Opinion
J-S42023-16 No. 1412 WDA 2015
09-08-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. CHRISTOPHER LAWRENCE PETERMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 19, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000600-2013 BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J. MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Christopher Lawrence Peterman brings this appeal from the judgment of sentence imposed on March 19, 2015, in the Court of Common Pleas of Westmoreland County. Peterman was convicted by a jury of aggravated assault, criminal conspiracy to commit aggravated assault and endangering the welfare of children, and endangering the welfare of children. The trial court sentenced Peterman to serve an aggregate term of nine to 18 years' imprisonment. The victim is the infant daughter of Peterman and his co-defendant, Elizabeth Mae Fair. Peterman raises eleven issues in his brief, challenging, inter alia, the trial court's pre-trial rulings, evidentiary rulings, the weight and sufficiency of the evidence, and the denial of his motion for mistrial. Based upon the following, we affirm.
See 18 Pa.C.S. §§ 2702(a)(1), 903(a)(1) and 4303(a)(1), respectively.
Fair was tried with Peterman and convicted of conspiracy to commit aggravated assault and endangering the welfare of children, and endangering the welfare of children. See 18 Pa.C.S. §§ 903(a)(1) and 4303, respectively. Fair has filed an appeal, which is listed immediately prior to this appeal. Commonwealth v. Fair , 1411 WDA 2015, J-S42022-16.
We note the trial court did not order Peterman to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On September 17, 2015, the trial court filed a Rule 1925(a) statement, relying on its opinion filed August 17, 2015, which accompanied the order denying Peterman's post-sentence motions.
The trial court has provided a succinct statement of the procedural history as well as an extensive discussion of the facts of this case and, therefore, we need not restate them here. See Trial Court Opinion, 8/17/2015, at 3-14. Briefly, the three-month old victim suffered numerous severe injuries while under the care of Peterson and Fair. The injuries were discovered after Peterson and Fair brought the victim to Westmoreland Hospital on October 20, 2012. An emergency room doctor called Dr. Rachel Berger, a pediatrician and Division Chief for the Division of Child Advocacy at Children's Hospital of Pittsburgh, who was on-call for the Child Protection Team, for consultation regarding child abuse concerns. The charges against Peterman arose following an investigation by state police upon receiving a report from Westmoreland County Children's Bureau regarding suspected child abuse by Peterman and Fair.
On July 20, 2012, the victim was born prematurely, and was hospitalized for one and one-half months after her birth. Peterman and Fair learned how to perform CPR and use the oxygen and monitor the victim required. On September 24, 2012, the victim was discharged from the hospital with a pulse oximeter, which kept track of her oxygen levels, and an A&B monitor, which kept track of her heart rate and breaths. See Trial Court Opinion, 8/17/2015, at 3 n.1.
The first issue raised by Peterson is a challenge to the trial court's denial of his pre-trial motion for severance. See Peterson's Brief at 1.
In reviewing this claim, our standard of review is well established:
The decision to grant or deny a motion for severance is committed to the sound discretion of the trial court, reversal of which is proper only in the event of an abuse of that discretion. Commonwealth v. Chester , 526 Pa. 578, 587 A.2d 1367, 1373, cert. denied, 502 U.S. 959, 116 L. Ed. 2d 442, 112 S. Ct. 422 (1991). While joint trials are preferred in those cases in which conspiracy is charged and the evidence against one actor is the same or similar to that presented against the other actor, the law is also clear that severance is required whenever codefendants intend to present antagonistic defenses. Id. However, "the mere fact that there is hostility between the defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials." Id. See also Pa.R.Crim.P. 583 (severance may be ordered if prejudice established).Commonwealth v. Hetzel , 822 A.2d 747, 763 (Pa. Super. 2003).
Here, prior to trial the Honorable John E. Blahovec denied Peterson's motion to sever, stating:
Where, as here, the crimes charged grow out of the same acts and much of the same evidence is necessary or applicable to all defendants, joint rather than separate trials are to be preferred. Commonwealth v. Chester , 587 A.2d 1367 (Pa. 1991); Commonwealth v. Childress , 680 A.2d 1184 (Pa. Super. 1996). Moreover, more than a bare assertion of antagonistic defenses is required to justify severance. The mere fact that there is hostility between the defendants, or that one may try to
save himself at the expense of another, is in itself not sufficient grounds to require separate trials. In fact it has been held that the fact that "defendants have conflicting versions of what took place, or the extents to which they participated in its, is a reason for rather than against a joint trial because the truth may be more easily determined if they are all tried together. See Commonwealth v. Chester , at 1373.Trial Court Opinion, 7/23/2013, at 1-2.
Peterman asserts "a real prejudice existed at trial and was not mere speculation since the jury found him guilty and Fair not guilty of aggravated assault on the same evidence." Peterman's Brief, at 2. Peterman asserts the jury based the verdict on the identical evidence that did not identify who committed the assaults. Id. He states that Fair testified on her own behalf and he chose not to testify since he had crimen falsi convictions. Id. In support of his argument, Peterman cites Commonwealth v. Patterson , 546 A.2d 596 (Pa. 1988).
We are not persuaded by Peterman's argument and find that Patterson supports the trial court's ruling denying severance. In Patterson , the Pennsylvania Supreme Court stated, "The mere fact that a co-defendant might have a better chance of acquittal if tried separately is not sufficient to grant a motion to sever." Id. at 599. Based on our review, we find no abuse of discretion by the trial court's denial of the motion to sever. Accordingly, we reject Peterman's first argument.
In the second issue raised on appeal, Peterman contends the trial court abused its discretion in denying his pre-trial motion to obtain Fair's medical records. The entire discussion of Peterman's second issue is, as follows:
The Honorable Richard E. McCormick, Jr., denied Peterman's motion to obtain mental health records by order filed March 24, 2014.
[Peterman] contends he was denied a fair trial when his pre-trial Motion to Obtain [Fair's] medical records her pertaining to post-partum depression was denied. [Peterman] was not able to inquire about evidence regarding [Fair's] state of mind at the time of the alleged crimes. [Peterman] contends this is real prejudice at trial and was not mere speculation since this denial impacted the evidence during a joint trial.Peterman's Brief, at 2.
The Commonwealth has objected to this issue on the grounds that Peterman's argument "is completely unsupported by any facts or argument related to how said records were relevant and what they contained (beyond a vague averment of post partum depression) [and] no case law is cited regarding the lower court's discretion in such motions." Commonwealth's Brief, at 23. We fully agree with the Commonwealth's position. Accordingly, we find waiver as to Peterman's second claim. See Pa.R.A.P. 2119(a); Commonwealth v. McMullen , 745 A.2d 683, 689 (Pa. Super. 2000) (failure to develop argument results in waiver).
Next, Peterman claims the trial court abused its discretion in admitting prejudicial hospital photographs showing "the victim attached to tubing and medical devices without displaying any visible injuries and a 3D image that was not representative of the victim's injury." Peterman's Brief, at 3. Peterman asserts the photographs and image "were so highly prejudicial that any probative value was outweighed" by the prejudicial impact and their admission denied him a fair trial. Id.
The Honorable Meagan Bilik-DeFazio presided at trial.
"The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion." Commonwealth v. Reid , 627 Pa. 151, 99 A.3d 470, 493 (Pa. 2014). An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Davido , 106 A.3d 611, 645 (Pa. 2014).Commonwealth v. Woodard , 129 A.3d 480, 494 (Pa. 2015).
Admission of potentially inflammatory photographs is governed by the following two-step analysis:
First, a trial court must determine whether the photographs are inflammatory. If not, they may be admitted if they have relevance and can assist the jury's understanding of the facts. If the photographs are 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. Pruitt , 951 A.2d 307, 319 (Pa. 2008) (citation omitted). Additionally, "the fact that a medical examiner can describe the victim's wounds to the jury does not render photographs of those wounds irrelevant." Commonwealth v. Haney , 131 A.3d 24, 38 (Pa. 2015) (quotations and citation omitted).
An inflammatory photograph "must be of such a gruesome nature or be cast in such an unfair light that it would tend to cloud an objective assessment of the guilt or innocence of the defendant." Commonwealth v. Dotter , 589 A.2d 726, 729 (Pa. Super. 1991) (citation and quotation omitted). Here, at issue are two photographs and one 3D image. Commonwealth Exhibits 2, 3, and 6. One photograph, Commonwealth Exhibit 2, showed the victim attached to tubing and with a collar to support her head. The second photograph, Commonwealth Exhibit 3, showed swelling in the right femur. The Commonwealth argues Peterman "erroneously asserts that the victim's injuries are not portrayed in the hospital photographs of her." Commonwealth Brief, at 25. We agree.
Having viewed the photographs, we conclude the trial court committed no abuse of discretion in admitting these photographs and 3D image, which we find to be non-inflammatory and relevant to show the nature and extent of the victim's injuries. Even accepting, arguendo, Peterman's argument that the photographs are inflammatory, we would find this issue meritless since the photographs were highly probative as they related to the element of serious bodily injury. See 18 Pa.C.S. § 2702(a)(1). As to Peterman's argument that the 3D image was not representative of the fracture because "Dr. Berger testified the image reflects the victim had a fracture on the left side of her skull while all medical reports indicate the fracture was on the right side of the temporal skull," Dr. Berger explained the image was simply "a different view of the same 3D [imaging technology]," and the image was not flipped." N.T., 12/1-5/2014, at 235, 238. Accordingly, we find no abuse of discretion and, therefore, reject Peterman's third claim.
In his fourth issue, Peterman contends the trial court abused its discretion in precluding Peterman's cross-examination of Brandy Trout regarding Fair's post partum depression. Peterman argues he attempted to have Trout, an assessment caseworker with the Westmoreland County Children's Bureau, testify that she received information that Fair may have post partum depression. Peterman's Brief at 4. See N.T., 12/1-5/2014, at 181. The Commonwealth interposed an objection and, following a sidebar conference, the trial court found that the question called for speculation, and ordered that the question be stricken and instructed the jury to disregard it. See N.T., 12/1-5/2014, at 184-185.
As we have already stated, the admission of evidence is within the discretion of the trial court. See Woodard , supra. Here, Peterman attempted to question Trout regarding an anonymous phone call that provided information that Fair may have been suffering from post partum depression. See N.T., 12/1-5/2014, at 184. Such testimony would have been hearsay. Furthermore, as the trial court noted, since there was no expert testimony to explain post partum depression, the proffered testimony "would only call for speculation." Id. We find no abuse of discretion in the trial court's ruling. Accordingly, no relief is due on this issue.
In his fifth issue, Peterman contends the trial court abused its discretion in permitting the testimony of Trooper David Leonard regarding statements made by Peterman to Fair "as an exception to hearsay in furtherance of a conspiracy." Peterman's Brief, at 5. Specifically, Trooper Leonard testified concerning his interview with Fair, and her statements relating what Peterman said to her about the purported collapse of the bassinet. We conclude this testimony was permissible hearsay.
Pennsylvania Rule of Evidence makes hearsay within hearsay permissible if each part of the combined statements falls within an exception to the hearsay rule. See Pa.R.E. 805. Fair's statements to Trooper Leonard are admissible as an admission by a party opponent under P.R.E. 803(25)(A). Peterman's statements to Fair are admissible under the co-conspirator exception to the hearsay rule, Pa.R.E. 803(25)(E). The conspiracy here involved endangering the welfare of the child through a course of conduct that involved failing to seek medical treatment. In this regard, the testimony at issue involved Peterman's explanation to Fair of the bassinet collapse and their mutual satisfaction that the victim appeared fine and they needed to do nothing further. N.T., 12/1-5/2014, at 421. We find no abuse of discretion in the trial court's ruling. Therefore, this issue fails to warrant relief.
Pennsylvania Rule of Evidence 803(25) provides, in pertinent part:
(25) An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) Was made by the party in an individual or representative capacity;
...
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement may be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Pa.R.E. 803(25)(A), (E).
This testimony contrasted with earlier witnesses' testimony that, at the hospital on October 20, 2012, both Peterman and Fair mentioned the unconfirmed October 17, 2012, bassinet collapse as a possible source of trauma. Id. at 345, 392.
Next, Peterman claims the trial court abused its discretion in allowing the display of the victim's bassinet to the jury. Peterman asserts "neither defendant said it was the cause" of the victim's injuries. See Peterman's Brief, at 6.
As already stated, the applicable standard of review governing the admission of evidence is abuse of discretion. During the trial, Dr. Berger testified "I always ask families specific questions; can you think of any other trauma, what about this injury. So, that's what I did, I asked them. [Peterman] at one point brought up the issue of the bassinet falling." N.T., 12/1-5/2014, at 206. Dr. Berger further testified that Peterman brought the bassinet to show her. See id. at 207-208.
We find no abuse of discretion in the trial court's ruling that the bassinet could be displayed to the jury to assist them in determining "whether or not [the bassinet] could have caused the injuries." Id. at 513. Furthermore, Peterman fails to present any support for his argument that the evidence was prejudicial and exceeded any probative value, thereby denying him a fair trial. See Peterman's Brief, at 6. In any event, we would reject such arguments as meritless in light of the issue before the jury concerning the cause of the victim's injuries. Therefore, this issue warrants no relief.
In his seventh issue, Peterman asserts the trial court abused its discretion in "not allowing [Peterman] to cross examine [Fair] on prior bad acts." Peterman's Brief, at 6. Peterman merely states that due to this denial he "was not able to zealously defend his case which denied him a fair trial." Id. at 7. Peterman does not identify what bad acts by Fair he sought to introduce, where in the record he proffered the bad acts evidence, where the trial court made its ruling, or where an objection preserved the issue for review. See Pa.R.A.P. 2119(c) ("Reference to the record"), 2119(e) ("Statement of place of raising or preservation of issues"); see also Commonwealth v. Williams , 980 A.2d 667, 671 (Pa. Super. 2009) (noting that under the rules of appellate procedure, an appellant must specify where in the record a claim on appeal was preserved).
We have explained that "it is not the responsibility of this Court to scour the record to prove that an appellant has raised an issue before the trial court, thereby preserving it for appellate review." Commonwealth v. Baker , 963 A.2d 495, 502 n.6 (Pa. Super. 2008). Accordingly, we conclude this issue is waived.
In Peterman's eighth issue, he challenges the trial court's denial of his motion for judgment of acquittal at Count 2, conspiracy to commit aggravated assault. Peterman's ninth issue is a claim that the verdicts for aggravated assault and conspiracy to commit aggravated assault were against the weight of the evidence. In his tenth issue, he challenges the sufficiency of the evidence to sustain his convictions for aggravated assault and conspiracy to commit aggravated assault.
In her opinion authored in support of the denial of post-sentence motions, the Honorable Meagan Bilik-DeFazio set forth the standards of review and relevant law, and thoroughly addressed these issues. See Trial Court Opinion, 8/17/2015, at 15-21. As our review leads us to confirm, without hesitation, that there is no basis upon which to overturn the trial court's determinations, we adopt Judge Bilik-DeFazio's opinion as dispositive of Peterman's eighth, ninth, and tenth claims.
Finally, Peterman claims the trial court abused its discretion in denying his request for a mistrial "when the jury foreperson stated the jury was hopelessly deadlocked, unable to reach a verdict and did not want to negotiate any further." Peterman's Brief, at 10.
"The amount of time a jury is kept together to deliberate is within the discretion of the trial judge, and that decision will only be reversed for an abuse of discretion." Commonwealth v. Smith , 131 A.3d 467, 475-76 (Pa. 2015). In Commonwealth v. Johnson , 668 A.2d 97 (Pa. 1995), the Pennsylvania Supreme Court listed some factors to consider when determining whether the trial court abused its discretion: "the charges at issue, the complexity of the issues, the amount of testimony to consider, the length of trial, the solemnity of the proceedings and indications from the jury on the possibility of reaching a verdict." Id. at 108.
The record reflects that the jury recessed at 3:35 P.M. and reconvened at 5:38 P.M. with two questions and recessed again at 5:47 P.M. See N.T., 12/1-5/2014, at 842, 849. At 9:22 P.M. the jury returned to the courtroom and indicated in a message to the trial judge that the jury was deadlocked as to at least one charge. Id. at 849. Upon being questioned by the trial judge, the foreperson told the judge the jury did not need any additional or clarifying instructions, and there was not a reasonable possibility of the jury reaching a unanimous verdict. Id. at 851-852. The foreman also indicated to the trial judge he did not believe additional time would be helpful. Id. at 852. Thereafter, trial court instructed the jury to resume deliberations, and Peterman did not object to the court's instruction. The proceedings recessed at 9:37 P.M. and reconvened at 9:54 P.M. when the jury returned with a question. Id. at 861. The proceedings recessed at 10:00 P.M. and reconvened at 10:32 P.M., with the return of the jury's verdicts. Id. at 865.
On this record, we discern no abuse in the court's decision to request the jury to give further consideration to the evidence and charge of the court, rather than to grant the extreme remedy of a mistrial. See Smith , supra , 131 A.3d at 469 ("A mistrial is an extreme remedy that is required only where the challenged event deprived the accused of a fair and impartial trial."). At the time the jury communicated its inability to reach a unanimous decision on at least one charge, they had been deliberating for less than six hours following a jury trial that lasted from December 2, 2014 to December 5, 2014. While there were two defendants, the charges were not so complex that the jury could not reach a verdict. Accordingly, we reject Peterman's final issue.
Having reviewed the issues by Peterman, and finding them to be meritless or waived, we affirm the judgment of sentence.
Judgment of sentence affirmed.
In the event of further proceedings, the parties are directed to attach a copy of the trial court's opinion of August 17, 2015.
Judge Shogan joins this memorandum.
Justice Fitzgerald concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/8/2016
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