Commonwealth v. Verticelli

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. CHRISTOPHER VERTICELLI Appellant

No. 1827 EDA 2021

No. J-S07043-23

Superior Court of Pennsylvania

July 26, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered November 16, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005468-2016

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM

KING J.

Appellant Christopher Verticelli, appeals nunc pro tunc from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for aggravated assault and possessing instruments of crime ("PIC").^[1] We affirm.

The relevant facts and procedural history of this appeal are as follows:

On May 21, 2016, the Complainant, Lycurgus Hurdle, heard his fiancée, Heather Schwegel, arguing with Appellant and his co-Defendant, Stephanie McKnight, outside his home…. When the Complainant went outside, Appellant told him he was going to "crack [his] fucking head open." Later that day, the Complainant was walking his dog when his fiancée called telling him to come to the house in a "hurry." When he returned home, he saw Appellant holding a metal pole like "a baseball bat." Appellant said: "I'm going to crack your fucking head open, nigger." Appellant swung the pole knocking down a rental sign for the house. He also struck the Complainant's mailbox and door multiple times. Ms. Schwegel called the police. Two officers subsequently arrived, took a report, and advised Schwegel and the Complainant to obtain a restraining order.

Later that evening, around 10:00 p.m., Schwegel and the Complainant were watching television when they heard scratching at the door. The Complainant, believing it was his cat, went outside to retrieve it. He then looked to his right, towards his basement door, and saw Appellant crouching down holding a hammer. Appellant said, "I'm cracking your head open now, nigger," and then hit the Complainant between the eyes with the hammer. The Complainant tried to grab the hammer, but Appellant struck him again above his left eyebrow. Appellant then said, "I'm going to kill you." The Complainant grabbed the hammer and tussled with Appellant towards the street. The Complainant heard McKnight say, "Get the fuck off of him," as she approached from the house next door. McKnight subsequently hit the Complainant twice in the back of the head with another hammer. Appellant then yelled, "Get off me, man. The sirens are coming," and ran towards Mildred Street.

Bleeding from the back of his head and forehead, the Complainant was taken to the hospital in an ambulance. After he received stitches and staples, the Complainant had a five-inch scar above his left eyebrow. He also had a three-inch scar across his nose. At trial, the Complainant testified that his injuries included migraine headaches, light sensitivity, left ear hearing loss, PTSD, and anxiety.

(Trial Court Opinion, filed 6/10/22, at 4-6) (internal footnotes and record citations omitted).

Appellant proceeded to trial, and a jury found him guilty of aggravated assault and PIC. On November 16, 2017, the court sentenced Appellant to ten (10) to twenty (20) years' incarceration for the aggravated assault conviction. The sentence included a mandatory minimum term, pursuant to 42 Pa.C.S.A. § 9714, because this was Appellant's second conviction for a crime of violence. The court imposed no further penalty for the PIC conviction. On November 21, 2017, Appellant timely filed a post-sentence motion. In it, Appellant raised various assertions of error to justify the award of a new trial. The court denied the post-sentence motion on January 18, 2018.

Although Appellant timely filed a notice of appeal, this Court dismissed the appeal for failure to file a brief on April 17, 2019. On April 17, 2020, Appellant requested the reinstatement of his direct appeal rights nunc pro tunc. The court granted relief on March 24, 2021. Nevertheless, prior counsel took no further action because he mistakenly believed that the court was going to appoint new appellate counsel. On June 15, 2021, Appellant again requested the reinstatement of his appellate rights nunc pro tunc. The court granted relief on August 10, 2021. Thereafter, the court appointed current counsel to assist Appellant with the appeal.

Appellant timely filed a notice of appeal nunc pro tunc on September 8, 2021. On September 16, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Following an extension, Appellant filed his Rule 1925(b) statement on December 6, 2021.

Appellant now raises four issues for this Court's review:

Whether the trial court erred, when it ruled that the assistant district attorney could read Commonwealth witness Heather Schwegel's written statement to the police, into the record, on direct examination, as this was a prior consistent statement, which may only be used for the purpose of rehabilitation of a witness, which was not the case in the above-captioned matter, and this witness had not yet been subjected to cross-examination?

Whether the trial court erred, when it gave the jury an instruction on "consciousness of guilt," specifically stating that "the testimony of Lycurgus Hurdle, that tended to show that [Appellant] fled from the police," as Appellant … did not, in fact, flee from the police or anyone else, as when he was first confronted with the police, he immediately gave them his name, prior to being arrested and taken into custody?

Whether the trial court erred, when it refused to give the jury an instruction on the criminal offense of simple assault, which is a lesser included offense of aggravated assault, as there was evidence to support a jury verdict of not guilty of the greater offense (aggravated assault), but guilty of the lesser offense (simple assault)?

Whether the trial court erred, when it sentenced Appellant … to the mandatory 10 years to 20 years' incarceration, pursuant to 42 Pa.C.S.A. § 9714(a), as the Commonwealth failed to prove that [Appellant] had previously been convicted of a "crime of violence." While the assistant district attorney presented evidence that [Appellant] had previously been convicted of the criminal offense of robbery (F1), no court order substantiating this conviction was presented at sentencing?

(Appellant's Brief at 6).

In his first issue, Appellant contends that Commonwealth witness Heather Schwegel testified about what she saw outside her home on the night of the altercation. In light of this testimony, Appellant asserts that the Commonwealth sought permission to introduce Ms. Schwegel's original statement to the police. Although the court permitted the Commonwealth to introduce this statement, Appellant insists that Ms. Schwegel's prior statement was consistent with her trial testimony, thereby rendering the statement inadmissible. Appellant concludes that the court committed reversible error by admitting Ms. Schwegel's prior statement. We disagree.

This Court's standard of review for issues regarding the admissibility of evidence is well settled:

Questions concerning the admissibility of evidence are within the sound discretion of the trial court ... [and] we will not reverse a trial court's decision concerning admissibility of evidence absent an abuse of the trial court's discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. [I]f in reaching a conclusion the trial court [overrides] or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation marks omitted).

"Relevance is the threshold for admissibility of evidence." Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc), appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).

Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or tends to support a reasonable inference or proposition regarding a material fact. Relevant evidence may nevertheless be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal denied, 656 Pa. 9, 219 A.3d 597 (2019) (internal quotation marks omitted).

Hearsay is an out-of-court statement made by a declarant, which a party seeks to offer into evidence to prove the truth of the matter asserted in the statement. Pa.R.E. 801(c). Generally, hearsay is not admissible except as provided by the Pennsylvania Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. "The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact." Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa.Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933 (2006).

"Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule." Id.

It is long settled that a prior inconsistent statement may be used to impeach a witness. Further, a prior inconsistent statement may be offered not only to

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