Com. v. Everage, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MAURICE PHILLIP EVERAGE, :
:
Appellant. : No. 442 WDA 2018
Appeal from the Judgment of Sentence, February 27, 2018,
in the Court of Common Pleas of Blair County,
Criminal Division at No(s): CP-07-CR-0000348-2017.
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 27, 2019
Maurice Phillip Everage appeals from the judgment of sentence imposed
after a jury convicted him of two counts of aggravated assault, simple assault,
two counts of recklessly endangering another person, two counts of terroristic
threats, person not to possess a firearm, and carrying a firearm without a
license.1 We affirm.
The trial court summarized the trial testimony and other evidence
presented by the Commonwealth as follows:
On December 9, 2016 at approximately 2:21 AM Altoona
City Police patrolmen [Steven] Miksich and [Derek] Swope
were dispatched to a report of a pistol whipping assault.
They found the victim, Forever Trich, lying on the porch
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1 18 Pa.C.S.A. §§ 2702, 2701, 2705, 2706, 6105, and 6106, respectively.
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bleeding from the face. She could barely speak due to her
injuries.
[Ms. Trich] testified that she and Trisha Mitchell had been
walking to Sheetz to get sandwiches and were proceeding
home around 2 AM when they noticed a male across the
street on the opposite side staring at them repeatedly.
When they looked at him he asked, “. . . what was us bitches
staring at?” They said nothing and tried to keep walking,
and the man lifted up his shirt to show them he had a gun
and said, “what is up?” and crossed the street. When he
lifted up his shirt [Ms. Trich] could see the end of his firearm
in his pants. She could see the grip of the firearm. The man
walked up close behind them. They turned around. The
man got in [Ms.] Mitchell’s face. She was trying to call the
police and he told her to put the phone down. He swatted
the phone out of her hand. [Ms. Trich] told him to leave her
the F alone.
[Ms. Trich] was on the phone at the time and the man
came over to her and ripped the phone out of her hand and
threw it across the street. He then pulled out his gun and
put it to her forehead. He said, “Who do you bitches think
you are talkin’ to – talking like that gets bitches capped out
here.” And he said he was from Philly and he was going to
show them what was up. Ms. Mitchell put her hand on his
shoulder and said please don’t do this we had a really bad
day already, we have two kids at home. [The man] acted
like he was walking away, and turned around and
backhanded [Ms. Trich] with the gun. Her testimony was
that she blacked out. He walked away.
[Ms. Trich] identified the gun as a semi-automatic
weapon. She picked out [Everage] from a photo lineup as
her attacker. The photo lineup consisted of eight individuals
who looked similar to each other. It was entered into
evidence as Commonwealth Exhibit number two. [Ms.
Trich] immediately identified [Everage] from Exhibit number
two as soon as she saw it. She also identified [Everage] in
the courtroom as her attacker.
Dr. Matthew Bouchard was called as an expert witness in
the field of emergency trauma medicine. He testified that
[Ms. Trich] sustained a laceration or cut that went
completely through her lip, and had a small laceration to her
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gum, as well as swelling and bruising. She had cuts on her
cheek area with significant bruising and swelling. He
testified that these injuries would cause pain. He indicated
that these injuries would cause difficulty in speaking. He
testified that a blow with a firearm to that area of the face
could result in serious bodily injury. It was his opinion to a
reasonable degree of medical certainty that bodily injury
was caused to [Ms. Trich], and that it as possible or likely
for serious bodily injury to be caused to [Ms. Trich] if she
was struck in the face with a firearm.
Trial Court Opinion, 6/6/18, at 5-7 (citations omitted).
Prior to trial, the trial court determined that Everage wished to proceed
pro se, and he acted in this capacity during jury selection. Despite the
recommendation of the Commonwealth, Everage also declined to sever the
firearm violations from the other charges. In addition to the above summary,
we note that the Commonwealth introduced photos of Ms. Trich’s injuries, and
that the parties stipulated that Everage had two prior felony convictions, which
would have precluded him from having the ability to obtain or possess a
firearm.
Following his convictions, the trial court sentenced Everage to an
aggregate term of 10½ to 21 years of imprisonment. Everage did not file a
post-sentence motion. This timely, counseled appeal followed. Both Everage
and the trial court have complied with Pa.R.A.P. 1925.
Everage raises the following issues:
i. The evidence was insufficient to support the verdicts
for aggravated assault attempt to cause serious bodily
injury; aggravated assault cause bodily injury; simple
assault recklessly endangering another person (two
counts); terroristic threats (two counts); [person] not
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to possess a firearm; carrying a firearm without a
license for the following reasons:
a. The evidence was insufficient to prove
[Everage] was present at the incident.
b. The evidence was insufficient to prove a firearm
was used in the incident.
ii. The evidence was against the weight of the verdict as
the evidence presented does not sustain the verdicts
of guilty for aggravated assault attempt to cause
serious bodily injury; aggravated assault cause bodily
injury; simple assault; recklessly endangering another
person (two counts); terroristic threats (two counts);
[person] not to possess a firearm; carrying a firearm
without a license as the evidence does not prove
beyond a reasonable doubt:
a. [Everage] was present at the scene.
b. A firearm was used in the incident.
c. There was an attempt to commit serious bodily
injury.
iii. [Everage] is entitled to a new trial where in its
opening, the Commonwealth specifically stated the
prior felonies [he] was convicted of, including
aggravated assault, the specific charge faced in this
matter. This resulted in unnecessary prejudice
towards [Everage] and was prosecutorial misconduct.
iv. [Everage] is entitled to a new trial as the
Commonwealth used Detective [Terry] Merritts to
bolster the testimony of Ms. Trich and Ms. Mitchell.
[Detective] Merritts was seated at the counsel table
throughout the trial and was called following the
testimony of both women to support their testimony
and explain the discrepancies in each of their
testimony. This testimony was more prejudicial than
probative.
v. [Everage] is entitled to a new trial as the expert
testimony of Dr. Bouchard was duplicative and was
not necessary as the opinion to which he testified was
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not about a complex matter or an issue beyond
common knowledge.
vi. [Everage] is entitled to a new trial as the photographs
of [Ms. Trich’s] injuries were shown to the jury as
Exhibit 2 were too prejudicial.
Everage’s Brief at 10-11 (excess capitalization omitted).2
In his first issue, Everage challenges the sufficiency of the evidence
supporting his convictions. Our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable a fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of the
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
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2 In his brief, Everage raised three additional issues. See Everage’s Brief at
11. Everage states that he is no longer pursuing his claim of prosecutorial
misconduct during the Commonwealth’s closing. See id. at 36. As to his final
two issues, involving Ms. Mitchell’s crimen falsi convictions and trial counsel’s
alleged ineffectiveness, Everage acknowledges that the claims must await
collateral review. See id. at 45-46. Accordingly, we have renumbered his
issues.
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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted). “Because evidentiary sufficiency is a question of law, our standard
or review is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
In support of this claim, Everage does not cite or argue any specific
element of any of the crimes for which the jury convicted him. Instead, he
asserts that the evidence did not sufficiency establish him as the perpetrator
and that the evidence did not establish that the perpetrator used a firearm to
strike Ms. Trich.3
The trial court found no merit to Everage’s claim regarding his identity
as the perpetrator:
[Everage] makes a general complaint that the evidence
was insufficient to prove that he was present at the incident.
However the testimony was that [Ms. Trich] picked him out
of a photographic lineup, and she identified him in person in
court. This is sufficient evidence [Everage] was present at
the incident.
Trial Court Opinion, 6/6/18, at 11-12. Our review of the record supports the
trial court’s conclusions. Indeed, Ms. Trich not only testified that Everage was
present when the incident occurred, but also specifically identified him in court
as her attacker. N.T., 9 /11/17, at 95. In addition, we note that Ms. Trich
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3 Everage makes no additional argument in support of this claim that the
Commonwealth failed to identify him as the perpetrator of the assault.
Instead, he focuses entirely on the firearm convictions. See Everage’s Brief
at 18-19. Everage also misidentifies Ms. Mitchell as suffering the injuries
inflicted by his assault. Id. at 19.
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and Ms. Mitchell both testified that Everage struck Ms. Trich in the face with a
gun. Thus, Everage’s sufficiency challenge fails.
In his second issue, Everage asserts that “[t]he evidence was against
the weight of the verdict as the evidence presented does not sustain the
verdicts of guilty[.]” Everage’s Brief at 10. In making this assertion, Everage
conflates a challenge to the sufficiency of the evidence with a claim challenging
the weight of the evidence. “A motion for new trial on the grounds that the
verdict is contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict.” Commonwealth v. Widmer, 744
A.2d 745, 752 (Pa. 2000) (citations and footnote omitted).
In his summary of argument, Everage contends:
The verdict was such that it shocked the conscience and
should be overturned. The evidence which was presented
to the Jury was so prejudicial and unfair, [Everage] did not
receive a fair trial. As the verdict was based on all of the
evidence presented to the Jury, the verdict is against the
weight of the admissible evidence.
Everage’s Brief at 16. To the extent Everage raises a true weight claim, the
claim is waived because he failed raise it in a post-sentence motion or
otherwise before the trial court. Pa.R.Crim.P. 607; see also Commonwealth
v. Kennedy, 151 A.2d 1117, 1129 (Pa. Super. 2016) (reiterating that a
weight of the evidence claim must be preserved either in a post-sentence
motion, by a written motion before sentencing, or orally prior to sentencing).
“Failure to properly preserve the claim will result in waiver even if the trial
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court addresses the issue in its opinion.” Commonwealth v. Lofton, 57 A.3d
1270, 1273 (Pa. Super. 2012).4 Thus, Everage’s second issue fails.
In his third issue, Everage asserts, “the trial court erred in allowing
inadmissible and prejudicial evidence to be presented to the Jury in the [form
of] allowing the Commonwealth to introduce [his] prior criminal conviction
[during the prosecutor’s opening statement] of Aggravated Assault to the Jury
without further instructions [to] the Jury[.]” Everage’s Brief at 16-17.
Everage’s claim involves an allegation of prosecutorial misconduct. Our
standard of review is well settled:
[P]rosecutorial misconduct does not take place unless the
unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict. . . . In reviewing a claim of improper prosecutorial
comments, our standard of review is whether the trial court
abused its discretion. When considering such a claim, our
attention is focused on whether the defendant was deprived
of a fair trial, not a perfect one, because not every
inappropriate remark . . . constitutes reversible error.
____________________________________________
4 Everage raised the weight claim for the first time in his Rule 1925(b)
statement. The trial court found that he “[did] not allege specific facts in
support of this claim.” Trial Court Opinion, 6/6/18, at 12. Nevertheless, the
trial court stated, “The totality of the evidence at trial resulted in verdicts that
were not against the weight of the evidence, were not contrary to the
evidence, and did not shock the conscience.” Id. Upon review, we conclude
that the trial court did not abuse its discretion when it denied Everage’s weight
claim. See Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004)
(citing Commonwealth v. Widmer, supra) (explaining “appellate review of
a weight of the evidence claim normally involves examining the trial court’s
exercise of discretion in its review of the fact-finder’s determinations”).
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Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citations
omitted). “Prosecutorial misconduct, however, will not be found where the
comments were based on evidence or proper inferences therefrom or were
only oratorical flair.” Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.
Super. 2005) (citation omitted). In order to evaluate whether comments were
improper, we must look to the context in which they were made. Id.According to Everage, the Commonwealth committed prosecutorial
misconduct during its opening statements to the jury. As our Supreme Court
has summarized:
The principles applicable to such a claim are well
established. Remarks in a prosecutor’s opening statement
must be fair deductions from the evidence which he in good
faith plans to introduce and not mere assertions designed to
inflame the passions of the jury. The prosecution is not,
however, required to prove conclusively all statements
made during the opening [statement]. As long as there is
a good faith and reasonable basis to believe that a certain
fact will be established, reference may properly be made to
it during the opening [statement]. Even if an opening
[statement] is improper, relief will be granted only where
the unavoidable effect is to so prejudice the finders of fact
as to render them incapable of objective judgment.
Commonwealth v. Jones, 610 A.2d 931, 938-39 (Pa. 1992) (citations
omitted).
Here, the trial court explained the context in which the prosecutor
referred to Everage’s prior aggravated assault conviction during his opening
statement to the jury:
[Everage’s] next claim is that he is entitled to a new trial,
stating that in its opening, the Commonwealth specifically
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stated the prior felonies he was convicted of including
aggravated assault, the specific charge faced in this matter.
He claims that this resulted in unnecessary prejudice
towards him and was prosecutorial misconduct.
In the preliminary stages of this case, [Everage] was a
self-represented litigant. On the first day of jury trial, he
requested that his standby counsel take over and represent
him as counsel in chief. The court did a colloquy on this
point[.]
When the trial began, [Everage] had not come to any
stipulation with the Commonwealth about how his prior
criminal record as a person prohibited from possessing a
firearm would be presented to the jury. That criminal record
would be a necessary element of the Commonwealth’s case
in regards to the [firearm violations].
In his opening statement, the prosecutor said, “And you
will hear in this case, [Everage] has a criminal history that
prevents him from the possession of a firearm,” and “In this
case, the Commonwealth alleges that [Everage] has an
adjudication as a juvenile for aggravated assault and a
conviction as an adult for possession with intent to deliver a
controlled substance.” At that point, defense counsel
objected. He stated, “I am objecting to the listing of the
prior record. I offered a stipulation that [Everage] was a
person who would not be eligible to possess a firearm. That
stipulation was declined. What - - bringing out the prior
record is too prejudicial to what [the prosecutor] needs to
prove for his case.”
The Commonwealth responded that [Everage] had every
opportunity before trial to sever the two firearm charges
from the remainder of the charges levied against him.
[Everage] had declined to sever the charges. The
[prosecutor] noted that he did not get into [Everage’s]
entire criminal record, but only listed the two convictions
that he intended to present to the jury in the case as
elements of the firearms crimes, through the witness
Detective [Norman] Young.
The Commonwealth asserted that it had a case that stood
for the proposition that the Commonwealth does not have
to accept the stipulation as to the criminal record, and that
the court can allow that evidence and give an instruction to
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the jury that they may only view that evidence for the
limited purpose of whether the person can or cannot possess
a firearm.
Trial Court Opinion, 6/6/18, at 12-14 (citations to record omitted).
The trial court then explained why it overruled defense counsel’s
objection, and noted that cautionary instructions were given:
The court overruled the objection for the reason that the
opening statement was not an evidentiary phase of the trial,
(the court had just given an opening instruction in which it
told the jury that the statements of the attorneys were not
evidence) and further, the court believed that the
Commonwealth does have a right to advance proof of the
elements of the charges of possession of firearm prohibited
to explain to the jury why [Everage] is prohibited from
possessing a firearm. The court further asked the
Commonwealth to explain that the only purpose for which
the jury would be allowed to consider those convictions
would be for [Everage’s] legal authority or ability to possess
a firearm, and that they could not consider them for any
other reason. The Commonwealth did so[.]
Further in its closing instructions, the court instructed the
jury that they could not consider the convictions of the two
felony offenses for any other purpose other than whether a
prohibition existed barring [Everage] from possessing a
firearm or having a license to have a firearm. The court
specifically stated that that the jury must not regard this
evidence as showing that [Everage] is a person of bad
character or criminal tendencies from which they might be
inclined to infer guilt. Because both the [prosecutor] and
the court told the jury that they could not consider any prior
offenses for any other reason besides whether [Everage]
was a person permitted to possess a firearm, in essence not
just one but two curative instructions were given on this
point. On a totality of the presentation about this point at
trial, and given the sufficiency and weight of the evidence,
if there was any error, it was harmless error.
Trial Court Opinion, 6/6/18, at 14-16 (citations to record omitted).
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Our review of the record supports the trial court’s recollection of the
trial and its conclusion that no prosecutorial misconduct occurred. In making
his arguments to the contrary, Everage neither acknowledges the prosecutor’s
compliance with the trial court’s directive nor the trial court’s cautionary
instructions to the jury. It is well settled, that juries are presumed to follow
the instructions of the trial court. See Commonwealth v. Faurelus, 147
A.3d 905, 915 (Pa. Super. 2016). Moreover, it is clear that the prosecutor
acted in good faith in making the comments because Everage declined to sever
the firearm charges prior to trial, and the Commonwealth had to prove the
elements of the firearm violations. Although Everage now argues that the
prosecutor did not need to mention the specific crimes that made him ineligible
to possess a firearm, the Commonwealth cannot be faulted for comments
made based on Everage’s pro se decision not to sever the firearm charges.
Thus, his third claim fails.
In his fourth claim, Everage asserts that he is entitled to a new trial
because the Commonwealth used the testimony of Detective Terry Merritts to
bolster the trial testimony of Ms. Trich and Ms. Mitchell. Everage raised his
objection following the Commonwealth’s offer of proof prior to the detective
testifying:
[BY THE PROSECUTOR:]
[Detective Merritts] will talk about investigating this
[incident] in I think 12-12-2016 - - interviewing Ms. Trich
and Ms. Mitchell several weeks after the incident occurred.
Ms. Trich providing nicknames Aleem and Leem, and an
account based on the account and nicknames he had a
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suspect and he had a photo lineup with that suspect in mind.
I will ask him how he prepares the photo lineup and selects
people with the similar height, weight, build, hair color and
things like that. I will show him the lineup. I will ask him if
Ms. Mitchell identified the suspect, if [Ms.] Trich identified
the suspect. I will ask if there was any confusion by [Ms.
Trich] before the Preliminary Hearing. Did her confusion at
the Preliminary Hearing ever make sense until her testimony
today. Did she indicate to him or anybody else that if
someone had spoke to her about [Everage] having a brother
at the Preliminary Hearing. We (inaudible) that until today.
And I believe that is essentially it.
[DEFENSE COUNSEL]: I would think that I have an
objection to the Detectives [sic] somehow bolstering the
credibility of their witness. That is the jury’s function to
determine credibility not the Detectives [sic].
[THE PROSECUTOR]: Which way in particular?
[THE COURT]: Well when you recited her
testimony did not make sense until today like that.
[THE PROSECUTOR]: I would just ask if he was
aware prior today that someone had approached [Ms.
Trich].
[DEFENSE COUNSEL]: Why is that not hearsay?
[THE PROSECUTOR]: Because it is not for the truth
of the matter asserted that is why the Detective was aware.
[DEFENSE COUNSEL]: It is for the truth of the
matter asserted. You are just trying to get around that.
[THE PROSECUTOR]: I don’t know if I agree with
that. I think it is relevant to ask him that. I think only my
first question is really the important one. The rest I could
probably do in argument just as there was every any
hesitation or confusion by [Ms. Trich].
[DEFENSE COUNSEL]: Even hesitation and
confusion that is to bolster her identification.
[THE PROSECUTOR]: I don’t agree with that.
There was a lot of discussion about the Preliminary Hearing
transcript about whether [Ms. Trich] was wavering in her
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identification, and then I tried on redirect once I figured out
or believed that I figured out what her confusion was about
to rehabilitate her. I think it is probative for this jury to
learn whether there was any indication by her to [Detective
Merritts] that she was concerned before the Preliminary
Hearing because she testified I don’t have to bring it up to
this Detective that someone essentially told her that there
was another person that looked like this person and his
name was Aleem prior to her testimony at the Preliminary
Hearing.
[THE COURT]: I just don’t want to have a whole
trial about what didn’t somebody did or didn’t say to her or
what she did or didn’t say to somebody else at the time. I
mean that is really going down a rabbit hole. That is my
only concern. That is just a general observation. You are
free to object to single questions. I don’t think I can block
a whole line of questioning by saying that.
[THE PROSECUTOR]: We will try to take it a
different route too. I don’t think any - - I mean I think we
will all have our arguments that we can make based on [Ms.
Trich’s] testimony alone, and depending on how cross
examination goes it might open up the door for different
things too.
[DEFENSE COUNSEL]: Okay, thank you, Your
Honor.
N,T., Trial, 9/11/17, at 142-44.
The trial court summarized Detective Merritts’ ten-pages of testimony
as follows:
[Detective Merritts] described his duties as a detective
and stated that he was assigned to the assault of [Ms. Trich]
that occurred on December 9, 2016. He described
interviewing [Ms. Trich and Ms. Mitchell] and talked about
their identification of [Everage]. He asked them whether
they would be willing to look at a photo lineup. He described
to the jury how he compiled the lineup. He identified the
photo lineup he used in the case[.] He described how he
conducted the photo lineup with [Ms. Trich and Ms.
Mitchell]. He testified that [Ms. Trich] identified [Everage]
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as the person who assaulted her. He described her physical
reaction at seeing the photograph. This is the extent of his
testimony on direct examination in the Commonwealth’s
case in chief.
Trial Court Opinion, 6/6/17, at 16-17.5 The trial court then concluded that
Everage had failed to adequately develop his claim:
The trial court respectfully submits that this complaint is
too vague for the court to be able to adequately address.
There is not a specific allegation of how this testimony is
more prejudicial than probative. [Everage] does not point
to specific testimony that he alleges to be more prejudicial
than probative. He does not allege, beyond a bald assertion,
how the detective’s testimony was used to bolster [Ms.
Trich’s] testimony. He does not point to any specific
testimony that he says was used to improperly bolster the
testimony of Ms. Trich and Ms. Mitchell]. The trial court
cannot provide any aid to the Superior Court on this issue
because of vagueness.
Id. at 17.
We are aware that “improper commentary on a witness’ credibility may
be achieved through means other than the prosecutor’s own statements, such
as eliciting improper comments from a Commonwealth witness.”
Commonwealth v. Tedford, 960 A.2d 1, 32 (Pa. 2008). Nevertheless, we
agree with the trial court that Everage has not adequately developed this
claim. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007)
(holding that undeveloped claims will not be considered on appeal).
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5 We note that Ms. Mitchell never identified Everage as Ms. Trich’s attacker.
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Notwithstanding the vagueness of Everage’s claim, we note that the
Commonwealth called Detective Merritts to reinforce its position that Ms. Trich
readily identified Everage as her attacker when she saw the photo lineup, and
that she only wavered in her identification of him at the preliminary hearing
under cross-examination by defense counsel. The Commonwealth wished to
emphasize Trich’s trial testimony that, prior to the preliminary hearing, a third
party had told her that Everage had a twin brother who went by the nickname
“Aleem.” See N.T, 9/11/17, at 104. Defense counsel appeared to be satisfied
with the Commonwealth’s offer of proof, and counsel did make a hearsay
objection at one time during the direct examination of Detective Merritts’
testimony. See N.T., Trial, 9/11/17, at 149. Defense counsel then engaged
in a cross-examination of the detective in which he sought to challenge Ms.
Trich’s identification of Everage as her attacker, and whether Everage told the
women he was from Philadelphia. See id. at 155-65.6 Given these
circumstances, and the lack of specificity in Everage’s supporting argument,
we conclude his fourth issue affords him no relief.
In his fifth issue, Everage asserts that he is entitled to a new trial
because Dr. Matthew Bouchard’s expert testimony “was duplicative and was
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6 Defense counsel objected three more times during the prosecutor’s re-direct
examination, but to matters not at issue in this appeal. See id. In a fourth
objection, defense counsel objected to the Commonwealth’s asking Detective
Merritts for his conclusion whether Ms. Fritch’s became confused when she
was informed of Everage’s real name. Id. at 173. Detective Merritts did not
answer the question and the court instructed the jury that they would have
“to draw your own conclusions about each witness’s testimony[.]” Id.- 16 -
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not necessary as the opinion to which he testified was not about a complex
matter or an issue beyond common knowledge.” Everage’s Brief at 37 (excess
capitalization omitted). According to Everage:
The testimony of the expert, Dr. [Bouchard] was not an
issue which was outside the realm of common knowledge
and was inadmissible. The doctor simply restated the
testimony Ms. Trich had given regarding her injuries, he just
used more technical terms than her. He did not help the
jury’s understanding of the circumstances [any more] than
Ms. Trich or the photographs did and his testimony should
have been inadmissible.
Everage’s Brief at 37-38.
Admission of expert testimony is an evidentiary matter for the trial
court’s discretion and should not be disturbed on appeal unless the trial court
abuses its discretion. Commonwealth v. Szakal, 50 A.3d 210, 227 (Pa.
Super. 2012) (citation omitted). Expert testimony is admissible only when
the subject matter of the testimony is beyond the knowledge or experience of
the average layperson. “When the issue is one of common knowledge, expert
testimony is inadmissible.” Commonwealth v. Dunkle, 602 A.2d 830, 836
(Pa. 1992) (citing Commonwealth v. O’Searo, 352 A.2d 30 (Pa. 1976)).
The trial court found no merit to Everage’s claim:
Dr. Bouchard has a bachelor’s degree and an M.D.
degree. He was determined to be an expert in the field of
emergency medicine. He rendered an opinion that was
within a reasonable degree of medical certainty about the
injuries [Ms.] Trich suffered in this case. His testimony was
necessary to establish the elements of aggravated assault.
It was beyond the knowledge of a layperson that, as Dr.
Bouchard described, not only could you break bones around
your face or your nose if you are struck with a handgun,
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there could also be nerve damage, and there could be
damage to your teeth, and all of those things could
potentially cause permanent injury. [Everage’s] claim here
borders on the frivolous.
Trial Court Opinion, 6/6/18, at 18-19 (citations to record omitted).
Initially, we note that this claim is not properly before us because
defense counsel did not object to Dr. Bourchard’s testimony. The failure to
make a timely and specific objection before the trial court at the appropriate
stage of the proceedings will result in waiver of the issue. Commonwealth
v. Tucker, 143 A.3d 955 (Pa. Super. 2016); Pa.R.A.P. 302(a).7
Notwithstanding waiver, we agree with the trial court that Everage’s
claim is meritless. Everage correctly notes “[w]hen the issue is one of
common knowledge, expert testimony is inadmissible.” Everage’s Brief at 39
(quoting Commonwealth v. Dunkle, 602 A.2d 830, 836 (Pa. 1992)).
However, his reliance upon Dunkle to support his claim that reversible error
occurred in his case is misplaced.
In Dunkle, our Supreme Court held that “it was error to permit an
expert to explain why sexually abused children may not recall certain details
of the assault, why they may not give complete details, and why they may
____________________________________________
7Prior to trial, defense counsel objected to Dr. Bouchard’s testimony insofar
as it was indicated he would state Everage struck Ms. Trich. The
Commonwealth agreed, and noting that the expert was not a fact witness.
See N.T., 9/11/17, at 24-25. This objection was not sufficient to preserve
Everage’s present claim.
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delay reporting the incident.” Dunkle, 602 A.2d at 831. According to the
Court, “[a]ll of these reasons are easily understood by lay people and do not
require expert analysis.” Id. at 836.8 Here, by contrast, the Commonwealth
properly used Dr. Bouchard’s testimony to prove Everage’s ability to cause
serious bodily injury. We discern no abuse of discretion by the trial court in
admitting this evidence. Thus, because Everage’s claim is waived and
otherwise without merit, his fifth issue warrants no relief.
In his sixth and final issue, Everage asserts that the trial court erred in
allowing the Commonwealth to show photographs of Ms. Trich’s injuries to the
jury.
The decision to admit photographs, like other items of evidence, “is
solely within the province of the trial court, and a decision [thereon] will not
be disturbed absent a showing of an abuse of discretion.” Commonwealth
v. Murray, 83 A.3d 137, 155-56 (Pa. 2013). When the Commonwealth
proffers photographic evidence of an alleged victim of crime, the trial court
must engage in a two-part analysis in order to determine whether such
evidence is admissible:
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
____________________________________________
8 We note that the Dunkle decision has been superseded by statute. See
generally, 42 Pa.C.S.A. § 5920 (providing rules for use of expert testimony
in criminal proceedings for sexual offenses).
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evidentiary value that their need clearly outweighs the
likelihood of inflaming the minds and passions of the jury.
Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013) (citations
omitted).
Prior to trial, defense counsel objected to the Commonwealth’s use of
the photos because “it is prejudicial and shows all the blood.” N.T., 9/11/17,
at 21. Defense counsel further argued that it was “not necessary to show that
to the jury except to inflame their passions.” Id. According to defense
counsel, the photographs “could have been done in black and white and it
could have been done without all of the graphic detail.” Id. In response, the
Commonwealth stated that pictures were relevant “to prove under the current
charges that exist - - one, that there was bodily injury with a deadly weapon
and two, that there was an attempt to cause serious bodily injury[.]” Id. The
Commonwealth further proffered that the close-up photo demonstrated Ms.
Trich “was struck with a heavy object consistent with the pistol that did leave
a mark on the side of her face.” N.T., 9/11/17, at 23.
The pictures at issue were part of a compact disc that the
Commonwealth admitted at trial as Commonwealth’s Exhibit #2. There were
four photos appearing on slides for the purpose of their use at trial. The trial
court first discussed what the pictures depicted and then stated why they were
admissible:
Okay, the [Commonwealth has] proffered two
photographs in Slide form. The first depicts [Ms. Trich] lying
in a hospital bed with certain medical hardware about her
mouth and some amount of blood in the location of the
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medical hardware and apparent stitches. The Court finds
the photograph not to be excessively bloody or gruesome or
unduly [prejudicial] in the manner that would force the
Court to exclude it. The Court does believe that the slide
would increase the jury’s understanding of the elements the
Commonwealth has to prove in the case. The second Slide
proffered by the Commonwealth is a close-up of a mark on
[Ms. Trich’s] skin with one drop of blood and some reddish
markings. The Court also specifically rules that that is not
unduly prejudicial so as to need to be excluded from the
jury’s view. So that is the ruling on the two photographs.
N.T., 9/11/17, at 23-24.
After the Commonwealth informed the trial court that there were
actually four photographs, the trial court ruled “they are not prejudicial and
would advance the jury’s understanding of the Commonwealth’s allegations of
the element that it has to prove.” Id. at 24. In its Rule 1925(a) opinion, the
trial court reiterated that, although pictures showed Ms. Trich’s face with
bruising and some blood, the “Commonwealth needed to establish her injuries
as elements of the crimes charged. The court found the photographs to be
probative rather an unduly prejudicial.” Trial Court Opinion, 6/6/18, at 19.
Having reviewed the pictures at issue, we conclude that the trial court
did not abuse its discretion in permitting the jury to see them. The pictures
depict the injuries Ms. Trich sustained and, although blood is observable, they
are not gruesome or graphic. See Commonwealth v. Hatcher, 746 A.2d
1142, 1144 (concluding, in a prosecution for aggravated assault based on the
handgun beating of the victim, the trial court did not abuse its discretion in
admitting five photographs of the victim; “[w]hile we find these photographs
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somewhat graphic, we also believe they were relevant in determining the
seriousness of the wounds”). Thus, Everage’s sixth issue fails.
In sum, because all of Everage’s claims on appeal are meritless, we
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2019
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