Com. v. Stephanic, M. ( 2016 )

J-S57043-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL J. STEPHANIC, JR., :
:
Appellant : No. 327 WDA 2016
Appeal from the Judgment of Sentence October 21, 2015
in the Court of Common Pleas of Elk County
Criminal Division at No(s): CP-24-CR-0000388-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 07, 2016
Michael J. Stephanic, Jr. (Appellant) appeals from his judgment of
sentence of life imprisonment following his conviction of first-degree murder.
We affirm.
In the early hours of September 3, 2013, after a day of arguments
(including one for which police were summoned) and alcohol consumption,
Appellant shot and killed his paramour, June Talmadge, at Eastern Sintered
Alloys, their mutual place of employment. After hearing from numerous
witnesses, including Appellant, and being instructed on murder of the first
and third degrees, voluntary manslaughter, and voluntary intoxication, a
jury found Appellant guilty of first-degree murder on August 6, 2015.
Appellant subsequently was sentenced to life imprisonment.
*Retired Senior Judge assigned to the Superior Court.
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By order filed on October 30, 2015, Appellant’s privately-retained
counsel was permitted to withdraw, and a public defender was appointed.
Following the denial of timely-filed post-sentence motions, Appellant timely
filed a notice of appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents one issue on appeal: whether the trial court erred
in denying Appellant’s pre-trial request “for the appointment of, and court
authorization from county funds for the payment of, an expert neuro-
pharmacologist to conduct relation back evaluations of the potential blood
alcohol concentrations of [Appellant] at the time of shooting the victim” and
to offer “expert evidence at trial as to [Appellant’s] level of intoxication and
its effects upon [Appellant’s] behaviors and cognitive reasoning at relevant
times” in order to assert his defense of voluntary intoxication. Appellant’s
Brief at 4.
It 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)
However, “the Commonwealth is not obligated to pay for the services
of an expert simply because a defendant requests one. There must be some
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showing as to 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) (citations omitted).
Factors the trial court should consider in making a case-by-case
evaluation of a request for an appointed expert include the probable costs of
the expert’s services, “present or past salary and wages, other types of
income within the preceding year, other contributions for household support,
property owned, available assets, debts and obligations, and persons
dependent for support.” Commonwealth v. Cannon, 954 A.2d 1222,
1226-27 (Pa. Super. 2008) (some internal quotation marks and citations
omitted).
“Appointment of expert witnesses and the provision of public funds to
hire them to assist in the defense against criminal charges are decisions
within the trial court’s sound discretion and will not be reversed absent an
abuse thereof.” Commonwealth v. Wholaver, 989 A.2d 883, 894 (Pa.
2010).
In his pretrial motion, Appellant sought the appointment of a private
investigator, a forensic psychologist, and a neuropharmacologist. Omnibus
Pretrial Motion, 1/29/2014, at ¶¶ 29-49. Regarding the neuropharma-
cologist, Appellant averred:
42. That [Appellant] was consuming copious amounts of
alcohol in the hours leading up to [the shooting].
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43. That numerous witnesses described an odor of
alcoholic beverage emanating from [Appellant’s] breath and
person.
44. That numerous witnesses described [Appellant] to be
potentially intoxicated and to behaving in an irrational and
illogical state.
45. That [Appellant] is believed to have been severely
intoxicated during the events in question[].
46. That intoxication sufficient to deprive an individual of
the specific intent to kill is a viable defense in a first[-]degree
homicide case.
47. That [Appellant] wishes to retain the services of a
neuropharmacologist to conduct relation[-]back evaluations of
the potential blood alcohol concentration and to proffer expert
evidence as to his level of intoxication and its effects on his
behavior and cognitive reasoning.
Id. at ¶¶ 42-47.
The trial court held a hearing on Appellant’s pretrial motions, at which
Appellant testified to his lack of assets and income and to his family’s paying
the $10,000 retainer for his private counsel; Appellant did not indicate
whether he had debts or other obligations, or whether he had other sources
of money for contributing to his expenses. N.T., 4/3/2014, at 37-43.
Following Appellant’s testimony, counsel stated as follows:
So far as the request for appointments here, Your Honor,
there’s a number of circumstances, events that led up to what
Your Honor heard as far as what took place at Eastern Sintered
Metals. There was a relationship between these parties, [a]
somewhat volatile one. There [were] domestic incidents earlier
in the day that resulted in the police response from the very
same police department [that arrested Appellant after the
shooting]. There were witnesses who undoubtedly saw these
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individuals out and about during the course of the day,
particularly the number of local drinking establishments.
I need an investigator to speak with these various
witnesses. There are individuals who made 911 reports relative
to this domestic incident. I need an investigator to speak to
them. …
***
Insofar as the neuropharmacology expert, Your Honor, in
this instance we have evidence of [Appellant] and the victim to
some extent consuming copious amounts of alcohol. And Your
Honor well knows, voluntary intoxication can be a defense as to
first-degree murder. I would like to have some type of relation-
back testimony here based upon large amounts of alcohol that
were consumed by [Appellant] to try to ascertain whether or not
that could provide us with a potential defense. And as Your
Honor’s well heard, he lacks the resources to do so.
Id. at 48-50.
The trial court initially denied all of Appellant’s appointment requests,
but, after Appellant moved for reconsideration, it allotted $2,500 for the
appointment of a private investigator. The court offered the following
explanation for its decision to continue to reject Appellant’s other requests:
During the portion of the April 3, 2014 hearing on
[Appellant’s] omnibus pretrial motions when [Appellant’s]
motions for appointment were considered, [Appellant] initially
did not intend to present any evidence in support of his
appointment motions. It was only after prompting by the [c]ourt
that the testimony of [Appellant] was offered regarding his
assets and general financial condition but tellingly, there was no
evidence presented as to the nature, scope or anticipated
expense as to why a psychiatrist or neuropharmacologist may be
needed other than the bald assertion that there might be some
need to have [Appellant] evaluated even though [he] presented
no prior psychiatric or psychological history. Additionally, while
defense counsel promoted that alcohol may have been involved
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with the alleged criminal acts, including homicide, there was no
competent evidence which developed this position. The basis for
the retention of a psychiatric or neuropharmacological expert to
be paid from the public coffers when [Appellant] has retained
private counsel was not established by a showing of the
relevancy and content of the proposed experts sought to be
hired. Instead, it was acknowledged that defense counsel had
been privately retained and that the payment of any necessary
experts may have to be ultimately borne by [Appellant]. The
requisite evidentiary nexus warranting the payment of public
funds to retain expert witnesses has not been presented.
Order, 7/14/14, at 1-2 (pages unnumbered).
In arguing on appeal the evidence showing the need for an expert
neuropharmacologist, Appellant largely discusses the testimony that was
ultimately offered at trial, not the evidence that was before the trial court
when it denied Appellant’s request. See Appellant’s Brief at 18-22 (citing
the trial testimony of numerous witnesses, including Appellant, and that a
breath test taken at 7:00 am estimated Appellant’s blood alcohol content to
be .128). In addressing Appellants reliance on the trial evidence, the trial
court responded as follows:
At no time prior to trial, however, was the relevance and
content of the proposed neuropharmacologist evaluation
developed. No evidence of any breath test or blood test result
was referred to let alone introduced into evidence prior to trial
and moreover the pretrial evidence relating to [Appellant’s]
having consumed alcohol was tenuous at best. There was no
evidence introduced at the time of the omnibus hearing
supporting [Appellant’s] motion for the appointment of a
neuropharmacologist. Instead, the attorney for [Appellant]
baldly argued that there was evidence of [Appellant] and the
victim consuming copious amounts of alcohol to an undefined
extent as demonstrated in … the transcript of the preliminary
hearing held before the Honorable Mark S. Jacob of Magisterial
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District 59-3-03 on November 15, 2013. A review of that
transcript, however, does not support [Appellant’s] position.
Robert Nissel, a supervisor at Eastern Sintered Alloys, testified
that when he spoke to the victim on September 2, 2013, the
victim had indicated that she and [Appellant] “had a little scuffle,
he was drinking.” Jim Rocha, a security guard at Eastern
Sintered Alloys, testified that when he observed [Appellant] on
the evening of September 2, 2013, between 9:45 p.m. or 10:00
p.m., [Appellant] did not appear intoxicated. St. Marys Police
Officer Peter Largey testified that when he questioned
[Appellant] on September 3, 2013, about a wrecked white van
found in the woods across the road from Eastern Sintered Alloys
earlier that night, [Appellant] relayed that he had been at his
residence “since the police were there earlier in the night
because he had been drinking.” Officer Largey also testified on
cross examination that he smelled alcohol on [Appellant], but did
not recall observing any bottles or cans of beer at [Appellant’s]
residence while there to question [him] about the van in the
woods.
In short, the evidence fell far short of indicating that
[Appellant] had consumed “copious amounts of alcohol,” and in
the absence thereof, entirely failed to suggest or establish how
an expert witness would be necessary or even helpful in
establishing any defense based on consumption of alcohol. The
United States Supreme Court “has not held that a State must
purchase for the indigent defendant all the assistance that his
wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S.
600[] (1974),” but instead has “focused on identifying the ‘basic
tools of an adequate defense or appeal,’ Britt v. North
Carolina, 404 U.S. 226[] (1971), and we have required that
such tools be provided to those defendants who cannot afford to
pay for them.” Ake v. Oklahoma, 470 U.S. 68 (1985).
It is again noteworthy that in the year between the denial
of [Appellant’s] request for the appointments of a forensic
psychologist and neuropharmacologist, no further requests were
made even though an allowance was granted for a private
investigator to assist in uncovering information which may have
been of some assistance to [Appellant]. If relevant information
was available to develop additional evidence about [Appellant’s]
… having imbibed alcoholic beverages prior to the murder, there
was ample opportunity to do so. Instead, the generic,
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nonspecific bases for the requests of [Appellant] were not
developed. Additionally, there was no indication as of April 2014
that the funds paid to retain [trial counsel] were not at least in
part able to be expended on defense costs such as expert
reports nor was there any evidence that no additional funds were
provided to [Appellant’s] private counsel by him, his family or
any other third party after April 3, 2014, the date of hearing on
[his] omnibus pretrial motions. While [Appellant] was initially
determined to be indigent and has again been found to be
indigent, during the proceedings which are material to his post-
sentence motions, [Appellant] was represented by a private
attorney who received a retainer sufficient to enter his
appearance on [Appellant’s] behalf, which in turn led to the
withdrawal of [his] public defender….
Not only did the Court have to pry some evidentiary
presentation from [Appellant’s] counsel at the April 3, 2014
hearing to support the barren contention that some experts
might be needed to develop defenses, but the [c]ourt also
afforded [Appellant] the ability to hire an investigator to delve
into issues relating to [his] … intake of alcohol during September
2 and 3, 2013. Despite the passage of more than one year, no
information was forthcoming nor were the requests for funds to
retain any experts reasserted. There was also no reference
during trial that [Appellant] was thwarted in any way from
promoting a defense even tangentially related to … the amount
of alcohol he may have imbibed.
In short, [Appellant] was afforded the means to advance
and present an adequate defense and the appointment of a
forensic psychologist or neuropharmacologist was not developed
or demonstrated to be necessary to assure [Appellant’s] rights.
Trial Court Opinion, 2/24/2016, at 5-7 (some citations omitted).
Upon review, the trial court’s factual assertions are supported by the
record. Further, from the above discussion it is clear to this Court that the
trial court thoroughly considered the applicable law and made no error in its
application. Appellant was not entitled to appointment of at the county’s
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expense a neuropharmacologist simply because he requested one.
Curnutte, 871 A.2d at 842. Rather, he had the burden to show that such
an expert was necessary for him to present an adequate defense, how much
retaining the expert would cost, and that he was unable to pay for that
necessary expert. Konias, 136 A.3d at 1019; Cannon, 954 A.2d at 1227(“Cannon failed to introduce any evidence as to the cost of retaining an
expert to conduct an evaluation and to testify on his behalf. This is a critical
element of proof in a claim of indigency.”). The trial court found that
Appellant established none of these prerequisites.
For the above-quoted reasons offered by the trial court, we hold that
the court did not abuse its discretion in denying Appellant’s request for the
appointment of a neuropharmacologist based upon the record before it at
the time of Appellant’s request.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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