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Commonwealth v. Rush

Superior Court of Pennsylvania

May 11, 2017


         Appeal from the Judgment of Sentence March 10, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-000290-2014

          BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.


          MOULTON, J.

         John 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.[1] We affirm.

         The 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 times[2]without 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].[3] 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).

         On 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.[4] 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.

         Rush 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, Rocco?
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 discretion?

Rush's Br. at 7 (suggested answers omitted).

         I. Juror Disqualification

         Rush 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 granted.

         Article 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).

         "The 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).

         In 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)).

         While 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]mpanel[]ed 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.

         During 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.

         The 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.

         This 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.[5] 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 impartially." Id.

         While 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 exchange occurred:

[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 ...

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