Trial Court Discretion to Reopen Record After Commonwealth Rests

Commonwealth v. Brozenick, 237 A.3d 1039 (Pa. Super. 2020) (unreported), allocatur granted Jan. 5, 2021, appeal docket 1 WAP 2021

At about 2:40pm on December 22, 2016, an adult and four juveniles were sitting in a parked car on 6th Avenue in Carnegie Borough, across the street from Robert Paul Brozenick’s house. Brozenick walked up to the car, tapped on the window with a handgun, and, one by one, pointed his gun at all five occupants. Brozenick was subsequently charged with five counts of terroristic threats and five counts of simple assault—one threats charge and one assault charge for each of the five occupants of the car.

At trial before a jury, the Commonwealth initially called four witnesses: two police officers who responded to the scene and two of the five occupants of the car. The testimony was sufficient to prove the threats and assault counts for each of the two victims who testified. The Commonwealth rested, at which point Brozenick requested a sidebar, during which he moved for acquittal on the remaining three counts of terroristic threats and three counts of simple assault.

During the sidebar, the Commonwealth defended its decision to forgo testimony from the remaining three victims, explaining that though two of the three remaining victims were present for trial, the Commonwealth was not asking them to testify due to “strategy.” Slip op. at 4. The Commonwealth further explained that the two victims who watched the trial were “comfortable with the testimony as presented” and that they believed Brozenick “intended to threaten violence and made terroristic threats.” Slip op. at 4-5. The trial court explained that it would “grant a judgment of acquittal on [the counts related to the victims that did not testify].” Slip op. at 5. In response, the Commonwealth said it would call the two remaining victims. At the court’s suggestion, the Commonwealth made a motion to reopen the record. The court granted the motion over Brozenick’s objection. The two remaining victims testified as the Commonwealth indicated they would.

Brozenick attempted to justify his actions at trial by testifying that he saw the car’s occupants passing around a smoking device and believed that they were using drugs. He said that he drew his gun because he felt threatened. The jury ultimately found him guilty of four counts of terroristic threats and four counts of simple assault.

Pennsylvania Supreme Court precedent permits a criminal trial court “to reopen a case for either side, prior to the entry of final judgment, in order to prevent a failure or miscarriage of justice.” Commonwealth v. Tharp, 575 A.2d 557, 558-559 (Pa. 1990):

In Tharp, the defendant was charged with corruption of minors, which required proof that he was over eighteen at the time of the offense. Tharp, 575 A.2d at 557. After the Commonwealth rested without presenting direct evidence of the defendant’s age, the defendant demurred. Id. at 558. Rather than ruling on the defendant’s motion, the trial court permitted the Commonwealth to reopen its case to offer direct evidence of the defendant’s age. Id. On appeal, the defendant argued that the trial court erred by failing to grant the demurrer and by permitting the Commonwealth to introduce additional evidence. Id. Ultimately, our Supreme Court rejected the defendant’s argument, holding that it was a proper exercise of a trial court’s discretion “to permit the Commonwealth to reopen its case for the purpose of meeting a demurrer [i.e., motion for judgment of acquittal,] interposed by the defense prior to its ruling upon that motion.” Id. at 559.

Slip op. at 11.

Brozenick filed a timely notice of appeal to the Superior Court and asked the court to consider, inter alia, whether the trial court erred by allowing the Commonwealth to reopen the record to present evidence necessary to prove its case. Brozenick argued that Tharp is distinguishable from his own case because Tharp only applies “where the Commonwealth presented circumstantial evidence and reopened the record to clarify a single objective fact.” Slip op at 9-10. The Commonwealth responded by explaining that Tharp controls in the instant case—that the Commonwealth “presented circumstantial evidence to support the charges involving the non-testifying complainants and that, as in Tharp, the trial court was not precluded from reopening the record simply because it agreed with [Brozenick] that the Commonwealth presented insufficient evidence.” Slip op. at 10.

The Superior Court sided with the Commonwealth, explaining that Tharp stands for the proposition that:

“a trial court has the discretion to reopen a case for either side, prior to the entry of final judgment, in order to prevent a failure or miscarriage of justice.” Tharp, 575 A.2d at 558-59. Absent an abuse of discretion, we will not disturb the trial court’s ruling. Commonwealth v. Baldwin, 58 A.3d 754, 763 (Pa. 2012).” Slip op. at 10. The Superior Court concluded that the trial court “had discretion to permit the introduction of direct evidence to avoid the possibility of a result inconsistent with true facts” and that “no abuse of discretion occurred.”

Slip op. at 12.

The Pennsylvania Supreme Court granted allocatur in this case to consider one question:

Did the Superior Court misinterpret Tharp and, therefore, err in concluding that the trial court did not abuse its discretion in denying Brozenick’s Motion for Judgment of Acquittal, and allowing the Commonwealth to reopen the record where the Commonwealth manifestly failed to present sufficient evidence in its case-in-chief to sustain three counts of Simple Assault and three counts of Terroristic Threats?

For more information, contact Kevin McKeon or Dennis Whitaker.