Opinion
913 MDA 2022 J-A16009-23
10-02-2023
COMMONWEALTH OF PENNSYLVANIA v. JAHRID JOSEF BURGESS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered January 4, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0001929-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM
PANELLA, P.J.
Jahrid Josef Burgess appeals from the judgment of sentence imposed following his convictions of third-degree murder, aggravated assault - victim under 13, aggravated assault - victim under 6, endangering the welfare of children, obstruction, simple assault, and recklessly endangering another person. Burgess argues that the trial judge improperly bolstered a witness, the trial court abused its discretion in limiting his counsel's cross-examination of a prosecution witness, the trial court abused its discretion in preventing him from presenting evidence at trial, the verdicts for third-degree murder and aggravated assault were against the weight of the evidence, and the introduction of photographs of the victim was inflammatory and deprived him of a fair trial. We affirm.
This case involves the death of three-year-old Arabella Parker, the daughter of Samantha Delcamp. On October 10, 2019, Burgess, Delcamp's live-in boyfriend, picked Parker up by the armpits and threw her toward a couch. However, while the lower half of Parker's body landed on the couch, her upper body, including her head, hit the floor. Parker stood up, but then fell face first.
Delcamp and Burgess waited 49 minutes before calling 911. They then informed responding officers and medical personnel that Parker suffered a seizure, which resulted in a delay in treating her head injuries. After Parker arrived at the hospital, doctors noticed that she had previously suffered numerous broken bones, which were in various stages of healing. Parker ultimately died from blunt force trauma to her head on November 22, 2019.
The police arrested Burgess and charged him with several crimes. The matter proceeded to a jury trial in November 2021. At trial, the Commonwealth presented multiple witnesses, including Dr. Paul J. Bellino, a pediatrician, who regularly participates in child abuse investigations, as well as investigating officers and Delcamp. Ultimately, the jury found Burgess guilty of the aforementioned crimes. The trial court sentenced Burgess to an aggregate sentence of 24 to 48 years in prison. Burgess filed a post-sentence motion, which the trial court denied. This timely appeal followed.
On appeal, Burgess raises the following questions for our review:
I. Did the trial court's reference to the 30 years of experience of Dr. Paul Bellino in response to defense counsel's attempt
to introduce evidence impeaching Bellino's professionalism improperly bolster Bellino's credibility serving to deprive [Burgess] of a fair trial such that the convictions should be vacated?
II. Did the trial court's refusal to allow counsel to question Dr. Bellino as to his arguably mistaken diagnosis of child abuse as documented in a reported federal case against [Dr.] Bellino constitute an error of law and or abuse of discretion that deprived [Burgess] of a fair trial such that the convictions should be vacated?
III. Did the trial court's refusal to allow the defense to enter into evidence the statement of the child's father, Karl Parker, that [] Delcamp fought back like a half man - in light of [] Delcamp and the prosecution portraying [] Delcamp as a meek and innocent party in the circumstances involving the bruising and death of her child - constitute an error of law and or abuse of discretion that deprived [Burgess] of a fair trial such that his convictions should be vacated?
IV. Were the verdicts of murder in the third degree and aggravated assault not supported by the weight of the evidence to such a degree that a new trial is warranted?
V. Was the essential evidentiary value of the number of photographs published to the jury outweighed by their inflammatory effect upon the minds and passions of the jurors depriving appellant of a fair trial and warranting a new trial?Appellant's Brief at 5 (some capitalization omitted).
In his first claim, Burgess contends that the trial court improperly bolstered Dr. Bellino's testimony, by pointing out that he had 30 years of experience. See id. at 9. Burgess argues that he objected to Dr. Bellino's expertise to testify about osteopathic findings, noting he was not qualified as an osteopath. See id. Burgess claims that the trial court's statement regarding Dr. Bellino's years of experience effectively endorsed his credibility and helped show Parker's death was not an accident due to the various injuries suffered by Parker. See id. at 9-10. Burgess maintains he was deprived of a fair trial and is now entitled to a new trial. See id. at 10-11.
At trial, Dr. Bellino indicated he had 30 years of pediatric experience. See N.T., 11/16-18/21, at 299. When Dr. Bellino was detailing Parker's prior injuries during the prosecution's direct examination, Burgess's counsel objected to the doctor's expertise in dealing with osteopathic findings. See id. at 329. The trial judge overruled the objection, stating Dr. Bellino had "30 years of pediatrics and has dealt with these types of injuries[.]" Id. Burgess's counsel did not object to this remark by the trial judge.
Here, Burgess waived any claim of error arising from the judge's comment because he failed to raise a contemporaneous objection, or make a request for a mistrial or a curative instruction. See Commonwealth v. Rudolf, 262 A.3d 574, 581 (Pa. Super. 2021) ("It is settled that an appellant's failure to raise a contemporaneous objection to evidence at trial waives that claim on appeal." (citation omitted)).
Nevertheless, the trial judge's comment would not entitle Burgess to relief.
Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Moreover, it must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable to every case.
An accepted guide in determining prejudicial effect is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair trial.Commonwealth v. Sullivan, 820 A.2d 795, 800 (Pa. Super. 2003) (citation and emphasis omitted).
Burgess does not establish that the trial court's remark was so prejudicial that it deprived him of a fair and impartial trial. In fact, the trial judge's comment was merely a brief explanation as to why he overruled Burgess's counsel's objection. Moreover, the trial court instructed the jury that they were the sole judges of fact and it was their responsibility to weigh all of the evidence and determine the facts. See N.T., 11/16-18/21, at 12-13, 665-67; see also Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016) (noting that "the jury is presumed to follow the trial court's instructions" (citation omitted)). Therefore, even if Burgess had not waived his claim, we conclude that the trial judge's remark does not rise to the level of prejudice necessary to grant a new trial.
In his second claim, Burgess contends that the trial court abused its discretion in refusing to allow him to question Dr. Bellino about his mistaken diagnosis of child abuse in a federal case. See Appellant's Brief at 12-13. Burgess argues that like the federal case, Dr. Bellino wrongfully employed a presumption of child abuse in this case and that defense counsel should have been permitted to question him to rebut his presumption. See id. at 13-14, 15. Burgess maintains that this error was not harmless because Dr. Bellino was the Commonwealth's key witness, and this line of questioning about his presumptions would have established the doctor's bias in child abuse investigations. See id. at 17.
A trial court has broad discretion to determine whether evidence is admissible, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous. In addition, the trial court has broad discretion regarding both the scope and permissible limits of cross-examination. The trial judge's exercise of judgment in setting those limits will not be reversed in the absence of a clear abuse of that discretion, or an error of law.
The Confrontation Clause in the Sixth Amendment to the United States Constitution provides that all criminal defendants enjoy the right to confront and cross-examine adverse witnesses. Moreover, the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.
Although the right of cross-examination is a fundamental right, it is not absolute. The trial court may place reasonable limits on defense counsel's cross-examination of a prosecution witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. …
[T]wo inquiries [are made] for determining whether a limitation on cross-examination violates the Confrontation Clause. First, we inquire whether the limitation prejudiced the examination of that particular witness. In other words, absent the limitation, would the jury have received a significantly different impression of the witness's credibility. Second, if there was error,
we must determine whether it was harmless beyond a reasonable doubt; if so, reversal is not warranted.Commonwealth v. Rosser, 135 A.3d 1077, 1087-88 (Pa. Super. 2016) (en banc) (citations, footnote, and quotation marks omitted).
Here, the trial court addressed Burgess's claim as follows:
The limitation on cross-examination of Dr. Bellino was proper, as there was never a finding by any court of any impropriety on Dr. Bellino's part. It was asserted in a lawsuit that he employed a presumption of child abuse, where he was one of numerous defendants in a federal due process case against Montour County. Dr. Bellino was dismissed as a party. Allegations alone are not a proper basis for cross-examination.Trial Court Opinion, 11/17/22, at 6.
We can find no fault with the trial court's reasoning. Here, Burgess fails to proffer any evidence that Dr. Bellino exercised a presumption of child abuse either in the federal case or the instant case. See Rosser, 135 A.3d at 1089 (noting that "the Sixth Amendment does not entitle the defendant to cross-examine a Commonwealth witness on a subject for which the defendant cannot provide a factual foundation."). The trial court reasonably determined that Burgess's bare allegations, without any support, could serve to confuse and mislead the jury. Therefore, the trial court did not err in limiting Burgess's cross-examination of Dr. Bellino. See Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011) (holding that the trial court's decision to restrict cross-examination was a proper exercise of discretion, because the record shows that the defendant "did not provide the requisite foundation for the avenue of cross-examination he wished to pursue[.]").
In his third claim, Burgess argues that the trial court abused its discretion in failing to allow him to introduce evidence from Parker's father, Karl Parker, that Delcamp fought like a half-man and was a back roads girl, in contravention of the Commonwealth's portrayal of Delcamp as meek and innocent. See Appellant's Brief at 18, 21. Burgess claims that part of his defense was that Delcamp was violent, noting that Delcamp's step-sister testified that Delcamp smacked Parker, let Parker fall off the bed, and yanked Parker's arm. See id. at 20. Burgess concludes that the failure to allow Karl Parker's testimony describing Delcamp is reversible error and deprived him of a fair trial. See id. at 22.
Here, prior to Karl Parker's testimony, the parties conducted a side bar discussion about his statement to police that Delcamp was a "back roads girl, and fought like a man - a half man." N.T., 11/16-18/21, at 481. The trial judge stated "that is probably not going to come in." Id. at 482. Burgess's counsel did not object at this time. Subsequently, during Karl Parker's testimony, in response to a question as to whether he was surprised Delcamp did not fight back, he stated, "I didn't fully understand the situation at the time. I was more concerned about my daughter in the hospital at the time[.]" Id. at 484. He then testified that he had never seen Delcamp be abusive toward Parker. See id. at 484-85.
Burgess never objected to the trial court's statement regarding admissibility of Karl Parker's opinion that Delcamp was a fighter and back roads girl. See Rudolf, 262 A.3d at 581. In any event, Burgess did not point to any place in the record where he seeks the admission of any such statement by Karl Parker. See Trial Court Opinion, 11/17/22, at 7. Therefore, Burgess waived this claim.
In his fourth claim, Burgess contends that the verdicts for third-degree murder and aggravated assault were against the weight of the evidence. See Appellant's Brief at 23, 26. Burgess argues that the evidence merely established that he threw Parker toward the couch and that Parker accidently hit her head on the floor. See id. at 24. Noting that Delcamp's testimony did not establish malice, Burgess asserts that his convictions were based on Dr. Bellino's suspect testimony, which was in turn based on his biased finding of child abuse, and erroneous conclusion that the cause of death was multiple blunt force trauma. See id. at 24-25, 26.
A weight of the evidence claim is addressed to the discretion of the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015) (citation omitted).
Here, Dr. Bellino testified that Parker had previously suffered numerous bruises, abrasions, and fractures. See N.T., 11/16-18/21, at 322-24, 328-31. More specifically, regarding the fractures, Dr. Bellino testified as follows:
[T]he clavicles clearly showed a later stage of healing. They were not immediately broken. They didn't just happen, you know, within that five day window, or even probably two weeks even, you know, two months type of time frame where both of her clavicles had been broken.
She had eight - I am sorry - yeah. Eight broken ribs. The rib fractures we could see readily on CT scan as well. It gives me a little clearer picture of things. You could see that the callus was present, but the amount of calcium that had been put into that callus had not obscured the fracture site. So, you could still see through. So we call that a soft callus. Again, it puts that in that time frame of somewhere between 21 days or so, and maybe a few weeks beyond that.
One rib in particular, the ninth rib, is broken in two places. So, there were actually nine rib fractures that I think we can count. So, there were eight total, seven on the left side and one rib on the right side. So, clearly there were old fractures of the ribs that were not from the time frame that, you know, brought her into the hospital.
She had a fractured tibia, the bone between your knee and your ankle. That was up towards the knee. That bone had already been healing and was actually showing evidence of remodeling. So, that was probably even older than that, you know, two month time frame.
She had broken forearms. So, both the ulna and radius of the left arm. She had what we call buckle fracture of the left radius, which is the bigger bone that goes toward your thumb side of your forearm. A buckle fracture is a fracture that is kind of common on children because children's bone are a little more bendy than older folks. So, they will bend and they will have
microfractures within the bone itself. The bone won't snap in half because when it goes back together again, the bone fatigues. So, when it goes back together again, there is this bump that occurs in that area. The bone is very weak, it hurts, but it doesn't snap in half. But both the radius and ulna on the opposite side, both show evidence of that bending and going back into place and the healing process that occurs there. Again, those are older. They were not - - it wasn't something recent. There was callus there. There was, you know, early remodeling of that bone. So several weeks, if not a little but more in time frame.
Then the right side she also had a fractured ulna. That was also of a similar age when compared to the other arm as well. So, she had a number of old fractures that we were able to identify on her skeletal survey and her CT scan. …
[S]he had a fracture of her right humerus as well. So, the upper portion of her arm, the bone between her shoulder and her elbow. Again, this was a fracture that was not recent. It had begun to heal already. So, this was, you know, several weeks old.Id. at 329-31, 334-35.
Dr. Bellino stated that "there was clearly a temporal difference between the old injuries and what she presents with at the hospital, which ultimately causes her death." Id. at 336. Dr. Bellino noted that the initial information that Parker had suffered a seizure and not head trauma affected her health and care. See id. at 338, 339-41; see also id. at 340-41 (noting that waiting 49 minutes to call 911 causes more injury to have occurred). Dr. Bellino opined that Parker "died as a result of a severe beating…. This is a case of child abuse. She died as a result of the child abuse injuries that she sustained." Id. at 342, 343. Additionally, Dr. Rameen Starling-Roney, a forensic pathologist, testified about Parker's injuries, and stated that her "cause of death was multiple and blunt force injuries[,] and the manner of death … is homicide." Id. at 375.
Delcamp testified that on October 10, 2019, Burgess yelled at Parker and then picked her up and threw her onto a small couch. See id. at 105-06. Delcamp stated that Parker's lower body landed on the couch but that her upper body and head hit the ground. See id. at 106-07, 109. Delcamp stated that Parker's entire body was violently shaking and she would not answer any questions. See id. at 109-10. Delcamp admitted they waited to call 911. See id. at 111-14; see also id. at 248-50 (wherein investigator, Trooper Brian Siebert, testified that Burgess did not immediately call 911 after the injury and first conducted a Google search of seizures and called 911 49 minutes after the incident).
Here, Burgess essentially asks us to reassess the credibility of Dr. Bellino and to reweigh the evidence presented at trial establishing Parker had been the victim of child abuse and that she had died of blunt force trauma. However, "it is for the jury to determine the weight to be given the testimony. The credibility of a witness is a question for the fact-finder." Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003) (citation omitted). Upon review, we conclude the evidence adequately supports the trial court's determination that the verdict was not so contrary to the evidence as to shock its conscience. See Trial Court Opinion, 11/17/22, at 12. Therefore, Burgess is not entitled to relief on this claim.
In his final claim, Burgess contends that the publication of Parker's injuries to the jury was inflammatory and deprived him of a fair trial. See Appellant's Brief at 27, 29. Burgess argues that the photographs showed a little child in a hospital bed with tubes sticking in her, and were taken after her skull had been opened to relieve pressure on her brain. See id. at 28, 29. Burgess maintains that the pictures were graphic and added no probative value, particularly because Dr. Bellino testified at length about the injuries. See id. at 29. Likewise, Burgess asserts that the parties do not dispute Parker suffered head trauma, and that although he claimed the cause of injury was an accident, the Commonwealth introduced the photographs to inflame the jury to find him guilty of murder. See id. at 29-30.
In reviewing a challenge to the trial court's admission of photographs, we employ the abuse of discretion standard. A trial court must engage in the following two-step analysis when considering the admissibility of photographs of homicide victims[.] First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury's understanding of the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.Commonwealth v. Haney, 131 A.3d 24, 37 (Pa. 2015) (citations, quotation marks, and paragraph break omitted).
The trial court addressed Burgess's claim as follows:
The photographs published to the jury were done so in accordance with their evidentiary value, to show the jury the nature of the injuries of the victim, as the victim had bruising to her face, and over her front and back. For the jury to fully
understand the number of injuries, as there were many, they needed to visually see them. [Burgess] had the opportunity to cross-examine the doctors and the Troopers, who took the photographs, to sway the jury's perception of the photographs.
Additionally, [Burgess] himself asked for two of the photographs to be republished to the jury during his cross examination. N.T.[, 11/16-18/21,] at 598-602. Furthermore, during jury instructions the court properly instructed the jury that the photographs were admitted to show the nature of the wounds received by the victim and to help the jury understand the testimony of the witnesses who referred to the photographs. The jury was instructed that they "should not let it stir up [their] emotions to the prejudice of the defendant. Your verdict must be based on a rational and fair consideration of all the evidence and not on passion or prejudice against the defendant." [Id.] at 659-660. The photographs were properly admitted as their evidentiary value outweighed any prejudice.Trial Court Opinion, 11/17/22, at 15-16.
We can find no error in the trial court's reasoning, and conclude that the photographs were properly admitted to demonstrate Parker's injuries. See Commonwealth v. Woodard, 129 A.3d 480, 495 (Pa. 2015) (finding that the trial court properly admitting photographs of child's injuries to illustrate the extent of the injuries and the photographs were related directly to the elements of the crime charged and refuted the defense theory that the injuries were the result of an accident); see also Haney, 131 A.3d at 38 (stating that although the photographs were difficult to view, they were admissible to explain the nature and extent of child's injuries). Likewise, "[w]hile some photographs depict medical equipment, the photographs have evidentiary value in showing the nature and extent of victim's injuries." Commonwealth v. Johnson, 42 A.3d 1017, 1034 (Pa. 2012). Finally, the trial court's cautionary instruction reduced the risk the photographs inflamed the jury. See id. Therefore, the trial court did not abuse its discretion in admitting these photographs. See Haney, 131 A.3d at 38.
Judgment of sentence affirmed.
Judgment Entered.