Commonwealth v. Tyler

COMMONWEALTH OF PENNSYLVANIA, Appellee v. KENISHA TYLER, Appellant

J-S14013-15

No. 532 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

APRIL 14, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the Judgment of Sentence January 16, 2014, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0008610-2012

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:

Appellant, Kenisha Tyler ("Tyler"), appeals from the judgment of sentence entered on January 16, 2014 following her convictions for simple assault, 18 Pa.C.S.A. § 2701, aggravated assault, 18 Pa.C.S.A. § 2702, and conspiracy, 18 Pa.C.S.A. § 903. For the reasons that follow, we affirm the convictions.

The trial court aptly summarized the evidence introduced at trial as follows:

The complainant, Ms. Joh'nae Nicole Thompson [("Thompson")], testified to two separate events occurring on March 18, 2012 and March 19, 2012. (N.T., 8/1 9/12 pgs. 26 — 83). On March 18, 2012 at approximately 3:00 p.m., while walking to work, [Thompson] encountered [Tyler]. (N.T., 8/19/12 pg. 27). [Tyler] began yelling at [Thompson] "Do you want to fight?" (N.T., 8/1 9/12 pg. 28). [Thompson] answered [Tyler] that she did not want to fight her [and] that she was on her way to work[;][Thompson] then continued walking to work. [Tyler] followed and yelled out to [Thompson] again asking her if she wanted to fight and [Thompson] responded in the same way, and continued walking. (N.T., 8/19/12 pg. 28). [Tyler] then told [Thompson] "No, you want to fight me, so we're going to fight[,]" then threw a punch that hit [Thompson] on the left side of her face. (N.T., 8/19/12 pgs. 28, 29). [Thompson] felt she had no choice but to defend herself and began to fight back with [Tyler]. (N.T., 8/19/12 pg. 29, 53).

[Thompson] testified that while she was engaged with [Tyler], more women, that she did not recognize, began punching, kicking, and jumping on her. (N.T., 8/19/12 pgs. 29-30, 59, 60). She recalled being beaten by the entire group, including [Tyler], for about three minutes until she was eventually pulled out from under the assailants by a neighbor. (N.T., 8/19/12 pg. 31). [Thompson] was shaken up by the incident but was able to walk home[;] her mother and father were home when she arrived, and they helped her to calm down. [Thompson] testified that she received a chipped tooth, a black eye, a few bumps on her face and several scrapes on her body from this incident. (N.T., 8/19/12 pg. 31). Her mother took pictures of her injuries shortly after she arrived home. (N.T., 8/19/12 pg. 44).

On March 19, 2012 [Thompson] went to the police station to report the assault from the previous evening. She was directed to the Southwest Detectives in the 18^th district located on 55th Street and Pine Street, and spoke with Detective Campbell about the incident with [Tyler] that occurred March 18, 2012. (N.T., 8/19/12 pg. 33). [Thompson] testified that she was speaking with the detective until about 2:30 p.m., after speaking with the detective she went directly home.

When she arrived home from the police station[,] she was sitting outside with her mother, father,aunts, cousins and some neighbors explaining what happened the night before and at the police station. [Thompson] stated that while she was outside she saw [Tyler]'s sisters, Kiera and Amarra, approaching from the corner. (N.T., 8/19/12 pg. 34). When Kiera saw her she taunted [Thompson] yelling "My sister mangled your face." [Thompson] responded "You are a stupid bitch and so is your sister." Kiera then threw a punch at her. (N.T., 8/19/12 pg. 35, 64).

[Thompson] defended herself and began fighting Kiera. While [Thompson] was already engaged with Kiera, Amarra began punching her as well. This altercation went on for about two minutes until neighbors broke the three of them apart. (N.T., 8/19/12 pgs. 35-36).

Kiera and Amarra then left only to return five minutes later with [Tyler] and approximately thirty other people on foot and in vehicles. (N.T., 8/1 9/12 pgs. 36, 67, 68). The crowd with [Tyler] and her sisters rushed over and attacked [Thompson]'s family. Kiera attacked [Thompson], and while they were engaged [Tyler] came from behind [Thompson] and punched her in the face. [Tyler]'s punch knocked [Thompson] down on top of [Tyler]'s sister, Kiera. (N.T., 8/19/12 pgs. 37, 68 69). While [Thompson] was on the ground [Tyler] grabbed her hair and slammed her head into a cobblestone wall twice. The melee stopped shortly thereafter. (N.T., 8/19/12 pgs. 38, 70).

[Thompson] was rushed to the University of Pennsylvania Hospital by ambulance. (N.T„ 8/19/12 pg. 39). She was treated and admitted through emergency for multiple abrasions throughout her upper extremities, with a contusion to her orbital and orbital swelling resulting from a left orbital flora fracture[;] she stayed at the hospital for three days. (N.T., 8/19/12 pg. 41, 8/20/12 pg. 47). She returned to the hospital March 26, 2012 for surgery to correct the broken bone, and was admitted to thehospital, for recovery, for four days. (N.T., 8/19/12 pg. 41).

As a result of the injuries sustained during the incident, [Thompson] had quadruple vision for about four months, and was placed on medical deferment from enlisting in the military. (N.T., 8/19/12 pgs. 42-43). She was cleared for active military duty on July 26th, 2013. N.T., 8/19/12 pg. 42).¹

* * *

Philadelphia Police Officer Pamela Roberts testified that on March 19, 2012 she was working the activity desk inside the nineteenth district. (N.T., 8/20/13 pg. 41, 42). On that day, [Thompson] came in to make a police report. (N.T., 8/20/13 pg. 42). [Thompson] told Officer Roberts that she had been assaulted by the [Tyler]. (N.T., 8/20/13 pg. 44, 45). [Thompson] told Officer Roberts that she was walking to the store when [Tyler] approached her, alongside five to six black females, and asked if she wanted to fight. (N.T., 8/20/13 pg. 45). When [Thompson] came to make the police report, Officer Roberts noticed that she had a black right eye and her front bottom tooth was chipped. (N.T., 8/20/13 pg. 45). Officer Roberts documented all of this on a 75-48 incident report and later sent the report to Southwest Detectives. (N.T., 8/20/13 pg. 45).

Trial Court Opinion, 8/1/2014, at 4-8.

On August 21, 2013, a jury convicted Tyler of the three above-referenced crimes. The trial court sentenced her to 11 and one half to 23 months of confinement in the county prison on the simple assault conviction, five years of probation on the aggravated assault conviction, and five yearsof probation (concurrent) on the conspiracy conviction. This appeal followed, in which Tyler presents the following seven issues for our consideration and determination:

1. Did the trial court err during jury selection by engaging in excessive rehabilitation of several potential jurors who stated that they would be more likely to believe police witnesses?

2. Did the trial court err in allowing inflammatory color photographs of [Thompson's] facial injuries to be published to the jury?

3. Did the trial court err and cause irreparable harm and prejudice to [Tyler] when, while [Tyler] was testifying before the jury, the trial court told [Tyler] that she had committed a crime?

4. Did the trial court err in refusing to give a charge for Simple Assault with regard to the incident that occurred on March 19, 2012, because there was no risk of death to [Thompson] and [Thompson] did not suffer serious permanent disfigurement or protracted loss of the function of any bodily member or organ?

5. Did the trial court err in refusing to include malice and a definition thereof in its charge for Aggravated Assault as a Felony of the First Degree?

6. Did the trial court err in interrupting [Tyler's] counsel and engaging in a lengthy soliloquy during closing argument, causing harm and prejudice to [Tyler], when counsel simply and correctly read the Aggravated Assault statute for which [Tyler] had been charged?

7. Was there sufficient evidence as a matter of law that [Tyler] was guilty of Aggravated Assault as a Felony of the First Degree and Conspiracy to commit the same as to events that occurred on March 19, 2012?

Tyler's Brief at 4-5.

For her first issue on appeal, Tyler claims that she was not tried before an impartial jury because during voir dire the trial court "excessively rehabilitat[ed] potential jurors who stated that they would be more likely to believe police testimony rather than testimony from civilian witnesses." Tyler'' Brief at 10. Conversely, Tyler contends that a "pro-defense juror" was not similarly rehabilitated and then excused. Id. According to Tyler, the trial court's conduct required her to use preemptory challenges against jurors that should have been dismissed for cause.

The scope of voir dire is at the discretion of the trial court. Commonwealth v. Ellison, 902 A.2d 419, 424 (Pa. 2006). "The opportunity to observe the demeanor of the prospective juror and the tenor of the juror's answers is indispensable to the judge in determining whether a fair trial can be had in the community. Claims of impartiality by prospective jurors are subject to scrutiny for credibility and reliability as is any testimony, and the judgment of the trial court is necessarily accorded great weight." Commonwealth v. Bachert, 453 A.2d 931, 937 (Pa. 1982). This Court should not reverse decisions of the trial judge concerning voir dire in the absence of palpable error. Ellison, 902 A.2d at 424. The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence. Cordes v. Associates of InternalMed., 87 A.3d 829, 864 (Pa. Super.) (en banc), appeal denied, 102 A.3d 986 (Pa. 2014).

Tyler directs our attention to the testimony of three jurors, each of whom answered in the affirmative to a question on a jury questionnaire regarding whether they would be more...