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Commonwealth v. Miller

Superior Court of Pennsylvania

October 17, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
STEVEN R. MILLER, Appellant

         Appeal from the Judgment of Sentence June 25, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0011715-2014

          BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

          OPINION

          DUBOW, J.

         Appellant, Steven R. Miller, appeals from the Judgment of Sentence entered by the Philadelphia County Court of Common Pleas following his convictions after a jury trial of Aggravated Assault, Simple Assault, and Possessing an Instrument of Crime ("PIC").[1] After careful review, we affirm on all issues Appellant raised before the trial court, and remand for consideration of Appellant's after-discovered evidence claim.

         On October 6, 2013, Appellant, an inmate at Curran-Fromhold Correctional Facility in Philadelphia, was using a phone in the prison's telephone bank. Khayree Murray, a fellow inmate, approached Appellant and asked to use one of the phones. Correctional Officers Denise Irving and Eddie Rosa and Correctional Sergeant Joyce Cooper observed Appellant attack Murray. Appellant stabbed Murray several times with "a sharp long screw rigged with sharp ridges and a rubber band wrapped in a ripped T-shirt" in the head, back, and ear. Officer Rosa immediately intervened, separated the two men with the help of Officer Irving, and used pepper spray to subdue Appellant. Officers recovered the makeshift weapon from the ground after Appellant dropped it. Officer Rosa testified that Murray was in shock and that he did not observe Murray strike Appellant.

         Murray attempted to downplay his injuries, and told officers that he fell down some stairs. Murray sustained life-threatening injuries, which included three stab wounds to the back, two puncture wounds to the base of his neck, wounds to his back, back of the head, and left hand, and lacerations to his ear and cheek. Murray's injuries required eight sutures. Sergeant Cooper decided to transport Murray to the hospital for treatment. Appellant had no injuries, but he was treated for pepper spray in his eyes and placed in solitary confinement.

         While walking with Officer Rosa through the prison shortly after the stabbing, Appellant stated, "If you didn't pepper spray, you would have been the next victim."[2] Trial Court Opinion at 5. In recorded prison phone calls, Appellant subsequently made several inculpatory statements, boasted of his violent reputation in the prison as a result of the attack, and repeated a rumor that there was a bounty on Murray's head because he was a snitch.

         Appellant proceeded to a jury trial. Murray refused to testify at trial and the trial court held him in contempt. Appellant testified and claimed that he acted in self-defense. Although Appellant claimed that Murray attacked him first with the weapon, Appellant admitted that he never feared that Murray would kill him.

         On June 25, 2015, the jury convicted Appellant of Aggravated Assault, Simple Assault, and PIC. On that same day, the trial court imposed an aggregate term of 8 to 20 years' incarceration. Appellant filed a Post- Sentence Motion, which the trial court denied on October 2, 2015.

         Appellant filed a timely Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Appellant presents eight issues on appeal:

1. Were the convictions for [Aggravated Assault, Simple Assault, and PIC] not supported by sufficient evidence? Was the evidence speculative, contradictory and inconsistent such that the verdicts were not supported by sufficient evidence?
2. Were the convictions for [Aggravated Assault, Simple Assault, and PIC] against the weight of the evidence? Was the evidence speculative, contradictory and inconsistent?
3. Did the Assistant District Attorney err in his opening statement by stating that [Appellant] for the same conduct was disciplined by the prison and given the punishment of sixty days in solitary confinement, thereby improperly tainting the jury by the prison disciplinary finding? Further, did the District Attorney err in questioning the correctional officer about [Appellant] being placed in the solitary cell as punishment for this matter? Did the District Attorney err in his closing speech when he gave his personal opinion that the correctional officer was telling the truth and was completely candid and honest with the jury? Did these errors individually and cumulatively deny [Appellant] his right to due process and a fair trial? Did Judge Coyle err in not granting a mistrial?
4. Did Judge Coyle err when instructing the jury by not giving an adverse inference charge because the alleged victim, [Murray], refused to testify and pled the Fifth Amendment? Did Judge Coyle err in refusing to give such an adverse inference charge to the jury about [Murray's] lack of testifying?
5. Did Judge Coyle err in allowing the correctional officer to testify that [Appellant] said to him at the time, "It's a good thing you broke it up because I would have assaulted you also" and "If you didn't pepper spray, you would have been the next victim." Did Judge Coyle err since this statement was not made and told to anyone until the third day of trial, the officer had never even made such a statement in any of the police reports or discovery or during his testimony at the preliminary hearing previously and the defense strategy had already been set? Did the Court err in allowing this testimony and should a new trial be granted as a result?
6. Did Judge Coyle err in allowing the transcript of the prison telephone conversation of [Appellant] to be sent back to the jury during deliberations since it had already been played to the jury, allowing this testimony to remain with the jury during deliberation and unduly emphasizing this testimony, which was unfair to [Appellant]? Further, did Judge Coyle err in allowing the telephone conversations to be admitted at all since the conversations seemed to suggest [Appellant] was a bad person and people were after him, thereby tainting the jury?
7. Did Judge Coyle err in precluding [Appellant] from introducing the fact that the alleged victim, [Murray] (an inmate) had attacked another inmate in a similar fashion at a prison phone bank and had pending charges on that assault? Did the Court err since this would show a common scheme, plan and design, and would show intentional assault by the alleged victim?
8. Did the Superior Court err in not remanding the case to the trial judge and should a new trial be granted based on the after discovered evidence of two witnesses who observed the events and would have confirmed [Appellant's] version?

Appellant's Brief at 7-11.

         Sufficiency of the Evidence

         Appellant first challenges the sufficiency of the evidence supporting his convictions for Aggravated Assault, Simple Assault, and PIC. We review claims regarding the sufficiency of the evidence by considering whether, "viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact-while passing on the credibility of the witnesses and the weight of the evidence-is free to believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.

         Self-Defense

         Appellant claims that the Commonwealth failed to disprove that Appellant acted in self-defense, and argues that this negates Appellant's criminal liability on all charges. Appellant's Brief at 39.

         When one employs deadly force, as Appellant did, the elements of a claim of self-defense are that the individual (1) reasonably believed that force was necessary to protect himself against death or serious bodily injury; (2) was free from fault in provoking the use of force against him; and (3) did not violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012); see also 18 Pa.C.S § 505(b)(2).

         A defendant does not have a burden to prove a claim of self-defense. Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). Once a defendant introduces some evidence to justify a finding of self-defense, then the issue is properly before the fact-finder and the Commonwealth bears the burden to disprove the defense beyond a reasonable doubt. Id.

         In this case, we conclude that Appellant's testimony-that Murray attacked him first using the weapon-provided "some evidence" to support a finding of self-defense. See id. If Murray provoked the fight, Appellant could have reasonably believed that force was necessary to protect himself.

         Once the issue of self-defense was before the fact-finder, it was the Commonwealth's burden to disprove the defense beyond a reasonable doubt. See id. The Commonwealth presented sufficient evidence that Appellant initiated the fight unprovoked after Murray asked to use the phone, that Appellant unreasonably believed that force was necessary to protect himself against death or serious bodily injury, that Appellant acted unreasonably in stabbing Murray repeatedly, and that Appellant had a duty to retreat without using the weapon. The Commonwealth presented testimony from several eyewitnesses, as well as Appellant's own inculpatory statements about, inter alia, his motive for stabbing Murray.

         After a review of the evidence in the light most favorable to the Commonwealth, we conclude that the Commonwealth disproved beyond a reasonable doubt that Appellant acted in self-defense.

         Aggravated Assault and Simple Assault

         We next address Appellant's challenges to the sufficiency of the evidence supporting his convictions for Aggravated Assault and Simple Assault. "A person is guilty of [A]ggravated [A]ssault if he . . . attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" 18 Pa.C.S. § 2702(a)(1). The Crimes Code defines "Serious bodily injury" as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2301. See Commonwealth v. Walls, 950 A.2d 1028, 1032 (Pa. Super. 2008) (holding that evidence that the appellant repeatedly stabbed the victim causing cuts, scratches, and lacerations to the upper torso sufficient to sustain a conviction for aggravated assault).

         "A person acts intentionally with respect to a material element of an offense when ... it is his conscious object to engage in conduct of that nature or to cause such a result[.]" 18 Pa.C.S. § 302(b)(1)(i). "As intent is a subjective frame of mind, it is of necessity difficult of direct proof." Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. 2005) (citations omitted). "[I]ntent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances." Id. See also Commonwealth v. Gray, 867 A.2d 560, 568 (Pa. Super. 2005) (holding that infliction of multiple stab wounds with screwdriver demonstrated intent to inflict serious bodily injury).

         In Pennsylvania, a person is guilty of Simple Assault if he "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]" 18 Pa.C.S. § 2701(a)(1). The Crimes Code defines "Bodily injury" as "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S. § 2301.

         The evidence is more than sufficient to sustain Appellant's convictions for Aggravated Assault and Simple Assault. It was well within the province of the jury to conclude that Appellant intended to kill or seriously injure Murray when Appellant repeatedly stabbed him with a deadly improvised weapon after Murray asked to use the telephone. Appellant continued his attack until correctional officers intervened to separate Appellant from Murray. Appellant finally stopped when a correctional officer used pepper spray to subdue him.

         In addition, Appellant repeatedly provided inculpatory statements to corrections officers and to others while speaking on the prison phones, including statements about why he attacked Murray. The jury could also reasonably infer Appellant's criminal intent from the surrounding circumstances; namely, that Appellant, a prisoner, possessed an improvised contraband weapon inside the prison. The Commonwealth also submitted sufficient evidence of Murray's serious injuries, his hospitalization, and his medical treatment, to which Appellant stipulated at trial. In contrast, there was ample testimony, documentary evidence, and photographs of Appellant's lack of injuries.

         Appellant focuses his argument on the contradictory testimony by various corrections officers. This aspect of his argument challenges the weight of the evidence, and ignores our standard of review applicable to sufficiency challenges.[3] We must view all of the evidence in the light most favorable to the Commonwealth as verdict winner and we may not reweigh the evidence and substitute our judgment for that of the fact-finder. See Melvin, supra at 39-40.

         Viewing the totality of the evidence in the light most favorable to the Commonwealth as the verdict winner, it is clear that the Commonwealth proved each element of Aggravated Assault and ...


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