J-A23005-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
ARTHUR HOSWAY LOGAN, JR.,                  :
                                           :
                   Appellant               : No. 823 WDA 2013

             Appeal from the Judgment of Sentence April 15, 2013,
                  Court of Common Pleas, Allegheny County,
               Criminal Division at No. CP-02-CR-0002509-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 10, 2014

        Arthur Hosway Logan, Jr. (“Logan”) appeals from the judgment of

sentence entered following his convictions of aggravated assault, simple

assault, burglary, conspiracy, criminal mischief and defiant trespass.1

Following our review, we conclude that the trial court denied Logan’s

constitutional right to present witnesses in his defense.     Accordingly, we

vacate the judgment of sentence and remand for a new trial.

        Because our disposition rests on the trial court’s unusual, and frankly

improper, conduct during trial, we need not belabor the facts underlying the

crimes of which Logan was convicted. It is sufficient to say that this case

has its genesis in a long-simmering dispute between neighbors. Logan and

Cherie Kelly (“Victim”) live in the same apartment complex and although



1
    18 Pa.C.S.A. §§ 2702, 2701, 3502, 903, 3304, 3503.
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they once shared a cordial relationship, it had deteriorated to the point on

incivility by the time the events underlying this appeal occurred. On January

24, 2012, Logan’s young daughter returned home from school with bloody

knees and told Logan that Victim’s son caused her injuries.        Logan, his

girlfriend, her friend, and Walter Davis (“Walter”) went to Victim’s

apartment. Victim would not open the door when they knocked.

      At trial, Victim testified that Logan and his friends broke down the door

to her apartment. According to her, Logan punched her daughter, hit Victim

once with a hammer and then he and Walter beat her with their fists to the

point that she suffered multiple injuries including a concussion and fractured

orbital bone. N.T., 4/15/13, at 13-20. She also testified that as a result of

these injuries, she continues to suffer from dizzy spells, migraine headaches,

double vision, panic attacks and post traumatic stress disorder. Id. at 20-

23.   Victim’s daughter also testified as to the events that occurred in her

home that day, in a manner largely consistent with Victim’s testimony. See

id. at 36-41.

      Logan testified that he and his friends knocked on Victim’s door, and

that she responded by cursing at them. Id. at 53. Logan also testified that

out of frustration he kicked the door open and tried to enter the apartment,

but Victim’s daughter immediately tried to hit him with a hammer.       Id. at

54-55.   Logan further testified that he pushed the hammer out of the

daughter’s hands and Victim moved toward the hammer as if she were going



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to pick it up. When the victim moved to pick up the hammer, he struck her

once in order to prevent her from doing so, and that this was the extent of

his assault on the victim. N.T., 4/15/13, at 55-57.

      Prior to the commencement of trial, Logan had not met with his court-

appointed counsel nor did he know that he could call character witnesses to

testify to his reputation in the community as part of his defense. Id. at 66.

When advised of this right, Logan immediately expressed his desire to do so.

Logan first expressed his desire to call his co-defendants to testify to his

reputation in the community for peacefulness, at which time the trial court

informed him that they would probably not want to take the stand and that

their testimony “couldn’t really affect me a lot” because they participated in

the same incident and were charged with related crimes. Id. at 66-67. Still

intent on calling a character witness to support his defense, Logan

attempted to call his mother, who was present, but the trial court informed

Logan that she is “not the most powerful character witness.”       Id. at 70.

Having rejected Logan’s proposed character witnesses as incredible, the trial

court expounded on the kinds of witnesses it would find appropriate and

credible as to the issue of Logan’s reputation in the community. Id. (“That

wouldn’t be as powerful as someone who was just, you know, a guy at the

corner store, the lady in bible school, I mean someone who is just a regular

person in the community of standing that would speak to what kind of

person you are … .”).    Despite knowing that Logan was intent on calling



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character witnesses in support of his defense and having deemed his

proposed witnesses incredible, when Logan asked for a continuance so that

he could find a character witness, the trial court denied his request.     The

trial court then found Logan guilty of the above-mentioned offenses and

sentenced him to 11½ to 23 months of incarceration, followed by three

years of probation.

      This timely appeal followed, in which Logan presents two issues for our

review:

            1. Did the trial court err when it declined to grant []
               Logan a brief continuance and allow him to
               exercise his constitutional right to present a good
               character witness, a right he did not know existed
               until just prior to closing arguments, thus
               violating his right to due process and fair trial?

            2. Did the trial court abuse its discretion when it
               denied [] Logan’s request for a continuance to get
               a good character witness when such a witness
               was necessary to strengthen his case, essential to
               his defense, could be easily procured, and likely
               to be produced?

Appellant’s Brief at 5.

      In his first issue, Logan argues that by denying his request for a

continuance, the trial court denied him of his constitutional right to present

witnesses on his behalf. “As this is an issue involving a constitutional right,

it is a question of law; thus, our standard of review is de novo, and our

scope of review is plenary.”    Commonwealth v. Baldwin, 58 A.3d 754,

762 (Pa. 2012).



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     “Just as an accused has the right to confront the prosecution’s

witnesses for the purpose of challenging their testimony, he has the right to

present his own witnesses to establish a defense.              This right is a

fundamental   element    of   due   process    of   law.”   Commonwealth    v.

McKenzie, 581 A.2d 655, 657 (Pa. Super. 1990) (citing Washington v.

Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, (1967)); see also

Commonwealth v. Douris, 766 A.2d 1276, 1279 (Pa. Super. 2001) (“A

defendant has the right to present his own witnesses to establish a defense.

This right is a fundamental element of due process of law.”).

     As explained above, Logan sought to call witnesses to establish his

good character.    Character evidence is substantive evidence that may

provide the majority, or even the entirety, of the accused’s defense.      The

Supreme Court of Pennsylvania eloquently explained the purpose, function

and admissibility of such evidence long ago:

           Evidence of good character is always admissible for
           the defendant in a criminal case. It is to be weighed
           and considered in connection with all the other
           evidence in the cause. It may of itself, in some
           instances, create the reasonable doubt which would
           entitle the accused to an acquittal. The rule itself is
           not merely merciful. It is both reasonable and just.
           There [may] be cases in which, owing to the peculiar
           circumstances in which a man is placed, evidence of
           good character may be all he can offer in answer to a
           charge of crime. Of what avail is a good character,
           which a man may have been a life-time in acquiring,
           if it is to benefit him nothing in his hour of peril?




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Commonwealth v. Cleary, 19 A. 1017, 1018 (Pa. 1890);                 see also

Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992) (“Evidence of

good character is substantive, not mere makeweight evidence, and may, in

and of itself, create a reasonable doubt of guilt and, thus, require a verdict

of not guilty.”).

      Although Logan was explicit about his desire to call character

witnesses and made multiple attempts to do so, the trial court announced

that it would not find them credible.      By prematurely announcing that it

found Logan’s proposed witnesses incredible, the trial court dissuaded him

from calling them on his behalf. Logan then sought a continuance so that he

could find other character witnesses. By denying Logan’s request, the trial

court deprived him of the opportunity to find other witnesses to testify as

part of his defense.        The combination of these actions effectively

extinguished Logan’s right to present witnesses to establish his defense.

This is particularly egregious in light of the fact that such witnesses were

vital to Logan’s case, as such testimony was evidence that would

corroborate his account of the incident – i.e., that he hit the victim once only

because he was trying to stop the victim from hitting him with a hammer.

That is to say, character witnesses that would testify that Logan has a

reputation in the community for peacefulness could provide the reasonable




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doubt needed to avoid a conviction of aggravated assault.2 Cleary, 19 A. at

1018; Weiss, 606 A.2d at 442.         To deny Logan this right is clear and

palpable error by the trial court.3    As such, we vacate the judgment of

sentence and remand for a new trial.

      In connection with this issue, we pause to note that the trial court’s

pronouncement that any amount of character evidence would not sway its

credibility determination was fundamentally and egregiously improper. This

statement is in direct contravention of our basic principles of due process

and the right to a fair trial.

             [A]ppellant, as a defendant in a criminal action, was
             entitled to the usual safeguards, and to have all
             the evidence considered by the trial judge
             before his guilt or innocence was determined.
             The presumption of innocence of the accused
             continued in his favor throughout the entire case

2
  This is because a conviction of aggravated assault under the section with
which Logan was charged requires proof of the causing of serious bodily
injury to another “intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A.
§ 2702(a)(1). This requires a determination of whether “the circumstances
surrounding the attack support the conclusion that [Logan] intentionally or
knowingly caused such injuries or if he proceeded in such a manner that
manifested an extreme indifference to the value of [the victim’s] life.”
Commonwealth v. Burton, 2 A.3d 598, 603 (Pa. Super. 2010). Thus,
testimony from character witnesses regarding Logan’s reputation for
peacefulness in the community would bolster Logan’s account of what
occurred, which, if believed by the trial court, would preclude a finding that
the single strike was administered with the requisite intent.
3
   The Commonwealth apparently recognizes the trial court’s error in this
regard; it puts forth what can best be called a lukewarm effort at defending
its position, classifying the trial court’s actions as “somewhat unusual” and
“defer[ring] to the decision of this Court” rather than defending the trial
court’s actions as proper. See Appellee’s Brief at 3, 19.


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            (see [Commonwealth] v. Barrish, [] 146 A. 553
            [Pa. 1929]), and whether it was overcome was to be
            determined     by    the   trial  judge  after     the
            introduction of all the evidence. The testimony of
            the last witness in a criminal case may be enough to
            raise a reasonable doubt as to a defendant’s guilt.

Commonwealth v. Richman, 1 A.2d 578, 579 (Pa. Super. 1938)

(emphasis added). The trial court’s prejudgment and declaration of Logan’s

guilt eviscerated his right to a presumption of innocence until after the

presentation of all of the evidence.

      In his remaining issue, Logan argues that the trial court abused its

discretion in not granting his request for a continuance based on the five-

prong test contained in Commonwealth v. Bozic, 997 A.2d 1211, 1225

(Pa. Super. 2010).4 In light of our resolution of Logan’s first issue, we need

not address the merits of this claim; however, we mention the nature of

Logan’s second claim simply to note that we cannot elevate what occurred in

this case to a legal analysis under Bozic.      Commonly, a request for a

4
   This test provides that when reviewing a trial court’s refusal to grant a
request for a continuance in order to procure a witness, we must consider
the following factors:

            (1) the necessity of the witness to strengthen the
            defendant’s case;
            (2) the essentiality of the witness to the defendant’s
            defense;
            (3) the diligence exercised to procure his or her
            presence at trial;
            (4) the facts to which he or she could testify; and
            (5) the likelihood that he or she could be produced at
            court if a continuance were granted.

Commonwealth v. Bozic, 997 A.2d 1211, 1225 (Pa. Super. 2010).


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continuance in order to procure a witness is made when an unforeseen

circumstance has arisen that delays or forecloses an anticipated witness’s

presence at trial. This case presents a much more serious concern; namely,

the denial of Logan’s right to call character witnesses on his behalf.      The

Bozic framework does not fit the bizarre circumstances of this case.

       In summary, the trial court’s prejudgment of the witnesses Logan

sought to call, coupled with his refusal to allow him to find other witnesses,

was the functional equivalent of refusing to allow Logan to call witnesses on

his behalf. Had Logan been given the opportunity to present witnesses of

the ilk that the trial court self-ordained as credible, the trial court would

have had additional evidence upon which to make its decision, as factfinder,

as to whether Logan possessed the mens rea required to be convicted of

aggravated assault. To conclude otherwise renders meaningless the notion

of a fair trial.

       Judgment    of   sentence   vacated.    Case    remanded    for   further

proceedings.5 Jurisdiction relinquished.

       Musmanno, J. joins the Memorandum.


5
  This Court cannot require that a case we remand for further proceedings be
assigned to a different judge nor can we predetermine a trial judge’s future
ability to fairly and impartially preside over a case. Thus, it is for Logan and
his counsel to decide whether a recusal request is warranted based on the
trial court’s improper comments in the first trial. We also note our deep
concern over Logan’s counsel’s abject failure to apprise Logan of his right to
call character witnesses. As troubling, counsel stood by mutely as Logan
pled his case to the trial court about his own desire to call character
witnesses.


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     Allen, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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