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[U] Commonwealth v. Harden

Superior Court of Pennsylvania

February 10, 2014



Appeal from the Judgment of Sentence of July 12, 2012 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0002891-2011




David Harden appeals from his July 12, 2012 judgment of sentence, which was imposed after a jury found him guilty of aggravated assault- causing serious bodily injury, simple assault, and recklessly endangering another person.[1] We affirm.

The evidence presented to the jury at trial supports the following factual history. On April 16, 2011, Charles Bizzarro attended a football game in Erie, Pennsylvania. After the game, Bizzarro, his sister Andrea, Jason Tomczak, Daniel Fiore, and others went to Sullivan's Tavern in Erie to have some drinks. When they arrived, Harden and his friend Anthony D'Onofrio were already inside.

Inside the tavern, Tomczak was confronted by Danielle Fragale, a woman that Tomczak had been dating. Fragale sought to retrieve a key from Tomczak. When Tomczak resisted, an argument ensued. D'Onofrio, a friend of Fragale's, attempted to intervene in the dispute and asked Tomczak to return the key to Fragale. D'Onofrio's intervention led to a loud verbal confrontation between the two men. The argument caught the attention of Joshua Grabski, the bouncer on duty. In an effort to defuse the situation, Grabski, who was familiar with Bizzarro, approached Bizzarro and asked him to take Tomczak out of the bar and to leave. Bizzarro agreed, and he, Tomczak, Fragale, and Fiore left the tavern.

As they walked through the parking lot to their vehicle, D'Onofrio came out of the bar and approached the group aggressively. Within ten to fifteen seconds from the moment Bizzarro's party left the bar, D'Onofrio had caught up with them and challenged Tomczak to a fight. Bizzarro stepped in and told D'Onofrio that they were not interested in fighting, and that they only wanted to leave. D'Onofrio, whose actions initially were directed at Tomczak, turned his focus to Bizzarro and threw a fake punch at him. Bizzarro backed up in a defensive posture. At that moment, Harden, who had left the bar independently of D'Onofrio, approached the scene from the side and blindsided Bizzarro with a single blow to the side of the head, causing Bizzarro to drop to the ground. Fiore then tackled Harden, and Tomczak and D'Onofrio engaged in a skirmish. Bizzarro meandered around, injured and attempting to avoid any further damage.

After the fights broke up, Bizzarro and his friends made their way to their vehicle. However, before they could get in and drive away, D'Onofrio and Harden started walking towards the car yelling and screaming, attempting to re-engage in a fight. Fiore told them that Bizzarro was seriously hurt and that the fight was over. Undeterred, Harden and D'Onofrio continued to the car and another small scuffle ensued.

Bizzarro eventually drove away and went to his mother's house. In the meantime, the police arrived at the scene and met D'Onofrio and Harden. Because D'Onofrio was too intoxicated to drive, the police instructed Harden to drive the car. The pair then preceded to a local McDonald's restaurant, where they were captured on a surveillance video reenacting the fight with friends and high-fiving each other in celebration.

While Harden and D'Onofrio were celebrating, a friend of Bizzarro's mother convinced Bizzarro to go to the hospital. There, Bizzarro was treated for severe injuries to his face. He received twenty-four staples in his head, multiple stiches, and had to have a tube inserted into his skull to relieve the pressure from the internal swelling and bleeding caused by Harden's blow. Additionally, Bizzarro required an orbital socket reconstruction. Four plates were inserted surgically into his face. Months passed before Bizzarro was able to regain feeling on the side of his face.

The police made extensive efforts to locate Harden. Various officers attempted to track him down by going to his house, contacting relatives, and employing the assistance of the United States Marshals Service and a neighborhood action team, all to no avail. Eventually, Harden's mother contacted him by phone and put him in contact with the police. However, after one conversation, Harden never contacted the police again. Charges were filed against Harden, but he failed to appear for his scheduled preliminary hearings. A warrant was issued for Harden's arrest, but the authorities were unable to serve the warrant, despite making several attempts.

In August 2011, months after the fight, Harden ran a red light and caught the eye of a police officer. The officer activated his siren and emergency lights, but Harden refused to stop his vehicle. Instead, Harden led the officer on a high-speed chase that ended with a collision between Harden's vehicle and the police cruiser. Harden jumped out of the car and led the officer on a foot chase. Harden eventually was apprehended attempting to hide in a wooded area.

The Commonwealth charged Harden with the above-listed offenses. Trial ensued.

D'Onofrio, who testified as a hostile witness for the Commonwealth, insisted that Bizzarro, Fiore, and Tomczak had surrounded him in the parking lot. He claimed that the fight began when Tomczak tackled him to the ground. Only then, according to D'Onofrio, did Harden punch Bizzarro. However, the Commonwealth showed a surveillance video of the fight, which demonstrated unequivocally that D'Onofrio's version of events was inaccurate. The video showed that the first physical contact occurred when Harden appeared from the side and struck Bizzarro unawares in the side of the face. Only then did Tomczak tackle D'Onofrio.

Testifying in his own defense, Harden stated that, when he exited the bar, he observed his friend D'Onofrio surrounded by Bizzarro, Tomczak, and Fiore, each of whom had clenched fists and appeared ready to assault D'Onofrio. Harden asserted that he struck Bizzarro only as a quick reaction to a situation that he believed to be extremely dangerous to D'Onofrio.

Prior to trial, Harden filed a motion in limine seeking to preclude the Commonwealth from implying or suggesting that Harden used a weapon or instrument in the assault. There being no evidence to support such a theory, the trial court granted Harden's motion. Nonetheless, during closing arguments, the Commonwealth alluded to the possibility that the jury might infer that Harden had something in his hand when he struck Bizzarro. Harden's counsel objected immediately. The trial court sustained the objection, struck the comment, and instructed the jury to ignore the comment. The arguments continued and, at their conclusion, the jury retired to deliberate.

The jury quickly rejected Harden's version of events and found Harden guilty of the aforementioned crimes. On July 12, 2012, the trial court sentenced Harden to sixty to one hundred and twenty months' incarceration on the aggravated assault charge. The court further sentenced Harden to concurrent twelve to twenty-four months terms of incarceration on each of the remaining counts.

On July 20, 2012, Harden filed a motion to extend the time period to file post-sentence motions. The trial court granted the motion. Thus, on August 20, 2012, Harden filed timely post-sentence motions. On January 10, 2013, the trial court denied the motions.

On February 8, 2013, Harden filed a notice of appeal. In response, the trial court directed Harden to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 4, 2013, Harden timely filed a Rule 1925(b) statement. On May 8, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Harden raises the following two questions for our consideration:

A. Whether the trial court abused its discretion in allowing testimony regarding [Harden's] alleged "flight" in at trial when its relevance was unrelated to the present case?
B. Whether the district attorney in making statements regarding a "possible use of a weapon" committed prosecutorial misconduct after any mention of a weapon was expressly precluded by a motion in limine?

Brief for Harden at 4.

In his first issue, Harden argues that the evidence related to his flight from police, specifically the high-speed chase and Harden's flight on foot thereafter, was irrelevant. Harden asserts that the trial court placed no boundaries upon the Commonwealth in introducing this evidence, and that such latitude was unwarranted as the Commonwealth failed to establish the relevance of this evidence to the charges for which Harden was being tried. Brief for Harden at 8. Additionally, Harden maintains that the evidence was irrelevant because the events in question occurred approximately four months after the fight at Sullivan's Tavern. Id. at 10. Thus, Harden contends, the trial court abused its discretion in permitting the Commonwealth to introduce this evidence at trial.

Because Harden did not object to this evidence at trial, we find this issue to be waived.[2] It is well-settled that "a defendant's failure to object to allegedly improper testimony at the appropriate stage . . . constitutes waiver." Commonwealth v. Adams, 39 A.3d 310, 319 (Pa.Super. 2012) (quoting Commonwealth v. Molina, 33 A.3d 51, 55 (Pa.Super. 2011) (en banc)); see Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) ("It is axiomatic that issues are preserved when objections are made timely to the error or offense."); Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Instantly, Harden did not object at any relevant time at trial to the flight evidence as such, or to latitude afforded to the Commonwealth in introducing the evidence. Thus, this issue is waived.

In his second issue, Harden argues that the prosecutor committed misconduct by mentioning in his closing argument the possibility that Harden used a weapon when he struck Bizzarro, despite a pre-trial ruling preventing the Commonwealth from doing so. Harden objected to the prosecutor's comments, and subsequently requested a mistrial. The trial court denied Harden's request.

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. Lettau, 955 A.2d 360, 363 (Pa.Super. 2008) (internal citations and quotations 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 deprive the appellant of a fair and impartial tribunal." Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa.Super. 1998 (en banc) (quoting Commonwealth v. Montgomery, 626 A.2d 109, 112-13 (Pa. 1993)).

"In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they are made." Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006) (citation omitted). "Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial." Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa Super. 2009) (citing Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998)). Moreover, we are mindful of the following precepts:

It is well-settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super. 2008) (internal citations and quotations omitted).

With these principles in mind, we turn to the contested statement and the events that transpired thereafter:

[PROSECUTOR]: The only other thing that I want to mention about this aggravated assault is it may come into question, well, his injuries were very serious. Were they caused by one punch? It's not possible that one punch – one punch could have done so. It happened. Everybody testified this was the cause. It's possible. And it would be a reasonable inference drawn from the conclusion of the facts that possibly – I can't prove it. We have not alleged any evidence of it. But it's a reasonable inference that possibly Mr. Harden had something in his hand –
[PROSECUTOR]: Your Honor, I believe that that's a relevant conclusion that we can make from the facts –
THE COURT: From the injuries that occurred?
[DEFENSE COUNSEL]: There's been no evidence presented in that. How can he argue that in summation?
THE COURT: It's sustained.
[DEFENSE COUNSEL]: Can you strike that –
THE COURT: It will be stricken. The jury is to ignore the statement of counsel. There's been no evidence whatsoever of any weapon. There has been significant injury but –
[PROSECUTOR]: In that regard, your Honor I would like to argue to the jury that it is indifferent whether there was a weapon used or not. That's my point. It makes no difference.
THE COURT: Okay, you can argue that.
[PROSECUTOR]: That's the only point as to why I bring that up. It makes no difference as to whether there was something in his hand or not. It's not an element that the Judge will charge you on. It's whether he caused serious bodily injury. And he did so knowingly, intentionally, recklessly manifesting extreme indifference to the value of human life.
[DEFENSE COUNSEL]: Your Honor, there's nothing I want to rebut. There was a pretrial ruling in this matter, that Judge Connelly granted there could be no mention of a weapon at the time of the trial. There was no mention of a weapon throughout the entire testimony, and the prosecutor mentions a weapon in his closing. I don't think a curative instruction is good enough. I'm asking for a mistrial. He knows he can't say weapon and he said it.
THE COURT: Well, I thought my curative instruction would have eliminated that, and I instructed the jury and caught – and remonstrated the prosecution and told the jury they are to ignore any statement.
So for those reasons I'm going to deny the motion. But it's on the record.

Notes of Testimony ("N.T."), 5/15/2012, at 80-81, 92-93.

Unquestionably, the prosecutor flirted with the boundaries of misconduct by referencing the possibility that Harden possessed a weapon during the Commonwealth's argument to jury, knowing full well that he was prohibited from doing so by a pre-trial ruling. Nonetheless, we cannot conclude from what transpired during closing arguments that the prosecutor's actions created the unavoidable effect of prejudicing the jurors such that Harden was deprived of a fair trial. The prosecutor's ill-advised comments immediately garnered an objection, which the trial court promptly sustained. Moreover, the court immediately struck the comment from the record, and directed the jury to ignore the comment entirely. A jury is presumed to follow a trial court's curative instructions. Commonwealth v. Small, 980 A.2d 549, 564 (Pa. 2009).

Additionally, the prosecutor did not attempt to argue that Harden did, in fact, utilize a weapon during the assault. To the contrary, the prosecutor sought, and obtained, permission from the trial court to make the argument that, even if the jury wondered whether a weapon was used due to the severe nature of the injuries caused by the blow, whether Harden possessed a weapon or used his hand was immaterial to the elements of the crimes for which Harden was charged. Because the prosecutor clearly was not attempting improperly to place a weapon in Harden's hands, we cannot conclude that Harden was prejudiced by the prosecutor's reference.

Between the trial court's curative instruction and the harmless nature of the prosecutor's comments, we discern nothing from the record from which to conclude that the reference prejudiced Harden in such a way that his trial was rendered unfair. Hence, the trial court did not abuse its discretion in declining to grant Harden's request for a mistrial. Judgment of sentence affirmed.

Judgment Entered.

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