“I DON’T LIKE CONFRONTATION” – Terry Bradshaw (In other Pittsburgh-related confrontation news …)

The PA Superior Court recently decided the case of Commonwealth v. Lawrence David Akrie, IV, 215 WDA 2016 (April 17, 2017), holding that the trial court did not abuse its discretion by excluding the specifics of the alleged excessive force used by the police officer or the results of the internal investigation report after Akrie was arrested for physically confronting officers. Additionally, the Court held that the exclusion of this evidence did not violate Akrie’s Confrontation Clause rights.

Akrie was with a group that was escorted out of a bar because two of the women in the group were fighting with another woman inside the bar. Akrie was acting in a belligerent manner in the presence of the club’s security staff and Pittsburgh City police officers stationed outside the club. Officer McClain, one of the City of Pittsburgh police officers stationed outside, attempted to calm the group. He directed them towards their car and requested that they leave the premises, but Akrie and his sisters were very angry, loud, and refused to leave.

Officer McClain continued to try to calm the group, but Appellant continued to yell and curse at Officer McClain. Some of the more G-rated statements included “I don’t have to go nowhere. If anybody touches me, I’ll mess you up” as he ran towards Officer McClain with his fists clenched, arm raised, and chest puffed out. (ED. NOTE – this is not advisable behavior.) Officer McClain drew his taser gun and told Akrie to step away from him and go home, or he would deploy the taser. McClain tried to continue to calm the situation but, when the woman involved in the fracas with Akrie’s sisters exited the club, Akrie’s sisters began to attack her again. As Officer McClain turned his attention to address this attack, Akrie lunged at his back. (ED. NOTE – bad move #2).

At this point, Officer Kenney intervened and Akrie attempted unsuccessfully to strike Officer Kenney’s face with his elbow; grabbed Officer Kenney around the waist and legs and attempted to lift him into the air and onto the ground; ran from Officer Kenney as he attempted to arrest him; and, continued to struggle with Officer Kenney. (ED. NOTE – this was strike #3) The struggle ended when Officer Kenney struck Akrie in the face with his knee. At that point, Akrie finally stopped fighting and dropped to the ground, where Officer Kenney was able to handcuff him.

Akrie suffered a lip injury as a result of the knee strike. Once he was handcuffed, he apologized to Officer Kenney and told Officer Kenney that he was aware that Officer Kenney knew his mother. Officer Kenney acknowledged that he knew Akrie’s mother and, he decided to give Akrie a “break” and issued him a citation for summary level offenses. Akrie was released that night to seek medical attention for his lip. He then filed a complaint with the Pittsburgh Office of Municipal Investigations (“OMI”) against Officer Kenney for use of excessive force. As a result, Officer Kenney filed two counts of simple assault, resisting arrest, and disorderly conduct against Akrie for his conduct outside the club.

Prior to trial, the Commonwealth moved in limine to prohibit Akrie from referencing OMI’s investigation into Officer Kenney. The trial court permitted Akrie to reference the OMI complaint and the timing thereof; however, it prohibited Akrie from introducing or referencing the contents and findings of OMI’s report.

After being convicted of all four charges, Akrie appealed, arguing that the trial court erred in excluding the results of OMI’s investigation of Officer Kenney.  Specifically, Akrie argued that the results of the OMI investigation showed Officer Kenney’s bias and motive to fabricate evidence against him and it was therefore relevant under the Pa Rules of Evidence. Additionally, he contended that the probative value of the evidence was not outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. And, he also argued that excluding the evidence violated his Confrontation Clause rights.

The Superior Court disagreed with Akrie’s theory, concluding that since the lynchpin of his theory at trial was that the filing of the OMI complaint was motivation for Officer Kenney filing more serious charges against Appellant, the actual substance of OMI’s report played no role in Officer Kenney’s motivation to file the more serious charges.

The Superior Court also determined that the introduction of the OMI report would have risked confusing the issues at trial, concluding it was likely that the jury would have focused on Officer Kenney’s use of excessive force instead of on whether Akrie committed the alleged offenses.

Lastly, Akrie argued that his Confrontation Clause rights were violated by the trial court’s decision in limiting his cross examination of Officer Kenney regarding the OMI investigation.

The Superior Court first explained that a defendant’s right to confrontation means more than being allowed to confront the witness physically. Indeed, the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross- examination. However, it does not follow that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. For example, pertinent case law permits a police witness to be cross-examined about misconduct as long as the wrongdoing is in some way related to the defendant’s underlying criminal charges and establishes a motive to fabricate.

In Akrie’s case, the trial court permitted him to cross-examine Officer Kenney on whether he was testifying against Akrie because Akrie filed an OMI complaint against Officer Kenney. In other words, the trial court permitted Akrie to cross-examine Officer Kenney regarding misconduct insofar as it related to the underlying criminal charges. However, the trial court exercised its broad latitude by limiting that cross-examination to avoid confusion of the issues by not permitting Akrie to cross-examine Officer Kenney about the findings of the report.

Accordingly, the Superior Court held that (1) the trial court did not abuse its discretion by excluding the specifics of the alleged excessive force used by Officer Kenney in this case and the results of the subsequent OMI investigation and (2) the exclusion of this evidence did not violate Akrie’s Confrontation Clause rights.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-S03008-17o%20-%2010306602616960646.pdf?cb=1

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