Commonwealth v. Harrison

• Docket Number: 519 MDA 2022,520 MDA 2022,J-A16020-23,J-A16021-23
• Decision Date: 28 November 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. STUART HARRISON Appellant COMMONWEALTH OF PENNSYLVANIA Appellant v. STUART HARRISON
• Court: Pennsylvania Superior Court

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2023 PA Super 244

COMMONWEALTH OF PENNSYLVANIA
v.
STUART HARRISON Appellant

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
STUART HARRISON

Nos. 519 MDA 2022, 520 MDA 2022

Nos. J-A16020-23, J-A16021-23

Superior Court of Pennsylvania

November 28, 2023

Appeal from the Order Entered November 1, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0007632-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

OPINION

BENDER, P.J.E.

Former police officer, Stuart Harrison, faces one count of simple assault despite the Commonwealth's two attempts to terminate that prosecution. In its second attempt, which is the subject of this interlocutory appeal by permission, the Commonwealth claimed that it could not proceed due to the death of a witness. The trial court disagreed with the Commonwealth's

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evidentiary analysis. Harrison and the Commonwealth^[1] ask this Court to conclude that the trial court improperly credited its own view of the evidentiary question instead of deferring to the Commonwealth's judgment. The parties submit that this Court should look to In re Ajaj, 288 A.3d 94 (Pa. 2023), which addresses judicial review of prosecutors' declining to file private criminal complaints, for the relevant standard of review. Under that standard, the Commonwealth's petition must be granted unless its request was due to "bad faith, occurred due to fraud, or was unconstitutional." Id. at 97.

We decline to adopt this standard, as the decision to file charges is distinguishable from a decision to withdraw charges. In the former case, which In re Ajaj addresses, the prosecutor has decided that criminal charges were not warranted. The judicial branch must tread lightly when interfering with that judgment call. In the latter scenario, the prosecutor decided at one time that charges were warranted. That is a conscious choice to implicate the judicial branch. For the reasons set forth below, we conclude that a motion to withdraw a charge due to purported evidentiary insufficiency is subject to de novo review, as it presents a pure question of law. We agree with the trial court's assessment of the evidence and therefore affirm.

I.

On May 30, 2018, employees of the Santander Bank requested assistance from the Southwestern Regional Police Department. Harrison, an

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officer employed by that department, responded and met the bank manager, who pointed out Ryan Smith. The manager informed Harrison that Smith was attempting to withdraw money from his account but did not have any identification. Smith refused to comply with Harrison's command to leave the bank. Harrison eventually informed Smith that he was under arrest and twice deployed his TASER, which did not make sufficient contact with Smith's skin to disable him.

A second officer, Michael Matthews, arrived to assist after the second TASER deployment. Eventually, the two officers were able to cuff Smith's hands behind his back and escorted him from the building. Smith refused to enter the patrol vehicle, and the two officers struggled to force him into the backseat. Ultimately, Harrison "decided that he was going to drive stun … Smith in the thigh with his TASER to see if that would get him to buckle his leg so that they could get him in the back seat of the car." Affidavit of Probable Cause, 11/30/18, at 3 (summarizing interview with Harrison). Smith pulled a trigger and immediately realized he had mistakenly drawn his firearm. The bullet entered Smith's leg, requiring a 17-day hospital stay.

Smith's mother, Christine Smith, witnessed the shooting. She told investigators that Smith said he was going to get money from the bank. She explained that Smith had a mental illness, had been treated at the hospital for psychiatric reasons and had just been released the day before, and seemed delusional. She followed her son and told the arresting officers during the struggle that Smith was experiencing a mental break.

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The Pennsylvania State Police investigated and interviewed, among others, Amanda Hendrickson-Cozio, who worked at the bank as a cleaner, and Harry Harrington, a customer at the bank. Hendrickson-Cozio saw the shooting but did not witness the events inside the bank. Harrington witnessed the entire encounter. The investigators also obtained video footage recorded on a phone, which showed the initial dispute and TASER deployments. Harrison was charged with one count of negligent simple assault. 18 Pa.C.S. § 2701(a)(2) ("[A] person is guilty of assault if he … negligently causes bodily injury to another with a deadly weapon[.]").

Hendrickson-Cozio, Christine Smith, and Trooper Daniel Weldon testified at the preliminary hearing on December 21, 2018. Harrison was held on the sole charge.

The first attempt to terminate prosecution

The Commonwealth first tried to terminate this prosecution on May 19, 2020. While that ruling is not before us, it is referenced within the trial court's opinion on this matter and provides context.

The Commonwealth attached a memorandum of law to its petition, explaining that the nolle pros was "in the interests of justice." Memorandum in Support of Nolle Prosequi, 5/19/20, at 1 (unnumbered). The memorandum was almost entirely based on the Commonwealth's analysis of the sentencing factors set forth at 42 Pa.C.S. § 9721(b) (instructing a court to consider "the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs

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of the defendant"). The Commonwealth cited Harrison's 16-year career and argued that Harrison was not likely to recidivate. Similarly, the Commonwealth determined that Harrison's rehabilitative needs were nonexistent as the incident was a mistake. The Commonwealth also cited Harrison's expressions of remorse and his conduct after-the-fact, which included addressing two cadet classes about the shooting. The Commonwealth believed that these actions "establish that he highly appreciates the seriousness of this offense and his great degree of remorse for injuring Mr. Smith." Id. at 4.

Turning to the victim's needs, the Commonwealth did not mention Smith, instead citing its discussions with his mother. The memorandum stated that Mrs. Smith had "stressed two matters as critical outcomes for this case," which were that Harrison no longer carry a firearm while working and that the shooting serve as an educational example for dealing with mental health issues. The Commonwealth noted that Harrison is no longer working as a police officer and cited the trainings conducted by Harrison. "The Commonwealth believes that these primary outcomes sought by Mrs. Smith are accomplished." Id. at 5. The Commonwealth conceded that Mrs. Smith objected to withdrawing the charge but asserted that any further punishment "would be … punishment for punishment's sake." Id. at 5-6. The Commonwealth stressed that "Mr. Harrison has, in fact, undergone a lasting punishment" because he had been arrested and suffered "collateral

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consequences and public stigma. That lasts regardless of whether a conviction occurred." Id. at 6.

The Honorable Maria Musti Cook denied the petition following a hearing on June 15, 2020. The court stated at the outset its concern that the Commonwealth's filings indicated that Smith had not been given notice of the hearing. District Attorney David Sunday explained that, as set forth in the memorandum, the Commonwealth had discussed its plan with Smith's mother. Attorney Sunday added that he spoke with Smith's "personal injury lawyer and … I certainly thought that everything was being communicated to him." N.T., 6/15/20, at 3-4.

The trial court then asked Smith, who was present, what communications he had received. Smith stated, "None. The [District Attorney] has never reached out to me once." Id. at 5. Smith stated that he was present only because "Ashley contacted me and told me what was going on…." Id. at 6.^[2] The trial court then asked Mrs. Smith about the Commonwealth's discussions with her. She agreed that the District Attorney's Office had discussed the matter with her and confirmed that she disapproved of the decision to drop the charge. Attorney Sunday explained at length why he believed a withdrawal was appropriate and argued that most prosecutors would not have filed charges at all.

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The trial court characterized the Commonwealth's memorandum as focusing on "sentencing considerations, and sentencing considerations come into play after there's a plea or a verdict." Id. at 16. The court opined that a nolle pros is appropriate when "the evidence is insufficient to sustain a conviction," and the Commonwealth "[is] not saying that." Id. The Commonwealth replied that sentencing law is "the closest that we can find." Id. at 17. The trial court denied the petition as well as the Commonwealth's request that the court amend the order to state it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter." 42 Pa.C.S. § 702(b). See Pa.R.A.P. 311(a)(1) (authorizing appeal certified under that statute). The Commonwealth then sought permission to appeal, which we denied on November 9, 2020.

Second attempt to terminate prosecution

The next event on the criminal docket sheet after the Commonwealth's petition to appeal was denied is dated September 16, 2021, when the Commonwealth filed its second motion for nolle prosequi, which is the subject of this appeal. On November 1, 2021, the parties appeared for a hearing. The Commonwealth claimed that it could no longer proceed as Harrington had died on March 23, 2019. The Commonwealth stated that, without his testimony, "the Commonwealth does not believe it can meet its burden beyond a reasonable doubt. When we cannot meet our burden,...