Com. v. Sullivan

CourtSuperior Court of Pennsylvania
Citation820 A.2d 795
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Charles Adrian SULLIVAN, Appellant.
Decision Date25 March 2003

820 A.2d 795

COMMONWEALTH of Pennsylvania, Appellee,
Charles Adrian SULLIVAN, Appellant

Superior Court of Pennsylvania.

Argued November 20, 2002.

Filed March 25, 2003.

820 A.2d 798
Wilbert H. Beachy, Somerset, for appellant

Dwight G. Diehl, Asst. Dist. Atty., Bedford, for Com., appellee.


820 A.2d 796

820 A.2d 797

¶ 1 Appellant, Charles Adrian Sullivan ("Sullivan") appeals from a judgment of sentence entered in the Court of Common Pleas of Bedford County on November 8, 2001.1 We affirm the judgment of sentence and remand the matter with directives.


¶ 2 In September 2001, Sullivan was convicted by a jury of voluntary manslaughter in the shooting death of Michael Terrance McElfish ("McElfish"), 18 Pa. C.S.A. § 2503(a)(1), and carrying a firearm without a license, 18 Pa.C.S.A. § 6106. The trial court aptly summarized the underlying facts in its Memorandum and Order of February 6, 2002:

Through the various statements of [Sullivan], as well as his testimony at trial, the following series of events could reasonably be established by the jury:
On the night of January 1, 2001, Mr. McElfish and [Sullivan] were at a bar in Cumberland, Maryland, when Mr. McElfish was kicked out of the bar for "acting up." Mr. McElfish was drunk and the evidence at trial showed that he tended to act more aggressively while intoxicated. In the bar parking lot, Mr. McElfish began shouting at cars and objects. According to [Sullivan], Mr. McElfish was "demonstrating a very aggressive behavior toward anything, anybody." See Transcript of Police Interview with Charles Adrian Sullivan, dated 1/2/01, at p. 5.
The pair agreed to go hunt deer on some property in Pennsylvania that was owned by Mr. McElfish's family. While driving from Cumberland to Pennsylvania, Mr. McElfish "suddenly went off," kicking everything inside the car. Mr. McElfish "became a maniac:" he was "trashing" the inside of the car, punching and kicking the dash, the door, the windows, and the sunroof. Id. at p. 5-6. Mr. McElfish was also yelling out the window, and kicking toward [Sullivan] who was driving. Mr. McElfish "ordered" [Sullivan] to turn his lights off so that they could "ridge roam" for deer. He also punched [Sullivan] in [sic] chest, causing him to drive off road and onto a snow bank. [Sullivan] testified that Mr. McElfish was "growling" like a dog throughout the trip to Pennsylvania and stated to the police that Mr. McElfish was "trying to kick the s___ out of me at one point... the further out we drove the more threatening the environment was.."
820 A.2d 799
When Mr. McElfish forced [Sullivan] off the road, his behavior "escalate[d] to another level of hostility," according to [Sullivan]. Id. at p. 6. Once they drove off the road and became stuck on the snow bank, [Sullivan] asked Mr. McElfish to help push the car off the snow bank. But he would not get out and push the car. The two argued over getting stuck in the snow and Mr. McElfish responded "f___ you, f___ you" and struck [Sullivan] in the shoulder. [Sullivan] stepped out of the car, and grabbed his hunting rifle from the back seat. He demanded that Mr. McElfish get out of the car. [Sullivan] later told police "why wouldn't he [the victim] just get out of the car, he kept kicking it and kicking it." [Sullivan] demanded that Mr. McElfish leave, and fired a warning shot into the air from his hunting rifle. [Sullivan] told police that he was using the rifle to intimidate Mr. McElfish to get him out of the car. However, Mr. McElfish continued to kick the inside of the car and the warning shot had no effect on him. He continued drinking and "growling," according to [Sullivan]'s testimony.
[Sullivan] stated that he remained outside of the car because Mr. McElfish had hit him. Mr. McElfish then threw something out the window at [Sullivan] which hit him in the forehead (the object could have been a beer cap).... [Sullivan] again asked Mr. McElfish to leave, and Mr. McElfish responded "f___ it," and punched inside of car [sic] again. When [Sullivan] grabbed the revolver out of the back seat, Mr. McElfish responded "f___ you, you going to shoot me?," or "f___ you, kill me!"

Memorandum, 2/6/02, at 6-8. McElfish was fatally shot immediately after the above exchange.

¶ 3 Following the jury's verdict, the trial court sentenced Sullivan to consecutive terms of imprisonment of five to ten years for voluntary manslaughter and one to three years for the firearm offense. Sullivan filed the following post-sentence motions: Motion in Arrest of Verdict challenging the sufficiency of the evidence to support his conviction, and Motion for New Trial on the grounds that the verdict was against the weight of the evidence, and that Sullivan's motion for a mistrial should have been granted after a state trooper testified as to an inculpatory statement made by Sullivan following his arrest which the Commonwealth failed to disclose during discovery. Sullivan also challenged the trial court's calculation of his prior record score as well as the application of a deadly weapon enhancement in the determination of his sentence.

¶ 4 Following a hearing, the trial court issued a memorandum and order on February 6, 2002 granting Sullivan's motions insofar as his sentences were modified to run concurrently rather than consecutively. The trial court denied Sullivan's remaining claims and this timely appeal followed.

¶ 5 Sullivan raises the following issues on appeal:

1. Was [Sullivan]'s conviction of voluntary manslaughter against the sufficiency and weight of the evidence presented?
2. Did the lower court commit error by not excluding through declaration of a mistrial an inculpatory statement allegedly made by [Sullivan], not disclosed as mandated in advance of trial, so as to entitle [Sullivan] to a new trial?
820 A.2d 800
3. Did the lower court commit error by referring to a statement made by [Sullivan] as a "confession" in further instructions to the jury, after the jury had begun its deliberations and had requested to see a transcript of it, which request was denied by the lower court, thereby entitling [Sullivan] to a new trial?

Brief for Appellant, at 5. We shall address Sullivan's issues in reverse order.


¶ 6 During deliberation, the jury requested a transcript of a tape-recorded statement made by Sullivan to two state troopers. In responding to the jury's request, the trial judge read the following excerpt from Pennsylvania Rule of Criminal Procedure 646 pertaining to material permitted in possession of a jury:

During deliberations the jury shall not be permitted to have the first is a transcript of any trial testimony which would be the deposition. And the second one is a copy of any written or otherwise recorded confession by the defendant. So the rules of procedure do not permit me to, for you to have them in your possession during deliberation.

N.T., 9/11/01, at 86 (emphasis added). Sullivan's attorney objected to the use of the word "confession" but did not request a curative instruction. Id. at 87. Sullivan now argues that he is entitled to a new trial because "the lower court was expressing its opinion of Sullivan's guilt as well as invading the prerogative of the jury as a fact finder in determining how Sullivan's statement was to be regarded." Brief for Appellant, at 21.2

¶ 7 In reviewing Sullivan's claim, we are guided by the following principles:

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Moreover, it must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable to every case. An accepted guide in determining prejudicial effect is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair trial.

Commonwealth v. Goodwine, 692 A.2d 233, 237-238 (Pa.Super.1997) (citations omitted) (emphasis original).

¶ 8 We have reviewed the trial court's jury instructions in their entirety and find that they more than adequately apprised the jurors of their responsibility, as sole judges of the facts, to assess the credibility and weight to be accorded to the testimonial evidence. A contextual reading of the challenged remark indicates that the judge was reading verbatim from the Pennsylvania Rules of Criminal Procedure, not commenting directly on the substance or characterization of Sullivan's statement. We have no doubt that the effect of the trial judge's isolated remark on the jury, if there was any at all, was slight and in no way deprived Sullivan of his right to a fair

820 A.2d 801
and impartial trial. Consequently, Sullivan's argument must fail.

¶ 9 Sullivan's second issue concerns an alleged discovery violation by the Commonwealth. At trial, State Trooper John S. Beaken offered the following testimony on direct examination by the Commonwealth regarding his recollection of Sullivan's statements to the police after the incident:

So he said then he pulled out his revolver from the back seat. And he was saying he had some type of problem loading or, or his rifle. I can't recall exactly what that was. But he said he reached for his revolver. He said it was single action. And that he cocked the hammer and pointed it toward Mr. McElfish and told him to get out of the car. He said a, that he said to him more or less, "What are you going to do? Shoot me?" He says: ["]Go ahead—f'n shoot me,["] something to that effect. He

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