from the Judgment of Sentence March 10, 2015 In the Court of
Common Pleas of Allegheny County Criminal Division at No(s):
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
Lewis Rush appeals from the March 10, 2015 judgment of
sentence entered in the Allegheny County Court of Common
Pleas following his convictions of four counts of aggravated
assault and one count each of disarming a law enforcement
officer; torture of a police animal; cruelty to animals;
resisting arrest; escape; possession of a weapon; and flight
to avoid apprehension, trial, or punishment. We affirm.
trial court set forth the following facts:
On January 28, 2014, [Allegheny County Sheriff's Office
Deputy John Herb] was assigned to the fugitive squad, and was
looking for . . . Rush. [Rush] had a warrant out for his
arrest for violating the conditions of his probation for a
prior conviction. Deputy Herb had received information that
[Rush] was in the Lawrenceville section of Pittsburgh. Once
Deputy Herb reached Butler Street in Lawrenceville, he
observed an individual who roughly matched the description of
[Rush]. That individual identified himself to the Deputy as
"John" and, shortly thereafter, lunged at the
Deputy's handgun. A physical struggle ensued. The Deputy
successfully pushed away from "John" and once he
had created some distance between them, the Deputy fired his
taser which struck "John" but had no effect.
Immediately thereafter, "John" charged the Deputy
and multiple punches were exchanged. At the conclusion of the
skirmish, "John" ran away from the Deputy. The
Deputy pursued, yelling at "John" that he was under
arrest. Deputy Herb eventually lost sight of
"John". Deputy Herb radioed a report of the
incident including the location. Approximately 40 minutes
later, Deputy Herb, who was still searching for [Rush],
became aware of a report of a suspicious male in a house at
3701 Butler Street.
Timothy McGill testified that he resided with his
fiancée Stephanie Kerr at 3701 Butler Street, . . . on
January 28, 2014. McGill testified that [he] awoke to a loud
knock on his door. [Rush] asked McGill to let him into the
apartment to use the bathroom. McGill refused and a heated
argument ensued, which ended when McGill slammed the door in
[Rush]'s face and locked him out. McGill dressed and went
down to the laundry room, where he heard a noise, and upon
further investigation discovered [Rush] inside, crouched down
with his back against the wall. McGill testified that he
became infuriated at that point. He said to [Rush] that he
had no business being in the building. [Rush] jumped to his
feet and McGill observed that [Rush] now had a knife in his
left hand. McGill retreated and saw [Rush] flee down the
steps but not out the front door. As the only other option
from that location would be the basement, McGill assumed
[Rush] had gone down the basement stairs. McGill exited the
building, took a position from which he could watch the front
door, called his fiancée, and told her to lock the
door and call the police. Ten to fifteen minutes later,
police officers arrived at the scene.
Officer [Daniel] Nowak yelled as loud as he could, three
times, "Pittsburgh Police." "Give up.
Surrender." He heard no response to any of the verbal
commands. Sergeant Henderson decided to send a canine officer
alone with his dog down to the basement. Officer Phillip
Lerza arrived at the scene with Rocco, his police dog.
Officer Lerza also yelled down to the basement three
timeswithout any response. Officer Lerza and
Rocco proceeded to the basement, followed by Officer Nowak
and Officer Robert Scott. Officer Lerza requested that
Officer[s] Nowak and Scott remain on the stairs while Officer
Lerza and Rocco searched the room.
As Officer Lerza and Rocco approached the rear part of the
basement, [Rush] jumped out from behind the right-hand side
of a doorway. Officer Nowak observed [Rush] immediately start
striking Rocco in a downward punching motion on his back.
[Rush] struck Rocco from behind with both fists. As Officer
Lerza moved toward [Rush] and Rocco, [Rush] disengaged with
Rocco and struck Officer Lerza with both hands, fists closed.
Officer Nowak yelled out and ran toward the melee. [Rush]
stopped fighting Officer Lerza and charged Officer Nowak. The
two collided at high speed. [Rush] swung wildly at Officer
Nowak with both hands. Officer Nowak blocked punches with his
left hand and struck [Rush] with the flashlight he held in
his right hand. During the combat, Officer Nowak injured his
finger and his ankle. Officer Nowak gained leverage, took
[Rush] to the ground and got on top of him. [Rush] continued
to fight, despite the Officer commanding him to stop
resisting. Officer Lerza grabbed [Rush]'s arms but could
not get handcuffs on [Rush] due to [Rush]'s resistance.
Officer [John] Baker arrived to assist Officers Lerza and
Nowak, but the three of them were still unable to handcuff
[Rush]. A sheriff's deputy came down with his
taser in dry stun mode. The Deputy tased [Rush] in the leg to
no effect. Officer Nowak pulled [Rush]'s shirt over his
head and instructed the Deputy to tase [Rush] on the
uncovered skin. After three applications of the taser to
[Rush]'s bare skin, [Rush] stopped fighting and the
officers were able to handcuff [Rush]. Once [Rush] was
restrained, Officer Nowak observed Officer Lerza pat Rocco
and discover that Rocco was covered in blood. Officer Nowak
saw a knife on the ground near [Rush] and observed Officer
Lerza pick up Rocco and run upstairs.
Officer Lerza rushed Rocco to a local veterinary hospital.
While Rocco was being examined, Officer Lerza noticed pain in
his shoulder. Upon closer examination, he discovered that he
had been stabbed through several layers of clothing.
Dr. Julie Compton, a Board-certified veterinary surgeon,
testified as an expert in veterinary surgery. Dr. Compton
testified that she worked at the Pittsburgh Veterinary
Specialty and Emergency Center (PVSEC), and in that capacity
became familiar with a dog named Rocco who had been stabbed.
Initially, Dr. Compton testified that she was at home but was
notified by her resident that Rocco was stabile [sic] with a
laceration about three centimeters long.
Forty-five minutes later, she received another call that
Rocco's condition had worsened. Dr. Compton arrived and
performed two surgeries. During the first surgery, she
discovered that Rocco's left kidney had sustained
irreversible damage. She also observed that his aorta and
vena cava were stripped of all soft tissues and the external
wound of three centimeters was approximately five inches long
internally. Two days later she performed a second surgery.
Rocco had liters of blood in his abdomen indicative of
extensive internal hemorrhaging. Dr. Compton could not find
the source of the bleeding. While attempting to find the
source of the bleeding, Dr. Compton discovered that
Rocco's spine had been fractured by the knife wound. She
stated that "to shred a piece of bone off a dog's
spine underneath inches of muscle would take a very large
amount of force." Dr. Compton said that Commonwealth
Exhibit 14, a pocket knife with the tip broken off, was
consistent with the weapon that caused Rocco's injuries.
She testified that the force required to break off the tip of
the blade would be similar to the force required to injure
the dog's spine. Further, she testified that the length
of the blade would have been sufficient to cause Rocco's
wounds, assuming the knife was fully inserted into the dog.
Rocco died on January 30, 2014 from hemorrhaging resulting
from a stab wound.
1925(a) Opinion, 2/16/16, at 3-4, 6-10 ("1925(a)
Op.") (internal citations omitted).
December 5, 2014, a jury found Rush guilty of the
aforementioned crimes. On March 10, 2015, the trial court
sentenced Rush to an aggregate term of 14 years and 10
months' to 36 years and 6 months' incarceration,
followed by 8 years' probation. Rush filed post-sentence
motions, which the trial court denied on April 16, 2015. On
May 15, 2015, Rush timely filed a notice of appeal.
raises the following issues on appeal:
I. Did the trial court err and abuse its discretion by
failing to disqualify a sitting juror who was openly weeping
during trial testimony regarding the death of the canine,
II. Did the trial court err in failing to give the requested
jury instruction for malice in relation to the Torture of a
Police Animal charge as the standard jury instruction fails
to define a necessary element?
III. Was the sentence of 178 to 438 months of imprisonment,
followed by 8 years of probation, manifestly excessive,
unreasonable, and contrary to the dictates of the Sentencing
Code, and thus an abuse of the sentencing court's
Rush's Br. at 7 (suggested answers omitted).
claims that during testimony concerning the death of Rocco
juror number six ("Juror No. 6") cried, which
demonstrated bias and partiality. He further claims that the
trial court did not question Juror No. 6 and that the
instructions given to the jury at the conclusion of trial
were insufficient to address the incident. Finally, Rush
argues his request to dismiss Juror No. 6 should have been
I, section 9 of the Pennsylvania Constitution, as well as the
Sixth Amendment to the United States Constitution, guarantees
a defendant the right to an impartial jury. Pa. Const., art.
I § 9; U.S. Const. amend. VI. "It is well settled
that the purpose of voir dire is to ensure the
empanelling of a fair and impartial jury capable of following
the instructions of the trial court." Commonwealth
v. Lesko, 15 A.3d 345, 412-13 (Pa. 2011). Our Supreme
Court has explained that a juror is not expected "to be
free from all prejudices[;] rather, the law requires them to
be able to put aside their prejudices and determine guilt or
innocence on the facts presented." Commonwealth v.
Smith, 540 A.2d 246, 256 (Pa. 1988).
decision to discharge a juror is within the sound discretion
of the trial court and will not be disturbed absent an abuse
of that discretion." Commonwealth v. Carter,
643 A.2d 61, 70 (Pa. 1994). "This discretion exists even
after the jury has been [e]mpanelled and the juror
sworn." Id. (emphasis added). Our Supreme Court
explained that "a finding regarding a venireman's
impartiality 'is based upon determinations of demeanor
and credibility that are peculiarly within a trial
[court]'s province. . . . [Its] predominant function in
determining juror bias involves credibility findings whose
basis cannot be easily discerned from an appellate
record.'" Smith, 540 A.2d at 256 (quoting
Wainwright v. Witt, 469 U.S. 412, 428-29 (1985)). It
is the appellant's burden to show that the jury was not
impartial. Commonwealth v. Noel, 104 A.3d 1156, 1169
(Pa. 2014). Further, this Court has found that per
se prejudice does not result where a juror becomes upset
during the trial. See Commonwealth v. Pander, 100
A.3d 626, 632 (Pa.Super. 2014) (en banc).
Commonwealth v. Briggs, our Supreme Court set forth
the standard for prospective juror disqualification:
The test for determining whether a prospective juror should
be disqualified is whether he is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor. . . . It must
be determined whether any biases or prejudices can be put
aside on proper instruction of the court. . . . A challenge
for cause should be granted when the prospective juror has
such a close relationship, familial, financial, or
situational, with the parties, counsel, victims, or witnesses
that the court will presume a likelihood of prejudice or
demonstrates a likelihood of prejudice by his or her conduct
or answers to questions.
12 A.3d 291, 333 (Pa. 2011) (quoting Commonwealth v.
Cox, 983 A.2d 666, 682 (Pa. 2009)).
most cases address the issue of prospective jurors, we have
employed the same analysis in cases where a question arises
about a juror's impartiality during trial. See
Pander, 100 A.3d at 632 ("While Hale and
the cases discussed therein involved juror challenges prior
to trial, we find the discussion therein apt . . . .");
Carter, 643 A.2d at 70 ("Th[e trial
court's] discretion exists even after the jury has been
[e]mpaneled and the juror sworn."). Here, there is no
allegation that Juror No. 6 had a personal relationship with
any party, counsel, victim, or witness. Accordingly, we will
not presume prejudice. See Commonwealth v. Stewart,
295 A.2d 303, 305-06 (Pa. 1972) (presuming prejudice where
father of the victim was in the jury panel and had been in
the same room with the rest of the jury for more than two
days). Further, this is not a situation where prejudice will
be presumed by the juror's conduct. See Pander,
100 A.3d at 632.
Officer Lerza's cross-examination, Rush's counsel
played a 911 tape in which Rocco was heard barking in the
background. Upon hearing the recording, Officer Lerza cried
on the witness stand and Juror No. 6 cried as well. Rush
states that "[i]t is unclear whether the juror cried
because of sadness over the dog being dead, or because of the
police officer's emotional state, or perhaps because of
memories of other dogs in the juror's past."
Rush's Br. at 33. Nevertheless, Rush claims that the
trial court should have dismissed Juror No. 6 because: her
reaction was "an obvious sign of bias and an excessive
emotional attachment to one side of the case, the
prosecution"; she could not render a verdict solely on
the law and facts of the case as her "emotions clouded
her judgment"; and her emotional response could have
influenced the rest of the jury. Id.
trial court found that the juror cried "during extremely
emotional testimony, during which the witness also
cried" and that Rush failed to establish how the
juror's crying "impeded the juror's ability to
fulfill the oath to judge the case based on the facts and not
on emotion." 1925(a) Op. at 12. We agree with the trial
Court addressed a similar situation in Pander, where
a juror became visibly upset after viewing graphic
photographs of the victim and required a break after viewing
them. 100 A.3d at 631. Upon questioning by the trial court, the
juror stated that even though the photographs reminded her of
her late husband, who had died the previous year, she could
remain impartial. Id. The trial court denied
appellant's request that an alternate juror be seated.
Id. On appeal, the appellant argued that prejudice
should have been presumed based on the juror's reaction.
Id. We disagreed, concluding that a juror becoming
upset over a photograph was not per se prejudicial.
Id. at 632. We further stated "[T]hat the juror
was disturbed by pictures of the victim because it brought
back memories of her recently deceased husband does not alone
indicate an inability to consider the evidence
in Pander the juror had to leave the courtroom,
here, Juror No. 6's crying was barely noticed. During a
break, while the jury was out of the courtroom, the following
[TRIAL COUNSEL]: It's been brought to my attention during
the testimony Juror No. 6 was crying.
THE COURT: I believe Juror No. 6 was crying when you played
the CD containing the radio between Rocco's K-9 partner
and dispatch where the dog was heard in the background, so it