nd
        Street and Noble Street in Souderton, Montgomery County,
        calling out for their lost dog. All of the windows of their green
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Suburban SUV were down. Mr. Freed was driving the vehicle
     and Mrs. Freed was in the back seat. At trial, Mr. Freed testified
     that as they were driving up 2nd Street, the couple saw Appellant
     going up Noble Street in his underwear. As they came back
     around the block, Appellant came slowly out, stepped off the
     curb in front of the vehicle’s headlights and raised a crossbow,
     pointing it directly at Mr. Freed’s face from a distance of about
     10 feet. Both Mr. and Mrs. Freed were terrified and scared.
     They had no knowledge that the crossbow was non-functional.
     They were able to drive a short distance away and call 911.

           Presumably to advance the self-defense theory of the
     defense, on cross-examination of the Freeds, defense counsel
     brought out that Mr. Freed was driving the vehicle slowly, about
     20 miles per hour[,] in a dimly lit area. In addition, defense
     counsel brought out the fact that the Freeds passed Appellant
     twice as they went around the block looking for their dog.
     Further, defense counsel questioned both Mr. and Mrs. Freed
     about whether they reported to police that they saw another
     person following Appellant.

            First to respond to the scene was Officer Adam Moore of
     the Souderton Police Department. After apprehending Appellant,
     Officer Moore questioned him about the crossbow. Appellant
     denied knowledge of it. The officer attempted to locate the
     crossbow, but was unable to find it. During his encounter with
     Appellant, Officer Moore testified that based on his experience he
     believed Appellant to be under the influence of alcohol. The
     crossbow was eventually found by Sergeant Kurt Scherzberg of
     the Souderton Police Department who assisted at the scene with
     the investigation. The sergeant found it in the home of James
     Sell, Appellant’s friend. Mr. Sell’s home is located at 251 Noble
     Road, right at the scene of the incident.

           Also to testify at trial was Tracy Sell, James Sell’s
     estranged wife. She stated that on the night of March 28, 2014,
     Appellant came into her home [and] took her husband’s
     crossbow. Appellant then sat outside of her home at 251 Noble
     Road waiting for a car. A car came up the road and Appellant
     stood up and aimed the crossbow at the car. Appellant [then]
     came back into her home and asked Mrs. Sell to hide the
     crossbow, which she did. The crossbow was eventually turned
     over to the police.




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            Defense counsel presented the testimony of Mr. Sell and
      that of Catherine Sprague, also a friend of Appellant’s.

Trial Court Opinion (TCO), 8/3/15, at 1-3 (citations to the record omitted).

      Based on these facts and evidence, a jury convicted Appellant of the

above-stated offenses, and he was sentenced on May 5, 2013.           Appellant

filed a timely notice of appeal, and also timely complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) statement. Herein, Appellant presents two

issues for our review:

       1. The court erred in ruling that [Appellant’s] 17 year-old
      crimen falsi conviction[,] which occurred when he was 22 years
      old[,] was admissible at trial.

      2. The court erred in giving the standard jury instruction … for
      “apparent” use of [“]deadly force[”] in this case where
      [Appellant] pointed an unstrung arrowless crossbow with a
      broken pulley at complainants and there was no use of deadly
      force.

Appellant’s Brief at 8.

      In regard to Appellant’s first issue, we apply the following standard of

review:

      [T]he decision to admit or exclude evidence is committed to the
      trial court's sound discretion and its evidentiary rulings will only
      be reversed upon a showing that it abused that discretion. Such
      a finding may not be made “merely because an appellate court
      might have reached a different conclusion, but requires a result
      of manifest unreasonableness, or partiality, prejudice, bias, or
      ill-will, or such lack of support so as to be clearly erroneous.”
      Commonwealth v. Sherwood, 603 Pa. 92, 112, 982 A.2d 483,
      495 (2009). Furthermore, an erroneous ruling by a trial court on
      an evidentiary issue does not necessitate relief where the error
      was harmless beyond a reasonable doubt. See Commonwealth
      v. Markman, 591 Pa. 249, 277, 916 A.2d 586, 603 (2007).

Commonwealth v. Laird, 988 A.2d 618, 636 (Pa. 2010)


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       Appellant challenges the court’s decision that evidence of his prior

crimen falsi conviction for robbery would be admissible to attack Appellant’s

credibility if he took the stand at trial. As the trial court explains, in 1997,

Appellant pled guilty to robbery, as well as conspiracy to commit robbery,

and theft by unlawful taking.1 TCO at 4. The Commonwealth filed a motion

to admit evidence of these prior convictions, which the trial court granted.

Appellant now challenges the court’s ruling, stressing that his convictions

were more than 10 years old, and arguing that their probative value was

outweighed by the prejudice he would suffer from their admission.

       The admission of crimen falsi evidence is governed by Pennsylvania

Rule of Evidence 609, which states:

       (a) In General. For the purpose of attacking the credibility of
       any witness, evidence that the witness has been convicted of a
       crime, whether by verdict or by plea of guilty or nolo contendere,
       must be admitted if it involved dishonesty or false statement.

       (b) Limit on Using the Evidence After 10 Years. This
       subdivision (b) applies if more than 10 years have passed since
       the witness's conviction or release from confinement for it,
       whichever is later. Evidence of the conviction is admissible only
       if:

          (1) its probative value              substantially   outweighs   its
          prejudicial effect; and
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1
  In challenging the court’s ruling to admit his prior crimen falsi offenses,
Appellant confines his argument to his robbery conviction alone. See, e.g.,
Appellant’s Brief at 13 (“As the prior offense was a robbery it did not involve
a false statement and thus was not probative of [Appellant’s] truthfulness.”).
Thus, we will likewise limit our discussion to the court’s ruling regarding
Appellant’s prior conviction of robbery.



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         (2) the proponent gives an adverse party reasonable
         written notice of the intent to use it so that the party has a
         fair opportunity to contest its use.

Pa.R.E. 609(a), (b). Additionally, this Court has explained that, in weighing

the   probative   value   versus   prejudicial   impact   of   older   crimen   falsi

convictions, the trial court should consider,

      1) the degree to which the commission of the prior offense
      reflects upon the veracity of the defendant-witness; 2) the
      likelihood, in view of the nature and extent of the prior record,
      that it would have a greater tendency to smear the character of
      the defendant and suggest a propensity to commit the crime for
      which he stands charged, rather than provide a legitimate
      reason for discrediting him as an untruthful person; 3) the age
      and circumstances of the defendant; 4) the strength of the
      prosecution's case and the prosecution's need to resort to this
      evidence as compared with the availability to the defense of
      other witnesses through which its version of the events
      surrounding the incident can be presented; and 5) the existence
      of alternative means of attacking the defendant's credibility.

Commonwealth v. Palo, 24 A.3d 1050, 1056 (Pa. Super. 2011) (quoting

Commonwealth v. Harris, 884 A.2d 920, 925 (Pa. Super. 2005)).

      Here, because Appellant’s convictions were more than 10 years old,

the trial court assessed the above-stated factors, and concluded that

Appellant’s “prior convictions were highly probative on the issue of credibility

and that the probative value greatly outweighed any prejudicial impact.”

TCO at 6. The court elaborated that,

      [t]he current offenses are of a much different nature than the
      prior convictions, which are 17 years old. [Their admission
      would] … not suggest a propensity to commit the current
      offenses. This [c]ourt determined that the prosecution’s case
      [was] not the strongest case, as Appellant was asserting a self-
      defense claim, and there was not any other meaningful
      alternative means of attacking his credibility.

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Id. at 6-7. The court further explained that in seeking to exclude the crimen

falsi convictions,

      [d]efense counsel argued, in part, that there were alternative
      means to attack Appellant’s credibility, namely a statement he
      gave to Mrs. Sell and a statement to police. Defense counsel
      characterized the statement as being Appellant’s account of the
      incident, namely that he thought he was being followed by the
      Freed’s slowly moving car.     It was dark and he was in a
      vulnerable state of mind and that is why he believed he had to
      defend himself.

      …

      The statement[s] referred to by defense counsel[] would be
      considered … prior consistent statement[s], not something that
      could impeach Appellant’s credibility. Accordingly, this [c]ourt
      concluded that it would be appropriate [for] the jury to hear
      about [Appellant’s] prior crimen falsi convictions, should
      Appellant decide to testify.

Id. at 6, 7.

      In his appellate brief, Appellant contends that applying the factors set

forth in Palo leads to the conclusion that the prejudicial impact of admitting

his prior conviction (specifically, for robbery) outweighed the probative value

of that evidence. He explains:

            With regard to factor one[,] that the admission of the prior
      offense reflects upon the veracity of [Appellant,] [a]s the prior
      offense was a robbery it did not involve a false statement and
      thus was not probative of [Appellant’s] truthfulness. The second
      factor is the likelihood that the prior conviction would smear
      [Appellant] before the jury. Robbery is a very serious crime and
      is one of violence. Accordingly, it would definitely smear the
      character of [Appellant] and show a propensity to commit the
      crime he … [stood] charged with as both robbery and simple
      assault are crimes of violence. The third factor … is the age and
      circumstances of the defendant. The robbery conviction is 17
      years old and at that time[, Appellant] was 22 years old.


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      [Appellant] is now a much different person. He is employed, a
      father[,] and has a stable position in the community. Of great
      significance is factor four, the strength of the prosecution’s case.
      The prosecutions [sic] case is incredibly strong.          It’s [sic]
      strength comes from the testimony of two witnesses, who relate
      that [Appellant] pointed a crossbow at them as they slowly drove
      by looking for their dog. Conversely, [A]ppellant’s entire self-
      defense argument rests on []his testimony, which due to the
      court’s ruling remained absent. When a defendant testifies[,]
      the Commonwealth is always in a position of strength and can
      easily point out that [the] defen[dant’s] testimony is suspect due
      to self-interest. Finally factor five, the existence of alternative
      means of attacking [Appellant’s] credibility [was] available to the
      Commonwealth. As … [A]ppellant gave statements to Tracy Sell,
      a witness in this case[,] and the police, it can certainly be said
      that there [were] other means to attack credibility.               If
      [Appellant] had been given the opportunity to testify he would
      have said that he acted appropriately by employing reasonable
      force in defending himself.

Appellant’s Brief at 13-14.

      Appellant’s arguments regarding the factors outlined in Palo are

largely unavailing, although we agree with his claim that the first factor

weighs in favor of excluding his prior crimen falsi conviction of robbery, as it

was not a ‘false statement’ offense. Essentially, the trial court focused more

prominently on the other Palo factors in concluding that the prior conviction

should be admitted, and Appellant has not convinced us that the court’s

decision amounted to an abuse of discretion. For instance, in regard to the

second factor, we agree with the trial court that the significant differences

between the crime of robbery and the charges Appellant faced in the present

case would help preclude the jury from improperly finding that Appellant had

a criminal propensity to commit the crimes for which he was charged here.

This is especially true considering that Appellant could have requested - and

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would have properly received - a cautionary jury instruction explaining that

the jurors could only consider the evidence of Appellant’s prior robbery in

assessing his credibility, and not as evidence of his bad character or criminal

propensity.   See Commonwealth v. LaMassa, 532 A.2d 450, 452 (Pa.

Super. 1987) (finding it error for the court to omit - and deny defense

counsel’s request for - a cautionary instruction regarding the relevancy of

crimen falsi evidence, and how the jury could use such evidence in

determining the witness’ credibility); Commonwealth v. Solano, 129 A.3d

1156, 1178 (Pa. 2015) (“Where evidence of a defendant’s prior bad acts is

admitted, the defendant is entitled to a jury instruction that the evidence is

admissible only for a limited purpose.”). Therefore, the second factor of the

Palo test weighs in favor of admitting Appellant’s prior robbery conviction.

      The third factor - the age and circumstances of the defendant - does

not weigh as strongly in favor of excluding the robbery conviction as

Appellant implies.   Although Appellant pled guilty to robbery (and related

offenses) in 1997, and claims that, since then, he has become ‘a much

different person,’ he ignores that he was repeatedly re-incarcerated in that

case due to violations of his probation and parole, the last of which occurred

in February 2004. The instant crimes were committed in March of 2014, just

over 10 years from Appellant’s final period of incarceration for his prior

convictions. Therefore, less time has lapsed between Appellant’s completing

the punishment imposed in the prior case, and his incurring new charges in

the present case, than Appellant acknowledges. Consequently, this factor is

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not extremely compelling in either admitting, or excluding, the robbery

conviction.

      The fourth and fifth factors, however, weigh in favor of admitting the

crimen falsi conviction.   While Appellant argues that the Commonwealth’s

case was ‘incredibly strong’ because both Mr. and Mrs. Freed testified that

Appellant pointed the crossbow at them, that testimony would have had little

(if no) impact on the Commonwealth’s burden of disproving Appellant’s self-

defense claim, had he taken the stand. Moreover, the record supports the

trial court’s conclusion that “there [were] not any other meaningful[,]

alternative means of attacking [Appellant’s] credibility[,]” than with his

crimen falsi convictions.      On appeal, Appellant baldly refers to his

statements to Mrs. Sell and to the police as “other means to attack [his]

credibility[,]” yet he offers no discussion of the content of those statements

to demonstrate how they could have been used to challenge his veracity.

Consequently, he has failed to refute the court’s determination that his

statements to Mrs. Sell and the police were consistent and could not have

been used to challenge his credibility.

      In sum, the trial court conducted the requisite balancing test, and

determined that the evidence of Appellant’s prior convictions was more

probative than prejudicial and, thus, it was admissible.              Appellant’s

arguments herein have not demonstrated that the court’s decision was

“manifestly unreasonable or the result of partiality, prejudice, bias, or ill will

as shown by the evidence of record.” Commonwealth v. Benson, 10 A.3d

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1268, 1274 (Pa. Super. 2010) (defining the term “abuse of discretion”)

(citations omitted).    Consequently, we may not reverse the trial court’s

evidentiary ruling. Id. (“[W]e may reverse a trial court’s evidentiary rulings

only if the trial court abused its discretion.”) (citation omitted).

      In Appellant’s second claim, he challenges a jury instruction provided

by the court. In Commonwealth v. Ragan, 743 A.2d 390 (Pa. 1999), our

Supreme Court explained:

      A trial court has wide discretion in phrasing jury instructions.
      When reviewing an allegation of an incorrect jury instruction, the
      appellate court must view the entire charge to determine
      whether the trial court clearly and accurately presented the
      concepts of the legal issue to the jury and should not reverse, as
      a result of the instruction, unless the trial court committed an
      abuse of its discretion.     We will not examine a phrase or
      sentence of an instruction in a vacuum. Rather, when we
      evaluate a challenge to a charge, we must consider how each
      part fits together to convey a complete legal principle.

Id. at 397 (citations omitted).

      At trial, Appellant requested a jury instruction on self-defense, and the

court granted that request.       Appellant now complains, however, that the

instruction provided by the court was inadequate for several reasons. First,

in the majority of Appellant’s argument on appeal, he contends that the

court incorrectly used the term ‘apparent deadly force,’ when that term is

not set forth in the Standard Jury Instructions, promulgated by the

Pennsylvania Bar Institute, on self-defense/justification. See Standard Jury

Instructions 9.501A (“Justification: Use of Force/Deadly Force in Self-

Defense”).   Appellant also avers that the court improperly used the terms


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‘apparent deadly force’ and ‘deadly force’ interchangeably throughout its

instruction, which confused the jury.

       The Commonwealth argues, and we agree, that Appellant waived his

complaints regarding the court’s use of ‘apparent deadly force.’      Appellant

does not cite to where in the record he objected to this court’s use of this

phrase in general, or to the court’s using it interchangeably with the term

‘deadly force.’ Our examination of the record reveals that the only objection

lodged by Appellant was to the court’s decision to use ‘deadly force,’ rather

than ‘non-deadly force’ (or simply, ‘force’) in the self-defense instruction.

See N.T. Trial, 1/30/15, at 28-29. Consequently, Appellant has waived his

argument pertaining to the court’s use of ‘apparent deadly force.’         See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).2

       In regard to Appellant’s preserved challenge to the court’s use of

‘deadly force,’ rather than ‘non-deadly force,’ in the self-defense instruction,

Appellant’s argument is minimal. Indeed, the only references he makes to

this issue are the following few sentences:

       The rules and the instruction are concerned with the defendants
       [sic] view of the actual force used and not the perception of the
       party [on] whom [the] force is used…. The focus of the inquiry
       is … justification. It is the defendants [sic] belief as to this
____________________________________________


2
  In any event, even if not waived, Appellant’s arguments in this regard
would not entitle him to a new trial based on our harmless error discussion,
infra.



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      necessity for the use of force which is to be judged by an
      objective standard. Commonwealth v. Fisher[,] 493 A[.]2d
      719 (P[a.] [S]uper. 1985). The objective standard is from the
      defendant’s point of view.

Appellant’s Brief at 16.

      Appellant’s   minimal   argument    precludes   us   from   meaningfully

reviewing this challenge to the court’s instruction. In any event, even if we

accepted Appellant’s claim that the court erred by using ‘deadly force,’ we

would agree with the Commonwealth that the error was harmless, as

Appellant was not even entitled to the self-defense instruction he requested

and received.

      A self-defense instruction must be given upon request “where
      the jury would have a possible basis for finding [self-defense].”
      Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660,
      662 (1980).

      …

      In order to successfully invoke a claim of self-defense, the
      following three conditions must be satisfied:

          “[I]t must be shown that (a) the [actor] was free from
          fault in provoking or continuing the difficulty which
          resulted in the [injury]; (b) that the [actor] must have
          reasonably believed that he was in imminent danger of
          death or great bodily harm, and that there was a necessity
          to use such force to save himself therefrom; and (c) the
          [actor] did not violate any duty to retreat or to avoid the
          danger.”

Commonwealth v. Reiff, 413 A.2d 672, 673 (Pa. 1980) (citations

omitted).

      Here, the evidence presented in trial did not support a finding that

Appellant acted in self-defense when he aimed the crossbow at Mr. and Mrs.



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Freed. The only evidence that suggested self-defense was: (1) testimony by

Officer Adam Moore that the Freeds told police at the scene that “they saw a

man following [Appellant] down the street” when they first encountered

Appellant, N.T. Trial, 1/29/15, at 51; and (2) Sergeant Kurt Scherzberg’s

testimony that at the scene of the incident, Appellant told him that he was

“scared” because “he felt he was being followed[,]” and “he obtained the

crossbow[,]” came back outside and pointed it at the car he thought was

following him. Id. at 81-82.

     Even if the jury could have found, from this evidence, that Appellant

reasonably believed he was in imminent danger, there was no evidence to

prove the other two requirements of making out a self-defense claim.

Specifically, there was no evidence suggesting Appellant could not have

safely retreated from the ostensible threat posed by the Freeds (or by the

unidentified man following him). Indeed, Appellant’s statement to Sergeant

Scherzberg proved that he did retreat in total safety, but then chose to

return outside to confront the Freeds with the crossbow. This evidence also

demonstrated that Appellant at least continued the allegedly threatening and

dangerous interaction with the Freeds, if not provoked it in the first place.

Accordingly, because the evidence did not support a self-defense claim, any

error in the court’s instruction on self-defense must be considered as

harmless.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2016




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