Com. v. McLaughlin, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMANTHA MCLAUGHLIN :
:
Appellant : No. 3334 EDA 2017
Appeal from the Judgment of Sentence August 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004617-2016
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 12, 2021
Appellant Samantha McLaughlin appeals from the judgment of sentence
imposed following her jury trial conviction of aggravated assault—causing
serious injury, aggravated assault—deadly weapon, simple assault—attempt
to cause bodily injury, and possession of an instrument of crime.1 On appeal,
she challenges the weight and sufficiency of the evidence supporting her
conviction and argues that the trial court erred when it admitted hearsay
evidence and improper leading questions during trial. We affirm.
We state the facts as set forth by the trial court:
The underlying charges stem from the report that Appellant []
severely lacerated the throat, neck and face of victim, Darlene
Davis when [Appellant] struck the victim over her head and sliced
her neck with a beer bottle on February 14, 2016 inside Fiddler’s
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a)(1); 2702(a)(4); 2701(a)(1); and 907 respectively.
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Green Tavern located at 7356 Frankford Avenue in the lower
Northeast section of Philadelphia. At the time of the attack, the
victim had been blissfully dancing in a front corner of the bar
unaware of the impending danger.
At trial, a video surveillance tape retrieved from the bar was
repeatedly played for the jury which corroborated eyewitness
accounts of the assault. That video unequivocally displayed the
unabated stalking movement of Appellant from the back of the
establishment through a crowd of bar patrons followed by the
striking and then stabbing motion upon reaching the victim. Ms.
Davis [has] fortunately survived the assault due to the immediate
aid of patrons that slowed the bleeding and emergency treatment
from responding medics followed by immediate transportation to
nearby Aria Hospital, Torresdale Division, where she received life-
saving surgery for her injuries. Those critical injuries included
severe lacerations to her face and neck coupled with substantial
blood loss.
To date, the victim has been disfigured from permanent scarring
the length of her throat to her chest. Multiple eyewitnesses and
the victim at the scene immediately reported to emergency
responders that Appellant was the one who stabbed the victim.
The acknowledged motivating factor for the assault stemmed from
at least one previous physical altercation between the victim and
her relatives with Appellant’s relatives.
* * *
. . . Over the course of trial, the Commonwealth introduced
compelling varied forms of direct and circumstantial evidence from
uniformed police officers, assigned investigators, the victim
Darlene Davis and other eyewitnesses. The Commonwealth and
the defense presented for full viewing numerous times the
recorded video feed that had been obtained from the Fiddler’s
Green Tavern showing various viewing during the time frames at
issue. A broken bottle neck shard of glass that had been
recovered among other broken glass pieces from the bar was
introduced. Analysts reported that no identifiable fingerprint had
been detected upon analysis. The swabs upon portions of the
bottle neck for DNA analysis were not analyzed. Witnesses on
behalf of Appellant also testified as to their version of events and
reflective of their view of Appellant’s character. Closing
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arguments and the final charges were presented in the morning
on May 8, 2016 and the jury returned verdicts later that day.
Trial Ct. Op., 9/7/18, at 1-3.
The jury found Appellant guilty of the aforementioned charges. The trial
court ordered a presentence investigation (PSI) report and a mental health
evaluation. On August 22, 2017, the court sentenced Appellant to five to ten
years of imprisonment followed by five years of probation for aggravated
assault—causing serious bodily injury, and one to five years of consecutive
confinement for possession of an instrument of crime. The court noted that
the charges of simple assault and aggravated assault—deadly weapon both
merged with aggravated assault—causing serious bodily injury. Appellant
timely filed a post-sentence motion challenging the sufficiency and weight of
the evidence.
On September 6, 2017, the trial court denied Appellant’s post-sentence
motion. Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued its opinion on
September 7, 2018.2 See Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the evidence was insufficient to sustain the verdicts
of aggravated assault, 18 Pa.C.S. § 2702 §§ A, F1, aggravated
assault 18 Pa.C.S. § 2702 §§ A, F2, poss instrument of crime
w/int., 18 Pa.C.S. § 907 §§ A, M1 and simple assault 18 Pa.C.S.
§ 2701 §§ A?
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2 On January 21, 2019, appellate counsel filed an application to withdraw. The
trial court appointed new counsel on September 24, 2020.
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2. Whether the verdicts were against the weight of the evidence
as the surveillance video clearly illustrates that [Appellant] did
not have a weapon, a bottle, in her hand?
3. Whether the verdicts were against the weight of the evidence
as the bottle recovered, the alleged weapon used did not have
[Appellant’s] fingerprints on the bottle?
4. Whether the verdicts were against the weight of the evidence
as the bottle recovered, the alleged weapon used did not have
any blood on the bottle?
5. Whether the trial court improperly allowed hearsay testimony
regarding witnesses testifying that [Appellant’s] brother said
that [Appellant] committed the crime outside the bar?
6. Whether the trial court improperly allowed hearsay testimony
regarding witnesses testifying that people were saying that the
defendant committed the crime?
7. Whether the trial court improperly allowed the prosecuting
attorney to lead witnesses and/or to testify regarding what the
surveillance film demonstrated despite repeated objections by
the defense?
Appellant’s Brief at 7-8.
Sufficiency of Identification Evidence Claim
Appellant’s first issue challenges the sufficiency of the identification
evidence supporting her conviction. See id. at 46, 34. She asserts that the
Commonwealth failed to establish that she was the attacker based on the
uncertainty of some eyewitnesses and the clarity of the surveillance video.
See id. at 35-36, 42-43, 45. Appellant claims that there was no physical
evidence tying her to the attack because the broken bottle used had no blood
or identifiable fingerprints. See id. at 37-38. Finally, Appellant argues that
the testimony failed to establish that she purposefully used a beer bottle to
strike and injure the victim. See id. at 49.
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We apply the following standard when reviewing a sufficiency claim:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In 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.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
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. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the
factfinder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
A person is guilty of aggravated assault if she:
(1) attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life;
* * *
(4) attempts to cause or intentionally or knowingly causes bodily
injury to another with a deadly weapon[.]
18 Pa.C.S. § 2702(a)(1), (4).
A person is guilty of simple assault if she “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another[.]” 18
Pa.C.S. § 2701(a)(1).
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Finally, a person is guilty of possession of an instrument of crime if she
“possesses an instrument of crime with intent to employ it criminally.” 18
Pa.C.S. § 907 (a). An instrument of crime is defined as “[a]nything used for
criminal purposes and possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have.” Id. at § 907.
“In addition to proving the statutory elements of the crimes charged
beyond a reasonable doubt, the Commonwealth must also establish the
identity of the defendant as the perpetrator of the crimes.” Commonwealth
v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (citation omitted).
Appellant’s claim relates solely to the sufficiency of the identification
evidence. Accordingly, we limit our discussion to the evidence of that element.
See Commonwealth v. Cain, 906 A.2d 1242, 1244 (Pa. Super. 2006)
(declining to address the sufficiency of evidence supporting every element
where an appellant only challenges identification evidence).
[E]vidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations and quotation marks omitted).
Here, in its 1925(a) opinion, the trial court concluded that “each guilty
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verdict was amply supported by overwhelming cumulative and corroborating
eyewitness testimony and physical evidence of Appellant’s liability.” Trial Ct.
Op. at 7. At trial, the Commonwealth introduced the testimony of Alexis Ortiz
who had been dancing with the victim when Appellant approached and then
struck the victim across the right side of her head with a bottle. See N.T.
Trial, 5/2/17, at 9-11. Mr. Ortiz had an unobstructed view of Appellant during
the attack and positively picked her photograph from an array shown to him
by police.3
The Commonwealth also introduced the testimony of Apostolos Vasiliou,
who saw Appellant swing the beer bottle at the victim. He did not see the
bottle connect with the victim’s body, but he testified that immediately after
the attack the victim was bleeding from the neck. See N.T. Trial, 5/3/17, at
35-36.
The victim’s paramour Julio DeLeon testified that after hearing a glass
bottle break, he turned around and saw the victim bleeding. He stated that
after asking her what happened, “she said Sam hit me in the head” and
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3 Appellant’s argument concerning Mr. Ortiz’s statement that the photo of
Appellant “looked like her” demonstrated uncertainty, and his different
descriptions of the color of the bottle with which Appellant struck the victim,
relate to the weight of the evidence. See Commonwealth v. Griffin, 65
A.3d 932, 939 (Pa. Super. 2013) (stating that an argument as to the
“credibility of the Commonwealth’s chief witness” is a challenge to the weight,
not the sufficiency, of the evidence); see also Commonwealth v. Davis,
799 A.2d 860, 864 (Pa. Super. 2002) (reiterating that weight and sufficiency
claims “are discrete inquiries”).
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“pointed towards the door” where Appellant had fled, escaping in a cousin’s
car before police arrived. Id. at 101.
As noted by the trial court,
[a]dditional eyewitness testimony evidence corroborated the
positive identification of the Appellant as the assailant, as well as
the motive and the deliberate method. These sources included
testimony from the victim’s friend Natasha McLean; an
independent, unbiased bar patron Shawn Horochiwsky; the
victim’s mother Nancy Davis; and finally by the victim Darlene
Davis. Each individual recounted their individual perspectives of
the attack that collectively supported the guilty verdicts.
Trial Ct. Op. at 13.
Finally, the Commonwealth also introduced a surveillance video of the
attack which depicted Appellant raise her arm upward and downward in a
striking motion and then lunging toward the victim’s head and neck areas. As
the trial court stated:
The only debatable portion of the video was whether the angle
and lighting provided a view of a bottle in [Appellant’s] hand at
the precise moment of striking and lunging. As to that single
point, evidence displayed the obvious jagged edge neck injuries
along with credible testimony from multiple eyewitnesses and the
victim herself along with the presentation of photographs showing
the resulting numerous shards of glass left at the scene and the
collected broken glass beer bottle neck supported the jury’s
determination that a beer bottle had been used by Appellant as a
deadly weapon to cause this victim serious bodily injury. The
decision of the jury as fact finder was fully supported by the
cumulative direct and circumstantial evidence presented from all
sources.
Id. at 9.
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Viewing the evidence in the light most favorable to the Commonwealth,
as our standard requires, we conclude that there was sufficient evidence
proving that Appellant was the perpetrator of the attack. See Palmer, 192
A.3d 85, 89; Orr, 38 A.3d at 874. Therefore, Appellant’s first issue is
meritless.
Weight of The Evidence Claims
In her next three issues, Appellant alleges that the verdicts were against
the weight of the evidence because the surveillance video from the bar did not
show a bottle in her hand and because broken glass from the bottle did not
have either her blood or fingerprints on it. See Appellant’s Brief at 50.
Therefore, Appellant claims she is entitled to a new trial.
It is well settled that
[a] motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, “the
role of the trial judge is to determine that ‘notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.’” It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.”
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
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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.
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused
where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation
omitted and some formatting altered).
Instantly, the trial court concluded that despite the minor
inconsistencies highlighted by Appellant, her weight claims “fail because the
cumulative direct and circumstantial evidence presented before the jury
overwhelmingly proved Appellant’s culpability in every respect.” Trial Ct. Op.
at 5. We discern no basis to disturb the trial court’s ruling denying Appellant’s
weight of the evidence claims. See Soto, 202 A.3d at 97.
Appellant next claims that the trial court erred in allowing hearsay
testimony of Julio DeLeon, who stated: “I asked who hit my fiancé[, the
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victim,] in the head with a bottle and her brother said, my sister did.” N.T.
Trial, 5/3/17, at 107; see Appellant’s Brief at 56-57. Appellant claims that
DeLeon’s statement constituted hearsay and did not fall under the excited
utterance exception. Specifically, she claims that DeLeon did not sufficiently
identify the declarant and could either be Appellant’s brother or the victim’s
brother. Therefore, she alleges the court abused its discretion in applying the
excited utterance exception and admitting the testimony. See Appellant’s
Brief at 60.
This Court’s standard of review for issues regarding the admissibility of
evidence is well settled:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court . . . [and] we will not reverse a
trial court’s decision concerning admissibility of evidence absent
an abuse of the trial court’s discretion. An abuse of discretion is
not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court over-rides [sic] or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations
omitted and some formatting altered).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citation omitted).
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,
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or tends to support a reasonable inference or proposition
regarding a material fact. Relevant evidence may nevertheless be
excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation
omitted and some formatting altered).
Hearsay is an out-of-court statement made by a declarant, which a party
seeks to offer into evidence to prove the truth of the matter asserted in the
statement. See Pa.R.E. 801(c). Generally, hearsay is not admissible except
as provided by the Pennsylvania Rules of Evidence, by other rules prescribed
by the Pennsylvania Supreme Court, or by statute. See Pa.R.E. 802. “The
rationale for the hearsay rule is that hearsay is too untrustworthy to be
considered by the trier of fact.” Commonwealth v. Charlton, 902 A.2d 554,
559 (Pa. Super. 2006) (citation omitted).
“Exceptions have been fashioned to accommodate certain classes of
hearsay that are substantially more trustworthy than hearsay in general, and
thus merit exception to the hearsay rule.” Id. (citation omitted).
Pennsylvania Rule of Evidence 803(2) concerns one such exception and
defines “excited utterance” as: “A statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that
it caused. When the declarant is unidentified, the proponent shall show by
independent corroborating evidence that the declarant actually perceived the
startling event or condition.” Pa.R.E. 803(2).
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In the present case, the statement in question came from the testimony
of Mr. DeLeon, the victim’s fiancé.
[The Commonwealth]: When you went outside, did anybody say
anything to you?
* * *
[Mr.DeLeon]: I asked who hit my fiancé in the head with a bottle
and her brother said, my sister did.
[The Commonwealth]: When you say “her brother,” are you
talking about Darlene or –
[Mr.DeLeon]: I’m sorry, Samantha’s brother said my sister did.
N.T. Trial, 5/3/17, at 106-07.
In admitting the evidence, the trial court concluded that the comment
qualified as an excited utterance because it was a statement relating to a
startling event made while the declarant was under the stress of the
excitement. The court found that the “remark was made within a few
moments after [the victim] was struck and during the course of the collective
efforts of Appellant’s family members to prevent Mr. DeLeon from pursuing
the fleeing perpetrator and the angry ensuing shoving match.” Trial Ct. Op.
at 22.
Upon review, we find that the recent assault amounts to a startling event
for purposes of the excited utterance exception, and Appellant’s brother’s
statement was about that event. See Pa.R.E. 803(2); see also
Commonwealth v. Gray, 867 A.2d 560, 571 (Pa. Super. 2005) (holding that
a witness who watched the assault of her mother viewed a startling event).
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Further, contrary to Appellant’s claim, DeLeon clearly identified the declarant
as Appellant’s brother, who was at the bar during the assault, and made the
statement while escorting Appellant away from the bar. Accordingly, we
conclude that the trial court did not abuse its discretion when it admitted the
statement under the excited utterance exception to the hearsay rule.
In her sixth issue, Appellant claims that the trial court erred when it
allowed hearsay testimony from the victim and witness Nancy Davis.
However, Appellant fails to identify which statements were inadmissible
hearsay. See Appellant’s Brief at 60-61. Accordingly, because she has failed
to properly develop this argument, she has waived this claim.4 See
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)
(holding that “the failure to develop an adequate argument in an appellate
brief may [] result in waiver of the claim under Pa.R.A.P. 2119”) (citation and
quotation marks omitted).
In her final issue, Appellant claims that the trial court abused its
discretion by allowing the prosecutor to ask leading questions and make
improper prosecutorial comments. However, again, Appellant fails to offer
any specific incidents of improper leading questions or prosecutorial
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4 Moreover, even if Appellant had not waived this claim, we would not find an
abuse of discretion in the trial court’s conclusion that “each of the admitted
hearsay statements made by Nancy Davis and the victim [] during their
respective portions of testimony, and as introduced through the other
eyewitnesses and the paramedic, who heard them speak immediately after
the assault, that [Appellant] was the perpetrator, were similarly admissible as
excited utterances.” Trial Ct. Op. at 22.
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comments. Rather, she simply states “the trial court abused its discretion
when it permitted the prosecutor to ask leading questions through the trial
which ultimately prejudiced Appellant” and “throughout most of the trial, the
prosecutor made comments that were, in substance, his own testimony. This
prejudiced the Appellant.” Appellant’s Brief at 62-63. Appellant then cites to
the entirety of the trial transcript. See id. Accordingly, because it is likewise
not properly developed, Appellant has waived this claim as well. 5 See
Beshore, 916 A.2d at 1140.
Accordingly, for the aforementioned reasons, Appellant’s claims are
either meritless or waived. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2021
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5 Again, even if not waived, we would agree with the trial court’s findings that
improperly leading questions, if objected to, were sustained and the
prosecutor redirected. See Trial Ct. Op. at 23. The trial court never
“erroneously allow[ed] any leading questions that caused introduced
responses that would have impacted the outcome of this full and fair trial.”
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