Com. v. Clark, T.

J-S33006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TYRONE WILBERT CLARK :

:

Appellant : No. 1412 WDA 2022

Appeal from the Judgment of Sentence Entered August 5, 2022

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

No(s): CP-04-CR-0001651-2021

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: December 29, 2023

Appellant, Tyrone Wilbert Clark, appeals from the judgment of sentence

of 25-50 years’ incarceration, imposed after he was convicted of, inter alia,

aggravated assault, 18 Pa.C.S. § 2702(a)(1). We affirm.

We need not reproduce the factual and procedural history of this case,

as the trial court comprehensively summarized it in its Pa.R.A.P. 1925(a)

opinion. See Trial Court Opinion (“TCO”), 1/30/23, at 1-42. On appeal,

Appellant raises the following questions for our review:

I. Whether the trial court erred in permitting the Commonwealth

to comment on … Appellant’s retention of counsel prior to trial in

violation of his rights under the Pennsylvania and United States

Constitutions?

II. Whether the trial court erred in permitting the Commonwealth

to impermissibly suggest that … Appellant, and by extension,

Appellant’s counsel, had an obligation to assist law enforcement

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S33006-23

in the investigation of the case in violation of his rights under the

Pennsylvania and United States Constitutions?

III. Whether the trial court erred in denying … Appellant’s motion

in limine to introduce the prior crimen falsi convictions of the

alleged victim under the premise that … Appellant did not provide

written notice to the Commonwealth, where the Commonwealth

acknowledged providing the criminal record of the alleged victim

about a week prior to the trial and the Commonwealth suffered no

prejudice from the lack of written notice and had a fair opportunity

to contest the use of such evidence.

IV. Whether the trial court erred in denying … Appellant’s motion

in limine to introduce the prior crimen falsi convictions of the

alleged victim and this error was because the probative value of

allowing this evidence substantially outweighed its prejudicial

effect.

Appellant’s Brief at 3-4 (some italics removed).

Issues 1 and 2

Appellant addresses his first and second issues together, so we do the

same. He argues that the trial court erred in “permitting the Commonwealth

to comment on … Appellant’s retention of counsel prior to trial, and

impermissibly suggest that … Appellant, and by extension, Appellant’s

counsel, had an obligation to assist law enforcement in the investigation of

the case, in violation of his rights under the Pennsylvania and United States

Constitutions.” Id. at 30 (emphasis, unnecessary capitalization, and footnote

omitted). No relief is due.

Initially, with respect to Appellant’s claim that the Commonwealth

improperly commented on Appellant’s retention of counsel prior to trial, we

deem this claim waived. In Appellant’s Rule 1925(b) statement, he did not

sufficiently identify when this allegedly improper comment occurred. See

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J-S33006-23

Appellant’s Rule 1925(b) Statement, 12/21/22, at ¶ m (“The [c]ourt erred in

permitting the Commonwealth to comment on [Appellant’s] retention of

counsel prior to trial in violation of his rights under the Pennsylvania and

United States Constitutions.”). As a result of Appellant’s vagueness, the trial

court stated that it would have to guess as to which comment by the

Commonwealth Appellant intended to challenge and concluded that it could

not meaningfully review this issue. See TCO at 64-66.

It is well-established that the Rule 1925(b) statement “shall concisely

identify each error that the appellant intends to assert with sufficient detail to

identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Here,

we agree that Appellant did not provide sufficient detail for the judge to

identify the issue; thus, this issue is waived. See Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”); Trial Court Order,

11/30/22 (directing Appellant to file a Rule 1925(b) statement and warning

that “any issue not properly included in the concise statement timely filed and

served pursuant to subdivision (b) shall be deemed waived”).

Nevertheless, even if this issue was not waived, and to the extent that

Appellant also claims that the Commonwealth suggested that Appellant had

an obligation to assist law enforcement, Appellant’s argument lacks merit.1

____________________________________________

1 We note that, for questions of constitutional law, our scope of review is

plenary, and our standard of review is de novo. See Commonwealth v.

Edwards, 272 A.3d 954, 963 (Pa. 2022).

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J-S33006-23

Appellant’s complaint centers on the questioning at trial of John Bialik, a police

officer from the Borough of Ambridge. After reviewing the detailed and well-

reasoned opinion issued by the Honorable Mitchell P. Shahen of the Court of

Common Pleas of Beaver County, we conclude that Judge Shahen’s opinion

accurately and thoroughly disposes of why the Commonwealth’s questioning

of Officer Bialik was appropriate. TCO at 11-19, 66-70.2 Accordingly, we

adopt his opinion as our own with respect to this argument.

Issues 3 and 4

Appellant also combines his third and fourth issues into a single

argument; thus, we likewise consider them together. Appellant argues that

the trial court “erred in denying Appellant’s motion in limine to admit

impeachment evidence of a criminal conviction which involved dishonesty or

false statement of the alleged victim.” Appellant’s Brief at 24 (emphasis

modified, unnecessary capitalization and footnote omitted). Specifically,

Appellant sought to introduce evidence that the victim had two convictions for

theft by unlawful taking — one from 2003, and another from 2006. See id.

at 15. At the time of trial, it was undisputed by the parties that the two

____________________________________________

2 Appellant seems to argue that any questioning by the Commonwealth that

refers to Appellant’s counsel is improper. See Appellant’s Brief at 33 (arguing

that “the questioning by the prosecutor referring to … Appellant’s counsel or

any counsel of Appellant was improper”). However, we agree with the

Commonwealth’s observation that the questions dealing with Officer Bialik’s

accessibility to defense attorneys who wish to offer him information about a

case or seek clarification (including Appellant’s counsel) was in direct response

to Appellant’s counsel’s suggestion in his cross-examination that it was

improper for Officer Bialik to not interview Appellant, who had invoked his

right to remain silent. See Commonwealth’s Brief at 19-20.

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J-S33006-23

convictions, and the respective penalties imposed, ended more than ten years

ago. N.T., 7/6/22, at 18.

Our Supreme Court has previously explained:

When reviewing the denial of a motion in limine, this Court applies

an evidentiary abuse of discretion standard of review…. It is well-

established that the admissibility of evidence is within the

discretion of the trial court, and such rulings will not form the basis

for appellate relief absent an abuse of discretion. Thus, the

Superior Court may reverse an evidentiary ruling only upon a

showing that the trial court abused that discretion. A

determination that a trial court abused its discretion in making an

evidentiary ruling may not be made merely because an appellate

court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.

Further, discretion is abused when the law is either overridden or

misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (cleaned up).

Pennsylvania Rule of Evidence 609 provides, in relevant part:

(a) In General. For the purpose of attacking the credibility of

any witness, evidence that the witness has been convicted of a

crime, whether by verdict or by plea of guilty or nolo contendere,

must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This

subdivision (b) applies if more than 10 years have passed since

the witness’s conviction or release from confinement for it,

whichever is later. Evidence of the conviction is admissible only

if:

(1) its probative value substantially outweighs its prejudicial

effect; and

(2) the proponent gives an adverse party reasonable written

notice of the intent to use it so that the party has a fair opportunity

to contest its use.

Pa.R.E. 609(a), (b).

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J-S33006-23

Further, this Court has directed that, in determining whether such

evidence should be admitted, the following factors should be considered:

1) the degree to which the commission of the prior offense reflects

upon the veracity of the defendant-witness; 2) the likelihood, in

view of the nature and extent of the prior record, that it would

have a greater tendency to smear the character of the defendant

and suggest a propensity to commit the crime for which he stands

charged, rather than provide a legitimate reason for discrediting

him as an untruthful person; 3) the age and circumstances of the

defendant; 4) the strength of the prosecution’s case and the

prosecution’s need to resort to this evidence as compared with the

availability to the defense of other witnesses through which its

version of the events surrounding the incident can be presented;

and 5) the existence of alternative means of attacking the

defendant’s credibility.

Commonwealth v. Palo, 24 A.3d 1050, 1056 (Pa. Super. 2011) (citations

omitted).

Here, in discerning that the victim’s convictions should not be admitted,

the trial court explained:

All right. Case No. 1946 of 2005, based on the documents that

have been presented to the [c]ourt, contains a guilty plea that

occurred on July 19, 2006, to Count 1 which was theft by unlawful

taking as an M-2 with the factual allegations that can be

ascertained from the exhibit being that a toolbox containing

several tools belong to Steven Dean [was] unlawfully taken by the

alleged victim in this case, William Brown.

The facts at Case No. 3157[,] where the alleged victim was

charged with and convicted of theft by unlawful taking and

received a two-year probation sentence on 11/25/2003 are not

evident on the exhibits.

Under Rule 609, for the purposes of attacking the credibility of a

witness, evidence that a witness has been convicted of a crime

must be admitted if it involved dishonesty or false statement. The

[c]ourt finds that these two convictions do involve dishonesty

and/or false statements, dishonesty in particular.

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J-S33006-23

However, under that same rule, if more than ten years have

passed since the witness’s conviction, and … that is the case, or

released from confinement, whichever is later, evidence of the

conviction is admissible only if the probative value substantially

outweighs its prejudicial effect and the proponent in this case,

[Appellant], gives an adverse party reasonable written notice of

the intent to use it so that the party has a fair opportunity to

contest its use.

By virtue of the plea, the evidence in Case No. 1964 of 2005, I

can say that … on the date of that plea, the alleged victim was 37

years old. That information is gleaned from the [g]uilty [p]lea

[c]olloquy….

In this case, [Appellant], based upon our discussions yesterday,

has available alternative means for attacking the witness’s

credibility and that, those alternative means consist of, among

other things, different versions of the story, at least as were

recounted to me by counsel last night.

In this case, this [c]ourt is also aware, based upon the discussions,

that the Commonwealth contends that it has video, doorbell video,

something like that[,] as well as a video of … the officer’s body

cam that would show allegedly [Appellant] in the area where the

incident occurred.

There is no evidence indicating … that the alleged victim in this

case from the time of 2006 to the current time has not or could

not have been rehabilitated during that time, and there is no

indication … of a history of other matters from the long-ago crimes

that [Appellant] is trying to seek to use….

I find that[,] under the evidence that’s available … in this case,

that … if these were to be used for any reason, they would have a

greater tendency to smear the character of the witness … and

suggest propensities that are not related to some of the issues or

… at issue in this case. And under the circumstances of this case,

and given the age of those crimes, this evidence would not provide

a legitimate reason [for] discrediting this witness as an untruthful

person under these circumstances.

Based upon the following, based upon those matters, I’m going to

deny the request…, and I also find that there was no written notice

that was provided to the Commonwealth of this intention. Based

on all those factors, I’m going to deny the oral motion in limine of

[Appellant] to admit the criminal convictions of the alleged victim

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J-S33006-23

in Case Nos. 315 of 2002 and 1964 of 2005, Beaver County

numbers.

N.T., 7/6/22, at 18-21.

Appellant argues that “the factors more heavily weigh in favor of

admissibility and make it clear that the probative value of admitting the

evidence substantially outweighs the prejudicial effect of the crimen falsi

convictions.” Appellant’s Brief at 27. He says that his need to introduce the

victim’s old crimen falsi convictions is high, as the jury had to decide between

the credibility of the victim, who denied having a knife or other weapon on his

person, and the testimony of Appellant and others who alleged that the victim

did have a weapon on his person. Id. at 28.3 Specifically, Appellant testified

at trial that he cut the victim with a razor blade in self-defense because the

victim “had put his hand in his back pocket. That’s where [the victim] kept

that old raggedy knife at.” N.T., 7/7/22, at 209. See also id. at 233

(Appellant’s stating that the victim “made a move for the door” and “put [his

hand] in his pants like that (indicating), no telling what he had”).

In addition, Appellant also argues that:

[F]actor one favors admissibility because, if the jury were to learn

of the prior convictions of [the victim], they might be more

inclined to believe he was not telling the truth when he claimed

he had no weapon on his person at the time of the incident; a

____________________________________________

3 The others who saw the victim with a weapon were not present when the

incident occurred. See N.T., 7/7/22, at 155, 158 (Jayvon Turner’s stating

that he did not personally see anything that happened on the porch, but saw

the victim with a knife earlier in the day); N.T., 7/7/22, at 174-75, 177-78

(Frederick Turner’s testifying that he was upstairs sleeping when the incident

occurred, but that he saw the victim with “something in the back” that

Frederick Turner believed was a weapon).

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J-S33006-23

crucial component of Appellant’s defense. Moreover, factor two

favors admissibility because this is not a case where the alleged

victim is accused of a theft[-]related crime and propensity to

commit theft is at-issue; rather, the dated convictions bear on the

witness’[s] credibility and do not tend to smear his character.3

Factor three relates to the age and circumstances of the witness.

[The victim] was [53] at the time of trial,[4] and the 2006

conviction would have been committed in his adulthood. While

the 2006 conviction was approximately sixteen years old at the

time of the trial, [this] Court [has] permitted a conviction of the

same age for the same reasons it is relevant here.

3 Factor four appears to be more related to the

Commonwealth’s use of this evidence, since it pertains to

the strength of the prosecution’s case and thus, is not

applicable in this analysis.

Appellant’s Brief at 28-29 (internal citations and a footnote omitted).

We agree with Appellant that the first two factors tend to weigh in favor

of admitting the victim’s crimen falsi convictions. The victim’s convictions for

theft by unlawful taking reflect on his honesty, and do not have a greater

tendency to smear his character and suggest a propensity to act violently,

rather than provide a legitimate reason for discrediting him as an untruthful

person. The third factor is a closer question, as the victim was in his thirties

at the time he committed the crimen falsi offenses, but both convictions were

over fifteen years old by the time of trial.

Importantly, though, the fourth and fifth factors weigh heavily against

admission. See Commonwealth v. Felder, 2022 WL 3210181, at *6 (Pa.

Super. filed Aug. 9, 2022) (stating that “[t]he fourth factor turns on the

____________________________________________

4 Appellant mistakenly says that the victim was 37 years old at the time of

trial. See N.T., 7/7/22, at 60 (the victim’s stating at trial that he is 53 years

old).

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J-S33006-23

importance of the witness’s credibility and strongly favors admission of the

prior crimen falsi conviction where the witness’s testimony is central to the

case”) (citations omitted)5; see also Palo, 24 A.3d at 1056 (describing the

fifth factor as whether alternative means of attacking the witness’s credibility

exist). Significantly, as the trial court noted, there was a video of the incident

taken from a neighbor’s security camera. See Commonwealth’s Exhibit 8. As

the Commonwealth observes, because the criminal conduct that formed the

basis of the jury’s verdict was captured on video, it was less likely that the

trial would come down to a credibility contest between the victim and

Appellant. Commonwealth’s Brief at 10. The Commonwealth aptly explains:

[T]he crime in the present case was captured on video. Thus, the

competing accounts offered by the victim and Appellant from the

witness stand as to whether the victim reached for a knife or not

could easily be judged by resorting to the video footage. The jury

watched Commonwealth’s Exhibit 8 numerous times during the

trial, and the footage clearly does not show the victim reaching

for anything with his right hand as Appellant claimed in his direct

testimony.

Id. at 15-16.6 Further, given the direct footage of the incident, had the victim

been untruthful about reaching for a knife or making some other kind of

____________________________________________

5 See Pa.R.A.P. 126(b) (setting forth that an unpublished non-precedential

memorandum decision of the Superior Court filed after May 1, 2019, may be

cited for its persuasive value).

6 Although the video was taken from a distance, our review of it confirms that

the victim did not reach in his pocket, or move to the front door, before

Appellant attacked him. See also TCO at 52 (“Evidence involving camera

footage of the altercation was also admitted; that surveillance footage showed

… Appellant and the victim standing on the porch in a manner consistent with

(Footnote Continued Next Page)

- 10 -

J-S33006-23

movement, the video would show otherwise and serve to undermine the

victim’s credibility. Thus, we are unconvinced that the trial court abused its

discretion in disallowing the admission of the victim’s crimen falsi convictions.7

Judgment of sentence affirmed.

____________________________________________

the testimony provided by [the victim]. This footage also depicted … Appellant

leaping towards the victim and the victim fleeing the scene.”).

Further, to the extent Appellant argues that there was a credibility

contest over whether the victim was carrying a knife, we consider that

argument to be unpersuasive. Even if the victim was carrying a knife, that

fact does not prove that Appellant was justified in attacking him, if Appellant

was not facing a life-threatening situation, had a duty to retreat and could

safely do so, and/or provoked the use of force. See Commonwealth v.

Charles, 2023 WL 7015598, at *4 (Pa. Super. filed Oct. 25, 2023) (“The

Commonwealth can disprove a claim of self-defense or defense of others by

establishing that: 1[.] the accused did not reasonably believe that he was in

danger of death or serious bodily injury; or 2[.] the accused provoked or

continued the use of force; or 3[.] the accused had a duty to retreat, and the

retreat was possible with complete safety. The Commonwealth must establish

only one of these three elements beyond a reasonable doubt.”) (cleaned up).

Appellant’s argument ignores these other considerations.

7 Because we determine that the trial court did not abuse its discretion in

determining that the probative value of the victim’s convictions did not

substantially outweigh their prejudicial effect, we need not address whether

the notice given to the Commonwealth was sufficient.

- 11 -

J-S33006-23

12/29/2023

- 12 -

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DPINION"

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IN THE COURT OF COMMON PLEAS OF BEAVER

BEA VER COUNTY,

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH

COMMONWEAL TH OF

PENNSYLVANIA

CP-04-CR-01651-2021

vs.

VS.

1412 WDA

WDA 2022

2022

TYRONE CLARK

P..

Shahen, Mitchell P JANUARY 30,

JANUARY 30, 2023

2023

OPINION OF

OE LOWER COURT PURSUANT TO PA.R.A.P,

PA.R.A.P. RULE 1925(al

1925()

Tyrone

Tyrone Clark

Clark ("Appellant"

("Appellant" or "Clark") appeals

appeals from

from the

the August 5, 2022,

August 5, 2022,

judgment of sentence entered by the Court of Common Pleas of Beaver County

County

following his convictions of Aggravated Assault,' Simple Assault,' Recklessly

Assault, and Recklessly

Endangering Another Person.'

Person.

PROCEDURAL

PROCEDURAL HISTORY

HISTORY

The charges against the Appellant stem from an incident occurring

occurring at 924

-

Beaver Avenue, Ambridge, Pennsylvania, in the early evening

evening hours of Sept~mber

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'18PC.S. 2702 (a)(1)

$ 2702 (a(D) a

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218 Pa.C.S. §$2701(a)0

18PA.CS. 2701(a)(1) ,... et

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3 18 Pa.C.S. $2705

'18P6CS. §2705 t t

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Page 1 of 83

1 of83

11,

1, 202 1. The incident involved an altercation between the Appellant

2021. Appellant and the

victim, William Christopher Brown

Brown ("Chris

(Chris Brown" or

or "victim")."

"victim").'

By Criminal Information

Infonnation dated November S,

5, 2021, the Appellant

Appellant was

charged

charged as

as follows: ((1)

1) count of Criminal Attempt Criminal Homicide

Attempt-Criminal Homicide (First

(First

Degree Felony);

Felony)'; ((1)

1) count Aggravated Assault

Assault (First

(First Degree

Degree Felony)';

Felony); ((1)

1) count

Simple Assault

Assault (Second

(Second Degree Misdemeanor)';

Misdemeanor)'; ((1)

1) count Recklessly Endangering

Recklessly Endangering

Person (Second Degree Misdemeanor)';

Another Person Misdemeanor); ((1)

1) count Harassment--Subject

Harassment—Subject

Other to Physical

Other to Physical Contact

Contact (Third

(Third Degree

Degree Misdemeanor)'.

Misdemeanor°,

Appearances were made by Assistant District Attorney

Attorney Bart Wischnowski

("Mr. Wischnowski") for the Commonwealth, and Attorney

Attorney Max A. Schmierer

("Mr. Schmierer") for

("Mr. Schmierer") for the

the Defendant.

Defendant. Jury

Jury selection

selection began

began on

on July 5, 2022,

July 5, 2022, and

and the

the

trial was conducted from July 6, 2022 to

t0 July 8, 2022. On July

July 11, 2022, the Jury

Jury

returned

returned aaverdict finding the Appellant guilty

the Appellant guilty of

of Count 2: Aggravated

Aggravated Assault,

Assault,

Count

Count 3: Simple Assault,

Assault, and

and Count

Count 4:

4: Harassment;

Harassment; the jury

jury was deadlocked as to

Count 1:

Count Criminal Attempt—Criminal

I: Criminal Attempt-Criminal Homicide.

Homicide.

On

On August

August 5, 2022, the

the Appellant

Appellant was sentenced to

was sentenced to undergo imprisonment

undergo imprisonment

in aaState Penal

Penal or Correctional Institution

Institution or Facility

Facility at Count 22for

for not less than

°William Christopher Brown

William Christopher Brown isis also

also known

known as Chris Brown

as Chris socially and

Brown socially throughout his

and throughout community.

his community

s 18 Pa.C.S. $901(0),

'18PAC.S. § 901(a); 18 Pa.C.S.

PA.C.S. §$ 2501(a)

e18 Pa.C.S. §$ 2702(a)(1)

'18PAC.S. 27026)0)

18 Pa.C.S. $2701(a)(1)

'I8PAC.S. § 2701(a)(1)

s18 Pa.C.S. $2705

'1SPA.CS. §2705

9 18 Pa.C.S. §

'1$PAC.S. 270g(a)(1)

42709()(1)

Page 2

2 of

0f 83

twenty-five (25)

(25) years, nor more than fifty

fifty (50)

(50) years.

years. The court imposed

imposed no

further sentence at Count 3

3 and Count 4.

The Appellant fled

filed aatimely post-sentence motion on August

August 10,

10, 2022. On

November 4,

4, 2022,

2022, the court entered

entered an denying Appellant's

an Order denying Appellant's Motion for

for

Post-Sentence Relief.

On November 30, 2022, the Appellant filed aa Notice of Appeal

Appeal to the

Superior Court of Pennsylvania. On

On that day, this

that same day, this court entered an

an Order

requiring the Appellant to file aaConcise Statement of Matters Complained

Complained of on

Appeal, pursuant

pursuant to Pa.R.A.P.

Pa.R.A.P. §$1925(b).

1925(b). The

The Appellant

Appellant timely

timely filed

filed a

a Concise

Statement of Matters Complained on Appeal and aaConcise Statement of Errors

Complained on Appeal on December 21, 2022.

PRELIMINARY MOTIONS

h

I. VoiR

VOIR DIE

DIRE

Jury selection

Jury took place

selection took place on

on July

July S,

5, 2022;

2022; interviews

interviews for

for Prospective Juror

Prospective Juror

No. JPSA-8 took place on that same day. Mr. Schmierer asked for clarification on

No, JP5A.8

an unclear answer provided in Juror No.

No, JPSA-8's questionnaire, in which it

JP5A-8's questionnaire, it

A summary of the

appeared the Juror had changed their answer from Yes to No." A

transcript on this matter is below:

MR.

MR. SCHMIERER: And I'm I'm looking

looking at your

your questionnaire here.

here.

There, it looks like you may have changed an answer. I'm just trying

pl

Id. at

10 53.

at53.

Page 3 of 83

3 of83

to clarify. The question was,

was, "would you have any any problem

problem following

following

the Court's instruction that the defendant in a a criminal case does not

have

have to take

take the

the stand or

or present

present evidence and it it cannot be

be held

against the

against the defendant

defendant if

if he or she

he or she elects

elects to

to remain silent or

remain silent or present

present no

no

evidence?" You indicate on youryour form,

form, it appears

appears to be no,

no, but also,

also,

the box may have been check yes. yes.

PROSPECTIVE JUROR NO. JL5A-8: I I did change

change that. I I thought

thought

about

about that

that when

when I I did that, too. My

My own personal

personal belief

belief is,

is, sometimes

I

I think like if you would be a, if you were the defendant and you you were

not

not guilty, you would want

want people

people in

in a

a jury to

to hear

hear your

your side of the

case so

case so that

that they can understand

they can why you're

understand why you're not

not guilty or where

guilty or where

you're coming from,

from, and

and you'd

you'd want

want to stand

stand up

up for

for yourself,

yourself, because

because

I

I would want to stand up up for myself

myself if something

something was said againstagainst me

that

that was untrue.

was untrue.

MR.

MR. SCHMIERER: Right. Right. And

And that's

that's certainly

certainly a a reasonable position

reasonable position

to take. We just

just want to know, and of course, if that's your personal

your personal

belief, that's your personal belief. We justjust want to know, if the Court

were to instruct you

you on that, as that Court's already,

already, you

you know,

know, stated,

would you

you be

be able

able to

to not

not hold

hold anything against

against a a defendant

defendant should

should he

he

or she decide not

or not to testify?

testify?

PROSPECTIVE JUROR NO. JL5A-8: I

I would try, yes.

yes.

MR. SCHMIERER: Okay. And I completely understand. By

I completely saying "I

By saying "l

would try," do you have

would try," have some

some reservations about whether you'd

you'd be

be

able to do that?

that'?

PROSPECTIVE

PROSPECTIVE JURORJUROR NO. JL5A-8: I

NO. JL5A-8: I mean

mean I,

I, no. I'd still,

no. I'd still, like

like it's

it's

still,

still, my own person,

my own if it

person, if it was me, I

was me, would want

I would to defend

want to defend myself.

myself.

MR. SCHMIERER: I

I understand. Okay. Thank you, ma'am.

MR.

MR. WISCHNOWSKI: Good

Good morning,

morning, Ma'am.

Ma'am.

PROSPECTIVE

PROSPECTIVE JUROR

JUROR NO. JL5A-8: Hi.

Hi.

MR. WISCHNOWSKI:

WISCHNOWSKI: Just a

a few

few follow

follow ups.

PROSPECTIVE JUROR NO. JL5A-8: Okay.

Okay.

MR. WISCHNOWSKI:

MR. WISCHNOWSKI: So So if Judge Shahen

Shaben instructed

instructed you and the

other potential jurors you can't hold it against the defendant if he

chooses not testify

testify could you

you follow that instruction?

Page

Page 440f83

of 83

PROSPECTIVE

PROSPECTIVE JUROR NO. JL5A-8:

JUROR NO. JLSA-8: Yes.

Yes.

MR. WISCHNOWSKI: Thank you.

you.

(WHEREUPON, the prospective

prospective juror left the courtroom)

courtroom)

After

After the

the trial court heard

trial court arguments regarding

heard arguments regarding the

the Motion

Motion to Strike. The

to Strike. The

juror was returned to the courtroom and the following

following occurred:

...

THE COURT: Okay.

THE Okay. So, there's

there's been

been some

some questions

questions that werewere

raised, and IIjust have a

a question or two to ask you.

you. This involves

something you've

something you've already discussed, and

already discussed, and as

as I

I was

was telling

telling the

the parties,

parties, II

was listening. I'm going to ask you basically the question that Mr.

Wischnowski asked you,

Wischnowski you, and II know

know hehe asked

asked you

you a a lot.

lot. I

I told

told you

you in

in

the beginning that I'm going to give

give instructions on the law and you you

are to follow them, but also, I

I told you

you that you

you have to answer

questions with

questions with candor

candor and

and honesty.

honesty. The

The candor

candor is

is important

important here.

here.

PROSPECTIVE JUROR NO. JLSA-8:

JL5A-8: Okay.

Okay.

THE COURT: I'm going going to instruct you, as I

I told you

you earlier, that Mr.

Clark,

Clark, as all Defendants,

as all Defendants, are presumed innocent.

are presumed innocent. I'm

I'm also going to

also going to

instruct you that the Defendant has an absolute constitutional right

right not

to take the witness stand, and I'm going

going to tell you

you that cannot be held

against him to any extent. II don't use that extra qualifier,

qualifier, but that is to

say it simply

simply cannot be.

PROSPECTIVE

PROSPECTIVE JUROR NO. JLSA-8: Okay.

NO. JL5A-8: Okay.

THE COURT: That is aafundamental principle, principle, and if you

you can't follow

that, that's fine. If you

you think that there's aachance that you you won't

follow it, just

follow it, just let

let us

us know. So, the

know. So, the question

question is,

is, if

iflIinstruct

instruct you on that

you on that

principle,

principle, that

that he

he has

has that

that absolute

absolute right

right not

not to

to testify

testify and

and it

it can't

can't be

held against

held against him,

him, will

will you

you follow

follow that

that instruction?

instruction?

PROSPECTIVE

PROSPECTIVE JUROR NO. JLSA-8: Yes.

NO. JL5A-8: Yes.

(WHEREUPON, the

the prospective juror left

left the courtroom).

THE COURT: So, gentlemen,

gentlemen, I might add that that answer is

I might

consistent, and although I I didn't observe the demeanor during the

initial question,

question, I

I did hear it and it sounded that same, with that same

Page 5

5 of 83

resonance, and so Mr. Schmierer, I'm going

going to respectfully

respectfully deny your

deny your

motion

motion to strike this

to strike this juror.

juror. 'II

II.

II. PRE-TRIAL M

PRE-TRLAL OTIONS

MOTIONS

Prior

Prior to

to opening statements, the parties

parties met

met with

with the Court on record.

record. The

The

Court

Court addressed

addressed the

the defenses' motion

motion in

in limine

imine to

to include

include evidence of

of the victim's

victim's

prior

prior convictions. The defense provided dockets

dockets and criminal information for two

cases

cases involving

involving Chris Brown.'

Brown.' A

A summary of

of the Court's findings

findings on that motion

are

are below:

Based

Based on

on the

the documents that

that have

have been

been presented

presented toto the

the Court,

Court, Case

Case

No. 1.964 0f

No. 1964 of 2005

2005 contains aaguilty plea

plea that

that occurred

occurred on

on July

July 19, 2006,

2006,

to

to Count

Count 1,I, which

which was theft by

by unlawful taking

taking as Misdemeanor

Misdemeanor in in the

Second Degree

Degree with the factual

factual allegations that

that can

can be ascertained from

from

the

the exhibit being that a

a toolbox

toolbox containing several tools belonging to

tools belonging

Steven Dean was unlawfully taken by by the alleged

alleged victim in this case,

William Brown.

The facts at Case No. 3157, where the alleged victim in this case was

charged with and convicted of theft

charged theft by

by unlawful taking and received

received a

a

two-year

two-year probation

probation sentence on November 25, 2003, are not evident on

the

the exhibits.

Under

Under Rule 609,

609, for

for the

the purposes

purposes of

of attacking

attacking the

the credibility of aa

witness, evidence that aawitness has been convicted of a a crime must be

be

admitted if it involved dishonesty

dishonesty and/or false statement. The Court

finds that these two convictions do involve dishonesty and/or false

statements, dishonesty

dishonesty in

in particular.

particular.

However, under the same rule, if more than ten yearsyears have passed since

the witness's

witness's conviction, and that is

is the case,

case, or

or released

released from

confinement, whichever is later, evidence of the conviction is

admissible only if

if the probative

probative value

value substantially outweighs its its

prejudicial effect. Additionally,

prejudicial Additionally, the proponent

proponent in

in this case,

case, the

Id, at 58-63.

Id at58.63

Defense Pretrial Exhibits A

Defense

t2 A and B.

B

Page 6

6of 83

0f83

Defendant,

Defendant, must give

give an adverse party

party reasonable

reasonable written

written notice

notice of the

the

intent to use it so that the party

party has a

a fair opportunity

opportunity to contest its use.

By

By virtue of the

virtue of the plea,

plea, the evidence in

the evidence in Case

Case No.

No, 1964

1964 0fof 2005,

2005, IIcan

can say

say

that on the date of that plea, the alleged

alleged victim was thirty-seven

thirty-seven years

years

old. That

That information is is gleaned from the the Guilty

Guilty Plea

Plea Colloquy

Colloquy that

that is

is

part of

part of this

this hearing evidence now.

hearing evidence now. InIn this case, the

this case, the Defendant,

Defendant, based

based

upon our

upon our discussions

discussions yesterday,

yesterday, has available alternative

has available alternative means

means for

for

attacking the

attacking witness's credibility

the witness's credibility and

and those alternative means

those alternative consist

means consist

of different versions of the story, among

among other things—at

things-at least as were

recounted

recounted to me by

to me by counsel

counsel last

last night.

night.

In

In this case, the

the Court is

is also aware, based

based upon

upon the

the discussions, that

the Commonwealth contends that it has a [surveillance]

[surveillance] video,

video, as well

as video of the officer's body

body cam, that would allegedly

allegedly show the

Defendant in

Defendant in the area where

the area where the incident occurred.

the incident occurred.

There is no

There is evidence indicating

no evidence indicating that

that the

the alleged

alleged victim

victim in this case,

in this case, from

from

the time of

the time 2006 to

of 2006 to the

the current

current time,

time, has

has not or could

not or could not have been

not have been

rehabilitated

rehabilitated during

during that

that time,

time, and

and there

there is no indication

is no of a

indication of a history of

history of

other

other matters

matters from

from the

the long-ago crimes that

long-ago crimes that the

the Defendant

Defendant isis seeking

seeking to

to

use in this

use in this case.

case.

IIfind

find that

that under

under the evidence that's

the evidence available in

that's available in this case, that

this case, that if these

these

were to be used for any reason, they they would have agreater

a greater tendency

tendency to

smear the

smear character of

the character of the

the witness

witness and

and suggest

suggest propensities

propensities that that are

are not

not

related to the issues or at issue in this case. And under the

circumstances

circumstances of of this case, and

this case, and given

given the

the age of those

age of those crimes,

crimes, this

this

evidence would

would not

not provide

provide aalegitimate

legitimate reason

reason toto discredit

discredit this

this witness

witness

as an untruthful person under these circumstances. Ialso find that there

as an untruthful person under these circumstances. I also find that there

was no

was written notice

no written notice that

that was

was provided

provided toto the

the Commonwealth

Commonwealth of of this

this

intention.

intention.

Based on all

Based all those

those factors,

factors, I'm going

going to

to deny

deny the

the oral

oral motion

motion in limine

of the

of the Defendant

Defendant to admit the criminal convictions of thethe alleged

alleged victim

in Case

in Case Numbers

Numbers 315 of 2002,

315 of 2002, and

and 1964 of 2005,

1964 of 2005, Beaver

Beaver County

County

numbers.

numbers, • 3

Transcript of Record, July 6, 2022, at

Tenseript

13 a1 18-22.

Page 7 of 83

7of83

The next issue addressed in the pre-trial discussions involved the admission

of aarecorded

recorded phone call

call made

made by

by the Appellant

Appellant while he

he was

was incarcerated

incarcerated at

at the

the

Beaver County Jail,

Jail. The relevant portions

portions of the transcripts

transcripts are summarized below:

THE COURT: Is there aadispute

THE dispute as to what part

part is

is to be

be

admitted?

MR. SCHMIERER: One section of the jail

jail call.

MR. WISCHNOWSKI: We both listened to it last night, Your

Honor, and from minute 18:04 to minute 18:20, the Defendant

states that, he states the name of an individual and says

says that

he'd like that person

person to

to put

put together for the boys

boys something

something to

drop the charges. Like, the only way he can drop the charges is

if he admits he had a a knife, unquote. It's seconds, and we would

be offering

offering it to show that the Defendant intended to try

try to bribe

the victim into not coming into court or bribing him into saying

saying

that he had aa knife so this was self-defense..

self-defense.

THE COURT: All

AII right.

right. Can you

you read the quote

quote again

again to me?

MR. WISCHNOWSKI:

WISCHNOWSKI He's talking talking to a

a female and he says...

says...

"Talk to Will to put together for the boys something

something to drop the

charges." Like, the only way he can drop

drop the charges

charges is if he

admits he had aa knife.

THE

THE COURT: Mr. Schmierer, do do you agree

agree that

that that

that is

is the

the

quote

quote that we're talking about?

MR. SCHMIERER: Well, Your Honor, what I'll say first is

that, you know, it's difficult for either myself

myself or Mr.

Wischnowski to transcribe the call because it was difficult to

hear in some respects. I I think that it would be most appropriate

if the Court listens to this audio, hears the tonality of the

speaker, and listens to the words that were stated to determine

whether or not this is, in fact, what it says.

THE COURT: I'llI'II listen to it, but if that's what it says, I

I will

make aaruling

ruling that it will come in.

MR. SCHMIERER: Okay. Okay. And, Judge,

Judge, II would just like to

place on the record my reason for asking that it be excluded.

uncharged conduct that the Commonwealth

This would be uncharged

Page 8

8 of 83

would be

be alleging, and it would bebe essentially going to the

character evidence that Mr. Clark is in some way attempting to

bribe a

a witness. The way that 1 I interpreted it is that Mr. Clark

was stating that he was understanding that this gentleman

gentleman Will

was putting something together for the boy. I I believe he was

referring to the alleged victim in this case, to drop

drop the charges.

It would be

be my interpretation and my argument that he he 'was

was not

instructing anyone to bribe any witness or make any sort of

request to bribe aawitness.

THE COURT: Very well. Now, my question to you, is that aa

matter of argument if the evidence is admitted? Is that

something that you could argue or is that something that

precludes the admission of this kind of evidence where

somebody does something that expresses a a consciousness of

guilt?

guilt?

MR. SCHMIERER: Well, I I mean, that's certainly up to

to the

Court to decide, and it would bebe argued if the Court permits

permits its

admission into evidence. But the defense is arguing at this-

this point

that it should not be admitted because of the danger of unfair

prejudice, here in the fact that it's again uncharged conduct.

conduct, It's

unclear from the call the identity of the individual with whom

Mr. Clark is speaking. It's also unclear from the call whether or

not Mr. Clark is, in fact, instructing somebody

somebody to undertake this

action or if he's merely stating that it's his understanding that

such an action is being taken.

taken."14

THE COURT: Mr. Wischnowski, will you be admitting

something into evidence which would be the record of this

phone call?

MR. WISCHNOWSKI: Yes. It's going to be Commonwealth's

Exhibit 9.

9,

MR. WISCHNOWSKI: Your Honor, the contested portion

starts at 18:04. It's very quick. It's from 18:04 to

t0 18:20.

Id. at22-26

'Ad.

14 at 22-26

Page 9

9of 83

of83

THE COURT: If you wouldn't mind, play play aalittle bit before,

Mr. Wischnowski,

Wischnowski, so that II can warm up

up to the different affects

that I'll be listening

listening to.

to

MR. WISCHNOWSKI:

WISCHNOWSKE I'll

TI start it at 17:50.

MR. WISCHNOWSKI: It's at 18:01 right now, so in 3

3 seconds

it'll be Mr. Clark speaking

speaking

(WHEREUPON, the

the audio was

was played).

played)

THE COURT: Okay. What the Court hears is "Talk to,"

literally word-for-word as I I hear it, "Talk to Will because

Will's supposed to to give the boy something to drop

boy something drop the charges."

charges."

To me that's the part that I I need to rule on. That's the part

part that,

that,

in effect, Mr.

in Mr. Schmierer, what

what I I have

have to

to determine

determine isis whether

whether

that could be interpreted as consciousness of guilt,

guilt, whether I I

can make

make the

the connection between

between Mr.Mr. Clark

Clark over

over there

there and

and

what is supposed to be given to the boy, to, quote, "to drop drop the

charges."

charges."

Who is the person? Who is the person that's involved in giving giving

the boy something to drop the charges?

charges? I If I determine that it can

be interpreted to be Mr. Clark, well, then it's going

going to

consciousness of guilt. If II say, well, it doesn't sound that way way

and

and it can't be

be interpreted way,

interpreted way, then

then we can't attribute

attribute that to

Mr.

Mr. Clark.

Clark.

If

If this could be

be interpreted

interpreted in

in such

such aa way

way that

that Mr.

Mr. Clark is seen

as trying to put something out there to have the boy boy "not show

up," and I I use that in aaquote because that's what we're talking

talking

about, then it's admissible. And I I think that it's for the jury

jury to

decide if it can be interpreted

interpreted that way,

way, because I I believe it

it

surely can, and in my audio observation, it's something

something that can

be

be interpreted that way,

way, especially when

when you consider

consider that thethe

continuation of the phrase is about dropping the charges, and

it's clear what the discussion was, and that's what that issue

concerned.

I recognize Mr. Clark's objection.

I understand and recognize objection. However,

I'm going

going to overrule that objection.

objection. Your objection

objection and Mr.

Page 10 of83

of 83

Clark's will be noted for the record so it's preserved.

preserved. That's

what that means. And we'll let the jury hear that part

part of it.

So, Mr. Wischnowski, the ruling is that the Commonwealth can

play the audio straight through, assuming there are no other

objections and it's properly.authenticated.'

authenticated."

TRIAL

TRIAL

Trial commenced on July 6, 2022. The Commonwealth called multiple

multiple

witnesses during their case in chief.

chief For purposes of this opinion, testimony of

Officer John Bialik, Jacque Brown, Beaver County Warden William Schouppe,

Schouppe, Dr.

Sabrina Christie, and William Brown have been summarized.

On July 6, 2022, the Commonwealth called John Bialik

Bialik ("Bialik"), aapolice

police

officer from the Borough of Ambridge, as their first witness.

witness."16 Bialik was

patrolling

patrolling Ambridge on September 11,

11, 2021.

2021. At

At 7:35pm evening, Bialik

7:35pm that evening, Bialik was

was

dispatched to the

the area of 10 1 and Beaver Road

of 10 Road for aareport of aastabbing.

stabbing. Bialik

Bialik

testified that

that as they

they approached 952 Beaver

Beaver Road,

Road, he

he encountered the victim

victim in

in

the screened-in porch of the residence. Bialik testified that Chris Brown's

demeanor was scared, "like he was going to die"!'

die " and that he was holding a

17 a white

t-shirt that had turned red from being clenched to an injury on his neck, which ran

from his jawline, across his neck to the other side of his jawline. 18There

There were

Id. at 106-113

'Id.

15

M

16 1d. at68.

at 68.

A

17 Id. at73

at 73.

IA.

18 Id.aatt pg.

pg. 73

73

Page 11

11 of 83

6f83

additional wounds to Brown's armpit areas." Bialik stated that his main concern

when he saw Brown was to get him emergency

emergency medical attention or he might die. 20

might die."

Officer Bialik received an account of the incident from the victim that he

went to the home of Ambridge resident Fred Turner when the defendant who was

on the porch

porch of that residence slashed the victim, Chris Brown, "out

"out of

nowhere." 21 Brown was subsequently transported to a

nowhere."?' ahospital

hospital by medical

helicopter.

helicopter. 22

Bialik walked down the street to Turner's house to secure the crime scene

and search for Tyrone Clark."

Clark? Once at the residence, Bialik observed aatrail of

blood starting on the porch of the residence, leading onto the sidewalk and street.

street. 24

Crime scene photographs, marked

marked as Exhibit

Exhibit 2a through

through 2i," showed blood

2i, showed

splatter behind

splatter behind a

a white

white car parked near

car parked near 924

924 Beaver

Beaver Road 26 blood

Road,"

' on the

blood on street 27

the street,

and blood directly on the staircase of the residence. 2$

residence.3"

At the

the Turner home, Bialik came into contact with Freddie Turner and

Jayvon Turner who directed him to the upstairs apartment where he found Tyrone

pId.

19 l. at 74.

I.

20Id. at 74.

74.

1

21Id.

1.

11Id. at 100.

100

"

p Id. at77.

at 77.

I

24Id. at

at92

92.

Id.at

'p

2s at 88. Admission of Exhibit

Exhibit 2 and 3were

2 and were stipulated/agreed

stipulated/agreed to be

be admitted

admitted with

with the

the consent of both

both parties prior

parties prior

to trial.

to trial.

Id.At97

1

26 at 97.

Id.at

J

27 at 99

99.

29 Id.

1 a at 100.

100

Page

Page 12 of 83

Clark in one of

of the bedrooms. 21 At this

bedrooms. " this time, Bialik observed splatter

observed visible blood splatter

on Clark's shoes. Clark was wearing

wearing clothes that matched the description given to

description given

police by Chris Brown; Clark was placed into custody

custody immediately."

immediately."

Bialik went

Bialik to the

went to the residence of Jacque

residence of Jacque Brown,

Brown, aaneighbor on Beaver

neighbor on Road,

Beaver Road,

who Bialik knew to have security cameras. Bialik spoke with Jacque

Jacque Brown, who

Brown, who

provided him with

provided him security camera

with security camera footage.

footage."31 Bialik was able

Bialik was able to

to obtain

obtain an

an email

email

containing the footage

from Jacque Brown containing footage by got back to the police

by the time he got police

station and

station and before

before he

he filed

filed the Criminal Complaint.

the Criminal Complaint. 32

On cross-examination, Bialik was asked to describe his career in law

enforcement, how police reports are written, what procedures

procedures are followed by

by the

Ambridge Police Department in the course of conducting

conducting interviews, and when

information gets turned

information gets over to

turned over to the

the District

District Attorney's

Attorney's office.

office.' Bialik stated

33 Bialik stated that

that he

he

was the affiant in this case, and as such he took charge

charge of the investigation

investigation.31 The

.

following segments of the transcripts are relevant to the issues on appeal, and are

included verbatim below:

verbatim below;

[MR. SCHMIERER ("

[MR. SCHMIERER Q")]: Okay.

(Q")]: Okay. And

And would agree, it's

would you agree, it's also

also

important as

important as the

the affiant and investigating officer to interview

witnesses?

witnesses?

[BIALIK ("A")]:

[BIALIK (A")]: Yes.

"

1• Id. at 77.

30 Id.

"'Id.

31 Id. at 87.

4.at87.

Id. at

32I. at 134-135.

134-135

p4

33 1d. at 115-119.

at115.119

14 1d. at 120, 121.

at120, 121

Page 13 of 83

of83

0: Okay. And the goal

Q: goal of an interview would be to try get to the

try to get

truth of what happened in a

a case. Is that fair?

A: Yes.

Q: Okay. And

Q: Okay. so, you

And so, you know,

know, obviously

obviously the

the point

point of

of the

the investigation

investigation

is to find

is to find out

out what actually happened

what actually happened in

in the case. That's

the case. fair?

That's fair?

A: Yes.

Q: And so part of your investigation,

Q:And gathering the physical

investigation, of course, gathering physical

evidence as well as interviewing

interviewing witnesses.

witnesses. That's

That's fair?

fair?

A: Um-hum.

Um-hum.

Q:

Q: Okay. And you justjust testified

testified that

that you've

you've done interviews

interviews in

in the

the

past in that interview

interview room

room at the police—

police-

A: Yes.

Q: --the

Q: --the police department; correct? In

In the past

past have you

you had the

opportunity to interview somebody who was being being accused of a

a

crime?

crime?

A: Yes.

Yes.

alleged perpetrator?

Q: The alleged perpetrator?

A:

A: Yes.

Yes.

Q: Okay.

Okay. And

And isis it

it fair

fair to

to say that you

you would

would interview this

this person

person

with

with the

the goal

goal of trying

trying to, well,

well, one, trying

trying to

to find

find out what

what their

their

version

version of

of the events would

would be?

be? IsIs that

that fair?

fair?

A: Yes.

A;

Q: Okay. And it would also be potentially

potentially to, if there was

incriminating evidence, to get

get it from them. Is that fair?

A: Yes.

Q: Okay. And,

Q: And, you

you know,

know, certainly there's stages of how

there's stages how you

you would

do this. You have to read them their Miranda rights.

rights. Is that true?

A: Yes.

Q: And ifif they

they want

want to speak with

with you,

you, then

then at that point they

that point they would

be

be able to

to speak with

with you. Is

Is that

that true?

true?

A:

A: Yes.

Yes.

Page 14 0f

of 83

Okay. And

Q: Okay. And using

using your training as

your training as aapolice officer, you

police officer, you would

would

interview them and gather this evidence in the course of your

your

investigation?

investigation?

A:

A: Uh-huh.

Uh-huh.

Q: That's fair? Okay. And this can also serve in some circumstances,

circumstances,

if you interviewed aapotential suspect, if you were to determine after

that

that interview

interview that

that they

they weren't

weren't aapotential suspect, it

potential suspect, it could potentially

potentially

clear that

that person.

person. Is

Is that

that fair?

fair?

A: Yeah.

Q: Okay. So, and obviously the goal of the

the investigation

investigation is to

to uncover

uncover

the

the truth of what's going on.

what's going on. That's

That's accurate?

accurate?

A: Uh-huh.

A: Uh-huh.

Q: Okay. Now, again, what's in your

your report you testified is the full

report you

account of what you did in your investigation

investigation in this case. Is that true?

A: Yeah.

Q: Okay. Now,

Q: Okay. Now, is

is it fair to state

fair to state that

that in this case

in this case you

you did not conduct

did not conduct a

a

witness interview of the Defendant Mr. Clark? Is Is that true?

A: We did not formally interview him, no. He declined aastatement.

Q: Okay. Is that in your

your report?

report?

A:

A: It

It is

is not.

not."°

35

On redirect, the following questions were asked:

following questions

MR. WISCHNOWSKI: Now, you were

were asked a

a number of questions

questions

about the completeness of your investigation

investigation by

by Mr. Schmierer;

Schmierer;

correct?

correct'?

BIALIK: Correct.

MR. WISCHNOWSKI: Is your duties as aapolice police officer, is it fair to

say that

say that you communicate with

you communicate the attorneys

with the attorneys for the Commonwealth

for the Commonwealth

and the attorneys

attorneys for

for the

the defense quite frequently;

defense quite frequently; correct?

BIALIK: Correct.

BIALIK: Correct.

ssd.

Id.at122-125

at 122-125

Page

Page 15

15 of 83

of 83

MR. WISCHNOWSKI: Is it customary for the defense to reach out to

the police sometimes to ask you questions

questions about aacase that you

you know

of?

MR. SCHMIERER: I'm

MR. SCHMIERER: I'm going

going to

to object,

object, Your

Your Honor. Can we

Honor. Can have aa

we have

side bar?

THE COURT: Alright.

Alright.

(WHEREUPON, the

(WHEREUPON, the following

following proceedings

proceedings were had at

were had at sidebar:)

sidebar:)

MR. SCHMIERER: I

MR. I would ask for

for an

an offer

offer of

of proof.

proof. I'm

l 'm not

not sure

sure

where this going with the defense communicating

communicating with the affiant, and

I

I think

think it's

it's beyond

beyond the

the scope

scope of

of cross.

MR.

MR. WISCHNOWSKI:

WISCHNOWSKI: Your Your Honor,

Honor, hehe asked

asked a

a lot of questions

lot of about

questions about

investigation. I

the completeness of the investigation. just want Officer Bialik to

I just

testify whether or not Mr. Schmierer reached out to him to clarify

clarify

some of these points and whether hehe would

would have

have made himself

himself

available, if asked.

MR. SCHMIERER: I I don't know that it's appropriate

appropriate then for the

Commonwealth to to suggest that the

the defense obligation to

defense has some obligation to

communicate with

with the

the arresting

arresting officer about any

any matters.

matters. IIthink what

the Commonwealth, what

the Commonwealth, what Mr.

Mr. Wischnowski

Wischnowski is is trying

trying to suggest to

to suggest the

to the

jury is

is that somehow, asas a

a defense attorney,

attorney, I

I have

have to reach

reach out

out to the

the

arresting officer and

and try to set up

up some sort of interview—

interview-

THE COURT: The objection's overruled. It's not that he's saying saying it's

an obligation. I

an I don't

don't see that as the question. I

the question. I see

see it as you've

you've now

now

asked

asked aa lot

lot of questions, the

of questions, the majority

majority of

of the

the questioning

questioning ofof the

the

investigation and how he conducts it and his accessibility

accessibility you,

to you, not

an

an obligation.

obligation. Your

Your objection's

objection's overruled.

overruled.

MR.

MR. SCHMIERER:

SCHMIERER: If If!Icould

could just renew

renew my,

my, what

what I I tried to

to do

do is just

just

phrase my questions as being pertinent to the initial statement of the

investigation. With respect to Mr. Clark, I I believe that after Mr. Clark

has

has been

been given

given counsel, it would

would bebe inappropriate

inappropriate to to comment on his

giving any sort of statement once he had received counsel because he

has

has aa Sixth Amendment

Amendment right to to counsel, and he he doesn't have to give aa

to give

statement. He did not have counsel at the scene when the questions

were directly whether or not he had been interviewed by by police at the

scene. And

And after that once he received

received counsel, to comment on

whether or not

not counsel has to

to reach to

to the

the police

police to

to try

try to get counsel's

to get

Page 16 0f

of 83

client's interview or anything like that I

I believe would be inadmissible

encroaching on the

encroaching right—

the right-

THE COURT: The objection

objection is overruled.

MR.

MR. SCHMIERER: Thank you,

you, Your

Your Honor.

Honor.

(WHEREUPON, the

(WHEREUPON, the sidebar

sidebar proceedings were concluded,

proceedings were concluded, and

and

thereafter

thereafter the

the following

following proceedings

proceedings were

were had

had in open Court:)

in open Court:)

THE COURT: Mr. Wischnowski.

MR. WISCHNOWSKI: Thanks, Your Honor. Officer Bialik, Bialik, II was

asking you just in

you about your communications, just general, with

in general, with defense

defense

attorneys with

with the

the cases that you conduct, the

the investigations

investigations that

that you

you

lead. Do you know pretty much every

every criminal defense in this county?

county?

BIALIK

BIALIK ["A"]:

("A"J: I

I know aalot of them I

I would say.

say. Yeah,

Yeah, I

I know aalot

of them.

of them.

MR.

MR. WISCHNOWSKI

WISCHNOWSKI[" Q"]: Do

HO"]: Do you

you communicate

communicate with them almost

with them almost

every day

every day or at least

or at least every

every week?

week?

A:

A: Honestly,

Honestly, no.

no. IIhardly ever. Minus

hardly ever. Minus aafew,

few, I

I hardly ever speak

hardly ever speak to

to

them.

them.

Q: If

Q: If aadefense lawyer reached

defense lawyer out to

reached out to you to ask

you to ask you

you some

some questions

questions

about your investigation, would you

you make yourself

yourself available up

up until

the time of trial?

A:

A: If

If someone called, yes.

someone called, yes.

Q: Did anybody on Mr. Clark's behalf reach out to you

Q: you to ask you

you

some of

some of those clarifying questions?

those clarifying questions?

MR. SCHMIERER: I'm going to renew my objection,

objection, Your Honor.

THE COURT:

THE COURT: Overruled.

Overruled.

BY

BY MR.

MR. WISCHNOWSKI:

WISCHNOWSKI

O: The question is, did Mr. Schmierer or any

Q: any counsel or Mr. Clark

ever reach out to you to ask you to clarify

clarify some of those things

things you

you

were asked about?

A:

A: No.

No.

Q:

Q: Now,

Now, you got to

to watch

watch the

the video

video that Mr.

Mr. Schmierer referenced

referenced of

of

the surveillance

surveillance camera footage;

footage; correct?

A: Yes.

Yes.

Page 17 of 83

17 0f83

That was

Q: That was provided to you

provided to you by Jacque Brown?

by Jacque Brown?

A: Yes.

Q: And

Q: And you watched it

you watched before you

it before you filed

filed the

the charges;

charges; correct?

correct?

A: Yes.

Q: Did that impact

Did that impact the

the way that you

way that you filed

filed the

the charges and the

charges and the

decisions that you

you made

made when

when you

you prepared

prepared your

your Criminal

Complaint?

Complaint?

A: Yes.

Q: How

How did it influence

influence you? Well, let

let me

me ask it to you

you this way.

way. How

How

many people

many people were

were in

in that

that footage?

footage?

A: Two.

A: Two.

Q: And were you able to identify easily?

identify them easily?

A: Yes.

Q: Who

Q: Who were

were they?

they?

A:

A: It

It was William Christopher

was William Christopher Brown

Brown and

and the

the Defendant.

Defendant.

Q:

Q: Why

Why weren't

weren't you

you concerned

concerned that Mr.

Mr. Brown

Brown might

might have

have raised

raised a

a

knife

knife before the Defendant

Defendant raised

raised his

his knife?

knife?

A: His, it

A: His, it appeared

appeared he

he had

had his

his arms

arms crossed.

crossed. I don't want

I don't want to, we'll say,

to, we'll say,

you

you couldn't really see his arm, but you could see he was in a

a non-

threatening

threatening manner—

manner-

MR.

MR. SCHMIERER:

SCHMIERER: Your Your Honor,

Honor, I'm

I'm going

going to

to object at this

object at this point.

point. II

think

think that

that we're discussing the

we're discussing video that

the video that we've, that

that hasn't been

hasn't been

admitted into

admitted evidence at

into evidence at this

this point, and obviously

point, and obviously the

the video

video isis the

the

best evidence

best evidence ofof what

what is being discussed.

is being discussed.

THE COURT:

THE COURT: Overruled.

Overruled.

MR.

MR. WISCHNOWSKI: Thank you.

WISCHNOWSKI: Thank you.

BY MR.

BY MR. WISCHNOWSKI:

WISCHNOWSKI:

Q: So you were explaining

explaining that Mr. Brown was standing

standing in aa

nonthreatening

nonthreatening way.

way. How

How was

was the

the beginning of the

beginning of the video,

video, how

how was

was

Mr.

Mr. Clark

Clark portrayed

portrayed in

in that

that video?

video?

A: Passive. If IIhad to describe him, he was lounging.

lounging.

Q: Was

Was he

he seated?

seated?

Page 18 of 83

6f83

A: Yes.

Q: And is there aapoint where he's not in his seat any

any longer?

longer?

A: Yeah. He gets up, and it appears from the video that he is also

nonthreatening until all of a

a sudden you could see him moving, but it

wasn't, like, aggressive, like hands up like he was going to fight.

fight. He

was just moving, and then you see a a sudden thrust[sic].

thrust[sic].

Q: Based on your evaluation of that video which we'll see soon, was

Mr. Brown ready for the actions that the Defendant took?

MR. SCHMIERER: Objection.

MR. SCHMIERER: Objection. Calls

Calls for

for speculation.

speculation.

THE COURT: Sustained.

BY MR. WISCHNOWSKI:

W1SCHNOWSKJ:

Q: After you watched the video and evaluated both parties' behavior,

did you think there was any basis to believe that the Defendant acted

in self-defense such that you couldn't file charges?

MR. SCHMIERER: Objection. This calls for legal conclusion.

THE

THE COURT: Sustained. "

COURT: Sustained. 36

The Commonwealth's next witness was Jacque Brown, a

a neighbor of Fred

Turner, who provided surveillance footage related to the incident to investigating

investigating

officers.

officers.'37 Jacque Brown testified that she reviewed her security footage after

Officer Bialik came to her residence and asked her to check her cameras."

Approximately one minute of the video was played for the jury; Jacque

Brown was able to verify the contents of the video and confirmed that the camera

that captured this footage was motion activated. The footage depicted Chris

activated.39The

Id. at 137.

I.

11 137- 144

pl at 144

'7 Id. at

I44

IId.

11d. at 148.

pId.at

39 at 150.1$2;

150-152; see also, Commonwealth Exhibit 8

8.

Page

Page 19

19 of 83

of83

Brown standing by aapillar on Fred Turner's porch

porch with the Appellant

Appellant seated

behind him."

behind him.

The Commonwealth's

Commonwealth's next witness

witness was Schouppe ("Schouppe"),

was William Schouppe ("Schouppe"),

Warden of the Beaver County Jail,"

Jail,41 who verified that the Appellant

Appellant was an inmate

at the

the Beaver

Beaver County

County Jail

Jail in September of

of 2021

2021.42 Inmates

Inmates at

at the facility

facility are

are

allowed to place and receive phone calls, these phone

phone calls are recorded and

subjected to monitoring 24/7; both parties on the call hear an audio recording

24/743both recording that

informs

informs them

them the

the call

call is subject to

is subject to monitoring and recording

monitoring and recording..41

Schouppe testified that the Appellant placed aaphone call on September

September 26,

2021, and that Schouppe had an opportunity to review and authenticate the

recording prior to giving his testimony.

testimony."15 The jail

jail phone

phone call was admitted under

Commonwealth's Exhibit 9

9 and played for the jury

jury with no objection

objection from the

defense. 46

defense."

Dr. Sabrina Christie, a

a staff surgeon at UPMC Presbyterian,

Presbyterian, was called as a

a

witness for the Commonwealth. 47Dr

Dr. Christie covers the trauma surgery

surgery service

and attends to patients who are injured surgical emergencies.

injured or have surgical emergencies."48

Ad at 151.

40 Id. at151

Id. at

"4.

41 at 154.

154.

42 1d.

I

"Id. at 156.

43 Id. at 156.

44 1d.

d

4s Id. at 157.

Id. at 1$7

Portions played

portions

46 played during

during trial and submitted to

to evidence were limited to ((I

1) from minute 4:39-4.59;(2)

4:39-4:59; (2) 8.34-8.:54;

8:34-8:54;

(3) 14:07-14:55;

14.07-14:55, (4)

(4) 18:04-18:20.

18.04-18.20

"1

41 Id.at165

at 165.

4s id.

d

Page 20 0f

of 83

During her testimony, the Commonwealth asked Dr. Christie to "educate the

jury aalittle bit about the different types

types of bleeds that you

you might

might see and how you

you

might rank or characterize the types of bleeds that

that [she

[she would]

would] see in the trauma

unit?" at which point a

unit?"49at a sidebar was requested

requested by

by the defense, which is transcribed

below:

verbatim below;

MR. SCHMIERER: Judge, it's my understanding that Commonwealth

my understanding

does not intend to qualify this witness as an expert expert in this case,

case, and I I

thought

thought it it was

was fair

fair for

for the

the Commonwealth

Commonwealth to to have

have the

the doctor

doctor testify

testify a a

little bit about the trauma unit and her experience

experience there. My My concern is

that she's now getting

getting into medical specific

specific testimony

testimony that would

require

require her

her being made an

being made an expert.

expert. If

If she starts giving

she starts giving medical

medical

testimony

testimony about

about different

different types

types of

of bleeds and what

bleeds and what she categorizes as

she categorizes as

different types

different types of

of injuries,

injuries, now,

now, it's

it's my

my understanding

understanding the the

Commonwealth will ask her about her observations about the alleged alleged

victim, what she did, which IIthink is fair fact testimony, testimony, but to ask

her medical scientific opinion questions about the types types of injuries

injuries and

how

how she categorizes

categorizes them

them I I think

think goes

goes beyond

beyond a a fact

fact witness

witness and

and itit

moves it into the realm of an expert expert testimony.

testimony. And the

Commonwealth in its its statement

statement did not not intend

intend to to offer this

this witness

witness as

an expert, and so I I just

just want to make sure that we keep keep it as aafact

witness.

THE COURT: Mr.

THE COURT: Mr. Wischnowski_

Wischnowski

WISCHNOWSKI: Your

MR. WISCHNOWSKJ: Your honor, she just

honor, she described the

just described different

the different

levels

levels of

of trauma,

trauma, 1

1 through

through 3, and

and I

I want

want her

her to

to be able to

be able explain

to explain

William Brown was admitted at the highest

highest tier as aaLevel 1.

I. I1think

she deserves to

to give some content, and I I haven't any

haven't asked her any

opinion testimony. I I haven't

haven't asked her

her to any opinion-based

to draw any opinion-based

conclusions.

conclusions.

MR. SCHMIERER: If

MR. SCHMIERER: If I

I may

may respond, Judge.

respond, Judge.

COURT: Yes.

THE COURT: Yes .

Pg. 170-17l

Pg.

49 170-171

Page 21 0f83

Page 21 of 83

MR. SCHMIERER: I I think that she can say say that Mr. Brown was aa

Level 1,I, because that's a a fact. II think to ask her the specifics

specifics about

why, delve into her opinion

opinion about why why she thinks that this person

person was

admitted as aaLevel 1, it,

Level I, it, IIthink

think is,

is, it's

it's kind

kind of

of nuanced,

nuanced, but

but II would

would

ask the Court to restrict the testimony

testimony to justjust what her observations

were

were and thethe fact

fact that he was

was admitted

admitted to to Level

Level 1.

L. That's a

a fact.

fact. Why

Why

was

was he admitted to Level

Level 1? 1? Well, because injury met

because his injury met certain

criteria that would—

would--

THE COURT:

THE COURT: All All right. The objection

right. The objection is

is overruled.

overruled. I

I see

see in this

in this

testimony where we

testimony we are now.

now. IfIf we

we go

go to

to aapoint

point where expert

where an expert

opinion is being

being asked, you can renew your objection, but where we

your objection,

are now

are now is seen as

is seen as foundational.

foundational. Given

Given her experience so

her experience so far,

far, there's

there's

circumstances she has to know to serve in this capacity.capacity. So, I I think

that

that she

she can say

say and serve

serve in

in this capacity. They

this capacity. They aren't expert

expert

opinions. But if you

opinions. you think the line is crossed, we're not there yet, yet, you

you

will have obviously an opportunity

opportunity to renew your objection and

your objection

continue our discussion.

discussion." 50

Dr. Christie generally

Dr. Christie generally described

described different

different types of bleeds

types of that occur

bleeds that occur in

in aa

patient

patient with a

a laceration

laceration injury.

injury, She also described

described how

how trauma is

is leveled

leveled in

in order

to care for

to care patients admitted

for patients admitted at

at UPMC,

UPMC, explaining, "a Level

explaining, "a Level 1

I trauma is if you

trauma is you have

have

a

a penetrating

penetrating injury, meaning aacut

injury, meaning or aagunshot

cut or gunshot wound

wound to

to your arms closer

your arms closer to

to your

your

legs closer to your

body than the elbows, your legs body than the knees,

your body anywhere on

knees, anywhere

your torso at all, or on your head and neck, and the reason is that those injuries

injuries are,

by definition, life

life threatening."

threatening.">' The Commonwealth then

$1 then turned to the following

the following

questions:

questions:

MR. WISCHNOWSKI: And let's turn it more specifically to

lacerations across the neck.

A.: Okay.

A:

so Id.

1 at 173.

4at173.

Id. at174.

14.

51 at 174.

Page 22 of

0f 83

Q: How many thoseihave you treated

many of those-have treated in

in your

your years

years working

working around

the hospital?

A: Hundreds.

Hundreds.

Q: Now, and have you studied anatomy extensively throughout

throughout your

different

different levels

levels of education?

education?

A:

A:IIhave.

have.

Q: Explain

Q: Explain the

the significance

significance what the

the platysma

platysma muscle

muscle is.

is.

A: So, the platysma

platysma muscle is a a fine muscle that overlies the front of

the neck.

the neck. If,

If, you can see, I

you can I can show you.

you. It's

It's that

that muscle when II flex

flex

(demonstrating). It's

It's very

very thin.

thin.

If

lfaapenetrating injury, aa knife or a

a gunshot wound goes

goes through

through that

platysma muscle, it enters the zone of the neck where all of the major

major

structures lie. And so, if you have aalaceration that doesn't make it

it

through that muscle, classically you can wash that laceration out at the

bedside. It doesn't need to be taken to the operating

operating room because you you

have really no shot of having aaserious injury.

Deeper than that,

that, you

you go to

to the

the operating

operating room

room because you

you could cut

any number of things that are life threatening.

Q:

Q: In terms

terms of the depth of

of the cut, how

how many

many centimeters past

past the

the

platysma is concerning as aa trauma surgeon?

A: Anything—

Anything-

MR.

MR. SCHMIERER:

SCHMIERER: Your Honor,Honor, I'm

I'm going

going to object at

at this

this point. I

I

think we're, again,

again, we're

we're going beyond that

that scope

scope of fact

fact to

to opinion

opinion

witness.

THE COURT: Mr. Wischnowski.

MR.

MR. WISCHNOWSKI: Your Honor, I I didn't

didn't ask her

her to give an

opinion.

opinion. II asked her factually as aatrauma surgeon how deep does a a cut

have to be be concerning.

be to be concerning. Again, this is within the context of the

different levels of trauma that she's already discussed.

THE COURT: Well,

THE Well, based

based on what

what we

we discussed and

and the progress

progress of

of

your questions, I

your questions, I am

am going to sustain the objection and ask you to

move on.

BY MR. WISCHNOWSKI:

WISCHNOWSKI

Page 23 of 83

0f83

Q: You said that

You said that there's

there's major

major parts

parts of the neck

of the neck that

that if

if you

you pierce

pierce the

the

platysma are very concerning.

concerning. What are those body

body parts

parts or vessels?

A:

A: So there's

there's the major

major artery and veinvein that gogo to

to the

the brain and come

back from the brain. So that's your your carotid and youryour internal jugular.

jugular.

And then

And then there's

there's aathick nerve that

thick nerve that runs

runs with

with that

that bundle

bundle that

that if's

it's very

very

important

important notnot to cut as

to cut as well called the

well called the vagus

vagus nerve.

nerve. And

And then

then the other

the other

structures that

structures we really

that we really worry about being

worry about being immediately life

immediately life

threatening

threatening are any injury

injury to

to the

the trachea, the airway, or

the airway, your

or to your

esophagus. That won't

won't immediately kill kill you, esophageal injury,

you, an esophageal injury, but

but

it will kill you

you in

in aanumber

number of of hours.

hours.

Q:

Q: Now,

Now, let's turn

tum to

to September 11, 2021. Were

I I, 2021. Were you

you working

working in

in the

the

trauma unit

trauma at Presby

unit at Presby that

that evening?

evening?

A: Yes.

Yes. I

I was

was the

the staff surgeon on call.

Q: And did you treat aapatient named William Brown that evening?

Q:And evening?

A:

A: I

I did.

did.

Q: And based on the things you did that night your patient

night with your patient

William Brown,

William did you

Brown, did you prepare

prepare a

a report?

report?

A:

A: IIdictated

dictated an

an operative

operative dictation,

dictation, yes.

yes.

Q:

Q: I'm

I'm handing

handing you

you a document. Can

a document. you take

Can you take aalook

look at

at that?

that? Do you

you

recognize that two-page

recognize that two-page document'?

document?

A:

A: I

I do.

do.

Q: What

Q: What is

is it?

it?

A;

A; It's my operative

It's my operative dictation,

dictation, so

so my description of

my description of what

what I

I did in the

did in the

operating

operating room.

room.

Q: And is there aadate near the top

Q:And top of it,

it, aasurgery

surgery date?

A:

A: Yes.

Yes.

Q: What

What is

is that date?

that date?

A: It is 9/11/2021.

Q: And above

Q:And above that,

that, does

does it say the

it say the patient

patient name?

name?

A: It

A: does.

It does.

Q: What's

What's the name of the

the patient?

patient?

Page 24 0f

of 83

A: William

William Brown.

Brown.

...

MR. WISCHNOWSKI: Your Honor, I'd move for admission of

Commonwealth's Exhibit 11.

II

THE COURT: Any objection?

MR.

MR. SCHMIERER:

SCHMIERER: Can

Can we approach?

we approach?

THE COURT:

COURT: Sure.

proceedings were had

(WHEREUPON, the following proceedings at sidebar:)

had at

MR. SCHMIERER: I

MR. I don't have any objection to

any objection to this being

being admitted

and made

and made part of the

the official record. I

I just want

want to clarify

clarify for the

the

record, and II think Mr. Wischnowski agrees,

agrees, this should not go

go back

to

to the

the jury.

jury.

THE

THE COURT: Right.

Right.

MR. WISCHNOWSKI: Yeah. I'm not asking

asking for that.

MR.

MR. SCHMIERER:

SCHMIERER: As As long as that's clear,

clear, I

I don't have

have an objection

an objection

to it being admitted and made part of the official record.

BY MR. WISCHNOWSKI:

WISCHNOWSKI

Now, walk

Q: Now, us through

walk us through when

when you

you first

first became

became aware

aware ofof Mr.

Mr.

Brown's admission to

Brown's admission to the

the trauma, or to

trauma, or to the

the hospital that night.

hospital that night.

A: We

A: We all

all carry pagers that all these Level

Level Il and Level

Level 22traumas are

sent out across so that

sent that we can respond appropriately. The patient

respond appropriately. patient

obviously

obviously met criteria for

met criteria for aaLevel

Level 1

I trauma,

trauma, and

and so

so a

a Level

Level 1I page

page was

was

sent out, and we came to the trauma bay.bay,

The patient was brought in with a a large

large dressing over his neck which

is often the case when somebody

somebody has substantial bleeding.

bleeding. People

This text is long and has been trimmed here. Open the source document for the complete record.