Com. v. Mitchell

883 A.2d 1096

COMMONWEALTH of Pennsylvania, Appellee, v. Steven W. MITCHELL, Appellant.

Superior Court of Pennsylvania.

Submitted March 28, 2005.

Filed September 12, 2005.

Lynn E. Ober, Leesport, for appellant.

Andrew J. Serina, Asst. District Atty., Pottsville, for Com., appellee.

BEFORE: LALLY-GREEN, PANELLA, and KELLY, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Steven W. Mitchell, appeals from the judgment of sentence imposed on December 29, 2003, following his conviction by jury of kidnapping, aggravated assault, and related offenses. The trial court imposed an aggregate prison term of five to ten years. We affirm.

¶ 2 The trial court described the factual background of the case as follows:

The evidence elicited at trial indicated that Defendant had been under the belief that the victim herein, Jason Moyer, had engaged in inappropriate sexual activity with Defendant's adult step-daughter (which conduct Moyer had denied—claiming such had been consensual). Defendant, who knew Moyer, contacted Moyer's mother-in-law's residence by telephone on August 11, 2002, demanding that Moyer come to Defendant's home to apologize to Defendant's step-daughter. Moyer, at first reluctant to go to Defendant's home, agreed to do so upon the insistence of his (Moyer's) mother-in-law.

After Defendant made two telephone calls in an attempt to contact Moyer, Defendant and Kevin Nester, Defendant's friend and co-conspirator herein, drove to Moyer's mother-in-law's home. Upon arrival, Defendant found that Moyer was not there. Defendant and Nester left, but eventually found Moyer standing outside Clouser's mini-market near Auburn, Schuylkill County. Upon seeing Moyer, Defendant chased Moyer into the market, where Moyer ran behind a counter and asked the cashier for "help." Defendant followed Moyer, grabbed and struck Moyer, and took Moyer outside, where Defendant forced Moyer to pump gas into Nester's car. While doing so, Defendant smacked Moyer in the face, slammed Moyer's head into a car window, and held the gas hose handle over Moyer's head.

At some point, Moyer became able to free himself from Defendant's control and ran into an adjacent field. Defendant chased Moyer, but Moyer kept running, escaping into a nearby wooded area. Defendant returned to the mini-market, and removed spark plug wires from Moyer's vehicle, disabling the vehicle. After some time, believing Defendant had left the area, Moyer returned to and entered his vehicle, discovering, however, that it was inoperable. Defendant reappeared, grabbed Moyer, pulled him from the car and forced him into the back seat of Nester's car and closed the door, whereupon Nester, who was driving the car, left the mini-market parking lot. While in the car, Defendant struck Moyer multiple times in the back, shoulders, face and head.

According to Moyer, Nester drove to Defendant's residence, where Nester, Defendant and Moyer exited the vehicle. Defendant told Moyer to apologize to his step-daughter for the alleged sexual activity. Moyer did so, but maintained that the incident had occurred due to miscommunication. After a short period, Defendant again forced Moyer into the back seat of Nester's vehicle, made Moyer put on a blindfold and place his head on Defendant's lap. While Nester drove, Defendant elbowed, punched and slapped Moyer multiple times for approximately fifteen to twenty minutes, during which Moyer cried, asking Defendant to stop hitting him, saying he (Moyer) wanted to go home.

Eventually, the car stopped. Defendant took the blindfold from Moyer's eyes and Defendant and Nester escorted Moyer through a wooded area, where Moyer was forced to remove his clothes and lie on the ground. Defendant and Nester then repeatedly hit Moyer with a club. During the incident, Defendant ordered Moyer to raise his legs, whereupon Nester hit Moyer in the testicles with the club, while, occasionally, Defendant stepped on Moyer's neck. Defendant also beat Moyer with the club, striking Moyer on the back and spine numerous times, rendering Moyer, at one point, unable to feel "anything" for twenty or thirty seconds. While Defendant restrained Moyer, Nester produced a knife and cut Moyer in the chest. During the ordeal, Defendant, who was smoking cigarettes, used a lit cigarette to burn Moyer's testicles. Eventually, Defendant pulled Moyer to his feet, threw Moyer into a thorn bush and told Moyer to crawl through the bush.

After Moyer had crawled from the bush, he was told to wash his body and the club in a nearby pond and to get dressed. Moyer complied. After washing, Moyer was forced back into the car, with Defendant, again, in the backseat and the blindfold put over Moyer's eyes. As previously, Defendant repeatedly punched and slapped Moyer in the face and head, while Moyer cried, asking Defendant to stop hitting him and saying that he wanted to go home.

After riding for some time, Moyer believed the car stopped at Defendant's residence, because Moyer heard Defendant's step-daughter talking. Defendant exited the car and returned. The vehicle then began to move and Moyer heard tapping on metal, and clicking sounds, and felt a metal object touch his head. Defendant asked Moyer, if he "liked that," and, if it "felt good." Moyer screamed and asked Defendant to stop. About one-half hour after leaving Defendant's home, the vehicle stopped and Moyer, while blindfolded, was removed from the car, and forced to walk up a hill in a wooded area. Moyer was ordered to and did get on his hands and knees. An object was placed against Moyer's forehead and Defendant asked Moyer if he wanted to die. Moyer said, "no," and cried. Moyer heard a clicking sound near his face, after which Defendant told Moyer that it, "must be [his] lucky day."

The blindfold was removed. Moyer saw Defendant holding a black handgun. Defendant taunted Moyer about his wanting to die, put the gun against Moyer's head and pulled the trigger. Nothing happened. Defendant again referenced that it must be Moyer's, "lucky day," put a clip in the gun, put a bullet in the chamber, placed the gun about six to eight inches aside of [sic] Moyer's head, and fired about six rounds from the weapon. During the incident, while the gun was under Defendant's control and its barrel pointed towards Moyer's face, Defendant ordered Moyer to place his thumb on the trigger. Moyer did so. Defendant then told Moyer that, as Moyer's prints were on the gun, the incident would appear to be a suicide. Defendant ordered Moyer to fire the weapon, stating that he (Moyer) could shoot himself. Moyer, however, fired the gun behind his head. Defendant then took the weapon.

Defendant ordered Moyer to stand up and directed Moyer to walk down a trail. Moyer, blindfolded again, did so. Moyer then was forced to sit down, Defendant placed a plastic barrel over Moyer's head and hit it with a pipe. Upon Moyer's later removing the barrel and blindfold from his head, he heard Nester, who was talking on a cell phone, state that the "cops" were looking for Moyer. Defendant replied, "if I'm going to jail, I'm going to make it worth it."

Moyer was blindfolded again, told to get back into the vehicle, and made to lie down. Nester drove the vehicle for thirty to forty-five minutes while Defendant taunted Moyer. Eventually, the car stopped, Defendant told Moyer to get out of the vehicle, returned Moyer's spark plug wires and car keys, and Nester and Defendant left the area. Moyer walked several miles in the dark until he came to a market where he called his wife. Police were contacted and found Moyer at the market. Although Moyer did not immediately express a desire to press charges against Defendant, as he had been threatened by Defendant about doing so, the police, nevertheless, took photographs of Moyer's injuries (which were exhibited to the jury), and pursued an investigation.

Trooper Bernard Walasavage testified that on August 11, 2002, he had gone to Clouser's mini-market after being dispatched to respond to a disturbance. Trooper Walasavage interviewed store personnel and customer witnesses and reviewed a store surveillance videotape depicting Defendant's initial confrontation with Moyer—which also was shown to the jury at trial. Trooper Walasavage testified that he was present during the police search of Defendant's home on August 13, 2002, when clothing matching that worn by Defendant during the incident—namely, white pants and a sleeveless white shirt—was found. The pants were located at the bottom of a hamper. The shirt was found under a bed, wrapped around a gun. During the search, Defendant's wife, who indicated she was attempting to look for the items being sought by police, did not retrieve or reach for the shirt under the bed until she was specifically directed by police to do so. According to Trooper Walasavage, the shirt and pants appeared to be stained by blood. Expert analysis later confirmed the presence of human blood on the clothing.

Trooper Bernard Spece testified that he had recovered the club (identified by Moyer at trial as the one used in the assault), certain knives[,] and bandanas from Nester's residence. Trooper David Mayes testified that he had gone to Defendant's home late in the evening on August 11, 2002. Defendant, who was present with Nester, was angry, confrontational and denied having been involved in an assault on Moyer, despite being advised of the depiction on the store's surveillance tape. Trooper Mayes also examined a wooded area behind Nester's home, where he found cigarette butts, 9-mm shell casings, and a live 9-mm round on the ground, together with a slug embedded in a nearby bank. The parties stipulated that the weapon confiscated from Defendant's home was operable, and that the shell casings found near Nester's home had been discharged from the gun in question.

Defendant presented testimony from his wife and numerous character witnesses. Defendant's wife testified that sometime on August 11, 2002, Nester arrived with Defe

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