J-S69011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

MICHAEL CHRISTOPHER ROMIG,

                           Appellant                  No. 400 MDA 2018


      Appeal from the Judgment of Sentence Entered February 5, 2018
               In the Court of Common Pleas of Mifflin County
           Criminal Division at No(s): CP-44-CR-0000560-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 17, 2018

      Appellant, Michael Christopher Romig, appeals from the judgment of

sentence of 9½ to 30 years’ incarceration, imposed after he was convicted by

a jury of two counts of aggravated assault and one count of simple assault.

After careful review of the issues Appellant raises herein, we affirm.

      The   Commonwealth       summarized   the    evidence   it   presented   at

Appellant’s jury trial, as follows:

            On the evening of August 2, 2016, Kelly McTavish was only
      familiar with [Appellant] … as an acquaintance. Kelly McTavish
      was also friends with Patricia Koch (hereinafter “Koch”) and was
      “seeing” the victim, James Barry Moore (hereinafter “Moore[”]),
      having lived with him for about four or five months. Kelly
      McTavish indicated both Moore and Koch lived in a multiple[-]
      dwelling apartment building in Lewistown, and that Moore at that
      point in time didn’t have any significant health issues. Kelly
      McTavish testified that she, along with Koch, Moore and
      [Appellant] went to [Appellant’s] residence in McClure, PA[,] on
      the evening of August 2, 2016. Kelly McTavish testified she was
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     sitting on the couch in [Appellant’s] residence alongside Moore
     when [Appellant] sat beside her and began showing her naked
     pictures of himself on his cell phone as she was seated next to
     Moore. Kelly McTavish testified [that] Moore advised [Appellant]
     this was not appropriate behavior. Then[,] while Moore was still
     seated on the couch[,] [Appellant] became angry and [Appellant]
     punched Moore in his face with a closed fist, a punch described as
     a “sucker punch” by Kelly McTavish. Kelly McTavish further
     testified Moore did not retaliate in any way after being struck in
     the face by [Appellant] with a closed fist. McTavish further
     testified [Appellant] grab[bed] Moore by his shirt and drag[ged]
     him off the couch and then start[ed] kicking him in the head and
     chest wearing steel[-]toed work boots. As Moore [was] being
     kicked by [Appellant], McTavish related [that] she observed that
     Moore’s face had already started to swell, he was bleeding from
     his nose, bleeding from his ears, was not responding or saying
     anything, just making grumbling noises. McTavish testified there
     was a lull from this assault when she went upstairs to wake her
     friend Koch[,] who had been upstairs taking a nap[,] and when
     she came back down with Koch, [Appellant] continued kicking
     Moore in the head, in the chest, and in the back multiple times.
     McTavish indicated Moore was unable to defend himself in any way
     at this point in time, nor did he take any aggressive action toward
     [Appellant]. [Appellant] then retrieved a knife, put the knife by
     Moore’s neck, saying[,] “I’m just going to end it now[,]” [with] the
     knife being not even an inch away from Moore’s neck. McTavish
     testified [that] Moore had blood all over his face at this point,
     appeared to be unconscious, and was carried from the residence
     to the back seat of Koch’s vehicle where he was transported to
     Lewistown Hospital. McTavish further testified Moore was never
     on his feet again that evening, from the time he sat down on the
     couch until he was carried out to the back of the car after the
     assault occurred. She further indicated there were no arguments,
     that [Appellant] was yelling[,] and that Moore was not arguing
     with [Appellant].

           Koch testified at trial[] [that] she lived in the same building
     as Moore[,] whom she had a brotherly relationship with. She
     further knew Kelly McTavish through James Moore and knew they
     dated on and off. She … recalled all parties met on the evening
     of August 2, 2016[,] at the Steelworker Bar and then drove to
     [Appellant’s] residence. She testified that at some point during
     the evening, she got a migraine and went upstairs to lay down,
     leaving [Appellant], McTavish[,] and Moore downstairs. When she


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     next came down, she saw [Appellant] punching and stepping on
     Moore. She further clarified [Appellant’s] assault continued on
     Moore[,] with [Appellant’s] “stomping” on Moore’s head and
     body[,] with Moore unable to defend himself at that point. Koch
     observed Moore bleeding from his ears, his nose, his eyes and he
     was unresponsive. Koch then observed [Appellant] get a knife,
     put it to the throat of Moore and say he was going to kill him.
     Koch testified she responded to [Appellant’s] statement by
     saying[,] “What are you gonna kill him for? He’s already dead.”
     Koch testified[] [that] she never saw Moore offer any resistance
     or fight back against this assault by [Appellant]. Koch thought
     the victim was dead at this point with blood coming out
     everywhere there could be[,] and [she] eventually convinced
     [Appellant] to help carry Moore out to the car for transport to the
     hospital.

            Moore testified he resided in Burgard Apartments in
     Lewistown, Pennsylvania on August 2, 2016. He knew Koch[,]
     whom he was good friends with[,] and [he] dated Kelly McTavish
     at this time. Moore further testified [that,] other than arthritis[,]
     his health was fine, he wasn’t confined to or required to use a
     wheelchair, he could ambulate, he suffered from no paralysis, he
     had control of his bladder and bowels, his sexual organs worked
     properly[,] and he lived independently at that point in time. Since
     August 2, 2016, Moore testified that he has resided either in
     hospitals or nursing homes. Moore further testified he can recall
     meeting [Appellant], along with Koch and McTavish[,] on August
     2, 2016, however, other than lying on the floor at [Appellant’s]
     house with [] [Appellant] yelling at him, he cannot recall any of
     the events that evening. Since the night of August 2, 2016, Moore
     testified he suffers from paralysis from the chest down, los[t]
     [the] of use of his hands, … is unable to ambulate, lost control of
     his bladder and bowels, lost the use of his sexual organ[s,] and …
     must be turned in bed every two hours. Moore further testified
     he has a pump implanted in his side[,] which injects medicine to
     his spine.

           Trooper Michael Elder testified he interviewed [Appellant] at
     the Pennsylvania State Police barracks in Mifflintown, PA[,] around
     8:00 AM on the morning of August 3, 2016. Trooper Michael Elder
     related the only injuries he observed to [Appellant] was a
     laceration to his lip and to his hand. No other bruising, swelling
     or severe cuts were noted by Trooper Elder.

Commonwealth’s Brief at 1-5 (citations to the record omitted).

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      Appellant also took the stand in his own defense at trial. He testified

consistently with the above-discussed witnesses regarding how he, McTavish,

Koch, and Moore met at a bar and then proceeded to Appellant’s home. See

N.T. Trial, 7/18/17, at 163-68. However, his testimony differed drastically

concerning what occurred at his home. Appellant summarizes his testimony

about the altercation with Moore, as follows:

              At [Appellant’s] house, everyone enjoyed some beers and
      the friends - but not [Appellant] - partook in smoking some
      substance. At some point the alleged victim, [] Moore, became
      aggravated and paranoid, perhaps because of the synthetic drug
      he appeared to have been smoking. Moore made a comment to
      [Appellant], threatening to beat him up if he “tried anything” with
      Kelly [McTavish], whom Moore identified as his “girl.” [Appellant],
      upset at being talked to in this manner in his own home, then
      stood up and attempted to leave the room. Before he could do
      so, Moore grabbed his arm. [Appellant] moved toward the front
      door, intending to “throw him out the door and say everybody has
      to [...] leave.” Before he could reach the door, Moore shoved
      [Appellant] through a large window. [Appellant] suffered a severe
      laceration to his arm and had significant blood loss. After this
      initial assault, [Appellant] pulled himself back into his home and
      continued to be assaulted by Moore. The parties exchanged
      blows, and Moore struck [Appellant] with a television remote
      control. [Appellant] then punched and kicked Moore repeatedly.
      Each time [Appellant] believed the fight was over, Moore would
      come back. Eventually, Moore lost consciousness. [Appellant]
      wanted to call an ambulance for Moore, but the other members of
      the party, Kelly [McTavish] and Patricia [Koch], wanted to take
      him to the hospital in their car. [Appellant] helped carry Moore to
      the car and loaded him into the back seat. Still unsure if the fight
      was truly over, [Appellant] pulled out a pocket knife he keeps on
      him all the time. The knife was never used as Moore did not
      resume fighting with [Appellant].

            [Appellant] then consumed several additional beers and
      passed out on the sofa from a combination of alcohol, adrenaline,
      and blood loss. He awoke the next morning to two Pennsylvania
      State Troopers at his door, yelling at him and pointing a taser and

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      pistol at him. [Appellant] surrendered without incident and was
      arrested and charged with the aforementioned charges.

Appellant’s Brief at 11-13 (citations to the record omitted).

      At the close of Appellant’s trial, the jury convicted him of two counts of

aggravated assault and one count of simple assault.        Appellant’s original

sentencing hearing was conducted on September 14, 2017.           At the close

thereof, he was sentenced to a term of 7 to 20 years’ incarceration for count

1 of aggravated assault, and a consecutive term of 2½ to 10 years’

incarceration for count 2 of that offense. The court also imposed a concurrent

term of 3 to 12 months’ incarceration for Appellant’s simple assault conviction.

      Appellant filed a timely post-sentence motion. On February 5, 2018,

the court entered an amended sentencing order that eliminated Appellant’s

simple assault sentence, as it merged with his sentence on count 1.

Appellant’s sentences for both aggravated assault counts remained the same.

In regard to Appellant’s other claims in the post-sentence motion, the court

issued an order denying them that same day.

      Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. In lieu of a Rule 1925(a) opinion, the trial

court relied on an opinion it issued on February 5, 2018, in support of its

partial denial of Appellant’s post-sentence motion.

      Herein, Appellant presents the following questions for our review:

      1. Whether the trial court erred and/or abused its discretion when
         it imposed a sentence at the top of the Aggravated Range of
         the applicable sentencing guidelines, where it improperly

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         applied the sentencing guidelines by not clearly articulating
         legally correct and sufficient reasons for imposing sentences
         beyond the Standard Range of said guidelines?

      2. Whether the trial court erred and abused its discretion by
         refusing to give [Appellant’s] requested jury instruction on
         Justification or self-defense and defense of property (the Castle
         Doctrine), and on the use of deadly force?

      3. Whether [Appellant] was denied his right to a fair trial before
         an impartial jury, as guaranteed to him by the 6th and 14th
         Amendments to the U.S. Constitution and by Article 1, Section
         9 of the Pennsylvania Constitution; to present evidence and
         confront the evidence and witnesses against him (U.S. Const.,
         Amend. 6 and 14; Pa. Const. Art 1, Sec. 9); to Due Process of
         Law (U.S. Const, Amend. 5 and 14; Pa. Const. Art 1, Secs. 1
         and 9); and to Equal Protection of Law (U.S. Const. Amend.
         14; Pa. Const. Art. 1, Sec. 9); and was denied his substantive
         and procedural rights under the statutes of Pennsylvania and
         under the Pennsylvania Rules of Criminal Procedure, in that:

         a. The trial court refused to give [Appellant’s] requested
         instruction to jury on self-defense and defense of property
         (Castle Doctrine);

         b. The trial court refused to grant [Appellant’s] request for
         testing of blood samples, or additional time to procure
         testing of the same?

      4. Whether the Commonwealth improperly withheld exculpatory
      evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963),
      where it failed to supply defense with prior criminal records for the
      Commonwealth’s fact witnesses?

Appellant’s Brief at 7-8.

      Appellant first challenges the discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] appellant has filed a timely notice of appeal, see

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          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the sentence
          appealed from is not appropriate under the Sentencing
          Code, 42 Pa.C.S.A. § 9781(b).

       Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
       appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
       the discretionary aspects of a sentence are generally waived if
       they are not raised at the sentencing hearing or in a motion to
       modify the sentence imposed. Commonwealth v. Mann, 820
       A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
       A.2d 599 (2003).

       The determination of what constitutes a substantial question must
       be evaluated on a case-by-case basis. Commonwealth v. Paul,
       925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
       exists “only when the appellant advances a colorable argument
       that the sentencing judge’s actions were either: (1) inconsistent
       with a specific provision of the Sentencing Code; or (2) contrary
       to the fundamental norms which underlie the sentencing process.”
       Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

       In this case, Appellant filed a timely post-sentence motion in which he

preserved his sentencing claims for our review. He also filed a timely notice

of appeal and has included in his brief a Rule 2119(f) statement. Therein,

Appellant contends that the court failed to state sufficient reasons for imposing

“a sentence at the top of the aggravated range.”1 Appellant’s Brief at 17. We
____________________________________________


1 Appellant also asserts that the court did not state sufficient reasons for
imposing consecutive sentences, and that the court focused exclusively on the
seriousness of his offense without considering other “relevant criteria.”
Appellant’s Brief at 17. However, in the Argument section of his brief,



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agree with Appellant that this claim constitutes a substantial question for our

review. See Commonwealth v. Ritchey, 779 A.2d 1183, 1186 (Pa. Super.

2001) (concluding that “claims that the sentencing court provided insufficient

reasons for the sentence imposed” constitute a substantial question).

       Nevertheless, we conclude that Appellant’s           argument does not

demonstrate an abuse of discretion by the trial court in fashioning his

sentence. See id. at 1185 (“[S]entencing is a matter vested in the sound

discretion of the sentencing judge, whose judgment will not be disturbed

absent an abuse of discretion.”).         At the sentencing proceeding, the court

offered the following explanation for imposing aggravated-range sentences:

       THE COURT: … In light of what I heard at trial and the condition
       of the victim here -- I mean, he can’t walk away from this, and
       you [Appellant] have been convicted by a jury of your peers. The
       impact on the victim’s life goes without saying. More or less his
       active life is over. I haven’t heard any remorse. Of course, you
       are denying that you did this.

       [Appellant:] I’d like to add, Your Honor, that, you know, I never
       was given any prior medical history. This guy had degenerative
       bone disease, all that kind of stuff.

       THE COURT: [Appellant’s] rehabilitative needs are an issue and
       obviously the horrific circumstances surrounding the offense that
       the jury found him guilty of. So this is in the aggravated range….

N.T. Sentencing, 9/14/17, at 18.

       Appellant seemingly believes that, because the court’s explanation was

short, it was insufficient to support his aggravated-range sentence.          We


____________________________________________


Appellant does not develop either of these claims.         Therefore, we will not
address them.

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disagree.   In Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super.

2006), we concluded that a single sentence by the trial court was enough to

justify an aggravated range sentence.        There, the court stated that its

sentence was premised on Fullin’s “extreme indifference for the consequences

of [his] actions” and “the extreme nature of the harm to the victim.” Id.

      Similarly, here, the trial court emphasized Appellant’s lack of remorse

for his actions, and the severe injuries he inflicted upon Moore. Appellant

makes no argument that he exhibited remorse, or that the impact of his crimes

on Moore were not extreme. See id. (noting that Fullin “makes no argument

that the circumstances of [his] case are not in fact ‘extreme’”).       Indeed,

Appellant placed his lack of remorse on full display when he interrupted the

court’s sentencing statement to blame Moore’s ‘degenerative bone disease’

for the injuries that Appellant caused him. Additionally, just after Moore made

an impact statement detailing his “life-changing” injuries, Appellant used his

right to allocution to deny fault, list the various ways in which he was denied

a fair trial, and detail how he and his family have been negatively impacted

by this incident. See N.T. Sentencing at 9-18. Never once during his lengthy

statement did Appellant express any sorrow for the injuries sustained by

Moore, which are unquestionably devastating. Clearly, this record supports

the trial court’s reasons for imposing an aggravated range sentence, and our

decision in Fullin convinces us that the court’s explanation for that sentence,

although short, was sufficient. Thus, Appellant’s first issue is meritless.




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       Appellant next contends that the trial court erred by refusing to instruct

the jury on self-defense or ‘justification.’2 We need not spend significant time

on this claim, as our review of the record reveals that the court did instruct

the jury on these legal concepts.              See N.T. Trial, 7/18/17, at 246-48.

Appellant does not even acknowledge the court’s instruction, let alone offer

any argument that it was inadequate. Moreover, even if he did, Appellant did

not lodge a specific objection or exception to the court’s charge, thus waiving

any challenge thereto. See Commonwealth v. Baker, 963 A.2d 495, 506

(Pa. Super. 2008) (“[U]nder Criminal Procedure Rules 603 and 647(B), the

mere submission and subsequent denial of proposed points for charge that

are inconsistent with or omitted from the instructions actually given will not

suffice to preserve an issue, absent a specific objection or exception to the

charge or the trial court’s ruling respecting the points.”).

       In his third issue, Appellant argues that the trial court abused its

discretion by refusing his pretrial request for the appointment of an expert “to

evaluate blood sample evidence found at the scene.” Appellant’s Brief at 31.

According to Appellant, his “injuries formed the basis of his Justification

defense, and their very existence was denied by the Commonwealth. In order

to substantiate that he was an injured party, [Appellant] sought to have the

____________________________________________


2 In Appellant’s Statement of the Questions, he also mentions the court’s
failure to provide a jury instruction on the “defense of property (the Castle
Doctrine), and on the use of deadly force[.]” Appellant’s Brief at 7. However,
Appellant does not develop any argument on these claims in the body of his
brief. Consequently, we will not address them.

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samples taken from his home tested to determine if the blood was his, []

Moore’s, or a combination of both.” Id. at 32. Appellant claims that “[s]uch

specific, scientific evidence could not have been replicated through any other

means because anyone else’s testimony would be coming from someone with

a vested or other specific interest in the outcome of the trial.” Id. Thus,

Appellant contends that there is no support in the record for the trial court’s

determination that evidence of his injuries was “capable of being produced by

adequate alternative means.” Trial Court Opinion, 7/12/17, at 2.

      Initially, this Court has explained:

      Under the law of Pennsylvania, as in a majority of states, the
      appointment of an expert witness or an investigator to assist in
      the preparation of a defense is vested in the sound discretion of
      the trial court…. [footnote omitted].

      Generally, the trial court will not be found to have abused its
      discretion in the absence of a clear showing as to the content,
      relevancy and materiality of the testimony of the potential
      witnesses.

                                      ***

      Neither the federal constitution nor our state constitution
      mandates that an expert be appointed at the public’s expense to
      assist a defendant in the preparation of a defense.

Commonwealth v. Bell, 706 A.2d 855, 862 (Pa. Super. 1998) (internal

citations omitted).

      Contrary to Appellant’s claim, the record supports the trial court’s

determination that evidence of his injuries could be produced by means other

than an expert to test the blood samples taken from Appellant’s home. For

instance, Appellant testified that he was injured when Moore pushed him


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through a window and struck him in the face with a television remote control.

See N.T. Trial at 173-74, 175. Trooper Elder testified that on the morning

after the incident, he spoke with Appellant, who claimed that Moore attacked

him in his home, struck him in the face with a television remote, and pushed

him through a window.          Id. at 145.     Appellant told Trooper Elder that he

“sustained a cut” when he was pushed through the window, id., and the

trooper observed that Appellant had a “laceration on his lip” and “a laceration

on his hand[,]” id. at 146. The trooper also testified that a window in the

foyer area was broken and there was blood on the floor.            Id. at 148.   In

addition to this testimony, the defense admitted into evidence photographs of

Appellant’s injuries that were taken by the police on the morning after the

incident.   Id. at 154.      Those pictures, which were published to the jury,

showed small lacerations on Appellant’s hands, a larger cut on his forearm,

and a cut on his lip. See Defendant’s Exhibits 5 and 6. This evidence supports

the court’s conclusion that Appellant could prove that he sustained injuries by

means other than the appointment of an expert to analyze blood samples

taken from his home. Consequently, Appellant has not proven that the court

abused its discretion.3
____________________________________________


3 We are also unconvinced that testing of the blood samples would have
changed the outcome of Appellant’s trial. Again, the jury heard testimony and
observed photographs that supported Appellant’s claim that he was injured in
the incident. However, it also heard testimony from two eyewitnesses -
McTavish and Koch - who claimed that Appellant was the initial aggressor, and
that he repeatedly stomped and kicked Moore in the head while Moore lay



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       Lastly, Appellant claims that the Commonwealth committed a Brady

violation by not turning over, pursuant to his discovery request, the criminal

records of Moore, Koch, and McTavish. Before addressing Appellant’s specific

arguments, we recognize that

          [i]n Brady, the United States Supreme Court held that “the
          suppression by the prosecution of evidence favorable to an
          accused upon request violates due process where the
          evidence is material either to guilt or to punishment,
          irrespective of the good faith or bad faith of the
          prosecution.” Brady supra at 87, 83 S.Ct. 1194.

          This Court has held that “to prove a Brady violation, the
          defendant must show that: (1) the prosecutor has
          suppressed evidence; (2) the evidence, whether
          exculpatory or impeaching, is helpful to the defendant; and
          (3)   the    suppression   prejudiced     the   defendant.”
          Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 291
          (2008) (citing Commonwealth v. Carson, 590 Pa. 501,
          913 A.2d 220, 245 (2006)).

       Commonwealth v. Busanet, 54 A.3d 35, 48 (Pa. 2012).
       “Brady’s mandate is not limited to pure exculpatory evidence;
       impeachment evidence also falls within Brady's parameters and
       therefore must be disclosed by prosecutors. U.S. v. Bagley, 473
       U.S. 667, 677, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).”
       Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538,
       546, 2012 WL 4841446, (Pa. Super. 2012). “The burden rests with
       Appellant to ‘prove, by reference to the record, that evidence
       was withheld or suppressed by the prosecution.’ Commonwealth
____________________________________________


defenseless on the floor. The fact that Moore was left paralyzed from the
chest down aligned more with McTavish’s and Koch’s description of the attack
than Appellant’s testimony that he and Moore had a “wrestling match[,]” see
N.T. Trial at 173, and two instances of “exchanging … blows,” id. at 175, after
which Moore fell to the ground and Appellant “kicked him twice in the ribs[,]
once on each side[,]” id. at 176. Given this record, we cannot conclude that
the jury’s verdict would have changed had it been presented with evidence
that blood at the scene was Appellant’s.


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      v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999) (citations
      omitted) (emphasis added).” Commonwealth v. Sneed, 45 A.3d
      1096, 1116 (Pa. 2012).

Commonwealth v. Nero, 58 A.3d 802, 809–10 (Pa. Super. 2012).

      In this case, Appellant argues that the Commonwealth violated Brady

by failing to turn over criminal information regarding Moore, Koch, and

McTavish. More specifically, Appellant states that he knew McTavish was “out

on bail for some offense” when the incident occurred, but the Commonwealth

did not turn over her criminal record to reveal her pending charges.

Appellant’s Brief at 36. Thus, while Appellant was permitted to cross-examine

McTavish about being on bail at the time of the incident, “[t]he court did not

permit him to get into what she was on bail for.” Id. Appellant maintains

that if he had the criminal records of McTavish and the other Commonwealth

witnesses, his “counsel would have identified potential and likely bias,

incentive to testify favorably for the Commonwealth, and the various

witnesses’ hopes for leniency in other criminal matters. He could have then

argued these reasons when the Commonwealth objected to his line of

questioning while impeaching [McTavish].” Id.

      In support of his claim that criminal records must be turned over

pursuant to Brady, Appellant primarily relies on this Court’s decision in

Commonwealth v. Copeland, 723 A.2d 1049, 1051 (Pa. Super. 1998).

However, Copeland did not specifically address whether the Commonwealth

is required to turn over criminal records pursuant to Brady; instead, the

Copeland panel ruled on the distinct issue of “whether the Commonwealth is


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precluded by law from supplying to the defense the criminal histories of the

prosecution’s witnesses” under the Criminal History Record Information Act,

42 Pa.C.S. § 9121(b) (hereinafter, “the CHRIA”) (emphasis added).

Therefore, Copeland is not on point.

       Instead, we find our Supreme Court’s decision in Commonwealth v.

Tharp, 101 A.3d 736 (Pa. 2014), to be dispositive of Appellant’s argument.

There, Tharp contended that the Commonwealth violated Brady by not

turning over the criminal records of certain witnesses. Tharp, 101 A.3d at

752.    However, our Supreme Court concluded that Tharp’s “allegations

relating to the suppression of … criminal records fail as they could have been

obtained by subpoena from non-governmental sources.” Id. at 752 (citing

Commonwealth v. Spotz, 896 A.2d 1191, 1248 (Pa. 2006) (“It is well

established that no Brady violation occurs where the parties had equal access

to the information or if the defendant knew or could have uncovered such

evidence with reasonable diligence.”)).      Likewise, the Court also rejected

Tharp’s claim that the Commonwealth committed a Brady violation by not

disclosing that one witness was on parole when she testified against Tharp,

reasoning that such information was a “matter of public record, readily

obtainable by the defense from non-governmental sources.” Id. at 753.

       Here, Appellant admits that he knew, prior to trial, that McTavish had

pending criminal charges for which she was on bail at the time of the incident.

As discussed in Copeland, the CHRIA allows an individual to request criminal

records from state and local police departments for a fee. Appellant does not

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explain why he could not have utilized the CHRIA, or some other means, to

obtain McTavish’s criminal record, or the alleged criminal records of Koch and

Moore. Accordingly, given Tharp’s holding that such records are public and

ascertainable by the defense, and Appellant’s failure to explain why the

records he sought were unobtainable with reasonable diligence, we conclude

that Brady was not violated in this case.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2018




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