Com. v. Browndorf, G.

J. S33008/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

GARY BROWNDORF, : No. 2788 EDA 2012

:

Appellant :

Appeal from the Judgment of Sentence, October 4, 2012,

in the Court of Common Pleas of Bucks County

Criminal Division at No. CP-09-CR-0000896-2012

BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2015

Following a five-day jury trial, Gary Browndorf was convicted of

perjury and simple assault.1 The charges arose from an incident in which

appellant, then a sergeant with the Bucks County Sheriff’s Department,

punched a man whom he was assisting to arrest and then subsequently lied

about the incident under oath. Herein, he appeals the judgment of sentence

entered on October 4, 2012; we affirm.

Appellant presents the following issues for our review:

I. DID THE TRIAL COURT ERR AND UNFAIRLY

PREJUDICE APPELLANT WHEN THE COURT

FORECLOSED APPELLANT FROM CROSS

EXAMINING WITNESSES FOR THE

COMMONWEALTH ABOUT THEIR MOTIVATIONS

TO TESTIFY AND THEIR BIAS?

1

Appellant was acquitted of two counts of official oppression, one count of

false swearing, and two counts of unsworn falsification to authorities.

J. S33008/15

II. DID THE TRIAL COURT ERR AND UNFAIRLY

PREJUDICE APPELLANT WHEN THE COURT

FORECLOSED CROSS EXAMINATION ABOUT AN

OUT OF COURT STATEMENT THAT WAS NOT

OFFERED FOR THE TRUTH OF THE MATTER

ASSERTED?

III. DID THE TRIAL COURT ERR AND UNFAIRLY

PREJUDICE APPELLANT WHEN THE COURT

RESPONDED TO THE JURY’S REQUEST FOR

CLARIFICATION BY REREADING THE

INSTRUCTION?

IV. DID THE TRIAL COURT ERR AND UNFAIRLY

PREJUDICE APPELLANT WHEN THE COURT

REFUSED APPELLANT’S REQUEST TO GIVE

JURY INSTRUCTION 3.14, WHICH REFERS TO

CONSCIOUSNESS OF GUILT?[2]

Appellant’s brief at 5.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to the questions raised on appeal. The

trial court’s opinion comprehensively discusses and properly disposes of each

of the questions presented. Accordingly, we adopt that opinion as our own

and affirm on that basis.

Judgment of sentence affirmed.

-2-

J. S33008/15

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2015

2

We note that appellant has abandoned his fourth issue and concedes that

the trial court did not err. (Appellant’s brief at 18.)

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IN TIIE COURT OF COMMON PLEAS

BUCKS COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

No. 0896 of 2012

COMMONWEALTH OF PENNSYLVANIA

v.

GARY BROWNDORF

OPINION

Appellant Gary Browndorf ("Browndorf') was charged with one (1) count of Perjury, 18

Pa.C.S. § 4902; one ( 1) count of Simple Assault, 18 Pa.C.S. § 2701 (a); two {2) counts of

Official Oppression - Arrest Search Etc., 18 Pa,C.S. § 5301(1); one (l) count of False

Swearing - Official Proceedings, 18 Pa.C.S. § 4903(a)(1 ); and two (2) counts of Unsworn

Falsification to Authorities ~ Statements Under Penalty, 18 Pa.C.S. § 4904(b). These charges

stemmed from an altercation that occurred on July 26, 2011, when Browndorf, acting in his

capacity as a Deputy Sheriff of Bucks County, went to the residence of Philip Romanek

(''Romanek") and Samantha Daneker (''Doneket") at 48 Garden Lane, Levittown, Bristol

Township, Bucks County, Pennsylvania, with four other Deputy Sheriffs to execute an arrest

warrant issued against Romanek for R violation of his probation.

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On June 29, 2012, after a five-day jury trial, Browndorf was found guilty of Perjury and

Simple Assault, and not guilty on the remaining charges of Official Oppression, False

Swearing and Unsworn Falsification to Authorities.

On October 4, 2012, this Court sentenced Browndorf upon the count of Perjury to

undergo imprisonment in the Bucks County Correctional Facility for not less than six (6) nor

more than twelve (12) months, and upon the count of Simple Assault Browndorf was sentenced

to a period of probation for two (2) years with the responsibility to complete two hundred (200)

hours of community service find participate in an angel' management course.

On October 5, 2012, Browndorf filed a Notice of Appeal to the Superior Court of

Pennsylvania from the judgment of sentence entered on October 4> 2012.

On May 5, 2014, this Court ordered Browndorf to file n Concise Statement of the Errors

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)(J ), and 011 May 27, 2014, Browndorf

filed a Concise Statement of the Matters Complained of on Appeal.

This Opinion is filed pursuant to PA.R.A.P. I 925(a).

~'ACTUAL BACKGROUND

Viewing the evidence in the light most favorable lo the Commonwealth as verdict

winner, the following relevant evidence was presented nt the jury trial conducted on June 25-

29, 2012:

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Detective John Knowles of the Bucks County District Attorney's Office testified that

after receiving fl telephone call on September 16, 20( l from Gail Cobb, a woman he had

known for approximately 30 years in his capacity as a law enforcement officer, he

subsequently conducted an interview of Cobb's daughter, Samantha Doneker, concerning

allegations of assault and false arrest of Daneker and her fiance, Philip Romanek, by Sheriff

Browndorf at their residence at 48 Garden Lane, Levittown, Bucks County, Pennsylvania. N.T.

June 26, 2012, pp. 48-51.

Philip Romanek testified that he had resided for about a year ... and-a-half with his fiance,

Daneker, At her residence at 48 Garden Lane in Levlttown, Bucks County. Romanek stated that

he had been arrested in 2009 or 2010 for driving under the influence of alcohol and possession

of marijuana and paraphernalia. He pied guilty and served a mandatory 72 hours of

incarceration for ll first DUI offense followed by 6 months of parole and a year of probation.

As a result of missing two appointments with his probation officer and moving without

permission, Romanek was found in violation of his parole and served 90 days in jail. Romanek

was also ordered to attend a recovery house for his drug addiction, but a warrant was issued for

his arrest when he left the recovery house in violation of his probation. N.T. June 26, 2012, pp.

60-63.

Romanek stated that he was aware thnt a warrant had been issued for his arrest because

the sheriffs had previously left a notice at his residence. However, when the sheriffs again

returned on July 26, 20 l I, he hid in the attic, explaining that "I was going to turn myself in two

weeks later. l just had a few jobs lined up. I wanted to make money to support my family while

I was Jocked up.'iN.T. June 26, 2012, pp. 63~65.

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Romanek testified that after the sheriffs gained access to the residence, and he did not

come down from the attic as ordered, Deputy Sheriff Boyle climbed up in the attic, ordered

Romanek to get on his stomach and place his hands behind his back, and then handcuffed him.

Romanek testified that he did not resist an-est. He related that Deputy Sheriff Klein, who was

standing on a chair in the attic access and pointing his gun at him, told him, "Don't move a

f'ing muscle, or I'll shoot you." After Romanek was helped to his knees by Deputy Boyle, he

crawled to the access pausl and sat on the edge with "my feet hanging down through the hole."

He said that Deputy Boyle "stuck his arm through both of my arms and hoisted me down," and

yelled to Deputy Klein, "Hey, Bill, are yon ready to catch him?" N.T. June 26, 2012, pp. 70-

74.

As Romanek was lowered down by Deputy Boyle, his weight was transferred to Deputy

Klein standing on the chair, who then grabbed him by his legs. Romanek stated that as soon as

his feet touched the chair, Browndorf "pushed Klein out of the way" and struck him in his

chest with a closed fist. Romanek said he had not struggled, resisted or kicked anyone as he

was lowered down> and asked Browndorf "What was that for?" He said Browndorf pointed his

finger at him and replied, «That's for kicking me." Romanek said his fiance, Doneker, was in

the hallway and screamed At Browndorf when she observed the altercation. and Browndorf

"turned around and shoved her into the doorjamb and said, 'You're going to jail, 1001 for

assault 011 a sheriff':" N.T. June 26f 2012, pp. 74-80, 134, 168-169.

Romanek said they were taken to the Bristol Township Police stntiou where he told the

intake officer that they had been assaulted by Browndorf. Next, they were taken to District

Justice Wagner's court where Romanek learned that they were being charged with aggravnted

assault nncl bail was set at one hundred thousand dollars ($ 100,000). They were then

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transported to the Bucks County Correctional Facility ("BCCP'), where Romanek again

cornplained about the assault Romanek testified that photographs were taken of his apparent

injuries and he was placed on Iockdown for 72 hours "because they thought (his] spleen was

ruptured," and x-rays were taken "a couple days later." Romanek said his chest hurt for

approximately two weeks after the incident, but he has no lasting injury from the incident. N.T.

June 26, 2012, pp. 80-82, 90-92, 137-140.

Romanek testified that his preliminary hearing was held on August 23, 2011, at which

time the aggravated assault charge filed by Browndorf was dismissed by Judge Wagner.

Romanek slated that he remained incarcerated until October 7, 2011, for his parole violation,

and that the charges filed by Browndorf against him and Doneker were subsequently dismissed

by the Bucks County District Attorney's Office. Romanek said he was not testifying under any

grant of immunity and there had been no negotiations with the District Attorney's Office

concerning his sentence for his parole violation. N.T. June 26) 2012j pp. 83-86.

Romanek admitted that he had discussed with Doneker, during the approximately 200

telephone calls he made from BCCF to her) the possibility of pleading guilty lo simple assault,

and acknowledged making the following statements to her during those telephone

conversations:

Make sure yon do everything I tell you to do in this letter. I'm telling you, this

dude I talked to that I know from outside, he's a very smart dude. He's street-

smart, should I say? But the dude's got so many settlements himself. He's a very

smart person. What do you call him? He's a jail-educated person, if you want to

say that. And if you do what I tell you in this letter, he said, you'll have no

problems getting 650,000 to a mil. Might as well make a bad situation go right.

and

Yo, this is what is going to happen, I've been talking to some people. And what is

going to happen is that we are going to probably wind up going to court. They are

going to lower the court to simple assault ... because the officer never lost any

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work. So H's going to be just simple assault. You will get ARD. My PO will

recommend anywhere from 12 to 15 months, and I'm maxing out. I'm probably

going to go upstate.

Romanek explained that he felt that he was "a civilian going up against law enforcement, [and]

I just thought I had no chance." Romanek acknowledged discussing the possibility of hiring an

attorney to sue Browndorf but said that was clone out of anger and they never did hire an

attorney. N.T. June 26, 2012, pp. 87-88, 141-153, 159-167.

Romanek acknowledged that he had previously plead guilty to DUI: controlled substance

or metabolite; DUL controlled substance - impaired ability; Marijuana - small amount}

personal use; Use or possession of drug paraphernalia; Accident, damage to unattended vehicle

or property; and Careless driving. N.T. June 261 20121 pp. 93w98.

Samantha Doneker testified that she has lived at 48 Garden Lane for approximately

fourteen years. She recounted that on July 26> 2011, she, Romanek, her son, Richard Matonti,

and her daughter) Sarah Matonti, were present at her residence when the sheriffs arrived

around l l :301 "banging on the doors and windows." She said Romanek proceeded to hide in

the attic and she went and opened the front door. Dcneker said she lied to the sheriffs when

they asked if Romanek was present because she "didn't want him to go lo jail" since he had

several fencing jobs "to get done before he would actually turn himself in." As a result, she

was charged with hindering apprehension, to which she plead guilty, and is currently in the

ARD program for first-time offenders. N.T. June 26, 2012} pp. £77-184.

Doneker testified thRt it was "chaos" as the sheriffs searched the entire house for

Romanek. She said she was eventually permitted "to go to the bathroom to put a bra on," after

which she opened the bathroom door and saw Browndorf, who was in front of her, go into the

closet And strike Romanek as he was lowered down from the Attic to Deputy Klein. Daneker

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said she saw Browndorf's firm move two or three times, and stated that one of those

movements WAS a strike. She said she stated, "Yo, yo, yo, what the fuck are you doing? And

what is your name?" to Browndorf who, although she had had no physical contact with him,

then "turned around, grabbed me by my arms, pushed me into the bathroom [door], pulled me

into him, and said, "Now you're under arrest for assaulting a sheriff." Browndorf handcuffed

her find took her outside and placed her in a police vehicle and she was taken to the Bristol

Township Police station where she was fingerprinted and photographed for the first time.

Doneker was then taken to Judge Wagner's chambers where bail was set at one hundred

thousand dollars, and because she was unable to post bail, she subsequently spent four days in

BCCF. Daneker said she was charged with "aggravated assault, simple assault And hindering

... or harboring concealing," and she acknowledged pleading guilty to the hindering charge.

N.T. June 26, 2012, pp. 184~ 196.

Doneker was eventually released from prison after her bail was reduced. Her preliminary

hearing was held on August 23, 2011, at which only Browndorf appeared and testified against

her, nnd the charge of aggravated assault filed against her was dismissed. She stated that the

charge of simple assault was also eventually dismissed and that no bargains or negotiations had

occurred with the District Attorney's Office. She denied discussing the possibility of getting a

civil attorney for a lawsuit during her telephone conversations with Romanek or "hatching a

plan to frame [Browndorf]." N.T. June 26, 2012, pp. 196-201, 248.

Deputy Daniel Boyle of the Bucks County Sheriff's Office testified that he arrived at 48

Gnrden Lane on July 26, 201 l , with four other sheriffs to serve a criminal warrant on

Romanek. According to Deputy Boyle, after the sheriffs banged on doors and windows,

Doneker answered the front door and denied that Romanek was present. The sheriffs then

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gained access to the house and during their search they heard a noise in the attic. After locating

the access to the attic, Deputy Boyle climbed up into the attic with a flashlighr and his weupon

drawn and observed Romanek behind the chimney. Romanek complied with Deputy Boyle's

order to drop what was in his hands, which happened to be R flashlight, and come out and lie

face down on the plywood with his hands behind his back. Deputy Boyle then handcuffed

Romanek and assisted him to the access hole. After twice denying Romanek's request to

remove the handcuffs, Deputy Boyle instructed Romanek to sit on the edge of the access hole,

and then hooked his arm through Romanek's arms and lowered him down to Deputy Klein. He

said Romanek did not struggle and he felt the transfer of Romanek's weight onto either the

chair or Deputy Klein as he lowered him down, but due to his position in the attic, he did not

see what occurred below between Romanek and Browndorf. N.T. June 27> 2012, pp. 254-271,

276-277.

Deputy Boyle remained in the attic for a few minutes after Romanek had been lowered

down to search for a mis sing magazine for his firearm. He then exited the attic, injuring his

aim in the process. Deputy Boyle staled that discussions ensued among the sheriffs about

charging Romanek and Doneker, and he subsequently assisted in filing criminal complaints

against them at the Bristol Township Police Station at the direction of Browndorf, who was the

acting supervisor on that day. N.T. June 27, 2012, pp. 271-275.

William Klein testified that he had been employed by the Bucks County Sheriffs Office

beginning i11 June of 2006) but was dismissed after tile events that occurred on July 26, 2011,

and was currently unemployed. Klein testified that he had gone to 48 Garden Lane in

Levittown, Bucks County on that day with his partner, Deputy Jomes Mcandrew, and Corporal

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Dave Prudish, Deputy Dun Boyte and Sergeant Gary Browndorf, to serve a warrant. N.T. June

27, 2012, pp. 305~307.

After arriving at the residence around noontime, the sheriffs eventually gained access to

the house and heard "creaking coming from the ceiling." They located the access hatch to the

ceiling and observed that someone had recently gone up into the attic. Klein assisted Deputy

Boyle in climbing up into the attic, and asked Corporal Prudish to go outside and cover the

attic vent. Klein then partially entered the attic by standing on a chair to cover Deputy Boyle,

who subsequently handcuffed Romanek and lowered him down to Klein. Klein stated that he

stepped down from the chair to allow Deputy Boyle to lower Romanek down to him. He said

the closet was very small and "Deputy McAndrnw was somewhere to my left and Sergeant

Browndorf was to my right" and behind him. N.T. June 27, 2012, pp. 307-312.

Klein testified that he grabbed Romanek by "the waist of his shorts" as he was lowered

down, and said Romanek did not kick him or make any swinging motions with his legs, nor did

he feel him kick McAndrew or Browndorf. Klein stnted, however, that as Romanek "was being

lowered fro!n the attic, he was struck by Sergeant Browndorf Mr. Romanek asked why he was

struck. Gary Browndorf stated that he was kicked. And the girlfriend, Miss Doneker, became

irate." Klein said Browndorf struck Romanek in his mid-section "from behind me mid to the

right." Klein was riot able to observe any interaction that occurred between Browndorf and

Doneker. N.T. June 27, 20121pp.313-317.

James McAndrew testified that he had been employed by the Bucks County Sheriff's

Office for approximately eleven (I J) years, but was dismissed after the events that occurred on

July 26, 2011, and was currently unemployed, McAndrew testified that he had gone to 48

Garden Latte in Levittown, Bucks County on that day with the four other sheriffs as p~rt of a

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warrant squad to serve a warrant on Romanek after they received a tip that he would be there.

McAnd(ew related that they initially went to the address specified in the warrant where they

encountered Romanek 's father, who then directed them to Donekee's residence across the

street. McAnclrew slated that after the sheriffs gained entry into Doneker's house, Doneker lied

to him by slating that Romanek was not present and that "she kicked him out months ago." The

sheriffs, however, heard a noise in the attic space and Deputy Boyle climbed up into the attic

through the access hole in the closet and then Klein climbed part way up. McAndrew was to

the left of Klein and Browndorf was behind Mcandrew, As Deputy Boyle lowered down

Romanek, who was handcuffed> Mc/sndrew observed Browndorf from his peripheral vision

punch Romanek in the chest. Mc/vndrew testified that he did not see Romanek kick

Browndorf, and he did not see Doneker punch, kick or jump 011 Browndorf, but stated he did

see her "push" him. N.T. June 27, 20J 2, pp. 334·355, 371-372.

David Prudish testified that he had been employed by the Bucks County Sheriff's Office

for thirteen and half years but was dismissed as a result of the incident at 48 Garden Lane on

July 26) 2011, and was currently unemployed. Prudish had been purl of the warrant team that

went to Doneker's residence to arrest Romanek. After the sheriffs gained access to the house

and searched the first floor) it was believed that Romanek was in the attic, so Prudish went

outside to insure he did not escape. Prudish therefore did not see any contact between

Browndorf and Romanek or Doneker, Prudish testified that he nevertheless wrote an incident

report at the Bristol Township Police station based upon information provided by Browndorf

The information included statements that "while the subject was coming down from the attic,

he kicked Sergeant Browndorf in the chest area, striking the vest," and "Sergeant Browndorf

backed away. Miss Daneker, who had located herself behind Sergeant Browndorf, started to

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punch and push the sergeant." Prudish testified that he had transported Doneker to the Bristol

Township Police station and that during the trip she had been crying and stated that "Sergeant

Browndorf had punched Romanek nncl pushed her to the floor." Prudish said he did not tell the

investigating grand jury that he wrote an incident report because he "forgot." N.T. June 27,

2012,pp.389~414.

A.J. Garabedian testified that he is an Assistant District Attorney with the Bucks County

District Attorney's Office, and that on August 23, 20ll, the date of the preliminary hearing for

the charges filed against Romanek and Doneker, he had been requested to assist Browndorf at

the District Court. Although there is an established protocol for law enforcement officers to

request assistance from the District Attorney's Office prior to a hearing, it was not followed in

this case, and Garabedian was asked to assist Browndorf upon his arrival At the court. N.T.

June 27, 2012, pp. 420~423.

After he obtained a copy of the Criminal Complaint al the hearing, because Browndorf

"didn't have anything with him," Garabedian noted that Romanek was charged with

aggravated assault, a felony of the first degree; simple assault, a misdemeanor of the second

degree; and summary harassment, a summary. In addition, it appeared that Romanek had also

been charged with theft by unlawful taking. Garabedian then had to Amend the Complaint to

reflect the proper subsection for aggravated assault, (a)(3)1 causing bodily injury lo a law

enforcement officer, R felony of the second degree, Garabedian further noted that Daneker had

been charged with hindering apprehension. a misdemeanor of the second degree; aggravated

assault, a felony of the first degree; and simple assault, a misdemeanor of the second degree.

Garabedian stated that after Browndorf testified under oath, "certain charges were held for

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court. Judge Wagner dismissed the aggravated assault charge." N.T. June 27, 2012, pp. 423-

426.

Garabedian then recited Browndorf's testlmony from the transcript of the preliminary

hearing in which Browndorf testified under oath that he had been punched in his vest "maybe

once or twice" by Daneker and kicked "just once" by Romanek, and that "it was like a

swinging motion as he came down." Garabedian related that Browndorf testified that Deputy

Boyle and Klein both went up into the attic, and that as Romanek "was coming down, he

kicked me in the ... chest area, and I fell back where ... Miss Doneker was behind me, who

again started punching and yelling nt me and pushing me. I was actually in between the two of

them." Browndorf further testified at the preliminary hearing that Romanek "cursed me up and

down" when he kicked him, that he had been in or near the closet and could see Romanek's

face as he was coming down, that he was standing «with my hands up, ready to catch

[Romanek] in case. he fell," and that he was "focused on [Romanek's] torso up, reaching up for

his legs, and that's when I got hit." When he was asked if Romanek "kicked him hard enough

to force you to go backwards," Browndorf had replied, "Absolutely, yes," and reasserted that

he was pushed and then hit in his back by Doneker, N.T. June 27, 20121 pp. 427-445.

Browndorf then testified on his own behalf, stating that he had been formerly employed

as a sergeant in the Bucks County Sheriffs Office for six or seven years, prior to which he had

served as a Philadelphia police officer for twenty four years. Browndorf slated that he had

Bachelor's and Master's degrees from Temple University in secondary education and was

enrolled ju a Master's program for psychology at Holy Family University. N.T. June 27, 2012,

pp. 457-473.

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On July 26, 2011 i Browndorf testified that he was in charge of the warrant unit and

"overheard on the radio that there was someone in the attic, and they were having a problem

getting him down." Since he was "in the area" at lhe time, he "went over to the scene."

According to Browndorf, Rftel' the sheriffs entered the residence and heard noises in the attic,

he asked Doneker's son, Rich) to ask Romanek to come down. When Romanek failed to

respond, Browndorf approved the selection of Deputy Boyle to go up in the Attic to retrieve

Romanek. Romanek was then brought to edge of the attic access hole, and as he was lowered

down, Browndorf said the sheriffs "all moved closer because ... we wanted no one to get hurt

in this situatlon." According to Browndorf, he did not know if Romanek was handcuffed at that

time. He said he never touched Romanek, but as lie was lowered Romanek kicked him in his

chest, and "it surprised me. so I went back a Jlttle, and then I went forward to grab him." He

said he never at any time intentionally punched Romanek. N.T. June 27, 2012, pp. 474-485.

Browndorf said that Doneker had asked to go to the bathroom to put on her bar, and when

she came out, she was behind him and started to yell. He said he "felt what I felt was a punch,

a push ... , I knew I WAS being touched and assaulted," so "when I realized that Romanek was

handcuffed, I turned mound and handcuffed her." Browndorf then requested Corporal Prudish,

his second in command, to prepare a report of the incident in response lo a request from his

supervisor, and Browndorf insisted that he did not intentionally fabricate either encounter with

Romanek or Daneker. Browndorf denied that he had testified lit the preliminary hearing that

Klein had climbed up into the attic with Deputy Boyle. He further insisted thnt,

,,

notwithstanding the size of the small "three foot" closet, he, Klein and McAndrew were all in

the "viclnity" of the closet as Romanek was towered down, and thnt Romanek, whose feet

"were: moving back and forth," had kicked him in his vest. Browndorf insisted that he had not

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struck Romanek, but instead only "grabbed" him, and he acknowledged that "the situallon

became chaotic" after that occurred, N.T. June 27, 2012, pp. 486-51 ! , 521-522.

Browndorf testified that although he was the affiant, he did not write his own incident

report, and he had Deputy Boyle file the Crlminal Complaints on his behalf against Romanek

and Daneker, because he was unfamiliar with the process and he "was learning how to do the

charging through watchingBoyle."N.T. Jnne27, 2012,pp. 514-519.

Prior to closing arguments, this Court granted the Commonwealth's motion to amend the

Criminal Information to change the actual date of Count I, Perjury, and Count 5, False

Swearing, to August 23, 2011, the date of the preliminary hearing. N.T. June 28, 2012, p. 528.

On June 29, 2012, ar the conclusion ofthe trial, the jury returned with verdicts of guilty

on Count 1, Perjury and Count 2, Simple Assault, and not guilty as to Counts 3 and 4, Official

Oppression; Count 5, False Swearing; and Counts 6 and 7, False Statement Under Penalty.

N.T. June 29, 2012, pp. 663-668.

On October 4, 2012, atter denying Browndorf's motion to dismiss the charges based

upon weight of the evidence and sufficiency of the evidence grounds, this Court sentenced

Browndorf to undergo imprisonment in the Bucks County Correctional Facility for not less

than six (6) nor more than twelve (12) months upon the count of Perjury, and sentenced him to

a period of probation for two (2) years with the responsibility to complete two hundred (200)

hours of community service and participate in an anger management course upon the count of

Simple Assault. N.T. October 4, 2012, pp. 2-3, 62-68.

In his Concise Statement of Matters Complained of on Appeal> Browndorf raises the

following issues on appeal verbatim:

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I. The Court erred when it refused Defendant's request to give Instruction 3.14, which

refers lo consciousness of guilt.

2. The Court erred when it foreclosed Defendant's ability to cross-examine Philip

Romanek about the motivations for his testimony and the witness' bias,

3. The Court erred when H foreclosed exarnination, regarding witnesses' contemplation

of litigation and the witness' bias against Defendant.

4. The Court erred when it foreclosed cross-examination of James P. McAndrew, Jr.,

about a conversation with Philip Romanek's father. The testimony was not sought to

be offered for the truth of the matter. Rather, the testimony sought to establish a

course of conduct,

5. The Court ct-red when it foreclosed Defendant's nbiJity to cross-examine David

Prudish about the witness' bias and motives to testify.

6. The Court erred when it responded to a juror's question, which requested clarification

of the charges - R "yes or "no" answer. Instead of offering clarification, His Honor

reread the instruction.

Statement of'Matters Complained of on Appeal, May 27, 2014.

DISCUSSION

In his initial complaint, Browndorf argues that it was error for this Court to deny his

request to provide the jury with Criminal Jury Instruction 3, 14, Flight or Concealment as

Showing Consciousness of Guilt, as applied to the victim, Romanek, rather than the defendant,

Browndorf.

It is well-established that:

[tjhe nature of a court's instructions to the jury is "within the discretion of the

court, so long as the court accurately instructs the jury on the appropriate legal

principles involved." Commonwealth v. Kim, 888 A.2d 847, 852 (Pa.Super, 2005)

(quoting Commonwealth v. Harley, 424 Pa.Super. 29) 621 A.2d 1023, 1028

( 1993)). This Court's main concern is "that the charge clearly, Adequately> and

accurately presents the law to the jury fur its consideration." id. (quoting

Commonwealth v. Collins, 810 A.2d 698, 701 (Pa.Super, 2002)). The jury charge

must be reviewed "not in isolated portions but as a whole to ascertain whether it

fairly conveys the required lcgS\I principles at issue." Connnonwealth v.

McC/e11don, 874 A.2d 1223, J 232 (Pa.Super. 2005).

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Commonwealth v. Wtllls, 990 A.2d 773, 776 (Pa.Super, 2010).

The Superior Court of Pennsylvania has also observed

, .. that '*[t)he relevant inquiry for this Court when reviewing a trial court's

failure to give a jury instruction is whether such charge was warranted by the

evidence in the case." Commonwealth v. Boyle, 733 A2d 633, 639 (Pa.Super,

1999) (citing Commonwealth v, Mays, 450 Pa.Super. 188, 675 A.2d 724, 729,

appeal denied, 546 Pn. 677, 686 A.2d 1309 ( 1996)); See also Commonwealth v.

Spatz, 552 Pa. 499, 517, 716 A.2d 580, 589 (1998) (ctttng Commonwealth v.

Browdte, 543 Pa. 337, 671 A.2d 668, 673 (1996)) (Explaining that a particular

jury instruction is only warranted when there is evidence to support such an

instruction).

***

... Additionally, the Pennsylvania Superior Court has explained thnt:

l([IJ n reviewing a challenge to the trial courrs refusal to give a specific

jury instruction, it is the function of this [C]ourt to determine whether the

record supports the trial court's decision." In examining the 'propriety of

the instructions a trial court presents to a jury, our scope of review is to

determine whether the trial court committed a clear abuse of discretion or

an error of law which controlled the outcome of the case. A jury charge

will be deemed erroneous only if the charge as a whole is inadequate, not

clear or has a tendency to mislead 01' confuse, rather than clarify, a

material issue. A charge is considered adequate unless the jury was

palpably misled by what the trial judge said or there is an omission which

is tantamount to fundamental error. Consequently, the trial court has wide

discretion in fashioning jury instructions. The trial court is not required to

give every charge that is requested by the parties and its refusal to give a

requested charge does not require reversal unless the appellant was

prejudiced by that refusal.

Commonwealth v. Brown. 911 A2d 576, 582-583 (Pa.Super. 2006) (citing

Commonwealth v. Thomas, 904 A2d 964, 970 (Pa.Super. 2006)). In the instant

case, the record clearly supports the jury instruction given.

Commonwealth v. Baker, 963 A.2d 495, 506-507 (Pa.Super. 2008).

In the instant matter, Browndorf is apparently arguing that this Court impermissibly

prevented him from Insinuating or suggesting lo the jury, through Criminal Jury Instruction

3 .14, that Romanek was indeed guilty of assaulting Browndorf because he hA<I stilted in a

telephone conversation with Doncker, recorded while he was incarcerated) that he had

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contemplated pleading guilty to simple assault upon Browndorf and would receive a resultant

sentence of 12 to 15 months incarceration. This would support Browndorf's allegation that he

Wt\S kicked by Romanek and therefore bolster his credibility with, and engender sympathy

from, the jury. We determined, however, that Jury Instruction 3.14 was inappropriate in this

instance for several reasons, and accordingly denied Browndorf's request. See N.T. June 28,

2012, pp. 617~618.

Initially, we noted that Browndorf' s argument is premised upon the assumption that

Rornanek's statements made during the telephone conversations with Daneker constituted an

actual admission that he was guilty of assaulting Browndorf This. however, was never

established, and in fact was contradicted by the evidence end testimony of all of the witnesses

except for Browndorf Consequently, we concluded that Browndorf's request was an

inappropriate attempt to invade the province of the Jury by improperly Influencing their

recollection and interpretation of the evidence.

More significantly, we observed that Criminal Jury Instruction 3. l 4j Plight or

Concealment as Showing Consciousness of Guilt, provides as follows:

3.14 (Crim) CONSCIOUSNESS OF GUILT, FLIGHT, OR

CONCEALMENT AS SHOWING

L There was evidence> including the testimony of [name of witness],

that tended to show that the defendant [fled from the police] [hid from the police]

[gil'e specifics], [The defendant maintains that [he] [she] did so because

[reason].] The credibility, weight, and effect of this evidence is for you to decide.

Generally speaking, when a crime has been committed and a person thinks

he or she is or may be accused of committing it and he or she flees or conceals

himself or herself, such flight or concealment is a circumstance tending to prove

the person is conscious of guilt, Such flight or concealment does not uecessarily

show consciousness of guilt in every case. A person may flee 01· hide for some

other motive and may do so even though innocent, Whether the evidence of night

or concealment in this case should be looked al as tending to prove guilt depends

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upon the facts and circumstances of this case and especially upon motives that

may have prompted the flight or concealment.

2. You may not find the defendant guilty solely on the basis of

evidence of flight or concealment.

Criminal Jury Instruction 3.14,

The plain language of this jury instruction speciflcally refers and applies to the

defendant in the case, and the clear intent of the instruction is to focus the jury's attention upon

the conduct and culpability of the defendant and the charges that the defendant faces. This

lnstruction does not apply to the victim, and it is not designed to assist, instruct, or suggest to

the jury on how to evaluate or consider the victim's conduct. Therefore, in recognition of the

well-established principle that "[tjhe primary duty of a trial judge in instructing a jury is to

clarify the issues so the j ury is able to comprehend the question they are to decide," Chicchl v.

Southeastern Pennsylvania Transp. Authorlty, 727 A.2d 604, 609 (Pa.Cmwlth. 1999), we

concluded that Browndorf's request was an improper attempt to deflect the jurors' attention

Away from the defendant's conduct by distracting them with inappropriate considerations of

the victim's unsympathetic behavior.

Furthermore, Jut)' Instruction 3.14 is concerned with «evidence of flight or

concealment." While it was uncontested that Romanek was seeking to hide from the sheriffs

when they arrived at his residence. and Romanek has readily admitted that he <lid so, the

conduct of Romanek, the victim, is 110! at issue, and Browndorf's argument in this instance is

principally concerned with prior statements made by Romanek that would implicate his guilt,

and not his conduct in fleeing or concealing himself. Sea N.T. June 28, 2012, p. 6l7. ("there>s

fl consciousness of guilt because he saying that ... it's false charges. This guy wants to plead

guilty to what he says are false charges.") We therefore concluded that providing Jury

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Instruction 3.14, as requested by Browndorf, could potentially confuse or mislead the jurors,

and declined the opportunity to do so.

Browndorf's next four issues complained of on appeal essentially allege that this Court

"foreclosed Defendant's ability to cross-examine" various witnesses about their motivations

for their testimony and their bias against him. In particular, Browndorf suggests that he was

unable lo cross-examine Romanek and Daneker about their expressed desire to initiate

litigation against Browndorf for personal financial gain, or to cross-examine Prudish and

McAndrew about their motivations to testify, or to inquire about Mc.Andrew's "conversation

with Philip Romanek's father." According to Browndorf, that "testimony was not sought to be

offered fol' the trnth of the matter," but rather "to establish a course of conduct."

The Superior Court of Pennsylvania has observed that:

[wjith respect to the admission of evidence, the trial court has broad discretion

and will not be reversed absent an abuse of that discretion. Commonwealth v.

Stark, 363 Pa.Super. 356, 526 A.2d 383, 391 (1987), appeal denied, 517 Pa. 622,

538 A.2d 876 (1988). The trial court should not admit evidence that has no

relevance to a case. Relevant evidence is that which tends to establish facts in

issue or in some degree advances the inquiry and is therefore probative. However,

even relevant evidence may be excluded where the trial judge, in his or her

discretion, finds that admission may confuse, mislead or prejudice the jury. Id.

The probative value of a piece of evidence cannot be outweighed by its

prejudicial impact.

Connuonwealth v. Impelltzzert, 661 A.2d 422, 428 (Pa.Super. 1995),

In the instant matter, Browndorf's allegation that he was prevented from cross-

examining Romanek and Doneker about their intent to pursue litigation against him is refuted

by the record which reflects that he was permitted to question them about this possibility. As

noted above, Browndorf's defense counsel was permitted to read into the record Romanek's

statements he made during the telephone conversation he had with Doneker that was recorded

while Romanek was incarcerated at BCCF on August 17, 2011, and which Romanek

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acknowledged making, in which he stated that "if you do what I tel! you in this letter, he said,

you'll have no problems getting 650,000 to a mil. Might as well make a bad situation go right."

See N.T. June 26, 2012, p. 153.

The record reflects that Browndorf's defense counsel also cross-examined Daneker

about that potential ligation:

Q: And, by the way, you have not contacted a lawyer to file a suit at the

present time. ls that correct?

A: Correct

Q: You did consul! with an attorney about filing a suit. Correct?

A: No, not correct.

Q: You're aware that you still have two years from the date that this incident

to file suit?

A: I don't know the laws nbout -

The Commonwealth; Objection, Judge.

The Court: Objection sustained. Outside the scope.

N.T. June 26, 2012, pp. 248-249.

From these excerpts, it is clear that Browndorf was permitted to present evidence to the

jury of Romanek's and Doneker's contemplated litigation, revealing to the jury a possible

motivation for their testimony. which would have a direct bearing on their credibility.

However, this Court did not permit Browndorf's counsel to pursue cross-examination of the

witnesses concerning the specifics of that litigation because it was not relevant or probative of

the charges Browndorf faced, and was in om view designed instead to inflame and mislead the

JUI)'.

Browndorf also alleges that he was improperly prohibited from cross-examining

Prudish and McAndrew about their motivations to testify. Without specifically stating so,

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Browndorf is presumably referring to the Commonwealth's Morion In ltmine to prohibit the

introduction of any evidence relating to his allegation that his prosecution In this matter was

politically motivated, which this Court granted at the start of his trial on June 25, 2012. See

N.T. June 25, 2012, pp. 6-10.

The Commonwealth's Motion 111 limine was filed as a result of Browndorf' s Motion to

Disqualify the Office of the District Attorney, filed on October 25, 201 l . In his Motion to

Disqualify, Browndorf alleged that he had been subpoenaed to testify before the County

Investigating Grand Jury on September 291 2011. According to Browndorf's Motion, the

inquiry of the investigation concerned "various government agencies," and "may include

allegations of impropriety on the part of the Bucks County District Attorney's Office and other

government agencies." Browndorf alleged that because he had "worked for a numerous years

in Jaw enforcement in Bucks County [and] appearled] before and work[ed] with virtually every

District Attorney in Bucks County," there "would be a conflict of interest that would render it

unlikely that (he] would receive a fair trial." Motion to Disqualify the Office of the District

Attorney of Bucks County, October 25, 2011. Although an Order was entered on October 26,

2011, granting a temporary stay of the Preliminary Hearing scheduled for October 27, 2011,

I his Court denied Browndorf's Motion after a hearing on January 27, 2012,

On April 2, 2012, the Commonwealth filed its Motion in Ilntlne asserting that

Browndorf's allegation thflt his prosecution was politically motivated and vindictively pursued

by the District Attorney's Of.fice was not supported by "one shred of evidence." The

Commonwealth argued that Browndorf's claims were baseless, false and "completely

irrelevnnt to the factua] determination of the case," and it therefore requested tha: any

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questioning of the jurors during volre dire and any argument by defense counsel that was

related to these claims be precluded. Commonwealth's Motion in Llmlne, April 2, 2012.

As noted above, despite defense counsel's suggestion that Browndorf "talked about

some inappropriate conduct on the part of officials here in Bucks County" <luring his

appearance before the Grand Jury "and Io and behold ... all of a sudden he is arrested on this

matter," see N.T. June 25, 20t2, pp. 7~8, this Court determined that Browndorf's allegations

were not relevant to the charges under consideration and granted the Commonwealth's Motion

In limtne at the start of the trial. We specifically noted as follows:

The Court is going to agree from the circumstances presented here with the

Commonwealth's position that it serves no worthwhile purpose in allowing us to

go into the trier of facts' considerotlon as to whether or not there was or was not

any political motivation for the bringing of these particular charges in light of also

the fact that I think it's most appropriate that that iuformation not be brought forth

during U1e trial.

N.T. June 25, 2012, pp. 9-10.

We concluded that any questions or argument that might be presented nt Browndorf's

trial suggesting that his prosecution in this case was politically motivated would not be

probative of his guilt or innocence of the charges he faced at trlat, and that such R strategy was

only designed to improperly mislead and inflame the passions of the jurors. Since we

concluded that evidence suggesting that Browndorf's prosecution was politically motivated

would not be relevant or probative of whether or not he was guilty of actually striking a

handcuffed Romanek, we find no merit to Browndorf's allegation that he was impermissibly

restricted in cross-examining the various witnesses concerning this subject.

Browndorf next complains thnt he was improperly prevented from cross-examining

Me.Andrew about a "conversation with Philip Romanek's father." In seeking to establish that

the prohibited cross-examination find the witness' expected response would not involve

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impermissible hearsay, Browndorf argues that the "testimony was not sought to be offered for

the truth of the matter," but rather "to establish ft course of conduct," which he apparently

suggests is in this Instance an exception to the Rule Against Hearsay. See Pa.R.E. Rule 802.

Browndorf presumably refers f o the following exchange that occurred during his cross-

examination of Mc.Andrew:

Q: And did you go to that address that was on the warrant?

A: Yes.

Q: And when you went lo that address that was on the warrant, did you come

into contact with any individual?

A: Phil Rornanek's father.

Q: Did you have a conversation with him?

A: Yes, I did.

Q: And did you question him about where his son was?

A: Yes.

Q: And what was his response?

[The Commonwealth]: Objection. Hearsay.

The Court: Objection is sustained.

(Defense Counsel]: Your Honor, this is a course of conduct now as to

how he gets from one spot to another.

[The Commonwealth): Course of conduct is not an exception to the hearsay

rule, Your Honor.

The Court: Objection is sustained.

[Defense Counsel]: Excuse me, Your Honor. There is an exception to

the hearsay rule -

The Court: There are n lot of exceptions. I've already ruled.

Let's proceed.

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N.T. June 271 2012, pp. 354-355.

The Supreme Court of Pennsylvania has established that:

.. 'Hearsay' is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." Pa.RE. 80I(c). Thus, any "out of court statement offered not for its

truth but to explain the witness's course of conduct is not hearsay!'

Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1017 (2007) (citing

Commonwealth v. Sneed, 514 Pa. 597, 526 A2d 749, 754 (1987) [(holding that

where a police officer related the contents of a radio coll that prompted his trip to

the crime scene, such testimony was not hearsay because it was introduced solely

to explain how the officer came to be at the scenej].

Comnionwealth v. Johnson, 42 A.3d 1017, 1035 (Pn. 2012).

A review of Johnson, Rega and Sneed, supra, reveals that each of those cases involved

the testimony of police officers concerning statements that were related to them by a third party

upon which the officers based their subsequent course of conduct in either pursuing further

investigation, collecting evidence or apprehending the defendant. In each case, the courts ruled

that the statements were not hearsay because they had not been offered for the truth of the

matter asserted in them, but had instead been properly admitted for the purpose of explaining

the subsequent course of conduct of the police officers.

That is clearly not analogous to the factual scenario under consideration in the case sub

Judice. While McAndrew testified that the sheriffs proceeded to Doneker's residence after

speaking to and receiving information from Romanek's father, any subsequent statements

made by Rornanek's father to the sheriffs concerning Romanek would not be relevant to or

probative of the charges that were eventually filed against the defendant in this case,

Browndorf Romanek, as noted, ls not the defendant in this case and his "course of conduct" is

not at issue> nor is McAndrew's course of conduct under scrutiny. The limited testimony

regarding the sheriffs' encounter with Romanek's father was sufficient to explain to the jury

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why the sheriffs proceeded to Doneker's residence, and it is obvious that any further cross-

examination concerning additional statements made by Romauek's father would not be

relevant to Browndorf' s conduct, and would only serve as an attempt to improperly influence

or mislead the jurors.

We are also cognizant that the Superior Court in Commonwealth v. Dent, 837 A.2d 571

(Pa.Super. 2003)1 offered the following cautionary discussion regarding the application of the

"course of conduct» exception to the Rule Against Hearsay:

[I]n Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808 (1989)1 our Supreme

Court recently reviewed a similar challenge to testimony which the prosecution

claimed was justifiably introduced to explain police conduct. There, the Supreme

Court observed,

It is, of course, well established that certain out-of-court statements

offered to explain a course of police conduct are admissible. Such

statements do not constitute hearsay since they are not offered for the truth

of the matters asserted; rather, they are offered merely to show the

Information upon which police acted. Commonwealth v. Sneed, 514 Pa.

597, 606-07, 526 A.2d 749, 754 (1987); Cruz. [supra] (police responded

to radio call reporting a disturbance); Commonwealth v. Sampson, 454 Pa.

215, 219, 311 A.2d 624, 626 (1973) (police declined to arrest an

individual who asserted his innocence); Conunonwealth v. Tselepis, [198

Pa.Super. 449] 181 A.2d 710, 712 (Pa.Super.1962) (police acted upon

informant's tip that defendant was conducting a lottery). See also [

Underwood, supra J ("This CoU1i has repeatedly upheld the introduction

of out-of-court statements for the purpose of showing that based on

information contained in the statements, the police followed a certain

course of conduct that led to the defendant's arrest.").

Nevertheless, it cannot be said that every out-of-court statement having

bearing upon subsequent police conduct is to be admitted, for there is

great risk that, despite cautionary jury instructions> certain types of

statements will be considered by the jury as substantive evidence of guilt.

Further> the police conduct rule does not open the door to unbounded

admission of testimony) for such would nullify an accused's right to

cross-examine and confront the witnesses against him.

Palsa, supra, nt l 18, 555 A.2d nc 811, 812 (footnotes omitted). The Palsa court,

after noting that the challenged statements were likely to be understood by the

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jury as themselves proving the elements of the crime for which the defendant was

charged} concluded,

Tn this case, the police easily could have explained the course of their

conduct pertaining to the investigation and arrest of appellant .. without

resorting to the full and explicit statements given by [the informant]. It is

the prosecutor's duty to avoid the introduction of out-of-court statements

that go beyond what ls reasonably necessary to explain police conduct., ..

The statements could have been attenuated in other ways, too, to lessen

their prejudicial impact.

Thus, an adequate explanation for police conduct could have been

provided, while minimizing the introduction of statements made by a

person who was not under oath and who was not available for cross-

examination.

Palso, supra, at 118, 555 A.2d at 811 (emphasis deleted) .

.. . As our Supreme Court explained:

In criminal cases, an arresting or investigating officer should not be put in the

false position of seeming just to have happened upon the scene; he should be

allowed some explanation of his presence and conduct. His testimony that he

acted "upon information received," or words to that effect, should be

sufficient. Nevertheless, cases abound in which the offlcer Is allowed to

relate histcrlcal aspects of the case, replete with hearsay statements in the

form of complaints nnd reports, on the ground that he WRS entitled to give

the Information upon which he acted. The need for the evidence ls slight,

the likelihood of misuse great.

Palsa, supra at 118, 555 A.2d at 810-11 (emphasis added).

Dent, 837 A.2d at 579 -580.

In accordance with the preceding discussion and cautionary Instructions, this Court

properly prohibited Browndorf's defense counsel from pursuing further cross-examination of

McAndrew concerning any addltionnt statements made by Romanek's father. It is clear that the

infonnation elicited from such testimony would not comply with the tenets enunciated in the

case lnw cited above and could not therefore be considered a "course of conduct" exception to

the prohibition of inadmissible hearsay, Browndorf's complaint in this instance has no merit.

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Browndorf lastly alleges that this Court erred when, in response to the jury's question

requesting clarification of the instructions for a particular charge which he alleges required a

«yes or "no" answer, we instead reread the instruction to the jury.

In addressing the specific jury request for clarification to which Browndorf is

apparently referring, the record reveals the following exchange occurred after the jury

foreperson approached the Court with a question during the jurors' deliberations:

The Court: Will the foreperson please stand, juror number 3, I believe. There

is a question that you have for the Court?

The Foreperson: We were wondering if we could have a specific

clarification for when you were outlining the charges, perjury, you gave four

itemizations that would render us to a guilty verdict so we could have it all on

paper.

And we're also wonderlug if we can look at the preliminary hearing that

was so advised that we should do so to be fair and just.

The Court: I will allow you to have a redacted copy of the notes from the

preliminary hearing. The answer to that is yes.

The Foreperson: Okay. I think really we just want clarification before we

render any kind of a verdict. Do we have four points that have lo be met to reach

one of the verdicts that you - one of the charges that you read to us? I think we're

a little-

The Court I will do this. I will read the charge to you again, unless counsel

objects in some way or other.

(The Commonwealth]: No, sir.

The Court: I think that's appropriate.

[Defense Counsel]: Can we see you at sidebar for a moment, Your Honor.

Briefly.

The Court: Surely,

(The fol lowing occurred at sidebar out of the hearing of the jury:

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[Defense Counsel]: Your Honor, respectfully, I think we have to respond to the

question. And the question is simply do a}! four elements have to be met in order

to - beyond a reasonable doubt in order to find the person guilty, I don't think

they're asking for a recharge.

The Court: But I know within the charge it says in order to find the person

guilty of you must find -

[Defense Counsel]: I think ifs a yes or no answer. And that's all I'm

suggesting to the Court> as a direct response to the question under the rules. But -

The Court: I would rather read it lo them. Then theres no ambiguity.)

The Court: The defendant has been charged with perjury. To find the

Defendant guilty of this offense, you must find that each of the following

elements have been proven beyond a reasonable doubt:

First, that the Defendant made a false statement;

Second, that the false statement was made under oath;

Third, that the false statement was made during an official

proceeding. I instructed you that the statement was made at a preliminary hearing;

so, therefore, it was made at a trial and was an official proceeding.

Fourth, that the Defendant knew that his statement was false at the

time it was made;

And fifth, that the false statement was material to the proceedings

during which H was made.

The charge sheet has been prepared for each of you> and you will

receive such RS you leave the room now.

Very well. The jury may retire now.

The Court: Let me meet with counsel at sidebar.

(The following occurred at sidebar out of the hearing of the jury:

The Cou11: I think the high toad gives us the best road here. That is to say, we

read it entirely, didn't add any editorlalization, and gave them the same thing we

gave them the first time. So there was nothing that would create any ambiguity. It

was clarification, and they now know because I read the words which clearly

speak for themselves .... )

N.T. Ju11e 29, 2012, pp. 655-658.

The Superior Court of Pennsylvania has stated that

When reviewing claims that the trial court erred In instructing the jury:

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our scope of review is to determine whether the trial court committed n

clear abuse of discretion or error of law controlling the outcome of the

case. Williams v. Philadelphia Transportation Company, 415 Pa, 370,

384, 203 A.2d 6651 667 (I 964). Error in a charge is sufficient ground for a

new trial, if the charge as a whole is inadequate or not clear or has a

tendency to mislead or confuse rather than clarify a material issue. Gilder

[Glider] v. Com. Depl. of Hwys., 435 Pa. 140, 151-52, 255 A.2d 542, 547

(1969). A charge will be found adequate unless "the issues are not made

clear to the jury or the jury was palpably misled by what the trial judge

said." Voitasefskt v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370,

373 (1949). A reviewing court will not grant a new trial on the ground of

inadequacy of the charge unless there is a prejudicial omission of

something basic or fundamental. Sweeney [ Sweeny) v. Bonafigl!a, 403 Pa.

217, 221, 169 A.2d 292, 293 (1961); Giorgianni v. D/Sanzo, 392 Pa. 350,

356, 140 A.2d 802, 805 (1958). In reviewing a trial court's charge to the

jury, we must not take the challenged words or passage out of context of

the whole of the charge, but must look to the charge in its entirety. McCay

v. Philadelphia Electric Company, 447 Pa. 490. 499, 291 A.2d 7 59, 763

(1972).

Stewart v. Motts, 539 Pa. 596, 6061 654 A.2d 535, 540 (1995). A trial judge has

wide latitude in his/her choice of language when charging the jury, provided thal

the judge fully and adequately conveys the applicable Jaw. Wagner v. Anton, 453

Pa.Super. 6! 9, 632-34, 684 A.2d 570, 577 (1996), alloc. denied> 549 Pa. 704, 700

A.2d 443 (1997).

Jeter V. Owens-Corning Fiberglas COJp, 716 A.2d 633, 635 (Pa.Super. 1998),

In addition, the Superior Court had explained earlier that:

'The primary duty of a trial judge in charging a jury is to clarify the issues so

'1

tha( the jury may comprehend the questions they are to decide .... If the charge is

wholly inadequate or not clear, or has a tendency to mislead and confuse rather

than to clarify the issues, a new trial will be granted .... The functions of a trial

judge embrace not only the duty to state to the jury correct principles of law

applicable to the pending case and to endeavor to make such principles

understandable in plain language, but they also impose upon the judge the duty to

assist the jury in applying those principles to the issues presented to them for

determination!" Mcliwan v. Yellow Cab Co., 182 Pa.Super. 219, 224, 126 A.2d

816, 8 l 9 ( 1956), quoting Archer v, Pennsylvankt Railroad Co., 166 Pa.Super.

538, 541, 72 A.2d 6091 611 ( l 950) (citations omitted). Jn determining whether

error has been committed, however, the charge must be read in its entirety. See:

Riddle Memorial Hospital v. Dohm1, 504 Pa. 57l, 576, 475 A.2d 1314, 1316

( 1984); Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 536, 521 A.2d 25,

32 (1987). To constitute reversible error, fl jury instruction must be shown not

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only to have been erroneous but also harmful to the party complaining. Anderson

v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); Mickey v. Ayers. 336

Pa.Super, 512, 514-515, 485 A.2d 1199, 1201 (1984). A trial court is not required

to accept the precise language of points for charge submitted by counsel so long

as the issues are defined accurately and the applicable law is correctly reviewed.

See. Geyer v. Steinbronn, 351 Pa.Super, 536, 554, 506 A.2d 901, 911 (1986); Fi.sh

v. Gosnell, supra 316 Pa.Super. Rt 580, 463 A.2d at 1050.

Spearing v. Starcher, 532 A.2d 36, 40 (Pa.Super. 1987).

In applying the principles enunciated in Jeter and Spearing, supra, it is clear that

Browndorf s allegation concerning this Court's alleged error in re-reading to the jury the

complete instruction, rather than just responding with l111yes11 or "no" answer> is meritless.

In this particular instance, the jury questioned whether "four points [had] to be met to

reach one of the verdicts [for] one of the charges that [was] read to [them]." The complete

instruction for the charge of perjury indicates that there are five elements, not four, that am

necessary for a finding of guilty to the charge of perjury: a false statement, knowingly made by

the defendant, under oath, during an official proceeding, which was material to the official

proceedings at which it was made. The question addressed to this Court by the jury foreperson

therefore indicated that some confusion or perhaps misunderstanding existed within the minds

of the jurors concerning the actual charge for perjury which might not be remediated by a

simple "yes" or "no" answer. Consequently, we concluded that, with tin abundance of caution;

it would be most effective and practicable to re-read the entire instruction to the jury, with the

knowledge that the plain language of the instruction clearly contained the answer to the jurors,

question, which WRs: "you must find that each of the following elements have been proven

beyond a reasonable doubt."

By re-reading to the jury the instruction on perjury in its entirety, we insured that there

was no "prejudicial omission of something basic or fundamental," and we avoided any

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possibility that the charge as a whole would be "inadequate or not clear" or that a partial recital

of the instruction or explanatlon would have "a tendency to mislead or confuse rather than

clarify a material issue. 0 The recital of the instruction in its entirety was certainly not

erroneous, and Browndorf has not indicated how he was impermisslbly prejudiced by this

approach, Although we presume tlmt Browndorf' s defense counsel probably reasoned that any

misunderstanding or confusion on the part of the jurors when deliberating would necessarily

weigh in his client's favor by increasing the specter of reasonable doubt, and that is why he

was insistent upon this Court providing a simple "yes" or "no" answer, that is not proper or

sufficient grounds for this Court to overlook what we perceived to be a situation in which we

believed the jury may have misunderstood or misinterpreted the Jaw, Consequently, we

concluded that a recital to the jury of the complete instruction would reinforce the proper and

necessary legal concepts and assist them in arriving at a foir and just verdict, and we again

reject Browndorf' s complaint.

For the foregoing reasons, we recommend that this appeal be denied.

BY THE COURT:

DATE, JJ,7 ,,,211 ~o 1~

Ji