J-S62029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DEMAR CAMPBELL,

                        Appellant                  No. 3053 EDA 2013


         Appeal from the Judgment of Sentence October 14, 2013
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0001266-2013

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 27, 2014

      Appellant, Demar Campbell, appeals from the judgment of sentence

entered on October 14, 2013. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      Anisha Bryan [(“Bryan”)] testified that she had a romantic
      relationship with [Appellant] that began around September of
      2011. During this relationship, [Appellant] resided with Bryan at
      her residence in Emmaus, Pennsylvania.           She ended the
      relationship with [Appellant] in June or July of 2012 at which
      point [Appellant] moved out of Bryan’s home. The two remained
      on speaking terms.

      Bryan testified that on the evening of February 7, 2013,
      [Appellant] telephoned her for a car ride. Bryan agreed so,
      about 1:00 a.m. on February 8, she drove her Mercury
      Mountaineer from her residence in Emmaus to pick up
      [Appellant] who was waiting for the ride on Seventh Street in
      Allentown. When he entered the Mercury, [Appellant] placed a
      small knife in a cup holder between the driver’s seat and the
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     front passenger seat. [Appellant] appeared intoxicated to Bryan.
     Bryan moved the knife to the panel on the driver’s side door.
     [Appellant] would not tell Bryan where he wanted to be driven so
     Bryan decided to drive with [Appellant] to the Walmart in
     Trexlertown to [d]o some shopping.

     During the drive from Allentown to Trexlertown, [Appellant]
     attempted to persuade Bryan to renew their relationship. Bryan
     refused and they began to argue. [Appellant] became agitated
     and swung his hands. This led Bryan to stop her car and get out
     of it. [Appellant] moved from the passenger seat to the driver’s
     seat. Bryan returned to the passenger seat and [Appellant]
     proceeded to drive on the way to Walmart.

     During the drive, [Appellant] and Bryan continued to argue.
     [Appellant] pulled the Mercury over on Trexlertown Road in
     Upper Macungie Township. A portion of the parked vehicle was
     on the roadway.     Bryan exited the vehicle and [Appellant]
     followed her. The two argued loudly. There was physical
     contact between them which included [Appellant] shoving Bryan
     in her torso. As the argument continued, the two reentered the
     car with [Appellant] in the driver’s seat and Bryan in the
     passenger seat.    When she sat down, Bryan felt pain and
     realized she had been stabbed in her left side.

     Cassandra Turoczi [(“Turoczi”)], who lived on Trexlertown Road,
     saw the confrontation between [Appellant and Bryan]. In the
     early morning hours of February 8, she was sleeping on the sofa
     in her living room.    At approximately 3:30 a.m., she was
     awakened by her dogs growling. She then heard a woman
     screaming and a man yelling. She looked from a window of her
     home and saw a sports utility vehicle parked partially on
     Trexlertown Road. She saw a taller person and a shorter person
     standing next to the car. She could not tell the gender of these
     people. She watched the taller person put hands on the shorter
     person and then shake the shorter person. The taller person
     then moved the left hand down to the chest of the shorter
     person. Turoczi watched the taller person grab the jacket of the
     shorter person and shake the person. Turoczi called the police.

     Officer Dathan Schlegel and Sergeant Stephen Marshall of the
     Upper Macungie Township Police Department responded to
     Turoczi’s call. Officer Schlegel was the first to arrive at the
     scene. He observed the Mercury parked partially on Trexlertown


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        Road and partially on the shoulder. He saw [Appellant] sitting in
        the driver’s seat and Bryan sitting in the front passenger seat.
        [Appellant] was yelling at Bryan and waving his arms. Officer
        Schlegel approached the driver’s door of the Mercury and
        removed [Appellant] from the vehicle.        The officer smelled
        alcohol on [Appellant]. He put [Appellant] against his patrol car
        and asked for his name and to explain what was happening.
        [Appellant] told the officer that his name was “Omar Scat” and
        that he was having an argument with Bryan.

Trial Court Opinion, 2/14/14, at 3-5 (honorifics omitted).

        The procedural history of this case is as follows. On April 12, 2013, an

information was filed charging Appellant with two counts of aggravated

assault,1 simple assault,2 possession of an instrument of crime,3 driving

under the influence – incapable of safe driving,4 driving under the influence

– high rate of alcohol,5 harassment,6 and driving while under suspension.7

        On August 19, 2013, Appellant filed a motion in limine to preclude the

introduction of tape recorded conversations, and transcripts thereof,

between him and Gabrielle Noukpozounkou (“Noukpozounkou”) that were

recorded while Appellant was imprisoned.        On August 26, 2013, the trial


1
    18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4).
2
    18 Pa.C.S.A. § 2701(a)(2).
3
    18 Pa.C.S.A. § 907(a).
4
    75 Pa.C.S.A. § 3802(a)(1).
5
    75 Pa.C.S.A. § 3802(b).
6
    18 Pa.C.S.A. § 2709(a)(1).
7
    75 Pa.C.S.A. § 1543(a).


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court denied Appellant’s motion in limine.      Trial began that same day.

During trial, Appellant requested a continuance to permit a cell phone that

had been seized by police to be charged and examined.         The trial court

denied the request.   On August 28, 2013, a jury found Appellant guilty of

two counts of aggravated assault, simple assault, and possession of an

instrument of crime. The trial court found Appellant guilty of driving under

the influence – incapable of safe driving, driving under the influence – high

rate of alcohol, harassment, and driving while under suspension.

      On October 14, 2013, Appellant was sentenced to an aggregate term

of 66 months and 2 days to 138 months’ imprisonment.         Appellant timely

appealed. On November 4, 2013, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal (“concise statement”).

See Pa.R.A.P. 1925(b). Appellant filed his concise statement on November

7, 2013, which included all issues raised on appeal. On January 8, 2014, we

dismissed this appeal for failure to file a docketing statement as required by

Pennsylvania Rule of Appellate Procedure 3517.          On January 9, 2014,

Appellant filed an application to reinstate this appeal, which we granted on

January 13, 2014.     On February 14, 2014, the trial court issued its Rule

1925(a) opinion.

      Appellant presents three issues for our review:

   1. Whether or not the evidence as presented was sufficient as a
      matter of law to support [Appellant’s] conviction for aggravated
      assault and simple assault based upon [Appellant] being the
      actual perpetrator of the alleged assault?


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   2. Whether the trial court erred by permitting redacted phone
      conversations from [Appellant] to a third-party to be admitted as
      evidence as possible admissions by [Appellant] of his
      involvement in the stabbing?

   3. Whether the trial court erred by failing to grant [Appellant’s]
      request for a brief recess to allow for a brief investigation
      regarding the alleged phone contacts between [Appellant] and
      [Bryan]?

Appellant’s Brief at 7 (complete capitalization removed).

      Appellant first contends that the evidence was insufficient to find him

guilty of aggravated assault and simple assault.            “Whether sufficient

evidence exists to support the verdict is a question of law; thus, our

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

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted).   In reviewing a sufficiency of the evidence claim, we must

determine “whether viewing all the evidence admitted at trial in the light

most favorable to the [Commonwealth], there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a

reasonable doubt.”    Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.

Super. 2014) (citation omitted). “Additionally, the evidence at trial need not

preclude every possibility of innocence. . . . [T]he fact-finder is free to

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

90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted).

      An individual is guilty of aggravated assault if he “attempts to cause

serious bodily injury to another, or causes such injury intentionally,


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knowingly   or   recklessly    under    circumstances    manifesting    extreme

indifference to the value of human life [or]. . . attempts to cause or

intentionally or knowingly causes bodily injury to another with a deadly

weapon[.]” 18 Pa.C.S.A. § 2702(a)(1,4). “The elements of simple assault

are the attempt to cause or intentionally, knowingly or recklessly caus[ing]

bodily injury to another[.]”    Commonwealth v. Weigle, 949 A.2d 899,

906 (Pa. Super. 2008), affirmed, 997 A.2d 306 (Pa. 2010) (internal

quotation marks omitted), citing 18 Pa.C.S.A. § 2701(a).

     Appellant’s only argument with respect to the sufficiency of the

evidence as to both the aggravated assault and simple assault convictions is

that there was insufficient evidence to prove that he actually stabbed Bryan.

He argues that the only evidence that supports the jury’s finding that he

stabbed Bryan is circumstantial. He contends that there is no evidence that

he ever regained possession of the knife after Bryan removed it from the cup

holder when Appellant got in the Mercury.

     It is well-settled that “circumstantial evidence can itself be sufficient to

prove any or every element of the crime[.]” Commonwealth v. Perez, 93

A.3d 829, 841 (Pa. 2014) (citation omitted).        Viewed in the light most

favorable to the Commonwealth, the circumstantial evidence in this case is

overwhelming.    Appellant was the individual that introduced the knife into

the vehicle. Bryan removed the knife from the cup holder and placed it in

the panel of the driver’s side door. After that occurred, Appellant and Bryan



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switched places and Appellant was in the driver’s seat while Bryan was in the

passenger seat. From this position, Appellant had ready access to the knife.

Appellant admits that thereafter an altercation between himself and Bryan

occurred on the side of the road. Bryan and Turoczi testified that Appellant

shook and shoved Bryan in her torso during the confrontation. Prior to this

altercation, Bryan did not have a stab wound; however, after Appellant

shook and shoved Bryan she did have a stab wound. DNA testing showed

that Bryan was stabbed with the knife that Appellant had brought into the

car. From this circumstantial evidence, the jury could reasonably conclude

that Appellant stabbed Bryan during the confrontation.         Therefore, the

Commonwealth satisfied its burden to prove every element of both

aggregated assault and simple assault beyond a reasonable doubt.

     Appellant next challenges the trial court’s denial of his motion in limine

to prohibit introduction of the recorded phone conversations, and transcripts

thereof, between Appellant and Noukpozounkou. “When reviewing a ruling

on a motion in limine, we apply an evidentiary abuse of discretion standard

of review. The admission of evidence is committed to the sound discretion

of the   trial court   and our   review   is for   an abuse    of discretion.”

Commonwealth v. Orie, 88 A.3d 983, 1022 (Pa. Super. 2014), appeal

denied, 172 WAL 2014 (Pa. Sept. 17, 2014) (internal alteration and citation

omitted).




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      Appellant first contends that the recording was “unclear and uncertain

based in large part upon [Appellant’s] heavy Jamaican accent.” Appellant’s

Brief at 14. Appellant argues that because the recording was unintelligible,

it should not have been admitted into evidence.       “[A] recording will be

admissible unless the inaudible portions or omissions are so substantial as to

render the recording as a whole untrustworthy.”          Commonwealth v.

Leveille, 433 A.2d 50, 52 (Pa. Super. 1981) (citation omitted).       Prior to

trial, the trial court listened to the recording and concluded that the

inaudible portions were not so substantial as to render the recording

untrustworthy. The recording was included in the certified record on appeal.

We have listened to the conversations admitted into evidence.        Although

Appellant does have a thick accent, and at times the recording is

unintelligible, as a whole Appellant and Noukpozounkou can both be

understood and the unintelligible portions are not so substantial as to render

the recording unreliable.

      Appellant also contends that one of the recordings should have been

excluded because Appellant is discussing the possibility of accepting a plea

agreement. Pennsylvania Rule of Evidence 410 provides, in relevant part:

      In a civil or criminal case, evidence of the following is not
      admissible against the defendant who made the plea or
      participated in the plea discussions:

                                    ***




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      (4) a statement made during plea discussions with an attorney
      for the prosecuting authority if the discussions did not result in a
      guilty plea or they resulted in a later withdrawn guilty plea.

Pa.R.Evid. 410(a)(4).

      In this case, the conversation between Appellant and Noukpozounkou

did not fall under the Rule 410(a)(4) prohibition against the admission of

plea negotiations.   The rule only prohibits the introduction of statements

made during discussions with the prosecuting authority. The statements by

Appellant to Noukpozounkou were not to a prosecuting authority but rather

were to Appellant’s friend. Rule 410(a)(4) therefore does not apply in this

case. Cf. Commonwealth v. Stutler, 966 A.2d 594, 599 (Pa. Super. 2009)

(Rule 410(a)(4) only applies when the defendant reasonably believes that he

is actually negotiating a plea agreement).

      Appellant contends that the recordings should have been excluded as

they were unduly prejudicial. Pennsylvania Rule of Evidence 403 provides,

in relevant part, that, “The court may exclude relevant evidence if its

probative value is outweighed by a danger of . . . unfair prejudice[.]”

Pa.R.Evid. 403.

      Our research has failed to uncover a Pennsylvania case that stands on

all fours with the present case. Nonetheless, we find instructive the decision

of the Ohio First District Court of Appeals in Ohio v. Crawford, 2008 WL

4823027 (Ohio App. Nov. 7, 2008), appeal denied, 908 N.E.2d 945 (Ohio

2009).    In Crawford, the trial court admitted into evidence taped



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conversations between the incarcerated defendant and his girlfriend. Id. at

*4.   During those conversations, the defendant admitted that he had

committed a murder with which he had been charged.                Id.   Although the

court redacted certain portions of the conversations that referred to a

previously accepted plea agreement, other segments of the recorded

conversations that were played for the jury still referred to the defendant’s

engagement in plea negotiations.          Id.      Following his convictions, the

defendant     appealed   objecting,   inter    alia,   to   the   admission   of   the

conversations under Ohio Rules of Evidence 403 and 410.8                The Court of

Appeals concluded that, “The probative value of the tapes far outweighed

any danger of prejudice to Crawford.” Id. at *8. The United States District

Court for the Southern District of Ohio held that this conclusion was

reasonable.     Crawford v. Warden, Warren Corr. Inst., 2011 WL

5307408, *26 (S.D. Ohio Sept. 29, 2011), adopted, 2011 WL 5304157 (S.D.

Ohio Nov. 03, 2011).

      We likewise find instructive the decision of the Texas Court of Appeals-

San Antonio Division in Willis v. Texas, 2010 WL 2935772 (Tex. App. July

28, 2010). In Willis, the defendant wrote a letter to a police officer in which

8
  Ohio Rule of Evidence 403, like the federal rule, prohibits evidence when its
probative value is substantially outweighed by the risk of unfair prejudice.
See Ohio.R.Evid. 403; Fed.R.Evid. 403. However, as noted above, the
Crawford court found that the recordings’ probative value substantially
outweighed the risk of unfair prejudice. Crawford, 2008 WL 4823027 at
*8. Thus, the recording would have been admissible under the Pennsylvania
rule. Ohio Rule of Evidence 410 is substantially the same as Pennsylvania
Rule of Evidence 410. Compare Ohio.R.Evid. 410 with Pa.R.Evid. 410.


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he offered to plead guilty to certain charges in exchange for other charges

being dropped. Id. at *1. The defendant objected to the admission of the

letter under Texas Rules of Evidence 403 and 410.9 The trial court overruled

the defendant’s objection and the letter was admitted into evidence. After

the defendant was convicted, he appealed, arguing, inter alia, that the trial

court erred by admitting the letter. The Court of Appeals concluded that the

letter was highly probative and the risk of unfair prejudice was low. Id. at

*5.    Thus, it concluded that the trial court did not abuse its discretion by

admitting the letter into evidence. Id.

       As in Crawford and Willis, in this case, the probative value of the

conversations was extremely high.         Although there was testimony from

Bryan that the knife that was used to stab her belonged to Appellant, in one

of the conversations Appellant arguably admitted that the knife belonged to

him.    In the other conversation, Appellant arguably admitted that he had

stabbed Bryan. It is difficult to imagine more probative statements.

       The statements made by Appellant during the conversations were

obviously prejudicial (as is any evidence that tends to show a defendant is

guilty); however, Rule 403 only permits the exclusion of evidence if the

probative value is outweighed by the risk of unfair prejudice. In this case,

Appellant and Noukpozounkou were both notified prior to the conversations

that the conversations were being recorded. Despite this warning, Appellant

9
  Texas Rules of Evidence 403 and 410 are substantially the same as those
of Ohio. See note 8, supra.


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chose to make the admissions.           Although one of the conversations

mentioned plea negotiations, the conversation was mainly discussing

Appellant’s guilt.   Under these circumstances, we conclude that the trial

court did not abuse its discretion when determining that the probative value

of the conversations outweighed the risk of unfair prejudice.

      Appellant also objects to transcripts of the recordings being provided

to the jury.    Generally, transcripts of recording conversations can be

provided to the jury. See Commonwealth v. Proctor, 585 A.2d 454, 462

n.4 (Pa. 1991) (citation omitted).    In this case, the trial court provided a

cautionary instruction to the jury regarding the transcripts.       See N.T.,

8/27/13, at 205-207. The trial court instructed the jury that the transcripts

were merely a guide and that they could only rely upon those portions of the

conversations that they could understand themselves. See id.

      Although the Pennsylvania State Standard Criminal Jury Instructions

do not provide an instruction for this situation, the United States Court of

Appeals for the Third Circuit’s model jury instructions do include a limiting

instruction.   See 3d Cir. Model Criminal Jury Instruction 2.07.           The

instruction given by the trial court in this case included all of the essential

points of the model Third Circuit instruction.   It is presumed that the jury

followed the court’s instructions.   Commonwealth v. Fortenbaugh, 69

A.3d 191, 195 n.2 (Pa. 2013) (citation omitted). Therefore, the jury would

not have placed undue weight on the transcripts as they were instructed that



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the transcripts were merely a guide for listening to the recordings. As such,

the trial court did not abuse its discretion by permitted the jury to have the

transcripts. We therefore conclude that all of Appellant’s arguments relating

to the denial of his motion in limine to preclude the recordings, and

transcripts thereof, are without merit.

      Appellant’s final issue challenges the trial court’s denial of a motion for

continuance made during trial. Appellant sought the ability to charge a cell

phone that had been seized by police so that he could see if there was any

information that could be extracted from the cell phone.        The cell phone

belonged to Appellant and was recovered from the vehicle on the night of

the incident in question. “The grant or denial of a motion for a continuance

is within the sound discretion of the trial court and will be reversed only

upon a showing of an abuse of that discretion.” Commonwealth v.

Hansley, 24 A.3d 410, 418 (Pa. Super. 2011), appeal denied, 32 A.3d 1275

(Pa. 2011) (citation omitted).

      The trial court denied the requested continuance for two reasons.

First, it concluded that the request was untimely.         Trial Court Opinion,

2/14/14, at 12. Consistent with its obligations under Brady v. Maryland,

373 U.S. 83 (1963), the Commonwealth disclosed the existence of the cell

phone prior to trial. Despite this fact, Appellant did not request to review

the cell phone prior to trial.   Instead, he waited until trial was already in




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progress to request a continuance to permit the phone to be charged and

the contents examined.

     Second, the trial court concluded that any evidence that would have

been gathered from the cell phone would not have been relevant.               Trial

Court Opinion, 2/14/14, at 12.          Appellant argued that the phone could

provide evidence to impeach the credibility of Bryan. She testified at trial

that Appellant contacted her and requested a ride. Appellant contends that

the phone may have had evidence that Bryan contacted Appellant before he

contacted her.

     We conclude that the trial court did not abuse its discretion in denying

Appellant’s request for a continuance.          Appellant knew that his cell phone

had been seized from the vehicle since the incident occurred on February 8,

2013. Therefore, Appellant had over six months to request the cell phone

from the Commonwealth for the purposes of learning what data it contained.

Instead,   Appellant   waited   until   trial    had   commenced    to   request   a

continuance to examine the cell phone.             Thus, Appellant’s request was

patently untimely.     See Commonwealth v. Anderson, 448 A.2d 1131,

1134 (Pa. Super. 1982) (trial court did not abuse its discretion in denying

continuance on eve of trial because defendant could have requested

continuance in the week prior to trial); Commonwealth v. Parente, 133

A.2d 561, 564–565 (Pa. Super. 1957) (failure to explain why evidence could

not have been obtained during the previous five months rendered the



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defendant’s   motion   for   continuance     untimely).    Furthermore,   any

information that Appellant would have been able to recover from the cell

phone would not have been relevant to the central issue in this case, i.e.,

whether Appellant stabbed Bryan on the side of the road. Whether Bryan

contacted Appellant first or vice versa was immaterial to what occurred once

Bryan and Appellant had a confrontation on the side of the road.

Accordingly, Appellant’s third issue on appeal is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2014




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