Com. v. Johnston, T. ( 2015 )

J-A02022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE JOHNSTON
Appellant No. 2929 EDA 2013
Appeal from the Judgment of Sentence of March 4, 2009
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004489-2007
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED MARCH 20, 2015
Tyrone Johnston appeals nunc pro tunc from the judgment of sentence
entered on March 4, 2009, following reinstatement of his appeal rights by
order of October 4, 2013, pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Johnston challenges his bench trial
convictions of two counts of first-degree murder, criminal conspiracy, and
two counts of possessing instruments of crime (“PIC”).1 We affirm.
The PCRA court set forth the underlying facts as follows:
On February 7, 2006, [Jamel] Conner was shot and killed on the
2800 block of Kensington Avenue in North Philadelphia. Conner
was shot six times at close range—twice in the head and once
each in the chest, right shoulder, left shoulder, and right middle
finger. All shots were fired within a distance of [two to three]
feet. Conner was taken to Temple University Hospital where, at
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 903, and 907(a), respectively.
J-A02022-15
3:04 AM, he was pronounced dead. Five shell casings from a .9
millimeter gun were recovered from the scene.
The circumstances surrounding Conner’s death did not become
fully known until a subsequent shooting occurred three months
later in the same neighborhood. In the early morning of May 15,
2006, 24-year-old [Stephanie] Labance was shot at 2933 Ruth
Street in North Philadelphia. She was pronounced dead on the
scene at 4:19 AM as a result of two close-range gunshot wounds
to the head. Two shell casings from a .9 millimeter gun were
recovered from the scene.
On June 5, 2006, during a routine patrol of Kensington Avenue,8
Philadelphia Police Officer Anna Mae Law stopped Erin Wood
(Wood) at 2:45 AM. Officer Law told Wood to leave the area
because a young woman, Labance, had recently been killed in
the area. When Wood told Officer Law that she had information
about the shooting, she was taken to the Homicide Unit to make
a statement, where she related the following:
8
This area was known for prostitution.
During a conversation [Johnston] had with Wood and her
boyfriend, Paul Evans (Evans), a few weeks before the murder,
[Johnston] had stated that he had given drugs to Labance to sell
on his behalf. “[S]he was supposed to turn in 200 and some
dollars, never turned it in and was gone for a few days.”
Labance resurfaced; [Johnston] found her and took her to the
street, where his associate, Horace Archer—referred to as “Jay”
(Jay)—joined [Johnston] and Labance. Jay handed a gun to
[Johnston], who said that he had no choice but to shoot
Labance. [Johnston] bragged to Wood and Evans that he shot
the girl on Ruth Street.
Wood also linked [Johnston] to a February 2006 shooting, blocks
away from where Labance had been killed.9 As of February
2006, Wood had known [Johnston] for two years, as he had
dealt drugs to her. On February 27, 2006, Wood had been in the
area of 2840 Kensington Avenue when [Johnston] walked
towards Conner and the two exchanged words. Wood watched
as, roughly five seconds after [Johnston] and Conner started
speaking, [Johnston] pulled a gun from his waistband and shot
Conner in the chest; once Conner collapsed, [Johnston] stood
over him and fired two or three more times. [Johnston] then
sprinted away from the scene of the shooting, down Kensington
Avenue. At one point, he came within 10-12 feet of Wood,
-2-
J-A02022-15
whereupon she saw his face. She then saw [Johnston] enter
Jay’s parked car, which then drove off. When Wood spoke with
Officer Law, she mentioned that another woman, Mary Beth
Beiland (Beiland), had also been in the area of 2840 Kensington
Avenue when Connor was shot.
9
Ballistics testing revealed that fire[d] cartridge casings
(FCCs) found outside Conner’s home, 2840 Kensington
Avenue, had been fired from the same firearm that was
used to kill Labance.
Beiland testified that she had been purchasing crack cocaine
from [Johnston] for about three years prior to the time of
Conner’s murder. Beiland spent a significant amount of time
with [Johnston] and Jay, who supplied [Johnston] with crack
cocaine to sell. During that time, Beiland became acquainted
with both Labance and Conner, both of whom used drugs
obtained from Jay.
On February 27, 2006, Beiland entered Jay’s building and found
[Johnston] and Jay confronting Conner about selling “fake
crack.” In fact, Beiland had purchased “fake crack” from Conner
a few days earlier. The argument escalated; Conner threatened
to set fire to Jay’s car and house.
ADA BARRY: During the course of this argument did you
hear Tyrone Johnston say anything?
MS. BEILAND: Yeah. He said not to worry about it, tell Jay
don’t worry about it, that he’ll take care of it.
Immediately after threatening [Johnston], Conner left the
premises as [Johnston], Jay[,] and Beiland went upstairs in the
building to Jay’s apartment. [Johnston] and Jay spoke to one
another in the hallway; Beiland entered the apartment and sat
close to the window, watching as Jay walked back out of the
building to his car. “He got in his car and made a u-turn.” At
some point thereafter, Beiland saw [Johnston] exit the
apartment building and walk directly to Conner, who was
standing near a nail salon. Beiland then heard a gunshot and
saw [Johnston] standing over Conner, who had collapsed onto
the ground. Next, [Johnston] took off towards Somerset Street
and entered Jay’s car, which drove off.
Although they could not identify [Johnston] as the shooter,
eyewitnesses George Filosoglou (Filosoglou), Richard Lacovara
-3-
J-A02022-15
(Lacovara), and Charles Purnell (Purnell) corroborated the
essential facts of the shooting. Filosoglou was on Kensington
Avenue when he heard gunshots. He turned toward the sound
and saw a man run to a red car, get in, and saw the car drive
off. Lacovara happened to be driving a news van at that location
when he heard a popping sound, turned and saw one man
standing over another man, with one arm held down lover than
the other. Purnell was a passenger in the news can with
Lacovara. He heard loud pops, turned his attention toward
them, and saw a man firing his weapon four to five times at
another man who was on the ground; Purnell then saw the
shooter run away. . . .10
10
Dr. Gary Collins testified that the cause of Conner’s
death was multiple gunshot wounds. Conner suffered six
gunshot wounds, including two to the head and one to the
chest. Each gunshot was inflicted from close range—two
to three feet away. Because the head wounds would have
caused instant immobility, at least one shot must have
been fired after Conner had lost the ability to voluntarily
move [sic].
PCRA Court Opinion (“P.C.O.”), 4/28/2014, at 3-6 (record citations and
some footnotes omitted).
On February 26, 2009, following a non-jury trial . . . , [Johnston]
was found guilty of [the above-mentioned counts].1 Sentencing
was deferred until March 4, 2009, on which date [the c]ourt
sentenced [Johnston] to the mandatory term of life
imprisonment2 for both counts of murder of the first degree.3
On March 12, 2009, [Johnston] filed post-sentence motions,
which [the c]ourt denied on July 8, 2009.
1
In connection with the killing of Jamel Conner (Conner),
CP-51-CR-0004489-2007, [Johnston] was convicted of
murder of the first degree, criminal conspiracy, and PIC.
In connection with the killing of Stephanie Labance
(Labance), CP-51-CR-1300475-2006, [Johnston] was
convicted of murder of the first degree and PIC.
[Johnston] was represented by Steven Laver, Esquire on
the Conner case, and by Bernard Siegel, Esquire, on the
Labance case.
2
18 Pa.C.S.A. § 1102(a)(1).
-4-
J-A02022-15
3
As to the conviction for criminal conspiracy in
connection with the Conner murder, [Johnston] was
sentenced to a consecutive term of not less than 20 nor
more than 40 years[’] imprisonment. As to the conviction
for PIC in connection with the Conner murder, [Johnston]
was sentenced to a consecutive term of not less than two-
and-a-half years nor more than five years[’] imprisonment.
As to the conviction for murder of the first degree in
connection with the Labance murder, [Johnston] was
sentenced to a consecutive term of life imprisonment. And
finally, as to the conviction for PIC in connection with the
Labance murder, [Johnston] was sentenced to a
consecutive term of not less than two-and-a-half nor more
than five years[’] imprisonment.
On July 20, 2009, [Johnston] filed a timely notice of appeal as to
both cases.4 On December 9, 2009, [the trial c]ourt filed an
opinion pursuant to Pa.R.A.P. 1925(a) . . . .5 Thereafter,
[Johnston’s] counsel failed to comply with the briefing schedule
as set forth by the Superior Court. On June 17, 2010, the
Superior Court dismissed the appeal arising out of the Labance
murder. On July 13, 2010, the Superior Court dismissed the
appeal arising out of the Conner murder. [Johnston’s] counsel
petitioned the Superior Court to reinstate both appeals. On July
14, 2010, the Superior Court reinstated the appeal arising out of
the Labance murder; on August 11, 2010, the Superior Court
reinstated the appeal arising out of the Conner murder.
[Johnston’s] counsel submitted briefs in connection with the
Labance appeal, allowing that case to progress forward; on
March 20, 2011, the Superior Court affirmed [Johnston’s]
judgments of sentence on that case. On April 11, 2011,
[Johnston] petitioned our Supreme Court for allowance of
appeal, which was denied on September 20, 2011.
4
The Superior Court docket number assigned to the case
associated with the Conner murder was 2105 EDA 2009.
The Superior Court docket number assigned to the case
associated with the Labance murder was 2116 EDA 2009.
5
This [Pa.R.A.P.] 1925(a) Opinion addressed issues
raised with respect to both the Conner and Labance
appeals—2105 EDA 2009 and 2116 EDA 2009.
Whereas the Labance appeal reached our Commonwealth’s
appellate courts on its merits, the Conner appeal was again
-5-
J-A02022-15
dismissed by the Superior Court on September 22, 2010 for
counsel’s failure to file a brief. On November 22, 2010,
[Johnston] filed a pro se petition pursuant to the [PCRA] seeking
reinstatement of his direct appeal rights on the Conner case.
Due to an administrative error, the Clerk of Courts failed to
appoint an attorney to represent [Johnston] on collateral attack
for more than two years.7 On July 31, 2013, in response to an
inquiry in that Court by [Johnston], our Supreme Court issued an
order, directing [the PCRA c]ourt to resolve [Johnston’s] pending
PCRA petition within 90 days of the date of the order. On
August 6, 2013, John P. Cotter, Esquire, having been appointed,
entered his appearance on [Johnston’s] behalf. On September
3, 2013, he filed an amended petition, to which the
Commonwealth responded on September 27, 2013. In his
amended petition, [Johnston] raised two issues: (1) [Johnston]
requested reinstatement of [his] direct appeal rights on the
Conner case, and (2) [Johnston] claimed that [his] trial counsel
was ineffective for failing to litigate a speedy trial motion on the
Labance case. On October 4, 2013, without objection from the
Commonwealth, [the PCRA c]ourt reinstated [Johnston’s]
appellate rights on the Conner case nunc pro tunc. On
November 25, 2013, [the PCRA c]ourt held an evidentiary
hearing pursuant to Pa.R.Crim.P. 908 . . . to address
[Johnston’s] claim that trial counsel was ineffective for failing to
litigate a speedy trial motion on the Labance case. At the
conclusion of the [Rule] 908 Hearing, [the PCRA c]ourt denied at
dismissed [Johnston’s] petition.
7
Ordinarily, the Clerk of Courts receives PCRA petitions
and alerts chambers when a new PCRA petition has been
filed. In this situation, [the PCRA c]ourt first became
aware that [Johnston] had filed his November 22, 2010
petition upon receiving our Supreme Court’s July 31, 2013
order.
Id. at 1-3 (record citations omitted). Accordingly, the instant appeal arises
nunc pro tunc from Johnston’s convictions under the Conner case.2
____________________________________________
2
Johnston filed a separate appeal from the denial of his PCRA petition,
which we address at Docket No. 3271 EDA 2013.
-6-
J-A02022-15
In the instant appeal nunc pro tunc from his judgment of sentence,
Johnston raises three questions for our review:
I. Was the evidence insufficient to convict [Johnston] of
[first-]degree murder, conspiracy, and possession of instrument
of a crime [sic] (PIC)?
II. Did the trial court err in allowing consolidation of two
wholly separate homicide cases into one trial?
III. Was [Johnston] denied his Constitutional right to
confrontation when the trial court permitted the testimony of
Assistant Medical Examiner Dr. Gary Collins as to the cause and
manner of death even though Dr. Collins was not the pathologist
who conducted the autopsy of the victim and was not even
present when the autopsy was done?
Johnston’s Brief at 2.
In his first issue, Johnston contests the sufficiency of the evidence
underlying his convictions for first-degree murder, conspiracy, and PIC.
Specifically, he argues that “eye-witness testimony that [Johnston] was the
perpetrator of these offenses was inconsistent, contradictory, and unreliable
and there was no physical evidence that connected [Johnston] to the
offenses and three eyewitnesses to the incident who were not cocaine users
or under the influence of drugs did not identify [Johnston] a[s] the
perpetrator of the offenses.” Id. at 6. We disagree.
In evaluating a challenge to the sufficiency of the evidence, we
must determine whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, together with
all reasonable inferences therefrom, the trier of fact could have
found that each and every element of the crimes charged was
established beyond a reasonable doubt. We may not weight the
evidence and substitute our judgment for the fact-finder. To
sustain a conviction, however, the facts and circumstances which
-7-
J-A02022-15
the Commonwealth must prove must be such that every
essential element of the crime is established beyond a
reasonable doubt.
Lastly, the finder of fact may believe all, some or none of a
witness’s testimony.
Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations
omitted). A factfinder’s acceptance of some, but not all, testimony does not
render the evidence insufficient. Priest, 18 A.3d at 1240. Any uncertainty
in an eyewitness’s identification of a defendant is a question of the weight of
the evidence, not its sufficiency. See Commonwealth v. Minnis, 458 A.2d
231, 233 (Pa. Super. 1983).
Here, Erin Wood testified that, before Jamel Conner’s death, she had
known Johnston for two years as her drug dealer, and Jamel Conner for a
year and a half as a fellow drug user. See Notes of Testimony (“N.T.”),
2/23/2009, at 154, 161. In the early morning hours of February 7, 2006,
Wood was standing on the sidewalk on Frankford Avenue when she saw
Johnston walking toward Conner and a man she knew as “Paul.” Id. at 165.
She watched Johnston exchange words with Conner, pull a gun from his
pants, and shoot Conner in the chest. Id. at 166, 170-72. She further
testified that she watched Conner fall to the ground, and that Johnston
“stood over top of him and shot him again.” Id. at 172. She crossed the
street as she saw Johnston run over to Jay’s car, and estimated that
Johnston passed within ten to twelve feet of her. Id. at 173-74. She
testified:
-8-
J-A02022-15
[ADA Barry]: Were you able to see his face?
[Wood]: Yes.
[ADA Barry]: Did you have any doubt that it was Johnston?
[Wood]: No.
Id. at 174.
Conner’s murder also was witnessed by Mary Beth Beiland, who was
familiar with Johnston and Conner. N.T., 2/25/2009, at 72-73. She
watched Johnston from Jay’s apartment as Johnston approached Conner on
the street. Id. at 95-96. She testified that she heard a gunshot and saw
Johnston standing over Conner, and watched him leave the scene in Jay’s
car. Id. at 99. Dr. Gary Collins testified, consistent with this description of
events, that Conner died of six gunshot wounds inflicted from close range.
Id. at 162-71.
Johnston contends that there was insufficient evidence to convict him
of the offenses related to Conner’s murder because “no weapon was found
on [Johnston] that linked him to the offenses” and “[t]he two eyewitnesses
that identified [Johnston] were both admitted long[-]term crack cocaine
users whose testimony was contradictory, inconsistent[,] and unreliable.”
Johnston’s Brief at 7.
However, we frequently have held that identification testimony by
eyewitnesses is sufficient to support a conviction. See, e.g.,
Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014)
(“Pennsylvania courts have consistently held that [eyewitness testimony] is
-9-
J-A02022-15
sufficient for a first-degree murder conviction.”); Commonwealth v. King,
959 A.2d 405, 411 (Pa. Super. 2008) (“The identification testimony of the
two eyewitnesses was sufficient to support Appellant’s conviction.”).
Furthermore, Johnston’s challenge to the credibility of Wood and Beiland’s
testimony goes to its weight, not its sufficiency, and we will not usurp the
role of the trial court as fact-finder by reweighing the evidence. See Priest,
18 A.3d at 1239; Minnis, 458 A.2d at 233. Johnston’s first issue does not
merit relief.
In his second issue, Johnston challenges the consolidation of the cases
for the homicides of Jamel Conner and Stephanie Labance because “the trial
court made the erroneous finding that the evidence of each murder charge
could be used as evidence of the other murder charge and therefore the
finding of guilt was based on irrelevant and highly prejudicial evidence.”
Johnston’s Brief at 8. We disagree, and conclude that, because a previous
panel of this Court has reviewed this issue, we are bound by the law of the
case.
Pennsylvania Rule of Criminal Procedure 582 provides, in relevant
part:
Rule 582. Joinder—Trial of Separate Indictments or
Informations
(A) Standards
(1) Offenses charged in separate indictments or
informations may be tried together if:
- 10 -
J-A02022-15
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is no
danger of confusion[.]
Pa.R.Crim.P. 582(A)(1)(a). “Whether or not separate indictments should be
consolidated for trial is within the sole discretion of the trial court and such
discretion will be reversed only for a manifest abuse of discretion or
prejudice and clear injustice to the defendant.” Commonwealth v.
Robinson, 864 A.2d 460, 481 (Pa. 2004) (citation omitted).
Here, Johnston argues that he was prejudiced by the joinder of “two
separate and unrelated murders.” Johnston’s Brief at 9. He does not
address the PCRA court’s observation that this precise issue has already
been considered and ruled upon by this Court. P.C.O. at 9. “Under the
doctrine of ‘law of the case,’ where an appellate court has considered and
decided a question on appeal, that Court will not, in a subsequent appeal of
another phase of the same case, reverse its previous ruling.”
Commonwealth v. Warrick, 609 A.2d 576, 578 n.3 (Pa. Super. 1992)
(citation omitted).
Previously, a panel of this Court reviewed Johnston’s appeal from the
judgment of sentence entered on March 4, 2009, for the murder of
Stephanie Labance, in which Johnston challenged “whether the court erred
in consolidating for trial [Johnston’s] charges in this case[, the Labance
charges,] with a homicide charge in another case[, the Conner charges].”
Commonwealth v. Johnston, No. 2116 EDA 2009, unpublished
- 11 -
J-A02022-15
memorandum at 1 (Pa. Super. March 30, 2011). There, after setting forth
our standard of review, as above, the Court held:
[Johnston] argues the trial court erred when it allowed the
[homicide of Stephanie Labance] to be consolidated for trial with
charges listed in a separate criminal information alleging the
homicide of Jamel Connor. There is no merit to [Johnston’s]
argument.
* * *
Ballistics evidence indicated the gun used to kill L[a]bance was
the same one used by the person who killed Connor. Beiland
and Wood saw [Johnston] shoot Connor. Testimony from
Beiland indicated [Johnston] and his drugselling associate, Jay,
had an argument with Connor over the sale of drugs, and that
the killing sprang from that drug dispute. [Johnston’s] own
statements, elicited at trial from Wood, indicated that L[a]bance
was likewise killed because of a dispute involving drug sales.
Moreover, testimony linked Jay to the killing of L[a]bance in that
Jay told [Johnston] to do what he had to do after [Johnston]
located L[a]bance.
The trial court reasoned that the foregoing evidence was
relevant and admissible as to each homicide charge because the
evidence tended to prove the identity of the shooter in each
case. In reaching this decision, the court also reasoned that,
because this case was a bench trial, the risks of factfinder
confusion and misuse of the evidence were non-existent.
We see no abuse of discretion in the foregoing evidentiary
determination. The common weapon, the similar drug- or
money-related motive, and the involvement of Jay in each case
helped to establish the identity of the shooter in the other case.
Also, we presume the trial court, as factfinder, followed the law
and used the evidence for appropriate reasons.
Similarly, we find no abuse in the court’s ultimate determination
to consolidate the informations. The distinct homicides, while
involving evidence both relevant and admissible as to each
other, were easily separable for the purposes of determining
guilt. The facts were relatively straightforward; we find no
reason to conclude the court was confused as to which case was
- 12 -
J-A02022-15
which. [Johnston’s] claim that it was error to consolidate the
cases warrants no relief.
Johnston, No. 2116 EDA 2009, at 7-8. We will not reverse the previous
ruling, in which this Court determined that there was no trial court abuse of
discretion in consolidating the trials for the homicides of Stephanie Labance
and Jamel Conner. See Warrick, 609 A.2d at 578 n.3. Johnston’s second
issue does not merit relief.
In his third issue, Johnston contends that the court violated his right to
confrontation “when the trial court erroneously permitted the testimony of
Assistant Medical Examiner Dr. Gary Collins as to the cause and manner of
death” because “Dr. Collins was not the pathologist who conducted the
autopsy of the victim, was not even present when the autopsy was done and
the [d]octor who did the autopsy was available to testify and was never
previously examined by the defense counsel.” Johnston’s Brief at 10. We
disagree, and again conclude that we are bound by the law of the case.
Whether the admission of Dr. Collins’ testimony violated Johnston’s
rights under the Confrontation Clause is a question of law, for which our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Cannon, 22 A.3d 210, 217 (Pa. 2011).
The Confrontation Clause of the Sixth Amendment, made
applicable to the States via the Fourteenth Amendment, provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him. . . .”
In Crawford [v. Washington], 541 U.S. [36,] 51 [(2004)], the
Court held that the Sixth Amendment guarantees a defendant’s
right to confront those “who ‘bear testimony’” against him, and
defined “testimony” as “[a] solemn declaration or affirmation
- 13 -
J-A02022-15
made for the purpose of establishing or proving some fact.” The
Confrontation Clause, the High Court explained, prohibits out-of-
court testimonial statements by a witness unless the witness is
unavailable and the defendant had a prior opportunity for cross-
examination.
Commonwealth v. Yohe, 79 A.3d 520, 530-531 (Pa. 2013) (some citations
omitted).
Our Supreme Court has held that “a medical expert who did not
perform the autopsy may testify as to cause of death as long as the
testifying expert is qualified and sufficiently informed[.]” Commonwealth
v. Ali, 10 A.3d 282, 306 (Pa. 2010). We have concluded that, where the
individual who performed the autopsy is unavailable to testify, a qualified
testifying expert is one whose “testimony was based upon his own
conclusions after his own independent review of the file.” Commonwealth
v. Buford, 101 A.3d 1182, 1198 (Pa. Super. 2014).
As in Johnston’s second issue, we are compelled to follow the law of
the case. See Warrick, 609 A.2d at 578 n.3. In his previous appeal,
Johnston also challenged “whether the court erred in allowing a pathologist
to testify to the cause and manner of death of two decedents when he did
not perform their autopsies.” Johnston, No. 2116 EDA 2009, at 1. This
Court held:
Although [Dr.] Collins’s testimony did reveal the findings and/or
conclusions of the doctors who conducted the autopsies, [Dr.]
Collins did not merely read those findings and/or conclusions into
the record. Rather, [Dr.] Collins went on to give his own
opinions based on the facts in the autopsy reports and various
photographs relevant to the autopsies. In doing so, he
essentially indicated that he agreed with the findings and/or
- 14 -
J-A02022-15
conclusions of the other doctors. Also, when questioned by the
court, he indicated the information on which he relied was
sufficient for him to form his opinions.
[Johnston] has offered us no discussion showing that the reports
and photos used by [Dr.] Collins were insufficient to inform him
of the necessary facts relating to the cause and manner of the
decedents’ deaths. To the extent [Johnston] maintains [Dr.]
Collins’s testimony was inadmissible merely because he was not
the autopsy doctor, [Johnston] is simply wrong. We note, too,
that [Johnston] cross examined [Dr.] Collins concerning his
opinions. In sum, [Johnston] was not denied his right to
confront witnesses.
Johnston, No. 2116 EDA 2009, at 9-10. Based upon our review of Dr.
Collins’ trial court testimony and the current applicable law as set forth
above, we agree with the prior panel of this Court. See Warrick, 609 A.2d
at 578 n.3; see also Ali, 10 A.3d at 306; Buford, 101 A.3d at 1198. Dr.
Collins testified that the examiners who initially performed the autopsies of
Jamel Conner and Stephanie Labance were no longer employed by the
Philadelphia Medical Examiner’s Office at the time of trial, and that Dr.
Collins’ testimony was based upon his own conclusions after his independent
review of their files. See N.T., 2/25/2009, at 143-45. Accordingly, the trial
court did not err or abuse its discretion in admitting Dr. Collins’ testimony.
See Buford, 101 A.3d at 1198. Johnston’s third issue does not merit relief.
Judgment of sentence affirmed.
- 15 -
J-A02022-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2015
- 16 -