March 11, 2014
COMMONWEALTH OF PENNSYLVANIA
PETER BAYNES, Appellant
Appeal from the Judgment of Sentence, July 12, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0006305-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.
FORD ELLIOTT, P.J.E.
Peter Baynes appeals from the judgment of sentence entered on July 12, 2012, in the Court of Common Pleas of Allegheny County in relation to his convictions of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), terroristic threats, 18 Pa.C.S.A. § 2706(a)(1), unlawful restraint, 18 Pa.C.S.A. § 2902, and false imprisonment, 18 Pa.C.S.A. §2903. We affirm.
The disturbing facts, as aptly stated by the trial court, are as follows:
Anna Gomez and [appellant] dated for approximately four years and resided together in the first floor apartment at 317 Natchez Street in the Mount Washington area of the City of Pittsburgh, Allegheny County. In the late evening hours of Friday, April 22, 2011, [appellant] approached Gomez and accused her of having affairs with their landlord, his best friend, and several other men. When Gomez denied these allegations [appellant] grabbed her, threw her onto the bed, and ripped off her clothes. [Appellant] climbed on top of her as he said, "We're going to get to the bottom of this." [Appellant] restrained Gomez by kneeling on her shoulders, and punched her repeatedly in the face. Gomez pleaded for [appellant] to stop.
[Appellant] ran into another room to retrieve an aluminum baseball bat ("bat"). Upon returning he stood over her on the bed, holding the bat extended above his head with both arms. [Appellant] said, "Now you are going to tell me the truth. Don't move. We are going to get to the bottom of this." When he started to ask her questions about the alleged affairs, she was able to get to the foot of the bed and attempted to call 911. [Appellant] hit her twice in the head with the bat: once on top of her head and once across her face. This knocked her onto the floor and caused blood to run from her head.
With Gomez lying on the ground on her back, [appellant] stood over her with the bat and demanded that she tell him the truth. Gomez rolled over in an attempt to stand up and run away. [Appellant] stopped her by hitting her with the bat on her back, arms, elbow, and legs. Gomez tried to stand up and lost consciousness. When Gomez awoke she was on the bed and [appellant] told her to wash herself. She stood up and tried to walk, but lost consciousness again. [Appellant] threw a glass of cold liquid on her face to wake her up and said, "Go ahead and get washed off, I am tired of you playing."
She made her way to the bathroom, losing consciousness along the way. At some point [appellant] picked her up and "tossed" her into the bathtub. The shower was running and [appellant] told her to clean herself. Gomez rinsed the blood off her face as [appellant] said, "Look what you made me do to you. Why don't you just listen to me?" Gomez stood up and lost consciousness again.
When she next awoke, [appellant] was holding her by the neck against the bathroom window. He dropped her onto the floor and tried to kick her in the face to make her stand up. She blocked his foot with her hand and again lost consciousness. She next awoke in bed with a towel wrapped around her head. The apartment was quiet, it was dark outside, and her cat was lying on her.
She awoke Sunday morning to [appellant] punching her and yelling at her. Desperate for the attacks to stop, Gomez said, "Yes, I have had affairs with everybody." [Appellant] stopped hitting her and instead asked details about the affairs. Gomez made up stories to pacify [appellant]. Later that day [appellant] pushed Gomez against the bedroom window, which overlooked the front porch. She broke off all of the blinds as she fell to the floor, and at his direction she crawled towards the bed.
City of Pittsburgh police officers Troy Signorella, Ryan Young, and Dale Ruble were dispatched to 317 Natchez Street late that Sunday afternoon on a domestic violence call. The officers knocked on the front and back door with no response. Officer Young remained at the back door while [O]fficer Signorella proceeded to the front porch, where he was able to look in the window.
When [appellant] saw [O]fficer Signorella looking in the bedroom window he told Gomez, "I told you that if the police ever got here I was going to kill you." [Appellant] ran between the bedroom and the living room looking for the bat. Gomez remained on the floor between the bed and the window, covered in a sheet. She had blood on her face and arms, there was blood on the wall, bed, and floor around her. Officer Signorella radioed for a medic, signaled to the officers Gomez's condition and location, and told [appellant] to let them in.
[Appellant] complied and opened the rear door for [O]fficer Young. The apartment was ransacked and bloody, with the heaviest concentration of blood in the bedroom. Officer Young proceeded directly to the bedroom to check on Gomez. Officer Signorella remained next to [appellant], who repeatedly yelled at Gomez, "Tell me who did this to you."
Officer Young updated the en route medics that Gomez had several head injuries, extreme swelling and bruising on her body, and difficulty breathing. Gomez told [O]fficer Young that [appellant] attacked her. Officer Young indicated to [O]fficer Signorella to arrest [appellant], and [O]fficer Signorella handcuffed [appellant] to take him outside.
Officer Ruble noticed dried blood spots on [appellant's] shirt and a swollen right hand, and transported him to a different hospital than Gomez. [Appellant] gratuitously remarked en route that his hand was swollen from punching walls. [Appellant] was released from the hospital that day and transported to the Allegheny County Jail and charged as noted hereinabove. En route he repeatedly told [O]fficer Ruble that Gomez had been "seeing his best friend."
Medics transported Gomez to the hospital. She had not eaten nor changed clothes since Friday evening. Gomez had a pre-existing condition (Parkinson's disease) which complicated her treatment and condition. Due to previously implanted deep brain stimulators that interrupted EKG testing, the hospital was unable to ascertain what brain damage Gomez may have suffered as a result of this attack. Gomez suffered multiple ecchymosis throughout her body, two fractured vertebrae, three fractured ribs, a pneumothorax, facial bone contusions, acute renal failure, and four forehead lacerations. She was treated with fluid resuscitation and her lacerations were stapled. The hospital released Gomez five days later on April 29, 2011, but she was readmitted on May 4, 2011, for an infection in her right forehead wound, a right ankle abscess, right kneecap fracture, and post traumatic stress disorder. The infection and abscess were surgically treated. Gomez was released to an assisted living home on May 12, 2011, where she spent one month. At the time of trial Gomez had scars and lumps on her forehead, nerve damage in her eyes and face, required the use of a cane or walker to ambulate, and it was apparent that the injuries she endured were severe and enduring.
Trial court opinion, 4/4/13 at 4-8 (citations omitted).
Appellant testified at trial and claimed that he did not commit the assaults against the victim. He averred that the beating occurred during a two-hour period of time when he left the apartment to give the victim time to decide whether she wanted to stay with appellant or leave to have an affair with his best friend. Appellant testified that he sat on Grandview Avenue in Mt. Washington for about two hours looking at the City of Pittsburgh and when he returned home, he found the house ransacked and bloody, and the victim terribly beaten. He testified that the victim said that "they" beat her and stole some money. Appellant insisted that the victim would not identify her attackers as they were a "motorcycle gang." He also claimed that the victim would not let him call an ambulance.
Following a jury trial before the Honorable Edward J. Borkowski, appellant was found guilty of the aforementioned crimes. On July 12, 2012, Judge Borkowski sentenced appellant to an aggregate term of 13 to 26 years' imprisonment. A timely notice of appeal was filed on December 27, 2012. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. The following issues have been presented for our review:
I. DID THE TRIAL COURT ERR IN GRANTING THE COMMONWEALTH'S MOTION IN LIMINE ALLOWING IT TO PRESENT EVIDENCE OF [APPELLANT'S] ALLEGED PRIOR ASSAULTS AGAINST THE COMPLAINANT INSOFAR AS THE PURPORTED INCIDENTS WERE REMOTE IN TIME, UNCORROBORATED, AND UNRELATED, AND THEREFORE, NOT RELEVANT; AND EVEN IF RELEVANT, WAS THE PROBATIVE VALUE OF THIS EVIDENCE OUTWEIGHED BY ITS PREJUDICIAL IMPACT?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY FINDING THAT A GUILTY VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE WHEN THE TESTIMONY OF THE COMPLAINANT AT TRIAL, THE ONLY PERSON WHO COULD TESTIFY ABOUT THE INCIDENT, WAS UNRELIABLE DUE TO HER USE OF COCAINE, THE EFFECTS OF HER HEAD INJURY, HER PRE-EXISTING MEDICAL CONDITION, AND THE FACT THAT SHE HAD A REASON TO FABRICATE HER STORY; AND WHEN THE COMPLAINANT'S TESTIMONY WAS NOT SUPPORTED BY OTHER FACTS, SUCH THAT THE VERDICT ONLY COULD HAVE BEEN BASED ON MERE SURMISE AND CONJECTURE?
Appellant's brief at 4.
Appellant first claims that the trial court erred in granting the Commonwealth's motion in limine seeking the admissibility, through the testimony of the victim, of two prior instances where appellant attacked her. Appellant claims the testimony purported to show appellant's propensity towards violence and would be more prejudicial than probative.
Our standard of review is as follows:
Admission of evidence . . . rests within the sound discretion of the trial court, which must balance evidentiary value against the potential dangers of unfairly prejudicing the accused, inflaming the passions of the jury, or confusing the jury. We reaffirm our confidence in our trial judges to oversee the presentation of evidence so that overtly passionate, intentionally biased and inflammatory material is kept out of the courtroom. We will reverse a trial court's decision as to admissibility of evidence only if [Appellant] sustains the heavy burden to show that the trial court has abused its discretion.
Commonwealth v. Bryant, __ Pa. __, __, 67 A.3d 716, 726 (2013) (citations and internal quotation marks omitted).
Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact. Commonwealth v. Powell, 598 Pa. 224, 246, 956 A.2d 406, 419 (2008).
In the case at bar, the Commonwealth sought to introduce two prior instances of physical violence perpetrated by appellant against the victim arguing they were relevant to prove motive, intent, and identity. One incident took place in April of 2008 wherein a verbal argument turned physical. Appellant punched the victim, grabbed her, pulled her hair, and choked her. She sustained bruises on her eye, neck, back, and side. She did not report the assault to authorities or her family. The second incident was in January of 2011. On this occasion, appellant became angry with the victim and grabbed her by the neck and dragged her around. The victim twisted her knee and tore her ACL. After the hearing, the court granted the motion and stated it would provide the jury a cautionary instruction.
It is clear that the admitted prior bad acts evidence was relevant as appellant claimed at trial that he did not commit the assaults on the victim. The prior bad acts evidence refuted these self-serving assertions and go to identification, ill-will, and malice tending to show criminal intent. Upon the arrival of the police, appellant immediately suggested someone else was responsible for the attack.
Our supreme court has explained that in order to prove intent, prior bad acts may be used as long as they: (1) are similar to the incident in question, (2) yielded a similar result, and (3) are established by substantial evidence before trial. Commonwealth v. Donahue, 519 Pa. 532, 543, 549 A.2d 121, 127 (1988). "Substantial evidence" does not mean proof beyond a reasonable doubt, but "clear and convincing" evidence that the prior bad act occurred. Id. at 543-544, 549 A.2d at 127. "The clear and convincing standard requires evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Commonwealth v. Meals, 590 Pa. 110, 121, 912 A.2d 213, 219 (2006) (citation and quotation omitted).
In the case at bar, we conclude that testimony of appellant's prior bad acts was properly admitted as evidence of his intent on the night in question. The prior assaults were similar to the assault in question and yielded a similar result, injuries and bruising. The prior assaults were established by the testimony of the victim herself, whom the jury clearly found to be credible. See Donahue, 519 Pa. at 544, 549 A.2d at 127 (finding evidence that the defendant had allegedly committed uncharged acts of child abuse against his son several years ago to be admissible against the defendant in his trial for abusing his girlfriend's son).
Nor can we find the two prior bad acts remote in time. The law on remoteness as bearing on evidentiary value in this type of situation has been stated clearly. In Donahue, the court noted that three years is not unduly remote. On the furthest extreme, the Supreme Court of Pennsylvania has gone back as far as 17 years in allowing evidence in a domestic violence situation. A husband had brutally murdered his wife, and evidence of a beating administered 17 years prior was properly admissible as evidence of ill-will and malice tending to show criminal intent. Commonwealth v. Patskin, 372 Pa. 402, 413-414, 93 A.2d 704, 712 (1953). Thus, appellant's suggestion of remoteness fails. Clearly, this evidence is admissible, and the fact-finder could properly determine its weight.
We also agree that the probative value of the prior bad acts evidence outweighed its potential for prejudice. The evidence strongly suggests that appellant intentionally injured the victim and was necessary to combat his defense that the victim sustained the injuries from another party. The evidence was not likely to "rouse the jury to overmastering hostility, " as the victim did not provide detailed descriptions of the prior assaults and just described their occurrences.
Moreover, the trial court gave the jury cautionary instructions concerning the prior bad acts evidence; the court advised the jury of the limited purpose for which the evidence was introduced and that they could not consider the evidence as proof that appellant was a person of bad character or had criminal tendencies. We conclude that these instructions ameliorated any undue prejudice caused by the introduction of the prior bad acts. See Commonwealth v. Claypool, 508 Pa. 198, 206, 495 A.2d 176, 179-180 (1985) (finding that giving of cautionary instructions was sufficient to overcome prejudicial effect of introduction of prior bad acts evidence). No error exists.
Next, appellant avers that the convictions were against the weight of the evidence.
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained[, ] [t]he term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, __ Pa. __, __, 64 A.3d 1049, 1055 (2013) (emphasis omitted) (citations omitted).
There was no abuse of discretion by the trial court. Appellant essentially asks this court to reassess the credibility of the witnesses. However, it is well settled that the court cannot substitute its judgment for that of the trier of fact. Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super. 2008). Further, the finder of fact was free to believe the testimony of certain of the Commonwealth's witnesses and to disbelieve the testimony of another. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (the finder of fact is free to believe all, none, or part of the testimony presented at trial). Again, "it is for the fact-finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness's testimony." Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.Super. 2008) (citation omitted).
As the trial court explained, the jury heard testimony from the victim as she described appellant's actions and the extent of the injuries she suffered at his hand. See Commonwealth v. Forbes, 867 A.2d 1268, 1273-1274 (Pa.Super. 2005) (verdict not against the weight of the evidence where the jury believed victim's testimony and physical evidence corroborated that testimony). The verdicts were amply supported by the record and the verdict did not shock the conscience of the trial court. (Trial court opinion, 4/4/13 at 14.) The denial of the weight of evidence claim was not an abuse of discretion.
Judgment of sentence affirmed.