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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :      IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                                             :
                                             :
                    v.                       :
                                             :
JOEL BROUGHTON                               :
                                             :
                          Appellant          :      No. 2496 EDA 2015

              Appeal from the Judgment of Sentence July 7, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000860-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                             FILED OCTOBER 19, 2016

        Appellant, Joel Broughton, appeals from the Judgment of Sentence

entered on July 7, 2015, in the Court of Common Pleas of Chester County,

following his convictions for Simple Assault, Recklessly Endangering Another

Person, and Unlawful Restraint.1 We affirm.

        The trial court set forth the relevant factual history as follows:

        Kyle Freeman and his ex-wife have two children together.
        [Appellant] is currently married to Mr. Freeman's ex-wife and is
        the step-father of the children. On February 4, 2014, after Mr.
        Freeman dropped the kids off at the residence their mother
        shared with [Appellant], an argument about ongoing custody
        issues ensued between Mr. Freeman and [Appellant]. After
        several minutes, Mr. Freeman turned to walk away and


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 2705; and 18 Pa.C.S. § 2902(a)(1),
respectively.
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     [Appellant] sucker-punched him from behind. Mr. Freeman fell
     to the ground but then got up. [Appellant] then brought him
     back down to the ground, sat on top of him and held him there
     for the next two and a half to three hours. During this time,
     [Appellant] had Mr. Freeman in a chokehold and repeatedly
     punched him in the back of the head. Mr. Freeman feared for
     his life and repeatedly begged [Appellant] to let him go.

     [Appellant] did not say a single word to Mr. Freeman the entire
     time he held him down. It was very cold outside during the
     incident and there was two to three inches of snow on the
     ground.     When trying to get Mr. Freeman to the ground,
     [Appellant] pulled off Mr. Freeman's coat so he was not wearing
     it the entire time [Appellant] forcibly kept him on the ground in
     the snow. While he was being held, Mr. Freeman vomited at
     least one time. He also believes he lost consciousness at times
     during the ordeal. [Appellant] only permitted Mr. Freeman to
     get up after he agreed to have the police called and to tell them
     there had been a fight between them entered into by mutual
     consent.

     When [Appellant] finally permitted Mr. Freeman to get up, he
     could not walk unassisted. He had to be helped into the garage
     where they waited for the police. He told the police officer that
     he just wanted to leave, and the officer had to help him to his
     car. After he left [Appellant]'s residence, he talked with his
     father and his girlfriend about what he should do. They both
     encouraged him to go to the police station and to tell them what
     happened. After he left the police station, he went to the
     hospital. He was experiencing profuse pain from his head to his
     calves and all of his extremities were extremely weak. He also
     had abrasions and tenderness on the back of his head. His
     Creatine Kinase Level (hereinafter "CK") was over 12,000, which
     indicates significant muscle damage. It was also ten times
     higher than the level required for admission to the hospital. He
     was diagnosed with rhabdomyolysis, which can lead to kidney
     failure and death if left untreated. He also had a concussion.

Trial Court Opinion, dated 12/10/15, at 1-2.




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      On April 30, 2015, a jury found Appellant guilty of Simple Assault,

Recklessly Endangering Another Person, and Unlawful Restraint. 2 On July 7,

2015, the trial court sentenced Appellant to a term of four days’ to 23

months’ incarceration followed by three years of probation.

      Appellant timely appealed.3      Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises this sole issue on appeal: “Did the trial court err by

allowing the Commonwealth to introduce irrelevant evidence that had

nothing to do with the offenses [Appellant] was charged with?” Appellant’s

Brief at 4.    Specifically, Appellant avers that the trial court improperly

permitted cross-examination regarding Appellant’s offer to adopt Mr.

Freeman’s children, Appellant’s step-children, six months after the incident

giving rise to the charges. Appellant’s Brief at 10-11.

      Our Supreme Court has stated that the trial court: “has considerable

discretion in determining the scope and limits of cross-examination, and this

Court cannot reverse absent a clear abuse of discretion or error of law.”

Commonwealth v. Boxley, 838 A.2d 608, 615 (Pa. 2003). When a trial

2
 The jury found Appellant not guilty of Aggravated Assault pursuant to 18
Pa.C.S. § 2702(a)(1).
3
  On October 10, 2015, this Court issued a Rule to Show Cause why this
appeal should not be quashed as untimely filed on August 7, 2015 from the
Judgment of Sentence imposed on July 7, 2015. In response, Appellant
provided a United States Postal Service tracking slip indicating that the
Notice of Appeal was received by the “COURT HOUSE” in West Chester, P.A.
at 9:07 A.M. on August 6, 2015, rendering it timely.



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court indicates the reason for its decision to admit testimony, “our scope of

review is limited to an examination of the stated reason.” Commonealth v.

Minerd, 753 A.2d 225, 229 (Pa. 2000).

      Cross-examination “should be limited to the subject matter of the

direct examination and matters affecting credibility, however, the court may,

in the exercise of discretion, permit inquiry into additional matters as if on

direct examination.” Pa.R.E. 611(b). It is well established that “[o]ne who

induces a trial court to let down the bars to a field of inquiry that is not

competent or relevant to the issues cannot complain if his adversary is also

allowed to avail himself of that opening. The phrase ‘opening the door’ . . .

by cross examination involves a waiver.” Commonwealth v. Harris, 884

A.2d 920, 928 (Pa. Super. 2005) (quoting Commonwealth v. Stakley, 365

A.2d 1298, 1299-1300 (Pa. Super. 1976)).         Simply put, “[i]f a defendant

delves   into   what   would   have   been   objectionable   testimony   on   the

Commonwealth's part, then the Commonwealth can probe into this

objectionable area.” Commonwealth v. Patosky, 656 A.2d 499, 504 (Pa.

Super. 1995).

      Here, the trial court opined:

      [Appellant] testified on his own behalf at the trial of this matter.
      During his direct examination, he testified that he was not trying
      to replace Mr. Freeman as the children's father. On cross-
      examination, the Commonwealth wanted to impeach this
      testimony by questioning [Appellant] about an offer that was
      made for [Appellant] to adopt the children. After [Appellant’s
      objection and] discussing the issue at side-bar with both
      attorneys, the testimony was permitted. The trial judge allowed


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      a brief inquiry into the subject but he first gave a cautionary
      instruction to the jury explaining the limited purpose for
      admitting the evidence. Specifically, he explained:

            Ladies and gentlemen, as you know, this is a case
            that has some overlap between the alleged assault
            and the child custody disputes that are underneath it
            all. What I want -- I'll allow some questioning about
            some of those matters to go to the intent that
            [Appellant] had at the time of the alleged assault.
            I'm not getting into the details of who's right in the
            child custody case, who is the better dad or any of
            that stuff. The only reason some limited cross-
            examination in the area is allowed is simply to go to
            [Appellant]’s intent at the time of the alleged
            assault.

      Since [Appellant] opened the door to this line of questioning
      during direct examination, the court properly allowed the
      Commonwealth to question him about whether he ever offered
      to adopt the children. Further, the court's cautionary instruction
      clearly informed the jury of the limited purpose for allowing this
      testimony to be introduced.

Trial Ct. Op. at 3-4 (internal citations omitted). We agree and, therefore,

find no abuse of discretion.

      Appellant argues that the evidence was irrelevant and introduced

solely to bolster the Commonwealth’s theory that Appellant was an

“unlikeable person.”    Appellant’s Brief at 9.    However, once Appellant

testified on direct examination that he was not trying to replace [Mr.

Freeman] as the children’s father, Appellant “opened the door” to questions

regarding that topic on cross-examination, regardless of whether it was

relevant.   See Harris, supra.     Further, the trial court judge offered a

curative instruction telling the jury to consider the testimony for the



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purposes of intent at the time of the alleged assault and the “law presumes

that the jury follows the court’s instructions.”   Minerd, supra at 232.

Accordingly, we conclude the trial court did not abuse its discretion or

commit an error of law in permitting the challenged cross-examination.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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