Com. v. Hoyle, K. ( 2021 )

J-S50031-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH HOYLE, :
:
Appellant : No. 1362 EDA 2020
Appeal from the Judgment of Sentence Entered October 19, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008019-2017
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH HOYLE, :
:
Appellant : No. 1363 EDA 2020
Appeal from the Judgment of Sentence Entered October 19, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008020-2017
BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 20, 2021
Kenneth Hoyle (Appellant) appeals nunc pro tunc from the October 19,
2018 judgments of sentence of two consecutive terms of life incarceration,
without the possibility of parole, imposed after a jury convicted him of two
counts of first-degree murder and one count of possessing an instrument of
crime (PIC). Upon review, we affirm.
*Retired Senior Judge assigned to the Superior Court.
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Appellant’s charges stem from an incident “in the early morning hours
of July 16, 2017, [when] Appellant shot his [next-door] neighbor, Robert
DePaul, and DePaul’s female companion, August Dempsey, after a verbal
altercation.” Commonwealth v. Hoyle, No. 443 EDA 2019, unpublished
memorandum at 1 (Pa. Super. filed March 27, 2020). The trial court
thoroughly recounted the evidence presented at trial, as follows.
Police officer Brian Brent testified that he was at 4670 James
Street for a separate incident when he heard a man’s voice
yelling followed by a few gunshots from somewhere in the area.
Officer Brent headed in the direction of the gunshots3 and met
up with Officer Murray, who was also in the area. The officers
encountered Appellant’s wife, who “calmly” directed the officers
down a breezeway, where they discovered two victims, one male
and one female, with gunshot wounds to the head. A picture of
the position of decedents’ bodies, marked Commonwealth Exhibit
C-47[,] was shown to the jury.4 Notably, DePaul’s feet were not
on Appellant’s property[;] instead they were on the property of a
third neighbor[, located at 4713 James Street].
3 Appellant live[d] at 4711 James Street. DePaul lived at
4709 James Street. [Appellant shared a breezeway with
another individual who lived at 4713 James Street. The
shooting occurred in the breezeway between 4711 and
4713 James Street.]
4 C-47 shows DePaul laying [sic] facedown diagonally
across the breezeway. Dempsey is also laying [sic]
facedown and diagonally across the breezeway, her body is
draped over that of DePaul’s.
Officer Brent testified that Appellant approached him at the
crime scene and “calmly” said[,] “I’m the homeowner…[.] Y’all
took too long to come here [and] I shot them.” Officer Brent did
not see any weapons present on the victims.
A video was played for the jury that depict[ed] the decedents
walking across the front of their property onto and across
Appellant’s property[,] and then down the breezeway between
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Appellant’s house and the 4713 house. The video does not show
the actual [shootings]. The last camera to capture the decedents
shows DePaul walk down the breezeway approximately forty
seconds before Dempsey.
Police 911 tapes were also played for the jury. The first call
comes in July 16, 2017, at 1:29 [a.m., during which] Appellant’s
wife was requesting an officer to 4711 James Street because her
neighbor from 4709 was drunk and destroying her fence. The
next call comes in [nine minutes] later at 1:38 [a.m., during
which] Appellant’s wife reported that her neighbor was exposing
his private parts to her and destroying her property. When asked
to provide a description of the neighbor she stated that “he is
white” and “my neighbor.” Appellant’s wife further requested
that police come to her property because her neighbor has a no
trespassing sign, and then said[,] “the cops gotta come here,
next thing he’s gonna pull a gun on us.” When told that police
[would] be sent, she requested that police “knock or ring the
doorbell” when they arrive[d].
The next call, at 1:47 [a.m.], was from Appellant demanding to
know why the police ha[d] not arrived yet. Appellant stated[,]
“my neighbor is ready to go over the fence and attack us.” He
also told the dispatcher “they better get out here.” The next call,
at 1:52 [a.m.], was from Officer Brent reporting a shooting at
his location.
At 1:53 [a.m.],8 Appellant called police dispatch and [told] them
to “go out on the front porch.” When asked by the dispatch if he
need[ed] the police or ambulance Appellant responded, “yea, I
shot both of them.” When asked who he shot, Appellant
responded[,] “the people that were attacking us, I told you to
get here, you didn’t come.” When asked if he shot two people,
Appellant responded[,] “the second round looks like it hit the
other person, I don’t know.” When asked if he shot males or
females, Appellant responded “a male and I think a female, I’m
not sure.” Appellant’s voice was very calm throughout the entire
conversation.9
8 There are three additional calls between the 1:52 [a.m.
call by] Officer Brent … and the 1:53 [a.m. call by]
Appellant[;] they do not contain any relevant information.
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9 All recordings after 1:56 [a.m.] are communications
between emergency [personnel].
Detective Donald Marano recovered an audiotape, and it was
played for the jury.10 The audiotape was taken from Appellant’s
property – Appellant had been recording his interactions with
DePaul. The majority of the tape is DePaul and Appellant
arguing, threatening each other, and trading expletives. DePaul
is clearly intoxicated and Appellant ha[d] a sarcastic tone and is
taunting DePaul.
10 The first speaker on the audiotape is DePaul, the first
female heard is Dempsey, the other male’s voice is
Appellant[,] and the other female’s voice is Appellant’s
wife.
During the quarrel, Appellant told DePaul to invest in fire
insurance because his house is going to burn down one day.
Shortly thereafter, DePaul told Appellant that he can choke the
[shit] out of him, to which Appellant responded, “any time Bob,
I’m standing right here now.” Appellant told DePaul that he
“better thank his little [ass], she held me back tonight.” [It
appeared Appellant was referring to Appellant’s wife holding him
back.] Appellant then told his wife[,] “I wanna take care of this
[mother fucker].”
The situation escalate[d] twenty three minutes and forty seconds
into the recording when DePaul told Appellant “why don’t you
open your gate and let me come up the alleyway.” Appellant
responded, “come on up, come on up.”
Appellant can be heard whispering something, the only audible
words are “stopping him” and “the property.” Appellant’s wife
asks Appellant if he is going to open the gate and he responded,
“no, I’m not going to open the gate, I want him caught in the
alleyway.” Appellant then directed his wife to “go get the
spotlight.”
DePaul can be heard saying[,] “alright, here I am Ken, hello
Ken.” Appellant’s wife then asked DePaul what he [was] doing on
their property. DePaul and Appellant’s wife yelled at each other
and DePaul said[,] “he asked me to come over.” [DePaul also
said that he was not on Appellant’s property, but was on the
neighbor’s property and neutral property. DePaul continued to
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ask Appellant’s wife where Appellant was, and she told him not
to worry about it. Simultaneously, Dempsey pleaded with DePaul
to leave.] Less than two minutes later, [] there is a loud noise,
which was the sound of trashcans being knocked over. Ten
seconds later, a gun was fired a total of four time in eight
seconds. [Between the first shot and the next three shots,
Dempsey yelled, “Oh my fucking God! What the….”] After the
gunshots, Appellant can be heard saying something in the
background, but the words are inaudible. Police responders can
be heard two and a half minutes after the last gunshot was fired.
The recording ends a minute and a half later.
Detective Marano testified that the breezeway in which the
decedents’ bodies were found had a spotlight in it. Detective
Marano also secured a camera from inside Appellant’s residence.
The camera contained pictures taken by Appellant’s wife of the
decedents on the night of the murders. Notably, there are seven
pictures of DePaul standing in the breezeway before he was
shot. In each of the photographs[,] DePaul is standing on the
4713 house’s side of the breezeway. In Commonwealth Exhibit
61AF, Dempsey and DePaul are standing in the right frame of
the photograph, and three metal trashcans are upright in the left
frame of the photograph. In Commonwealth Exhibit 61AH,
DePaul’s right side of his body is visible in the foreground,
Dempsey can be seen walking away, and[,] in the background[,]
three metal trashcans are lying down across the breezeway.
Police [O]fficer Jacqueline Davis testified that she and her
partner[,] Officer Gregory Yatcilla[,] processed the crime scene.
Appellant’s backyard was separated from the breezeway, where
the victims’ bodies were found, by a gate, which was five feet,
two inches high, and locked. Officers recovered a bullet fragment
in the breezeway next to the victims’ bodies. Additionally, there
was blood on the fence post at the end of the breezeway that
divided Appellant’s backyard from the [backyard of the house at]
4713…. There was no blood on the top of Appellant’s gate or on
the ground in front of his gateway.
Inside Appellant’s house, officers discovered a revolver with four
spent casings and two live rounds still in the cylinder. In the
kitchen, tacked to the wall, was the criminal [history] of []
DePaul from the First Judicial District [of Philadelphia].
Additionally, the decedent and Appellant had adjoining
properties, with a fence dividing their respective backyards.
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Officer Davis testified that pieces of the fence were missing and
the broken parts were laying [sic] in Appellant’s backyard.
Dr. Albert Chu, Deputy Medical Examiner, testified that Dempsey
had been shot twice, once in the right side of her forehead and
once in the left buttock. DePaul also suffered two gunshot
wounds, one to the center of his forehead and one to the left
side of his lower back. The exit wound for the gunshot to
DePaul’s back showed markings that resembled the pattern of
the tank top DePaul was wearing when he died. Dr. Chu
explained that when the portion of a body that a bullet exits is
supported, for example on the ground, there are sometimes
markings around the exit wound that correspond to whatever
was pressed against the skin when the victim was shot.
Therefore, the markings surrounding the exit wound on DePaul’s
[chest] are consistent with DePaul[’s] being on the ground at the
time he was shot in the back. DePaul had injuries to his right
elbow and right hand that were consistent with blunt-force
trauma.13 Additionally, a toxicology test was performed on
DePaul, and his blood alcohol content was .262 at the time of his
death.
13 Dr. Chu agreed with Appellant’s counsel that these
injuries could have been caused by punching through a
wooden fence.
Police Officer John Cannon, from the Firearms Identification Unit,
testified that the bullet jacket recovered from the crime scene
was an expanding type jacket. Furthermore, all of the ballistic
evidence recovered from the crime scene and the decedents’
bodies matched the firearm recovered from Appellant’s home.
Appellant presented evidence. Nancy Jamison testified that
Appellant is her older brother, and that Appellant has a
reputation as being peaceful and law-abiding.
Police officer Brian Murray testified that, on July 17, 2017[,]
around 1:00 [a.m.], approximately one hour prior to the
murders, he was responding to another call in the neighborhood
and came in contact with DePaul. DePaul was intoxicated, yelling
loudly, generally, and then at him in a confrontational manner.
Officer Murray instructed DePaul to go into his house[.] DePaul
never approached Officer Murray.
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Furthermore, Officer Murray had contact with Appellant
immediately after the murders. Appellant was “very calm” and
“very stoic,” Officer Murray called him “shockingly calm for the
type of situation.” Appellant was cooperative with Officer Murray,
and told Officer Murray[,]
that he had shot both individuals that were laying [sic] on
his property. He stated that DePaul had been threatening
him[,] and that he gave multiple warnings to leave, …
which [DePaul had] refused. He stated he was fearing for
his safety and his wife’s due to their age and health, so
that he had shot them. And Appellant said … that he knew
the female was there but [he] didn’t realize that he had
shot her until he came around to approach [the police].
N.T., 10/18/2018[,] at 26-33.
Trial Court Opinion (TCO), 8/18/2020, at 2-9 (names altered; some
footnotes and record citations omitted).
Appellant was arrested on July 17, 2017, and charged in two
separate cases (pertaining to each victim) with the above-stated
crimes. His cases were consolidated and, at the close of his jury
trial on October 19, 2018, he was convicted of each offense with
which he was charged. Appellant was sentenced that same day
to the term of incarceration set forth supra. He filed a timely
post-sentence motion, which was denied on February 6, 2019.
Hoyle, No. 443 EDA 2019, unpublished memorandum at 1-2. Appellant filed
a single notice of appeal from his judgment of sentence, listing both docket
numbers. Accordingly, this Court quashed Appellant’s notice of appeal as it
violated Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and the
mandates of Pa.R.A.P. 341(a). Hoyle, No. 443 EDA 2019, unpublished
memorandum at 2-4.
On March 27, 2020, Appellant timely filed a petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking to
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reinstate his direct appeal rights. The PCRA court granted the petition, and
this nunc pro tunc notice of appeal followed. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.1 On appeal, Appellant raises three
issues for our review.
I. Was the evidence sufficient to support Appellant’s
convictions for first-degre[e] murder and [PIC] where the
Commonwealth failed to prove beyond a reasonable doubt
that Appellant did not justifiably act in self-defense?
II. Were Appellant’s convictions against the clear weight of
the evidence where an audio recording of the events
preceding the shooting, multiple 911 calls, and evidence
from the crime scene all corroborated Appellant’s claim
that he was justified in shooting [] DePaul?
III. Did the trial court err when it ruled that Appellant was not
entitled to present expert testimony to establish his state
of mind at the time of the shooting in support of his
justification defense?
Appellant’s Brief at 5 (capitalization altered).
We begin with Appellant’s challenge to the sufficiency of the evidence,
which we consider mindful of the following:
When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were
sufficient to prove every element of the offense beyond a
reasonable doubt. [T]he facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. It is within the province of the fact-finder to
1 We are troubled by Appellant’s incorporating by reference his post-
sentence motions in his Pa.R.A.P. 1925(b) statement. However, the trial
court was able to ascertain and address the issues raised by Appellant and,
thus, Appellant’s improper incorporation has not hampered our review.
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determine the weight to accord to each witness’s testimony and
to believe all, part or none of the evidence. The Commonwealth
may sustain its burden of proving every element of the crime by
means of wholly circumstantial evidence. As an appellate court,
we may not re-weigh the evidence and substitute our judgment
for that of the fact-finder.
Commonwealth v. Steele, 234 A.3d 840, 845 (Pa. Super. 2020) (citations
and quotation marks omitted).
Instantly, Appellant “does not deny that he intentionally shot []
DePaul, but maintains that his convictions for first-degree murder and [PIC]
cannot stand because the Commonwealth’s evidence failed to establish that
he was not acting in self-defense at the time of the shooting.” Appellant’s
Brief at 19.
If a defendant introduces evidence of self-defense, the
Commonwealth bears the burden of disproving the self-defense
claim beyond a reasonable doubt. The use of force against a
person is justified “when the actor believes that such force is
immediately necessary for the purpose of protecting himself
against the use of unlawful force” by the other person. 18
Pa.C.S.[] § 505(a). A self-defense claim thus entails three
elements: (1) the defendant reasonably believed that he was in
imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such
harm; (2) the defendant was free from fault in provoking the
difficulty which culminated in his use of deadly force; and (3) the
defendant did not violate any duty to retreat.
Steele, 234 A.3d at 846 (some citations and quotation marks omitted).
The Commonwealth sustains that burden of negation if it proves
any of the following: that the slayer was not free from fault in
provoking or continuing the difficulty which resulted in the
slaying; that the slayer did not reasonably believe that [he] was
in imminent danger of death or great bodily harm, and that it
was necessary to kill in order to save [him]self therefrom; or
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that the slayer violated a duty to retreat or avoid the danger.
Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (citations and
quotation marks omitted).
On appeal, Appellant relies on the 911 calls to establish that he
reasonably was in fear of death or serious bodily injury, attempted to de-
escalate the confrontation, and did not violate a duty to retreat, as he “was
on the porch of his home in the middle of the night while [] DePaul was in
the process of scaling his fence to advance upon him.” Appellant’s Brief at
21-22.
As detailed by the trial court, the jury had the benefit of hearing the
911 calls and the audiotape of the confrontation.
The audiotape revealed that Appellant consented to DePaul[’s]
coming onto his property, and then Appellant told his wife[,] “I
want him caught in the alleyway[,]” and “go get the spotlight.”
The jury was able to compare the audio of Appellant and his wife
taunting a drunken DePaul, with the 911 tapes, from the same
time frame, wherein Appellant and his wife were reporting to
police that they were in fear for their lives. The two recordings
were in direct contradiction. The evidence presented by the
Commonwealth showed that Appellant lured the decedents onto
his property in order to stage the murders as self-defense; and
that Appellant did not reasonably believe that deadly force was
necessary to protect himself against death or serious bodily
injury.
Furthermore, the decedents were unarmed, in direct
contradiction to Appellant’s wife’s claim that DePaul was going to
“pull a gun on [them].” Additionally, the decedents were shot in
the breezeway, prior to reaching Appellant’s locked gate. In fact,
all seven photos taken of DePaul by Appellant’s wife show
DePaul standing on the 4713 house’s side of the breezeway. This
evidence is corroborated by the crime scene photos[,] which
show DePaul laying [sic] diagonally across the breezeway, with
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his feet on the 4713 house side of the breezeway. All of the
photographic evidence refutes Appellant’s claim that DePaul was
climbing the gate. Lastly, Appellant shot both the decedents
twice – the shot to DePaul’s back hit[ting] him after he was
already lying on the ground.
TCO at 10-11 (names altered).
Viewed in the light most favorable to the Commonwealth, the evidence
was sufficient to disprove Appellant’s claim of self-defense. Namely,
Appellant was not free from fault in continuing the confrontation, as he
taunted DePaul and invited DePaul to his gate without the intention of going
outside to meet DePaul or opening the gate, but in order to trap DePaul in
the breezeway. Based upon Appellant’s statements and demeanor during
and after the shooting, his luring of DePaul to his gate, DePaul’s not
displaying a weapon, and DePaul’s not attempting to enter Appellant’s
property, the jury was free to conclude that Appellant was not reasonably in
fear of imminent danger. Moreover, Appellant could have remained inside his
home instead of walking outside to shoot DePaul and Dempsey. Accordingly,
Appellant is not entitled to relief on this claim.2
2 Appellant argues in the last paragraph of this argument section that even if
the Commonwealth sustained its burden of disproving self-defense, his
conviction of first-degree murder for shooting Dempsey should be
overturned because the Commonwealth failed to prove beyond a reasonable
doubt that Appellant intentionally shot her. Appellant’s Brief at 23-24.
Appellant failed to raise this claim in his court-ordered concise statement,
and thus the trial court was unable to address it. Accordingly, it is waived.
See Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020)
(citations omitted) (“It is well-established that any issue not raised in a Rule
1925(b) statement will be deemed waived for appellate review. Further, an
(Footnote Continued Next Page)
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Appellant next argues that the verdict was against the weight of the
evidence. Specifically, he contends that “the fact that he repeatedly called
the police for help in removing [] DePaul from his premises on the night of
the shooting so undermines confidence in the jury’s rejection of his
justification defense that a new trial is required in the interests of justice.”
Appellant’s Brief at 25. Our standard of review of this claim is as follows:
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. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
(citations and emphasis omitted).
“[T]he finder of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.” Commonwealth v.
Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citation
omitted). Additionally, the Commonwealth “may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Colon-Plaza, 136 A.3d 521, 526 (Pa.
Super. 2016) (citation omitted).
(Footnote Continued) _______________________
appellant’s concise statement must identify the errors with sufficient
specificity for the trial court to identify and address the issues the appellant
wishes to raise on appeal.”).
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Commonwealth v. Bright, 234 A.3d 744, 749 (Pa. Super. 2020) (citation
format altered).
The trial court rejected Appellant’s weight claim, concluding that “the
jury’s verdict did not shock one’s sense of justice.” TCO at 12 (quotation
marks omitted). Upon review, we conclude the trial court did not abuse its
discretion. The jury heard the 911 calls, the audio recordings of the
confrontation, and viewed the physical evidence. In weighing that evidence,
it was free to reject Appellant’s claim of self-defense and find, instead, that
Appellant committed the crimes as charged. Accordingly, Appellant is not
entitled to relief on this claim.
Finally, we address whether the trial court erred when it precluded
Appellant from presenting expert testimony to establish his state of mind at
the time of the shooting in support of his justification defense. Appellant’s
Brief at 29. We consider this claim mindful of the following:
[A]dmissibility of expert testimony is within the sound discretion
of the trial court and will not be reversed absent a clear abuse of
discretion. It has long been established that expert opinion
testimony is proper only as an aid to the jury when the subject
matter is distinctly related to a science, skill, or occupation
beyond the knowledge or experience of the average layman.
However, expert testimony may not be used to bolster the
credibility of witnesses because witness credibility is solely within
the province of the jury.
Commonwealth v. Pitts, 740 A.2d 726, 733 (Pa. Super. 1999) (citations
and quotation marks omitted).
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Psychiatric testimony has long been held admissible to prove a
defendant’s subjective belief that he or she is in danger of
imminent death or serious bodily injury. Commonwealth v.
McCloud, 455 A.2d 177, 179 (Pa. Super. 1983). See also
Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 1989)
(plurality) (holding that trial counsel was ineffective for failing to
present expert testimony on the battered woman syndrome as a
defense to homicide charges); Commonwealth v. Light, 326
A.2d 288 (Pa. 1974) (finding that psychiatric testimony was
admissible to show whether defendant acted out of an honest,
bona fide belief that he was in imminent danger at time he killed
victim for purposes of establishing defense of self-defense);
Commonwealth v. Sheppard, 648 A.2d 563 (Pa. Super. 1994)
(providing that testimony of paranoid personality disorder was
admissible to show if defendant had a bona fide belief he was in
danger in a homicide case, although denial of introduction of
such testimony by trial court was not fatal, as paranoid
personality disorder did not permit claim of imperfect self-
defense to be used to reduce offense from murder to voluntary
manslaughter); Commonwealth v. Miller, 634 A.2d 614 (Pa.
Super. 1993) (en banc) (holding that evidence of battered
woman syndrome was admissible in homicide trial as probative
evidence of defendant’s state of mind as it relates to a theory of
self-defense).
Id. at 734 (citation format altered).
By way of background, on September 13, 2018, Appellant gave notice
of his intent to present expert evidence of a mental health condition.
Specifically, Appellant proffered that, immediately prior to and at the time he
shot DePaul and Dempsey, he “was acting under the mental condition of
fear[,] which motivated his action.” Notice, 9/13/2018, at 1. On September
18, 2018, Appellant filed a motion in limine to admit expert opinion
testimony from Dr. Steven Samuel, a licensed psychologist, who examined
Appellant regarding Appellant’s subjective state of mind as to whether he
had an “honest, bona fide belief that he was in imminent danger.”
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Memorandum of Law in Support of Motion in Limine, 9/18/2018, at 3.
According to Dr. Samuel, Appellant’s evaluation did “not support the
conclusion that he is diagnosed with a psychological disorder.” Dr. Samuel’s
Report, 9/16/2018, at 11. Instead, Dr. Samuel concluded that Appellant shot
DePaul and Dempsey while “under the influence of extreme emotional
disturbance.” Id. at 12. As defined by Dr. Samuel,
[e]xtreme emotional disturbance is a state of mind in response
to and in the presence of grave provocation. It is, objectively, an
unreasonable fear whereas subjectively, i.e., in the mind of an
individual experiencing extreme emotional disturbance, the fear
is reasonable. This was Appellant’s state of mind at the time of
the shootings. He was agitated, irritable and overwhelmed[,] and
so afraid that he and his wife would be killed by DePaul that his
judgment and self-control w[ere] suddenly and temporarily
overcome.
Id. (names altered).
On September 21, 2018, Appellant’s motion in limine for expert
testimony regarding Appellant’s state of mind was denied. Th[e
trial] court ruled that the expert’s report contained no diagnosis;
there were inculpatory statements from Appellant within the
report; and Appellant’s state of mind at the time of the murders
was an issue for the jury to decide.
TCO at 13 (names and capitalization altered; citation omitted). The trial
court further explained its reasoning for denying the motion as follows.
Dr. Samuel reviewed all the audio evidence that was eventually
presented in this case and interviewed Appellant himself. The
interview with Appellant focused on Appellant’s personal history
with DePaul, and contained inadmissible hearsay statements by
Appellant regarding DePaul’s bad character.
Th[e trial] court had previously ruled that the evidence of
DePaul’s bad character for violence would only be admissible if
there was evidence presented that Appellant personally knew
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about it. Additionally, Dr. Samuel’s report placed a much greater
emphasis on the transcripts from the police calls made by
Appellant than the audio recording of the actual incident.
Dr. Samuel ultimately concluded that Appellant was suffering
from extreme emotional disturbance at the time of the murders.
However, Dr. Samuel failed to cite extreme emotional
disturbance as a recognized disorder in the Diagnostic and
Statistical Manual of Mental Disorders[]. For that reason, [the
trial] court found that Dr. Samuel’s report contained no
diagnosis. Because Dr. Samuel’s expert opinion did not contain a
diagnosis, and Dr. Samuel’s expert report was otherwise
inadmissible, th[e trial] court did not permit Dr. Samuel to
testify regarding Appellant’s state of mind during the murder.
Id. at 13-14 (names and capitalization altered; footnote omitted).
Appellant relies on Light to argue that the testimony was admissible
to show the subjective element of his state of mind at the time of the
shooting in support of his theory of self-defense. Appellant’s Brief at 32.
Appellant is correct that psychiatric testimony is generally admissible to
prove a defendant’s subjective state of mind in support of a justification
defense. However, Dr. Samuel’s report did not include an opinion about how
Appellant’s state of mind was affected by any mental disorder that Appellant
may have been suffering from in order to explain why Appellant subjectively
believed he was in imminent danger at the time of the shootings. Cf., e.g.,
Pitts, 740 A.2d 726 (considering report that Pitts suffered from post-
traumatic stress syndrome); Sheppard, 648 A.2d 563 (considering report
that Sheppard suffered from paranoid personality disorder); Miller, 634
A.2d 614 (considering report that Miller suffered from battered woman
syndrome). Rather, Dr. Samuel evaluated the evidence that would be
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presented at trial, as well as some evidence provided by Appellant that the
trial court had ruled inadmissible, and concluded that Appellant was
subjectively afraid, though his fear was unreasonable. As such, it would not
aid the jury regarding a subject matter beyond the knowledge or experience
of the average layperson, and it was not admissible as expert testimony.
See Pitts, 740 A.2d at 733. Without an underlying condition for Dr. Samuel
to explain to the jury as to why Appellant’s fear was subjectively reasonable,
it was solely within the jury’s province to weigh the evidence and determine
whether Appellant subjectively believed he was in imminent danger.
Moreover, the proffered testimony was inadmissible expert testimony, as it
bolstered the credibility of Appellant’s statements to police that he was in
fear for his and his wife’s lives immediately prior to and during the shooting.
Id. Accordingly, we conclude that the trial court did not abuse its discretion
in excluding Dr. Samuel’s testimony.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision of this
case.
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J-S50031-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2021
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