J.   S42038/17

NON-PRECEDENTIAL DECISION                      - SEE SUPERIOR COURT I.O.P.              65.37
COMMONWEALTH OF PENNSYLVANIA                           :         IN THE SUPERIOR COURT OF
                                                                       PENNSYLVANIA
                         v.

GARY L. COLEMAN,                                                      No. 69 MDA 2017

                              Appellant


             Appeal from the Judgment of Sentence, December 9, 2016,
                 in the Court of Common Pleas of Lycoming County
                  Criminal Division at No. CP-41-CR-0001183-2015


BEFORE:       OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                                  FILED AUGUST 01, 2017

          Gary   L.   Coleman appeals from the December 9, 2016 judgment of

sentence entered in the Court of Common Pleas of Lycoming County

following his conviction in        a   jury trial of       1   count each of aggravated assault

-- attempt, aggravated assault, possessing instruments of crime, and

disorderly conduct, and        2   counts of simple assault.' The trial court imposed

an aggregate sentence of 80 to 120 months of imprisonment. We affirm.

          The trial court set forth the following factual history, as gleaned from

the trial transcript:

                 The two victims in this case, Jason Allen ("Allen"),
                 and Jordan Anderson Royal, went to Anne's Tavern
                 with Christopher Allen and Joshua King around
                 11 p.m. on July 4, 2015.         Jason Allen and

'    18    Pa.C.S.A.     §§   2702(a)(4), 2702(a)(1), 907(a),                 5503(a)(1), and
2701(a)(1), respectively.
J.   S42038/17

            Joshua King are brothers, Christopher Allen is their
            cousin, and Jordan Anderson Royal is their friend. At
            Anne's Tavern, Jason Allen played pool.         While
            playing pool, Jason Allen greeted Angela Di[M]arco,
            an acquaintance from school, who he grew up with
            and with whom he was friendly. Angela Di[M]arco is
            [appellant's] fiance[e] and mother of [appellant's]
            two young children.      [Appellant] observed Jason
            Allen speaking to Di[M]arco and concluded that Allen
            said something that Di[M]arco did not like.
            [Appellant] and Allen talked with each other about
            what Allen may have said to Di[M]arco. While body
            language signaled discord between [appellant] and
            Allen, they did not yell or argue. The conversation
            ended and Allen resumed playing pool.

                   As Allen was taking a shot at pool, [appellant]
            calmly walked around him and smashed a glass beer
            mug over Allen's head with such force that it broke
            into pieces. [Allen] was lining up the cue ball to take
            his next shot when he heard and felt glass breaking
            over him.      [Appellant] then pushed Allen into a
            corner, swinging at him, kicking him, striking him
            with pool sticks and chairs on Allen's face, back and
            stomach area. Multiple people blocked assistance to
            Allen and other people joined in striking Allen. After
            the altercation, Allen was the only individual
            observed bleeding.      [Appellant] was seen striking
            Allen more than five times.        As [appellant] was
            leaving    Ann[e]'s    Tavern,     [appellant]   struck
            Jordan Anderson Royal [on] the right side of his
            body. After [appellant] struck Royal, Royal fell to
            the ground. Once on the ground, [appellant] and
            others kicked and stomped on Royal's right side of
            his torso.

                  Allen lost a lot of blood and required about
            30-40 stitches.     Prior to stitching his wounds,
            medical staff pulled out pieces of glass from Allen.
            Medical records indicate that Allen suffered "a minor
            closed head injury, no concussion, multiple deep
            lacerations to the right .   periorbital area and the
                                         .   .


            right cheek area," and noted a "foreign body
            present, complicated repair." Medical staff advised


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                Allen that he may have "a few small pieces of glass
                left behind." In his testimony, Allen rated his pain
                level as a 9 on a scale of 1 to 10, with 10 being "the
                most extreme amount of pain[,]" lasting for about
                three to four days after the assault. Allen suffered
                scarring on his side and back from the pool stick or
                chairs. Allen suffered swelling to the face and mouth
                area of the jaw and inside his lip. Allen suffered
                permanent scarring on his face and body. Allen was
                off work for two weeks. Allen endured eye twitching
                for a period of about four to six months and double
                vision of the right eye for a couple of months. Allen
                increased visits to the chiropractor. As a result of his
                injuries, Allen stopped playing semi -pro football for a
                couple of weeks and now uses a special padded
                helmet when playing football.

Trial court opinion, 4/5/17 at 3-5 (citations to notes of testimony omitted;

one set of brackets in original).

       The record reflects that appellant did not file post -sentence motions,

but filed   a   timely notice of appeal.2 The trial court then entered an order

directing appellant to file     a   concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed          a   motion for extension

of time in which to file his Rule 1925(b) statement and reserved the right to

supplement his statement following receipt of transcripts.              The trial court

granted appellant's motion, and appellant filed            a       timely supplemental




2
  Although the 30th day following imposition of sentence was Sunday,
January 8, 2017, appellant timely filed his notice of appeal on Monday,
January 9, 2017. See 1 Pa.C.S.A. § 1908, incorporated by reference into
the Rules of Appellate Procedure, Pa.R.A.P. 107 (omitting Saturdays,
Sundays, and legal holidays from time computation).

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Rule 1925(b) statement following receipt of transcripts.         Thereafter, the trial

court filed its Rule 1925(a)opinion.

         Appellant raises the following issues for our review:

               [1.]   Whether the trial court erred by allowing the
                      admission of exhibits 12, 13, 14, 17, and 19
                      despite their misleading and unduly prejudicial
                      nature?

               [2.]   Whether the verdict as to the charge of
                      Aggravated     Assault,      18    Pa.C.S.[A.]
                      § 2702(a)(1),   is  supported by sufficient
                      evidence regarding [appellant's] intent to
                      cause serious bodily injury given that he
                      refrained from using available implements,
                      such as shards of glass, that certainly would
                      have caused serious bodily injury?

               [3.]   Whether the trial court erred in denying
                      [appellant's] Motion for Continuance and
                      Mistrial after the Commonwealth informed the
                      Court that a defense witness, Angela DiMarco,
                      was being investigated for potential witness
                      intimidation charges and, further, should be
                      warned about a potential perjury charge should
                      she choose to testify as planned, thus
                      preventing the defense from presenting the
                      testimony needed to support its theory of the
                      case?

Appellant's brief at   5   (footnote omitted).3

         Appellant first complains that the trial court abused its discretion when

it denied his motion in        limine to exclude crime -scene photographs from
being introduced into evidence at trial.



3    We note that the Commonwealth elected against filing a brief in opposition
in   this matter. (See Commonwealth correspondence to this court, docketed
5/22/17.)

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       "When reviewing the denial of                a    motion in limine, we apply an

evidentiary abuse of discretion standard of review."                    Commonwealth v.
Mitchell, 902 A.2d 430, 455            (Pa. 2006) (citation omitted).            "In general,

relevant evidence, i.e., evidence that logically tends to establish                a   material

fact in the case, tends to make         a   fact at issue more or less probable[,] or

supports    a    reasonable inference or presumption regarding            a   material fact,   is

admissible."        Commonwealth v. Jordan, 65 A.3d 318, 324                      (Pa. 2013),

cert. denied, 134         S. Ct.   1275, 188   L.       Ed. 2d 311   (2014) (quotation and

quotation marks omitted). Although             a    trial court may find that evidence         is

relevant, it may nevertheless exclude the evidence if its probative value                      is

outweighed by the likelihood of unfair prejudice. Commonwealth v. Reid,

811 A.2d 530, 550 (Pa. 2002), cert. denied, 540 U.S. 850 (2003) (citation

omitted).        Accordingly, in exercising its discretion, the trial court must

balance the evidentiary value of the evidence against the potential dangers

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

confusing the jury. Jordan, 65 A.3d at 325. Additionally, "[t]he admission

of photographs is        a   matter resting with the discretion of the trial court."

Commonwealth v.               Tharp,    830    A.2d        519,   530    (Pa.    2003).        In

Commonwealth v. Malloy, 856 A.2d 767                       (Pa. 2004), our supreme court

outlined   a    two-part test for the admissibility of photographs.

                 First, the court must decide whether a photograph is
                 inflammatory by its very nature. If the photograph
                 is deemed inflammatory, the court must determine
                 whether the essential evidentiary value of the


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              photograph outweighs the likelihood that the
              photograph will improperly inflame the minds and
              passions of the jury.

Id. at 776.
        Here, appellant does not contend that the crime -scene photos were

irrelevant or inflammatory.       Rather, appellant complains that the photos

were misleading      because, according       to appellant, the blood that was

depicted in the crime -scene photographs was not necessarily Allen's blood,

and as such, the    jury should not have seen those photographs because it
"allowed the jury to render   a   decision on an improper basis" by permitting it

to conclude that "given the amount of blood depicted, if all that blood came

from Allen, he must have been seriously injured" and appellant "must have

committed aggravated assault." (Appellant's brief at 14.) In support of this

argument, appellant relies on Leahy v. McClain, 732 A.2d 619 (Pa.Super.

1999).     In that negligence case, the trial court precluded the introduction

into evidence of photographs that failed to accurately depict the accident

scene at the time the accident occurred because the photographs were taken

on a summer day when the road was dry, and the accident occurred on a

winter night during     a   snowstorm.        As   such, the trial court precluded

admission of these photographs because they would mislead the jury as to

the visibility conditions at the time of the accident.    Id. at 624-625.
        Here, appellant maintains that similar to the inadmissible photographs

in   Leahy, the crime -scene photographs introduced into evidence at his trial


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were misleading because they permitted the jury to infer that all of the blood

depicted in the photographs came from Allen. Appellant's reliance on Leahy

is   gravely misplaced because, unlike Leahy, the photographs shown to the

jury   in appellant's case were crime -scene photos, not photos taken 6 months

later under completely different conditions.    Moreover, the record reflects

that the Commonwealth introduced evidence that Allen was the only person

bleeding that night.    (Notes of testimony, 10/27/16 at 23-24, 51-52.)    We

find no abuse of discretion.

        Appellant next complains that the evidence was insufficient to convict

him of aggravated assault because he lacked the intent to cause serious

bodily injury to Allen, as the facts demonstrate that appellant "did not take

advantage of every opportunity to seriously injure Allen" because appellant

could have used "shards of [a] broken beer mug[,]" "which would have

made an excellent weapon." (Appellant's brief at 15-16.)

             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 proof of


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                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 the 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.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).

        Under the Crimes Code,             a   person may be convicted of aggravated

assault,   a   first -degree felony, if he "attempts to cause serious bodily injury

to another, or causes such injury intentionally, knowingly, or recklessly

under circumstances manifesting extreme indifference to the value of human

life." 18 Pa.C.S.A.     §       2702(a)(1); see also Commonwealth v. McClendon,

874 A.2d 1223, 1229 (Pa.Super. 2005).

        In this case,       a   jury convicted appellant of aggravated assault after
finding that he caused Allen to sustain serious bodily injury. "When               a   victim

actually sustains serious bodily injury, the Commonwealth can, but does not

necessarily      have   to,       establish specific intent    to   cause   such       harm."

Commonwealth v. Burton,                2   A.3d 598, 602 (Pa.Super. 2010). Moreover,

the "statute's intent requirement can be met if the defendant acts recklessly

under circumstances              manifesting an extreme indifference to human life."

Id. (citation omitted). "The intent            to cause serious bodily injury -- the only

element of aggravated assault at issue here -- may be proven by direct or




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circumstantial evidence." Commonwealth v. Hall, 830 A.2d 537, 542 (Pa.

2003) (citation omitted).

         Here, no dispute exists that appellant struck Allen on the head with          a


glass beer mug with such force that it shattered into pieces causing Allen to

sustain multiple wounds that each required 30 to 40 sutures to close. The

Commonwealth presented eyewitness and videotape evidence of appellant

committing the assault. Additionally, appellant testified that he planned to

hit Allen with the beer mug and that he also intended to hit "somebody" with

a    pool stick.   (Notes of testimony, 10/27/17 at 124-126.)             Eyewitness and

videotape evidence revealed that after appellant struck Allen with the beer

mug with such force that it shattered into pieces and caused Allen to sustain

multiple wounds that required emergency medical intervention, appellant

repeatedly struck Allen with   a   pool stick, inflicting further injury.

         Despite this evidence, appellant now complains that that because he

could have used shards of glass of the broken beer mug to assault Allen, the

fact that he chose not to demonstrates that he lacked the requisite intent to

sustain his aggravated assault conviction. Appellant            is   gravely mistaken. At

the very least, the videotape evidence, together with eyewitness testimony

and appellant's admission that he struck Allen with         a    beer mug on the head

with such force that it shattered into pieces and that the blow caused Allen

to sustain multiple wounds that each required 30 to 40 sutures to close was

sufficient to prove intent to cause serious bodily injury because                      it



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demonstrated that appellant acted recklessly with extreme indifference to

Allen's life. Therefore, this claim lacks merit.

       Appellant finally complains that the trial court abused its discretion

when it denied his motion for continuance/mistrial after defense witness

Angela DiMarco came under investigation for witness intimidation of three

prosecution witnesses, and as            a   result of that investigation, Ms. DiMarco

decided against testifying on appellant's behalf.

            In criminal trials, declaration of a mistrial serves to
            eliminate the negative effect wrought upon a
            defendant when prejudicial elements are injected
            into the case or otherwise discovered at trial. By
            nullifying the tainted process of the former trial and
            allowing a new trial to convene, declaration of a
            mistrial serves not only the defendant's interest but,
            equally important, the public's interest in fair trials
            designed to end in just judgments. Accordingly, the
            trial court is vested with discretion to grant a mistrial
            whenever the alleged prejudicial event may
            reasonably be said to deprive the defendant of a fair
            and impartial trial. In making its determination, the
            court must discern whether misconduct or prejudicial
            error actually occurred, and if so,           assess the
                                                                .   .   .


            degree of any resulting prejudice. Our review of the
            resulting order is constrained to determining whether
            the court abused its discretion. Judicial discretion
            requires action in conformity with [the] law on facts
            and circumstances before the trial court after hearing
            and consideration. Consequently, the court abuses
            its discretion if, in resolving the issue for decision, it
            misapplies the law or exercises its discretion in a
            manner lacking reason.

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (citations
omitted).   The grant of       a    mistrial       is an   extreme remedy that   is   required

"only when an incident    is       of such     a   nature that its unavoidable effect    is   to


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deprive the appellant of     a   fair and impartial tribunal." Commonwealth v.

Johnson, 719 A.2d 778, 787 (Pa.Super. 1998) (en banc) (citation
omitted).

        Here, the record reflects that Ms. DiMarco, appellant's fiancée and the

mother of his two children, came under investigation for witness intimidation

during appellant's trial.         Defense    counsel   made an   oral    motion for

continuance/mistrial claiming that counsel had planned to call Ms. DiMarco

on appellant's       behalf and "[n]ot having her available greatly hampers

[appellant's] defense."       (Notes of testimony, 10/27/16 at 72.)        The trial

court denied the oral motion for continuance without prejudice and deferred

its ruling on the motion for mistrial until Ms. DiMarco decided whether she

would testify on appellant's behalf.        (Id. at 75, 78-79.) Counsel was then
appointed to advise Ms. DiMarco as to the legal consequences of her decision

to testify. Thereafter, Ms. DiMarco stated on the record that she would not

testify and that the decision was of her own free will. (Id. at 98.) Defense

counsel did not renew the motion for continuance, and the trial court did not

declare   a   mistrial.

       Appellant now complains that:

                [h]ad   a continuance been granted until Ms. DiMarco's
                charges had been resolved, she would have been
                available as a witness and these crucial facts could
                have come to light. Because she reasonably decided
                that she would plead the Fifth if she were called to
                testify, [appellant] was prejudiced in that he was
                unable to fully present the facts necessary to support
                his theory of the case.
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Appellant's brief at 18-19 (citation to notes of testimony omitted).

       Appellant fails to explain, and we cannot fathom, how             a   defense

witness who comes under investigation for witness intimidation and decides

against testifying to reduce her exposure to criminal liability constitutes        a


prejudicial event that deprived appellant of   a   fair and impartial trial. As the

trial court explained:

            A    jury would likely view testimony by Di[M]arco      as
            potentially biased.     Di[M]arco was [appellant's]
            fiance[e] and mother of his small children.
            [Appellant] should not profit from the alleged
            misconduct of his fiance[e].

                  There was no specific proffer as to what
            Ms.  Di[M]arco's testimony would have been or how it
            would advance [appellant's] theory of the case.
            There was no suggestion that [the] circumstances
            surrounding Ms. Di[M]arco's ability to testify would
            change     within    a   reasonable   time.      The
            Commonwealth asserted that those circumstances
            would not change. Any testimony by Ms. Di[M]arco
            would be weighed as having some potential for bias
            in [appellant's] favor.    Given the admissions by
            [appellant] and the video [evidence], Ms. Di[M]arco's
            testimony would not go toward whether [appellant]
            struck Allen with a glass beer mug and attacked
            Allen but rather would likely have been cumulative
            evidence as to what transpired verbally between
            Allen and [appellant].     Since [appellant] did not
            allege self-defense or defense of others so it is
            unclear what theory of the case Di[M]arco's
            testimony could support. The Court believes it was
            appropriate to deny the continuance/mistrial.

Trial court opinion, 4/5/17 at 10 (citations to notes of testimony omitted).




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       After hearing and consideration, the learned trial court acted in

conformity with the law on the facts and circumstances that came before it

with respect to the investigation of Ms. DiMarco and appellant's requested

continuance/mistrial. Accordingly, we discern no abuse of discretion.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 8/1/2017




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