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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DANIEL STUART JONES                        :
                                               :
                       Appellant               :      No. 1562 MDA 2018

        Appeal from the Judgment of Sentence Entered August 24, 2018
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0006879-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED OCTOBER 23, 2019

        Appellant, Daniel Stuart Jones, appeals from the judgment of sentence

entered in the York County Court of Common Pleas, following his jury trial

conviction of simple assault and bench trial conviction of harassment. 1 We

affirm.

        The relevant facts and procedural history of this case are as follows. On

October 11, 2017, Appellant was staying with his friend of 25 to 30 years,

Mark Sipe, and helping him work on odd jobs at the time. After work one day,

Appellant and Mr. Sipe returned to Mr. Sipe’s house, drank beer and cooked

dinner. Later that evening, Mr. Sipe’s neighbor Dan Brown joined them. After

Mr. Brown stepped onto the porch to smoke a cigarette, a dispute arose


____________________________________________


1   18 Pa.C.S.A. § 2701(a)(1) and § 2709(a)(1), respectively.
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regarding money Appellant claimed Mr. Sipe owed him. Mr. Sipe said that he

could pay Appellant the following day, but Appellant wanted his payment

immediately. As a result, Appellant struck Mr. Sipe in the face eight times.

Mr. Brown witnessed some of the altercation. Mr. Sipe did not respond to

Appellant physically or verbally while Appellant punched him. Mr. Sipe then

contacted the police, and Officer Matthew Berry arrived a few minutes later.

Officer Berry indicated that Appellant appeared intoxicated and had blood on

his knuckles.

      On July 20, 2018, a jury convicted Appellant of simple assault. During

the recess after the Commonwealth rested, but before the defense presented

its case, a juror sent a note to the court stating that the juror had been in the

elevator with Mr. Sipe, who appeared intoxicated. According to the juror, after

Mr. Sipe left the elevator, two other unidentified occupants of the elevator

commented that Mr. Sipe appeared intoxicated.              The Commonwealth

requested a mistrial, which the court denied, and the court cured the situation

by removing the juror and using an alternate.

      Defense counsel sought to call Appellant to testify that Mr. Sipe was

intoxicated on the witness stand, which Appellant claimed he could testify

about, based on knowing Mr. Sipe for 25 to 30 years.          The court barred

Appellant’s proffered testimony and noted that the court, defense counsel and

the Commonwealth had not observed any indicia of intoxication when Mr. Sipe

was on the stand.     Furthermore, defense counsel had the opportunity to


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question Mr. Sipe’s recollection of the attack on cross-examination.

      On August 24, 2018, the court sentenced Appellant to 6 days to 2 years

minus 2 days imprisonment for simple assault, merging the harassment

conviction for sentencing purposes.    Appellant timely filed a post sentence

motion on August 30, 2018, which the court denied on September 4, 2018.

On September 18, 2018, Appellant timely filed a notice of appeal. The court

ordered a Rule 1925(b) statement on September 19, 2018, which Appellant

timely filed on October 12, 2018.

      Appellant now raises one issue for review:

         THE TRIAL COURT ERRED IN LIMITING APPELLANT’S
         DIRECT TESTIMONY AS TO HIS OBSERVATIONS THAT THE
         VICTIM ATTENDED TRIAL INTOXICATED. APPELLANT WAS
         A LAY WITNESS COMPETENT TO RENDER SUCH AN OPINION
         PURSUANT TO PA.R.E. 701.     THE TESTIMONY WAS
         RELEVANT TO THE VICTIM’S RECOLLECTION AND
         ACCURACY OF HIS TESTIMONY DURING TRIAL AND WENT
         DIRECTLY TO HIS CREDIBILITY.     BY LIMITING THE
         TESTIMONY, THE TRIAL COURT USURPED THE FUNCTION
         OF THE JURY TO DETERMINE WHETHER THE VICTIM WAS
         INTOXICATED WHEN HE TESTIFIED AND WHETHER SUCH
         INTOXICATION AFFECTED HIS CREDIBILITY.

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Craig T.

Trebilcock, we conclude Appellant’s issue merits no relief. The trial court

opinion properly disposes of the question presented. (See Trial Court Opinion,

dated April 25, 2019, at 2-5) (finding: Appellant was free to attack Victim’s

recollection of assault on cross-examination; at no point during cross-

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examination of Victim did Appellant question Victim about whether he was

intoxicated at trial; Appellant made no mention of his belief that Victim might

be intoxicated, until a juror brought it to court’s attention; neither

Commonwealth nor defense counsel raised issue of Victim’s alleged

intoxication during his testimony; court did not observe any behavior while

Victim was on stand, to raise alarm that Victim might be in altered state or

incompetent to testify; Victim exhibited no signs of forgetfulness or issues

with recollection of events in question while testifying; Appellant’s proffered

opinion testimony of Victim’s alleged intoxication would not have been helpful,

would likely have confused and misled jury, and was irrelevant to issues being

litigated; even if intoxication testimony was marginally relevant to Victim’s

credibility, evidence was inadmissible under Pa.R.E. 403, as proposed

testimony sought to sway jury to decide case on improper basis; Appellant

was not in close proximity to Victim on day of trial to detect any odor of alcohol

on Victim; Appellant based his opinion solely on juror’s assessment, and then

belatedly   and   incredibly   claimed    Appellant   could   determine   Victim’s

intoxication based on Appellant’s own observations of Victim; jury was free to

make observations of Victim’s behavior on witness stand; court observed zero

indication that Victim was intoxicated while testifying and attributes juror’s

perception to error). Accordingly, we affirm based on the trial court opinion.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




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