j-s28020-14 non-precedential decision - see superior court iop 65.37 commonwealth of ...

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J-S28020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARK SMITH

Appellant No. 1501 EDA 2013

Appeal from the Judgment of Sentence April 24, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003595-2012

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 10, 2014
Mark Smith appeals from the judgment of sentence,1 entered in the
Court of Common Pleas of Lehigh County, following his convictions for
terroristic threats,2 resisting arrest,3 disorderly conduct4 and harassment.5
____________________________________________
* Retired Senior Judge assigned to the Superior Court.

1 We note that the trial court’s Pa.R.A.P. 1925(a) opinion states that Smith
appeals from “the verdict and judgment of sentenced entered . . . on March
20, 2013.” The court’s sentence was actually entered, as is reflected in the
caption of this appeal, on April 24, 2013. Therefore, Smith’s May 21, 2013
notice of appeal was timely filed.

2 18 Pa.C.S. § 2706(a)(1).

3 18 Pa.C.S. § 5104.

4 18 Pa.C.S. § 5503(a)(1).

5 18 Pa.C.S. § 2709(a)(4).
(Footnote Continued Next Page)
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Smith was sentenced to an aggregate term of time served to 23 months’
imprisonment. After careful review, we affirm.
The trial court aptly summarized the facts of the case as follows:
In the instant case, on June 5, 2012, at approximately 11:00
A.M., Officer Lonny Bryfogle of the City of Allentown Police
Department was dispatched to the area of [the] 2900 Block of
Arcadia Avenue, Allentown, Lehigh County, for a disturbance
between neighbors over a boundary dispute. Specifically,
Monica Olearczyk, a resident of 2918 Arcadia Avenue, Allentown,
Lehigh County, Pennsylvania, had telephoned the police for
assistance. Upon his arrival, the complainant, Ms. Olearczyk,
was outside of her residence and approached Officer Bryfogle.
Ms. Olearczyk explained to Officer Bryfogle that she had hired
professional surveyors to determine the property line between
her home and her neighbor's home due to ongoing property
disputes with her neighbor who resided at 2924 Arcadia Avenue.
However, the complainant indicated that the neighbor,
Defendant, Mark Smith, was bothering the surveyors whose time
she had paid for. While Officer Bryfogle was speaking with the
complainant, Officer Joshua Baker of the Allentown Police
Department arrived on scene.

On scene, Officer Bryfogle observed two (2) surveyors
performing their duties. They conveyed to Officer Bryfogle that
they were hired to do a job and while carrying out their duties,
the next-door-neighbor was speaking to them about the
boundary line and where the property pin was. They expressed
their desire to fulfill their employment obligation and to leave the
site.

Officer Bryfogle then spoke with the Defendant to obtain his
version of events. The Defendant, appearing aggravated and
irate that the police were summoned, told Officer Bryfogle that
he was merely talking to the surveyors about the boundary line
and the placement of the property line pin. Officer Bryfogle
conveyed to the Defendant that the surveyors were there to
(Footnote Continued) _______________________

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benefit both parties and were to be left alone to complete their
task. The Defendant told Officer Bryfogle that he was
interrupting him while he was speaking and to let him finish. It
was at that time that Officer Bryfogle stated to the Defendant
that he had afforded him the time to speak, but that it was now
time to listen.

The Defendant's demeanor suddenly changed and he began to
call Officer Bryfogle names such as "young punk officer who
could not do his job," "fucking asshole," "jerk," and other curse
words. In response, Officer Bryfogle did nothing, but allowed
the Defendant to "vent." Then the Defendant stated that his
brother, Andrew Gardo, was a police officer with the South
Whitehall Township Police and he was going to call him to help
Officer Bryfogle do his job. Officer Bryfogle encouraged him to
call his brother, but indicated that the disposition was not going
to be affected by his presence. The Defendant's father emerged
from the residence and tried to diffuse the situation by
attempting to get the Defendant to return to the residence.
Ultimately, the Defendant was ushered into the house by his
father.

After approximately one (1) minute, the Defendant (still quite
worked-up and hostile) emerged from the residence, speaking to
his brother, Andrew Gardo, on his cell phone. While conversing
with his brother and standing approximately fifteen (15) feet
from Officer Bryfogle, and staring him in the face, the Defendant
stated in a heightened pitch of voice, "Andrew, you better get
over here now because I am going to punch this fucking officer
in the face."6 In response, Officer Bryfogle instructed the
Defendant to put the telephone down because he was being
cited for summary disorderly conduct.7 Officer Bryfogle ordered
the Defendant to go inside and retrieve his identification for the
official police investigation. The Defendant disregarded this
request. The Defendant insisted that he was not getting arrested
and that he was on private property. Officer Bryfogle reiterated
____________________________________________
6 Officer Bryfogle felt threatened by this statement.

7 Officer Bryfogle explained to the Defendant that he was not in physical
custody, but he was being cited for disorderly conduct because a person
cannot tell a police officer that he is going to punch him in the face.
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that the Defendant was being cited for summary disorderly
conduct and that he needed to produce his identification for
citation purposes. Then the Defendant and his father entered
their residence.

Officer Bryfogle, with the assistance of Officer Baker, approached
the Defendant's front door and knocked. After approximately
two (2) minutes, the Defendant's father answered the door. The
Defendant then approached the threshold of the door and he
appeared even more agitated. He told the officers "to get the
fuck off my property." The Defendant would not comply and
furnish his identification to the officers to further the official
investigation, so Officer Bryfogle informed the Defendant that he
was being arrested and taken into custody until they could
ascertain and confirm his identity.

Officer Bryfogle instructed the Defendant to step out of the
residence with his hands behind his back. The Defendant stated
that he was not being arrested. Officer Baker then attempted to
reach into the residence and physically grab the Defendant’s
wrist to pull him outside to put him under arrest. Then, the
storm door closed on Officer Baker, physically capturing Officer
Baker's arm in the door jamb, causing him injury. The officers
reopened the door, trying to make physical contact with the
Defendant and verbally instructing him to put his hands behind
his back because he was under arrest. Again, the Defendant did
not comply with the officers verbal commands, but rather
slapped their hands away and pulled back into the threshold.8 In
response, Officer Bryfogle and Officer Baker drew their tasers. It
was at that time that the Defendant's father jumped in front of
the Defendant in order to prevent him from being tased.

After the father moved out of the way, Officer Baker was able to
pull the Defendant out of the residence and take him to the
ground. However, the Defendant remained noncompliant. In
fact, the officers told the Defendant more than twenty (20) times
to stop resisting. Indeed, the yelling and cursing Defendant had
____________________________________________
8 The Defendant shoved Officer Baker off of him five (5) to seven (7) times
and shook him off five (5) to seven (7) times. Ms. Monica Olearczyk also
observed the Defendant's lack of cooperation with the officers and the
ensuing struggle.
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his fists clenched and placed his hands under his body, so as not
to allow Officer Baker to put his arms behind his back.
Consequently, Officer Bryfogle unholstered his taser and
informed the Defendant that he was going to get tased if he
failed to comply with their verbal commands. Despite the
warning, the Defendant did not obey, remaining with his fists
clenched and attempting to rise off the ground. Thus, Officer
Bryfogle utilized his stun gun on the Defendant. This maneuver
proved to be completely ineffective.9 Officer Bryfogle holstered
his taser and attempted with Officer Baker to place the
Defendant in custody. The officers, working together and
needing to apply quite a bit of force, were able to get both of the
Defendant's arms behind his back and handcuffed.10 The
Defendant was placed in the rear of the police cruiser.

Sergeant Andrew Hausman of the Allentown Police Department
arrived as the Defendant was being escorted to the police
vehicle. The Defendant appeared alert and was walking on his
own.11 Similarly, Sergeant Jim Keiser of the Allentown Police
Department arrived on scene after the Defendant was in
custody. He observed the Defendant donning a mocking smile
from the back of the police cruiser. Likewise, the Defendant's
____________________________________________
9 The Defendant was unaware of the fact that he was tased. (C. Ex. 1 pp.
37-38).

10 Charles Helfrich, a resident of 2909 Arcadia Avenue, Allentown, Lehigh
County, observed the struggle among the officers and the Defendant. Mr.
Helfrich indicated that the Defendant appeared to be resisting the officers,
who he described as professional and not exerting excessive force to subdue
the Defendant. Similarly, Clyde Wall, a resident of 2931 Arcadia Avenue,
Allentown, Lehigh County, observed part of the incident and described the
officers’ demeanors as professional.

11 Gary Gurian and Barbara Stader, resident of 2937 Arcadia Avenue,
Allentown, Lehigh County, also stated that the Defendant walked to the
police cruiser without any apparent physical impairment.
In addition, Lieutenant William Reinik of the Allentown Police Department,
an expert in the use of force and tasers, opined that the taser employed on
the Defendant did not leave taser marks as claimed by the Defendant. (D.
Ex. 12; D. Ex. 13; C. Rebuttal Ex. 1; C. Rebuttal Ex. 2; C. Rebuttal Ex. 3).

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brother arrived on scene after the Defendant was already in
custody and Officer Bryfogle related the events to him.
Ultimately, the Defendant was transported to the Headquarters
of the Allentown Police Department.
Opinion, Dantos, J., 6/27/13, 5-9.
On appeal, Smith presents the following issues for our consideration:
(1) Did the trial court err in denying Defendant’s pretrial
omnibus motion seeking a writ of habeas corpus and his
motion for reconsideration of that denial?
(2) Did the trial court err in denying Defendant’s motion in
limine to preclude the mention of Defendant’s pending civil
suit based upon the excessive forced [sic] used in
arresting him, and then compound that error by refusing
to let him discuss the details of the suit in the face of the
Commonwealth’s attempts to impeach his witnesses using
the lawsuits?
(3) Did the trial court err in allowing the arresting officer to
give hearsay testimony at trial concerning the purported
results of an internal investigation and that he was told he
should have used more force in effecting Defendant’s
arrest?
(4) Did the trial court err in precluding testimony concerning
the history between Defendant and his neighbors as
mitigating evidence to explain his upset on the date of the
incident?
(5) Did the trial court err in allowing irrelevant cross-
examination of Defendant’s brother (also a police officer)
about his failure to check his gun with the courthouse
personnel while attending Defendant’s trial?
(6) Did the trial court err in allowing irrelevant cross-
examination of a defense witness concerning the fact that
his girlfriend was an exotic dancer and that the police had
previously refused to take a complaint from her when she
was assaulted by a patron of her workplace?
Smith first asserts that the trial court erred in denying his writ of
habeas corpus where the Commonwealth failed to make out a prima facie
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case of the charges brought against him. Specifically, he alleges that the
Commonwealth failed to prove that: (1) Officer Bryfogle was in a state of
fear that agitated his body and mind; (2) the alleged misconduct occurred in
public; (3) the alleged statements made were the basis for his arrest; (4) he
committed the crime of resisting arrest because there was no lawful arrest;
and (5) he committed disorderly conduct, which was the basis for the entire
series of events.
It is well established that the preliminary hearing is clearly immaterial
where, at trial, the Commonwealth met its burden by proving the offense
beyond a reasonable doubt. Commonwealth v. Walter, 966 A.2d 560 (Pa.
2009). Because the jury found Smith guilty of the aforementioned offenses,
beyond a reasonable doubt, there is no merit to his claim of pre-trial error.12
The remaining claims raised by Smith all involve evidentiary rulings
made by the trial court. The standard of review for a trial court's evidentiary
rulings is narrow. Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa.
Super. 2007). The admissibility of evidence is solely within the discretion of
the trial court and will be reversed only if the trial court has abused its
____________________________________________
12 In the pretrial setting, the focus of the habeas corpus hearing is to
determine whether sufficient Commonwealth evidence exists to require a
defendant to be held in government "custody" until he may be brought to
trial. Commonwealth v. Morman, 541 A.2d 356, 359-60 (Pa. Super.
1988). To make this determination, the trial court should accept into
evidence the record from the preliminary hearing as well as any additional
evidence which the Commonwealth may have available to further prove its
prima facie case. Id.
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discretion. Id. 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. Id.
Motion In Limine on Defendant’s Pending Civil Suit
Smith claims that the trial court erred in admitting evidence of his
pending civil suit against the City of Allentown Police Department, for
excessive force used during his arrest, because the probative value of the
testimony was outweighed by the prejudicial effect it had on his case. He
further contends that the trial court erred in not mitigating this error by
allowing Smith to explain the details of the civil law suit.
Smith is correct in noting that the trial court ruled, pre-trial, that the
Commonwealth could introduce evidence of Smith’s civil suit, finding that
filing of the lawsuit was relevant for impeachment purposes to demonstrate
a potential pecuniary gain or bias in a favorable verdict for Smith. Trial
Court Opinion, 6/27/2013, at 17. However, neither party cites to the
relevant portion of the trial where the civil law suit was actually mentioned
or brought to the attention of the jury. Moreover, our review of the trial
transcripts has not uncovered any discussion or testimony about the
lawsuit.13 Therefore, any perceived prejudice Smith claims from the trial
____________________________________________
13 We note that it is not this Court’s job to develop a claim for a party on
appeal; it is the appellant’s responsibility to reference those portions of the
(Footnote Continued Next Page)
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court’s ruling is simply inaccurate. In any event, even if the Commonwealth
did bring to light the fact that Smith had filed a civil suit against the
Allentown Police Department, we agree with the trial court that this was a
proper evidentiary ruling. See Commonwealth v. Constant, 925 A.2d 810
(Pa. Super. 2007) (trial court properly permitted defendant to introduce
evidence about arresting officer’s lawsuit against him for damages to show
officer’s potential interest in outcome of case); Commonwealth v. Butler,
601 A.2d 268 (Pa. 1991) (where detective was defendant in civil lawsuit filed
by criminal defendant, because outcome of trial could materially affect
probability of success in civil action, defendant should have had opportunity
to cross-examine detective with evidence of civil suit).
Hearsay Testimony by Officer
Smith next asserts that the trial court improperly permitted Officer
Bryfogle to testify regarding results of an internal investigation concerning
the officer’s alleged assault on Smith during the arrest. Smith claims that
the evidence was inadmissible hearsay as it was offered to refute Smith’s
claim that he was brutally assaulted at the officer’s hands.
(Footnote Continued) _______________________
record that support the issues raised on appeal. See Pa.R.A.P.
2119(c)(Argument – Reference to Record); see also Commonwealth v.
Hardy, 918 A.2d 766 (Pa. Super. 2007) (appellate court will not act as
counsel and will not develop arguments on behalf of appellant; when defects
in brief impede appellate court's ability to conduct meaningful appellate
review, it may dismiss appeal entirely or find certain issues waived).
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On redirect examination, Officer Bryfogle testified that the results of
an internal police investigation exonerated him from any alleged assault of
Smith during the instant altercation. N.T. Jury Trial, 3/18/13, at 148
(“[M]yself and Officer Baker were justified in the use of force to take the
defendant into custody.”). The officer also testified that he was verbally
reprimanded by a superior for not using enough force to control the
situation. Id. The trial court justified admission of the testimony, claiming
that the evidence was proper for rebuttal because the defense offered
evidence that Smith was assaulted by the officers.
Instantly, the defense objected to the overall reference to an
investigation claiming that the witness did not have a proper foundation
regarding what was actually done in the investigation (i.e., interviewing
neighboring witnesses). Id. at 147. The defense also objected to the
Commonwealth’s questioning of the officer with regard to whether his
superior found that he should have used force sooner than he did during the
incident. Id. at 149. The court overruled the first objection and sustained
the second. Notably, the defense did not object on the basis of hearsay to
the testimony regarding the officers being exonerated of any assault
accusations or the fact that Officer Bryfogle’s superior admonished him for
not using more force during the altercation. Any objections referenced
during this questioning were categorized as leading questions. Id. at 152-
53.
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