Com. v. Hartleb, C. ( 2023 )

J-S36044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY LEE HARTLEB :
:
Appellant : No. 216 WDA 2022
Appeal from the Judgment of Sentence Entered November 30, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002127-2020
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MARCH 6, 2023
Appellant, Corey Lee Hartleb, appeals from the judgment of sentence of
6 to 12 years’ incarceration and 3 years of probation imposed on him after he
was convicted by a jury of aggravated assault serious bodily injury,
aggravated assault bodily injury with a deadly weapon, and possession of a
weapon.1 For the reasons set forth below, we affirm.
This case arises out of a fight outside a bar on the night of January 31
to February 1, 2020, in which Appellant stabbed a man (Victim) in the neck.
On June 12, 2020, Appellant was charged with aggravated assault serious
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a)(1), 2702 (a)(4), and 907(b), respectively.
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bodily injury, aggravated assault bodily injury with a deadly weapon,
possession of a weapon, and attempted murder.
In the first days of its investigation of the assault, the police obtained
video footage from the bar’s surveillance cameras inside of the bar that
showed Appellant and Victim getting into an argument and leaving the bar
with two other people before the fight occurred and Victim being brought back
into the bar severely injured. The Commonwealth provided these videos to
Appellant in pretrial discovery. On March 31, 2021, Appellant filed a motion
seeking to compel the Commonwealth to produce video from the bar’s outdoor
surveillance camera. A hearing was held on this motion at which the bar
owner and a police detective testified. The bar owner testified that there was
video footage from a camera outside the bar that showed the fight and that
she believed that the videos that she gave the police included that footage.
N.T., 5/11/21, at 5-8. The police detective testified that when he viewed the
videos received from the bar, he saw that they had only footage of the inside
of the bar, that he contacted the bar owner to obtain outdoor surveillance
video, and that she told him that the only outdoor camera was by the door
and the video from this camera was too dark to see anything. Id. at 9-11.
He testified that he made further attempts to obtain this outdoor video, but
that the bar owner did not turn it over to the police. Id. at 11.
On May 14, 2021, Appellant filed a motion to dismiss the charges
pursuant to Brady v. Maryland, 373 U.S. 83 (1963) based on the
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Commonwealth’s failure to provide the outdoor video. The trial court denied
this motion on July 14, 2021. Prior to trial, Appellant also moved to exclude
the testimony of a trauma surgeon who treated Victim’s injuries on the ground
that no expert report was provided, and the trial court ordered that this
witness could testify to her observations as a lay witness, but could not testify
as an expert. N.T. Motion in Limine Hearing, 9/14/21, at 11-17.
The charges against Appellant were tried to a jury on September 14
through 16, 2021. Six witnesses testified for the Commonwealth: Victim, a
friend of Victim who went to the bar with him, the trauma surgeon, and three
police officers and detectives who investigated the case. The Commonwealth
also introduced in evidence and played videos of the inside of the bar showing
the argument between Appellant and Victim before the fight and showing
Victim being brought back in the bar after he was stabbed and later events.
Appellant called the bar owner and a defense investigator as witnesses and
testified in his own defense.
Victim testified that on January 31, 2020 he went to the bar with his
friend and was drinking and flirting with a woman who sat down next to him
when Appellant came up to him and accused him of attacking Appellant’s
brother a few years earlier. N.T. Trial, 9/14/21, at 38-45. Victim testified
that he told Appellant that he didn’t know what Appellant was talking about,
that Appellant would not leave him alone, and that when he and Appellant
were arguing loudly with each other, the bartender told them to “take it
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outside.” Id. at 45-48. Victim testified that he, his friend, and his cousin,
who was also at the bar, followed Appellant outside, that he and Appellant
continued arguing, and that when he said that he was going back in to drink,
Appellant punched him in the face. Id. at 48-51, 64-65, 75. Victim testified
that he fought back after Appellant punched him and that as he and Appellant
were fighting, they ended up on the ground and he got on top of Appellant.
Id. at 51-53, 65. Victim testified that when he got on top of Appellant, he
saw Appellant raise a knife and that Appellant stabbed him in the neck. Id.
at 37-38, 52-57.
Victim’s friend testified that he was with Victim at the bar drinking and
Appellant came up to Victim and started arguing with Victim. N.T. Trial,
9/14/21, at 85-89. Victim’s friend testified that he, Victim, and Victim’s cousin
followed Appellant outside and that after they got outside, Appellant began
throwing punches at Victim and Victim fought back. Id. at 89-92. Victim’s
friend testified that Victim and Appellant fell to the ground, that Victim got on
top of Appellant, and that he came over to try break up the fight. Id. at 94.
Victim’s friend testified that when he came over, Appellant grabbed his leg
and he saw blood coming out of Victim’s neck. Id. at 94-96. Victim’s friend
testified that he helped bring Victim back into the bar and that after he was
back in the bar, he saw blood running down his own leg and found that he had
been stabbed twice in the leg. Id. at 95-99, 101-03. Victim’s friend also
testified that no one other than Appellant was fighting with Victim and that
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Appellant was the only person who struck him or Victim. Id. at 93-96, 117-
18.
The trauma surgeon testified that Victim’s trachea was cut, that he
needed a tube inserted to assist his breathing, and that the cut was only
millimeters from Victim’s carotid artery. N.T. Trial, 9/14/21, at 122-28. The
police officer who went to the bar in response to the report of a fight and
stabbing testified that he called emergency medical services to the scene and
that later that night the bar owner showed him both video of the inside of the
bar and a video recording from a camera outside of the bar. N.T. Trial,
9/15/21, at 13-14, 20. The officer testified that the outdoor video showed a
fight, but that the participants moved away from the camera during the fight
and that the video quality was too poor to identify the participants in the fight
and who did what in the fight. Id. at 14-15, 32.
The police detective who obtained the videos from the bar a day or two
after the incident testified that he requested all of the video footage from the
time of the incident and that the bar owner selected and downloaded the
videos onto the police thumb drive that he supplied. N.T. Trial, 9/14/21, at
31-33. A second police detective testified that he reviewed the videos right
after the thumb drive was brought back and that the only videos were footage
of the inside of the bar. N.T. Trial, 9/15/21, at 45. He also testified that he
called the bar owner and asked for the outdoor video, that she told him that
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quality of the outdoor video was poor, and that she did not provide the outdoor
video, although he requested it. Id. at 45-46.
Appellant testified that he was working at the bar on the night of January
31, 2020 helping the bartender, that the woman with whom Victim was flirting
asked Appellant to tell Victim to leave her alone and that he approached Victim
and told him to leave her alone. N.T. Trial, 9/15/21, at 90-92, 96. Appellant
testified that Victim walked away, that the woman resumed being friendly with
Victim and accepting drinks from him, and that she again asked Appellant to
tell Victim to leave her alone. Id. at 96-97, 122-25. Appellant testified that
when he approached Victim and told him to leave the woman alone the second
time, Victim argued with him, Victim’s cousin came over, and Victim’s cousin
and the bartender told them to go outside. Id. at 98-102. Appellant testified
that he, Victim, Victim’s friend, and Victim’s cousin went outside and that after
they got outside, Victim punched him and he punched back. Id. at 102-05.
Appellant testified that another person who had been in the bar then grabbed
him from behind and got on top of him and that while he was fighting the
person on top of him, Victim’s friend came over and punched him and other
people outside the bar attacked him. Id. at 105-06. He testified that he got
away, but came back when the person who had been on top of him called out
that Appellant “owe[d] him a fair fight” and fought one-on-one with him. Id.
at 106-07. Appellant testified that he ran off again, but that Victim caught up
to him, that they wound up on the ground with Victim on top of him, that he
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got away a third time and went home after someone yelled “police” and pulled
Victim off of him. Id. at 107-09. Appellant denied that he had a knife or
stabbed anyone and testified that he did not know how Victim and Victim’s
friend were stabbed. Id. at 110, 143-44, 163-65. Appellant admitted that he
did not call the police after the fight. Id. at 146-48.
The bar owner testified that she believed that she provided the outdoor
video to the police in addition to the footage of the inside of the bar when the
police initially came to get the video. N.T. Trial, 9/15/21, at 67-68. The bar
owner further testified that she viewed the outdoor video with police on the
night of the incident and that the outdoor video showed a fight that began
near the door and moved away from the camera into the parking lot. Id. at
67, 70, 72-73. The defense investigator testified that she attempted to obtain
the outdoor video from the police and the bar owner and was unable to obtain
it. Id. at 84-88.
On September 16, 2021, the jury convicted Appellant of aggravated
assault serious bodily injury, aggravated assault bodily injury with a deadly
weapon, and possession of a weapon and acquitted him of the attempted
murder charge. N.T. Trial, 9/16/21, at 37-38; Verdict Slips. On November
30, 2021, the trial court sentenced Appellant to 6 to 12 years’ incarceration
followed by 2 years of probation for the aggravated assault serious bodily
injury conviction, a concurrent term of 1 year 9 months to 4 years’
incarceration for aggravated assault bodily injury with a deadly weapon, and
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a consecutive year of probation for possession of a weapon, resulting in an
aggregate sentence of 6 to 12 years’ incarceration followed by 3 years of
probation. Sentencing Order. Appellant filed a post sentence motion on
December 6, 2021 seeking dismissal of the charges, a new trial and a
judgment of acquittal, and the trial court denied that motion on February 15,
2022. This timely appeal followed.
In this appeal, Appellant presents the following issues for our review:
A. [Whether] the trial court committed an error of law and/or
abused its discretion when it denied Appellant’s omnibus pretrial
motion to dismiss pursuant to Brady v. Maryland.
B. [Whether] the trial court committed an error of law and/or
abused its discretion when it permitted testimony of [the trauma
surgeon].
C [Whether] the Commonwealth engaged in prosecutorial
misconduct by engaging in burden shifting and mischaracterizing
the burden of proof.
D. [Whether] the Commonwealth failed to present sufficient
evidence to convict the Appellant beyond a reasonable doubt of
both counts of aggravated assault and possession of a weapon.
Appellant’s Brief at 3 (unnecessary capitalization removed). We first address
Appellant’s fourth issue, the sufficiency of the evidence claim, and then
address his first, second, and third issues.
Our standard of review in a challenge to the sufficiency of the evidence
is well-settled:
When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
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to prove every element of the offense beyond a reasonable doubt.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” It is within the
province of the fact-finder to determine the weight to accord to
each witness’s testimony and to believe all, part or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. As an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Steele, 234 A.3d 840, 845 (Pa. Super. 2020) (quoting
Commonwealth v. Colon-Plaza, 136 A.3d 521 (Pa. Super. 2016)) (citations
omitted, brackets in original).
The only element of the offense of aggravated assault serious bodily
injury that Appellant argues that the evidence was insufficient to prove is the
mens rea element. Where, as here, the victim has suffered serious bodily
injury, the mens rea required to support an aggravated assault serious bodily
conviction can be satisfied either by proof that the defendant intentionally or
knowingly caused the victim serious bodily injury or by proof that he acted
with malice, defined as reckless infliction of serious bodily injury under
circumstances manifesting extreme indifference to human life. 18 Pa.C.S. §
2702(a)(1) (“[a] person is guilty of aggravated assault if he: (1) 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”); Interest of N.A.D., 205 A.3d 1237, 1240 (Pa.
Super. 2019); Commonwealth v. Bruce, 916 A.2d 657, 661, 664 (Pa.
Super. 2007).
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Viewed in the light most favorable to the Commonwealth, the evidence
at trial was sufficient to permit the jury to find that Appellant acted with
specific intent to cause serious bodily injury or with malice. The
Commonwealth’s evidence showed that Appellant stabbed Victim in the neck
with a knife and with sufficient force to cut a hole in his trachea. N.T. Trial,
9/14/21, at 37-38, 52-57, 122-28. Use of a deadly weapon on a vital part of
the body is sufficient to support the inference that the defendant intended to
cause serious bodily injury or acted with malice. Commonwealth v. Knox,
219 A.3d 186, 195 (Pa. Super. 2019); Commonwealth v. Nichols, 692 A.2d
181, 184-85 (Pa. Super. 1997); Commonwealth v. A. Miller, 634 A.2d 614,
617-18 (Pa. Super. 1993) (en banc). A knife is a deadly weapon.
Commonwealth v. Magnum, 654 A.2d 1146, 1150 (Pa. Super. 1995); A.
Miller, 634 A.2d at 617-18. Although the stabbing occurred during a fist fight
and Victim was on top of Appellant at the time that the stabbing occurred, the
Commonwealth’s evidence was sufficient to show that Appellant started the
fight, that Appellant was angry at Victim before Victim interacted with him,
and that Appellant used the knife in a more life-threatening manner than
simply trying to get away from Victim. N.T. Trial, 9/14/21, at 45-55, 64-65,
88-89, 91-92, 122-28. Indeed, Appellant did not assert that he stabbed
Victim in self-defense; rather, he testified that he did not stab Victim or
anyone else. N.T. Trial, 9/15/21, at 143.
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With respect to his aggravated assault bodily injury with a deadly
weapon and possession of a weapon convictions, Appellant claims that there
was no evidence that he had a weapon and that the evidence was insufficient
to prove the mens rea required for these crimes. These arguments likewise
ignore the Commonwealth’s evidence at trial. The Crimes Code defines
aggravated assault bodily injury with a deadly weapon as “attempt[ing] to
cause or intentionally or knowingly caus[ing] bodily injury to another with a
deadly weapon” and provides that a person commits the offense of possession
of a weapon “if he possesses a … weapon concealed upon his person with
intent to employ it criminally.” 18 Pa.C.S. § 2702(a)(4); 18 Pa.C.S. § 907(b).
The evidence was sufficient for the jury to find that Appellant had a deadly
weapon, a knife, and used it to stab Victim. N.T. Trial, 9/14/21, at 52-57.
Contrary to Appellant’s assertions, Victim testified that he saw Appellant with
a knife in his hand and saw Appellant raising the knife right before he was
stabbed. Id. at 54-55. The jury could reasonably find that the knife was
concealed on Appellant’s person, as no witness saw a knife until Appellant
raised it right before stabbing Victim. As discussed above, the evidence at
trial was sufficient to prove that the knife was used with intent to cause serious
bodily injury. It was therefore a fortiori sufficient to prove intent to cause
bodily injury and intent to use the knife criminally.
Moving to Appellant’s remaining issues, Appellant argues in his first
issue that the trial court was required to dismiss the charges against him
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because the Commonwealth’s failure to produce the outdoor video footage of
the incident recorded by the bar’s surveillance system violated its obligation
to disclose exculpatory evidence. Under Brady v. Maryland and its progeny,
a defendant’s right to due process is violated when the prosecution withholds
material evidence that is favorable to him. Brady, 373 U.S. at 87;
Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 26 (Pa. Super. 2020);
Commonwealth v. K. Miller, 212 A.3d 1114, 1124 (Pa. Super. 2019). To
establish a Brady violation, the defendant must prove each of the following
three elements: (1) that the evidence at issue is favorable to him, either
because it is exculpatory or because it impeaches; (2) that the evidence was
suppressed by the Commonwealth, either willfully or inadvertently; and (3)
that he was prejudiced. Commonwealth v. Bagnall, 235 A.3d 1075, 1086
(Pa. 2020); Benvenisti-Zarom, 229 A.3d at 26; K. Miller, 212 A.3d at 1124.
Appellant failed to satisfy the second of these requirements. The trial
court found that the outdoor video was not downloaded when the police
requested all of the surveillance video from the time of the incident. Trial
Court Opinion and Order, 7/14/21, at 1-3. The evidence showed that the bar
owner was the person in possession and control of all of the surveillance
system’s videos, that the bar owner downloaded the videos for the police, that
the police promptly contacted the bar owner to obtain the outdoor video when
they learned that it had not been downloaded, and that the bar owner failed
to produce it. N.T. Trial, 9/14/21, at 31-33; N.T. Trial, 9/15/21, at 45-46, 75-
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78. The bar owner was not a government employee over whom the
Commonwealth had control. Indeed, the bar owner had ties to Appellant, who
had worked for her, and she admitted that knew and liked Appellant. N.T.
Trial, 9/15/21, at 73-75, 80-81. Because the Commonwealth never possessed
the outdoor video, it could not be found to have suppressed this evidence,
either willfully or inadvertently, and its failure to produce the outdoor video
did not violate its obligations under Brady. K. Miller, 212 A.3d at 1126.
Moreover, even if Appellant had shown a Brady violation, the trial
court’s orders on this issue were proper. The trial court denied Appellant’s
motion to dismiss, but instructed the jury that it could draw an inference that
the outdoor video would be unfavorable to the Commonwealth’s case if it
found that the Commonwealth did not satisfactorily show why it could not
produce the outdoor video. N.T. Trial, 9/16/21, at 18-19. Dismissal of the
charges against the defendant is a permissible remedy for failure of the
Commonwealth to comply with its Brady obligations only where there is
egregious prosecutorial misconduct. Commonwealth v. Burke, 781 A.2d
1136, 1144-46 (Pa. 2001). No egregious prosecutorial or police conduct was
shown here. The trial court found that the unavailability of the outdoor video
was caused by an inadvertent failure to download it, not by any intentional or
bad faith conduct by the Commonwealth or by any person for whom it was
responsible and not by any failure to preserve downloaded videos in the
possession of the police. Trial Court Opinion and Order, 7/14/21, at 3.
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Appellant does not cite to any evidence that would support a finding of any
intentional suppression or destruction of the outdoor video or even a finding
of negligent handling of the videos once they were in the possession of the
police. Dismissal would therefore not have been a proper remedy in any
event.
In his second issue, Appellant argues that the trial court erred in
allowing testimony by the trauma surgeon that he contends constituted expert
testimony. Testimony by a medical witness who treated the victim concerning
her observations of the victim’s injuries is not expert opinion and such
testimony is admissible as lay witness testimony even though no expert report
has been provided. Commonwealth v. Yocolano, 169 A.3d 47, 62-63 (Pa.
Super. 2017). Testimony by such a witness as to the cause of the victim’s
injuries, however, is expert opinion that must be excluded if no expert report
was provided. Id. at 63.
Here, the trauma surgeon testified concerning her observations of
Victim’s injuries and did not opine or testify in any way concerning the cause
of the injuries or the force that would have been required to produce those
injuries. N.T. Trial, 9/14/21, at 122-28. The only testimony by the trauma
surgeon to which Appellant objected at trial was her testimony concerning the
location of Victim’s neck wound and how close it was to the carotid artery. Id.
at 123-24. That is lay testimony concerning the witness’s observations during
treatment, not expert testimony. The trial court therefore did not abuse its
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discretion in permitting the challenged testimony. Yocolano, 169 A.3d at 63.
To the extent that Appellant is now asserting that other testimony by the
trauma surgeon was inadmissible expert testimony, that issue is waived
because Appellant made no objection to that other testimony at trial.
Benvenisti-Zarom, 229 A.3d at 25-27; Commonwealth v. Konias, 136
A.3d 1014, 1021-22 (Pa. Super. 2016).
Appellant in his remaining issue argues that some of the
Commonwealth’s questions to Appellant on cross-examination concerning the
of absence of corroborating witnesses for his version of events improperly
shifted the burden of proof and that the Commonwealth allegedly
mischaracterized the burden of proof in its closing. Both of these arguments
are waived.
An objection to allegedly improper prosecutorial conduct without any
request for a remedy is insufficient to preserve the issue for appellate review.
Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013).
Appellant made no objection to the first questions that he now contends were
improper. N.T. Trial, 9/15/21, at 132. Appellant did object to later cross-
examination questions and the trial court in response stated that it would
provide an instruction making clear that the burden of proof is always on the
prosecution and directed the Commonwealth to move on. Id. at 149-51.
Following this objection, the Commonwealth asked no further questions that
Appellant contends shifted the burden of proof. Id. at 151, 164-65. Appellant
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sought no further relief from the trial court beyond the jury instruction that it
said that it would give and did not seek to strike the questions and answers
or move for a mistrial. Id. at 151; N.T. Trial, 9/16/21, at 7. The trial court
in its jury charge did instruct the jury that the burden of proof is always on
the Commonwealth and that the defendant has no duty to present evidence.
N.T. Trial, 9/16/21, at 11. Appellant did not object to the adequacy of this
instruction or contend that any further instruction on this issue was needed.
Id. at 27-28. Appellant’s claim of error concerning the Commonwealth’s
cross-examination questions is therefore waived.
With respect to the Commonwealth’s closing argument, Appellant does
not state anywhere in his brief what the alleged improper statements were or
cite to where any such statements appear in the trial transcript. This failure
to set forth the statements that he challenges or cite to the portion of the
record on which this claim is based waives any argument based on these
alleged statements. Commonwealth v. Gilbert, 269 A.3d 601, 612 & n.7
(Pa. Super. 2022). In addition, Appellant made no objection to any
statements in the Commonwealth’s closing argument during or after its closing
argument. N.T. Trial, 9/15/21, at 183-214. Appellant’s claim for relief based
on alleged statements in the closing argument is therefore also waived by his
failure to timely object. Commonwealth v. Williams, 455 A.2d 632, 634
(Pa. 1983).
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For the foregoing reasons, we conclude that none of the issues raised
by Appellant in this appeal merits relief. We therefore affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2023
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