Opinion
907 WDA 2020 J-S24044-21
09-27-2021
COMMONWEALTH OF PENNSYLVANIA v. JOHN P. STIVER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37
Appeal from the Judgment of Sentence Entered July 31, 2020 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07- CR-0001897-2018
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Appellant John P. Stiver appeals from the judgment of sentence of life imprisonment entered in the Court of Common Pleas of Blair County on July 31, 2020, following his convictions of first-degree murder and numerous, related offenses after a five-day jury trial which commenced on January 27, 2020, and ended on January 31, 2020. Following a careful review, we affirm.
On July 26, 2018, after an unsuccessful drug deal which had occurred earlier that day, Appellant shot and killed David Hoover. The trial court set forth the relevant facts leading up to the homicide as follows:
This case boils down to the Appellant, Dillion Bryan and Edward "Cowboy" Clemens lying in wait for Mark Adams and the decedent, David Hoover, in the church parking lot at Bethany Lutheran Church. On July 26, 2018 at approximately 2:16 p.m., there was a prior drug transaction at the Sheetz Store on Chestnut Avenue wherein Edward "Cowboy" Clemens rode with the Appellant to the Sheetz Store. Clemens entered the store and made a drug transaction with David Hoover in the men's restroom. The agreement was that Clemens would provide an 8 ball of cocaine for $250. Within the Sheetz Store, Clemens obtained the $250 from Hoover and also provided two Klonopin pills for $10. The two Klonopin pills came from the Appellant as there were prior arrangements between Clemens and the Appellant to obtain such Klonopins, including specifically a text message about obtaining "pins". It was the intent of both Clemens and the Appellant to "burn" Hoover. They had no intent to provide him the 8 ball of cocaine on the date in question. Clemens confirmed that the Appellant was part of the plan to burn Hoover. Clemens claimed that Hoover had stolen $360 from an envelope within his residence at a prior time. Clemens took the $250, returned to [Appellnt's] vehicle, and they drove away. [R.R. # 47, E. Clemen's testimony, 1/28/20, pp. 111-114]. Hoover went to Mark Adam's vehicle and waited. Clemens had told him to wait and that he would be back in approximately 15 minutes. [R.R. #47, M. Adams, 1/28/20, pp. 50-53].
After Hoover and Adams waited about 30-45 minutes, they realized that they had been burned. Hoover tried to call Clemens twenty-five (25) times without success. [R.R. # 54, Detective D. Dey, 1/29/20, pp. 184-189; [R.R. #45, Sergeant Merritts, 1130/20, p. 101], At that time, Adams returned to work. [R.R. #47, M. Adams, 1/28/20, pp. 53-54].
After Adams got off work at 4:00 p.m., he picked up Hoover and they drove through Altoona looking for Clemens with the intent to get their money back. They found Clemens with 2 other people (including the Appellant) in an alley at Third Avenue. Adams revealed to Hoover that he had a bat in the trunk of his white Chevrolet Malibu. Hoover retrieved the bat and walked over toward Clemens and his two companions. Clemens yelled "I'll get your money", at which time the other two individuals (the Appellant and Bryan) got into the Ford Fusion and left. [R.R. #47, M. Adams, 1/28/20, pp. 54-60]. There was ultimately a high speed chase through Altoona wherein Adams and Hoover lost the Appellant and Clemens. [R.R. #47, M. Adams, 1/28/20, p. 60]. The Appellant ultimately drove to the church parking lot and parked the vehicle. Clemens was walking along the alley and then hid behind a dumpster. He also hid hypodermic needles, which were later found by police. [R.R. # 47, Patrolman Trent, 1/28/20, pp. 19-20]; [R.R. # 53, Patrolman M. Angermeier, 1/27/20, p. 188]. When the Appellant arrived on scene and parked his vehicle,
Clemens walked toward the vehicle. The Appellant got out of the vehicle, went to his trunk, obtained the shotgun and put it in his backseat. [R.R. #45, Sergeant Merritts, 11/30/20, pp. 92-93]. The Appellant admitted this in his statement to Sergeant Merritts. The white Chevrolet Impala, in which Adams was driving and David Hoover was a passenger, then stopped in the alley by the parking lot. [R.R. # 47, M. Adams, 1/28/20, pp. 62-63]. Hoover got out of the vehicle, walked around the back of the Appellant's blue Ford Fusion, went along the passenger side, carrying a baseball bat. Hoover did not possess a gun. At no time did Hoover enter the vehicle, nor attempt to enter the vehicle, nor attempt to remove the Appellant or Bryan from the vehicle. At no time did Hoover threaten anyone. The Appellant subsequently backed up his vehicle, reached out the driver's window and shot Hoover with the 12-gauge shotgun that he obtained from his father's residence. The Appellant then drove away at a high rate of speed. [R.R. #47, M. Adams, 1/28/20, pp. 63-67, 81-82].
Clemens confirmed that when he got back into the blue Ford Fusion after the incident (which he claimed he did not witness), that the Appellant stated "I killed him," referring to Hoover. [R.R. #47, E. Clemens, 1/28/20, p. 119].
The forensic pathologist, Dr. Kevin Whaley, testified that Hoover was approximately 10 to 12 feet away from the Appellant when the shot occurred. Hoover subsequently fell to the ground and laid dying in the parking lot, surrounded by a pool of blood. [R.R. #54, Dr. Whaley, 1129120, pp. 145, 158-161]. These events were confirmed by the testimony of Mark Adams (whom the jury found to be a credible witness), the surveillance videos of neighbors, and as re-created by the computer generated animation (CGA). The entire incident lasted only approximately 40 seconds. After the shooting, the Appellant was observed speeding down an alleyway, captured by surveillance video. [R.R. #47, Patrolman G. Trent, 1/28/20, p. 32; M. Adams, 1/28/20, p. 67]; [R.R. #45, Sergeant Merritts, 1/30/20, p. 115]. Bryan was in the Appellant's car. An individual who appeared to be Clemens was seen running from the scene. Adams drove his white vehicle around Hoover's body, out the alley, then took a left onto Second Avenue and parked. [R.R. #46, M. Adams, 1/31/20, pp. 37-38]. Adams called 911 and waited on scene until the police arrived. [R.R. #47, M. Adams, 1/28/20, pp. 67-68, 72]; [R.R. #53, Patrolman M. Miller, 1127120, pp. 122-124]; [R.R. #45, Sergeant Merritts, 1/30/20, p. 79].Trial Court Opinion, filed 3/26/21, at 86-90.
On February 11, 2020, Appellant filed his Post-Trial Motion. Contained therein was a "Motion for a Mistrial based on a Brady Violation" and "Motion to Dismiss Criminal Charges Due to Prosecutorial Misconduct." On February 24, 2020, Appellant filed his Amended Post-Trial Motion wherein he added subsections entitled "Prejudiced Juror Should Not Have Been Allowed to Deliberate" and "Motion for Judgment Notwithstanding the Verdict." Following a hearing on July 7, 2020, the trial court denied Appellant's Post- Trial Motions along with Appellant's Petition to Reopen on July 30, 2020.
Brady v. Maryland, 373 U.S. 83 (1963).
Appellant was sentenced on July 31, 2020, to life in prison and concurrent prison terms for his non-merging convictions. On August 26, 2020, Appellant filed a timely Notice of Appeal. The trial court ordered Appellant to file a concise statement of matters complained of on appeal on August 27, 2020, and Appellant complied on September 17, 2020, at which time he presented fourteen (14) issues for the trial court's review.
In his brief, Appellant presents the following Statement of the Questions Involved:
I. Whether the denial of court-appointed experts to an indigent defendant in a self-defense case to challenge the positions and shot trajectory deprived [Appellant] of his Fifth Amendment Rights and fundamental Due Process.
II. Whether the trial court erred in allowing the Commonwealth to present a Computer-Generated Animation solely based on its version of the incident after denying an indigent [Appellant's]
request for a similar opportunity of experts given the severity of the charges and complexity of the evidence.
III. Whether failing to preserve exculpatory evidence - and denial of opportunity to introduce evidence of Brady violation - violated [Appellant's] Due Process rights.
IV. Whether impermissible juror bias and prejudgment of guilt deprived [Appellant] of a fair trial.
V. Whether introduction of ancient convictions to impeach a defense witness was prejudicial error.
VI. Whether denying application of the Castle Doctrine to [Appellant] using deadly force in self-defense from an Aggressor with deadly weaponry while occupying his vehicle was erroneous.
VII. Whether the exclusion of evidence regarding a witness' mental health condition was reversible error.
VIII. Whether introduction of gruesome and inflammatory autopsy photographs lacking probative value was prejudicial error.
IX. Whether the denial of severance of charges unduly prejudiced Mr. Stiver.
X. Whether the denial of judgment notwithstanding the verdict was error where the evidence was insufficient to establish guilt of murder to shock one's conscience requiring reversal.Brief for Appellant at 8-9.
This Court reviews each of Appellant's issues under the following standards of review:
Appellant's first issue challenges the trial court's decision not to appoint him an expert although he was an indigent defendant. In criminal matters, our standard of review of challenges related to the appointment of an expert witness for the defense is as follows:
The provision of public funds to hire experts to assist in the defense against criminal charges is a decision vested in the sound discretion of the [trial] court and a denial[, ] thereof[, ] will not be reversed absent an abuse of that discretion.Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009). Moreover,
[i]t is well-established that indigent defendants have a right to access the same resources as non-indigent defendants in criminal proceedings. 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.Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa.Super. 2016) (citations and quotation marks omitted), appeal denied, 145 A.3d 724 (Pa. 2016). The Commonwealth, however, "is not obligated to pay for the services of an expert simply because a defendant requests one." Konias, 136 A.3d at 1020-1021 (citation omitted). Rather, the defendant must demonstrate "the content and relevancy of the proposed expert testimony before such a request will be granted." Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.Super. 2005) (citation omitted). A request for an expert witness, whose necessity is based upon mere speculation as to the assistance the expert will provide to the defense, does not warrant the appropriation of public funds. Commonwealth v. Harris, 703 A.2d 441, 449 (Pa. 1997), cert. denied, 525 U.S. 1015 (1998).
Appellant's second, seventh and eighth issues challenge the trial court's evidentiary rulings. The following standard governs this Court's review of the admissibility of evidence:
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.
Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa.Super. 2011) (quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006) (en banc ) (internal citations omitted)).
The admission of demonstrative evidence, like a computer-generated animation, requires a trial court to weigh the possible probative value and prejudicial effects of the animation. This is a matter within the discretion of the trial judge which this Court will not overturn absent an abuse of that discretion. See Commonwealth v. Serge, 586 Pa. 671, 682, 896 A.2d 1170, 1177 (2006); Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856, 858 (1973).
Furthermore, our Supreme Court has explained that
[w]hen a witness suffers from a mental disability relevant to his or her ability to accurately observe, recall or report events, the jury must be informed of the disability in order to assist it in properly assessing the weight and credibility of the witness's testimony. The evidence can be said to affect credibility when it shows that the witness's mental disorganization impaired his or her capacity to observe an event at the time of its occurrence, to maintain a clear recollection of it, or to communicate the observation accurately and truthfully at trial.Commonwealth v. Davido, 630 Pa. 217, 260, 106 A.3d 611, 637 (2014) (citations omitted).
When considering the admissibility of photographs of a homicide victim, which by their very nature can be quite disturbing, the trial court must engage in a two-step analysis:
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. Pruitt, 597 Pa. 307, 327, 951 A.2d 307, 319 (2008) (internal brackets and citation omitted). As the Supreme Court recognized, photographic images of a homicide victim are often relevant to determining the intent element of the crime of first-degree murder. Id.
Thirdly, Appellant asserts his due process rights were violated as a result of the Commonwealth's failure to preserve and provide him with certain exculpatory evidence. This issue presents a question of law, for which our standard of review is de novo and our scope of review is plenary." Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa.2020). Our Supreme Court summarized the law relevant to the adjudication of such claims as follows:
The law governing alleged Brady violations is well-settled. In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, and that the duty may encompass impeachment evidence as well as directly exculpatory evidence. Furthermore, the prosecution's Brady obligation extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution.
On the question of materiality, the Court has noted that such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Thus, there are three necessary components that demonstrate a violation of the Brady strictures: the evidence was favorable to the accused, either because it is exculpatory or because it impeaches; the evidence was suppressed by the prosecution, either willfully or inadvertently; and prejudice ensued.Commonwealth v. Lambert, 584 Pa. 461, 470-71, 884 A.2d 848, 853-54 (2005).
Next, Appellant sets forth a biased juror claim as a result of Juror Number Eleven's statements made at the outset of the last day of trial. In this regard, this Court has stated the following:
"The decision to discharge a juror is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion." Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 70 (1994). "This discretion exists even after the jury has been [e]mpanelled and the juror sworn." Id. (emphasis added). Our Supreme Court explained that "a finding regarding a venireman's impartiality 'is based upon determinations of demeanor and credibility that are peculiarly within a trial [court]'s province. ... [Its] predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record.'" Smith, 540 A.2d at 256 (quoting Wainwright v. Witt, 469 U.S. 412, 428-29, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). It is the appellant's burden to show that the jury was not impartial. Commonwealth v. Noel, 629 Pa. 100, 104 A.3d 1156, 1169 (2014). Further, this Court has found that per se prejudice does not result where a juror becomes upset during the trial. See Commonwealth v. Pander, 100 A.3d 626, 632 (Pa.Super. 2014) (en banc ).
In Commonwealth v. Briggs, [608 Pa. 430, 12 A.3d 29 (2011)] our Supreme Court set forth the standard for prospective juror disqualification:
The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor. ... It must be determined whether any biases or prejudices can be put aside on proper instruction of the court. ... A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct or answers to questions.
608 Pa. 430, 12 A.3d 291, 333 (2011) (quoting Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 682 (2009)).
While most cases address the issue of prospective jurors, we have employed the same analysis in cases where a question arises about a juror's impartiality during trial. See Pander, 100 A.3d at 632 ("While Hale and the cases discussed therein involved juror challenges prior to trial, we find the discussion therein apt ...."); Carter, 643 A.2d at 70 ("Th[e trial court's] discretion exists
even after the jury has been [e]mpanel[ ]ed and the juror sworn.").Commonwealth v. Rush, 162 A.3d 530, 537-38 (Pa.Super. 2017) (emphasis in original, some brackets added).
In his fifth question, Appellant argues the trial court erred in permitting the Commonwealth to impeach a defense witness with numerous convictions, including burglary and theft, that occurred decades prior to trial. With regard to the impeachment of witnesses for prior offenses, this Court has observed that:
"[f]or the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict, or by plea of guilty or nolo contendere, shall be admitted if it involved dishonesty or false statement." Pa.R.E. 609(a). "Crimes involving dishonesty or false statement [are] commonly referred to as crimen falsi crimes." Commonwealth v. Moser, 999 A.2d 602, 607 (Pa.Super. 2010). "[C]rimen falsi involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud." Commonwealth v. Jones, 334 Pa. 321, 323, 5 A.2d 804, 805 (1939).Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.Super. 2011). If the conviction is more than ten years old, it "is admissible only if...its probative value substantially outweighs its prejudicial effect...and the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use." Pa.R.E. 609(b).
Next, Appellant posits the trial court erred in failing to allow Appellant to apply the Castle Doctrine to his alleged use of force in self-defense. In this regard, this Court has stated:
When a court instructs the jury, the objective is to explain to the jury how it should approach its task and the factors it should consider in reaching its verdict. In examining jury instructions, our standard of review is to determine whether the trial court committed a clear abuse of discretion or an error of law controlling the outcome of the case. A charge will be found adequate unless the issues are not made clear, the jury was misled by the instructions, or there was an omission from the charge amounting to a fundamental error. Moreover, in reviewing a challenge to a jury instruction, the entire charge is considered, not merely discrete portions thereof. The trial court is free to use its own expressions[, ] as long as the concepts at issue are clearly and accurately presented to the jury.Commonwealth v. Bradley, 232 A.3d 747, 759 (Pa.Super. 2020) (internal citations, quotations, and original brackets omitted).
Appellant further claims his charges for Possession with Intent to Deliver and Theft by Unlawful Taking should have been severed from the homicide charges. Our standard of review of the denial of a motion to sever is as follows: "Joinder and severance of separate indictments for trial is a discretionary function of the trial court; consequently, the trial court's decision is subject to review for abuse of that discretion." Commonwealth v. Brookins, 10 A.3d 1251, 1255 (Pa.Super. 2010), appeal denied, 610 Pa. 625, 22 A.3d 1033 (2011). In addition,
The traditional justification for permissible joinder of offenses or consolidation of indictments appears to be the judicial economy which results from a single trial. The argument against joinder or consolidation is that where a defendant is tried at one trial for several offenses, several kinds of prejudice may occur: (1) [t]he defendant may be confounded in presenting defenses, as where his defense to one charge is inconsistent with his defenses to the others; (2) the jury may use the evidence of one of the offenses to infer a criminal disposition and on the basis of that inference, convict the defendant of the other offenses; and (3) the jury may
cumulate the evidence of the various offenses to find guilt when, if the evidence of each offense had been considered separately, it would not so find.Commonwealth v. Janda, 14 A.3d 147, 155 (Pa.Super. 2011) (quoting Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981)). "Thus[, ] in arriving at a meaningful standard to guide the trial court in its exercise of discretion, and to permit appellate courts to determine whether the trial court abused this discretion, we must weigh the possibility of prejudice and injustice caused by the consolidation against the consideration of judicial economy." Id.
Finally, Appellant states that in light of all of the aforesaid, the trial court's failure to grant his motion for Judgment for Acquittal or Judgment Notwithstanding the Verdict constitutes reversible error and the matter should be remanded for a new trial. Specifically, Appellant avers he lacked the requisite mental state to commit murder. We consider this issue mindful of the following:
A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. 18 Pa.C.S.A. § 2502. Intentional killing is defined as "killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." Id. To establish the offense of first-degree murder, the Commonwealth must prove, (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. Commonwealth v. Padilla, 80 A.3d 1238, 1244 (Pa. 2013). For first degree murder, a killing is with malice if the perpetrator acts with an intent to kill; "it is the specific intent to kill which distinguishes murder in the first degree from lesser grades of murder." Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. 2000). "Specific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim's body." See Commonwealth v. Padilla, 80 A.3d 1238, 1244 (Pa. 2013).
A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.
The standard of review for claims of insufficient evidence is well-settled. With respect to such claims, we consider the evidence in the light most favorable to the Commonwealth as verdict winner. In that light, we decide if the evidence and all reasonable inferences from that evidence are sufficient to establish the elements of the offense beyond a reasonable doubt. We keep in mind that it was for the trier of fact to determine the weight of the evidence and the credibility of witnesses. The jury was free to believe all, part or none of the evidence. This Court may not weigh the evidence or substitute its judgment for that of the factfinder.Commonwealth v. Devries, 112 A.3d 663, 667 (Pa.Super. 2015) (citations omitted). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014).
We have reviewed the certified record including the transcripts from the five-day jury trial, Appellant's brief, the applicable law, and the ninety-five page, well-reasoned Opinion authored by the Honorable Timothy M. Sullivan of the Blair County Court of Common Pleas and filed on March 26, 2021, pursuant to Pa.R.A.P. 1925(a).
Upon doing so, we conclude that Judge Sullivan's Opinion precisely sets forth the relevant standards of review this Court must employ in analyzing each issue Appellant presents on appeal and meticulously and accurately disposes of each claim mindful of the same. Applying the applicable standards of review set forth above to the trial court's analysis, we discern no abuse of discretion or error of law.
Accordingly, we adopt Judge Sullivan's Opinion as our own and affirm the judgment of sentence on that basis. We direct the parties to attach the trial court's opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed.
Judge Kings joins the memorandum.
Judge Dubow files a concurring memorandum in which Judge King joins and President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
CONCURRING MEMORANDUM
DUBOW, J.
I agree with the Majority's disposition in this case and its reliance on the trial court's thorough analysis and reasoning. I write separately, however, to highlight those portions of the trial court's Opinion that I find dispositive.
Issue I - The trial court properly denied Appellant's request for the appointment of a forensic pathologist and a firearms/ballistics expert because Appellant did not question the cause or manner of death, or the location of the bullet entry into Victim's body. Rather, Appellant's defense was that he shot the Victim in self-defense. Moreover, Appellant did not specify to the trial court the manner in which the expert report was relevant or material to his claim of self-defense. See Tr. Ct. Op., dated Oct. 28, 2020, at 49-56, 59.
Issue 2: The court properly permitted the Commonwealth to introduce computer-generated animation ("CGA") because the police officer properly authenticated it and the CGA was relevant to depict accurately the Commonwealth's theory of the case. Also, the CGA aided the jury by showing the changing positions of Appellant and Victim during the confrontation and the trajectory of gunshot. Further, the trial court properly issued a cautionary instruction to jury. Id. at 60-67.
Issue 3: There was no Brady violation because it was not the police who obtained the video that Appellant claims was exculpatory, and the video was never in the possession of the Commonwealth. In addition, there was no evidence of bad faith or withholding by the Commonwealth. Moreover, the video did not capture Appellant's and the Victim's interaction during the confrontation. At most, the video shows that Victim carried a baseball bat and was cumulative of other evidence that the Victim had a bat in his hands during the confrontation. Finally, the presentation of the video would not have resulted in a different verdict. Id. at 19-21.
Issue 4: After Juror #11 told the tipstaff that she thought one witness had not testified credibly, the court conducted a colloquy of Juror #11, who testified under oath that she could still be fair and impartial and would hold the Commonwealth to its burden of proof. The juror did not share her conclusions with any other juror. Based on Juror 11's responses to court's questions under oath and the court's observations of her demeanor, the trial court properly concluded that Juror 11 could remain fair and impartial. Id. at 23-25.
Issue 5: The trial court properly exercised its discretion in permitting the Commonwealth to introduce evidence of a defense witness's crimen falsi convictions, which included 1976, 1986, and 2000 theft convictions in Pennsylvania as well as other out of state convictions. Since the prior convictions were convictions of the defense witness, and not Appellant, the prior convictions would not have smeared Appellant's character. Additionally, there was no other direct avenue for the Commonwealth to impeach the witness's credibility. As the trial court concluded, the probative value of the prior convictions substantially outweighed their potential prejudicial effect, and the court provided a proper limiting jury instruction. Id. at 30-35.
Issue 6: The "Castle Doctrine" did not apply in this case because there was no evidence that Victim unlawfully and forcefully entered Appellant's vehicle or attempted to do so or that Victim tried to remove Appellant from his vehicle. In addition, the Castle Doctrine does not apply when the occupied vehicle is being used for criminal activity and, here, there was evidence of a prior drug transaction and the evidence suggested that Appellant was engaged in criminal activity and used his vehicle to further that activity. See 18 Pa. C.S. § 505(b)(2.2)(iii) (where the actor is engaged in criminal activity or is using his vehicle to further criminal activity, the presumption provided in subsection 2.1, that an actor has a reasonable belief that deadly force is necessary to defend himself, is not applicable). Id. at 8-9.
Issue 7: The court properly exercised its discretion in precluding evidence of the mental health of a Commonwealth witness where the witness was competent to testify at trial. Although the witness had, at one time, been placed on suicide watch in prison and transferred to a mental health hospital, Appellant did not develop a record regarding when that event occurred in comparison to when the witness had the conversation with Appellant that was the subject of the witness's testimony. Id. at 69-70.
Issue 8: The court properly exercised its discretion in permitting introduction of autopsy photos where the Commonwealth agreed to crop and grayscale the photos to lessen the gruesome nature of the photos, and the court issued a cautionary instruction. The photos were relevant and probative to aid the jury's understanding of Victim's injuries and the cause/manner of death. Id. at 73-74.
Issue 9: The court properly denied Appellant's motion to sever his charges for PWID and theft from the remaining offenses. Even though the drug transaction happened several hours before the murder, evidence showed the crimes were of one continuous criminal episode; there was a logical and temporal relationship between the acts; the drug transaction that "went bad" formed the basis and explanation for everything that occurred later that day when Appellant confronted the Victim; and to sever the charges would have confused the jury. Id. at 82-83.
Issue 10: Sufficient evidence supported the First-Degree Murder conviction where it showed that Appellant and his cohorts were "lying in wait" for Mark Adams and Victim following a prior drug transaction that went bad. Evidence showed that Victim had previously stolen money from one of Appellant's cohorts, so they decided to "burn" Victim by not providing him with drugs for which the Victim had paid. When Victim realized that he had been cheated, he and Mark Adams drove to confront one of Appellant's cohorts. Appellant was there at the time and ultimately shot Victim with shotgun and drove away at high speed. Significantly, Appellant had two means of retreat from the confrontation which defeated his claim of self-defense. Thus, the evidence was more than sufficient to support the First-Degree Murder conviction. Id. at 86-95.
To the extent Appellant asserts a challenge to the weight of the evidence within his discussion of Issue 10, we conclude that Appellant waived it for failing to develop it beyond boilerplate case law and one conclusory sentence. See Appellant's Br. at 79-80.
Judge King joins the concurring memorandum. President Judge Emeritus Stevens concurs in the result.
[*] Former Justice specially assigned to the Superior Court.