Com. v. Fisher

• Decision Date: 08 December 2000
• Citation: 2000 PA Super 379,764 A.2d 82
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David FISHER, Appellant.
• Court: Pennsylvania Superior Court

764 A.2d 82

2000 PA Super 379

COMMONWEALTH of Pennsylvania, Appellee, v. David FISHER, Appellant.

Superior Court of Pennsylvania.

Submitted September 5, 2000.

Filed December 8, 2000.

Robert F. Pappano, Brookhaven, for appellant.

Patrick L. Meehan, Assistant District Attorney, Media, for Com., appellee.

Before JOHNSON, J., EAKIN, J., and CERCONE, President Judge Emeritus. CERCONE, President Judge Emeritus:

¶ 1 Appellant David Fisher appeals from the Judgment of Sentence of fifteen (15) to thirty-six (36) months' incarceration, followed by three years probation, imposed after a jury found him guilty of assault, endangering the welfare of a child and possession of an instrument of crime.¹ After review, we affirm.

¶ 2 In late 1997 Appellant was engaged to be married to a Ms. Jennifer Childs who had a minor son, D.C.² Trial Court Opinion, dated 5/3/2000, at 3. In mid-December 1997 Appellant moved into Ms. Child's house. Shortly thereafter, D.C. began exhibiting unusual behavior such as sleeping face down in bed with his arms and legs crossed behind his back and also pulling his pajamas up to his shoulders. Id. at 4. D.C. also developed physical ailments such as bladder failure and alopecia areata.³ Id. In July of 1998 D.C. became emotionally distraught while visiting his grandparents and told his grandparents that Appellant had been beating him and forcing him to sleep in unnatural positions as punishment for being nice to his natural father. Id. at 5. The grandparents informed D.C.'s mother who immediately contacted the police. After investigation and interviews with D.C., the police subsequently arrested Appellant.

¶ 3 At trial D.C. related the specific instances of abuse which he suffered at the hands of Appellant:

[D.C.] testified that Appellant had used a belt to beat him when he had not done well in school. He also testified that Appellant would at times take [D.C.] into the basement after Ms. Childs had fallen asleep, pinch his ears and punch him in the stomach. Appellant had also on occasion pushed [D.C.] down the steps of the house that [D.C.] and Jennifer Childs lived in. Once, after [D.C.] had been visiting with his natural father, Appellant choked [D.C.], and told him never to be nice to his real father again. [D.C.] momentarily passed out, and then woke up before Ms. Childs arrived home. Appellant then told Jennifer that [D.C.] had been choking on a piece of candy, and that was why he had been unconscious.

[D.C.] also testified ... that Appellant once placed a bag over [D.C.'s] head while they were on their way to the video store. After placing the bag over [D.C.'s] head, Appellant acted as though he was going to throw [D.C.] in a dumpster. Appellant did not in fact throw [D.C.] into the dumpster, but [D.C.] testified that Appellant said he would throw him in the dumpster if he was nice to his real father ever again. [D.C.] testified that Appellant once had forced [D.C.] to lick his own fecal matter from a piece of [D.C.'s] used toilet paper. Also on a separate occasion, Appellant held a knife to [D.C.'s] penis, telling him that if he was ever nice to his real father again, he would cut "it" off.

Id. at 5-6. On November 5, 1999 the jury found Appellant guilty of the three aforementioned offenses.

¶ 4 On January 6, 2000, prior to his sentencing, Appellant, through trial counsel, filed a written pleading which he entitled a "Motion for Extraordinary Relief Pursuant to Pa.R.Crim.P. 1405(b)." However the Trial Court did not rule on this motion prior to sentencing but instead elected to treat it as a premature post-sentence motion and deferred action on it. The Trial Court then proceeded to sentence Appellant on February 1, 2000 to the term of incarceration set forth above. Subsequently, on March 7, 2000 the Appellant, now represented by new counsel from the public defender's office, withdrew the motion. Appellant thereafter filed his notice of appeal on March 15, 2000.

¶ 5 We are compelled by the circumstances of these proceedings to remind trial counsel and the Trial Court of the necessity of adhering to the express procedures set forth in Pennsylvania Rule of Criminal Procedure 1405(B). Rule of Criminal Procedure 1405(B) provides:

B. Oral Motion for Extraordinary Relief.

(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.

(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.

* * * * * *

Pa.R.Crim.P. 1405(B)(1), (2) (emphasis supplied). Hence, the plain terms of this Rule do not permit the filing of a written motion for extraordinary relief prior to sentencing. Commonwealth v. Davis, 708 A.2d 116, 119, n. 2 (Pa.Super.1998).

¶ 6 Moreover, Rule 1405(B)(1) clearly contemplates that any oral motion prior to sentencing be made only in exceptional circumstances. This Rule was not intended to provide a substitute vehicle for a convicted defendant to raise matters which could otherwise be raised via post sentence motion. As more fully set forth in the Explanatory Comment to this Rule:

Under Section B, when there has been an error in the proceedings that would clearly result in the judge's granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed.

Pa.R.Crim.P. 1405, Explanatory Comment.

¶ 7 Also, if a motion for extraordinary relief is made prior to sentencing, Rule 1405(B)(2) specifically requires that the trial court rule on the matters raised by such a motion prior to the imposition of its sentence. See id. ("Under paragraph B(2), the motion must be decided before sentence is imposed, and sentencing may not be postponed in order to dispose of the motion.") Thus, this rule does not allow a trial court to defer resolution of the matters raised by a motion for extraordinary relief until after sentence is imposed.

¶ 8 Nevertheless, we will not disturb the Trial Court's decision in this instance to treat Appellant's written motion for extraordinary relief as a post-sentence motion pursuant to Pa.R.Crim.P. 1410. Penalizing the Appellant under these circumstances, for a procedural default not of his own creation, would not advance the primary purpose of our Rules of Criminal Procedure, which is to "provide for the just determination of every criminal proceeding." Pa.R.Crim.P. 2.

¶ 9 Since the Trial Court elected to treat Appellant's written motion for extraordinary relief as a post-sentence motion pursuant to Pa.R.Crim.P. 1410, Appellant had thirty days from the date of his withdrawal of it to file his notice of appeal. Commonwealth v. Miller, 715 A.2d 1203, 1206 (Pa.Super.1998). Consequently, since Appellant filed his notice of appeal eight (8) days after formally withdrawing the motion, this appeal is timely.

¶ 10 On appeal to our Court Appellant presents two issues for our consideration:

I. WHETHER THE TRIAL COURT ERRED IN PROHIBITING APPELLANT FROM INTRODUCING CHARACTER AND REPUTATION TESTIMONY AS TO HIS VERACITY AT TRIAL?

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION AND PLAYING OF THE COMMONWEALTH'S EXHIBIT A, A COPY OF THE TAPE RECORDING MADE BY THE VICTIM'S MOTHER AS A VIOLATION OF THE BEST EVIDENCE RULE?

Appellant's Brief at 7. We will address these issues seriatim.

¶ 11 With respect to Appellant's first issue, he argues that the Trial Court erred by prohibiting him from introducing character evidence at trial to establish that he had a reputation for truthfulness and veracity. Appellant specifically contends that he should have been permitted to introduce such evidence since testimony given at trial and cross-examination of him by the Commonwealth had placed the question of his veracity at issue. After review, we must disagree.

¶ 12 We note at the outset of our discussion of this issue that an appellate court may reverse a trial court's ruling on the admissibility of evidence only upon a showing that the trial court abused its discretion. Commonwealth v. Minerd, 562 Pa. 46, 53-54, 753 A.2d 225, 229 (2000). Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will." Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.Super.2000).

¶ 13 The relevant Pennsylvania Rule of Evidence which governs the admissibility of this type of character evidence is Rule 608(a) which provides:

(a) Reputation Evidence of Character

The credibility of a witness may be attacked or supported by evidence in the form of reputation as to character, but subject to the following limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness; and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.

Pa.R.E. 608(a) (emphasis supplied).

¶ 14 This Rule is...