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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 ...

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