Com. v. Romig, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL CHRISTOPHER ROMIG,
Appellant No. 400 MDA 2018
Appeal from the Judgment of Sentence Entered February 5, 2018
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000560-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 17, 2018
Appellant, Michael Christopher Romig, appeals from the judgment of
sentence of 9½ to 30 years’ incarceration, imposed after he was convicted by
a jury of two counts of aggravated assault and one count of simple assault.
After careful review of the issues Appellant raises herein, we affirm.
The Commonwealth summarized the evidence it presented at
Appellant’s jury trial, as follows:
On the evening of August 2, 2016, Kelly McTavish was only
familiar with [Appellant] … as an acquaintance. Kelly McTavish
was also friends with Patricia Koch (hereinafter “Koch”) and was
“seeing” the victim, James Barry Moore (hereinafter “Moore[”]),
having lived with him for about four or five months. Kelly
McTavish indicated both Moore and Koch lived in a multiple[-]
dwelling apartment building in Lewistown, and that Moore at that
point in time didn’t have any significant health issues. Kelly
McTavish testified that she, along with Koch, Moore and
[Appellant] went to [Appellant’s] residence in McClure, PA[,] on
the evening of August 2, 2016. Kelly McTavish testified she was
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sitting on the couch in [Appellant’s] residence alongside Moore
when [Appellant] sat beside her and began showing her naked
pictures of himself on his cell phone as she was seated next to
Moore. Kelly McTavish testified [that] Moore advised [Appellant]
this was not appropriate behavior. Then[,] while Moore was still
seated on the couch[,] [Appellant] became angry and [Appellant]
punched Moore in his face with a closed fist, a punch described as
a “sucker punch” by Kelly McTavish. Kelly McTavish further
testified Moore did not retaliate in any way after being struck in
the face by [Appellant] with a closed fist. McTavish further
testified [Appellant] grab[bed] Moore by his shirt and drag[ged]
him off the couch and then start[ed] kicking him in the head and
chest wearing steel[-]toed work boots. As Moore [was] being
kicked by [Appellant], McTavish related [that] she observed that
Moore’s face had already started to swell, he was bleeding from
his nose, bleeding from his ears, was not responding or saying
anything, just making grumbling noises. McTavish testified there
was a lull from this assault when she went upstairs to wake her
friend Koch[,] who had been upstairs taking a nap[,] and when
she came back down with Koch, [Appellant] continued kicking
Moore in the head, in the chest, and in the back multiple times.
McTavish indicated Moore was unable to defend himself in any way
at this point in time, nor did he take any aggressive action toward
[Appellant]. [Appellant] then retrieved a knife, put the knife by
Moore’s neck, saying[,] “I’m just going to end it now[,]” [with] the
knife being not even an inch away from Moore’s neck. McTavish
testified [that] Moore had blood all over his face at this point,
appeared to be unconscious, and was carried from the residence
to the back seat of Koch’s vehicle where he was transported to
Lewistown Hospital. McTavish further testified Moore was never
on his feet again that evening, from the time he sat down on the
couch until he was carried out to the back of the car after the
assault occurred. She further indicated there were no arguments,
that [Appellant] was yelling[,] and that Moore was not arguing
with [Appellant].
Koch testified at trial[] [that] she lived in the same building
as Moore[,] whom she had a brotherly relationship with. She
further knew Kelly McTavish through James Moore and knew they
dated on and off. She … recalled all parties met on the evening
of August 2, 2016[,] at the Steelworker Bar and then drove to
[Appellant’s] residence. She testified that at some point during
the evening, she got a migraine and went upstairs to lay down,
leaving [Appellant], McTavish[,] and Moore downstairs. When she
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next came down, she saw [Appellant] punching and stepping on
Moore. She further clarified [Appellant’s] assault continued on
Moore[,] with [Appellant’s] “stomping” on Moore’s head and
body[,] with Moore unable to defend himself at that point. Koch
observed Moore bleeding from his ears, his nose, his eyes and he
was unresponsive. Koch then observed [Appellant] get a knife,
put it to the throat of Moore and say he was going to kill him.
Koch testified she responded to [Appellant’s] statement by
saying[,] “What are you gonna kill him for? He’s already dead.”
Koch testified[] [that] she never saw Moore offer any resistance
or fight back against this assault by [Appellant]. Koch thought
the victim was dead at this point with blood coming out
everywhere there could be[,] and [she] eventually convinced
[Appellant] to help carry Moore out to the car for transport to the
hospital.
Moore testified he resided in Burgard Apartments in
Lewistown, Pennsylvania on August 2, 2016. He knew Koch[,]
whom he was good friends with[,] and [he] dated Kelly McTavish
at this time. Moore further testified [that,] other than arthritis[,]
his health was fine, he wasn’t confined to or required to use a
wheelchair, he could ambulate, he suffered from no paralysis, he
had control of his bladder and bowels, his sexual organs worked
properly[,] and he lived independently at that point in time. Since
August 2, 2016, Moore testified that he has resided either in
hospitals or nursing homes. Moore further testified he can recall
meeting [Appellant], along with Koch and McTavish[,] on August
2, 2016, however, other than lying on the floor at [Appellant’s]
house with [] [Appellant] yelling at him, he cannot recall any of
the events that evening. Since the night of August 2, 2016, Moore
testified he suffers from paralysis from the chest down, los[t]
[the] of use of his hands, … is unable to ambulate, lost control of
his bladder and bowels, lost the use of his sexual organ[s,] and …
must be turned in bed every two hours. Moore further testified
he has a pump implanted in his side[,] which injects medicine to
his spine.
Trooper Michael Elder testified he interviewed [Appellant] at
the Pennsylvania State Police barracks in Mifflintown, PA[,] around
8:00 AM on the morning of August 3, 2016. Trooper Michael Elder
related the only injuries he observed to [Appellant] was a
laceration to his lip and to his hand. No other bruising, swelling
or severe cuts were noted by Trooper Elder.
Commonwealth’s Brief at 1-5 (citations to the record omitted).
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Appellant also took the stand in his own defense at trial. He testified
consistently with the above-discussed witnesses regarding how he, McTavish,
Koch, and Moore met at a bar and then proceeded to Appellant’s home. See
N.T. Trial, 7/18/17, at 163-68. However, his testimony differed drastically
concerning what occurred at his home. Appellant summarizes his testimony
about the altercation with Moore, as follows:
At [Appellant’s] house, everyone enjoyed some beers and
the friends - but not [Appellant] - partook in smoking some
substance. At some point the alleged victim, [] Moore, became
aggravated and paranoid, perhaps because of the synthetic drug
he appeared to have been smoking. Moore made a comment to
[Appellant], threatening to beat him up if he “tried anything” with
Kelly [McTavish], whom Moore identified as his “girl.” [Appellant],
upset at being talked to in this manner in his own home, then
stood up and attempted to leave the room. Before he could do
so, Moore grabbed his arm. [Appellant] moved toward the front
door, intending to “throw him out the door and say everybody has
to [...] leave.” Before he could reach the door, Moore shoved
[Appellant] through a large window. [Appellant] suffered a severe
laceration to his arm and had significant blood loss. After this
initial assault, [Appellant] pulled himself back into his home and
continued to be assaulted by Moore. The parties exchanged
blows, and Moore struck [Appellant] with a television remote
control. [Appellant] then punched and kicked Moore repeatedly.
Each time [Appellant] believed the fight was over, Moore would
come back. Eventually, Moore lost consciousness. [Appellant]
wanted to call an ambulance for Moore, but the other members of
the party, Kelly [McTavish] and Patricia [Koch], wanted to take
him to the hospital in their car. [Appellant] helped carry Moore to
the car and loaded him into the back seat. Still unsure if the fight
was truly over, [Appellant] pulled out a pocket knife he keeps on
him all the time. The knife was never used as Moore did not
resume fighting with [Appellant].
[Appellant] then consumed several additional beers and
passed out on the sofa from a combination of alcohol, adrenaline,
and blood loss. He awoke the next morning to two Pennsylvania
State Troopers at his door, yelling at him and pointing a taser and
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pistol at him. [Appellant] surrendered without incident and was
arrested and charged with the aforementioned charges.
Appellant’s Brief at 11-13 (citations to the record omitted).
At the close of Appellant’s trial, the jury convicted him of two counts of
aggravated assault and one count of simple assault. Appellant’s original
sentencing hearing was conducted on September 14, 2017. At the close
thereof, he was sentenced to a term of 7 to 20 years’ incarceration for count
1 of aggravated assault, and a consecutive term of 2½ to 10 years’
incarceration for count 2 of that offense. The court also imposed a concurrent
term of 3 to 12 months’ incarceration for Appellant’s simple assault conviction.
Appellant filed a timely post-sentence motion. On February 5, 2018,
the court entered an amended sentencing order that eliminated Appellant’s
simple assault sentence, as it merged with his sentence on count 1.
Appellant’s sentences for both aggravated assault counts remained the same.
In regard to Appellant’s other claims in the post-sentence motion, the court
issued an order denying them that same day.
Appellant filed a timely notice of appeal, and he also timely complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. In lieu of a Rule 1925(a) opinion, the trial
court relied on an opinion it issued on February 5, 2018, in support of its
partial denial of Appellant’s post-sentence motion.
Herein, Appellant presents the following questions for our review:
1. Whether the trial court erred and/or abused its discretion when
it imposed a sentence at the top of the Aggravated Range of
the applicable sentencing guidelines, where it improperly
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applied the sentencing guidelines by not clearly articulating
legally correct and sufficient reasons for imposing sentences
beyond the Standard Range of said guidelines?
2. Whether the trial court erred and abused its discretion by
refusing to give [Appellant’s] requested jury instruction on
Justification or self-defense and defense of property (the Castle
Doctrine), and on the use of deadly force?
3. Whether [Appellant] was denied his right to a fair trial before
an impartial jury, as guaranteed to him by the 6th and 14th
Amendments to the U.S. Constitution and by Article 1, Section
9 of the Pennsylvania Constitution; to present evidence and
confront the evidence and witnesses against him (U.S. Const.,
Amend. 6 and 14; Pa. Const. Art 1, Sec. 9); to Due Process of
Law (U.S. Const, Amend. 5 and 14; Pa. Const. Art 1, Secs. 1
and 9); and to Equal Protection of Law (U.S. Const. Amend.
14; Pa. Const. Art. 1, Sec. 9); and was denied his substantive
and procedural rights under the statutes of Pennsylvania and
under the Pennsylvania Rules of Criminal Procedure, in that:
a. The trial court refused to give [Appellant’s] requested
instruction to jury on self-defense and defense of property
(Castle Doctrine);
b. The trial court refused to grant [Appellant’s] request for
testing of blood samples, or additional time to procure
testing of the same?
4. Whether the Commonwealth improperly withheld exculpatory
evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963),
where it failed to supply defense with prior criminal records for the
Commonwealth’s fact witnesses?
Appellant’s Brief at 7-8.
Appellant first challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
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Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant filed a timely post-sentence motion in which he
preserved his sentencing claims for our review. He also filed a timely notice
of appeal and has included in his brief a Rule 2119(f) statement. Therein,
Appellant contends that the court failed to state sufficient reasons for imposing
“a sentence at the top of the aggravated range.”1 Appellant’s Brief at 17. We
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1 Appellant also asserts that the court did not state sufficient reasons for
imposing consecutive sentences, and that the court focused exclusively on the
seriousness of his offense without considering other “relevant criteria.”
Appellant’s Brief at 17. However, in the Argument section of his brief,
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agree with Appellant that this claim constitutes a substantial question for our
review. See Commonwealth v. Ritchey, 779 A.2d 1183, 1186 (Pa. Super.
2001) (concluding that “claims that the sentencing court provided insufficient
reasons for the sentence imposed” constitute a substantial question).
Nevertheless, we conclude that Appellant’s argument does not
demonstrate an abuse of discretion by the trial court in fashioning his
sentence. See id. at 1185 (“[S]entencing is a matter vested in the sound
discretion of the sentencing judge, whose judgment will not be disturbed
absent an abuse of discretion.”). At the sentencing proceeding, the court
offered the following explanation for imposing aggravated-range sentences:
THE COURT: … In light of what I heard at trial and the condition
of the victim here -- I mean, he can’t walk away from this, and
you [Appellant] have been convicted by a jury of your peers. The
impact on the victim’s life goes without saying. More or less his
active life is over. I haven’t heard any remorse. Of course, you
are denying that you did this.
[Appellant:] I’d like to add, Your Honor, that, you know, I never
was given any prior medical history. This guy had degenerative
bone disease, all that kind of stuff.
THE COURT: [Appellant’s] rehabilitative needs are an issue and
obviously the horrific circumstances surrounding the offense that
the jury found him guilty of. So this is in the aggravated range….
N.T. Sentencing, 9/14/17, at 18.
Appellant seemingly believes that, because the court’s explanation was
short, it was insufficient to support his aggravated-range sentence. We
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Appellant does not develop either of these claims. Therefore, we will not
address them.
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disagree. In Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super.
2006), we concluded that a single sentence by the trial court was enough to
justify an aggravated range sentence. There, the court stated that its
sentence was premised on Fullin’s “extreme indifference for the consequences
of [his] actions” and “the extreme nature of the harm to the victim.” Id.Similarly, here, the trial court emphasized Appellant’s lack of remorse
for his actions, and the severe injuries he inflicted upon Moore. Appellant
makes no argument that he exhibited remorse, or that the impact of his crimes
on Moore were not extreme. See id. (noting that Fullin “makes no argument
that the circumstances of [his] case are not in fact ‘extreme’”). Indeed,
Appellant placed his lack of remorse on full display when he interrupted the
court’s sentencing statement to blame Moore’s ‘degenerative bone disease’
for the injuries that Appellant caused him. Additionally, just after Moore made
an impact statement detailing his “life-changing” injuries, Appellant used his
right to allocution to deny fault, list the various ways in which he was denied
a fair trial, and detail how he and his family have been negatively impacted
by this incident. See N.T. Sentencing at 9-18. Never once during his lengthy
statement did Appellant express any sorrow for the injuries sustained by
Moore, which are unquestionably devastating. Clearly, this record supports
the trial court’s reasons for imposing an aggravated range sentence, and our
decision in Fullin convinces us that the court’s explanation for that sentence,
although short, was sufficient. Thus, Appellant’s first issue is meritless.
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Appellant next contends that the trial court erred by refusing to instruct
the jury on self-defense or ‘justification.’2 We need not spend significant time
on this claim, as our review of the record reveals that the court did instruct
the jury on these legal concepts. See N.T. Trial, 7/18/17, at 246-48.
Appellant does not even acknowledge the court’s instruction, let alone offer
any argument that it was inadequate. Moreover, even if he did, Appellant did
not lodge a specific objection or exception to the court’s charge, thus waiving
any challenge thereto. See Commonwealth v. Baker, 963 A.2d 495, 506
(Pa. Super. 2008) (“[U]nder Criminal Procedure Rules 603 and 647(B), the
mere submission and subsequent denial of proposed points for charge that
are inconsistent with or omitted from the instructions actually given will not
suffice to preserve an issue, absent a specific objection or exception to the
charge or the trial court’s ruling respecting the points.”).
In his third issue, Appellant argues that the trial court abused its
discretion by refusing his pretrial request for the appointment of an expert “to
evaluate blood sample evidence found at the scene.” Appellant’s Brief at 31.
According to Appellant, his “injuries formed the basis of his Justification
defense, and their very existence was denied by the Commonwealth. In order
to substantiate that he was an injured party, [Appellant] sought to have the
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2 In Appellant’s Statement of the Questions, he also mentions the court’s
failure to provide a jury instruction on the “defense of property (the Castle
Doctrine), and on the use of deadly force[.]” Appellant’s Brief at 7. However,
Appellant does not develop any argument on these claims in the body of his
brief. Consequently, we will not address them.
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samples taken from his home tested to determine if the blood was his, []
Moore’s, or a combination of both.” Id. at 32. Appellant claims that “[s]uch
specific, scientific evidence could not have been replicated through any other
means because anyone else’s testimony would be coming from someone with
a vested or other specific interest in the outcome of the trial.” Id. Thus,
Appellant contends that there is no support in the record for the trial court’s
determination that evidence of his injuries was “capable of being produced by
adequate alternative means.” Trial Court Opinion, 7/12/17, at 2.
Initially, this Court has explained:
Under the law of Pennsylvania, as in a majority of states, the
appointment of an expert witness or an investigator to assist in
the preparation of a defense is vested in the sound discretion of
the trial court…. [footnote omitted].
Generally, the trial court will not be found to have abused its
discretion in the absence of a clear showing as to the content,
relevancy and materiality of the testimony of the potential
witnesses.
***
Neither the federal constitution nor our state constitution
mandates that an expert be appointed at the public’s expense to
assist a defendant in the preparation of a defense.
Commonwealth v. Bell, 706 A.2d 855, 862 (Pa. Super. 1998) (internal
citations omitted).
Contrary to Appellant’s claim, the record supports the trial court’s
determination that evidence of his injuries could be produced by means other
than an expert to test the blood samples taken from Appellant’s home. For
instance, Appellant testified that he was injured when Moore pushed him
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through a window and struck him in the face with a television remote control.
See N.T. Trial at 173-74, 175. Trooper Elder testified that on the morning
after the incident, he spoke with Appellant, who claimed that Moore attacked
him in his home, struck him in the face with a television remote, and pushed
him through a window. Id. at 145. Appellant told Trooper Elder that he
“sustained a cut” when he was pushed through the window, id., and the
trooper observed that Appellant had a “laceration on his lip” and “a laceration
on his hand[,]” id. at 146. The trooper also testified that a window in the
foyer area was broken and there was blood on the floor. Id. at 148. In
addition to this testimony, the defense admitted into evidence photographs of
Appellant’s injuries that were taken by the police on the morning after the
incident. Id. at 154. Those pictures, which were published to the jury,
showed small lacerations on Appellant’s hands, a larger cut on his forearm,
and a cut on his lip. See Defendant’s Exhibits 5 and 6. This evidence supports
the court’s conclusion that Appellant could prove that he sustained injuries by
means other than the appointment of an expert to analyze blood samples
taken from his home. Consequently, Appellant has not proven that the court
abused its discretion.3
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3 We are also unconvinced that testing of the blood samples would have
changed the outcome of Appellant’s trial. Again, the jury heard testimony and
observed photographs that supported Appellant’s claim that he was injured in
the incident. However, it also heard testimony from two eyewitnesses -
McTavish and Koch - who claimed that Appellant was the initial aggressor, and
that he repeatedly stomped and kicked Moore in the head while Moore lay
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Lastly, Appellant claims that the Commonwealth committed a Brady
violation by not turning over, pursuant to his discovery request, the criminal
records of Moore, Koch, and McTavish. Before addressing Appellant’s specific
arguments, we recognize that
[i]n Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.” Brady supra at 87, 83 S.Ct. 1194.
This Court has held that “to prove a Brady violation, the
defendant must show that: (1) the prosecutor has
suppressed evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant; and
(3) the suppression prejudiced the defendant.”
Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 291
(2008) (citing Commonwealth v. Carson, 590 Pa. 501,
913 A.2d 220, 245 (2006)).
Commonwealth v. Busanet, 54 A.3d 35, 48 (Pa. 2012).
“Brady’s mandate is not limited to pure exculpatory evidence;
impeachment evidence also falls within Brady's parameters and
therefore must be disclosed by prosecutors. U.S. v. Bagley, 473
U.S. 667, 677, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).”
Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538,
546, 2012 WL 4841446, (Pa. Super. 2012). “The burden rests with
Appellant to ‘prove, by reference to the record, that evidence
was withheld or suppressed by the prosecution.’ Commonwealth
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defenseless on the floor. The fact that Moore was left paralyzed from the
chest down aligned more with McTavish’s and Koch’s description of the attack
than Appellant’s testimony that he and Moore had a “wrestling match[,]” see
N.T. Trial at 173, and two instances of “exchanging … blows,” id. at 175, after
which Moore fell to the ground and Appellant “kicked him twice in the ribs[,]
once on each side[,]” id. at 176. Given this record, we cannot conclude that
the jury’s verdict would have changed had it been presented with evidence
that blood at the scene was Appellant’s.
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v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999) (citations
omitted) (emphasis added).” Commonwealth v. Sneed, 45 A.3d
1096, 1116 (Pa. 2012).
Commonwealth v. Nero, 58 A.3d 802, 809–10 (Pa. Super. 2012).
In this case, Appellant argues that the Commonwealth violated Brady
by failing to turn over criminal information regarding Moore, Koch, and
McTavish. More specifically, Appellant states that he knew McTavish was “out
on bail for some offense” when the incident occurred, but the Commonwealth
did not turn over her criminal record to reveal her pending charges.
Appellant’s Brief at 36. Thus, while Appellant was permitted to cross-examine
McTavish about being on bail at the time of the incident, “[t]he court did not
permit him to get into what she was on bail for.” Id. Appellant maintains
that if he had the criminal records of McTavish and the other Commonwealth
witnesses, his “counsel would have identified potential and likely bias,
incentive to testify favorably for the Commonwealth, and the various
witnesses’ hopes for leniency in other criminal matters. He could have then
argued these reasons when the Commonwealth objected to his line of
questioning while impeaching [McTavish].” Id.In support of his claim that criminal records must be turned over
pursuant to Brady, Appellant primarily relies on this Court’s decision in
Commonwealth v. Copeland, 723 A.2d 1049, 1051 (Pa. Super. 1998).
However, Copeland did not specifically address whether the Commonwealth
is required to turn over criminal records pursuant to Brady; instead, the
Copeland panel ruled on the distinct issue of “whether the Commonwealth is
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precluded by law from supplying to the defense the criminal histories of the
prosecution’s witnesses” under the Criminal History Record Information Act,
42 Pa.C.S. § 9121(b) (hereinafter, “the CHRIA”) (emphasis added).
Therefore, Copeland is not on point.
Instead, we find our Supreme Court’s decision in Commonwealth v.
Tharp, 101 A.3d 736 (Pa. 2014), to be dispositive of Appellant’s argument.
There, Tharp contended that the Commonwealth violated Brady by not
turning over the criminal records of certain witnesses. Tharp, 101 A.3d at
752. However, our Supreme Court concluded that Tharp’s “allegations
relating to the suppression of … criminal records fail as they could have been
obtained by subpoena from non-governmental sources.” Id. at 752 (citing
Commonwealth v. Spotz, 896 A.2d 1191, 1248 (Pa. 2006) (“It is well
established that no Brady violation occurs where the parties had equal access
to the information or if the defendant knew or could have uncovered such
evidence with reasonable diligence.”)). Likewise, the Court also rejected
Tharp’s claim that the Commonwealth committed a Brady violation by not
disclosing that one witness was on parole when she testified against Tharp,
reasoning that such information was a “matter of public record, readily
obtainable by the defense from non-governmental sources.” Id. at 753.
Here, Appellant admits that he knew, prior to trial, that McTavish had
pending criminal charges for which she was on bail at the time of the incident.
As discussed in Copeland, the CHRIA allows an individual to request criminal
records from state and local police departments for a fee. Appellant does not
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explain why he could not have utilized the CHRIA, or some other means, to
obtain McTavish’s criminal record, or the alleged criminal records of Koch and
Moore. Accordingly, given Tharp’s holding that such records are public and
ascertainable by the defense, and Appellant’s failure to explain why the
records he sought were unobtainable with reasonable diligence, we conclude
that Brady was not violated in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2018
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