Com. v. Basehoar, L. ( 2017 )

J-S91039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAIRD LEASK BASEHOAR :
:
Appellant : No. 274 MDA 2016
Appeal from the Judgment of Sentence January 19, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001367-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 21, 2017
Laird Leask Basehoar (“Appellant”) appeals from the judgment of
sentence entered in the Court of Common Pleas of Cumberland County after
a jury convicted her of simple assault and harassment on evidence that she
punched and slapped her ex-husband in the face during a domestic dispute.1
Sentenced to not less than 90 nor more than 729 days in county prison for
simple assault, with a consecutive 12-month term of probation for
harassment, Appellant challenges orders denying her motions to dismiss
____________________________________________
1
The court convicted Appellant of a third count of summary harassment,
which merged with the count of misdemeanor harassment for purposes of
sentencing.
* Former Justice specially assigned to the Superior Court.
J-S91039-16
charges on double jeopardy grounds and to stay proceedings pending appeal
of said denial, respectively, and she raises numerous other claims of trial
court error. We affirm.
The case sub judice arises from an assault occurring in the residence
of Appellant’s ex-husband, 69 year-old Frank Basehoar, with whom
Appellant had resumed co-habiting in a quasi-landlord/tenant relationship
after nearly two years of living apart following their divorce. According to
Mr. Basehoar’s testimony at the criminal trial, on April 5, 2015, an
apparently intoxicated and verbally abusive Appellant confronted him for
about 15 minutes as he sat in his armchair, declining to respond in kind.
Eventually, Appellant jabbed him twice in the chest with a closed fist and
said “I would like to get a knife and stick it right there.” N.T. 10/27/15 at
51. When Mr. Basehoar stood and took several steps toward Appellant, she
swung wildly at him and landed two or three blows to the face, causing his
right nostril to bleed and producing two cuts beneath his right eye, which
later swelled and showed bruising. He called 911 and completed a police
report alleging Appellant struck him twice in his face.
Officer Katie Justh of the Lower Allen Police Department testified that
she arrived at the household and observed injuries to Mr. Basehoar’s nose
and eye. N.T. at 89. She discerned in Mr. Basehoar no evidence of alcohol
consumption or intoxication, noted his calm manner, and determined that he
needed no emergency care. N.T. at 90. With respect to Appellant, Officer
Justh noted that she was “irate, upset, screaming, yelling,” exhibiting
-2-
J-S91039-16
emotional “highs and lows,” alleging that Mr. Basehoar’s wounds were self-
inflicted, and calling the officer a “fucking bitch.” N.T. at 91. Officer Justh
arrested Appellant and charged her with the offenses listed supra.
At the first jury trial of October 26, 2015, the trial court granted
Appellant’s motion for mistrial after Officer Justh, in the following exchange,
revealed that she knew Appellant from a previous arrest:
PROSECUTOR: When all these police officers show up to the
scene, are the neighbors outside or anything?
OFFICER JUSTH: Not that I recall, but the way their house
kind of sits down, it’s kind of like a long driveway and sits down
at an angle. So I was more concerned about the wellbeing of
the two individuals involved and not the neighbors concern.
Q: You said she [Appellant] called you names?
A: Yes.
Q: What is that about?
A: I don’t know. A previous arrest.
Q: So you said that…
DEFENSE COUNSEL: Your Honor, I’m going to object to any
references to previous incidents.
THE COURT: Correct. Let me stop you there, Officer….
N.T. 10/26/15 at 79.
The court initially gave curative instructions and called for a recess to
allow research and argument on defense counsel’s sidebar motion for
mistrial. The court reconvened and granted Appellant’s motion, but before
summoning the jury to discharge it, it stated its intent to proceed with a new
-3-
J-S91039-16
trial the following morning and empanel a different jury from the existing
jury pool. N.T. at 85-86.
Defense counsel voiced concern that a jury from the existing pool
could not avoid taint from courthouse talk about the reason for mistrial.
N.T. at 86. The court, however, dismissed the inevitability of taint, called for
the jurors, and explained both the reason for mistrial and their duty to
refrain from discussing the case with anyone:
THE COURT: No, the jury poll’s [sic] not tainted. They just
can’t use these jurors.
PROSECUTOR: Thank you, Your Honor.
THE COURT: We know which jurors they are, and I will tell the
Court Administrator. . . .
***
[Addressing the jury upon its return to the courtroom] Folks, if
you can’t tell, something happened, and I will tell you what
happened. I declared a mistrial because I can’t unring that
arrest bell. You heard that she had been arrested before, and I
told them not to talk about anything before April 5 th. I don’t
know how to take that out of your minds. I don’t know how to
erase, erase, erase.
And it had absolutely nothing to do with it. It was an inartfully
worded question. The officer was trying to figure out the -- I
shouldn’t say the officer. The attorney was trying to ask a
question about what was her demeanor like and rather than
asking, you know, what her demeanor was like in an arful way,
he asked it in an inartful way, that lead [sic] to what the officer’s
belief was. [‘]Well, I know why she was upset with me and
acting this way, because I had prior contact with her.[’] There’s
all kinds of contact with police, but that being the case, they
can’t be on the jury tomorrow.
THE COURT ADMINISTRATOR: Okay.
-4-
J-S91039-16
***
THE COURT: Okay. You are not going to be on this jury. Don’t
discuss this case with anybody. All right. Wait until you get off
jury duty and then I don’t care who you discuss it with, but you
know one of the questions they are going to ask in the back of
the courtoom, does anybody know anything about this case from
whatever source? [‘]Oh, yeah, Juror 27 was telling me about it
this morning.[’] You said the word [‘]arrest[’] and you can’t say
that in a courtroom. So that will just muck up things for us, if
you talk to anybody, especially the other folks in the jury poll
[sic] about this because they are going to ask the question.
So I ask very kindly and I beseech you and I beg you not to talk
to anybody about this. Just go back into the jury poll [sic] and
say, [‘]okay, let’s go.[’] Are we picking more tomorrow?
N.T. at 87-88.
The next day, Appellant filed a pre-trial motion to dismiss charges
based on double jeopardy grounds. The court denied the motion, however,
as it imputed no intentional misconduct on the part of the prosecution from
the improper testimony of Officer Justh. Moreover, the court specifically
deemed Appellant’s motion frivolous, and in so doing it advised Appellant
that governing decisional and rule-based authority did not require the court
to stay proceedings should she elect to file a petition for review of the
frivolousness decision with the Superior Court. N.T. 10/27/15 at 5-10.
Counsel for Appellant expressed his intention to file such a petition for
review, but neither the certified record nor docket sheet reflects that such a
filing was ever made.
The case proceeded to a second trial where, at the conclusion of
testimony offered by Mr. Basehoar, Officer Justh, and Appellant, the newly
-5-
J-S91039-16
empaneled jury returned a verdict of guilty on both charges. On January 19,
2016, the court imposed sentence as noted, supra, and this timely appeal
followed.
Appellant presents the following questions for our consideration:
I. DID THE COURT ERR WHEN IT DEEMED THE MOTION
FRIVOLOUS PURSUANT TO PA.R.CRIM.P. 587
BECAUSE THE COMMONWEALTH’S AFFIANT
INTENTIONALLY BROUGHT UP MS. BASEHOAR’S
CRIMINAL CONDUCT?
II. DID THE COURT ERR WHEN IT DEEMED THE MOTION
FRIVOLOUS WITHOUT A HEARING?
III. DID THE COURT ERR WHEN IT DID NOT MAKE A
SPECIFIC FINDING OF FACT WHICH SHOULD HAVE
INCLUDED A SPECIFIC FINDING AS TO
FRIVOLOUSNESS?
IV. DID THE COURT ERR WHEN IT FORCED MS.
BASEHOAR TO HAVE HER CASE RETRIED THE VERY
NEXT DAY BECAUSE THERE WAS NO WAY TO ENSURE
THAT THE NEW JURY PANEL WAS NOT TAINTED?
V. DID THE COURT ERR WHEN IT DID NOT ALLOW MS.
BASEHOAR TO PETITION THE SUPERIOR COURT
REGARDING THE FRIVOLOUSNESS FINDING WITHIN
30 DAYS PURSUANT TO PA.R.CRIM.P. 587(B)(5)
BEFORE HAVING TO RETRY THE CASE?
VI. DID THE COURT ERR WHEN IT FORCED MS.
BASEHOAR TO HAVE HER CASE RETRIED THE VERY
NEXT DAY WHEN MS. BASEHOAR’S ABILITY TO
IMPEACH A WITNESS WAS IMPROPERLY IMPAIRED
BECAUSE SHE DID NOT HAVE A TRANSCRIPT FROM
THE PREVIOUS TRIAL?
-6-
J-S91039-16
VII. DID THE COURT ERR IN ACCEPTING THE VERDICT
AFTER THE COMMONWEALTH FAILED TO PRESENT
EVIDENCE SUFFICIENT TO ESTABLISH THAT MS.
BASEHOAR CAUSED OR ATTEMPTED TO CAUSE
BODILY INJURY BEYOND A REASONABLE DOUBT?
Appellant’s brief at 7-8.
Appellant’s first, second, third and fifth issues coalesce to challenge
the trial court’s orders denying her motion to dismiss on double jeopardy
grounds, finding her motion frivolous, and denying her request to stay
proceedings pending her filing of a petition of review of the frivolousness
decision. Initially, we note that an abuse of discretion standard of review
applies in cases denying a motion to dismiss on double jeopardy grounds
following the declaration of a mistrial, and absent an abuse of that
discretion, we will not disturb the court's decision. See Commonwealth v.
Walker, 954 A.2d 1249, 1254 (Pa.Super. 2008) (en banc). Moreover:
[t]o the extent that the factual findings of the trial court impact
its double jeopardy ruling, we apply a more deferential standard
of review to those findings:
Where issues of credibility and weight of the
evidence are concerned, it is not the function of the
appellate court to substitute its judgment based on a
cold record for that of the trial court. The weight to
be accorded conflicting evidence is exclusively for
the fact finder, whose findings will not be disturbed
on appeal if they are supported by the record.
Commonwealth v. Graham, 109 A.3d 733, 735–737 (Pa. Super. 2015)
(internal quotations, citations, and original brackets omitted).
Where a mistrial is declared, the double jeopardy clause bars retrial
only in those instances where mistrial was intentionally caused by
-7-
J-S91039-16
prosecutorial misconduct. Commonwealth v. Simons, 522 A.2d 537, 540
(Pa. 1987). See also Commonwealth v. Smith, 615 A.2d 321, 325 (Pa.
1992) (holding Article I, § 10, which our Supreme Court has construed more
broadly than double jeopardy clause, bars retrial “not only when
prosecutorial misconduct is intended to provoke the defendant into moving
for a mistrial, but also when the conduct of the prosecutor is intentionally
undertaken to prejudice the defendant to the point of the denial of a fair
trial.”). Mere prosecutorial error does not deprive the defendant of a fair
trial. Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa.Super. 2013). As
we have explained:
Thus under Pennsylvania jurisprudence, it is the intentionality
behind the Commonwealth's subversion of the court process, not
the prejudice caused to the defendant, that is inadequately
remedied by appellate review or retrial. By and large, most
forms of undue prejudice caused by inadvertent prosecutorial
error or misconduct can be remedied in individual cases by
retrial. Intentional prosecutorial misconduct, on the other hand,
raises systematic concerns beyond a specific individual's right to
a fair trial that are left unaddressed by retrial. As this Court has
often repeated, ‘[a] fair trial is not simply a lofty goal, it is a
constitutional mandate, ... [and] [w]here that constitutional
mandate is ignored by the Commonwealth, we cannot simply
turn a blind eye and give the Commonwealth another
opportunity.’
Id. at 884–85 (quoting Commonwealth v. Chmiel, 777 A.2d 459, 464)
(Pa.Super. 2001).
Appellant first contends that the court erroneously failed to infer
intentional misconduct on behalf of the Commonwealth where Officer Justh,
as a law enforcement officer, clearly should have known Appellant’s prior
-8-
J-S91039-16
arrest record was inadmissible and must have offered such information “as a
way of tainting Ms. Basehoar.” It was the trial court’s judgment, however,
that Officer Justh’s testimony was the product not of intentional
prosecutorial misconduct designed to deprive Appellant of a fair trial but,
instead, a poorly articulated, open-ended question asking why Appellant
acted belligerently toward the officer.
In reviewing this line of questioning, reproduced supra, we agree with
the trial court’s assessment that this was a direct examination gone
unexpectedly awry, without intentional prompting by the prosecution.
Indeed, we have held that when the prosecution asks an open-ended
question there is no intentional misconduct. See Graham, 109 A.3d 739(holding no misconduct when aggravated indecent assault victim testified
she feared defendant might assault her child or nephew when asked an
open-ended question about why she waited to report the defendant).
Moreover, there is no indication in the record that the trial was going so
poorly for the prosecution, or that the jury may have been unreceptive to
the testimony of the Commonwealth witnesses, that the prosecutor would
have been motivated to engage in misconduct in order to force a mistrial
and obtain a second chance to prosecute the case. Accordingly, because the
record supports the trial court’s exercise of discretion, we discern no basis
for disturbing its order denying Appellant’s motion to dismiss.
Appellant next contends that the court erred in declaring her motion
frivolous and proceeding immediately to a second trial when it conducted no
-9-
J-S91039-16
hearing, made no specific finding of frivolousness, and denied her the
opportunity to file a petition for review on the frivolousness decision before
the commencement of retrial. We disagree.
Generally, criminal defendants have a right to appeal a trial court's
pre-trial double jeopardy determination, even though the ruling is technically
interlocutory. Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (per
curiam) (citation omitted). “[P]retrial orders denying double jeopardy claims
are final orders for purposes of appeal.” Id. at 1024. If a court finds a
double jeopardy claim frivolous, however, retrial may commence without an
automatic stay while the defendant may file a petition of review of the
frivolousness decision in the Superior Court. Id. at 1027; Commonwealth
v. Brady, 508 A.2d 286 (Pa.Super. 1986) (precluding of-right interlocutory
appeal and automatic stay of retrial where trial court deems double jeopardy
challenge frivolous); Pa.R.A.P. 1501.
This Court has addressed the procedural requirements for motions to
dismiss on grounds of double jeopardy:
[I]n 2013, the Pennsylvania Rules of Criminal Procedure
were amended to codify the common law framework for motions
to dismiss on double jeopardy grounds. In particular, effective
July 4, 2013, Rule 587(B) was added to govern pretrial double
jeopardy motions. Specifically, Rule 587(B) provides in pertinent
part:
(1) A motion to dismiss on double jeopardy grounds
shall state specifically and with particularity the basis
for the claim of double jeopardy and the facts that
support the claim.
- 10 -
J-S91039-16
(2) A hearing on the motion shall be scheduled in
accordance with Rule 577 (Procedures Following
Filing of Motion). The hearing shall be conducted on
the record in open court.
(3) At the conclusion of the hearing, the judge shall
enter on the record a statement of findings of fact
and conclusions of law and shall issue an order
granting or denying the motion.
(4) In a case in which the judge denies the motion,
the findings of fact shall include a specific finding as
to frivolousness.
(5) If the judge makes a finding that the motion is
frivolous, the judge shall advise the defendant on the
record that a defendant has a right to file a petition
for review of that determination pursuant to Rule of
Appellate Procedure 1573 within 30 days of the order
denying the motion.
***
Pa.R.Crim.P. 587(B) (emphasis added).
Commonwealth v. Taylor, 120 A.3d 1017, 1022 (Pa.Super. 2015).
Our review of the record reveals that the trial court entertained
Appellant’s motion to dismiss in conformance with the procedures outlined in
Rule 587(B). Prior to the commencement of retrial, the court conducted a
hearing to make an appropriate record in response to its denial of
Appellant’s motion to dismiss. Specifically, the court permitted argument by
counsel for Appellant, who asked the court to make a Rule 587(B) finding of
“whether or not the motion is frivolous.” N.T. 10/27/15 at 5. Counsel also
posited that Appellant had the right to an immediate interlocutory appeal
regardless of the court’s frivolousness determination. The court
acknowledged its obligation to make a frivolousness finding and to advise
- 11 -
J-S91039-16
Appellant of such a finding on the record, and it did so by announcing in
open court its order making the specific finding that Appellant’s motion was
frivolous. N.T. at 6.
The court, then, addressed Appellant’s right to file a petition for review
of the court’s frivolousness decision in light of Orie and Brady. After
acknowledging Appellant’s right to file a petition, see N.T. at 7, the court
heard argument from the prosecution to the effect that Pa.R.A.P. 1573 and
1701, which reflect the codification of such decisional law, together provide
that a petition for review shall not automatically stay proceedings in the trial
court where the court has deemed the double jeopardy challenge frivolous.
Instead, the trial court may allow retrial to proceed while the petition for
review is pending before the appellate court, the prosecution argued. N.T.
at 8. The court agreed with the prosecutor’s interpretation of controlling
authority and confirmed with defense counsel that Appellant had, in fact,
asked for a stay pending her filing of a petition for appellate review. An
order denying Appellant’s request for a stay was thereafter entered. N.T. at
9-10.
Therefore, we reject as factually groundless Appellant’s bald argument
that the court erroneously made the frivolousness determination “without
hearing argument or testimony[]” as required by Rule 587. Appellant’s brief
at 16. The court, in fact, permitted argument by counsel, addressed
Appellant’s motion in open court, specifically found the motion to be
frivolous, and entered an order to that effect with instructions that it be
- 12 -
J-S91039-16
transcribed as a written order, as well. The court, likewise, acknowledged
Appellant’s right to file a petition for review on the frivolousness question
and entertained argument on her request to stay proceedings pending
appellate review before it entered a second order denying her request and
slating her case for immediate retrial. Accordingly, Appellant is entitled to
no relief on Issue II, III, and V.2
In Appellant’s fourth issue, she charges court error with the decision to
select the retrial jury from the jury pool existing at the time of mistrial,
because “the jury in the instant case may have learned of [Appellant’s] prior
criminal record from mingling with the jurors who served during [her]
mistrial.” Appellant’s brief at 19-20. Appellant admits she had the
opportunity to voir dire all venire persons, but she claims that neither she
nor anyone else “asked questions that would rule out any juror who knew of
Ms. Basehoar’s mistrial and prejudicial references to her criminal record.”
____________________________________________
2
Although we have elected to address Appellant’s claims II and III on the
merits, we note these claims were also subject to waiver, for Appellant never
voiced an objection asserting that the court’s hearing and findings of fact
were procedurally flawed. Pa.R.A.P. 302(a) (stating: “Issues not raised in
the [trial] court are waived and cannot be raised for the first time on
appeal”); Commonwealth v. Duffy, 832 A.2d 1132 (Pa.Super. 2003)
(holding party must make timely and specific objection at trial to preserve
issue for appellate review). Moreover, we note that Appellant never filed a
petition for review with this Court on the frivolousness determination.
- 13 -
J-S91039-16
The record as reproduced, supra, shows the court took several
precautions to avoid the possibility of a tainted second jury. It emphatically
instructed mistrial jurors before their discharge that they were to refrain
from discussing any aspect of this case to anyone for as long as they
remained in the jury pool. The court also instructed the court administrator
to ensure that no juror from the first trial be included as a prospective juror
in the second trial. Finally, to defense counsel’s voiced concern about the
possibility of taint, the court advised:
THE COURT: But you are going to ask the question, [‘]does
anybody know anything about this case from whatever
source[?’], because I actually warned each of the jurors here
yesterday not to discuss the case because that was going to be
one of the questions, like everybody asked yesterday, does
anybody know anything about this case from whatever source,
newspaper, radio, friends, you know, fellow jurors.
If there is cross contamination then your argument from
yesterday would have merit, but I don’t know that, and I tried to
take – I will use my word here – prophylactic steps to prevent
that. We are going to see if it worked.
N.T. 10/27/15 at 10.
Notably, during voir dire, the prosecution confirmed with venire
persons that they did not know either Appellant or Mr. Basehoar and had not
learned anything about the case from any source. N.T. at 18-19. Defense
counsel, however, asked no questions pertaining to possible jury pool
discussions about the mistrial. N.T. at 23-24.
The jury selection process is crucial to the preservation of a criminal
defendant's right to an impartial jury explicitly guaranteed by Article I,
- 14 -
J-S91039-16
section 9 of the Pennsylvania Constitution. Commonwealth v. Ingber,
531 A.2d 1101, 1102 (Pa. 1987). The decision whether to disqualify a
venire person is within the discretion of the trial court and will not be
disturbed on appeal absent a palpable abuse of that discretion. Id. at 1103
(citations omitted).
Here, Appellant essentially argues that we should presume her jury
was incapable of rendering an impartial verdict based on the mere possibility
that one or more of its members learned of her prior arrest record from a
former juror seated in the first trial. All second trial jurors, however, were
subject to voir dire and claimed to possess no prior knowledge from any
source about either Appellant or Mr. Basehoar. Defense counsel did not test
this response with a more specific question tailored to the possibility of
courthouse conversations about the case. From this record, we find no
palpable abuse of discretion in the court’s decision to empanel the jury, and
we, therefore, find Appellant’s claim of reversible error devoid of merit.
Appellant next contends that the court’s decision, over objection, to
commence retrial on the day after mistrial unfairly precluded her ability to
impeach Mr. Basehoar with a transcript of his testimony from the previous
day. According to Appellant:
[t]he Commonwealth’s main witness, Mr. Basehoar, testified
during the mistrial that Ms. Basehoar connected with his face
once; however, during the second trial, Mr. Basehoar testified
that he was struck three or four times. Mr. Basehoar had a right
to use the transcripts from the first trial as a tool to impeach Mr.
Basehoar’s credibility.
- 15 -
J-S91039-16
Appellant’s brief at 25.
Appellant has mischaracterized the record. Our review reveals Mr.
Basehoar testified at the first trial that he was unsure how many times
Appellant struck him because he did not count, but that it could have been
two or three times:
MR. BASEHOAR: [Recounting the conflict between himself and
Appellant] I did take two steps towards her, but I was not within
4 feet. And then she swung 1, 2 or 3 times at me. She
connected to the right side of my face. I think she hit me with a
closed fist, but at that time she had pretty long nails so I knew I
was bleeding.
***
PROSECUTION: You said she hit you, was that 1, 2 or 3 times?
Are you saying you don’t know or…?
MR. BASEHOAR: My report says two times. It could have been
two or three times. You know, when you’re being swung at, you
turn your head, and, you know, I turned my eyes and I turned
my head away. I turned it to the left side. That is why I took
the impact on the right side of my face.
***
DEFENSE COUNSEL: So you recall telling the police that she
hit you twice?
MR. BASEHOAR: I recall her telling the police that she hit me
two or three times, but I think my report said twice.
DEFENSE COUNSEL: Now, here today you would agree that
you testified that you think that she actually hit you, in other
words that she connected with you once?
MR. BASEHOAR: No, I think she connected with me two
different times, one to the nostril, one under the eye where the
cut was.
- 16 -
J-S91039-16
N.T. 10/26/15 at 49, 50, 66-67. It was also established that Mr. Basehoar
sustained a bloody nose, a cut on the upper part of his nose, a cut beneath
his right eye, which also became swollen, painful, and eventually black and
blue. N.T. at 50-51, 53.
On retrial, Mr. Basehoar initially testified that he believed Appellant
struck him three or four times, N.T. 10/27/15 at 52-53, but on cross-
examination he modified his estimate to reconcile it with a police report in
which he told investigators that Appellant landed two blows. N.T. at 76. In
response to continued cross-examination on the details of Appellant’s
alleged attack, Mr. Basehoar testified further:
MR. BASEHOAR: I think she hit me with both hands. She was
swinging wildly. Okay? I think there were several strikes
thrown, and I think that there may have been two that
connected, possibly three. I didn’t count them. I was turning
my face away trying to protect my eyes.
N.T. at 80.
The record belies Appellant’s assertion that Mr. Basehoar testified to
just one landed blow at the first trial, for it is clear he settled on an estimate
of “two or three” blows within an overall testimony admitting to uncertainty
about the exact number. Nor did he persist in his initial estimate at the
second trial of three to four blows, as he revised his estimate to two to three
after defense counsel presented him with his statement given to police
investigators. To the extent that Appellant charges Basehoar with giving
widely disparate testimonies, therefore, we find she mischaracterizes the
evidence.
- 17 -
J-S91039-16
Moreover, Appellant fails to explain how confronting Basehoar with a
transcript of his previous testimony alleging two to three blows would have
impeached Appellant to a greater degree than what was achieved by gaining
his concession that he told police investigators he incurred only two blows.
In either instance, the jury would hear that Basehoar’s testimony of three to
four blows was inconsistent with a prior official statement of two blows.
Finally, Appellant fails to direct us to where in the record she asked for a
continuance to allow time to acquire a transcript for impeachment purposes,
an omission that makes her claim of court error subject to waiver. We,
therefore, reject this claim as meritless.
Finally, Appellant contends that the Commonwealth presented
insufficient evidence to prove the “caused or attempted to cause bodily
injury” element to simple assault. This Court's standard of review of a
challenge to the sufficiency of the evidence is as follows:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant's guilt is
to be resolved by the fact[-]finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, the fact that the evidence
establishing a defendant's participation in a crime is
- 18 -
J-S91039-16
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact[-]finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant's crimes beyond a reasonable doubt,
the appellant's convictions will be upheld.
Commonwealth v. Rahman, 75 A.3d 497, 500–01 (Pa. Super. 2013)
(citations and quotations omitted).
A defendant is guilty of Simple Assault if she “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another [.]” 18
Pa.C.S. § 2701(a)(1). “Bodily injury” is an “[i]mpairment of physical
condition or substantial pain.” 18 Pa.C.S. § 2301.
According to Mr. Basehoar, Appellant had spent the entire Easter
Sunday in her bedroom until about 5:30 p.m., when she came out “enraged,
agitated, upset screaming using various [profanities].” N.T. at 50. She
screamed “at the top of her lungs” for between 10 and 20 minutes. N.T. at
55. “She said to me, [‘]Why don’t you fucking leave the fucking house, you
asshole. Get the hell out of here. I don’t want you here. . . . The dogs
don’t want you here. Nobody wants you here. Get the fuck out.[’]” N.T. at
51.
Mr. Basehoar grew increasingly frustrated and upset during this
outburst, but employing calming techniques recently learned at over 20
counseling sessions he attended with Appellant, he quietly remained seated
in his armchair. Appellant did not desist, however, and she came around to
- 19 -
J-S91039-16
the front of his chair, thumped him twice in the chest with a closed fist, and
said she would like to stab him there. N.T. at 51. When Basehoar stood up,
approached her, and suggested she take a walk outside, Appellant “started
to throw punches” which caused Basehoar to sustain both a bloody nose and
a cut, swollen, and bruised eye. N.T. at 52.
When viewed in a light most favorable to the verdict winner, the
evidence adduced at trial established that Appellant attempted to cause
substantial pain to her ex-husband when she struck him several times in the
face. This Court “has been reluctant to find assaultive behavior in family
situations, to ‘attach criminality to the pushing, shoving, slapping, elbowing,
hair-pulling, perhaps even punching and kicking, that not infrequently occur
between siblings or other members of the same family.’” In re M.H., 758
A.2d 1249 (Pa.Super. 2000) (quoting Interest of J.L., 475 A.2d 156, 157
(Pa.Super. 1984). Where malicious intent to injure may be inferred from
surrounding circumstances, however, the act is actionable criminally. See
Interest of J.L. at 158.
Here, it was reasonable for a jury to infer Appellant’s malice from her
protracted and extreme tirade, which reached its violent crescendo after she
provocatively jabbed her ex-husband’s chest with a closed fist and wished
aloud about plunging a knife “right there.” Gaining a reaction from him, she
then wildly punched at his face, landing two or three solid blows which
caused bleeding and swelling. We, therefore, conclude that Appellant acted
- 20 -
J-S91039-16
with the specific intent to cause bodily injury necessary for a conviction of
simple assault.
For the foregoing reasons, judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
- 21 -