Commonwealth v. Rush

162 A.3d 530

COMMONWEALTH of Pennsylvania, Appellee

v.John Lewis RUSH, Appellant

No. 767 WDA 2015

Superior Court of Pennsylvania.

Argued October 25, 2016

Filed May 11, 2017

Victoria H. Vidt, Public Defender, Pittsburgh, for appellant.

Amy E. Constantine, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:

John Lewis Rush appeals from the March 10, 2015 judgment of sentence entered in the Allegheny County Court of Common Pleas following his convictions of four counts of aggravated assault and one count each of disarming a law enforcement officer; torture of a police animal; cruelty to animals; resisting arrest; escape; possession of a weapon; and flight to avoid apprehension, trial, or punishment.¹ We affirm.

The trial court set forth the following facts:

On January 28, 2014, [Allegheny County Sheriff's Office Deputy John Herb] was assigned to the fugitive squad, and was looking for ... Rush. [Rush] had a warrant out for his arrest for violating the conditions of his probation for a prior conviction. Deputy Herb had received information that [Rush] was in the Lawrenceville section of Pittsburgh. Once Deputy Herb reached Butler Street in Lawrenceville, he observed an individual who roughly matched the description of [Rush]. That individual identified himself to the Deputy as "John" and, shortly thereafter, lunged at the Deputy's handgun. A physical struggle ensued. The Deputy successfully pushed away from "John" and once he had created some distance between them, the Deputy fired his taser which struck "John" but had no effect. Immediately thereafter, "John" charged the Deputy and multiple punches were exchanged. At the conclusion of the skirmish, "John" ran away from the Deputy. The Deputy pursued, yelling at "John" that he was under arrest. Deputy Herb eventually lost sight of "John". Deputy Herb radioed a report of the incident including the location. Approximately 40 minutes later, Deputy Herb, who was still searching for [Rush], became aware of a report of a suspicious male in a house at 3701 Butler Street.

...

Timothy McGill testified that he resided with his fiancée Stephanie Kerr at 3701 Butler Street, ... on January 28, 2014. McGill testified that [he] awoke to a loud knock on his door. [Rush] asked McGill to let him into the apartment to use the bathroom. McGill refused and a heated argument ensued, which ended when McGill slammed the door in [Rush]'s face and locked him out. McGill dressed and went down to the laundry room, where he heard a noise, and upon further investigation discovered [Rush] inside, crouched down with his back against the wall. McGill testified that he became infuriated at that point. He said to [Rush] that he had no business being in the building. [Rush] jumped to his feet and McGill observed that [Rush] now had a knife in his left hand. McGill retreated and saw [Rush] flee down the steps but not out the front door. As the only other option from that location would be the basement, McGill assumed [Rush] had gone down the basement stairs. McGill exited the building, took a position from which he could watch the front door, called his fiancée, and told her to lock the door and call the police. Ten to fifteen minutes later, police officers arrived at the scene.

...

Officer [Daniel] Nowak yelled as loud as he could, three times, "Pittsburgh Police." "Give up. Surrender." He heard no response to any of the verbal commands. Sergeant Henderson decided to send a canine officer alone with his dog down to the basement. Officer Phillip Lerza arrived at the scene with Rocco, his police dog. Officer Lerza also yelled down to the basement three times² without any response. Officer Lerza and Rocco proceeded to the basement, followed by Officer Nowak and Officer Robert Scott. Officer Lerza requested that Officer[s] Nowak and Scott remain on the stairs while Officer Lerza and Rocco searched the room.

As Officer Lerza and Rocco approached the rear part of the basement, [Rush] jumped out from behind the right-hand side of a doorway. Officer Nowak observed [Rush] immediately start striking Rocco in a downward punching motion on his back. [Rush] struck Rocco from behind with both fists. As Officer Lerza moved toward [Rush] and Rocco, [Rush] disengaged with Rocco and struck Officer Lerza with both hands, fists closed. Officer Nowak yelled out and ran toward the melee. [Rush] stopped fighting Officer Lerza and charged Officer Nowak. The two collided at high speed. [Rush] swung wildly at Officer Nowak with both hands. Officer Nowak blocked punches with his left hand and struck [Rush] with the flashlight he held in his right hand. During the combat, Officer Nowak injured his finger and his ankle. Officer Nowak gained leverage, took [Rush] to the ground and got on top of him. [Rush] continued to fight, despite the Officer commanding him to stop resisting. Officer Lerza grabbed [Rush]'s arms but could not get handcuffs on [Rush] due to [Rush]'s resistance.

Officer [John] Baker arrived to assist Officers Lerza and Nowak, but the three of them were still unable to handcuff [Rush].³ A sheriff's deputy came down with his taser in dry stun mode. The Deputy tased [Rush] in the leg to no effect. Officer Nowak pulled [Rush]'s shirt over his head and instructed the Deputy to tase [Rush] on the uncovered skin. After three applications of the taser to [Rush]'s bare skin, [Rush] stopped fighting and the officers were able to handcuff [Rush]. Once [Rush] was restrained, Officer Nowak observed Officer Lerza pat Rocco and discover that Rocco was covered in blood. Officer Nowak saw a knife on the ground near [Rush] and observed Officer Lerza pick up Rocco and run upstairs.

...

Officer Lerza rushed Rocco to a local veterinary hospital. While Rocco was being examined, Officer Lerza noticed pain in his shoulder. Upon closer examination, he discovered that he had been stabbed through several layers of clothing....

Dr. Julie Compton, a Board-certified veterinary surgeon, testified as an expert in veterinary surgery. Dr. Compton testified that she worked at the Pittsburgh Veterinary Specialty and Emergency Center (PVSEC), and in that capacity became familiar with a dog named Rocco who had been stabbed. Initially, Dr. Compton testified that she was at home but was notified by her resident that Rocco was stabile [sic] with a laceration about three centimeters long.

Forty-five minutes later, she received another call that Rocco's condition had worsened. Dr. Compton arrived and performed two surgeries. During the first surgery, she discovered that Rocco's left kidney had sustained irreversible damage. She also observed that his aorta and vena cava were stripped of all soft tissues and the external wound of three centimeters was approximately five inches long internally. Two days later she performed a second surgery. Rocco had liters of blood in his abdomen indicative of extensive internal hemorrhaging. Dr. Compton could not find the source of the bleeding. While attempting to find the source of the bleeding, Dr. Compton discovered that Rocco's spine had been fractured by the knife wound. She stated that "to shred a piece of bone off a dog's spine underneath inches of muscle would take a very large amount of force." Dr. Compton said that Commonwealth Exhibit 14, a pocket knife with the tip broken off, was consistent with the weapon that caused Rocco's injuries. She testified that the force required to break off the tip of the blade would be similar to the force required to injure the dog's spine. Further, she testified that the length of the blade would have been sufficient to cause Rocco's wounds, assuming the knife was fully inserted into the dog. Rocco died on January 30, 2014 from hemorrhaging resulting from a stab wound.

1925(a) Opinion, 2/16/16, at 3–4, 6–10 ("1925(a) Op.") (internal citations omitted).

On December 5, 2014, a jury found Rush guilty of the aforementioned crimes. On March 10, 2015, the trial court sentenced Rush to an aggregate term of 14 years and 10 months' to 36 years and 6 months' incarceration, followed by 8 years' probation.⁴ Rush filed post-sentence motions, which the trial court denied on April 16, 2015. On May 15, 2015, Rush timely filed a notice of appeal.

Rush raises the following issues on appeal:

I. Did the trial court err and abuse its discretion by failing to disqualify a sitting juror who was openly weeping during trial testimony regarding the death of the canine, Rocco?

II. Did the trial court err in failing to give the requested jury instruction for malice in relation to the Torture of a Police Animal charge as the standard jury instruction fails to define a necessary element?

III. Was the sentence of 178 to 438 months of imprisonment, followed by 8 years of probation, manifestly excessive, unreasonable, and contrary to the dictates of the Sentencing Code, and thus an abuse of the sentencing court's discretion?

Rush's Br. at 7 (suggested answers omitted).

I. Juror Disqualification

Rush claims that during testimony concerning the death of Rocco juror number six ("Juror No. 6") cried, which demonstrated bias and partiality. He further claims that the trial court did not question Juror No. 6 and that the instructions given to the jury at the conclusion of trial were insufficient to address the incident. Finally, Rush argues his request to dismiss Juror No. 6 should have been granted.

Article I, section 9 of the Pennsylvania Constitution, as well as the Sixth Amendment to the United States Constitution, guarantees a defendant the right to an impartial jury. Pa. Const., art. I § 9 ; U.S. Const. amend. VI. "It is well settled that the purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions of the trial court." Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 412–13 (2011). Our Supreme Court has explained that a juror is not expected "to be free from all prejudices[;] rather,...