J-A01043-19

                                   2019 PA Super 187


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PETER C. BROWN,                            :
                                               :
                       Appellant               :   No. 1946 EDA 2018

         Appeal from the Judgment of Sentence Entered March 14, 2018
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002417-2017


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                                FILED JUNE 11, 2019

        Appellant, Peter C. Brown, appeals from the judgment of sentence

entered following his convictions for aggravated assault and simple assault.1

Appellant challenges the weight and sufficiency of the evidence and contends

that the court erred in denying his motion to dismiss and his motion for a new

trial and in granting the Commonwealth’s motion to preclude evidence. We

affirm.

        On March 10, 2017, due to a nearby house fire, volunteer Fire Police

Officer John Irey was directing traffic at an intersection along the border of

Phoenixville Borough and Schuylkill Township, both of which lie in Chester

County. Appellant, who was driving home, disobeyed Officer Irey’s directions

and drove past the officer and into his driveway. A few minutes later,

Phoenixville Police Officers Andrew Brown and Anthony Gray arrived at
____________________________________________


1   See 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1).
J-A01043-19



Appellant’s home to investigate. A confrontation ensued, and Appellant was

arrested. A month later, the Schuylkill Township Police Department filed a

criminal complaint charging Appellant with assault. Meanwhile, Officer Gray

filed two summary citations against Appellant for the motor vehicle violations

that preceded the assault: disobeying a person directing traffic and duty of a

driver in an emergency response area.2

        A magisterial district judge convicted Appellant of both summary traffic

offenses, and Appellant appealed to the Court of Common Pleas. The

Commonwealth’s witnesses failed to appear for trial, and the court found

Appellant not guilty of the traffic violations.

        Prior to trial on the assault charges, the Commonwealth filed a motion

in limine to preclude Appellant from introducing evidence that his arm was

broken during his arrest. The Commonwealth asserted that the evidence was

irrelevant and its admission would unfairly prejudice the Commonwealth,

confuse the issues, and mislead the jury.

        While the Commonwealth’s motion in limine was pending, Appellant filed

a motion to dismiss the assault charges. The motion argued the court should

dismiss the instant assault charges because the Commonwealth should have

tried Appellant on those charges in conjunction with the summary traffic

violations, pursuant to the compulsory joinder rule.




____________________________________________


2   See 75 Pa.C.S.A. §§ 3102(2), 3327(a)(1).

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      The court held a hearing on both motions, after which it granted the

Commonwealth’s motion in limine and denied Appellant’s motion to dismiss.

      At Appellant’s jury trial on the assault charges, Officer Irey testified that

he had been directing traffic around a barricade, and told Appellant, who lived

nearby, that he could not drive through the intersection. After Appellant

cursed at him, Officer Irey told Appellant he would be arrested if he drove

around the barricade. Appellant drove past the barricade and into his

driveway, and Officer Irey asked nearby ambulance personnel to call the

police.

      Officer Brown testified that he and Officer Gray responded to the call for

assistance. When they arrived, Officers Brown and Gray spoke with Officer

Irey, who described Appellant’s behavior and pointed out Appellant’s house.

Officers Brown and Gray went to Appellant’s house and found Appellant

standing in the driveway.

      Officer Brown testified that he told Appellant why they were there, and

Appellant admitted that he had driven past Officer Irey. According to Officer

Brown, Appellant was “hostile” and “very argumentative,” asking the officers,

“[W]hat gave firemen the right to park their vehicles, their fire trucks out in

front of his driveway blocking his road[?]” N.T., 1/3/18, at 23. Appellant gave

Officer Brown his name, when asked, but refused to state his address or date

of birth or provide his vehicle registration or insurance information. Officer

Gray went to the end of the driveway to check if there was a house number

on the mailbox, in order to determine Appellant’s address.

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      Officer Brown testified that Appellant began to walk away from him, and

Officer Brown told him he was not free to leave. When Appellant continued to

walk away, Officer Brown grabbed Appellant’s left forearm with his right hand.

Appellant shook the officer off. Appellant turned toward Officer Brown, who

grabbed him a second time and said something like, “[D]on’t do that.” Id. at

27. Officer Brown testified that at that point, Appellant turned fully around,

with a closed fist, and punched him in the chest. Officer Brown stated that

Appellant punched him slightly to the left of the center of his chest, where his

body camera was mounted. Officer Brown testified that he was not injured

when Appellant punched him because he was wearing a bulletproof vest.

Appellant continued to resist Officer Brown’s grasp, so Officer Brown “‘bear

hugged’ [Appellant], . . . picked him up, and . . . slammed him on the ground,”

where Officer Brown believed it would be safest to restrain him. Id. at 32.

Officer Gray rejoined them and placed handcuffs on Appellant.

      The Commonwealth introduced the video from Officer Brown’s body

camera into evidence and played it for the jury. Officer Brown testified that

the video footage was blank during a few seconds after Appellant hit him.

Officer Brown stated he had not turned his body camera off, but that the blow

by Appellant had caused the camera to turn off momentarily. Officer Brown

stated that during the moments the camera was not operating, he had

grabbed Appellant’s hands and told him to “stop,” and when Appellant

continued fighting, Officer Brown “grabbed [him] from behind his back, and .

. . brought him to the ground.” Id. at 37. After he played the video a first

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time, the prosecutor stated, “I’m going to slow it down so you can walk us

through as we see the video.” Id. at 38. Officer Brown then testified as to the

moment on the video when Appellant punched him. Officer Brown also

testified that before Appellant punched him, he “could see his arm cocking

back, coming forward.” Id. at 39.

       Officer Gray testified that when he had asked Appellant for his date of

birth, Appellant “started becoming extremely agitated.” Id. at 116. Officer

Gray stated Appellant had a “raised voice” and was “looking down, looking

down on the ground, kind of flailing his arms around.” Id. After he left the

porch and went to the mailbox, Officer Gray heard Officer Brown scream,

“[S]top, stop.” Id. at 119. Officer Gray stated that when he looked up, he saw

Appellant “throwing his arms around” while Officer Brown tried to gain control

over him, after which he saw Officer Brown “take [Appellant] to the ground.”

Id. The Commonwealth entered Officer Gray’s body camera footage into

evidence, and played the video for the jury.

       Appellant testified that when he approached the barricade, Officer Irey

told him he “couldn’t get through,” to which Appellant responded, “[S]ure I

can.” Id. at 226-27. Appellant stated he had not used any profanity when

speaking to Officer Irey. Appellant testified that when he returned home, he

started running water for a bath.3 When the officers arrived and started asking

him questions, he decided to go back inside to turn off the water. He did not
____________________________________________


3Officer Brown testified that after Appellant’s arrest, the police returned to
Appellant’s house and turned off the running water.

                                           -5-
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tell the police that he had left water running inside the house. Appellant stated

that when Officer Brown grabbed him, he pulled away, because Officer Brown

had not told him he was under arrest, and Appellant did not think Officer

Brown had any right to restrain him. Appellant admitted that he continued to

“pull and walk away” after Officer Brown told him he was not free to leave, id.

at 254, but denied punching or shoving Officer Brown. Appellant presented 16

character witnesses who testified to his positive reputation for truthfulness,

honesty, non-violence, and law-obedience.

      The jury found Appellant guilty of aggravated and simple assault, and

the court sentenced Appellant to one year of probation.

      Appellant filed a motion for a new trial, claiming that the verdict was

against the weight of the evidence and that he had discovered new evidence.

Appellant claimed that after trial, he viewed the video from Officer Brown’s

body camera in slow motion, at a rate of 31 frames per second. Appellant

attached 69 still frames he extracted from the two to three seconds of video

just before the break in the footage—the seconds leading up to when Appellant

allegedly punched Officer Brown. Appellant argued the still frames showed

that Appellant never made a fist, cocked his arm, or punched Officer Brown.

Appellant further argued that the camera had never stopped operating, but

rather that the camera lens had been momentarily blocked by Appellant’s

upper body when he was grabbed by Officer Brown. The court denied the

motion, and Appellant filed notice of this appeal.




                                      -6-
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      Appellant raises the following issues:

      I. Whether the trial court erred in finding the previously tried[]
      traffic offenses were not part of the same criminal episode as the
      current assault case and denying the motion to dismiss[.]

      II. Whether the evidence was sufficient to prove intent to cause
      bodily injury where Officer Brown’s testimony of a punch to his
      chest lacked any evidence of any force and photos from the video
      show that there was no punch[.]

      III. Whether the verdict was against the weight of the evidence
      where Officer Brown’s testimony of a punch[ ]is shown to be false
      by single frame photos from vid[eo] which conclusively
      demonstrates that no such punch occurred[.]

      IV. Whether the trial court erred in failing to grant a new trial for
      after discovered evidence where, prior to trial, defense counsel
      was misled as to the import of the video evidence, where the still
      frame photos from the video discovered after trial make it clear
      that [Appellant] is innocent of punching Officer Brown[.]

      V. Whether the trial court erred in excluding a broken arm suffered
      by [Appellant] when Officer Brown slammed [Appellant] to the
      ground, offered to show Officer Brown’s bias to avoid potential
      civil and criminal liability for his own assault on [Appellant.]

Appellant’s Br. at 5 (answers below omitted).

                            I. Motion to Dismiss

      Appellant first argues that the court should have granted his motion to

dismiss the charges under the compulsory joinder rule because the assault

charges were based on the same conduct and arose from the same criminal

episode as the alleged traffic violations, which were adjudicated separately,

prior to the assault trial. Appellant asserts there was a close temporal

relationship between the alleged traffic violations and alleged assault and that

duplicative evidence was required at both trials. Appellant does not convey


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J-A01043-19



who testified for the Commonwealth at the summary trial for the traffic

offenses before the magisterial district judge, and we note that no witnesses

appeared at the de novo trial. However, Appellant argues that Officer Irey’s

eyewitness testimony would have been necessary both at the summary trial

to prove the alleged traffic offenses and also at the assault trial to prove that

Officer Brown was acting “in the performance of duty” when Appellant

assaulted him. See 18 Pa.C.S.A. § 2702(a)(3) (providing that 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”). In addition, Appellant contends that because Officer Gray filed the

traffic citations and was present during the alleged assault, Officer Gray’s

testimony would have been presented at both trials.

      Where the relevant facts are undisputed, the question of whether

prosecution is barred by the compulsory joinder rule, 18 Pa.C.S.A. § 110, is

subject to plenary and de novo review. Commonwealth v. Perfetto, ___

A.3d ____, No. 7 EAP 2018, at *8 (Pa. Apr. 26, 2019).

      In its Rule 1925(a) opinion, the trial court reviewed the requirements of

compulsory joinder rule. See Trial Court Opinion, filed 8/22/18, at 2-3. The

rule states, in relevant part, that prosecution for “any offense based on the

same conduct or arising from the same criminal episode” as an earlier

prosecution which occurred in the same judicial district and resulted in

acquittal or conviction is barred if the prosecuting officer knew of the offense




                                      -8-
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when the first trial commenced. Id. at 2 (quoting 18 Pa.C.S.A. § 110(1)(ii)).4

The court explained that to determine whether offenses arose from the same

criminal episode, the court must review whether there is a temporal

relationship between the charges and whether there is a logical relationship

between the offenses such that there exists a substantial duplication of either

factual or legal issues. Id. at 3 (citing Commonwealth v. Reid, 77 A.3d 579,

582-86 (Pa. 2013)).

       The trial court concluded that the instant assault charges and

adjudicated traffic offenses “were based upon an entirely different set of facts,

constituting two separate and discrete criminal episodes.” Id. at 4. The court

observed that the conduct that gave rise to the alleged motor vehicle

violations occurred prior to Appellant’s return to his residence, where the

alleged assault occurred. Id. The court also found that there was no

commonality of legal issues, because the alleged crimes did not have any

overlapping elements, and that any duplication of factual issues or evidence

was “de minimis and insufficient to establish a logical relationship” between

the charges. Id. at 4-5.

       After a review of the record, the briefs of the parties, and the applicable

law, we agree with the trial court’s assessment. Although Officer Irey testified


____________________________________________


4 It is undisputed that the summary traffic offenses occurred in the same
judicial district as the assault charges, i.e. Chester County, were known to the
official prosecuting the assault charges, and resulted in acquittal.



                                           -9-
J-A01043-19



at the trial on the assault charges, his testimony was not required to prove

those charges; nor would the testimony of Officers Brown or Gray have been

relevant to proving the alleged traffic offenses.5 We therefore affirm the trial

court’s denial of Appellant’s motion to dismiss on the basis of the well-

reasoned opinion of the Honorable Jacqueline C. Cody, which we adopt and

incorporate herein. See Tr. Ct. Op. at 2-5.

                          II. Sufficiency of the Evidence

       Appellant next argues that the evidence was insufficient because he

claims that the video from Officer Brown’s body camera, when viewed at a

rate of 31 frames per second, directly contradicts Officer Brown’s testimony.

Appellant asserts that the still frames extracted from the video show that his

right arm remained at his side, that he did not make a fist, and that his hand

did not approach the camera. Appellant further contends the still frames show

that his and Officer Brown’s upper bodies were blocking the camera lens and

too close together for Appellant to have thrown a punch in accordance with

Officer Brown’s testimony.



____________________________________________


5 Although the trial court cited this Court’s decision in Commonwealth v.
Perfetto, 169 A.3d 1114, 1116 (Pa.Super. 2017) (en banc), which has since
been reversed by the Pennsylvania Supreme Court, the trial court did not rely
on this Court’s erroneous holding. Moreover, the Supreme Court’s holding in
Perfetto is distinguishable from the instant case. There, it was “undisputed
that . . . [all charges] ‘arose during the same criminal episode, namely one
traffic stop[.]’” Perfetto, No. 7 EAP 2018, at *8 (quoting Commonwealth v.
Failor, 770 A.2d 310, 313 (Pa. 2001)). Here, in contrast, there were two
criminal episodes such that Section 110 does not apply.

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       In the alternative, Appellant argues that Officer Brown’s testimony and

the video evidence were insufficient to prove Appellant intended to cause

injury to Officer Brown. Appellant asserts that he is significantly shorter and

smaller than Officer Brown, and that Officer Brown testified that when

Appellant struck his chest it did not cause him to falter or injure him in any

way. Appellant claims the evidence establishes that he was merely flailing his

arms in an attempt to resist arrest.

       Upon a challenge to the sufficiency of the evidence, we consider only

the evidence admitted by the trial court—not a diminished, expanded, or

otherwise modified record. See Commonwealth v. Koch, 39 A.3d 996, 1001

(Pa.Super. 2011).6 Because our consideration of this issue requires us to

review only the trial evidence, we decline Appellant’s invitation to view the

video from Officer Brown’s body camera in a different manner than the way

in which it was presented to the jury. See Commonwealth v. Jordan, 65

A.3d 318, 329 (Pa. 2013) (establishing slow-motion or still-frame version of

video so alters the evidence that it is subject to separate evidentiary ruling).

       When reviewing a sufficiency of the evidence claim, we must determine

whether, when viewed in the light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crime charged is established

____________________________________________


6 See also Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986)
(stating that upon sufficiency review, “[a] reviewing court must not give
weight to or speculate upon matters not in evidence”).

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beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544,

559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial    evidence.”   Id. (quoting    Commonwealth v.

Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008)).

      To prove Appellant was guilty of committing aggravated assault under

the statutory section with which he was charged, the Commonwealth needed

to establish Appellant either attempted to cause, or intentionally or knowingly

caused, bodily injury to Officer Brown while he was in the performance of duty.

See 18 Pa.C.S.A. §§ 2702(a)(3), (c)(1). Similarly, to prove Appellant was

guilty of simple assault, the Commonwealth was required to prove that

Appellant either attempted to cause or intentionally, knowingly, or recklessly

caused bodily injury to Officer Brown. See 18 Pa.C.S.A. § 2701(a)(1). The

Commonwealth therefore was not required to establish that Officer Brown was

injured, only that Appellant attempted to inflict injury. The Commonwealth

may prove a defendant’s intent to inflict injury “by circumstances which

reasonably suggest” his intention. Commonwealth v. Mucci, 143 A.3d 399,

409 (Pa.Super. 2016) (quoting Commonwealth v. Rahman, 75 A.3d 497,

502 (Pa.Super. 2013)).

      Officer Brown testified that Appellant was hostile, argumentative, and

twice pulled away from Officer Brown’s grasp after being told he was not free

to leave. Officer Brown testified that Appellant punched him in the chest with

a closed fist, and that he saw Appellant cocking his arm back just before he

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J-A01043-19



struck. In the light most favorable to the Commonwealth, this evidence was

sufficient for a jury to conclude that Appellant attempted to injure Officer

Brown.

                         III. Weight of the Evidence

      Appellant argues that the verdict was against the weight of the trial

evidence because Officer Brown’s testimony was contradicted by the video

recording, Appellant’s testimony, and the character witnesses who testified on

Appellant’s behalf. According to Appellant, the video, when viewed as 31 still-

frames per second, was so contradictory to Officer Brown’s testimony

regarding Appellant’s intent to inflict bodily injury that the guilty verdict should

have shocked the conscience of the court.

      “The weight of the evidence is exclusively for the finder of fact, which is

free to believe all, part, or none of the evidence[.]” Commonwealth v.

DeJesus, 860 A.2d 102, 107 (Pa. 2004). It is the purview of the fact-finder

to “assess the credibility of the witnesses” and resolve inconsistent testimony.

Id. Thus, a trial court should not grant a motion for a new trial “because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion,” but only when “certain facts are so

clearly of greater weight” than others that “the jury’s verdict is so contrary to

the evidence as to shock one’s sense of justice.” Commonwealth v. Clay,

64 A.3d 1049, 1055 (Pa. 2013). Upon review of a weight claim, we give great

deference to the discretion of the trial judge, who “has had the opportunity to

hear and see the evidence presented,” and will not reverse the court’s decision

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J-A01043-19



absent   a    palpable   abuse   of   that   discretion.   Id.   at   1056   (quoting

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

      The trial court rejected Appellant’s claim that the verdict was contrary

to the weight of the trial evidence. See Order, 6/5/18, at 1 n.1. The court

deferred to the jury’s verdict, and noted that “[t]he jury was able to view the

body camera video three times; twice during the trial and once during

deliberations. During trial, the body camera video was shown in slow motion

and Officer Brown testified in conjunction with the viewing of the body camera

video.” Id.

      As discussed above in relation to Appellant’s challenge to the sufficiency

of the evidence, we are unable to view the trial evidence in a manner other

than the way in which it was presented to the jury when considering

Appellant’s challenge to the trial court’s ruling on his weight claim. However,

our review of the record, including the video, does not indicate that the court

abused its discretion in deciding any evidence in Appellant’s favor was not of

such great weight as to render the jury’s verdict shocking to the conscience.

Although Appellant presented his own testimony and a multitude of character

witnesses, the jury clearly credited Officer Brown’s testimony, and did not find

that the body camera video contradicted or undermined his account. As we

discern no abuse of discretion, we affirm the trial court’s rejection of

Appellant’s weight claim.




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                      IV. After-Discovered Evidence

      Appellant argues that the court erred in denying his motion for a new

trial based on after-discovered evidence. Appellant states that after trial, he

viewed the video from Officer Brown’s body-camera at a rate of 31 frames per

second and discovered that it showed Appellant never struck Officer Brown.

Appellant asserts that the Commonwealth misled him and the jury as to the

contents of the video through Officer Brown’s testimony that the camera

turned off when Appellant punched his chest. Appellant contends that the

Commonwealth had both the ability and ethical duty to review whether the

video was exculpatory and, if so, to “share that discovery with the defense.”

Appellant’s Br. at 45. Appellant argues that his reliance upon the

Commonwealth’s misrepresentations about the video, and his “lack of

technical knowledge and ability to create single photos out of the digital video

provided to him does not establish a lack of due diligence.” Id. at 46.

      To be granted a new trial based on after-discovered evidence, a

defendant must demonstrate that the evidence could not have been obtained

prior to the conclusion of the trial by the exercise of reasonable diligence, is

not merely corroborative or cumulative, will not be used solely to impeach the

credibility of a witness, and would likely result in a different verdict if a new

trial were granted. Commonwealth v. Padillas, 997 A.2d 356, 363

(Pa.Super. 2010). “A defendant cannot claim he has discovered new evidence

simply because he had not been expressly told of that evidence.” Id. at 364.

“Likewise, a defendant who fails to question or investigate an obvious,

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available source of information, cannot later claim evidence from that source

constitutes newly discovered evidence.” Id.

      The trial court found that Appellant failed to meet the first criteria, as

he had possessed the body camera video for approximately four months prior

to trial, and that “[w]ith reasonable diligence, [he] could have slowed the

video down prior to trial.” Order, 6/5/18, at 1 n.1. The court also stated that,

“due to the close proximity of [Appellant] to Officer Brown at the time of the

punch, the actual contact of [Appellant’s] fist to the officer’s chest is not

visible. However, the entire video is consistent with Officer Brown’s testimony

of the assault.” Id. The court found that the still images extracted from the

video merely corroborated the video shown to the jury “three different times,”

and that the proposed evidence would be unlikely to result in a different

verdict if a new trial were granted.

      We agree that the still-frame version of the video does not warrant a

new trial. Appellant had access to the video prior to trial, and has not

established that the Commonwealth was responsible for his failure to view it

at slower speed. See Commonwealth v. Brown, 134 A.3d 1097, 1106

(Pa.Super. 2016) (rejecting defendant’s claim that trial court erred in

admitting video as freeze-frames because Commonwealth provided copy of

video to defendant during discovery). And, given that the still frames

corroborate the evidence shown to the jury, we conclude Appellant’s claim is

meritless.




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                              V. Motion in Limine

      In his final issue, Appellant argues the court erred in granting the

Commonwealth’s motion in limine, thereby precluding him from offering

evidence that Officer Brown broke Appellant’s arm during the arrest. Appellant

argues the evidence was relevant to show that Officer Brown was biased and

motivated to testify falsely against Appellant in order to avoid civil liability for

injuring Appellant.

      “Admission of evidence . . . rests within the sound discretion of the trial

court, which must balance evidentiary value against the potential dangers of

unfairly prejudicing the accused, inflaming the passions of the jury, or

confusing the jury.” Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa.

2013); see also Pa.R.E. 403 (“The court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence”). We trust in the

trial court’s ability “to oversee the presentation of evidence ‘so that overtly

passionate, intentionally biased and inflammatory material is kept out of the

courtroom.’” Bryant, 67 A.3d at 726 (quoting Commonwealth v. Eichinger,

915 A.2d 1122, 1139 (Pa. 2007)). An appellant bears the “heavy burden” to

demonstrate the trial court abused its discretion on an evidentiary ruling. Id.

(quoting Eichinger, 915 A.2d at 1140).

      In its Rule 1925(a) opinion, the trial court stated that it granted the

Commonwealth’s motion because it concluded that the evidence was not

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relevant. The court also stated that allowing the evidence would confuse the

issues in the case by drawing the jury’s attention away from determining

whether Appellant assaulted Officer Brown, and that it would cause undue

prejudice, allowing Appellant to “garner sympathy from the jury.” Tr. Ct. Op.

at 6.

        Evidence related to the credibility of a witness is always relevant,

particularly so when the determination of guilt or innocence depends on the

credibility of a single witness. See Commonwealth v. Birch, 616 A.2d 977,

978 (Pa. 1992).

        However, we conclude the trial court did not abuse its discretion in

granting the motion. First, the probative value of the evidence of Appellant’s

injury, as proof of Officer Brown’s potential motive for offering false testimony,

did not outweigh its potential prejudice. Appellant did not file a civil lawsuit

against Officer Brown prior to trial, and indeed does not argue that one is

currently pending. Cf. Commonwealth v. Butler, 601 A.2d 268, 271 (Pa.

1991) (holding trial court erred in refusing to allow defendant to cross-

examine Commonwealth witness regarding civil suit pending between

defendant and witness).

        Furthermore, the court found the evidence was highly prejudicial and

would confuse the trial issues. As Officer Brown sustained no injuries during

Appellant’s assault against him, admission of the evidence of Appellant’s injury

would have too greatly risked unfairly rousing the emotions of the jury against

the Commonwealth. Admission of the evidence would also have risked

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confusion of issues by distracting the jurors from their task of making a clear

assessment of Appellant’s interactions with the officers prior to the moment

when he was injured. As the prejudicial nature of the evidence outweighed its

probative value, the court did not abuse its discretion in excluding it.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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                                                                              Circulated 05/06/2019 02:04 PM




    COMMONWEALTH OF PENNSYLVANIA     I           .
                                                           : IN THE COURT OF COMMON PLEAS

                                                            CHESTER COUNTY, PENNSYLVANIA
                            vs.
                                                            CRIMINAL ACTION

    PETER CAMPBELL BROWN             i                    : NO. CP-15-CR-0002417-'2017




    Nicholas J. Casenta, Jr.1 Esquire;,' Chief Deputy District Attorney, on behalf of the
           Commonwealth of Pennsylvania
    James R. Freeman, Esquire, on behalf of Defendant
                                     i
                                     '



                                                     OPINION

                   Defendant appeals from the judgment of sentence entered in this matter on March

    14, 2018 following a trial and conviction for aggravated and simple assault of a police officer.

    We write in support of judgment in accordance with Pa.R.A.P. 1925(a).


                                         PROCEDURAL HISTORY

                   Defendant was charged with one count of aggravated assault, one count of simple

assault, one count of summary harassment, one count of disorderly conduct, and one count of

investigation by police officers.' On January 5, 2018, Defendant was found guilty of aggravated

and simple assault, following a jury triaL2 Defendant was sentenced on March 14, 2018 to one

year probation on the aggravated, assault count; simple assault merged with the crime of

aggravated assault.         On March 23, 2018; Defendant filed a Post Sentence Motion, which was

denied by Order of the Court dated June 5, 2018. Defendant timely filed a Notice of Appeal on

June 29, 2018,




1
    The count of investigation by police officers was dismissed by Order dated October 26, 2017.
2
    The Commonwealth did not pursue the summary offenses.
                                           DIS CDS SI ON

                In his Statementiof Matters Complained of on Appeal, Defendant raises five
                                  .
                                  '
allegations of error on the part �fthe Court. Allegations of Error numbered III through V were

addressed in the Court's Order and footnote dated June 5, 2018 disposing of Defendant's Post

Sentence Motion. We hereby a�opt the Order and footnote as the Opinion of this Court for the
                                 ,;
purposes ofappeal on these three allegations of error.

               In Allegation of Error I, Defendant asserts that the Court erred in denying his
                                 '.
pretrial motion to dismiss the charges pursuant to 18 Pa.C.S.A. § 110 ...Section 110, known as the

compulsory joinder rule, requires the Commonwealth to bring, in a single proceeding, all known

charges arising against a defendant from a single criminal episode.

               Although a prosecution is for a violation of a differentprovision of
                                 a
               the statutes than former prosecution or is based on different facts,
               it is barred by such former prosecution under the following
               circumstances:
                  (1) The former prosecution resulted in an acquittal or in a
                      conviction as defined in section 109 of this title (relating to
                      when prosecution barred by former prosecution for the same
                      offense) arid the subsequent prosecution is for:
               ***
                     (ii) any offense based on the same conduct or arising from
                          the same criminal episode, if such offense was known to
                        the appropriate prosecuting officer at the time of the
                        commencement of the first trial and occurred within the
                        same judicial district as the former prosecution unless
                        the courtordered a separate trial of the charge of such
                        offense[.]

18 Pa.C.S.A. § 1 lO(l)(ii). Section 110 bars a subsequent prosecution if the following four

requirements are met:

                  (1) the former prosecution resulted in an acquittal or
                  conviction; (2) the current prosecution was based on the same
                  criminal conduct or arose from the same criminal episode; (3)
                  the prosecutor in the subsequent trial was aware of the charges




                                                 2
                    before the first trial; and (4) all charges [are] within the same
                    judicial district.as the former prosecution.

 Commonwealth V. Reid, 621 P�. 245, 251, 77 A.3d 579, 582(2013), citing, Commonwealth v.

 Nolan, 579 Pa. 300, 855 A.2d �34, 839 (2004) (superseded by statute on other grounds). This

 four part test must be applied   by the court in determining whether the compulsory joinder rules
                                   l


 have been violated. CommonJealth v. Perfetto, 1-69 A.3d 1114, 1124 (Pa.Super. 2017).

                ln determining �
                                       hether
                                                the charges arise from the same criminal episode; the

 court must look to both the "temporal" and "logical" relationship between the charges. Reid, at

 582, The offenses are logically' related where there is a substantial duplication of either factual

 or legal issues. Reid, at 251-52i 77 A.3d at 582. "[AJ mere de minimis duplication of factual and

legal issues is insufficient to establish a logical relationship between offenses." Id., at 252, 77

A.3d at 582-83.

                When determining if there is a duplication oflegal issues, a court
                should not limit its analysis to a comparison of the charges, but
                should also consider whether, despite "the variation in the form of
                the criminal charges," there is a "commonality" oflegal issues
                within the two prosecutions,

Reid, at 257, 77 A,3d at 585-86 '(citation omitted). The logical relationship test does not require

an absolute identity of factual backgrounds. Id. In considering the temporal and logical

relationship between the criminal acts, the court is guided by the policy considerations of Section

110,

               (1) to protect a person accused of crimes from governmental
               harassment of being forced to undergo successive trials for
               offenses stemming from the same criminal episode; and (2) as a
               matter of'judicial.administration and economy, to assure finality
               without unduly burdening the judicial process by repetitious
               litigation.

Reid; at 253, 77 A.3dat 583.




                                                        3
                    Defendant was charged
                                   !
                                          with violation of two sections of the Motor Vehicle Code;

    75 Pa.C.S.A §§ 101    et seq.3 The charges were initially disposed of by the magisterial district
                                     .
                                     i                      .


    justice, who found Defendant guilty on both charges. Defendant filed a summary appeal to the

                              Common
    Chester County Court of              Pleas, where he was found not guilty of both charges, due to

    the failure of the Commonwealth witnesses to appear. (NT. 9/6/17, 10). Defendant argues that
                                  !



    the charges of aggravated assault and simple assault occurred Within the same judicial district as

    the summary traffic violations a nd arose out ofthe same criminal conduct or episode. Defendant
                                     1



                                     .
                                     i

    contends that there is a logical �11:d temporal connection between the summary traffic violations

    and the charges of aggravated and simple assault; therefore, under the compulsory joinder rule,

    the charges ofaggravated and simple assault should have been dismissed.

                   Contrary to Defendant's arguments, while the assault.charges occurred within the

    samejudicial district and within, a short time of the summary traffic offenses, the assault charges

    were based upon an entirely different set of facts, constituting two separate and discrete criminal

    episodes .. Defendant was cited for violating the Motor Vehicle Code while driving in his vehicle,

on a public roadway,      to his residence. Defendant completed the ·conduct which was the basis for

the alleged violation of the Motor Vehicle Code prior to reaching his residence. Once Defendant

arrived at his residence} the police arrived to investigate the alleged motor vehicle violations.

Defendant was at his home, in his driveway, when he punched Officer Andrew Brown.

                  The evidence of record fails to show a logical relationship between Violating the

Motor Vehicle Code and assaulting a police officer. There is no substantial duplication of

factual or legal issues. In order to establish aggravated assault, the Commonwealth must provide

sufficient evidence that the defendant "attemptjed] to cause or intentionally or knowingly causes


3
 75 Pa.C.S.A. §3327(a)(l) (duty of driver emergency response area) and 75 Pa.C.S.A. § 3102(2)
(obedience to authorized person directing traffic).


                                                    4
 sufficient evidence that the defendant "attempt] ed] to cause or intentionally or knowingly causes
                                  !



 bodily injury to [anJ officer] ] .1.in the performance of duty. 18 Pa.C.S.A. § 2702(a)(3).''
                                  i
                                  '
 Commonwealth v. Rahman, 75 �.3d 497, 501 (Pa.Super. 2013); In order to establish simple
                            1


 assault, the Commonwealth must provide sufficient evidencethat the defendant "attempt[ ed] to

 cause or intentionally, knowingly orrecklessly causejd] bodily injury to another." 18 Pa.C.S.A.
                                  !


 § 270l(a)(l). Defendant's conduct on the street prior to the events that took place at his
                                  !



 residence does not constitute anlelement of the crime of aggravated or simple assault. It was not
                                  i
                                  '
 necessary   for the Commonwealth to prove Defendant violated any provision of the Motor
                                  i
                                '
 Vehicle Code in order to prove he assaulted Officer Brown. There is no commonality of legal
                                  '

 issues between the charges. bu�lication of any facts in these two matters is merely de minimis

and insufficient to establish a logical relationship between the motor vehicle violations and the

aggravated and simple assault charges,

                 In Allegation of Error II, Defendant complains that the Court erred in grantingthe

Commonwealth's Motion in Limine to Preclude Any Reference to Defendant's Alleged Injury

Sustained from the Incident on March 10, 201 7. Defendant argues that this evidence was

necessary to show Officer Brown had a reason to testify falsely that Defendant punched him in

order to avoid potential civil liability for assault of Defendant,

                Issues regarding admissibility of evidence lie within the sound discretion of the

trial court. Commonwealth v. Christine, 78 A.3d 1 (Pa.Super. 2014). The Court's decision

regarding the admissibility of evidence will not be overturned absent an abuse of discretion. Id.

(citations omitted). All relevant evidence is admissible except as provided by law. Pa.R.E. 402.

Evidence is relevant if''(a) it hasa 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.




                                                  5
          401. The court may exclude relevant evidence if its probative value is outweighed by unfair
                                         '

          prejudice, or admission of the evidence would confuse the issues, mislead the jury, cause undue
                                         .
                                         i

          delay; waste time or needlesslyipresents cumulative evidence. Pa.R.E. 403.

                         Defendant was charged with aggravated and simple assault of a police officer.
                                         i




          Whether Defendant sustained iijuries in the course of committing this crime is not relevant to
                                         !



          whether he struck Officer Brown. Testimony regarding any alleged injury Defendant suffered
                                         1            .    .         .




          would not assist the jury in determining whether he assaulted Officer Brown. Allowing .
                                         .
                                         i


          Defendant to present evidence 9f any injuries he sustained on the date in question would simply

          draw the attention of thejury a;ay from the issue in this matter; that is, whether Defendant

          committed an assault on a police officer.

                         Admission of evidence of Defendant's alleged injuries would only confuse the

          issues in this case and cause undue prejudice. Defendant was not charged with resisting arrest

          and did not raise the claim of self-defense. Therefore, the actions of Officer Brown and the

          alleged injuries sustained by Defendant as a result of Officer Brown's conduct in response to

          Defendant's assault on Officer Brown are not relevant Presentation of this evidence would do

          nothing more than allow Defendant to gamer sympathy from the jury.

                        For the foregoing reasons, we respectfully submit that Defendant's allegations are

          without merit and the appeal should be denied.


                                                      BY THE COURT:




                                                                                                      P.J.




                                                               6


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