J-S91039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LAIRD LEASK BASEHOAR                       :
                                               :
                      Appellant                :   No. 274 MDA 2016

           Appeal from the Judgment of Sentence January 19, 2016
            In the Court of Common Pleas of Cumberland County
            Criminal Division at No(s): CP-21-CR-0001367-2015



BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 21, 2017

        Laird Leask Basehoar (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Cumberland County after

a jury convicted her of simple assault and harassment on evidence that she

punched and slapped her ex-husband in the face during a domestic dispute.1

Sentenced to not less than 90 nor more than 729 days in county prison for

simple assault, with a consecutive 12-month term of probation for

harassment, Appellant challenges orders denying her motions to dismiss


____________________________________________


1
  The court convicted Appellant of a third count of summary harassment,
which merged with the count of misdemeanor harassment for purposes of
sentencing.


* Former Justice specially assigned to the Superior Court.
J-S91039-16



charges on double jeopardy grounds and to stay proceedings pending appeal

of said denial, respectively, and she raises numerous other claims of trial

court error. We affirm.

      The case sub judice arises from an assault occurring in the residence

of Appellant’s ex-husband, 69 year-old Frank Basehoar, with whom

Appellant had resumed co-habiting in a quasi-landlord/tenant relationship

after nearly two years of living apart following their divorce. According to

Mr. Basehoar’s testimony at the criminal trial, on April 5, 2015, an

apparently intoxicated and verbally abusive Appellant confronted him for

about 15 minutes as he sat in his armchair, declining to respond in kind.

Eventually, Appellant jabbed him twice in the chest with a closed fist and

said “I would like to get a knife and stick it right there.” N.T. 10/27/15 at

51. When Mr. Basehoar stood and took several steps toward Appellant, she

swung wildly at him and landed two or three blows to the face, causing his

right nostril to bleed and producing two cuts beneath his right eye, which

later swelled and showed bruising.     He called 911 and completed a police

report alleging Appellant struck him twice in his face.

      Officer Katie Justh of the Lower Allen Police Department testified that

she arrived at the household and observed injuries to Mr. Basehoar’s nose

and eye. N.T. at 89. She discerned in Mr. Basehoar no evidence of alcohol

consumption or intoxication, noted his calm manner, and determined that he

needed no emergency care. N.T. at 90. With respect to Appellant, Officer

Justh noted that she was “irate, upset, screaming, yelling,” exhibiting

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emotional “highs and lows,” alleging that Mr. Basehoar’s wounds were self-

inflicted, and calling the officer a “fucking bitch.” N.T. at 91. Officer Justh

arrested Appellant and charged her with the offenses listed supra.

      At the first jury trial of October 26, 2015, the trial court granted

Appellant’s motion for mistrial after Officer Justh, in the following exchange,

revealed that she knew Appellant from a previous arrest:

      PROSECUTOR: When all these police officers show up to the
      scene, are the neighbors outside or anything?

      OFFICER JUSTH: Not that I recall, but the way their house
      kind of sits down, it’s kind of like a long driveway and sits down
      at an angle. So I was more concerned about the wellbeing of
      the two individuals involved and not the neighbors concern.

      Q: You said she [Appellant] called you names?

      A: Yes.

      Q: What is that about?

      A: I don’t know. A previous arrest.

      Q: So you said that…

      DEFENSE COUNSEL: Your Honor, I’m going to object to any
      references to previous incidents.

      THE COURT: Correct. Let me stop you there, Officer….

N.T. 10/26/15 at 79.

      The court initially gave curative instructions and called for a recess to

allow research and argument on defense counsel’s sidebar motion for

mistrial. The court reconvened and granted Appellant’s motion, but before

summoning the jury to discharge it, it stated its intent to proceed with a new

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trial the following morning and empanel a different jury from the existing

jury pool. N.T. at 85-86.

      Defense counsel voiced concern that a jury from the existing pool

could not avoid taint from courthouse talk about the reason for mistrial.

N.T. at 86. The court, however, dismissed the inevitability of taint, called for

the jurors, and explained both the reason for mistrial and their duty to

refrain from discussing the case with anyone:

      THE COURT: No, the jury poll’s [sic] not tainted.         They just
      can’t use these jurors.

      PROSECUTOR: Thank you, Your Honor.

      THE COURT: We know which jurors they are, and I will tell the
      Court Administrator. . . .

      ***
      [Addressing the jury upon its return to the courtroom] Folks, if
      you can’t tell, something happened, and I will tell you what
      happened. I declared a mistrial because I can’t unring that
      arrest bell. You heard that she had been arrested before, and I
      told them not to talk about anything before April 5 th. I don’t
      know how to take that out of your minds. I don’t know how to
      erase, erase, erase.

      And it had absolutely nothing to do with it. It was an inartfully
      worded question. The officer was trying to figure out the -- I
      shouldn’t say the officer. The attorney was trying to ask a
      question about what was her demeanor like and rather than
      asking, you know, what her demeanor was like in an arful way,
      he asked it in an inartful way, that lead [sic] to what the officer’s
      belief was. [‘]Well, I know why she was upset with me and
      acting this way, because I had prior contact with her.[’] There’s
      all kinds of contact with police, but that being the case, they
      can’t be on the jury tomorrow.

      THE COURT ADMINISTRATOR: Okay.


                                      -4-
J-S91039-16



     ***
     THE COURT: Okay. You are not going to be on this jury. Don’t
     discuss this case with anybody. All right. Wait until you get off
     jury duty and then I don’t care who you discuss it with, but you
     know one of the questions they are going to ask in the back of
     the courtoom, does anybody know anything about this case from
     whatever source? [‘]Oh, yeah, Juror 27 was telling me about it
     this morning.[’] You said the word [‘]arrest[’] and you can’t say
     that in a courtroom. So that will just muck up things for us, if
     you talk to anybody, especially the other folks in the jury poll
     [sic] about this because they are going to ask the question.

     So I ask very kindly and I beseech you and I beg you not to talk
     to anybody about this. Just go back into the jury poll [sic] and
     say, [‘]okay, let’s go.[’] Are we picking more tomorrow?

N.T. at 87-88.

     The next day, Appellant filed a pre-trial motion to dismiss charges

based on double jeopardy grounds. The court denied the motion, however,

as it imputed no intentional misconduct on the part of the prosecution from

the improper testimony of Officer Justh.     Moreover, the court specifically

deemed Appellant’s motion frivolous, and in so doing it advised Appellant

that governing decisional and rule-based authority did not require the court

to stay proceedings should she elect to file a petition for review of the

frivolousness decision with the Superior Court.     N.T. 10/27/15 at 5-10.

Counsel for Appellant expressed his intention to file such a petition for

review, but neither the certified record nor docket sheet reflects that such a

filing was ever made.

     The case proceeded to a second trial where, at the conclusion of

testimony offered by Mr. Basehoar, Officer Justh, and Appellant, the newly



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empaneled jury returned a verdict of guilty on both charges. On January 19,

2016, the court imposed sentence as noted, supra, and this timely appeal

followed.

     Appellant presents the following questions for our consideration:

     I.     DID THE COURT ERR WHEN IT DEEMED THE MOTION
            FRIVOLOUS   PURSUANT   TO   PA.R.CRIM.P.  587
            BECAUSE    THE   COMMONWEALTH’S       AFFIANT
            INTENTIONALLY BROUGHT UP MS. BASEHOAR’S
            CRIMINAL CONDUCT?

     II.    DID THE COURT ERR WHEN IT DEEMED THE MOTION
            FRIVOLOUS WITHOUT A HEARING?


     III. DID THE COURT ERR WHEN IT DID NOT MAKE A
          SPECIFIC FINDING OF FACT WHICH SHOULD HAVE
          INCLUDED    A   SPECIFIC  FINDING  AS   TO
          FRIVOLOUSNESS?


     IV.    DID THE COURT ERR WHEN IT FORCED MS.
            BASEHOAR TO HAVE HER CASE RETRIED THE VERY
            NEXT DAY BECAUSE THERE WAS NO WAY TO ENSURE
            THAT THE NEW JURY PANEL WAS NOT TAINTED?


     V.     DID THE COURT ERR WHEN IT DID NOT ALLOW MS.
            BASEHOAR TO PETITION THE SUPERIOR COURT
            REGARDING THE FRIVOLOUSNESS FINDING WITHIN
            30 DAYS PURSUANT TO PA.R.CRIM.P. 587(B)(5)
            BEFORE HAVING TO RETRY THE CASE?


     VI.    DID THE COURT ERR WHEN IT FORCED MS.
            BASEHOAR TO HAVE HER CASE RETRIED THE VERY
            NEXT DAY WHEN MS. BASEHOAR’S ABILITY TO
            IMPEACH A WITNESS WAS IMPROPERLY IMPAIRED
            BECAUSE SHE DID NOT HAVE A TRANSCRIPT FROM
            THE PREVIOUS TRIAL?



                                   -6-
J-S91039-16


      VII. DID THE COURT ERR IN ACCEPTING THE VERDICT
           AFTER THE COMMONWEALTH FAILED TO PRESENT
           EVIDENCE SUFFICIENT TO ESTABLISH THAT MS.
           BASEHOAR CAUSED OR ATTEMPTED TO CAUSE
           BODILY INJURY BEYOND A REASONABLE DOUBT?

Appellant’s brief at 7-8.

      Appellant’s first, second, third and fifth issues coalesce to challenge

the trial court’s orders denying her motion to dismiss on double jeopardy

grounds, finding her motion frivolous, and denying her request to stay

proceedings pending her filing of a petition of review of the frivolousness

decision.   Initially, we note that an abuse of discretion standard of review

applies in cases denying a motion to dismiss on double jeopardy grounds

following the declaration of a mistrial, and absent an abuse of that

discretion, we will not disturb the court's decision. See Commonwealth v.

Walker, 954 A.2d 1249, 1254 (Pa.Super. 2008) (en banc). Moreover:

      [t]o the extent that the factual findings of the trial court impact
      its double jeopardy ruling, we apply a more deferential standard
      of review to those findings:

             Where issues of credibility and weight of the
             evidence are concerned, it is not the function of the
             appellate court to substitute its judgment based on a
             cold record for that of the trial court. The weight to
             be accorded conflicting evidence is exclusively for
             the fact finder, whose findings will not be disturbed
             on appeal if they are supported by the record.

Commonwealth v. Graham, 109 A.3d 733, 735–737 (Pa. Super. 2015)

(internal quotations, citations, and original brackets omitted).

      Where a mistrial is declared, the double jeopardy clause bars retrial

only in those instances where mistrial was           intentionally caused by


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J-S91039-16



prosecutorial misconduct. Commonwealth v. Simons, 522 A.2d 537, 540

(Pa. 1987). See also Commonwealth v. Smith, 615 A.2d 321, 325 (Pa.

1992) (holding Article I, § 10, which our Supreme Court has construed more

broadly     than   double   jeopardy   clause,   bars   retrial   “not   only   when

prosecutorial misconduct is intended to provoke the defendant into moving

for a mistrial, but also when the conduct of the prosecutor is intentionally

undertaken to prejudice the defendant to the point of the denial of a fair

trial.”).   Mere prosecutorial error does not deprive the defendant of a fair

trial. Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa.Super. 2013). As

we have explained:

       Thus under Pennsylvania jurisprudence, it is the intentionality
       behind the Commonwealth's subversion of the court process, not
       the prejudice caused to the defendant, that is inadequately
       remedied by appellate review or retrial. By and large, most
       forms of undue prejudice caused by inadvertent prosecutorial
       error or misconduct can be remedied in individual cases by
       retrial. Intentional prosecutorial misconduct, on the other hand,
       raises systematic concerns beyond a specific individual's right to
       a fair trial that are left unaddressed by retrial. As this Court has
       often repeated, ‘[a] fair trial is not simply a lofty goal, it is a
       constitutional mandate, ... [and] [w]here that constitutional
       mandate is ignored by the Commonwealth, we cannot simply
       turn a blind eye and give the Commonwealth another
       opportunity.’

Id. at 884–85 (quoting Commonwealth v. Chmiel, 777 A.2d 459, 464)

(Pa.Super. 2001).

       Appellant first contends that the court erroneously failed to infer

intentional misconduct on behalf of the Commonwealth where Officer Justh,

as a law enforcement officer, clearly should have known Appellant’s prior


                                       -8-
J-S91039-16



arrest record was inadmissible and must have offered such information “as a

way of tainting Ms. Basehoar.” It was the trial court’s judgment, however,

that   Officer   Justh’s   testimony   was   the   product   not   of   intentional

prosecutorial misconduct designed to deprive Appellant of a fair trial but,

instead, a poorly articulated, open-ended question asking why Appellant

acted belligerently toward the officer.

       In reviewing this line of questioning, reproduced supra, we agree with

the trial court’s assessment that this was a direct examination gone

unexpectedly awry, without intentional prompting by the prosecution.

Indeed, we have held that when the prosecution asks an open-ended

question there is no intentional misconduct.       See Graham, 109 A.3d 739

(holding no misconduct when aggravated indecent assault victim testified

she feared defendant might assault her child or nephew when asked an

open-ended question about why she waited to report the defendant).

Moreover, there is no indication in the record that the trial was going so

poorly for the prosecution, or that the jury may have been unreceptive to

the testimony of the Commonwealth witnesses, that the prosecutor would

have been motivated to engage in misconduct in order to force a mistrial

and obtain a second chance to prosecute the case. Accordingly, because the

record supports the trial court’s exercise of discretion, we discern no basis

for disturbing its order denying Appellant’s motion to dismiss.

       Appellant next contends that the court erred in declaring her motion

frivolous and proceeding immediately to a second trial when it conducted no

                                       -9-
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hearing, made no specific finding of frivolousness, and denied her the

opportunity to file a petition for review on the frivolousness decision before

the commencement of retrial. We disagree.

      Generally, criminal defendants have a right to appeal a trial court's

pre-trial double jeopardy determination, even though the ruling is technically

interlocutory.   Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (per

curiam) (citation omitted). “[P]retrial orders denying double jeopardy claims

are final orders for purposes of appeal.”     Id. at 1024.    If a court finds a

double jeopardy claim frivolous, however, retrial may commence without an

automatic stay while the defendant may file a petition of review of the

frivolousness decision in the Superior Court. Id. at 1027; Commonwealth

v. Brady, 508 A.2d 286 (Pa.Super. 1986) (precluding of-right interlocutory

appeal and automatic stay of retrial where trial court deems double jeopardy

challenge frivolous); Pa.R.A.P. 1501.

      This Court has addressed the procedural requirements for motions to

dismiss on grounds of double jeopardy:

            [I]n 2013, the Pennsylvania Rules of Criminal Procedure
      were amended to codify the common law framework for motions
      to dismiss on double jeopardy grounds. In particular, effective
      July 4, 2013, Rule 587(B) was added to govern pretrial double
      jeopardy motions. Specifically, Rule 587(B) provides in pertinent
      part:

            (1) A motion to dismiss on double jeopardy grounds
            shall state specifically and with particularity the basis
            for the claim of double jeopardy and the facts that
            support the claim.



                                     - 10 -
J-S91039-16


             (2) A hearing on the motion shall be scheduled in
             accordance with Rule 577 (Procedures Following
             Filing of Motion). The hearing shall be conducted on
             the record in open court.

             (3) At the conclusion of the hearing, the judge shall
             enter on the record a statement of findings of fact
             and conclusions of law and shall issue an order
             granting or denying the motion.

             (4) In a case in which the judge denies the motion,
             the findings of fact shall include a specific finding as
             to frivolousness.

             (5) If the judge makes a finding that the motion is
             frivolous, the judge shall advise the defendant on the
             record that a defendant has a right to file a petition
             for review of that determination pursuant to Rule of
             Appellate Procedure 1573 within 30 days of the order
             denying the motion.

           ***
     Pa.R.Crim.P. 587(B) (emphasis added).

Commonwealth v. Taylor, 120 A.3d 1017, 1022 (Pa.Super. 2015).

     Our review of the record reveals that the trial court entertained

Appellant’s motion to dismiss in conformance with the procedures outlined in

Rule 587(B). Prior to the commencement of retrial, the court conducted a

hearing to make an appropriate record in response to its denial of

Appellant’s motion to dismiss. Specifically, the court permitted argument by

counsel for Appellant, who asked the court to make a Rule 587(B) finding of

“whether or not the motion is frivolous.” N.T. 10/27/15 at 5. Counsel also

posited that Appellant had the right to an immediate interlocutory appeal

regardless   of   the   court’s   frivolousness   determination.        The   court

acknowledged its obligation to make a frivolousness finding and to advise

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J-S91039-16



Appellant of such a finding on the record, and it did so by announcing in

open court its order making the specific finding that Appellant’s motion was

frivolous. N.T. at 6.

        The court, then, addressed Appellant’s right to file a petition for review

of the court’s frivolousness decision in light of Orie and Brady.            After

acknowledging Appellant’s right to file a petition, see N.T. at 7, the court

heard argument from the prosecution to the effect that Pa.R.A.P. 1573 and

1701, which reflect the codification of such decisional law, together provide

that a petition for review shall not automatically stay proceedings in the trial

court where the court has deemed the double jeopardy challenge frivolous.

Instead, the trial court may allow retrial to proceed while the petition for

review is pending before the appellate court, the prosecution argued. N.T.

at 8.    The court agreed with the prosecutor’s interpretation of controlling

authority and confirmed with defense counsel that Appellant had, in fact,

asked for a stay pending her filing of a petition for appellate review.        An

order denying Appellant’s request for a stay was thereafter entered. N.T. at

9-10.

        Therefore, we reject as factually groundless Appellant’s bald argument

that the court erroneously made the frivolousness determination “without

hearing argument or testimony[]” as required by Rule 587. Appellant’s brief

at 16.     The court, in fact, permitted argument by counsel, addressed

Appellant’s motion in open court, specifically found the motion to be

frivolous, and entered an order to that effect with instructions that it be

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transcribed as a written order, as well. The court, likewise, acknowledged

Appellant’s right to file a petition for review on the frivolousness question

and entertained argument on her request to stay proceedings pending

appellate review before it entered a second order denying her request and

slating her case for immediate retrial. Accordingly, Appellant is entitled to

no relief on Issue II, III, and V.2

       In Appellant’s fourth issue, she charges court error with the decision to

select the retrial jury from the jury pool existing at the time of mistrial,

because “the jury in the instant case may have learned of [Appellant’s] prior

criminal record from mingling with the jurors who served during [her]

mistrial.”    Appellant’s brief at 19-20.          Appellant admits she had the

opportunity to voir dire all venire persons, but she claims that neither she

nor anyone else “asked questions that would rule out any juror who knew of

Ms. Basehoar’s mistrial and prejudicial references to her criminal record.”




____________________________________________


2
  Although we have elected to address Appellant’s claims II and III on the
merits, we note these claims were also subject to waiver, for Appellant never
voiced an objection asserting that the court’s hearing and findings of fact
were procedurally flawed. Pa.R.A.P. 302(a) (stating: “Issues not raised in
the [trial] court are waived and cannot be raised for the first time on
appeal”); Commonwealth v. Duffy, 832 A.2d 1132 (Pa.Super. 2003)
(holding party must make timely and specific objection at trial to preserve
issue for appellate review). Moreover, we note that Appellant never filed a
petition for review with this Court on the frivolousness determination.




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      The record as reproduced, supra, shows the court took several

precautions to avoid the possibility of a tainted second jury. It emphatically

instructed mistrial jurors before their discharge that they were to refrain

from discussing any aspect of this case to anyone for as long as they

remained in the jury pool. The court also instructed the court administrator

to ensure that no juror from the first trial be included as a prospective juror

in the second trial. Finally, to defense counsel’s voiced concern about the

possibility of taint, the court advised:

      THE COURT: But you are going to ask the question, [‘]does
      anybody know anything about this case from whatever
      source[?’], because I actually warned each of the jurors here
      yesterday not to discuss the case because that was going to be
      one of the questions, like everybody asked yesterday, does
      anybody know anything about this case from whatever source,
      newspaper, radio, friends, you know, fellow jurors.

      If there is cross contamination then your argument from
      yesterday would have merit, but I don’t know that, and I tried to
      take – I will use my word here – prophylactic steps to prevent
      that. We are going to see if it worked.

N.T. 10/27/15 at 10.

      Notably, during voir dire, the prosecution confirmed with venire

persons that they did not know either Appellant or Mr. Basehoar and had not

learned anything about the case from any source. N.T. at 18-19. Defense

counsel, however, asked no questions pertaining to possible jury pool

discussions about the mistrial. N.T. at 23-24.

      The jury selection process is crucial to the preservation of a criminal

defendant's right to an impartial jury explicitly guaranteed by Article I,


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section 9 of the Pennsylvania Constitution.      Commonwealth v. Ingber,

531 A.2d 1101, 1102 (Pa. 1987).         The decision whether to disqualify a

venire person is within the discretion of the trial court and will not be

disturbed on appeal absent a palpable abuse of that discretion. Id. at 1103

(citations omitted).

      Here, Appellant essentially argues that we should presume her jury

was incapable of rendering an impartial verdict based on the mere possibility

that one or more of its members learned of her prior arrest record from a

former juror seated in the first trial. All second trial jurors, however, were

subject to voir dire and claimed to possess no prior knowledge from any

source about either Appellant or Mr. Basehoar. Defense counsel did not test

this response with a more specific question tailored to the possibility of

courthouse conversations about the case.        From this record, we find no

palpable abuse of discretion in the court’s decision to empanel the jury, and

we, therefore, find Appellant’s claim of reversible error devoid of merit.

      Appellant next contends that the court’s decision, over objection, to

commence retrial on the day after mistrial unfairly precluded her ability to

impeach Mr. Basehoar with a transcript of his testimony from the previous

day. According to Appellant:

      [t]he Commonwealth’s main witness, Mr. Basehoar, testified
      during the mistrial that Ms. Basehoar connected with his face
      once; however, during the second trial, Mr. Basehoar testified
      that he was struck three or four times. Mr. Basehoar had a right
      to use the transcripts from the first trial as a tool to impeach Mr.
      Basehoar’s credibility.


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Appellant’s brief at 25.

      Appellant has mischaracterized the record.      Our review reveals Mr.

Basehoar testified at the first trial that he was unsure how many times

Appellant struck him because he did not count, but that it could have been

two or three times:

      MR. BASEHOAR: [Recounting the conflict between himself and
      Appellant] I did take two steps towards her, but I was not within
      4 feet. And then she swung 1, 2 or 3 times at me. She
      connected to the right side of my face. I think she hit me with a
      closed fist, but at that time she had pretty long nails so I knew I
      was bleeding.

      ***
      PROSECUTION: You said she hit you, was that 1, 2 or 3 times?
      Are you saying you don’t know or…?

      MR. BASEHOAR: My report says two times. It could have been
      two or three times. You know, when you’re being swung at, you
      turn your head, and, you know, I turned my eyes and I turned
      my head away. I turned it to the left side. That is why I took
      the impact on the right side of my face.

      ***

      DEFENSE COUNSEL:        So you recall telling the police that she
      hit you twice?

      MR. BASEHOAR: I recall her telling the police that she hit me
      two or three times, but I think my report said twice.

      DEFENSE COUNSEL: Now, here today you would agree that
      you testified that you think that she actually hit you, in other
      words that she connected with you once?

      MR. BASEHOAR: No, I think she connected with me two
      different times, one to the nostril, one under the eye where the
      cut was.



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N.T. 10/26/15 at 49, 50, 66-67. It was also established that Mr. Basehoar

sustained a bloody nose, a cut on the upper part of his nose, a cut beneath

his right eye, which also became swollen, painful, and eventually black and

blue. N.T. at 50-51, 53.

      On retrial, Mr. Basehoar initially testified that he believed Appellant

struck him three or four times, N.T. 10/27/15 at 52-53, but on cross-

examination he modified his estimate to reconcile it with a police report in

which he told investigators that Appellant landed two blows. N.T. at 76. In

response to continued cross-examination on the details of Appellant’s

alleged attack, Mr. Basehoar testified further:

      MR. BASEHOAR: I think she hit me with both hands. She was
      swinging wildly. Okay? I think there were several strikes
      thrown, and I think that there may have been two that
      connected, possibly three. I didn’t count them. I was turning
      my face away trying to protect my eyes.

N.T. at 80.

      The record belies Appellant’s assertion that Mr. Basehoar testified to

just one landed blow at the first trial, for it is clear he settled on an estimate

of “two or three” blows within an overall testimony admitting to uncertainty

about the exact number.      Nor did he persist in his initial estimate at the

second trial of three to four blows, as he revised his estimate to two to three

after defense counsel presented him with his statement given to police

investigators.   To the extent that Appellant charges Basehoar with giving

widely disparate testimonies, therefore, we find she mischaracterizes the

evidence.

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      Moreover, Appellant fails to explain how confronting Basehoar with a

transcript of his previous testimony alleging two to three blows would have

impeached Appellant to a greater degree than what was achieved by gaining

his concession that he told police investigators he incurred only two blows.

In either instance, the jury would hear that Basehoar’s testimony of three to

four blows was inconsistent with a prior official statement of two blows.

Finally, Appellant fails to direct us to where in the record she asked for a

continuance to allow time to acquire a transcript for impeachment purposes,

an omission that makes her claim of court error subject to waiver.         We,

therefore, reject this claim as meritless.

      Finally,   Appellant   contends     that   the   Commonwealth   presented

insufficient evidence to prove the “caused or attempted to cause bodily

injury” element to simple assault.        This Court's standard of review of a

challenge to the sufficiency of the evidence is as follows:

      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

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J-S91039-16


      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
      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. Rahman, 75 A.3d 497, 500–01 (Pa. Super. 2013)

(citations and quotations omitted).

      A defendant is guilty of Simple Assault if she “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another [.]” 18

Pa.C.S. § 2701(a)(1).     “Bodily injury” is an “[i]mpairment of physical

condition or substantial pain.” 18 Pa.C.S. § 2301.

      According to Mr. Basehoar, Appellant had spent the entire Easter

Sunday in her bedroom until about 5:30 p.m., when she came out “enraged,

agitated, upset screaming using various [profanities].”     N.T. at 50.     She

screamed “at the top of her lungs” for between 10 and 20 minutes. N.T. at

55. “She said to me, [‘]Why don’t you fucking leave the fucking house, you

asshole. Get the hell out of here. I don’t want you here. . . . The dogs

don’t want you here. Nobody wants you here. Get the fuck out.[’]” N.T. at

51.

      Mr. Basehoar grew increasingly frustrated and upset during this

outburst, but employing calming techniques recently learned at over 20

counseling sessions he attended with Appellant, he quietly remained seated

in his armchair. Appellant did not desist, however, and she came around to



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the front of his chair, thumped him twice in the chest with a closed fist, and

said she would like to stab him there. N.T. at 51. When Basehoar stood up,

approached her, and suggested she take a walk outside, Appellant “started

to throw punches” which caused Basehoar to sustain both a bloody nose and

a cut, swollen, and bruised eye.   N.T. at 52.

        When viewed in a light most favorable to the verdict winner, the

evidence adduced at trial established that Appellant attempted to cause

substantial pain to her ex-husband when she struck him several times in the

face.   This Court “has been reluctant to find assaultive behavior in family

situations, to ‘attach criminality to the pushing, shoving, slapping, elbowing,

hair-pulling, perhaps even punching and kicking, that not infrequently occur

between siblings or other members of the same family.’” In re M.H., 758

A.2d 1249 (Pa.Super. 2000) (quoting Interest of J.L., 475 A.2d 156, 157

(Pa.Super. 1984).     Where malicious intent to injure may be inferred from

surrounding circumstances, however, the act is actionable criminally.      See

Interest of J.L. at 158.

        Here, it was reasonable for a jury to infer Appellant’s malice from her

protracted and extreme tirade, which reached its violent crescendo after she

provocatively jabbed her ex-husband’s chest with a closed fist and wished

aloud about plunging a knife “right there.” Gaining a reaction from him, she

then wildly punched at his face, landing two or three solid blows which

caused bleeding and swelling. We, therefore, conclude that Appellant acted




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with the specific intent to cause bodily injury necessary for a conviction of

simple assault.

     For the foregoing reasons, judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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