Jeremy S. Hostetter has filed a direct appeal to the Superior Court of. Pennsylvania from the judgment of sentence imposed on October 2, 2014.

Transcription

1 Commonwealth v. Hostetter No Ashworth, J. December 1, 2014 Criminal Attempted Murder Arson Pa. R.A.P. 1925(a) Opinion Fifth Amendment Right to Remain Silent Court acted within its discretion in concluding that portion of the audio recording of Appellant s statement to the police in which he stated he did not want to answer any more questions was not intended to imply a tacit admission of guilt by Appellant. Evidence Admissibility Lay Testimony Relevancy Competency Some degree of medical evidence was necessary to establish that 37-year-old s physical limitations resulting from two hip surgeries as a child left him unable to run or ambulate quickly when confronted with a threatening situation. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : No : JEREMY SPAYD HOSTETTER : OPINION SUR PA. R.A.P. 1925(a) BY: ASHWORTH, J., DECEMBER 1, 2014 Jeremy S. Hostetter has filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence imposed on October 2, This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. I. Background

2 The relevant facts and the procedural history of this case may be summarized as follows. On September 22, 2013, Appellant and his friend, Marlin J. Dyer, were involved in a physical altercation in the area of North Decatur Street and Wasp Street in Marietta, East Donegal Township, Lancaster County. (Notes of Testimony (N.T.), Trial at 82, 97, , 104.) Appellant, who was carrying a container with ignitable fluid, then intentionally doused Dyer s clothing and person with the accelerant and set the victim on fire with a cigarette lighter causing severe, life threatening injuries. (Id. at , ) As a result, Appellant was charged on September 23, 2013, with attempted murder (F1), aggravated assault (F1), and arson danger of death or bodily injury (F1). 1 Immediately following the incident on September 22, 2013, Appellant was interviewed twice by the Susquehanna Regional Police Department. During these interviews, Appellant stated the use of deadly force was accidental. Specifically, Appellant claimed that the accelerant doused both himself and Dyer while both men were tussling with each other. Appellant went on to state that his cigarette accidentally lit both men on fire. Appellant s claim to the police was that the use of deadly force was accidental on his part. Appellant would later file a motion to suppress his statements made during these police interviews and the evidence seized pursuant to a search warrant for Appellant s mobile home and back-yard shed. A suppression hearing was held immediately prior to trial on July 28, At that time, however, Appellant limited his challenge to the search warrant for his home. (See N.T., Suppression at 3-4.) At the conclusion of the hearing, the motion was denied. (Id. at 28.) A jury trial commenced immediately thereafter on July 28, 2014, and concluded with a verdict of guilty on all counts on July 30, Pa. C.S.A. 901(A), 18 Pa. C.S.A. 2702(A)(1), and 18 Pa. C.S.A. 3301(A)(1), respectively. 2

3 Following a pre-sentence investigation, Appellant stood for sentencing on October 2, This Court imposed a sentence of 10 to 20 years incarceration on the criminal attempt at homicide charge and a concurrent sentence of 4 to 8 years incarceration on the arson charge. (N.T., Sentencing at 25.) The aggravated assault charge merged for sentencing purposes with the criminal attempt. (Id.) Restitution in the amount of $559, was also ordered. (Id.) Appellant was given pre-sentence credit totaling 375 days. (See Sentencing Order.) Appellant was represented at trial and sentencing by privately-retained counsel, Robert D. Beyer, Esquire. A timely notice of appeal was filed on October 31, 2014, by the Office of the Public Defender, specifically, MaryJean Glick, Esquire. Pursuant to this Court s directive, Appellant filed a statement of errors complained of on appeal, in which Appellant raises two issues: (1) whether [t]he trial court erred in refusing to omit, from the recording of [Appellant s] second recorded statement to police, [Appellant s] statement that he did not want to answer any more questions ; and (2) whether [t]he trial court erred when it refused to permit Robin Leed, [Appellant s] mother, to testify that after having several hip surgeries as a child, [Appellant] was no longer able to run, and that this physical disability continued to the present day. (See Statement of Errors at 1, 2.) II. Discussion A. Fifth Amendment Right to Remain Silent Initially, Appellant contends that his Fifth Amendment right to remain silent was violated when I refus[ed] to omit, from the recording of [Appellant s] second recorded statement to police, [Appellant s] statement that he did not want to answer any more questions. (See Statement of Errors at 1; see also N.T., Trial at 330.) It is well settled that [a]n accused's Fifth Amendment right to remain silent 3

4 after arrest is unequivocal. 2 Commonwealth v. Williams, 296 Pa. Super. 97, 100, 442 A.2d 314, 316 (1982). Any mention of the fact that a defendant availed himself of that protection must be scrupulously avoided. Id. Our Supreme Court, however, has concluded that mere reference to a defendant's silence does not necessarily impinge constitutional rights when guilt is not implied. Commonwealth v. Adams, 2014 WL , at *5 (Pa. Nov. 20, 2014) (citing Commonwealth v. DiNicola, 581 Pa. 550, 563, 866 A.2d 329, 337 (2005) and Commonwealth v. Whitney, 550 Pa. 618, 633, 708 A.2d 471, 478 (1998)). The Court very recently noted in Adams: While we have interpreted the constitutional right against self-incrimination generally to prohibit prosecutors from referencing a defendant's silence as substantive evidence of guilt, this Court has also concluded that the right against self-incrimination is not burdened when the reference to silence is circumspect and does not create an inference of an admission of guilt. DiNicola, 866 A.2d at [E]ven an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt. See Id. (quoting Whitney, 708 A.2d at 478). Id. Applying this precedent to the instant case, this Court acted within its discretion in concluding that that portion of the audio recording of Appellant s second statement in which he stated he did not want to answer any more questions was not intended to imply a tacit admission of guilt by Appellant. Appellant cannot establish that he has been prejudiced by having evidence of his request to stop the questioning introduced as part of his statement to the police. The prosecutor in this case never argued to the jury that Appellant s request to stop further questioning 2 In relevant part, the United States Constitution decrees that No person... shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. Similarly, the Pennsylvania provision dictates that the accused cannot be compelled to give evidence against himself[.] PA. CONST. art. 1, 9. See Commonwealth v. Adams, 2014 WL , at *8 (Pa. Nov. 20, 2014); Commonwealth v. Lettau, 604 Pa. 437, 442, 986 A.2d 114, 117 (2009). 4

5 tacitly suggested his guilt; nor did I charge the jurors that they could consider the evidence for such a purpose. It was not likely to create an inference of guilt, which the Fifth Amendment is meant to prevent. Therefore, there was no violation of Appellant s right to remain silent. B. Admissibility of Lay Testimony Appellant next claims that it was trial court error to refuse to permit Appellant s mother, Robin Leed, to testify that after having several hip surgeries as a child, [Appellant] was no longer able to run, and that this physical disability continued to the present day. (See Statement of Errors at 2; see also N.T., Trial at l.) Appellant sought to introduce this evidence as relevant and probative to Appellant s ability to retreat with complete safety from the altercation with Dyer. (N.T., Trial at 432, 434.) The Commonwealth objected to this testimony for two reasons. First, the proffered testimony had to do with a childhood injury and, as represented by defense counsel, the mother s testimony would be limited to what she observed in him as a child. (N.T., Trial at 433.) Second, the proffered testimony amounted to medical evidence to which the mother was not competent to testify to a degree that would be reliable to a jury. (Id.) The admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Commonwealth v. Johnson, 615 Pa. 354, , 42 A.3d 1017, 1027 (2012). An abuse of discretion occurs where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record. Id. (quoting Commonwealth v. Randolph, 582 Pa. 576, 583, 873 A.2d 1277, 1281 (2005). Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact. 5

6 Commonwealth v. Reese, 31 A.3d 708, 716 (Pa. Super. 2011) (quoting Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 (2002)). In the instant case, I determined that, if the jury was going to be presented with evidence regarding Appellant s inability to escape a threatening situation due to a disability or physical limitation, it had to be relevant in time, as Appellant is now 37, and it had to be competent, meaning that there exists credible medical proof of his incapacity. (N.T., Trial at 434.) Unsupported lay testimony was simply insufficient to establish Appellant s inability to safely retreat from what he viewed as a menacing encounter with Dyer. By analogy, it has been held in refusal to submit to chemical testing in DUI cases that lay testimony that a driver is physically unable to perform a chemical test without supportive medical proof of the driver s incapacity will not justify a refusal. The courts require competent medical evidence to establish what effect, if any, the alleged medical condition or limitation would have on the ability to make a knowing refusal. See Maletic v. Dep't of Transp., Bureau of Driver Licensing, 819 A.2d 640, (Pa.Cmwlth. 2003) (en banc); Commonwealth, Department of Transportation, Bureau of Traffic Safety v. Dauer, 52 Pa.Cmwlth. 571, , 416 A.2d 113, 115 (1980); Commonwealth v. Passarella, 7 Pa.Cmwlth. 584, 300 A. 2d 844 (1973). Likewise, some degree of medical evidence was necessary here to establish that Appellant s physical limitations resulting from two hip surgeries as a child left him unable to run or ambulate quickly when confronted with a threatening situation. The refusal to admit the proffered evidence was proper in this case and, as there was no abuse of discretion, there was no reversible error. 6

7 III. Conclusion For the reasons set forth above, Appellant s judgment of sentence should be affirmed and his appeal dismissed. Accordingly, I enter the following: IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : No : JEREMY SPAYD HOSTETTER : O R D E R 7

8 AND NOW, this 1 st day of December, 2014, the Court hereby submits this Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. BY THE COURT: DAVID L. ASHWORTH JUDGE ATTEST: Copies to: Susan E. Moyer, Assistant District Attorney MaryJean Glick, Senior Assistant Public Defender