J-A01015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JOHN V. HANEY                           :
                                         :   No. 2090 EDA 2016
                   Appellant

            Appeal from the Judgment of Sentence May 24, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007583-2015


BEFORE:    LAZARUS, J., OTT, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 23, 2018

      John V. Haney appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his jury trial and

conviction for simple assault, 18 Pa.C.S.A. § 2701. After careful review, we

affirm.

      The trial court summarized the relevant facts of this case as follows:

      At approximately 3:30 AM on February 7, 2015, the complainant,
      Michael Fisher, was in his apartment at 1100 [West] Montgomery
      Avenue. Complainant was a [21][]year-old junior at Temple
      University. There were other guests at the apartment who had
      been drinking. They arrived sometime after 10:00 PM. At 3:30
      AM, [Haney’s] Chinese food delivery arrived at the apartment.
      [Fisher] demanded some of [Haney’s] Chinese food and when
      [Haney] declined, [he] ordered [Haney] to leave his apartment.

      [Haney] approached [Fisher] and proceeded to pick him up and
      body slam him on the floor. [Fisher] was knocked unconscious by
      [Haney’s] body slam. [Haney] then punched the unconscious
      [Fisher] on his unprotected head 21 times with a closed fist.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Another individual intervened and pushed [Haney] off [Fisher];
     [Haney] stomped on [Fisher’s] face with his Timberland boots.
     The entire incident was captured by two different video
     recordings. The videos were uploaded to the internet where they
     received millions of views.

     [Fisher’s] face was disfigured and he was rushed to the hospital.
     [Fisher] spent the night in the hospital and was treated for several
     broken bones in his face. He suffered several fractures to his face,
     two lacerations that perforated his lip and mouth which resulted
     in scarring, [and] swelling and bruis[ing] on his face, preventing
     him from opening his right eye for at least 24 hours after the
     incident. [Fisher] also testified that he suffered a concussion for
     at least a month.

     On February 7, 2015, at approximately 4:15 AM, Philadelphia
     Police arrested [Haney] and charged him with [a]ggravated
     [a]ssault and related offenses.

     On April 7, 2016, [Haney] requested a sidebar with the judge.
     After the sidebar, the jury was excused and [Haney] requested
     permission to cross-examine [Fisher] about his intentions to file a
     civil suit, noting that there was a civil attorney by the name of
     Matt Glazer from Cozen O’Connor sitting in the courtroom. After
     reviewing arguments from both sides, the court denied [defense]
     counsel’s request to cross-examine [Fisher] regarding his
     intentions to pursue a civil suit[,] finding that “whether or not the
     [c]omplainant in this matter has hired counsel on a civil matter is
     not relevant to the criminal complaint.” And “this is a public
     courtroom and is open to the public.[”]

     At the conclusion of testimony, [Haney] requested the [trial court]
     instruct the jury on [s]imple [a]ssault – [f]ight [s]cuffle [u]pon
     [m]utual [c]onsent. [The court declined to issue the instructions.]

Trial Court Opinion, 6/7/17, at 2-3 (citations to transcript of testimony

omitted).

     On April 12, 2016, a jury convicted Haney of simple assault. On May

24, 2016, the trial court sentenced Haney to 4-8 months’ incarceration and

anger management treatment, followed by one year of probation. On June


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20, 2016, Haney filed a timely notice of appeal. Both the trial court and Haney

have complied with Pa.R.A.P. 1925. On appeal, Haney raises the following

issues for our review:

      1. Whether a new trial must be ordered because the [t]rial [c]ourt
      abused its discretion in refusing to issue a lesser included offense
      instruction on simple assault graded as a misdemeanor of the third
      degree when there was ample evidence from both Commonwealth
      and defense witnesses from which the jury could have concluded
      that [Fischer] and [Haney] entered into a fight or scuffle by mutual
      consent?

      2. Whether a new trial must be ordered because the [t]rial [c]ourt
      abused its discretion when it prohibited counsel from cross-
      examining the complaining witness regarding his intention to
      pursue a civil lawsuit against [Haney] and others in order to probe
      his bias and/or motive to embellish his testimony or otherwise
      testify falsely[?]

Brief of Appellant, at 5.

      Haney first avers that simple assault – fight scuffle upon mutual consent

is a lesser-included offense of simple assault, and thus, he was entitled to a

jury instruction on it.     Haney also argues that “mutual consent” is an

affirmative defense to simple assault. Both arguments are unavailing.

      Our standard of review in determining whether the trial court erred in

not granting a defendant’s request for jury instructions is as follows:

      There is no requirement for the trial judge to instruct the jury
      pursuant to every request made to the court. In deciding whether
      a trial court erred in refusing to give a jury instruction, we must
      determine whether the court abused its discretion or committed
      an error of law.

      A defendant is entitled to a charge on a lesser-
      included offense only where the offense has been made an
      issue in the case and the evidence would reasonably

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      support such a verdict. Instructions regarding matters which
      are not before the court or which are not supported by the
      evidence serve no purpose other than to confuse the jury.

Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super. 2008) (quotation

marks and citations omitted) (emphasis added).

      The Commonwealth argues that simple assault arising from a fight or

scuffle by mutual consent is not a lesser-included offense of simple assault.

We agree.    Simple assault by mutual consent is a matter of grading only.

Section 2701 states, in relevant part, as follows:

      (a) Offense defined.--Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if he:

            (1) attempts to cause or intentionally, knowingly or
            recklessly causes bodily injury to another[.]

                                 *      *     *

      (b) Grading.--Simple assault is a misdemeanor of the second
      degree unless committed:

            (1) in a fight or scuffle entered into by mutual consent, in
            which case it is a misdemeanor of the third-degree[.]

18 Pa.C.S.A. § 2701.

      Subsection 2701(b)(1) requires that an assault occur in a mutually

consensual fight or scuffle, an element unnecessary to prove simple assault

under section 2701(a)(1). See Commonwealth v. Norley, 55 A.3d 526,

530 (Pa. Super. 2012) (“[S]ection 2701(a)(1) sets forth the elements of the

crime of simple assault, and . . . a mutual fight or scuffle is merely a grading

consideration[.]”). See also Commonwealth v. Pellecchia, 925 A.2d 848,

851 (Pa. Super. 2008) (crime is considered lesser-included offense when the


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elements of that crime are necessary subcomponent of elements of another

crime).    Therefore, simple assault by mutual consent is not, as Haney

contends, a lesser-included offense of simple assault. Accordingly, the trial

court did not err in declining to issue the requested instructions.1

       Haney also argues that even if simple assault by mutual consent is not

a lesser-included offense, it is an affirmative defense to simple assault under

subsection 2701(a)(1). However, we discern nothing in the record suggesting

Haney preserved an affirmative defense argument for appeal.              Pa.R.A.P.

302(a) (“Issues not raised on the lower court are waived and cannot be raised

for the first time on appeal.”). Rather, Haney argued that the trial court should

have permitted the jury to consider simple assault by mutual consent

instructions:

       HANEY’S COUNSEL: [I]f the Court takes a look at simple assault,
       M-3, usual fight or scuffle, the law says that if people engage in a
       fight by mutual consent that they are not guilty of simple assault.
       It is only if the consent is involuntary that they are guilty of a
       mutual scuffle. . . . The Jury could believe, they could believe, that
       [the complainant] and [Haney] entered into a mutual fight, they
       both agreed, they both fight and what happened in the fight


____________________________________________


1Moreover, the undisputed evidence suggests that Haney intentionally caused
bodily injury to Fisher. Haney delivered 21 closed fist blows to Fisher’s head
after he rendered Fisher unconscious by a deliberate body slam. The trial
court determined that the only rational inference it could draw from Haney’s
actions was that he intentionally caused Fisher serious bodily injury.
Commonwealth v. Coleman, 496 A.2d 1207, 1209 (Pa. Super. 1985) (trial
court must charge on lesser included offense only if there is some disputed
evidence concerning element of greater charge or if disputed evidence is
capable of more than one rational inference).


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      happened in the fight, [Haney] is guilty of simple assault, a
      misdemeanor of the [third] degree.

N.T. Jury Trial, 4/7/16, at 154.     Haney, at no point, explicitly argues that

mutual consent is an affirmative defense to simple assault. Accordingly, we

find this issue waived.

      Haney next claims that the trial court should have allowed him to cross-

examine the victim regarding his intention to pursue a civil suit against Haney.

Specifically, Haney argues that trial counsel should have been allowed to

establish, on the record, that the victim was biased and had a motive to

fabricate or embellish testimony.

      Our standard of review of the admissibility of evidence is well settled.

      Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial court
      clearly abused its discretion. An abuse of discretion is not merely
      an error of judgment, but is rather the overriding or misapplication
      of the law, or the exercise of judgment that is manifestly
      unreasonable, or the result of bias, prejudice, ill-will or partiality,
      as shown by the evidence of record.

      Relevance is the threshold for admissibility of evidence.
      Pennsylvania Rule of Evidence 401 provides as follows:

         Rule 401. Test for Relevant Evidence

         Evidence is relevant if:

         (a) it has any tendency to make a fact more or less probable
         than it would be without the evidence; and

         (b) the fact is of consequence in determining the action.

      Pa.R.E. 401. Evidence is relevant if it logically tends to establish
      a material fact in the case, tends to make a fact at issue more or
      less probable or supports a reasonable inference or presumption
      regarding a material fact. “All relevant evidence is admissible,

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       except as otherwise provided by law. Evidence that is not relevant
       is not admissible.” Pa.R.E. 402.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015)

(citations and quotation marks omitted).

       Furthermore, “[a] trial court has discretion to determine both the scope

and permissible limits of cross-examination.” Commonwealth v. Briggs, 12

A.3d 291, 335 (Pa. 2011). “The trial judge’s exercise of judgment in setting

those limits will not be reversed in the absence of a clear abuse of discretion,

or an error of law.” Id. (quotation omitted).

       Ordinarily, the scope of cross-examination of an adverse witness is

limited to matters brought out on direct-examination, with the exception that

the trial court may permit questions outside the scope of direct examination

to show bias on the part of the witness. Commonwealth v. La, 640 A.2d

1336, 1350 (Pa. Super. 1994). However, the trial court cannot allow cross-

examination to become a fishing expedition, where an examiner may ask

questions based on a subjective hunch, or worse, based on nothing at all. In

Interest of M.M., 653 A.2d 1271, 1277 (Pa. Super. 1995).

       Here, Haney moved to question Fisher on his supposed personal interest

in a potential civil suit. At the time of Haney’s trial, Fisher had not filed a civil

action or contacted Haney regarding a possible suit or settlement. Rather,

Haney became suspicious that a civil matter was imminent after identifying a

civil attorney present in the courtroom at his criminal trial. Presently, Haney

supports his argument by attaching a copy of Fisher’s civil complaint to his

Rule   1925(b)    statement;    however,      Fisher   filed   this   civil   complaint

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approximately eight months after the conclusion of Haney’s trial.        Contra

Commonwealth v. Butler, 601 A.2d 268, 271 (Pa. 1991) (defendant should

have been afforded opportunity to cross-examine witness, who was defendant

in civil suit instituted by defendant, with evidence of civil suit, as outcome of

trial could materially affected probability of success in contemporaneous civil

action).

      In light of the foregoing, we discern no abuse of discretion by the trial

court in failing to permit Haney to cross-examine Fisher where the mere

presence of a civil attorney in a public courtroom was insufficient to support

Haney’s allegation that Fisher was contemplating a civil suit at the time of

trial. Tyson, supra; In Interest of M.M., supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18




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