Opinion
J-S79020-17 No. 2190 EDA 2016
02-06-2018
COMMONWEALTH OF PENNSYLVANIA v. RYAN LEE DUBOISE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 27, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011415-2014 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J.:
Ryan Lee Duboise appeals, pro se, from his judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after he was convicted of third-degree murder and possession of an instrument of crime (PIC) in connection with the beating and strangulation death of his former girlfriend. After careful review, we affirm.
The trial court summarized the facts of the instant case as follows:
From the time [the victim,] Monet Hall[,] and [Duboise] began dating, until the moment [Duboise] murdered her, the two had a violent and abusive relationship. In January 2014, Hall and [Duboise] moved into an apartment on Allegheny Avenue in Philadelphia. Not long after, on February 5, 2014, Hall sought treatment at Mercy Fitzgerald Hospital for rib injuries. On February 22, 2014, Hall's cousin, Angela Starks, called 911 after
a crying Hall called her and told her that [Duboise] would not stop punching her in the stomach. On March 4, 2014, Hall was treated at Temple University Hospital for a closed head injury, contusions, and a facial laceration, after being hit in the head with a bottle.
On the morning of April 2, 2014, two days before Hall was found dead, Police Officer Christopher Reeder and his partner responded to a 911 call for a person with a weapon on Allegheny Avenue. The police encountered Hall[,] who appeared under the influence[,] and requested transportation to a hospital. She informed police that she had had an altercation with her boyfriend and that her head hurt. That same day, Hall told Temple University Hospital staff that her boyfriend physically assaulted, punched, and kicked her. She was offered social service help but declined.
On the morning of April 4, 2014, after [Duboise] returned to his apartment from spending the night at his best friend Dustin Taylor's house, he called 911 and reported that he had found Hall unresponsive. When medics arrived at or around 7:30 a.m., they found Hall dead, lying naked on a bed. [Duboise] claimed that he did not know what had happened to her. After the medics informed [Duboise] that Hall was dead, [Duboise] swiftly left the apartment. Outside, he encountered Firefighter Captain Crespo. According to the captain, [Duboise] appeared nervous and uncomfortable and refused to give his name or relation to the deceased. [Duboise] then walked to the corner and disappeared.
In the bedroom where Hall was found dead, Officer Guaraldo recovered a broken flat iron inside a wastebasket near the bed. The flat iron was broken into three pieces: a large piece connected to a cord, a paddle-like shaped piece, and a small plastic piece. Both Detective Crone and Officer Guaraldo observed a unique pattern of marks on Hall's buttock and left hip consistent with the flat iron's shape. After noticing injuries around Hall's neck, they also found an audio-visual ("AV") cord on the television stand at the foot of the bed. DNA mixtures found on both the flat iron and the AV cord were consistent with that of Hall and [Duboise].
Dr. Gary Collins, former Deputy Chief Medical Examiner of Philadelphia, testified that Hall had numerous bruis[es], abrasions, and scrapes about her face, forearms, hips, legs, and buttocks. The cause of death was homicidal violence, including blunt impact injuries and strangulation. The victim's bodily injuries were severe enough to cause a large amount of fat emboli
to enter the blood vessels of her lungs, preventing proper oxygenation of her blood, which may have contributed to her death.
After [Duboise] returned to the scene, Captain Crespo pointed him out to police. When questioned by police, [Duboise] said that Hall had died from a drug overdose and that someone had beaten her. The officers decided to bring him to the homicide unit for further questioning. When placing [Duboise] in handcuffs, the officers noticed that his hands were swollen with several marks on his right hand. Officer Van Sciver observed that [Duboise's] hands were so swollen that they were almost double their normal size.
On April 4 and on May 20, 2014, Dustin Taylor gave statements to Philadelphia Police detectives. He told detectives that [Duboise] came to his apartment on the night of April 3, 2014 (the night before Hall was found dead), and that his hands were swollen - his right hand was so puffy, it resembled "genetically modified chickens." Taylor said he joked about [Duboise's] swollen hands, but [Duboise] did not respond, something Taylor found strange.
Taylor also informed detectives that [Duboise] and Hall had domestic problems and that [Duboise] had complained to Taylor several times about Hall stealing drugs (crack and heroin) from him. [Duboise] also told Taylor that he would kick and punch Hall's ankles and legs and verbally abuse her, calling her a bitch, whore, and crack whore. Taylor said that two days before [Duboise] slept at his house, [Duboise] and Hall had a domestic incident after Hall stole $20.00 from [Duboise] and used it to get high.
Recovered video footage from surveillance cameras located diagonally across and down the street from [Duboise] and Hall's apartment showed an individual leaving at or about 8:20 p.m. on April 3, 2014, and returning to the apartment the next morning at or about 7:27 a.m. No one was seen on the video entering or exiting the property after the individual left. When [a] detective brought [Duboise] into the Homicide Unit on April 4, his clothing was consistent with the clothing worn by the individual in the video—a black, white, and grey checkered shirt with a hoodie.
Francis Curry, [Duboise's] cell mate while incarcerated in April or May 2014 at the George W. Hill Correctional Facility in Delaware County, testified that after [Duboise] was arrested for Hall's murder, he told Curry that right before Hall died, he and Hall
argued over a phone call from another male and that Hall had stolen money for pills (Xanax). [Duboise] told Curry that he hit Hall a couple times and gave her more pills. He claimed that after Hall ingested the pills, she made gargling sounds and asked for [Duboise] to call 911, but he refused. [Duboise] claimed that he left Hall in the apartment; when he returned, she was dead.Trial Court Opinion, 9/8/16, at 2-5 (footnotes and citations to record omitted).
In December 2014, Duboise moved to have his trial attorney removed from the case and sought to proceed pro se. On February 12, 2015, the trial court granted Duboise's request to proceed pro se. A five-day jury trial was held in the matter in April 2016. On April 12, 2016, Duboise was found guilty of the above-stated offenses. On June 1, 2016, prior to sentencing, Duboise filed a motion for judgment of acquittal challenging the sufficiency and weight of the evidence, as well as alleging prosecutorial misconduct. On June 27, 2016, the court sentenced Duboise to an aggregate term of 22½ to 45 years' imprisonment.
W. Fred Harrison, Jr., Esquire, was appointed as standby counsel for Duboise's trial in April 2015. Prior to that date, Duboise had other standby counsel who was removed at Duboise's request in April 2015.
We note that "[u]nder extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion . . . for a judgment of acquittal[.]" Pa.R.Crim.P. 704(B)(1). The judge shall decide such a motion "before imposing sentence, and shall not delay the sentencing proceeding in order to decide it." Id. at 704(B)(2). Duboise orally renewed this motion immediately prior to sentencing, and that the court denied it on the record. See N.T. Sentencing, 6/27/16, at 29.
Specifically, the court sentenced Duboise to 20-40 years' imprisonment for murder, and a consecutive sentence of 2½-5 years in prison for PIC.
Duboise filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Duboise presents the following issues for our review:
(1) Was the evidence presented at trial legally sufficient to support the jury's verdict beyond a reasonable doubt that [Duboise] committed [t]hird-degree murder where the evidence presented by the Commonwealth to establish [Duboise's] guilt was at least equally consistent with his innocence?
(2) Was the evidence presented at trial legally sufficient to support the jury's guilty verdict on the charge [of] Possession of an Instrument of Crime?
(3) Was the jury's guilty verdict for the charge of [t]hird-degree murder against the weight of the evidence?
(4) Did the trial court abuse its discretion, in violation of Pennsylvania Rules of Evidence, Rules, 402, 602, 802, by allowing the Commonwealth to admit into evidence Angela Starks' testimony regarding declarations previously made by Ms. Hall over [Duboise's] objection and did not St[ar]ks' testimony constitute inadmissible hearsay?
(5) Did the trial court abuse its discretion, in violation of Pennsylvania Rules of Evidence, Rule 702, by allowing Detective Crone to offer a medical and scientific opinion about the nature and causes of the victim's injuries over [Duboise's] objection and did not [sic] Crone qualify as an expert in forensic pathology?
(6) Did the trial court abuse its discretion, in violation of [Duboise's] state and federal constitutional rights to due process of law, his right to a fair [trial]; his right to a compulsory process in obtaining witnesses in his favor and his right to present a meaningful defense, by refusing to
provide him funds to employ expert witnesses including, a forensic pathologist, expert in blood splattering and a video expert?
(7) Did the trial court abuse its discretion in violation of [Duboise's] state and federal constitutional rights to due process of law, his right to a fair trial; his right to . . . present a meaningful defense and his right to a compulsory disclosure, by conducting an ex parte hearing without him present, sealing police records from the defense and did not the records contain exculpatory value?
(8) Did the prosecutor withhold exculpatory or impeachment video evidence in violation of [Duboise's] state and federal constitutional rights to due process of law and his right to a fair trial, and did the undisclosed video evidence have a bearing on [Duboise's] guilt or innocence?
(9) Did the trial court abuse its discretion, in violation of Pennsylvania Rule of Evidence Rule 404(b), by allowing the Commonwealth to admit into evidence the victim's medical records and [were] not the records relevant to the murder of the victim?
(10) Did the trial court abuse its discretion, when it allowed Officer Reeder to testify at trial and did not the trial court err when it ruled that [Duboise] elicited hearsay testimony from Officer Reeder?
(11) Did the trial court abuse its discretion, when it ruled that [Duboise] elicited hearsay testimony from Detective Sierra?
(12) Was Dr. Collins' testimony at trial contradictory and beyond the scope of his opinion in his pre-trial report (Hall's post-mortem exam) with respect to the date and time the victim sustained her fatal injuries?
(13) Whether the method of prosecution used by the Commonwealth against [Duboise] was malicious and in bad faith, when the prosecutor elicited misleading testimony from Dr. Collins about the time when the victim's murder occurred to mislead the jury?
We note that Duboise has preserved his challenge to the weight of the evidence. See Pa.R.Crim.P. 607(A)(2) ("A claim the verdict was against the weight of the evidence shall be raised with the trial judge . . . by written motion at any time before sentencing.").
In his first three issues on appeal, Duboise challenges the sufficiency and weight of the evidence. After reviewing the parties' briefs, relevant case law and certified record, we affirm those three issues based upon the trial court opinion authored by the Honorable Barbara A. McDermott. See Pa.R.A.P. 1925(a) Opinion, 9/8/15, at 13-18.
We instruct the parties to attach a copy of the trial court's decision in the event of further proceedings in the matter.
In his fourth issue on appeal, Duboise contends that the trial court erroneously admitted Angela Starks' testimony regarding statements the victim made about him punching her in the stomach. Duboise argues this was inadmissible hearsay testimony that is not subject to a hearsay exception. We disagree.
Hearsay testimony is a statement, other than one made by the declarant, offered in evidence to prove the truth of the matter asserted, and is generally inadmissible at trial. See Pa.R.E. 801(c), 802. However, excited utterances and statements relating to the declarant's existing state of mind are admissible exceptions to the hearsay rule. See Pa.R.E. 803(2), (3). Pennsylvania Rule of Evidence 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The Pennsylvania Supreme Court has explained that "it must be shown first, that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event." Commonwealth v. Sherwood , 982 A.2d 483, 496 (Pa. 2009).
Instantly, the trial court admitted Starks' testimony, finding that:
Starks' testimony was not offered for the truth of the matter. Starks' testimony about Hall informing her that [Duboise] punched her in the stomach was offered to show the reason why Starks dialed 911. Moreover, the court properly precluded any conversation between Starks and Hall that took place after Starks called 911. N.T. 4/5/[]16[,] at 46-55.Trial Court Opinion, 9/8/15, at 6.
Here, Starks testified that she received a phone call from Hall in the afternoon on February 22, 2014. When she answered the phone, Hall was "crying [and s]he sounded frightened, desperate. Just really it was a fear response, scared, like she needed help." N.T. Trial, 4/5/16, at 52-53. She testified that Hall's tone was like she was "hurt, [a] scared kind of thing," id. at 53, and that she told Starks that her boyfriend "wouldn't stop punching [her] in the stomach." Id. at 53-54. We find that Hall's statement to Starks was made at a time when she believed that Duboise was trying to seriously hurt her and, thus, that it qualifies as an "excited utterance" hearsay exception under Rule 803(2). Sherwood , supra. See also Commonwealth v. Luster , 71 A.3d 1029 (Pa. Super. 2013) (where witness testified that victim called him on cell phone while riding in car with defendant and that victim was crying, said she was scared, and that defendant was trying to kill her, statement properly admitted as excited utterance under Rule 803(2)). Accordingly, we conclude that the trial court did not err in admitting the statement.
To the extent that the trial court admitted Starks' testimony as relevant to show motive, malice intent and ill-will towards the victim under Pa.R.E. 404(b)(2), we note that the testimony was plainly relevant to Duboise's motive only to the degree that the hearsay statements were true. See Commonwealth v. Moore , 937 A.2d 1062 (Pa. 2007). Moreover to the extent that the testimony was admitted as state of mind evidence under Rule 803(3), we note that this exception relates to the state of mind of the declarant, not the defendant. See Pa.R.Crim.P. 803(3) (exception to hearsay rule for a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health.") (emphasis added). Because Duboise's defense strategy was to establish reasonable doubt with regard to the person who inflicted the fatal wounds to Hall, there was no issue concerning the victim's state of mind. Moore , supra.
Duboise next contends that the trial court improperly allowed a non-expert, Detective James Crone of the Philadelphia Police Department, to testify about medical and scientific matters relating to the nature and cause of Hall's injuries. Specifically, Duboise argues that Officer Crone's testimony regarding ligature marks and burn marks on Hall's body should have been excluded.
Instantly, Officer Crone was the first police officer to arrive at the victim's apartment after it was determined to be a crime scene. During direct examination the following exchange took place:
Officer Crone: A physical examination of the decedent revealed that she had bruising on her entire body covering her face, neck, arms, shoulders, chest, back, buttocks, stomach and legs. She also had what I believed to be ligature marks.
Duboise: Objection to the ligature marks.N.T. Trial, 4/6/16, at 100-101. Counsel then showed the jury a photograph, admitted as Exhibit 28, showing horizontal marks on the right side of Hall's neck which Officer Crone confirmed were the "ligature marks" he referred to in his testimony. Id. at 101-102. The district attorney then stated that Crone was not an expert with regard to what might have caused those marks on the victim. Id. 102. Finally, Officer Crone testified that, because of the marks on Hall's neck, as a detective he searched the bedroom for anything that might have been wrapped around the victim's neck to cause those injuries. Id. at 103.
Court: Members of the jury, he is testifying to what he saw. He can give what [he saw] based upon his experience, but, again, he's not an expert, so you have to make a factual determination based on other evidence whether that's what it is.
So it's partially sustained, the objection.
District Attorney: So you described these as ligature marks. Without using what I guess would be medical terms, what did you see around the neck that led you to think that's what they were?
Officer Crone: The victim on both her right and left side of the neck had horizontal marks which would have been consistent with having some type of object wrapped around her neck consistent with strangulation. One of the things that we had looked for inside of that particular bedroom was any object that was nearby that may have been used to strangle the victim.
The medical expert's report noted that there were "band-like abrasions" on Hall's neck and that the cause of death, in part, was due to strangulation.
Instantly, Officer Crone's testimony regarding marks on the victim's neck was nothing more than observations made by a homicide detective in the course of his business. As the trial court notes in its Rule 1925(a) opinion, "a homicide detective's primary purpose, along with the Crime Scene Unit, 'is to process the scene, to make all relevant observations about what is there and what might have occurred, [and to] photograph, document[,] and recover evidence." Trial Court Opinion, at 9/8/15, at 17, citing N.T. Trial, 4/6/16, at 96. Moreover, the court clearly instructed the jury that Officer Crone is not an expert in forensic pathology and that his testimony was offered solely to explain what he observed at the crime scene and to explain his method of investigation at a crime scene. We find no error in the admission of his testimony.
Duboise next argues that the trial court violated his state and federal constitutional rights to due process and equal protection, right to a fair trial, and compulsory process when it denied him funds to employ expert witnesses, including a forensic pathologist, an expert in blood splattering, and a forensic video analyst.
To support this claim, Duboise relies, in large part, on Ake v. Oklahoma , 470 U.S. 68 (1985), which held:
[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.
On April 28, 2015, the trial court granted Duboise's request to retain experts. As of May 14, 2015, Duboise had not yet retained an expert or an investigator. On July 20, 2015, the court entered an order permitting Duboise to retain, at the cost of up to $4,000 each, a forensic pathologist and crime lab. Order, 7/20/15. On August 18, 2015, the court entered another order granting Duboise approval to hire a defense investigation service at the cost of up to $3,000; the order specified that the court would not pay for the service until Duboise "present[ed] proof of an invoice for said services and [until the invoice was] approv[ed] by a judge of the Court." Order, 8/18/15. Both the July and August 2015 orders were entered without prejudice to stand-by counsel's right to apply to the court for additional funds in the future upon a showing of need.
On September 29, 2015, Duboise filed a pro se continuance motion seeking 60 days to secure a new pathologist, as the pathologist he had retained had become unavailable. On November 2, 2015, the court granted Duboise's motion for extra time to secure a pathologist, giving him until December 15, 2015, to submit his expert reports. On December 7, 2015, Duboise filed another pro se continuance motion seeking until January 15, 2016, to permit his new pathologist additional time to conduct a full examination of defense reports, alleging that the court-appointed investigator had misled him to believe that a new pathologist had been retained.
Appointment of expert witnesses and the provision of public funds to hire them to assist in the defense against criminal charges are decisions within the trial court's sound discretion and will not be reversed absent an abuse thereof. Commonwealth v. Wholaver , 989 A.2d 883, 894 (Pa. 2010). Indigent defendants have a right to access the same resources as non-indigent defendants in criminal proceedings. Commonwealth v. Konias , 136 A.3d 1014 (Pa. Super. 2016). "The State has an affirmative duty to furnish indigent defendants the same protections accorded those financially able to obtain them. Procedural due process guarantees that a defendant has the right to present competent evidence in his defense, and the state must ensure that an indigent defendant has fair opportunity to present his defense." Id. at 1019. In Commonwealth v. Carnutte , 871 A.2d 839, 842 (Pa. Super. 2005), our Court noted that "[t]here must be some showing as to the content and relevancy of the proposed expert testimony before such a request will be granted."
Here, Duboise acknowledges that the trial judge granted his motion to hire expert witnesses, with monetary limits for the cost of each expert. Duboise also acknowledges that the court granted him a one-month continuance to secure those experts. Duboise argues that that trial court deprived him of his right to a fair trial when it did not pay for a pathologist. While the court may not have ultimately paid for a pathologist for Duboise's defense, the court permitted him to secure one and offered to pay up to $4,000 for him to retain one. The court, however, set a deadline by which the Duboise had to submit proof of the expert's services (an invoice) to be approved by a trial judge before he would be given the funds.
We find no abuse of the trial court's discretion where it specifically ordered that Duboise be provided funds to hire several experts at the expense of the state, with the condition that he submit invoices before he receives the money. Duboise had the fair opportunity to hire those experts and, had he abided by the reasonable conditions set by the court, he would have had them at his disposal during trial. Moreover, we are not convinced that Duboise demonstrated the need for a pathologist or forensic video analyst.
Here, Duboise claims that a pathologist was needed for his defense because "the Commonwealth . . . presented insufficient and incompetent testimony from its pathologist that testified that he ultimately 'didn't [k]now' when Ms. Hall sustained her fatal injuries." Appellant's Brief, at 42. He is mistaken. Doctor Gary Collins, former Deputy Chief Medical Examiner of Philadelphia, testified for the Commonwealth that Hall could have been fatally injured as early as 5:00 p.m. on the evening of April 3 or as late as the early morning hours of April 4th. Although Collins listed Hall's time of death on the death certificate as 7:30 a.m. on the morning of April 4, he did so because the time of death is when the deceased is pronounced dead, such as at the scene of the crime when the paramedics found Hall's lifeless body. Doctor Collins, however, distinguished this time from the actual time that Hall died, which is determined after a post-mortem exam. Thus, Duboise did not demonstrate that he needed a forensic pathologist where there was no substantial question over the time when Hall sustained her fatal injuries.
Duboise also contends that he needed a forensic video analyst because there was a "substantial question about whether or not video footage showing the front door of Hall's apartment displayed an intruder enter into Hall's apartment after 8:20 p[.]m[.], on April 3, 2014." Appellant's Brief, at 44. Specifically, Duboise is referring to video footage introduced by the Commonwealth showing the front door area and surrounding street area of Hall's apartment building on the evening of April 3 and the morning of April 4.
At trial, Detective Thornsten Lucke testified that the video footage outside Hall's apartment building taken during the evening hours presented a blurrier image than the footage taken during the day. N.T. Jury trial, 4/5/16, at 100-101. Despite this fact, the expert testified that he did not see anyone leave or enter Hall's apartment after 8:20 p.m. on April 3 or before 7:00 a.m. on April 4. Here, Duboise had the burden to show that such an expert was necessary for him to present an adequate defense, the cost of retaining such an expert, and that he was unable to pay for that necessary expert. Konias , 136 A.3d at 1019; Commonwealth v. Cannon , 954 A.2d 1222, 1227 (Pa. Super. 2008) ("Cannon failed to introduce any evidence as to the cost of retaining an expert to conduct an evaluation and to testify on his behalf. This is a critical element of proof in a claim of indigency."). The fact that Detective Lucke could not be 100 percent sure that nobody entered or left Hall's apartment during the relevant time period does not mean that there was a "substantial question" about whether an intruder came in or left during that time. In fact, Detective Lucke testified he "made 100 percent effort to view it over and over and over and over again to see somebody come or go, but [he] didn't [see anybody]." N.T. Jury Trial, 4/5/16, at 131. Under such circumstances we could alternatively find that Duboise did not show the required necessity for the requested experts. Carnutte , supra.
In his next several issues on appeal, Duboise contends that the trial court improperly withheld exculpatory evidence, including raw video footage of the front door of the victim's apartment and police reports of the victim's criminal history and prior domestic abuse incidents with other men. After reviewing the parties' briefs, the relevant law, and the certified record on appeal, we conclude that Judge McDermott's opinion adequately disposes of these issues on appeal. See Pa.R.A.P. 1925(a) Opinion, 9/8/15, at 9-11.
Duboise also argues that the trial court improperly admitted Hall's medical records and Officer Reeder's testimony as impermissible evidence of prior bad acts under Pa.R.E. 404(b).
Pursuant to Rule 404:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
Pa.R.E. 404(b). "In order for other crimes evidence to be admissible, its probative value must outweigh its potential for unfair prejudice against the defendant, Pa.R.E. 404(b)(2), and a comparison of the crimes proffered must show a logical connection between them and the crime currently charged." Commonwealth v. Hicks , 156 A.3d 1114, 1125 (Pa. 2017) (plurality).(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial.
Instantly, Hall's medical records and Officer Reeder's testimony showing that Hall had been physically assaulted by Duboise on numerous prior occasions were properly admitted under Rule 404(b). There was a clear logical connection between the proffered bad acts and the underlying charges, where there were substantial similarities in the types of injuries Hall suffered, the way in which she was beaten, and the areas of her body that sustained the fatal injuries. The logical connection between the evidence and the current crimes also strengthened the case that Duboise was the perpetrator. Moreover, the probative value of the evidence clearly outweighed its potential for unfair prejudice where the Commonwealth's case was otherwise based largely on circumstantial evidence. Pa.R.E. 404(b)(2); Hicks , supra. Thus, we find that the court did not err in admitting the evidence.
Duboise contends that the court violated his right to a fair trial when it allowed hearsay testimony from Detective Sierra by permitting him to read statements that Hall had made to hospital staff that she had been physically assaulted by her boyfriend. He contends that Detective Sierra's testimony did not constitute fair response to his cross-examination of the detective.
On redirect examination, the assistant district attorney asked Detective Sierra if he had had "a chance to look at the language that [the victim] used in all of her own medical records to suggest . . . there was a domestic problem between her and the defendant?" Id. at 66. Duboise objected to the question; the court overruled the objection, noting "[y]ou[, Duboise] opened the door. You asked about what was said in the medical records. Up until that point, the [c]ourt ruled it was not to come in." Id. Detective Sierra replied, "[t]here was information when [s]he went to the hospital that her boyfriend had beat on her." Id. at 66-67.
It is well established that if a defendant delves into what would be objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe further into the objectionable area. Commonwealth v. Harris , 884 A.2d 920, 928 (Pa. Super. 2005). See also Commonwealth v. Bey , 439 A.2d 1175, 1178 (Pa. Super. 1982) (holding where defendant opens door to what otherwise might be objectionable testimony, Commonwealth may probe further to determine veracity of statement).
We agree with the trial court that the assistant district attorney's question on redirect was a fair response to the following questioning of Detective Sierra by Duboise on cross-examination:
Duboise: Now, April 2, where the decedent was transported to Temple Hospital, you read through a record, correct?N.T. Trial, 4/8/16, at 36-37.
* * *
Det. Sierra: I didn't look at them now.
* * *
Duboise: So you wouldn't know that the records reflect that the decedent was treated negative for head injuries or any face injuries, correct?
Det. Sierra: I would have to look at the actual document.
Duboise: The actual diagnosis that day, Detective[,] was alleged assault, alcohol and drug abuse and his recommendation was an outpatient treatment for the decedent. She was very uncooperative and was lethargic, slurring her words. . . .
* * *
Duboise: You recollect the record says alleged assault?
Det. Sierra: Without looking at the actual document, I know that some alleged drug abuse was mentioned in the medical records.
The Commonwealth's line of questioning regarding the abusive relationship between Hall and Duboise, as well as the injuries she sustained by her boyfriend, as documented in Hall's hospital records, were made in fair response to Duboise's questioning on cross-examination. We find no abuse of discretion. Harris , supra ; Bey , supra.
In his final two issues on appeal, Duboise argues that Dr. Collins' trial testimony violated Pa.R.C.P. 4003.5, where it was not only contradictory, but also beyond the scope of his opinion in the victim's autopsy report with respect to the time she sustained her fatal injuries. Duboise also claims that the Commonwealth committed prosecutorial misconduct when the district attorney intentionally elicited misleading testimony from Dr. Collins about the date and time that Hall sustained her fatal injuries. After reviewing the parties' briefs, relevant case law and the certified record, we find that the trial court's opinion properly disposes of this issue on appeal. See Pa.R.A.P. 1925(a) Opinion, 9/8/15, at 12-13,
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/6/18
Image materials not available for display.
Id. at 83. Ake, however, limits its holding to indigent defendants being entitled to funding for psychiatric experts in the limited circumstances where the defendant's sanity at the time of the offense is a significant issue at trial. Here, Duboise's sanity was never an issue at the time of the offense or at trial.