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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                    v.

VERONICA ANN MOATE

                         Appellant                    No. 1011 WDA 2016


            Appeal from the Judgment of Sentence April 7, 2016
             In the Court of Common Pleas of Cameron County
            Criminal Division at No(s): CP-12-CR-0000040-2014


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                FILED JULY 14, 2017

      A jury convicted Appellant, Veronica Ann Moate, on two charges of

resisting arrest and found her not guilty of one charge of aggravated assault.

She received a sentence of two years of probation. These charges arose

from an incident where Emporium Borough Police Officers deployed a taser

at Moate three separate times while trying to subdue her son, Jacob Moate,

who was suspected of driving under the influence (“DUI”). On appeal, Moate

raises five separate challenges to her judgment of sentence, including a

claim of after-discovered video evidence and challenges to the weight and

sufficiency of the evidence at trial. After careful review, we affirm.

      At trial, officer Patrick Straub testified to the following events. On

August 9, 2014, the Emporium police department received reports that

Jacob Moate had driven his vehicle through a local school playground at a
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high rate of speed. Officers quickly pulled Jacob’s vehicle over in front of his

mother’s home and began questioning him.

      While police were continuing their investigation, Moate emerged from

her home and approached her son’s vehicle. At this time, officers were

requesting that Jacob alight from his vehicle to perform field sobriety

testing. Moate proceeded to place herself between officers and the driver’s

side door of Jacob’s vehicle, demanding to know why Jacob was under

arrest.

      Officers instructed Moate to move away from the vehicle, but Moate

refused. Jacob exited from his vehicle, but remained behind his mother.

While the standoff continued, Jacob climbed onto the hood of his vehicle and

ran across the street. Officers quickly apprehended Jacob in the yard of the

house across the street.

      Jacob resisted being placed in handcuffs and engaged in a scuffle with

officers. Moate approached the scuffle yelling, “Leave my son alone.” Officer

Straub warned her to stay away, but she continued on, approaching her son.

Officer Straub disengaged from Jacob and took Moate to the ground,

directing her to stay down. He then returned to assist in subduing Jacob.

      Another officer had succeeded in handcuffing Jacob when Moate

charged him, attempting to push the officer away from her son. Officer

Straub directed her to cease interfering and tried to pull her away from the

other officer.


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       At this point, Moate started striking and scratching officer Straub. He

deployed his taser, hitting Moate with one of the two barbs. She fell

backwards, and officer Straub approached her, informing her that she was

now under arrest.

       Moate pulled the taser barb out of her chest and proceeded to attack

the officer that was subduing her son. The melee around Jacob resumed,

and officer Straub utilized the “drive stun” function1 of his taser to secure

Moate’s compliance. He shocked her in the back of the neck while she was

face down on the ground.

       After being shocked in the back of her neck, Moate declared, “Okay. I

give up.” Officer Straub turned his taser off. As soon as the taser was off,

Moate attempted to roll back over and engage with officer Straub again. He

re-activated the taser and shocked Moate again. At this point, Pennsylvania

State Troopers and additional Emporium police officers had arrived on the

scene and ended the fracas.

       In her first issue on appeal, Moate contends that she is entitled to a

new trial due to the discovery, on the eve of trial, of video recordings of the

event taken by officer Straub’s taser. At that time, the Commonwealth

____________________________________________


1
  Officer Straub testified that this function utilizes “an electrical current that
fluctuates on the front of the taser, and you press that against the body part
or body area that you can.” The “drive stun” function does not incapacitate
the target, but causes pain. He described the “drive stun” function as a pain
compliance method. See N.T., Jury Trial, 8/12/15, at 61-62.



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presented Moate with a DVD of video taken from the taser. Officer David

Merritt testified that the camera on the taser would start recording when the

officer turned the taser on. See N.T., Post-Verdict Hearing, 12/9/15, at 18.

The taser would stop recording if it was subsequently turned off. See id.

     In a post-verdict petition for extraordinary relief, Moate argued for a

new trial based upon the still photographs derived from the DVD. She

argued    that   the   Commonwealth’s   late   production,   coupled   with   the

compressed nature of the video, did not afford her an opportunity to utilize

the photographs at trial. She asserted that the photographs reveal that she

was not engaged with officers, and instead, was merely standing nearby

peacefully. She moved a box full of the photographs into evidence. The trial

court denied her post-verdict petition, and her subsequent post-sentence

motion.

     On appeal, Moate argues that the late production of the taser videos

necessitates a new trial. However, we cannot reach this issue. Neither the

photographs nor the DVD from which they were derived are in the certified

record on appeal. It is an appellant’s responsibility to ensure that the

certified record contains all the items necessary to review his claims. See,

e.g., Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super. 2016);

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008). “When a

claim is dependent on materials not provided in the certified record, that

claim is considered waived.” Commonwealth v. Petroll, 696 A.2d 817, 836


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(Pa. Super. 1997) (citation omitted). As we are unable to review the

contents of the recorded video from the taser, Moate has failed to preserve

this issue for our review. Her first issue on appeal is therefore waived.

      Next, Moate argues that her two convictions for resisting arrest are

against the weight of the evidence presented at trial.

      The weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact.
      Thus, we may only reverse the lower court’s verdict if it is so
      contrary to the evidence as to shock one’s sense of justice.
      Moreover, where the trial court has ruled on the weight claim
      below, an appellate court’s role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotation marks and citations omitted).

      Moate argues that “[t]he evidence proffered by the police and other

Commonwealth witnesses was contradictory and designed only to avoid civil

accountability for the extraordinary use of force on a middle-aged, disabled




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female.” Appellant’s Brief, at 21-22. In reviewing this challenge, the trial

court described its reasoning as follows.

      The verdicts were not astonishing or fanciful and did not outrage
      a sense of justice. The verdicts were amply supported by
      relevant and competent evidence of sufficient weight. [Moate’s]
      positing of her interpretation of the evidence is entirely
      ineffectual and inconsequential. While [Moate] has promoted
      that there was no disparate testimony regarding [her] actions
      during a police investigation into a criminal episode involving her
      son, it was solely within the province of the jury as the finders of
      fact to assess the evidence and determine which of the evidence
      it found to be competent and credible.

      The evidence demonstrated that on May 9, 2014, Officers Alex
      Burkett and Patrick Straub of the Emporium Borough Police
      Department were in the course of investigating an incident
      involving a vehicle operated by defendant’s son, Jacob Moate.
      After the officers had received an alert to be on the lookout for a
      teal Mercury Topaz being operated erratically, a traffic stop of
      that vehicle was made in the driveway of the residence of both
      [Moate] and Jacob Moate, who was the operator and sole
      occupant of the automobile. As a result of their investigation and
      interaction with Jacob Moate, the police charged him with [DUI],
      resisting arrest, and institutional vandalism. During the course of
      the investigation in the Moate driveway, [Moate] exited the
      house and came into close proximity to both the officers and her
      son. A physical confrontation then ensued which ultimately led to
      the filing of the charges against [Moate]. The dynamics of that
      confrontation were obviously at issue, but the jury was able to
      view the demeanor and countenance of the various witnesses
      and attribute the appropriate weight to all of the evidence. The
      testimony included not only that of Officers Straub and Burkett,
      but also of Emporium Police Officer and now Chief, David Merritt.
      The defendant, her husband, Richard G. Moate, and son Jacob
      Moate also testified. Moreover, neutral third-party witnesses
      testified as to their observations, including Melinda Arbritus,
      Jerry Crosby, and Harold Grimm. …

      This court has duly considered the applicable standard to be
      utilized in the analysis of the defendant’s weight of [the]
      evidence claim. The court also had the benefit of presiding over


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      the August 12, 2015 jury trial. [Moate’s] contention that the
      weight of the evidence was inadequate is untenable[.]

Trial Court Opinion, 6/21/16, at 3-4.

      We can discern no abuse of the trial court’s discretion in the above

quoted reasoning. The court’s factual summary is amply supported by the

record, and the conclusions are reasonable. As such, Moate is due no relief

on her second issue.

      In her third issue on appeal, Moate argues that the evidence

supporting her convictions for resisting arrest was insufficient. Specifically,

she claims that she could not be convicted of resisting arrest because there

was no evidence that she had created “a substantial risk of bodily injury to

anyone.” Appellant’s Brief, at 22.

      Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a 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

crimes   charged      is   established   beyond   a   reasonable   doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).




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      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).

      Here, Moate was found guilty of two counts of resisting arrest.

      The offense of resisting arrest is established when a ‘person …
      with the intent of preventing a public servant from effecting a
      lawful arrest or discharging any other duty … creates a
      substantial risk of bodily injury to the public servant or anyone
      else, or employs means justifying or requiring substantial force
      to overcome the resistance.’

Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)

(quoting 18 Pa.C.S.A. § 5104) (emphasis supplied).

      Moate focuses on the portion of the statute that requires the creation

of a substantial risk of bodily injury, as she discounts the alternative basis

for a conviction, the use of means justifying substantial force to overcome

the resistance to arrest. Moate contends that the jury could not have found

that she employed such means since the jury found her not guilty of

aggravated assault. Furthermore, she asserts that such a finding would

“ignore[] all of the photographic and video evidence, it ignores substantial

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parts of testimony, and it ignores the fact that [Moate] is a middle-aged,

disabled female.” Appellant’s Brief, at 23.

      However, we agree with the trial court that none of Moate’s

contentions defeat the jury’s prerogative to believe the testimony of officer

Straub, who testified that Moate continued to resist arrest even after she

had been hit by the taser twice. The jury was certainly entitled to conclude

that these actions “justified substantial force,” in the form of officer Straub

first taking Moate to the ground, and then deploying the taser multiple

times. Moate’s third issue on appeal merits no relief.

      Next, Moate contends that the trial court erred in denying her request

to sequester officer Straub during opening arguments. “The purpose of

sequestration is to prevent a witness from molding his testimony with that

presented by other witnesses.” Commonwealth v. Stevenson, 894 A.2d

759, 767 (Pa. Super. 2006) (citation omitted). The power to sequester

witnesses is discretionary with the trial court. See Pa.R.E. 615. Thus, “a

request for sequestration must be specific and supported by a showing that

the interests of justice require it.” Stevenson, 894 A.2d at 767 (citation

omitted).

      Moate believes that officer Straub had a motive to perjure himself in

order to insulate himself and his department from civil liability for excessive

use of force. Pursuant to this belief, she requested that officer Straub be

sequestered:


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      [Defense Counsel:]      … And your Honor, just a couple of other
      small things. Could I ask that – obviously will be a sequestration
      of defense but also with regard to Officer Straub, I would
      request that he be sequestered for the whole trial because –

      THE COURT:       He’s the arresting officer. It’s appropriate that
      he be here, unless the Commonwealth would acquiesce.

      [Defense Counsel:]       Your Honor, well, I would request that he
      be called first then by the Commonwealth because otherwise his
      testimony could be tainted.

      THE COURT:        And that’s fine.

N.T., Jury Trial, 8/12/15, at 14-15.

      The trial court concludes that Moate waived this claim, as she

acquiesced to having officer Straub testify first. Straub counters that the trial

court had already made its ruling on his request for sequestration, and that

she made a second request to limit the damage caused by that ruling.

      While Moate’s construction of the exchange appears to be the most

accurate, we note that Stevenson requires a finding of waiver. In that case,

the defendant challenged the trial court’s refusal to sequester an officer

Absten. The Stevenson panel quoted the following exchange:

      [Appellant’s attorney]: Move to sequester, Your Honor.

      [Commonwealth attorney]:         Can      I   have   Officer   Absten   to
      assist?

      The Court: [Officer Absten] can stay, and everyone else is
      sequestered.

Stevenson, 894 A.2d at 767. The panel noted that “Appellant’s attorney

raised no objection at this point to the trial court’s ruling that Officer Absten


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could remain at counsel table while Officer Prilla, the Commonwealth’s first

witness, testified.” Id. Based upon these circumstances, the panel concluded

that Stevenson had waived “his argument that the trial court had abused its

discretion by refusing to sequester the two officers at trial[.]” Id.

      We can find no way to distinguish the objection lodged by Moate in the

present case from the objection quoted in Stevenson. In both instances,

counsel requested sequestration. In both instances, the trial court denied the

request. The Stevenson panel required an explicit objection to that ruling

on pain of waiver. We therefore conclude that Moate’s argument on appeal is

waived.

      In her fifth and final issue on appeal, Moate argues that the trial court

should have granted a mistrial when the district attorney improperly

inflamed the jury against her. Specifically, Moate takes issue with the district

attorney’s closing argument that “this is not Ferguson. Almost take it

personal[ly] that the defense lawyer would make that analogy what’s going

on in the country. This isn’t. This is our home.”

      It is well established that a prosecutor is permitted to vigorously
      argue his case so long as his comments are supported by the
      evidence or constitute legitimate inferences arising from that
      evidence.

          In considering a claim of prosecutorial misconduct, our
          inquiry is centered on whether the defendant was
          deprived of a fair trial, not deprived of a perfect one.
          Thus, a prosecutor’s remarks do not constitute reversible
          error unless their unavoidable effect ... [was] to prejudice
          the jury, forming in their minds fixed bias and hostility
          toward the defendant so that they could not weigh the

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         evidence objectively and render a true verdict. Further,
         the allegedly improper remarks must be viewed in the
         context of the closing argument as a whole.

Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted).

     After reviewing the transcripts, we agree with the trial court’s

reasoning:

     This statement was not made in a vacuum however. Appellant’s
     counsel had previously commented about the use of force by the
     police in the United States being “…a hot-button issue. It’s a hot
     topic, whether police can use this kind of force on people without
     there being at least kind of pushback from the community or
     from jurors or from anybody else.” It was thus appellant’s
     counsel who opened the discussion regarding the scope and
     timeliness of the issue of the use of force by the police and the
     response by the Commonwealth’s attorney was not so blatant
     and egregious so as to inflame the jurors and detract from their
     function as neutral and objective finders of fact. Indeed, alleged
     improper comments by the prosecutor must be viewed within
     the context of the conduct and remarks of the defense attorney.
     In the context of the case at bar, the prosecutor’s comments
     came nowhere near warranting a mistrial.

     …

     It was not the Commonwealth’s attorney who was the promoter
     of the issue of whether the force utilized by the police in general
     was a consideration for the jury, but rather defendant’s counsel
     who drew the attention of the jurors to the issue and suggested
     some form of resistance or “pushback” to the use of force by the
     community at large or jurors in particular. In that context and
     despite the subliminal suspicion of outsider isolation and home
     field advantage, the comments of the District Attorney were not
     tantamount to inciting partiality, predisposition and bias or to
     otherwise detract from the jury’s capacity to fairly and
     impartially weigh all the evidence and render a verdict based
     solely on the evidence.



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Trial Court Opinion, 11/14/16, at 4-5. Also, the jury’s not guilty verdict on

the charge of aggravated assault, the most serious charge levied at Moate,

undercuts Moate’s assertion that jury did not decide this case on the facts

presented to it. If the jury had been inflamed with prejudice towards out-of-

county counsel, it would likely have convicted Moate of the most serious

charge against her. We find no abuse of discretion in the trial court’s

reasoning, and therefore Moate’s final issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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