The opinion
J-S21013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW COLOPY :
:
Appellant : No. 958 WDA 2017
Appeal from the Judgment of Sentence June 13, 2017
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002075-2015
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 11, 2018
Appellant, Matthew Colopy, appeals from the judgment of sentence
entered on June 13, 2017, following his jury trial convictions for simple assault
and criminal mischief and his bench trial summary conviction of harassment.1
We affirm.
We briefly summarize the facts of this case as follows. On January 29,
2015, police responded to a telephone call regarding an altercation in a
Salvation Army parking lot in Blair County. Appellant and another man got
into a dispute over the parking of their vehicles. As the other man attempted
to take a photograph of Appellant’s vehicle and license plate, Appellant struck
him multiple times in the head with a shopping bag containing, inter alia, a
glass Pyrex dish. The victim called for help, was able to subdue Appellant
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1 18 Pa.C.S.A. §§ 2701, 3304, and 2709, respectively.
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momentarily, but when a bystander told the men to “break it up,” Appellant
got into his truck and drove away.
Procedurally, the case progressed, in pertinent part, as follows:
[Appellant] was charged [] on [] February 11, 2015 with []
aggravated assault, simple assault, criminal mischief, disorderly
conduct, and harassment.
* * *
Relevant to this appeal, [Appellant] filed a petition for evaluation
on September 12, 2016. In the petition for evaluation,
[Appellant’s] counsel assert[ed] that [Appellant] suffers from
post-traumatic stress disorder [(PTSD)] and other mental
illnesses. As a result, [Appellant] requested an opportunity to
undergo a mental health evaluation to determine if he was able to
stand trial and whether or not any defenses were available to
[Appellant] as a result of his condition. [… The trial court] granted
[Appellant’s] petition for evaluation on September 21, 2016. The
Commonwealth had filed a motion in limine/motion to exclude
[the] report and testimony of Millie Baker, LCSW and Dr. Richard
Petroski around the same time as [Appellant’s] filing of his petition
for evaluation.
The [trial] court heard testimony on the Commonwealth’s motion
in limine on December 6, 2016. At the December 6, 2016 hearing,
defense counsel [argued] that [] the testimony of Millie Baker and
Dr. Petroski [explained] why [Appellant] left the scene of the
crime [in anticipation of] a proposed instruction [on] flight [] by
the Commonwealth. Defense counsel specifically indicated that
he did not believe that the testimony was relevant for any other
purpose. After the proceeding on December 6, 2016, the [trial]
court took the matter under advisement [and] issued an order
[deferring its decision until trial]. Despite the [trial] court’s
deferral, the [trial] court provided guidance to counsel [] that the
proffered testimony was likely not relevant on the issue of self-
defense, but likely would be admissible on the issue of flight.
[…T]he order[, however,] made clear that [the trial court’s]
decision [was] without prejudice to any arguments made by
counsel once the evidence developed at trial.
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This matter proceeded to [a jury] trial on December 12, 2016.
The trial concluded on December 14, 2016. […T]he jury returned
verdicts of guilty on the charges of simple assault and criminal
mischief. [The trial] court also found [Appellant] guilty of []
harassment. The jury found [Appellant] not guilty on the charge
of aggravated assault. The jury was unable to reach a verdict on
the charge of disorderly conduct. After the jury was discharged,
the Commonwealth indicated that [it] did not desire to move
forward with a new trial on the charge of disorderly conduct. As
a result, the [trial] court entered an order dismissing the
disorderly conduct charge.
Eventually[,] a sentencing hearing occurred on June 13, 2017.
After hearing extensive argument and testimony at the sentencing
hearing, the [trial] court sentenced [Appellant] to four (4) months
to twenty-three and a half (23 ½) months[’] confinement. [The
harassment conviction merged for sentencing purposes.] The
[trial] court directed [Appellant] to serve the confinement on
house arrest/electronic monitoring[, plus] a consecutive two (2)
year period of probation[.]
* * *
In [its] sentencing order[, the trial court] indicated that a hearing
would occur on [] claims for restitution and [] directed the parties
to submit their legal positions on these claims in writing.
Prior to [the] restitution hearing, [Appellant] filed a notice of
appeal [from the judgment] of sentence on June 27, 2017. [The
trial] court entered a [Pa.R.A.P.] 1925(b) order on June 28, 2017.
[Appellant] filed a timely statement of [errors] complained of on
appeal on July 7, 2017. Subsequent to the statement of [errors]
complained of on appeal, [the trial] court forwarded []
correspondence to [this] Court [] requesting that the appeal be
remanded so that the [trial] court could address the restitution
claims that were previously left unresolved. [This Court] issued
an order on August 18, 2017 which remanded the matter to the
trial court to deal with the question of restitution. After receiving
the legal positions of the parties, [the trial] court entered an order
on September 7, 2017 addressing the claims of restitution. [The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
September 27, 2017.]
Trial Court Opinion, 9/27/2017, at 1-4 (superfluous capitalization omitted).
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On appeal, Appellant presents the following issues2 for our review:
I. Whether or not the lower court erred by granting the
Commonwealth’s [m]otion to preclude expert testimony,
that of Dr. Richard Petroski[3] and Millie Baker, in the matter
concerning Appellant’s [PTSD], relevant to flight and the
defense of self[-]defense?
II. Whether or not the verdict was against the weight of the
evidence in light of the numerous discrepancies and
inconsistencies between testimony from the Commonwealth
witnesses?
Appellant’s Brief at 5 (suggested answers omitted).
In his first issue, “Appellant avers that the [trial] court erred by
precluding Millie Baker, a licensed clinical social worker, to testify as to her
treatment of [] Appellant and that she treated him for [PTSD] and that these
symptoms explain his actions in regards to self-defense.” Id. at 21.
Appellant argues that Baker opined that “based upon her conversations,
training, education, and experience dealing with [] Appellant, [] Appellant
would not have felt any danger until the victim got very close, then []
Appellant would have felt that he had no escape other than hitting him and
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2 For ease of discussion, we have changed the order of the issues presented
by Appellant.
3Although Appellant avers in his statement of questions involved that the trial
court precluded the expert testimony of Dr. Richard Petroski, he does not
develop this aspect of his claim in the argument section of his appellate brief.
As such, Appellant abandoned and, therefore, waived any appellate claim
pertaining to Dr. Richard Petroski. See Commonwealth v. Bullock, 948
A.2d 818, 823 (Pa. Super. 2008) (citation omitted) (holding an issue identified
on appeal but not properly developed in an appellate brief is waived); see
also Pa.R.A.P. 2119(a).
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getting away.” Id. at 24. Appellant “understands that Pennsylvania has not
allowed a licensed clinical social worker to diagnose an individual with PTSD
and testify as to same.” Id. at 28. Nevertheless, Appellant contends the trial
court should have permitted Baker “to testify as to her treatment and the
symptoms exhibited by [] Appellant and whether or not his symptoms are
similar to [others] suffering PTSD.” Id. Appellant maintains that because
Pennsylvania has a liberal standard for the qualification of experts, it was trial
court error to preclude Baker as an expert witness in this case. Id. at 29-30.
If “scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education may testify thereto in the
form of an opinion or otherwise.” Pa.R.E. 702. “Decisions regarding admission
of expert testimony, like other evidentiary decisions, are within the sound
discretion of the trial court. We may reverse only if we find an abuse of
discretion or error of law.” Commonwealth v. Ventura, 975 A.2d 1128,
1140 (Pa. Super. 2009) (internal citation omitted). “An abuse of discretion will
not be found based on a mere error of judgment, but rather occurs where the
court has reached a conclusion that overrides or misapplies the law, or where
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.” Commonwealth v. Witmayer, 144 A.3d 939, 949
(Pa. Super. 2016) (citation omitted).
In this case, the trial court determined:
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The [trial] [c]ourt [] preclude[d] the testimony of Millie Baker from
testifying at trial. The defense indicated that they desired to call
Millie Baker to explain [Appellant’s] conduct during the incident
and why he felt threatened and why he would react the way he
did during the incident with the alleged victim. Counsel for the
defense asserted it was based on [Appellant’s] diagnosis of [PTSD]
that it would not be unusual that in certain circumstances he
would feel threatened and fight back. Therefore, the [trial c]ourt
assume[d] that the defense intended to present the testimony of
Millie Baker in order to make an expert conclusion that
[Appellant’s PTSD] diagnosis would explain his reaction to the
incident with the alleged victim. However, [the trial c]ourt
concluded that Millie Baker did not have sufficient qualifications as
an expert to make this conclusion.
* * *
Ms. Baker testified that she was a licensed clinical social worker
and that she had a bachelor’s degree in human services with a
focus on counseling and also a master’s degree in social work.
She testified that she has a history of treating people with [PTSD].
Despite Ms. Baker’s experience in treating people with [PTSD],
she conceded during her testimony that a licensed clinical social
worker is not currently permitted in Pennsylvania to make a
diagnosis of [PTSD] and further that she has never been qualified
as an expert in any causation issues pertaining to [PTSD]. Her
previous testimony in court was limited to experience in
counseling individuals with [PTSD]. [The trial c]ourt found her
knowledge, skill, experience, training and education to be
insufficient to testify […] on the ultimate issue of whether or not
[Appellant’s] belief as it pertained to self-defense would be
reasonable or not.
* * *
Regarding the question of self-defense, [the trial c]ourt would
have had to have made a determination as to whether or not the
theory of self-defense as proffered by the defense was objectively
reasonable. [The trial c]ourt note[s] that [it] did provide a jury
instruction on the question of self-defense in light of [Appellant’s]
testimony [at trial]. Nonetheless, [the trial c]ourt did not reach
these issues during the trial because [it] did not believe that Ms.
Baker was qualified to testify as an expert for the reasons
proffered by the defense.
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Trial Court Opinion, 9/27/2017, at 9-12.
Upon review, we agree with the trial court’s assessment and conclude it
did not abuse its discretion in precluding Millie Baker from testifying at trial as
an expert. While Baker counseled Appellant for PTSD, she lacked the
qualifications for diagnosing4 the disorder or explaining how Appellant’s
actions on the day in question were caused by or consistent with one suffering
from PTSD. Testimony regarding Appellant’s subsequent treatment would not
have assisted the jury in understanding the evidence in this matter.
Accordingly, we discern no abuse of discretion in precluding Baker from
testifying as an expert.
Next, Appellant contends that, “the verdict was against the weight of
the evidence in light of numerous contradictions between the
Commonwealth’s own witnesses.” Appellant’s Brief at 14. More specifically,
Appellant claims that the victim’s version of events was markedly different
then a testifying bystander’s account of the incident and that the verdict
should shock the court’s sense of justice. Id. at 19. He claims that, “the
Commonwealth [witnesses] did not present a clear understanding of what
took place [on the] day [in question].” Id. Appellant also points to alleged
inconsistencies between the victim’s version of events at the preliminary
hearing and at trial. Id. at 16-18. Moreover, Appellant avers:
[The victim and bystander] did not have any part of their stories
straight in that the victim claims that he had [] Appellant in a
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4 Appellant concedes this point. See Appellant’s Brief at 26.
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headlock on the ground when [the bystander] showed up,
whereas [the bystander] claims that [] Appellant had to be pulled
off of the victim. More importantly, [the bystander] testified that
both men were yelling at each other to the point that it drew his
attention as he was walking to the store. The victim testified that
he was not yelling, but only [] Appellant [was].
* * *
[Appellant maintains that the evidence presented] also goes to
support [] Appellant[’]s claim of self[-]defense in that [the
bystander] testified that both men were yelling at each other
concerning the parking of [Appellant’s] truck. [The victim]
admit[ted] that one, he punched [Appellant] right between the
eyes, and two, that when the [bystander] came upon the scene,
[the victim] had [] Appellant on the ground in a headlock. From
the testimony, it appears that [the victim] was the aggressor, or
was just as aggressive, therefore, confirming the use of force by
[] Appellant as self[-]defense.
Id. at 19-20.
Our standard of review is as follows:
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, the function of
an appellate court on appeal is to review the trial court's exercise
of discretion based upon a review of the record, rather than to
consider de novo the underlying question of the weight of
the evidence. An appellate court may not overturn the trial court's
decision unless the trial court palpably abused its discretion in
ruling on the weight claim. Further, in reviewing a challenge to
the weight of the evidence, a verdict will be overturned only if it
is so contrary to the evidence as to shock one's sense of justice.
A trial court's determination that a verdict was not against the
interest of justice is one of the least assailable reasons for denying
a new trial. A verdict is against the weight of the evidence where
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
We do not reach the underlying question of whether the verdict
was, in fact, against the weight of the evidence.... Instead, this
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Court determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion.
A challenge to the weight of the evidence must first be raised at
the trial level (1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing;
or (3) in a post-sentence motion.
Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (internal
citations, quotations, and brackets omitted).
Finally, when challenging the weight of the evidence on appeal, an
appellant must specifically identify “which verdict or verdicts were contrary to
the weight of the evidence” in his concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) and “offer specific reasons as to why
those verdicts were contrary to the weight of the evidence.” Commonwealth
v. Freeman, 128 A.3d 1231, 1248–49 (Pa. Super. 2015). A generic assertion
that the verdict was against the weight of the evidence is too vague to allow
the trial court to identify appellate issues and is the functional equivalent of
not filing a Rule 1925(b) concise statement. Id.
Here, upon review of the record, Appellant filed a motion to reconsider
his sentence on June 16, 2017. In that motion, Appellant asked the trial court
to reconsider house arrest in favor of probation and to reduce his imposed
fines. However, he did not raise a weight of the evidence claim. Upon further
review, the docket does not reflect that Appellant filed any additional
post-sentence motions. Moreover, upon review of the trial and sentencing
transcripts, Appellant did not orally raise his weight of the evidence claim prior
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to sentencing. Hence, we could find Appellant’s weight of the evidence claim
waived for these reasons.
In addition, however, the trial court determined that Appellant filed a
Rule 1925(b) statement with a generic weight claim and found waiver. Trial
Court Opinion, 9/27/2017, at 6. However, the trial court further opined:
To the extent that [Appellant] ha[d] not waived his weight of the
evidence claim, [the trial court] believe[d] that the record
supports the conclusion that the verdicts were not against the
weight of the evidence. This jury found [Appellant] guilty of
simple assault and criminal mischief. [The trial court] believe[d]
that the weight of the evidence supported the jury’s verdict. The
testimony at trial established that [Appellant] hit the victim in the
head numerous times with a glass item. The injuries incurred by
the victim were serious enough to support a finding that bodily
injury occurred. The victim also had his glasses and cell phone
damaged as a result of the assault by [Appellant].
Id.
Based upon our standard of review, we conclude that Appellant waived
his weight of the evidence claim. However, we also discern no palpable abuse
of discretion by the trial court in evaluating Appellant’s weight of the evidence
claim. Appellant does not challenge the evidence that he struck the victim
over the head multiple times with a glass object. Instead, he challenges
alleged evidentiary discrepancies regarding ancillary and, arguably,
inconsequential facts that occurred before and after the actual assault. It is
the responsibility of the factfinder to resolve these issues and we are not free
to disturb these assessments in the absence of a palpable abuse of discretion.
As such, despite waiving the issue, Appellant’s contention that the verdicts
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were against the weight of the evidence is also without merit. Accordingly,
Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2018
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