Com. v. Wenzel, R.

J-S43030-20

2021 PA Super 44

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT LOUIS WENZEL :

:

Appellant : No. 417 WDA 2020

Appeal from the Judgment of Sentence Entered November 1, 2019

In the Court of Common Pleas of Warren County Criminal Division at

No(s): CP-62-CR-0000550-2018

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

OPINION BY SHOGAN, J.: FILED: MARCH 17, 2021

Appellant, Robert Louis Wenzel, appeals from the judgment of sentence

entered on November 1, 2019, in the Warren County Court of Common Pleas.

We affirm.

The trial court summarized the factual background of this matter as

follows:

The Commonwealth charged Appellant at Criminal

Information CR 550 of 2018 with (1) count of Resisting Arrest or

Other Law Enforcement Officer,1 following an incident that

occurred on October 4, 2018. On that date, members of the

Pennsylvania State Police served an arrest warrant upon the

Appellant. The complaint alleged that the Appellant refused to

comply with the officer’s orders and he created a substantial risk

of bodily injury to the officers. Thus, the State Police were forced

to employ substantial force to overcome the resistance.

Ultimately, a jury convicted the Appellant of Resisting Arrest or

Other Law Enforcement on September 5, 2019.

1 18 Pa.C.S.A. § 5104, graded as a Second Degree

Misdemeanor.

J-S43030-20

Following trial, on September 20, 2019, Appellant filed a

motion for contempt against Corporal Jen Bovee for failure to

appear. The [c]ourt denied the motion for contempt on October 2,

2019, because the Appellant could not produce proof of service.

On November 1, 2019, the [c]ourt sentenced the Appellant to

Intermediate Punishment, for a period of two (2) years less one

(1) day, with a restrictive portion of four (4) months [of]

incarceration in the Warren County Prison, with credit for time

served of one hundred nineteen (119) days, followed by one (1)

month of House Arrest.

The Appellant filed a motion for post-sentence relief on

November 12, 2019. In response to that motion, the [c]ourt filed

a scheduling order on December 31, 2019 that ordered an

evidentiary hearing to take place on February 6, 2020 to address

the issue of whether the Commonwealth violated the discovery

standards set forth in Brady v. Maryland, 373 U.S. 83 (1963) by

failing to disclose that a Pennsylvania State Police internal

investigation took place in this matter. On February 14, 2020,

this [c]ourt denied Appellant’s motion for post-sentence relief and

published a thorough opinion explaining its ruling. On March 10,

2020, [Appellant] appealed the order entered on February 14,

2020. On March 17, 2020, this [c]ourt ordered the Appellant to

file and serve on the trial court a concise statement of the errors

complained of on appeal within twenty-one days, in accordance

with Rule 1925(b). The Appellant filed a timely statement of

matters complained of on appeal on April 6, 2020. …

Trial Court Opinion, 5/1/20, at 2-3. Both the trial court and Appellant

complied with Pa.R.A.P. 1925.

Before we address Appellant’s issues on appeal, we must address

whether this appeal is properly before us. As noted, the trial court sentenced

Appellant on November 1, 2019. That sentencing order provided:

SENTENCE

AND NOW, this 1st day of November 2019, as to Count 1, resisting

Arrest or Other Law Enforcement, the Defendant is sentenced to

an alternative sentence as follows:

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a.) Defendant shall serve a period of Intermediate

Punishment for two (2) years less one (1) day, with a

restrictive portion of four (4) months incarceration in

the Warren County Prison, with credit for time served

of one-hundred nineteen (119) days, followed by one

(1) month of House Arrest. The balance of the

Intermediate Punishment period shall be general

supervision by the Warren County Probation

Department. This sentence shall run concurrently

with the McKean County sentence Defendant is

currently serving.

b.) Defendant shall pay the cost of prosecution, an

administrative fee of $125 to the Warren County

Probation Department, a fine of $350 and central

booking costs of $125.

This sentence commences this date.

Pursuant to Local Rule 705, Defendant shall abide by all rules and

conditions of Intermediate Punishment.

The presentence investigation report is made part of the record.

BY THE COURT:

s/Maureen A. Skerda, P.J.

Judgment of Sentence, 11/1/19, at 1-2.

Appellant filed a timely post-sentence motion on November 12, 2019.1

On November 19, 2019, while Appellant’s post-sentence motion was pending,

____________________________________________

1 Post-sentence motions must be filed no later than ten days from the

imposition of sentence. Pa.R.Crim.P. 720(A)(1). Herein, the tenth day

following the imposition of sentence was Monday, November 11, 2019, which

was Veterans Day. Therefore, Appellant’s post-sentence motion that was filed

on November 12, 2019, was timely. See 1 Pa.C.S. § 1908 (for computations

of time, if the last day of any such period shall fall on Saturday, Sunday, or a

on a legal holiday, such day shall be omitted from the computation);

Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004).

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the trial court amended Appellant’s November 1, 2019 judgment of sentence

sua sponte.2 First Amended Judgment of Sentence, 11/19/19. In the

amended judgment of sentence, the trial court removed 119 days of credit for

time served. Id. at 1. On December 12, 2019, the trial court again amended

Appellant’s judgment of sentence sua sponte and stated Appellant was

required to spend ninety days of the four-month restrictive portion of his

sentence in the Warren County Prison, and house arrest would be enforced by

electronic monitoring. Second Amended Judgment of Sentence, 12/12/19.

On February 14, 2020, following an evidentiary hearing, the trial court

denied Appellant’s post-sentence motion. On March 10, 2020, Appellant filed

an appeal in which he purported to appeal from the February 14, 2020 order

denying his post-sentence motion. This Court has held that in cases where

the trial court amends the judgment of sentence during the period it maintains

jurisdiction pursuant to Section 5505, the direct appeal lies from the

amended judgment of sentence. Commonwealth v. Garzone, 993 A.2d

1245, 1254 n.6 (Pa. Super. 2010) (emphasis added). However, even though

Appellant filed an appeal from the order denying his post-sentence motion,

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2 “[A] court upon notice to the parties may modify or rescind any order within

30 days after its entry, notwithstanding the prior termination of any term of

court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S.

§ 5505. Because the amendment occurred within thirty days of the

November 1, 2019 judgment of sentence, and as no appeal had been filed,

the trial court had the authority to amend Appellant’s November 1, 2019

judgment of sentence.

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and despite the trial court filing amendments to the November 1, 2019

judgment of sentence, we conclude that under the circumstances presented

herein, we are not precluded from addressing the merits of Appellant’s appeal.

Our rationale is set forth in detail below.

As noted, Appellant filed a timely post-sentence motion on November

12, 2019, following the imposition of sentence on November 1, 2019. The

post-sentence motion tolled the thirty-day appeal period. See

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(explaining that in a criminal case, where a defendant files a timely post-

sentence motion, the period in which to file a direct appeal is tolled and does

not begin to run until the trial court decides the motion) (citing Pa.R.Crim.P.

720(A)(2); Pa.R.A.P. 903(a) (stating that “[e]xcept as otherwise prescribed

by this rule, the notice of appeal required by Rule 902 (manner of taking

appeal) shall be filed within 30 days after the entry of the order from which

the appeal is taken.”)). Although the trial court had the authority to file the

intervening First Amended Judgment of Sentence and Second Amended

Judgment of Sentence,3 we conclude that the amended sentences had no

negative impact on Appellant’s timely post-sentence motion or appeal.

____________________________________________

3 As stated above, the trial court had the authority to amend the November

1, 2019 judgment of sentence on November 19, 2019 pursuant to 42 Pa.C.S.

§ 5505. Similarly, we conclude that because the trial court had the authority

to file the First Amended Judgment of Sentence on November 19, 2019, it

retained the authority to modify that amended judgment of sentence for thirty

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The First Amended Judgment of Sentence was nearly identical to the

original November 1, 2019 judgment of sentence and provided as follows:

AMENDED

SENTENCE

AND NOW, this 1st day of November 2019, as to Count 1, resisting

Arrest or Other Law Enforcement, the Defendant is sentenced to

an alternative sentence as follows:

a.) Defendant shall serve a period of Intermediate

Punishment for two (2) years less one (1) day, with a

restrictive portion of four (4) months incarceration in

the Warren County Prison, followed by one (1) month

of House Arrest. The balance of the Intermediate

Punishment period shall be general supervision by the

Warren County Probation Department. This sentence

shall run concurrently with the McKean County

sentence Defendant is currently serving.

b.) Defendant shall pay the cost of prosecution, an

administrative fee of $125 to the Warren County

Probation Department, a fine of $350 and central

booking costs of $125.

This sentence commences this date.

Pursuant to Local Rule 705, Defendant shall abide by all rules and

conditions of Intermediate Punishment.

The presentence investigation report is made part of the record.

BY THE COURT:

s/Maureen A. Skerda, P.J.

First Amended Judgment of Sentence, 11/19/19, at 1-2.

____________________________________________

days. Id. Thus, the trial court had the authority file the Second Amended

Judgment of Sentence on December 12, 2019. Id.

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Similarly, the Second Amended Judgment of Sentence entered on

December 12, 2019, was almost identical to the original November 1, 2019

judgment of sentence. It provided as follows:

SECOND AMENDED

SENTENCE

AND NOW, this 1st day of November 2019, as to Count 1, resisting

Arrest or Other Law Enforcement, the Defendant is sentenced to

an alternative sentence as follows:

a.) Defendant shall serve a period of Intermediate

Punishment for two (2) years less one (1) day, with a

restrictive portion of four (4) months which shall

include ninety (90) days incarceration in the Warren

County Prison, followed by one (1) month of House

Arrest with Electric Monitoring. The balance of the

Intermediate Punishment period shall be general

supervision by the Warren County Probation

Department. This sentence shall run concurrently

with the McKean County sentence Defendant is

currently serving.

b.) Defendant shall pay the cost of prosecution, an

administrative fee of $125 to the Warren County

Probation Department, a fine of $350 and central

booking costs of $125.

This sentence commences this date.

Pursuant to Local Rule 705, Defendant shall abide by all rules and

conditions of Intermediate Punishment.

The presentence investigation report is made part of the record.

BY THE COURT:

s/Maureen A. Skerda, P.J.

Second Amended Judgment of Sentence, 12/12/19, at 1-2.

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Indeed, the First and Second Amended Judgments of Sentence retained

the November 1, 2019 date of imposition; they amended nothing other than

the 119 days of time credit and directed ninety days of incarceration in the

county prison followed by electronic home monitoring. If the trial court

intended the amended judgments of sentence to vitiate and replace the

original November 1, 2019 judgment of sentence, nullify Appellant’s timely

filed November 12, 2019 post-sentence motion, and alter the time for filing a

post-sentence motion and an appeal pursuant to Garzone, it failed to provide

any notice to Appellant. This Court has held that such failures constitute a

breakdown in the operation of the court and excuse the untimely filing of an

appeal. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.

2007) (explaining that “courts of this Commonwealth have held that a court

breakdown occurred in instances where the trial court, at the time of

sentencing, either failed to advise Appellant of his post-sentence and appellate

rights or misadvised him”) (citations omitted); see also Pa.R.Crim.P.

704(C)(3) (enumerating, inter alia, the sentencing court’s responsibility to

determine if the defendant has been informed of his post-sentence and

appellate rights and of the time within which the defendant must exercise

those rights).

Herein, the trial court failed to apprise Appellant that his timely post-

sentence motion became moot by the amended judgments of sentence, and

that Appellant’s post-sentence motion and direct-appeal rights began anew

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J-S43030-20

after the amendments. This constitutes a breakdown in the operation of the

court. Patterson, 940 A.2d at 498. Thus, even though the appeal properly

lies from the amended judgment of sentence entered on December 12, 2019,

pursuant to Garzone, and Appellant’s appeal was filed more than thirty days

later following the February 14, 2020 order denying his post-sentence motion,

we do not find the appeal untimely. Patterson, 940 A.2d at 498. We consider

the appeal filed on March 10, 2020, to be a timely appeal from the

November 1, 2019 judgment of sentence,4 as amended on November 19,

2019, and December 12, 2012, respectively. See Commonwealth v.

Watson, 228 A.3d 928, 933 (Pa. Super. 2020) (considering the merits of an

appeal filed on December 13, 2018, from judgment of sentence imposed on

____________________________________________

4 As stated, Appellant’s March 10, 2020 notice of appeal purported to be from

the order denying his post-sentence motion. It is well settled that the order

denying post-sentence motions finalizes the judgment of sentence for

purposes of appeal. Commonwealth v. Lewis, 911 A.2d 558, 561 (Pa.

Super. 2006) (citing Commonwealth v. Dreves, 839 A.2d 1122, 1125 n. 1

(Pa. Super. 2003) (en banc). However, an appellant filing an appeal from the

order denying a post-sentence motion instead of the judgment of sentence is

an all too common mistake. See Commonwealth v. Rivera, 238 A.3d 482,

489 n.1 (Pa. Super. 2020) (stating that the appellant purported to appeal from

the order denying his post-sentence motion and noting that “[i]n a criminal

action, an appeal properly lies from the judgment of sentence made final by

the denial of post-sentence motions,” and correcting the caption and

addressing the merits) (quoting Commonwealth v. Shamberger, 788 A.2d

408, 410 n.2 (Pa. Super. 2001) (en banc)); see also Commonwealth v.

W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa. Super. 2007) (same).

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November 27, 2018, where the judgment of sentence was subsequently

amended to allow the appellant credit for time served).5

On appeal, Appellant raises the following issues for our consideration:

[1.] The trial court erred in excluding the testimony of Dr. Joel

Burkett, doctor of chiropractic medicine, as a witness for

[Appellant] as either an expert or lay witness[.]

[2.] The trial court erred in ruling that the Commonwealth of

Pennsylvania, through its agent, the state police, did not violate

the standards of Brady v. Maryland in failing to disclose that an

internal investigation had taken place regarding this matter[.]

[3.] The trial court violated [Appellant’s] right to counsel when it

failed to permit trial counsel to argue the law of self-defense

[4.] The trial court erred in failing to require that a defense witness

from the Pennsylvania State Police attend the trial and testify

when a subpoena was received by the state police barricks [sic]

via certified mail and refused[.]

____________________________________________

5 The dissent dedicates much of its analysis to explaining that the amended

sentences were not clerical. Moreover, it opines that we fail to acknowledge

an “exchange” wherein the trial court informed Appellant that it might amend

the sentence. Dissenting Opinion, at 2, n.2. Acknowledgment of this

exchange is of no moment. There is nothing about the exchange that apprises

Appellant of his future post-sentence rights, when they begin to run, when

they expire, that they may change, or when an appeal may be filed, if or when

an amended sentence is filed. The dissent never addresses the holding in

Patterson, or Pa.R.Crim.P. 704(C)(3), concerning the trial court’s duty to

inform an appellant of his post-sentence and appellate rights, and that the

failure to do so constitutes a breakdown in the operation of the courts.

Indeed, if the amended sentences are, as the dissent finds, a reevaluation of

credit for time served, and thus, new sentences requiring separate post-

sentence motions, then the trial court had the responsibility to inform

Appellant of the time in which he had to file post sentence motions or an

appeal after the amendment because the failure to do so is a breakdown in

the operation of the court. Patterson, 940 A.2d at 498; Pa.R.Crim.P.

704(C)(3).

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Appellant’s Brief at 1-2 (full capitalization omitted).

In his first issue, Appellant asserts that the trial court erred in precluding

the testimony of Joel Burkett, a doctor of chiropractic medicine

(“Dr. Burkett”), as either an expert or lay witness. Appellant’s Brief at 11.

We disagree.

As a general rule, in order to be deemed an expert witness, the witness

must possess more expertise than is within the ordinary range of training,

knowledge, intelligence, or experience. Commonwealth v. Jennings, 958

A.2d 536, 539 (Pa. Super. 2008) (citations omitted). The determination

regarding whether a witness is qualified to testify as an expert is left to the

trial court’s discretion and will not be disturbed on appeal absent an abuse of

that discretion. Id. “An abuse of discretion is more than just an error in

judgment and, on appeal, the trial court will not be found to have abused its

discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.”

Commonwealth v. Randall, 758 A.2d 669, 679 (Pa. Super. 2000) (citation

omitted).

In Pennsylvania, a liberal standard for the qualification of an

expert prevails. Generally, if a witness has any reasonable

pretension to specialized knowledge on the subject matter under

investigation he may testify and the weight to be given to his

evidence is for the fact finder. It is also well established that an

expert may render an opinion based on training and experience;

formal education on the subject matter is not necessarily required.

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Commonwealth v. Marinelli, 810 A.2d 1257, 1267 (Pa. 2002) (internal

citations and quotation marks omitted). The relevant evidentiary rule

provides as follows:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant

field.

Pa.R.E. 702.

Herein, the witness testified untruthfully about his qualifications and

licensure. The record reflects that during direct examination by Appellant’s

counsel, Dr. Burkett testified that he was a board-certified chiropractor and

licensed to practice in Pennsylvania. N.T. (Trial), 9/5/19, at 175-176.

However, on cross-examination by the Commonwealth, it was asserted that

Dr. Burkett was not licensed. Id. at 186. The trial court ordered a recess to

permit Appellant’s counsel and the Commonwealth to contact the State Board

of Chiropractic to confirm Dr. Burkett’s status. Id. Following the recess, it

was discovered that Dr. Burkett lied about his qualifications, and he had not

held a license in nearly three years. Id. at 188. The trial court agreed with

the Commonwealth’s argument that Dr. Burkett was not qualified to testify as

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an expert because he lied about his credentials and was not licensed. Id. at

188-189.

As stated, the standard for qualification as an expert witness is

discretionary. Jennings, 958 A.2d at 539. Because the witness testified to

facts concerning his qualifications that were demonstrably false, we discern

no abuse of discretion in the trial court precluding Dr. Burkett from testifying

as an expert.

Appellant also contends that even if the trial court correctly precluded

Dr. Burkett from testifying as an expert, the court should have allowed

Dr. Burkett to provide lay-witness testimony. Appellant’s Brief at 13. We may

reverse the trial court’s ruling regarding the admissibility of lay-witness

testimony only upon an abuse of discretion. Randall, 758 A.2d at 669. Our

Rules of Evidence provide:

If a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

Pa.R.E. 701.

In his brief, Appellant’s entire argument relative to Dr. Burkett testifying

as a lay witness is as follows:

In any event, lay or expert, Dr. Burkett should have been

permitted to testify. The trial court’s failure to permit the witness

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to testify at all regarding Mr. Wenzel’s preexisting conditions put

the defense in a position of having only [Appellant] and his

girlfriend speak to [Appellant’s] problems. A main issue in this

case was whether [Appellant] was even capable of complying with

the instructions of the arresting officers, and the ability of an

unrelated witness, even one introduced as a lay, rather than an

expert witness, who had a background in chiropractic care,

would have bolstered the defense’s arguments in this regard.

Appellant’s Brief at 13 (emphasis added).

Because Appellant sought Dr. Burkett’s “lay” testimony due to

Dr. Burkett’s background in chiropractic care, we agree with the trial court

that such testimony would not have been proper pursuant to Pa.R.E. 701.

Indeed, the trial court concluded: “[A]ny testimony about the Appellant’s

physical condition would have inherently been based on specialized

knowledge.” Trial Court Opinion, 5/1/20, at 4 (citing Pa.R.E. 701(c)).

Accordingly, we discern no abuse of discretion in the trial court precluding

Dr. Burkett’s testimony, and we conclude that Appellant’s claim of error is

meritless.6

Appellant’s second claim of error asserts that the Commonwealth

committed a Brady7 violation when it failed to provide Appellant with

documents from an investigation conducted by the Pennsylvania State Police

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6 Moreover, the trial court reiterated that Dr. Burkett lied on the witness

stand. Trial Court Opinion, 5/1/20, at 4.

7 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the

prosecution must disclose evidence favorable to the accused that is material

either to guilt or punishment).

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Internal Affairs Division (“IAD”). Appellant’s Brief at 14. This IAD report

allegedly contained information that police officers in this matter were aware

that Appellant had physical limitations when they arrested Appellant. Id. at

14-15. Appellant contends that if the Commonwealth had disclosed the IAD

report, it would “have caused a major shift in the defense’s argument at trial.”

Id. at 15.

Our Supreme Court has held that in order to establish a Brady violation,

the defendant must prove:

(1) evidence was suppressed by the state, either willfully or

inadvertently; (2) the evidence was favorable to the defendant,

either because it was exculpatory or because it could have been

used for impeachment; and (3) the evidence was material, in that

its omission resulted in prejudice to the defendant. However, the

mere possibility that an item of undisclosed information might

have helped the defense, or might have affected the outcome of

the trial, does not establish materiality in the constitutional sense.

Rather, evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (internal citations,

quotation marks, brackets, and emphasis omitted).

Herein, the trial court concluded that there was no evidence the

Commonwealth suppressed the IAD report because the Commonwealth was

not aware of the IAD investigation until after trial. Trial Court Opinion, 5/1/20,

7. The trial court opined: “The District Attorney’s office was not aware that

an IAD report had been completed until December 6, 2019. Once [the District

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Attorney’s office] became aware of the report, [it] promptly provided it to

defense counsel.” Id.; N.T. (Hearing), 2/6/20, at 32. Because there is no

evidence that the Commonwealth either willfully or inadvertently suppressed

the IAD report, Appellant has failed to establish a Brady violation. Willis, 46

A.3d at 656.

Additionally, even if the Commonwealth committed a Brady violation

and failed to disclose the IAD report, any error was harmless. As noted,

Appellant asserts that if he had the IAD report, his defense would have been

different. Appellant’s Brief at 15. Appellant argues that the IAD report could

have been used to impeach a key witness as follows:

[I]t would have most certainly used the report to show that

Corporal Bovee, at least, knew about [Appellant’s] fragile

condition prior to the arrest. This would have caused a major shift

in [Appellant’s] argument at trial. The report showed that

Corporal Bovee was removed from the case and an officer who

was not present for the arrest, Corporal Wagner, was assigned the

task of writing the General Offense Report. Corporal Bovee wrote

no additional supplemental report, even thought she was the

primary decision maker that led to the entire incident.

Id. at 15-16.

In disposing of Appellant’s claim, the trial court opined:

At the time of the evidentiary hearing, the District Attorney

stipulated that a Brady violation may have occurred in that a

report existed that may have contained exculpatory evidence.

This [c]ourt, however, is convinced that the Commonwealth’s

failure to provide defense counsel with the IAD report constituted

harmless error and furthermore, that because the District

Attorney’s office was unaware that the investigation had taken

place until after the trial, and disclosed the information upon

receipt of the report. The Appellant alleges that the IAD report

could have been used to show that Corporal Bovee was aware that

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the Appellant had a broken neck at the time of arrest. This

argument is unconvincing for three reasons. First, the

Commonwealth stipulated during trial that the Appellant had a

broken neck at the time of arrest. Second, the facts contained in

the IAD report do not address the central issue of the defense’s

argument, that the Appellant’s use of force in resisting arrest was

justified as self-defense. Finally, the information in the IAD report

that Corporal Bovee was aware of the Appellant’s broken neck was

harmless error because Corporal Bovee did not testify at trial.

Therefore, the IAD report could not have been used to contradict

her testimony.

Trial Court Opinion, 5/1/20, 6-7. We agree with the trial court. Even if we

concluded the Commonwealth committed a Brady violation, which we do not,

any error was harmless, and Appellant would be entitled to no relief.

In his next issue, Appellant contends the trial court erred in refusing to

instruct the jury on self-defense and precluding Appellant’s counsel from

arguing self-defense in its summation to the jury. Appellant’s Brief at 17-18.

We conclude that this issue is meritless.

Our Court has stated:

Before the issue of self-defense may be submitted to a jury for

consideration, a valid claim of self-defense must be made out as

a matter of law, and this determination must be made by the trial

judge. Such claim may consist of evidence from whatever source.

Such evidence may be adduced by the defendant as part of his

case, or conceivably, may be found in the Commonwealth’s own

case in chief or be elicited through cross-examination.

Commonwealth v. Hansley, 24 A.3d 410, 420-421 (Pa. Super. 2011)

(citation and emphasis omitted). In its opinion, the trial court addressed this

issue as follows:

The Appellant next alleges that this [c]ourt improperly

refused to provide a self-defense instruction to the jury. He avers

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that such an instruction may have influenced the jury’s verdict.

Jury charges on self-defense must be given upon request, where

a jury would have possible basis for finding self-defense. If there

is evidence presented that could support a claim of self-defense,

it is up to the fact finder to pass upon its credibility. But before

self-defense may be at issue, there must be some evidence, from

whatever source, to justify a finding of self-defense. Com. v.

Bailey, 471 A.2d 551 (Pa. Super. Ct. 1984). Under 18 Pa.C.S.A.

§ 505 (b), self-defense cannot be used to justify the use of force

if it is

(1) To resist an arrest and

(2) The arrest is being made by someone who the actor knows is

a peace officer

Under this statute, an unlawful arrest does not excuse an assault

upon an arresting police officer. Com. v. McKeirnan, 487 A.2d 7

(Pa. Super. Ct. 1985); Com. v. Meoli, 452 A.2d 1032 (Pa. Super.

Ct. 1982). Only if the police officer unlawfully uses or threatens

deadly force, may the actor rightfully claim self-defense. The

Appellant in this case used force to resist arrest, knowing that the

arrest was being made by police officers. Furthermore, the

Appellant has never alleged that he feared for his life during the

course of the arrest. Therefore, it was proper for the [c]ourt to

refuse a self-defense instruction.

The Appellant also alleges that his Sixth Amendment rights

were violated when the Court did not allow him to argue the law

of self-defense in his closing argument. As shown above, the

defense did not provide evidence that the Appellant’s use of force

constituted self-defense under 18 Pa.C.S.A. § 505 (b). In

addition, the record does not support the Appellant’s allegation

that counsel was forbidden from arguing the law of self-defense

during closing arguments.

Trial Court Opinion, 5/1/20, at 7-8.

After review, we agree with the trial court’s rationale. It is undisputed

that Appellant was aware that the arresting officers were “peace officers”

effectuating an arrest. Even if Appellant believed that the arrest was unlawful,

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it did not justify Appellant’s use of force. 18 Pa.C.S. § 505(b)(1)(i). Thus,

there was no basis upon which to instruct the jury on self-defense.

Additionally, the record belies Appellant’s claim that he was precluded

from arguing self-defense to the jury. In his brief, Appellant contends that

the following exchange reflects that the trial court prevented him from arguing

self-defense:

In fact, the trial court cut off trial counsel during his closing

argument when he mentioned reasonable doubt and then again

when he asked for a clarification of the court’s ruling and whether

he could at least discuss the elements of self-defense in his

summation to the jury. Specifically, during the defense’s closing,

the following discussion took place:

[Appellant’s Counsel]: ...in order to find the Defendant guilty of

this charge, you must find that the Commonwealth has proven

beyond a reasonable doubt-

THE COURT: [Counsel], I will instruct the jury in the law, and I’ve

made that clear.

[Appellant’s Counsel]: Can I go through the elements, Your

Honor?

THE COURT: I will instruct the jury in the law. Continue. (T.T. at

244).

Appellant’s Brief at 18. We fail to see how this exchange prohibited Appellant

from arguing self-defense in the closing argument. Rather, the trial court

merely clarified that the court, not Appellant’s counsel, would instruct the jury

on the law. We conclude that Appellant’s claim of error is without merit.

In his final issue, Appellant avers that the trial court erred when it did

not compel Pennsylvania State Police Corporal Bovee to attend the trial and

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testify despite Appellant mailing Corporal Bovee a subpoena. Appellant’s Brief

at 19-20. Appellant maintains that he served Corporal Bovee a subpoena via

certified mail, return receipt requested, but the subpoena was returned to

counsel and marked “unclaimed” by the United States Postal Service.

Appellant’s Brief at 20. We conclude that no relief is due.

“[A] subpoena may be served upon a witness in a criminal proceeding

by registered or certified mail, return receipt requested, or by first class mail.”

42 Pa.C.S. § 5904(a). Moreover, “[a]completed return receipt shall be prima

facie evidence of service of the subpoena.” Id. at § 5904(b). In the instant

case, the trial court found that Appellant had failed to produce proof of service.

Trial Court Opinion, 5/1/20, at 8. The trial court concluded: “The subpoena

letter was returned unopened, which means service was not accepted.

Pursuant to 42 Pa.C.S. § 5904(b), no service was made.” Id.

In Hando v. Commonwealth, 478 A.2d 932 (Pa. Cmwlth. 1984),8 a

case with a similar factual scenario, the appellant argued that that the trial

court committed reversible error when it failed to make further inquiries

regarding a subpoena allegedly issued by the appellant and not accepted by

the police department. Id. at 935. The Commonwealth Court found no error

in the trial court’s refusal to investigate issues surrounding the police

____________________________________________

8 Although the decisions of the Commonwealth Court are not binding on this

Court, we may look to them for their persuasive value. Commonwealth v.

Brown, 240 A.3d 970, 973 n.3 (Pa. Super. 2020) (citation omitted).

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department’s purported refusal to accept a subpoena because the appellant

failed to present the trial court with proof of service. Id. The Commonwealth

Court explained:

[The] appellant did not present the common pleas judge with a

proof of service required by Section 5904(d) of the Judicial Code,

42 Pa.C.S. § 5904(d), to obtain a bench warrant to secure the

presence of the absent witness. Under Section 5904(d) it is the

obligation of the party seeking enforcement of a subpoena to

produce proof of the subpoena’s service to the court and request

a bench warrant, the court is not required to elicit that information

when a party fails to request a bench warrant. Appellant also

failed to request a continuance … when the subpoenaed witness

failed to appear and to request enforcement of the allegedly

ignored subpoena. As appellant failed to avail himself of … 42

Pa.C.S. § 5904(d) or [request a continuance], we find no error in

the common pleas judge proceeding with the [proceedings].

Id. at 935-936 (internal footnotes omitted).

Herein, it is undisputed that Appellant failed to produce proof of service.

N.T. (Trial), 9/5/19, at 189-191. This issue was raised before the trial court

immediately after the trial court refused to qualify Dr. Burkett as an expert.

Id. at 189. The trial court denied Appellant’s request for a continuance with

respect to the disqualification of Dr. Burkett. Id. at 190. The trial court next

concluded that Appellant failed to produce proof of service relative to Corporal

Bovee and explained that without proof of service, it could not order Corporal

Bovee to testify. Id. at 191. Appellant did not request a continuance on this

issue and made no further argument.

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We are persuaded by the reasoning in Hando. Because Appellant failed

to produce proof of service, there was no error in the trial court’s refusal to

compel Corporal Bovee’s presence or testimony. Hando, 478 A.2d at 936.

For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge King joins the Opinion.

Judge Stabile files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/17/2021

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