Commonwealth v. Aursby

• Decision Date: 17 June 2015
• Docket Number: No. 3601 EDA 2013,J. S30019/15,3601 EDA 2013
• Parties: COMMONWEALTH OF PENNSYLVANIA v. DYSHAN AURSBY, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. DYSHAN AURSBY, Appellant

J. S30019/15

No. 3601 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

JUNE 17, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence, July 26, 2013, in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0001044-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following appellant's convictions of attempted murder, aggravated assault, robbery, and conspiracy, all felonies of the first degree. Appellant was sentenced to 7½ to 15 years' incarceration for attempted murder, plus 5 to 10 years' incarceration for robbery, with no further penalty assessed for the additional charges. We affirm.

We adopt the factual history as summarized by the trial court.

These charges arose out of a dispute over drug sales between Appellant and the victim, Danny Williams ("Williams"). On May 22, 2011, between 1 A.M. and 2 A.M., Appellant, co-defendant, Clarence Burbage ("Burbage"), and Rakeem Divers ("Divers"), attacked Jerry Holloman ("Holloman"), also known as "Mike". Appellant, Burbage, andDivers asked Holloman where Williams was and Holloman told them that Williams was with his girlfriend, Delisha Foy ("Foy"), at her house. Appellant, Burbage, and Divers told Holloman to call Williams on the phone. When Holloman hesitated, Burbage took Holloman's phone and called Williams. The three men held Holloman at gunpoint as they walked to Foy's house on South 66^th Street to see Williams. When they arrived at Foy's home, Holloman was told to stand at the door while Appellant, Burbage, and Divers hid. When Williams opened the door, Holloman yelled "run". Williams attempted to slam the door shut but Burbage headed inside before the door closed. Holloman ran down the alleyway across the street from Foy's home while Appellant and Divers followed Burbage into the home. As Burbage, Appellant, and Divers went into the home, Williams ran up the stairs to the second floor. Williams then jumped out of a second floor window, hit the ground, and began limping away. Appellant and Divers followed Williams, Appellant drew a gun, and fired it at Williams, striking Williams in his left buttock. Burbage told Foy, who was in the house at the time of the incident, that Williams "robbed his young bull", then Burbage took money off of a table downstairs before leaving.

After Appellant, Burbage, and Divers left, Holloman found Williams laying [sic] on the ground and stayed with him until the police arrived. Williams was taken to the Hospital of the University of Pennsylvania (HUP). That same day, Williams was interviewed inside HUP and told Detective Maurizio that Appellant, whom he referred to as "Sha", and Burbage, whom Williams referred to as "C Murder" shot him. Based on the identifications made by Williams and Holloman, arrest warrants were filed for Appellant and Burbage. At approximately 10:20 P.M. on May 22, 2011, Philadelphia Police Officers McLaughlin and McKiernon arrested Appellant.

Trial court opinion, 8/5/14 at 2-3.¹

Appellant and Burbage were tried together. On May 31, 2013, following a jury trial, appellant was found guilty of the above-mentioned crimes. Appellant was sentenced on July 26, 2013 to an aggregate term of incarceration of 12½ to 25 years. A timely post-sentence motion was filed and was denied by operation of law on December 4, 2013. Appellant filed a timely notice of appeal on December 12, 2013. Appellant was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and he complied. The trial court filed a Rule 1925(a) opinion.

Appellant raises four issues for our consideration; we will review them in the order presented:

I. Whether the Court erred when it would not instruct the jury on Aggravated Assault as a felony of the second degree[?]

II. Whether the Court erred when it would not grant a mistrial after Commonwealth witness Jerry Holloman blurted out that the defendants were crazy and do a lot of stuff in the neighborhood[?]

III. Whether the adjudication of guilt is against the weight of the evidence and shocking to one's sense of justice where the witnesses against the Appellant were dishonest, corrupt and polluted sources of information and where they were contradictory and possessed their own motives to harm the victim[?]

IV. Whether the adjudication of guilt is based upon insufficient evidence where the inference that the Appellant had been accurately identified was not a reasonable inference and whether the adjudication of guilt for Attempted Murder and Aggravate[d] Assault are based upon insufficient evidence that the shooter possessed the malice necessary for Attempted Murder or that he attempted to cause or did cause a serious bodily injury[?]

Appellant's brief at 6.

In his first issue on appeal, appellant contends the trial court erred when it failed to instruct the jury on aggravated assault as a felony of the second degree. Appellant's argument lacks merit.

In relevant part, the Crimes Code defines aggravated assault in the following manner:

(a) Offense defined.--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;

. . . .

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

. . . .

(b) Grading.--Aggravated assault under subsection (a)(1) and (2) is a felony of the first degree. Aggravated assault under subsection(a)(3), (4), (5), (6) and (7) is a felony of the second degree.

18 Pa.C.S.A. § 2702(a)(1), (4).

Appellant was only charged with aggravated assault of the first degree, Section 2702(a)(1). Because appellant was not charged with aggravated assault as a felony of the second degree, he was not entitled to an instruction on an uncharged crime, which was not a lesser included offense of a charged crime. See Commonwealth v. Ferrari, 593 A.2d 846, 848-849 (Pa.Super. 1991) (this court held that because the "with a deadly weapon" provision of § 2702(a)(4) is not found in § 2702(a)(1), the former is not a lesser included offense of the latter), appeal denied, 618 A.2d 398 (Pa. 1992); see also Commonwealth v. Harrison, 663 A.2d 238, 241 (Pa.Super. 1995) (since appellant was not on trial for criminal trespass, he was not entitled to an instruction on finding him guilty of criminal trespass), appeal denied, 674 A.2d 1067 (Pa. 1996).

In his second issue, appellant contends the trial court erred when it admitted Holloman's testimony that he was scared of appellant and Burbage, his co-defendant, who he said were "crazy" and who "do a lot of things out in the street." (Notes of testimony, 5/22/13 at 129-130.) Appellant contends the trial court erred when it denied his motion for a mistrial.

"In reviewing a trial court's denial of a motion for a mistrial, our standard is abuse of discretion." Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). "An abuse of discretion is not merely an error of judgment,but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, . . . discretion is abused." Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014) (citation omitted). "A mistrial is an extreme remedy that is required only where the challenged event deprived the accused of a fair and impartial trial." Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011).

Instantly, appellant asserts Holloman's testimony that he and Burbage were "crazy" and "do a lot of things out in the street" implicates unproven allegations that appellant was committing other unrelated crimes or bad acts. (Appellant's brief at 22.) Appellant contends this testimony created unfair prejudice to him because it suggested he was a person of bad character who habitually committed crimes on the street. (Id.)

Generally, only evidence that is relevant is admissible. Pa.R.E. 402.

Evidence is relevant if it tends to prove or disprove a material fact. Relevant evidence is admissible if its probative value outweighs its prejudicial impact. The trial court's rulings regarding the relevancy of evidence will not be overturned absent an abuse of discretion.

Conroy v. Rosenwald, 940 A.2d 409, 417 (Pa.Super. 2007); see Pa.R.E. 402, 403.

The trial court explained why Holloman's statement was admissible:

Holloman's statement was relevant to show why he had made incomplete or inconsistent statements tothe police, a material fact at issue. Additionally, Holloman's statement did not indicate an identifiable criminal act that would have a tendency to suggest a jury decision on an improper basis. Discrete crimes, such as selling drugs, were mentioned in testimony prior to Holloman's statement and were not objected to.

Trial court opinion, 8/5/14 at 5 (references to notes of testimony omitted).

Our review of the record indicates that Holloman was taken to police headquarters where he made two statements. (Notes of testimony, 5/21/13 at 31.) Holloman testified that he did not tell the truth in the first statement. (Id. at 32.) He told the police the name of the person who did the shooting, but did not tell the police that he witnessed the shooting. (Id.) Holloman stated he was "scared" as the reason for not telling the police he witnessed the shooting. (Id. at 33.) The police continued to ask him questions, and three hours later, he admitted that he was present at the scene and told the police exactly what he saw. (Id. at 36.)

On cross-examination, the defense was attacking Holloman's credibility by pointing out the two statements. During redirect, the Commonwealth asked Holloman what the reason was for making the two...