J-A08045-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
LESTER C. DIETRICH, JR.,                 :
                                         :
                 Appellant               :     No. 1023 MDA 2014

     Appeal from the Judgment of Sentence Entered October 10, 2012
            in the Court of Common Pleas of Lancaster County,
          Criminal Division, at No(s): CP-36-CR-0004106-2011

BEFORE:    SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED MAY 28, 2015

     Lester C. Dietrich, Jr. (Appellant) appeals from the October 10, 2012

judgment of sentence imposed following his convictions by a jury for

aggravated assault and resisting arrest.1 We affirm.

     The trial court summarized the history of this case as follows.

           On July 14, 2011, at approximately 2:00 a.m., Officer
     Brent Smith was on duty as a patrol officer in Columbia
     [Borough, Lancaster County]. Officer Smith noticed [Appellant]
     standing on the corner of the street, appearing disoriented and
     with several items lying on the ground in front of his feet.
     Officer Smith decided to make contact with [Appellant] and
     noticed a strong odor of alcohol coming from his breath, slurred
     speech, disorientation, and an open, almost empty bottle of
     Scotch whiskey at [Appellant’s] feet. While Officer Smith was
     making contact with [Appellant], Sergeant [Marc] Tremblay
     arrived to assist Officer Smith. When Officer Smith turned his
     back to [Appellant], Sergeant Tremblay saw [Appellant] turn


1
 The trial court also found Appellant guilty of the summary offense of public
drunkenness.

*Retired Senior Judge assigned to the Superior Court.
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     sideways to Officer Smith, pull out a knife, open the blade, and
     stand with the blade along his thigh. Sergeant Tremblay yelled
     that [Appellant] had a knife and Sergeant Tremblay grabbed
     [Appellant] and pushed him away from Officer Smith while
     locking [Appellant’s] arm behind his back. [Appellant] was then
     handcuffed and taken to Sergeant Tremblay’s police cruiser;
     [Appellant] struggled with the police on the way to the cruiser.
     When [Appellant] was finally in the cruiser, he laid his back
     along the seat and kicked Sergeant Tremblay squarely in the
     chest. [Appellant] was wearing work boots at the time and the
     kick propelled Sergeant Tremblay back away from [Appellant].
     Once Appellant arrived at the police station, he continued to be
     aggressive and uncooperative; [Appellant] was placed in a cell
     where he continued to yell, scream, and rattle the bars.

           [Appellant] was charged with two counts of aggravated
     assault, one count of resisting arrest, and one count of summary
     public drunkenness. On December 21, 2011, at the time for
     [Appellant’s] preliminary hearing, the district attorney present
     agreed to withdraw the felony 1 aggravated assault charge
     based on the understanding that [Appellant] would waive and
     plead guilty to the felony 2 aggravated assault charge[].
     [Appellant] waived his hearing, but elected to go to trial on July
     16, 2012; the Commonwealth reinstated the count of aggravated
     assault that had been previously withdrawn. At the time of trial,
     defense counsel raised an objection to reinstating the original
     charge of aggravated assault. Defense counsel also made two
     oral motions in limine to prohibit any testimony about what
     occurred at the police station after the arrest and to exclude any
     testimony regarding the knife. The aggravated assault at count
     1, regarding the assault by physical menace with the knife, was
     withdrawn at the time of trial and the Commonwealth proceeded
     only on the aggravated assault regarding the kick to Sergeant
     Tremblay. The court denied [Appellant’s] motions in limine.

           The case proceeded to trial on counts 2, 3, and 4. While
     the jury was deliberating, it requested the police reports and
     affidavit of arrest to read. The court denied the request, as the
     reports and affidavit had not, in their entirety, been submitted
     into evidence. On July 17, 2012, [the] jury found [Appellant]
     guilty of aggravated assault and resisting arrest or other law
     enforcement. The court found [Appellant] guilty of the summary



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      public drunkenness charge.       [Appellant] was sentenced on
      October 12, 2013 to a term of one to two years [of]
      incarceration, followed by three years of probation. [Appellant]
      filed a timely post-sentence motion, which was denied by order
      of November 2, 2012.

Trial Court Opinion, 9/25/2014, at 1-3 (citations, footnotes, and unnecessary

capitalization omitted).

      Appellant’s first appeal was quashed by this Court as untimely filed.

Upon Appellant’s petition, the trial court reinstated Appellant’s direct appeal

rights, after which Appellant timely filed the instant appeal.       Appellant

presents this Court with the following questions, which we have reordered

for ease of disposition.

            I.    Did the trial court err in denying [Appellant’s] motion
      for a directed verdict of acquittal on the count of aggravated
      assault and ther[e]by abuse its discretion?

            II.   Did the trial court abuse its discretion when it denied
      [Appellant’s] motion for a directed verdict of acquittal on the
      count of resisting arrest?

          III. Did the trial court err in allowing the prosecution to
      amend the charges 10 days prior to the trial date?

             IV.  Did the trial court err in denying [Appellant’s] motion
      in limine regarding actions that may have occurred in the police
      station where no subsequent charges were filed and in turn put
      on character evidence of [Appellant] prior to any testimony from
      any character witnesses of the defendant and in turn shift the
      burden to [Appellant] and force [Appellant] to put on testimony?

            V.    Did the trial court err in denying [Appellant’s] motion
      in limine regarding a knife in [Appellant’s] possession when the
      Commonwealth failed to bring any charges in relation to the




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      knife and went out of their way to amend the charges to remove
      any charge relating to the knife?

            VI.   Did the trial court err when it refused to allow the
      jurors to read the police reports and arrest affidavit when the
      foreperson specifically requested it?

Appellant’s Brief at 7-8 (unnecessary capitalization omitted).

      We first consider Appellant’s claims that the trial court erred in

denying his motion for judgment of acquittal on the aggravated assault and

resisting arrest charges.

             A motion for judgment of acquittal challenges the
      sufficiency of the evidence to sustain a conviction on a particular
      charge, and is granted only in cases in which the Commonwealth
      has failed to carry its burden regarding that charge.

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.




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Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa. Super. 2008)

(quoting Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super.

2006)).   “Because evidentiary sufficiency presents a question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa. 2014) (citations and

internal quotation marks omitted).

      Appellant first challenges the sufficiency of the evidence to sustain his

aggravated assault conviction. “A person is guilty of aggravated assault if

he: … attempts to cause or intentionally or knowingly causes bodily injury to

[a police officer] in the performance of duty[.]” 18 Pa.C.S. § 2702(a)(3) and

(c)(1).   Bodily injury is defined as “[i]mpairment of physical condition or

substantial pain.” 18 Pa.C.S. § 2301.

      Appellant claims that his aggravated assault conviction is supported by

insufficient evidence because “Sergeant Tremblay, the victim of the kick,

clearly indicated that he did not feel substantial pain and was able to

perform his duties for the remainder of his shift.”    Appellant’s Brief at 18

(citing Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997)).2

We disagree.



2
 Appellant’s reliance upon Wertelet is misplaced. In that case, this Court
held that the evidence was insufficient to establish that the officer sustained
actual bodily injury, and did not discuss whether the evidence supported a
conviction based upon an attempt to cause injury. See Wertelet, 696
A.2d at 212-13 (holding evidence that woman kicked officer with the back of


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     “‘[I]n a prosecution for aggravated assault on a police officer[,] the

Commonwealth has no obligation to establish that the officer actually

suffered a bodily injury; rather, the Commonwealth must establish only an

attempt to inflict bodily injury, and this intent may be shown by

circumstances which reasonably suggest that a defendant intended to cause

injury.’” Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013)

(quoting Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011))

(emphasis in original). “An ‘attempt’ exists when ‘the accused intentionally

acts in a manner which constitutes a substantial or significant step toward

perpetrating    …   bodily   injury    upon    another.’”     Commonwealth       v.

Stevenson,      894    A.2d     759,     774     (Pa.     Super.   2006)   (quoting

Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001)).

     Here, the Commonwealth offered testimony that Appellant reared back

and kicked Sergeant Tremblay squarely in his chest with the bottom of his

work-boot-clad foot with enough force             to throw     Sergeant Tremblay

backwards.     N.T., 7/16/2012, at 50, 78-79.           Although Sergeant Tremblay

was wearing a bulletproof vest at the time and was thus unhurt by the kick,

id. at 88, the jury had sufficient evidence upon which to conclude that




her heel as she flailed about was insufficient to prove that the officer
“experienced a ‘bodily injury’ within the meaning of the statute” where the
officer did not report any bruising or swelling as a result).


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Appellant acted with the intent to cause impairment or substantial pain. 3

Accordingly, the trial court did not err in denying Appellant’s motion for a

judgment of acquittal on the aggravated assault charge. See, e.g., Brown,

23 A.3d at 560 (holding evidence was sufficient to establish the attempt to

cause bodily injury to a police officer where Brown flailed his arms,

repeatedly striking the officer on the arm, shoulder, and mouth).

      Appellant next claims that the evidence was insufficient to sustain his

conviction for resisting arrest. The relevant statute provides:

      A person commits a misdemeanor of the second degree if, with
      the intent of preventing a public servant from effecting a lawful
      arrest or discharging any other duty, the person creates a
      substantial risk of bodily injury to the public servant or anyone
      else, or employs means justifying or requiring substantial force
      to overcome the resistance.

18 Pa.C.S. § 5104.

      Officer Smith testified to the following description of the events

subsequent to the handcuffing of Appellant:

             We had to physically move him to the police car, which is
      maybe ten feet out to the street. So we had to physically escort
      him. He wasn’t walking. And we got him to the side of the
      police car and opened the back door, and he refused to get in.
      We were able to turn him around. And it is easier to get
      someone in by going around to the back of the other side and
      grabbing him from behind and pulling him in. But we both
      stayed on his side of the car and basically were able to push him
      into the backseat of the car.



3
  As we discuss infra, Appellant’s intent to cause bodily harm was further
evidenced by his aggressive conduct before and after the kick.


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N.T., 7/16/2012, at 49.      After Appellant kicked Sergeant Tremblay as

previously described, Officer Smith did go to the other side of the car and

pulled Appellant all the way into the vehicle. Id. at 50.

      Appellant argues his conviction cannot stand because there was no

testimony that Appellant resisted prior to being handcuffed; rather, “[a]ny

allegation of kicking occurred after [Appellant] was handcuffed, and

therefore already arrested.” Appellant’s Brief at 20. Again, we disagree.

      The above testimony evidences that substantial force was required to

overcome Appellant’s resistance to being taken into custody.        Appellant

cites, and we have found, no authority for the proposition that an arrest is

complete for purposes of subsection 5104 as soon as the arrestee is in

handcuffs. Even if such were true, the officers were clearly in the process of

discharging their duty to take the arrestee to the police station when

Appellant kicked and otherwise resisted. Accordingly, the trial court properly

denied Appellant’s motion for an arrest of judgment on the resisting arrest

charge.   See Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa.

Super. 2007) (“Appellant’s use of passive resistance requiring substantial

force to overcome provided sufficient evidence for upholding the resisting

arrest conviction.”).

      With his next issue, Appellant claims that the trial court erred in

allowing the Commonwealth to amend the charges ten days before trial.




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Appellant argues that he was prejudiced by the late amendment because

counsel had to “rethink [her] theory of the case and prepare new

arguments.” Appellant’s Brief at 14. Appellant suggests that he was denied

a meaningful opportunity to present a defense by the late amendment. Id.

at 15.

         The trial court offered the following explanation for its decision to allow

the amendment.

               In the instant case, [Appellant] was originally charged with
         two counts of aggravated assault, resisting arrest, and public
         drunkenness. At the preliminary hearing, the Assistant District
         Attorney offered to withdraw the Felony 1 aggravated assault
         charge with the understanding that [Appellant] would waive and
         plead guilty to the Felony 2 aggravated assault charges. ADA
         Lechner also noted that it was made clear to the defense counsel
         present at the preliminary hearing that if [Appellant] chose not
         to enter a guilty plea, the greater charge would be reinstated.
         That scenario is precisely what happened here. [Appellant]
         elected to go to trial, as is his right, and the prosecution
         reinstated the original charges that [Appellant] was facing.

                Defense counsel attempts to argue that because the
         charge was reinstated ten days before trial, the defense was
         prejudiced, as she did not have enough time to prepare. This
         argument is senseless. Defense counsel was aware of the
         charges [Appellant] faced at the time of the preliminary hearing
         and knew that if [Appellant] elected to go to trial, the original
         charges would be reinstated. In preparing for trial, defense
         counsel should have been prepared for all the original charges,
         considering the very fact that she was preparing for trial.
         Furthermore, the events of that evening transpired over the
         course of less than fifteen minutes; there was no additional or
         different discovery that would have been provided….

Trial Court Opinion, 9/25/2014, at 4-5 (citations omitted).




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      The trial court’s findings are supported by the record, and Appellant

has failed to persuade us that the trial court committed an error or abuse of

discretion.   Accordingly, Appellant is entitled to no relief. Commonwealth

v. Claffey, 80 A.3d 780, 787 (Pa. Super. 2013) (“It is, of course, an

appellant’s burden to persuade us the trial court erred and relief is due.).

      Appellant’s next two issues relate to the denial of his motions in

limine.

            When reviewing the denial of a motion in limine, we apply
      an evidentiary abuse of discretion standard. [A] motion in limine
      is a procedure for obtaining a ruling on the admissibility of
      evidence prior to trial, which is similar to a ruling on a motion to
      suppress evidence, [therefore] our standard of review ... is the
      same as that of a motion to suppress.             The admission of
      evidence is committed to the sound discretion of the trial court,
      and our review is for an abuse of discretion.

Commonwealth v. Rosen, 42 A.3d 988, 993 (Pa. 2012) (internal quotation

marks and citations omitted).

      Appellant claims that the trial court should have granted his motion in

limine to exclude as irrelevant and prejudicial testimony “as to the knife

[Appellant] legally had in his possession” and “as to what occurred at the

police station after the arrest.”4   Appellant’s Brief at 16, 15.     Appellant

argues that allowing this testimony “put [Appellant’s] character at issue[,]”

“improperly switched the burden to [Appellant] to prove he was innocent



4
  Appellant does not identify, by reference to the record or otherwise, the
testimony that was offered about “what occurred at the police station.”


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and   forced   [Appellant]      to   put    on   testimony    to   counteract    the

Commonwealth’s attack on his character.” Id. at 15.

      Rule 404(b) of the Rules of Evidence addresses the admissibility of the

evidence at issue as follows:

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show
      that on a particular occasion the person acted in accordance with
      the character.

      (2) Permitted Uses.       This evidence may be admissible for
      another purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b).

      In the instant case, the Commonwealth bore the burden of convincing

the jury, beyond a reasonable doubt, that Appellant kicked Sergeant

Tremblay with the intent to cause him bodily injury.               The evidence of

Appellant’s conduct immediately before and after the assault were offered

not to prove that Appellant acted in conformity with a bad character or to

switch any burden onto Appellant, but to prove Appellant’s intent at the time

of the assault. As the Commonwealth explained,

      the fact that [Appellant] pulled     a knife from his pocket, flipped it
      open, and concealed it behind        his thigh when an officer turned
      his back to him demonstrates         an intent to inflict bodily injury.
      Testimony regarding the knife        was relevant for the purpose of



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J-A08045-15


      proving that the kick by [Appellant] was committed with the
      intent to injure a police officer.

            Second, testimony regarding [Appellant’s] actions at [the
      police] station is relevant to prove [Appellant’s] state of mind
      with respect to the kick of Sgt. Tremblay.             [Appellant’s]
      aggressive behavior towards the police officers at the station
      furthers the Commonwealth’s argument that [Appellant]
      intended to cause bodily injury to Sgt. Tremblay when he kicked
      him in the chest. Officers were forced to wrestle [Appellant] to
      the ground on several occasions to [bring him] under control.
      Although the charge resulted from the kick, the entire sequence
      of events from the initial interaction until [Appellant was] placed
      in [a] cell are relevant to show [Appellant’s] state of mind with
      respect to the attempt to cause bodily injury to Sgt. Tremblay.

Commonwealth’s Brief at 13-14 (citations omitted).

      The trial court agreed that the evidence was relevant to show

Appellant’s intent, and that the probative value outweighed any prejudice.

Trial Court Opinion, 9/25/2014, at 5.         We discern no error or abuse of

discretion in the trial court’s ruling. See, e.g., Commonwealth v. Rivera,

597 A.2d 690, 694 (Pa. Super. 1991) (holding that evidence of other

incidents between the defendant and the victim fell within the intent

exception of Rule 404(b) in prosecution for aggravated assault).

      Finally, Appellant purports that the trial court erred in declining to

send police reports and the arrest affidavit back with the jury during its

deliberations.

            Pennsylvania Rule of Criminal Procedure 646 provides, in
      relevant part, that, [u]pon retiring, the jury may take with it
      such exhibits as the trial judge deems proper[.] [W]hether an
      exhibit should be allowed to go out with the jury during



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      deliberation is within the discretion of the trial judge, and such
      decision will not be overturned absent an abuse of discretion.

Commonwealth v. Parker, 104 A.3d 17, 25 (Pa. Super. 2014) (internal

quotation marks and citations omitted). “Our courts have rarely found that

materials given to juries during deliberations constitute reversible error. In

the cases that have found reversible error, however, the prejudicial effect of

the   evidence    in   question    was    severe     and    readily   apparent.”

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012).

      Appellant maintains that the jury, upon its request, should have been

permitted to read copies of the police reports and affidavits.        Appellant’s

Brief at 20. His argument on this issue is, in its entirety, the following:

             The defense relied on the inconsistencies and omissions of
      the police reports for their theory of the case and failing to allow
      the jurors to see the reports, was an abuse of discretion by the
      trial court. [Appellant] admitted into evidence Officer Smith’s
      police report, criminal complaint and affidavit of probable cause
      and Sgt[.] Tremblay’s police report. [Appellant] also questioned
      the officers about said reports and what was included and
      shockingly what was omitted. Those documents were essential
      to [Appellant’s] case and severely attacked the officers’
      credibility which     was essential to        proving that the
      Commonwealth failed to meet its burden.

Appellant’s Brief at 20 (unnecessary capitalization omitted).

      The trial court explained its decision as follows:

      The judge met with counsel and explained that because parts of
      the reports were not made part of the record or testified to, it
      would be inappropriate to send the reports back to the jurors.
      The jury was brought back to the courtroom and the judge
      explained to the members of the jury that the documents would



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      not be provided; it was their recollections of the testimony and
      the evidence that they needed to rely on during deliberations.
      Because the reports and the affidavit in their entireties were not
      made part of the record, it would have been inappropriate to
      allow the jury to read them.

Trial Court Opinion, 9/25/2014, at 7 (citations omitted).

      Our review of the record reveals that Appellant did offer, and the trial

court accepted, the reports and affidavit into evidence. N.T., 7/17/2012, at

24. It seems that the jury heard testimony about some, but not all, of the

contents of these documents, N.T., 7/16/2012, at 55-67, 82-88; however,

we cannot be certain because the subject exhibits are not included in the

certified record.

      In any event, we are not persuaded that Appellant is entitled to relief.

First, Appellant does not even attempt to show that the trial court’s decision

was    the   result   of   “bias,   partiality,   prejudice,    ill-will,   manifest

unreasonableness or a misapplication of the law.”              Commonwealth v.

Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015).

      Second, even if the trial court misstated the record status of the

exhibits, the decision to require the jury to rely on its recollections of the

officers’ testimony is sound.   “The underlying reason for excluding certain

items from the jury’s deliberations is to prevent placing undue emphasis or

credibility on the material, and de-emphasizing or discrediting other items

not in the room with the jury.” Commonwealth v. Dupre, 866 A.2d 1089,




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1103 (Pa. Super. 2005) (quoting Commonwealth v. Strong, 836 A.2d 884,

888 (Pa. 2003)). Here, allowing the jury to have the reports upon which the

officers were cross-examined by defense counsel, but not the testimony

offered by the officers on direct examination,5 created an undue risk of the

jury emphasizing the documents over the testimony.

      Third, Appellant has failed to convince us that he suffered “severe and

readily apparent” prejudice as a result of the trial court’s decision, such that

reversal is warranted. Barnett, 50 A.3d at 194. Accordingly, Appellant is

entitled to no relief from this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/28/2015




5
  Pursuant to Pa.R.Crim.P. 464(C)(1), the jury was not permitted to have
transcripts of any trial testimony during deliberations.


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