Com. v. Chac, B. ( 2016 )

J-A05003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BOHDAN CHAC,
Appellant No. 2830 EDA 2014
Appeal from the Judgment of Sentence of May 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008766-2012
BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED APRIL 14, 2016
Appellant, Bohdan Chac, appeals from the judgment of sentence
entered on May 19, 2014, as made final by the denial of Appellant’s post-
sentence motion on September 29, 2014. We affirm.
The able trial court has thoroughly summarized the evidence that was
presented during Appellant’s jury trial. As the trial court explained:
On May 6, 2012, at around 10:00 p.m., [Appellant] shot
and killed Linda Raudenbush as she came down the stairs
from the second floor of 3302 Fairdale Road in Philadelphia.
[Appellant] shared this residence with Ms. Raudenbush, his
common-law wife, and their [26-year-old] son, David Chac.
In November 2011, [18-year-old] Sara Ayyash moved into
this residence as [Appellant’s] girlfriend against the wishes
of her mother, Angela Garland. Ms. Ayyash had been
communicating with [Appellant] on Facebook since May
2010. At that time, [Appellant] was around [55] years old
and Ms. Ayyash was [16] years old. Their relationship
turned sexual in November 2010 when Ms. Ayyash began to
electronically send [Appellant] pornographic photographs
and videos. [Appellant] was partially paralyzed and Ms.
*Former Justice specially assigned to the Superior Court.
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Ayyash helped care for him during the period they lived
together.
During the period she lived with [Appellant], Ms. Ayyash
was permitted to visit her mother about three [or] four
times. In fact, she had visited her mother the weekend
before the murder. On May 6, 2012[,] Ms. Ayyash returned
to [Appellant’s] residence and found him and Ms.
Raudenbush in the middle of an argument. At some
point[,] Ms. Ayyash got involved in the argument and threw
a book at [Appellant] after he insulted her. When Ms.
Ayyash approached [Appellant], he pulled her hair. Ms.
Raudenbush then approached [Appellant] and bit his foot.
Shortly thereafter, Ms. Ayyash and Ms. Raudenbush
retreated upstairs. Later, Ms. Raudenbush went back
downstairs to continue the argument. When Ms.
Raudenbush reached the bottom of the stairs, she leaned
toward [Appellant] and yelled at him. In response,
[Appellant] sat upright in his hospital bed, extended his
right arm, pointed his gun at Ms. Raudenbush and shot her
in the left chest. Ms. Raudenbush fell forward on the stairs.
On May 6, 2012, at about 10:22 p.m., Police Officer Robert
Francisco responded to a radio call about a person
screaming at 3302 Fairdale Road. Within minutes, Officer
Francisco arrived on location and encountered Rowena
Wolfe-Paupst, who had called 911 after observing Ms.
Ayyash waiving a white rag from inside the second floor
bedroom window of the residence. Officer Francisco exited
the vehicle, looked up at the window and saw Ms. Ayyash
screaming and waiving the white rag. He attempted to
communicate with Ms. Ayyash while she was in the window,
but he could not understand her responses. Given the
apparent urgency, Officer Francisco opened the unlocked
front door and went inside. He announced his presence as
he walked into the hallway, but did not receive any
response.
As Officer Francisco continued to walk down the hallway[,]
he saw [Appellant] who was sitting upright in his hospital
bed inside the living room, wearing a green Phillies T-shirt.
Officer Francisco stated: “[t]here is a woman waving a rag
upstairs at the window for help. What’s going on here?”
[Appellant] stated that he did not know what happened
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because he had been asleep. Once inside the living room,
Officer Francisco saw the deceased, Ms. Raudenbush, lying
on the stairs with blood all over the front of her dress. Ms.
Raudenbush’s body was at the bottom of the stairs leading
to the second floor, about five or six feet away from
[Appellant’s] bed. Her feet were touching the stairs, and
her upper body was wedged between the wall and a second
hospital bed which was covered with clutter. Officer
Francisco immediately called rescue.
Officer Francisco then saw Ms. Ayyash standing at the top of
the stairs and asked her to come downstairs to tell him
what happened. She replied that the victim shot herself.
Ms. Ayyash told Officer Francisco that she did not see Ms.
Raudenbush shoot herself, but that she had heard the
gunshots. Officer Francisco then asked Ms. Ayyash why she
had not called [the] police, and she replied that she was too
scared to call. Later, when Detective Gross responded to
the scene and asked Ms. Ayyash if she had heard gunshots,
she told him no. Officer Francisco then confronted Ms.
Ayyash about this inconsistency, and she responded that
she did hear gunshots. Immediately after Ms. Ayyash’s
reply, [Appellant] said: “[y]ou didn’t hear a gunshot. I had
the movie Scarface on and that’s what you heard. You
didn’t hear any gunshot.” Officer Francisco again asked
[Appellant] if he had heard or seen anything and [Appellant]
cavalierly responded: “[n]o, I don’t know anything about
it.” [Appellant’s] son was not home and Officer Francisco
did not see anyone else inside the house. At trial, Detective
Joseph McDermott, the assigned homicide investigator,
stated that a video obtained from a Rite Aid store located at
Academy Avenue and Byberry Road showed the son
entering [the Rite Aid] at 9:53 p.m. and exiting at 10:02 or
10:06 p.m. Detective McDermott [testified] that David
Chac then walked “quite a distance” to return home.
When the medics arrived to care for the victim, Officer
Francisco observed a black gun, later identified as a CZ75
[nine-millimeter] semi-automatic black pistol, lying upside
down on the second hospital bed on the room. Officer
Francisco secured the gun while Ms. Raudenbush received
medical attention. The gun was later submitted to the
Firearms Identification Unit for examination. . . .
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At 10:45 p.m., Linda Raudenbush was pronounced dead
inside the residence. At trial, Dr. Marlon Osbourne testified
as an expert in forensic pathology. After performing an
autopsy on the victim’s body, Dr. Osbourne concluded to a
reasonable degree of medical certainty that the cause of
death was one gunshot wound to the chest. The bullet
perforated Ms. Raudenbush’s left lung, heart, and aorta.
The bullet entered her left chest cavity and fractured her
fourth and fifth rib anteriorly. The bullet then lacerated the
upper lobe of her left lung and traveled through the left
ventricle of her heart. The bullet further lacerated her
thoracic aorta and traveled into her eighth thoracic
vertebra, where a fragment was retrieved. There was no
exit wound on her body. Due to these injuries, Ms.
Raudenbush was bleeding internally and she had one liter of
clotted and liquid blood inside her left chest cavity.
After performing the autopsy, Dr. Osbourne further
concluded to a reasonable degree of medical certainty that
the manner of death was homicide, and not suicide or
accident. Dr. Osbourne opined that the path of the bullet in
the victim’s body was consistent with testimony that the
victim went to the bottom of the stairs and leaned over
toward [Appellant] before she was shot. Dr. Osbourne also
observed that the gunshot wound was an irregular ovoid
shape and had no soot, stipple[,] or muzzle imprint around
it. He explained that soot, a black stain, is present when
the muzzle of a gun is within six inches to one foot from the
victim’s body. Stipple, an abrasion on the skin or hole in
the clothing, is present when the muzzle of the gun is within
two and one-half to three feet from the victim’s body. A
muzzle imprint is present once a gun has been pressed
against the victim’s skin. Because there was no soot,
stipple[,] or muzzle imprint around Ms. Raudenbush’s
gunshot wound, Dr. Osbourne concluded that the muzzle of
the gun was farther than two and one-half to three feet
away from the victim because one or all three of these
indicators would have been present had the victim
committed suicide. For these reasons, Dr. Osbourne
concluded that a suicide had not occurred in this case.
During the autopsy, Dr. Osbourne performed a toxicology
test on Ms. Raudenbush and discovered 70 micrograms per
deciliter of ethanol, less than 50 micrograms per liter of
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codeine, and less than 30 micrograms per liter of
alprazolam (Xanax). Dr. Osbourne found that the alcohol in
the victim’s body was less than the legal driving limit and
that the levels of alprazolam and codeine were minimal.
Consequently, Dr. Osbourne concluded to a reasonable
degree of medical certainty that the drugs and alcohol found
in Ms. Raudenbush’s body did not contribute to her death.
On May 7, 2012, at about 7:00 a.m., Police Officer Terry
Tull arrived at the crime scene and began to take
photographs. When Officer Tull went inside the residence,
he encountered a cluttered living room containing two
hospital beds. [Appellant] was sitting on one hospital bed,
about seven feet away from the foot of the stairs where the
victim’s body was located. The other hospital bed was
covered with clutter. Ms. Raudenbush’s body had been
slightly repositioned by responding medics who had
attempted to resuscitate the victim. The dining room was
impassable because it was piled high with clutter. Officer
Tull further observed two bullet holes in the first floor ceiling
of the main hallway that led to the living room. Given the
cluttered state of [Appellant’s] house, Officer Tull used
trajectory probes to determine the path the bullets traveled.
Based on his training and experience, Officer Tull
determined that the trajectory probes pointed toward
[Appellant’s] bed. As a result, Officer Tull concluded that
the gun was fired from [Appellant’s] bed.
A search warrant was obtained for the residence. However,
both Ms. Ayyash and David Chac, who arrived at some point
after the murder, were transported to Northeast Detectives
to be interviewed before it was executed. [Appellant] was
transported to Aria Torresdale Hospital due to his medical
condition. Before [Appellant] was transported to the
hospital, Detective John Hopkins retrieved the green Phillies
T-shirt and the red shorts that [Appellant] had worn on the
day of the murder. These items were bagged separately
and submitted to the forensics laboratory for gunshot reside
testing. After [Appellant] was transported to the hospital,
Detective Hopkins recovered one blue comforter, two bed
sheets, and one pillow from [Appellant’s home] hospital
bed. These items were bagged separately and submitted to
the forensics laboratory for gunshot residue testing. He
also recovered a black Action Arms pistol case for the CZ75
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[nine-millimeter] pistol and one metal magazine containing
a [nine-millimeter] round. Officer Tull then moved
[Appellant’s] bed and the surrounding clutter and began to
search for projectiles. Officer Tull found three fired
cartridge casings under the rear of [Appellant’s] bed. Two
of the fired cartridge casings were about one and one-half
feet apart from each other. No other fired cartridge casings
were recovered from the residence.
On May 7, 2012, at 11:54 a.m., Detective Tim Lynch
interviewed [Appellant] while he was inside an emergency
room treatment cubicle. Detective Hopkins and Sergeant
Hendershot were also present. During this interview,
[Appellant] appeared alert and answered the detective’s
questions. He did not appear to be under the influence of
drugs. After the interview, Detective Lynch provided
[Appellant] the opportunity to review the written statement.
However, [Appellant] refused to sign the statement.1 . . .
____________________________________________
1
On May 7, 2014, the following questions were asked by Detective Lynch
and answered by [Appellant]:
Detective Lynch: What happened last night in your home?
[Appellant]: Sara got home around 5:00 p.m. or 6:00 p.m.
My wife tried to grab some of my pills. It was some of my
Ambien and my Tylenol 4. I was getting a bath from my
son at that time. She came to get the pills and I pushed
her away with my right foot. She bit my foot. My son told
her to go away. She went upstairs. She had hit me in the
face with something. After she left I noticed that I had a
bloody nose. I yelled up to her that I was going to act on a
letter that I got from the 8th District. The letter said the
police knew I was being abused. I also told her I was going
to call the [D.A.] I took [two] Xanax [and] an Ambien. I
tried to get YouTube on to put me to sleep. I just woke up
a while later. I noticed a Scarface clip was playing and
music playing. I was trying to go back to sleep. I got
woken up by a police officer who was knocking and he came
in. Before I fell asleep I sent my son to Rite Aid. I had
[two] guns near me when I went to sleep. As far as I know
neither had bullets in them. I took the bullets out.
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
Detective Lynch: Which guns did you unload?
[Appellant]: Smith [and] Wesson Bodyguard .38 (snub
nose, shroud hammer, nickel, brown wood handle) C[Z]75
[]9mm (black auto).
Detective Lynch: Did you unload the guns yourself?
[Appellant]: Around [two] weeks ago I pulled out the clip of
the CZ75. If I felt danger at night sometimes I put the clip
back in.
Detective Lynch: Are you able to unload the gun and clear
the chamber by yourself?
[Appellant]: I can unload it, but not clear the chamber. My
left hand doesn’t work.
Detective Lynch: Was the CZ75 loaded last night?
[Appellant]: I thought it was unloaded. It’s possible I may
have put the clip in [two] days ago.
Detective Lynch: When was the last time you saw Linda
alive?
[Appellant]: When she went upstairs.
Detective Lynch: What time was that?
[Appellant]: Early evening. I’m not sure.
Detective Lynch: Where did you put the CZ75 magazine
when you remember taking it out?
[Appellant]: On the left of the bed. Down in a drawer thing.
Detective Lynch: Where was the CZ75?
(Footnote Continued Next Page)
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On May 14, 2012, at 11:50 a.m., Detective McDermott
interviewed [Appellant] inside his residence. Although
[Appellant] was not under arrest, [] Detective McDermott
read him his [Miranda2] rights. [Appellant] indicated that
he understood the warnings. He also appeared coherent,
alert, and able to understand English. [Appellant] did not
_______________________
(Footnote Continued)
[Appellant]: In a box on my right side on the bed next to
me.
Detective Lynch: Was it within reach?
[Appellant]: Yes.
Detective Lynch: Did you hear any gunshots last night?
[Appellant]: Yes. When I woke up I heard them on
YouTube. There were a lot of shots at the end of the movie.
Detective Lynch: How do you think Linda was shot?
[Appellant]: I have no idea. I don’t know if someone came
in and tried to shoot her and maybe she got shot.
Detective Lynch: Did you fire your CZ75 last night?
[Appellant]: No.
Detective Lynch: When was the last time you did fire a gun?
[Appellant]: Years ago.
Detective Lynch: Is there anything else that you want to
add?
[Appellant]: No.
[N.T. Trial, 5/14/14, at 146-150 (some internal brackets omitted); see also
Commonwealth’s Exhibit 27].
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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state at any point during this interview that he wished to
invoke his right to a lawyer or right of silence. When the
detectives first arrived at the residence, [Appellant] paid
them no attention. Instead, [Appellant] used his computer
until he was asked to focus on the interview. While
[Appellant] used his computer, Detective McDermott
observed that [Appellant] had full use of the right side of his
body. He moved the computer mouse and wrote inside a
notepad with his right hand and pulled himself upright with
his right arm. [Appellant] also used his right hand when he
pointed and told Detective McDermott where he kept his
gun. During the interview, [Appellant] closed his eyes when
he was asked about the murder. He also had no
explanation for the bullet holes in the ceiling. Conversely,
[Appellant] responded to questions pertaining to what
occurred before and after the murder. Detective McDermott
interviewed [Appellant] for about one hour. When Detective
McDermott returned to his office, he memorialized this
interview in a memorandum.3 During the informal
____________________________________________
3
Detective McDermott summarized [Appellant’s] account of what happened
before the incident:
He had said that him and Linda were fighting all day, and
that Linda and Sara went upstairs. And then he used to
keep his CZ pistol next to him for protection. And then next
thing he remembers was the police waking him up. He
doesn’t know – the police officer says there is a woman
laying over here. This is what the police officer – I don’t
think that’s in here – that the police officer woke him up
and said something about a woman laying there, and he
couldn’t see over there.
Then I said something about Sara saying something about
him hollering up. That’s when he closed his eyes. Then he
was saying about the Scarface movie being on, and he
doesn’t remember how it got on, and that must have been
the gunshots. Then I asked him about the bullet holes that
were in the ceiling and he didn’t know nothing about that.
[N.T. Trial, 5/15/14, at 119-120; see also Commonwealth’s Exhibit 29].
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interview, [Appellant] denied the detective’s request to
submit to a formal interview.
Ms. Ayyash provided five different statements to police
concerning this incident. On May 7, 2012, at 3:00 p.m.,
Ms. Ayyash was interviewed by Detective Lynch at
Northeast Detectives. In that statement, Ms. Ayyash
asserted that she did not know what happened and that she
did not hear anything. During that interview, the detectives
confiscated Ms. Ayyash’s gray short sleeve T-shirt,
sweatpants, and underwear. These items were bagged
separately and submitted for gunshot residue testing. On
that same day, at 2:30 p.m., Ms. Ayyash was interviewed a
second time by Detective Lynch. In that statement, Ms.
Ayyash told Detective Lynch about the argument that
occurred before the shooting. Ms. Ayyash also told
Detective Lynch that she heard two “quick pops” after Ms.
Raudenbush went down the stairs. Ms. Ayyash stated that
she was at the top of the stairs when she heard this noise.
Ms. Ayyash also stated that she asked [Appellant] “What did
you do?” after observing the decedent half standing and half
slumped at the base of the stairs. She told Detective Lynch
that [Appellant] stated to her: “Shut the fuck up.” In
response, she told [Appellant] that she would not say
anything and asked him why he did it. She then ran into a
bedroom, shut the door and waved the white rag out of the
second floor window for help.
At 6:55 p.m., Ms. Ayyash gave a third statement. During
this interview, she provided details about her relationship
with [Appellant] and identified [Appellant] from a
photograph. On May 17, 2012, at 2:50 p.m., Ms. Ayyash
gave a fourth statement to Detective McDermott, and
Detective (now Sergeant) Vince Rodden. After being shown
a photograph from the crime scene, Ms. Ayyash marked “X”
where [Appellant] normally kept his semi-automatic gun
and marked “G” where [Appellant’s] gun was found after
the shooting. On October 26, 2012, at 6:00 p.m., Ms.
Ayyash gave a fifth statement to Detective McDermott. In
that statement, Ms. Ayyash said that she saw sparks fly
from the gun. On July 25, 2012[,] Ms. Ayyash testified at
[Appellant’s] preliminary hearing that she and Ms.
Raudenbush drank alcohol after they retreated upstairs
following the argument. At trial, Ms. Ayyash stated for the
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first time that she saw [Appellant’s] arm extended before
hearing gunshots and seeing Ms. Raudenbush fall forward
on the stairs. She also stated that [Appellant] threatened
her when she was at the top of the stairs, telling her that
she was next. Ms. Ayyash explained that she had received
counseling after providing the detectives her statements
and testifying at the preliminary hearing and that she now
wanted to “tell the whole truth.”
At trial, Police Officer Ronald Weitman testified as an expert
in firearms and ballistics testing. He received the ballistics
evidence and prepared a report after conducting an
examination. The CZ75 semi-automatic [nine-millimeter]
Luger gun contained 12 live [nine-millimeter] Luger
cartridges inside even though it had the capacity to hold
[17] cartridges. In addition to confirming the gun’s
operability, Officer Weitman found that it loudly fired bullets
in close quarters. Officer Weitman also received the three
[nine-millimeter] Luger fired cartridge casings expelled from
the CZ75 gun when it was test-fired. He found that the
fired cartridge casings were similar to each other. He also
discovered that the fired cartridge casings ejected to the
right and to the rear when the gun was fired. After
analyzing this evidence, Officer Weitman concluded to a
reasonable degree of scientific certainty that the three fired
cartridge casings recovered from [Appellant’s] residence
were fired from the CZ75 semi-automatic gun.
Officer Weitman further concluded to a reasonable degree of
scientific certainty that the ballistics evidence was
consistent with testimony that [Appellant] extended his
right hand, held the gun, and shot the victim. Officer
Weitman based his conclusion on the trajectory probes that
pointed toward [Appellant’s] bed, the location of the three
fired cartridge casings found behind [Appellant’s] bed, and
the way that the fired cartridge casings ejected from the
gun. Officer Weitman further opined that the fired cartridge
casings would have been found within the area of the body
if the killing had been self-inflicted.
Officer Weitman also received the bullet jacket fragment
and fragment pieces that the medical examiner retrieved
from Ms. Raudenbush’s body. Officer Weitman opined that
a bullet can fragment when it penetrates two hard ribs.
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Although the bullet jacket was torn, Officer Weitman was
still able to determine that it was [nine-millimeter] because
the base diameter was intact. After comparing the bullet
jacket fragment to the recovered fired cartridge casings,
Officer Weitman concluded that the bullet jacket had been
fired from the same gun because they had the same
projectile design. On June 13, 2012, Officer Tull manually
examined the CZ75 gun and found no fingerprints.
Although the gun was not submitted for DNA testing,
[Appellant] admitted his ownership of the weapon to the
police.
At trial, Gamal Emira testified as an expert in gunshot
residue testing and forensic science. Mr. Emira reviewed
the criminalistics report prepared by Francis Padayatty, who
received and examined [Appellant’s] green Phillies short
sleeve T-shirt, one blue twin comforter, one light blue bed
sheet, one yellow bed sheet, and one pillow. These items
were stubbed and a scanning electron microscope was used
to search for gunshot residue particles on the bedding and
the clothing. A stub is aluminum, rounded and covered with
double-sided carbon tape, which easily transfers any
particle from a garment. The scanning electron microscope
uses an electron beam and magnifies each particle up to
100,000 times. Mr. Emira explained that the presence of
gunshot residue particles on a person’s clothing indicated
either that the person fired the gun, that the person was
within six or seven feet of the fired gun, or that the person
touched a surface covered with gunshot residue particles.
[Appellant’s] T-shirt was stubbed four times. The first stub
from the front right sleeve contained nine gunshot residue
particles. The second stub from the back right sleeve
contained [13] gunshot residue particles. The third stub
from the front left sleeve contained eight gunshot residue
particles. The fourth stub from the rear left sleeve
contained eight gunshot residue particles. [Appellant’s]
shorts were not tested. The stub from [Appellant’s]
comforter contained one particle. The stub from
[Appellant’s] light blue bed sheet contained nine gunshot
residue particles. The stub from [Appellant’s] yellow bed
sheet contained two gunshot residue particles. The stub
from [Appellant’s] pillow contained one particle. Ms.
Ayyash’s T-shirt was also examined and stubbed four times.
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The first stub from the front right sleeve of the T-shirt
contained four particles. The second stub from the rear
right sleeve contained six particles. The third stub from the
left front sleeve contained [12] particles. The fourth stub
from the left rear sleeve contained six particles. Because
the gunshot residue particles were discovered on the T-
shirt, the other two items retrieved from Ms. Ayyash were
not tested for gunshot residue particles.
Mr. Emira noted that it is more reliable to test someone’s
clothing rather than their hands. He explained that gunshot
residue particles remain on clothing longer than a person’s
hands. The gunshot residue particles can be easily removed
from a person’s hands if the person wipes their hands on
themselves, on another person or on a surface[,] or if the
person sweats. A person’s hands could be tested for the
presence of gunshot residue particles only if they were
immediately covered with an evidence bag. However, if the
recovered clothing is properly stored in an evidence bag,
then it can be submitted to the forensics laboratory for later
analysis because the gunshot residue particles will not
disappear.
Mr. Emira opined that the presence of gunshot residue
particles on [Appellant’s] bedding and clothing was
consistent with testimony that [Appellant] fired a gun from
his hospital bed. Mr. Emira noted that gunshot residue
particles could be found within seven feet from where the
shooting occurred. Mr. Emira further opined that the
presence of gunshot residue particles on Ms. Ayyash’s T-
shirt was consistent with testimony that Ms. Ayyash came
downstairs after the shooting, stepped over the victim’s
body, sat at the foot of [Appellant’s] bed, and touched
[Appellant]. Mr. Emira explained that a person can easily
transfer gunshot residue particles to another person by
touching the person or the person’s clothing. Mr. Emira
made these conclusions to a reasonable degree of scientific
certainty.
On May 24, 2012, [Appellant] was arrested. On June 5,
2012, Detective McDermott executed a search warrant on
the computers inside [Appellant’s] house and submitted
them to the forensics laboratory for examination. The
forensics laboratory discovered that [Appellant’s] computer
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hard drive contained pornographic videos sent from Ms.
Ayyash.
...
On May 13, 2014, [the trial court] heard a motion to
suppress [Appellant’s] statements and denied same.
Thereafter, on May 19, 2014, the jury [found Appellant
guilty of] first-degree murder and possession of an
instrument of crime [(hereinafter “PIC”)]. On that same
day, [Appellant] was sentenced to life imprisonment without
the possibility of parole.[4]
Trial Court Opinion, 6/26/15, at 1-14 (some internal citations omitted).
Following the denial of Appellant’s post-sentence motion, Appellant
filed a timely notice of appeal. Appellant raises four claims on appeal:
1. Did the trial court err in denying [Appellant’s] motion to
suppress his statement given on May 7, 2012 because (1)
he was in custody and interrogated without Miranda
warnings when he was transported to and held in the
hospital at police direction, then surrounded by police,
heavily medicated, and not permitted to leave; and (2) the
statement was not voluntary as he was medicated, not able
to leave, exhausted, and was viewed and treated as a
suspect?
2. Did the trial court err in denying the motion to suppress
[Appellant’s] statement given to police on May 14, 2012
because both the statement and the waiver of his Miranda
rights were involuntary as the conditions surrounding the
interrogation showed he was medicated, treated like a
suspect, unable to leave, and had already been coerced to
provide an earlier involuntary and un-Mirandized
statement?
____________________________________________
4
The trial court sentenced Appellant to serve a concurrent term of two-and-
a-half to five years in prison for PIC.
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3. Was the verdict of first degree murder against the weight
of the evidence where the Commonwealth’s primary witness
gave separate and significantly conflicting statements, had
gun powder residue on her shirt, the firearm was found in a
position in which [Appellant] was incapable of leaving it,
and none of the other evidence presented by the
Commonwealth established [Appellant’s] guilt?
4. Where the undisputed evidence established that the
decedent attacked, stole from and injured the [Appellant]
over the course of a mostly uninterrupted violent fight and
initiated the final confrontation, was the evidence
insufficient to sustain a verdict of guilty of first degree
murder rather than a voluntary manslaughter beyond a
reasonable doubt?
Appellant’s Brief at 5.
We have reviewed the briefs of the parties, the relevant law, the
certified record, the notes of testimony, and the opinion of the able trial
court judge, the Honorable Sandy L. V. Byrd. We conclude that there has
been no error in this case and that Judge Byrd’s opinion, entered on June
26, 2015, meticulously and accurately disposes of Appellant’s issues on
appeal. Therefore, we affirm on the basis of Judge Byrd’s opinion and adopt
it as our own. In any future filings with this or any other court addressing
this ruling, the filing party shall attach a copy of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2016
- 15 -
Circulated 03/24/2016 03:16 PM
IN TIIE COURT. OF COMMON PLEAS OF PIDLM)ELPHIA COUNTY
CRil\tlINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR~0008766-2012
v. SUPERIOR COURT
BOHDANCHAC 2830 EDA 2014
..........
··.OPINION
Byrd, J. June 26, 2015
This case was tried before tbis court, sitting with a jury, commencing on May 13, 2014.
On May 13, 2014, this court heard a motion to suppress defendant's statements and denie.dsame.
Thereafter, on May 19, 2014, the jury convicted defendant of first-degreemurder and-possession
of an instrument of crime. On that same day, defendant was sentenced to life imprisonment
without the possibility of parole. Shortly thereafter, defendant filed a post-sentence motion,
. . .
which was denied by operation of law on September 29, 2014. On Octob~r 2, 2014, ~efendru~.t
filed a notice of appeal. Defendant was- ordered to file a Statement of Matters Complained of on
Appeal on October 20~ 2014. On .November 10, -2014, he filed a Preliminary Statement· of
Matters. Complained of on Appeal due t~ an incomplete set of notes of testimony. . Defendant
filed a Supplemental Statement of Matters Complained of on Appeal on January 29, 2015.
. . . . "
.flLED · CP-51-CR-OJO!f768-2012 Co1nm. v. Chae, Bohdan ·
· Op!r.Jco ·
JUN,~ 6 2015·
: Criminal Appeals u·nit . . II 1111111 11111111111
·i First Judicia\.District of PA_ '7312542491
. ~.
Commw. v. -Bohdan Chae Page 1 or36
STATEMENT OF FACTS
On May 6, 2012, 'at around 10:00 p.m., defendant shot and killed Linda Raudenbush as
she came
. down the stairs from
.. the. second floor
. .
of 3302 Fairdale Road. in Philadelphia.
.
Defendant shared this residence with Ms, Raudenbush, his common-law wife, and their twenty-
six (26) year old son, David Chae. In November 2011, eighteen: (18) year-old Sara Ayyash
moved into this residence as defendant's girlfriend against the wishes of her mother, Angela
Garl~d. Ms. Ayyash had been communicating with defendant on Fa~ebook since May 2010.
At that time, defendant was around fifty-five (55) .years old and Ms .. Ayyash was .sixteen (16)
years old. · Their· relationship turned sexual in November 2010 when Ms .. Ayyash began to ·
electronically send defendant pornographic photographs and videos, . Defendant was partially
paralyzed and Ms. Ayyash helped care for him during the period they. lived ·together. N.T.
05/13/14, pp. 201"272; N.T. 05/14/14, pp. 7"101, 116-133.
During the period she lived with defendant, Ms. Ayyash was permitted to visit her mother
about three to four times. In fact, she had visited her mother the weekend before the murder. On
May 6, 1012 Ms. Ayyash returned to defendant's residence. and found him and Ms. Raudenbush
in ·the middle of an argument. · At some point Ms. Ayyash got involved in the argument ~d
threw a book at defendant after he insulted her. When Ms . Ayyash approached· defendant, he
. .
pulled her hair. Ms. Raudenbush then approached 'defendant and bit his foot. Shortly thereafter,
Ms. Ayyash and Ms. Raudenbush retreated upstairs. Later, Ms. Raudenbush went back
do;nstairs to. co~tinue the argument, When .Ms. ~aud~nbush reached the bottom of the stairs,
she leaned toward defendant and yelled at him.: In response, defendant. sa~ upright in his hospital
bed, extended his right arm, pointed his gun at Ms.: Raudenbush and shot he~ in the left chest ..
Commw. v. Bohdan Chae Page 2 of36
Ms. Raudenbush fell forward on the stairs. N.T. 05/13/14, pp. 20·1~272; N.T. 05/14/14, pp. 7-
101, 116~133.
On May 6, 2012, at about 10:22_ p.m., Police Officer Robert Francisco responded to a
.radio call about a.person screaming at 3302 Fairdale Road. Within minutes, Officer Francisco
arrived on location and encountered Rowena Wolfe-Paupst, who had called 911 after observing
Ms. Ayyash waving a white rag from inside the second floor bedroom window of the residence.
Officer Francisco exited the vehicle, looked up· at the window and saw Ms. Ayyash screaming
and waving the white rag. He attempted to communicate with Ms.Ayyash while she was in the
window, but he could not understand her responses. · Given the apparent urgency, Officer
Francisco opened the unlocked front door and went inside. He announced his presence as he
walked into the hallway, but did not receive any response. N.T. 05/13/14, pp. 151-200,
As Officer Francisco continued to walk down the hallway he saw defendant who ~as
sitting upright in his hospital bed inside the living room, wearing a green Phillies.T-shirt. Officer
Francisco stated: "There is a woman waving a rag upstairs at the window for help. What's going
on here?" Defendant stated that he did not know what happened because
.
he had been
.
asleep.
Once inside the Jiving room, Officer Francisco saw the deceased, Ms. Raudenbush, lying on the
stairs with blood all over the front of her dress. Ms. Raudenbush's body was at the bottom of the
. .
stairs leading to the second floor, about five or six feet away from defendant's bed. Her feet
were touching the stairs, and her upper body was wedged between the wall and a second hospital.
bed which was covered with clutter. Officer Francisco immediately called rescue. N.T.
05/13/14, pp. 151-200.
. .
Officer Francisco then saw, Ms. Ayyash standing at the top of the stairs and asked her to.
come downstairs to tell him what happened. She replied that the victim shot herself. Ms.
Commw. v. Bohdan Chae Page 3 of 36
Ayyash told Officer Francisco that she did not see Ms. Raudenbush shoot herself, but that she
had heard the gunshots. Officer Francisco then asked Ms. Ayyash why she had not called police,
and she replied thatshe ·was too scared to call. Later, when Detective Gross responded to the
scene and asked Ms. Ayyash if she had heard gunshots, she told him no. Officer Francisco then
confronted Ms. Ayyash about this inconsistency, and she responded that she did hear gunshots.
Immediately after Ms. Ayyash's reply, defendant said: "You didn't .hear a gunshot. I had the
.movie Scarface on and that's what you heard. You didn't hear any gunshot." Officer Francisco
again asked defendant if he had heard or seen anything an~ defendant _cavalierlyresponded: "No,
I don't know anything about it." Defendant's son was not home and Officer Francisco did not
see anyone else inside the house. At trial, Detective Joseph McDermott, the assigned homicide
investigator, stated that a video obtained from a Rite Aid store located at Academy Avenue and
Byberry Road showed the son entering at 9:53 p.m. and exiting at I 0:02 or 10:06 p.m. Detective
McDermott stated that David Chae then walked "quite a distance" to return home. Detective
N.T. 05113/14,pp. 151-200; N.T. ·os/15/14, pp. 125-126.
When the medics arrived to care for the victim, Officer Francisco observed a black gun,
later identified as a CZ75 .9mm semi-automatic black pistol, lying upside down on the second
hospital bed in the room. Officer Francisco secured the gun while Ms. Raudenbush received
medical attention. The gun was later submitted to the Firearms Identification Unit for
examination. At I0:45 p.m., Linda Raudenbush was pronounced dead inside the residence. At
trial, Dr. Marlon Osbourne testified as an expert in forensic pathology. After performing an·
autopsy on the victim's. body, Dr. Osbourne concluded to a reasonable degree of medical
. .
certainty that the cause of death was one gunshot wound to the chest. TI1e bullet perforated Ms.
'
1and
Raudenbush's left lung, heart, and aorta. The bullet
.
entered her left chest
. cavity fractured
Commw. v, Bohdan Chae Page 4 of36
her fourth and fifth rib anteriorly, The bullet then lacerated the upper lobe of her left lung and
traveled through the left ventricle of herheart, The bullet further lacerated her thoracic aorta and
traveled into her eighth thoracic vertebra, where a fragmentwas retrieved .. There was no exit
wound on her body. Due to these injuries, Ms, Raudenbush ~as bleeding internally and she had
one liter of clotted and l~quid blood insideher left chest cavity. N.T . 05/13/14, pp. 151~200; N:T. ·
05/14/14, pp. 186-216 .:
· After performing the autopsy, Dr. Osbourne further concluded to a reasonable ~egree of
medical certainty that the manner of death. was homicide, .and not suicide or acci~ent. Dr.
Osbourne opined 'that the path of the bullet in the victim's body was consistent with testimony
. that the victim went to the bottom of the stairs and leaned over toward defendant b.efm;e she was
. the gunshot wound was an irregular ovoid. shape and had
shot. Dr. Osbourne also observed-that
no soot, stipple or muzzle imprint around it He explained that soot, a black stain, is present
when the muzzle of a gun is within six inches to one foot from the victim's body. Stipple, an
abrasion on the skin or hole in the.clothing, is present when the muzzle of the gun is within two
and one-half to three feet from the. victim's body. A muzzle
. . imprint is present once a gun has
.
been pressed against the victim's skin. Because there was no .soot, stipple or muzzle imprint
around Ms. Raudenbush's gunshot wound, Dr. Osbourne concluded that the muzzle of the gun
was farther than two and one-half to three feet away from the victim because one or all three of
.· . .
these indicators would have beenpresent had the victim committed suicide. For these reasons;
. . .
·Dr.Osbourne. concluded that a suicide hadnot occurredin this case. N.T. 05/14/14, pp. ·186-216.
During the autopsy, Dr. Osbourneperformed a-·toxicology test on Ms. Raudenbush and"
~ discov_ered 70 micrograms per deciliter of ethanol, less· than ·50 micrograms per liter of codeine,
and. less than 30 micrograms per liter of alprazolam (Xanax), Dr. Osbourne found that· the
Commw. v. Bohdan Chae Page 5 of36
alcohol in the victim's body was less than the legal driving limit and that the levels of alprazolam
and codeine were minimal. Consequently, Dr .. Osbourne concluded to a reasonable degree of
medical certainty that the drugs and alcohol found in Ms. Raudenbush's body did not contribute
to he! death. N.T. 05/14/14, pp. 186-216.
On May 7, 2012, at about 7:00 a.m., Police Officer Terry Tull arrived at the crime scene
and began t~ take photographs, When Officer Tull went inside the residence; he encountered a
cluttered living room containing two hospital beds. Defendant was sitting on one hospital bed,· ·
about seven feet away from the foot of the stairs where the victim's body was located. The other
hospital bed was covered with clutter, Ms. Raudenbush's body had been slightly repositioned by
· responding medics who had attempted to resuscitate the victim; The dining room was
impassable because it was piled high with clutter. Officer Tull further observed two bullet holes
in the first floor ceiling of the main hallway that led to the living room. Given the cluttered state
of defendant's house, Officer Tull used trajectory probes to determine the path the bullets
traveled. Based on his training and experience, Officer Tull determined that'the trajectory probes
pointed toward defendant's bed. As a result, Officer Tull concluded that the gun was fired from
defendant's bed. N.T, 05/14/14, pp. 15-72.
A search warrant was obtained for the residence. However, both Ms. Ayyash and David
Chae, who arrived at some point after the murder, were transported to Northeast Detectives to be
interviewed before it was executed, Defendant was transported ta Aria Torresdale Hospital due
to his medical condition. Before defe~dant was ·transported to the hospital,. Detective John
Hopkins retrieved the green Phillies T-shirt and the red shorts that defendant had worn on the
day of the mu_rder. These items were bagged separately and submitted tothe forensics laboratory
for gunshot residue testing. After defendant was transported to the hospital, Detective Hopkins
Commw. v. Bohdan Chae Page 6 of36
recovered one blue comforter, two bed sheets, and ~me pillow from defendant's hospital bed. ·
These items were bagged separately and submitted to the forensics laboratory for gunshot
I
residue testing. He also recovered a black Action Amis pistol case for the CZ75 .9mm pistol and
•-r'·.: • '
. .
one metal magazine containing a .9mm round. Officer Tull then moved defendant's bed and the .
surrounding clutter and began to search for projectiles. Officer Tull found three fired cartridge
casings under the rear of defendant's bed. Two of the fired cartridge casings were about one and
one-half feet apart from each other. No other fired partridge casings were recovered from the
residence. N.T. 05/14/14, pp. 137-186; N.T. 05/15/14,.pp. 15-72.
. .
~n May 7, 2012, at 11 :54 a.m., Det~ctive Tim.Lynch interviewed defendant while he was
inside an emergency room treatment cubicle. Detective Hopkins and Sergeant Hendershot were
also present. During this interview, defendant appeared alert and· answered 'the 'detective's
.
questions. He did not appear to be under the influence of drugs, After the interview, Detective
Lynch provided defendant the opportunity to review the written statement. However, defendant
refused to sign· the statement.' On May .14, 2012, at 11 :50 a.m., Detective McDermott
I
On May 7, 2014, the following questions were asked by Detective Lynch and answered by defendant:
[Detective Lynch]: . What happened last night at your ho~e?
[Defendant]: Sara got home around 5:00 p.m. or 6:00 p.m. My
wife tried to grab some of my pills. It was some ofmy Amblen and my Tylenol
4. I was getting a bath from my son at that time, She came.to get the pills and I
pushed her away with my right foot. She bit my foot. My son told her to go
away. She went upstairs. She had hit me in the face with something. After she
left I noticed that I bad a bloody nose. I yelled up to her that I was going to act
on a letter that I got from the· 8th District. Tue letter said the. police knew .I was
being abused, I also told her I was going to call the DA. I took 2 Xanax & an
Amblen, I tried to get You'Iube on to put me tosleep, I just woke up a while
later. I noticed a Scarface clip was playing and music playing. I was trying to
go back to sleep. I got woken up by a police officer who was knocking and he
came in. Before I feli asleep I sent my son ~o Rite Aid. I had 2 guns near nte
when I went to sleep. As far as I know neither had bullets in them. I took the
.bullets out.
,.
[Detective !.,,ynch]: Which guns did you unload?
· Commw. v. Bohdan Chae Page 7 of 36
interviewed defendant inside his residence. Although defendant was not under arrest, Detective
[Defendant]: Smith & Wesson Bodyguard .38 (snub nose, shroud,
hammer, nickel, brown wood handle) Cl.75 .9mrn (black auto)
[Detective Lynch]: Did you unload the guns yourself?
[Defendant]: Around 2 weeks ago I pulled out the dip of the
CZ15. If I felt dan~er at night sometimes Iput the clip back in. ·
[Detective Lynch]; Are you able to unload the gun and·clear the chamber
by yourself?
[Defendant}: I can unload it, but not clear the chamber. My left
hand doesn't work.
[Detective Lynch}: Wa485 Pa. 180, 182, 401 A.2d 353, 354 (1979). In applying this
. .
test, "the entire record must be evaluated and all evidence actually received must be considered."
Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001) (quoting Commonwealth v.
Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)).
The "question of any doubt regarding the facts and· circumstances established by the
..
Commonwealth is for the fact-finder to resolve unless the evidence-is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the combined circumstances."
Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002). Further, "it is for the
fact finder to make credibility determinations, and the finder of fact may believe all, part or none
of a witness's testimony." Commonwealth v. Mack, 850 A.2d 690, 693 (Pa. Super. 2004). In
Commonwealth v. Geiger, 475 Pa. 249, 254, 380 A.2d_ 338, 340 (1977), the courtheld that "[tjhe
. ..
Commonwealth must indeed prove ev.ery element ·of a crime beyond a reasonable doubt in order
to sustain a valid conviction for that crime." The Commonwealth may meet thi~ burden by
. .
presenting "wholly circumstantial evidence.'> Commonwealth v. Williams, 615 A.2d 416} 418
(Pa. Super. 1992). See also Commonw~alth v. Cox, 460 Pa. 566, 569, 333 A.2d 917, 918 (1975)
Commw. v, Bohdan Chae Page 16 of 36
(holding that "[i]t is well established in Pennsylvania that circumstantial evidence alone may be
sufficient to determine commission of a crime and convict the accused of it"),
In this case, the Commonwealth proved beyond a reasonable doubt that defendant was
guilty of the crimes charged. To convict an individual of first-degree murder, "the
. .
Commonwealth must prove beyond a reasonable doubt that the defendant acted with malice and
a specific
\
intent to kill, that a human
. being was unlawfully killed, that the defendant committed
the killingand that the killing was intentional, deliberate and-premeditated." Commonwealth v.
Chamberlain, 612 Pa. 107, 129, 30 A.3d 381-, -394 (2011), cert. denied, 132 S. Ct. 2377 (2012).
. .
See also 18 Pa. C.S. §2502(a), (d). In Commonwealth v. Hare, 486 Pa. 123, ~29, 404 A.2d 388,
391 (1979),
.
the court explained that "[mlalice will be found if the actor
. committed. a killing with·
an intent to kill].]" ·
In Commonwealth v. Chambers, 602 Pa. 224,.245, 980 A.2d 35, 47 ·(2009), cert. denied,
560 U.S. 928 (2010), the court held that "the specific intent to kill can b€ formed in a fraction of
. .
a second, and may be found whenever the defendant acts with a conscious purposeto bring about
the death of the victim." See also Commonwealth v. Agle, 449 Pa. 187, 190, 296 A.2d 741, 742
(1972) (explaining that specific intent to kill "may be found from a defendant's words or
conduct"), See also Commonwealth v. Sattazahn, 631 A.2d 597, 602 (Pa. Super. 1993) (holding
. that "[a] specific intent to kill can be inferr~d from the circumstances .surrounding an unlawful
killing"); Commonwealth v. Austin, 575 A.2~ 141, 154 (Pa Super. l990) (holding that. "[mjalice
may be inferred from the attending circumstances"). In Commonwealth v. Fisher, 564 Pa. 505,
51_8, 769 A.~d 1116, 1124 (2001), cert. denied, 535 U.S. 906 (2002), the court noted that
"[p
. ]remeditation. and. deliberation·
.,.
exist whenever
.
the assailant. possesses
. the conscious purpose
lo bring about death."
Commw. .V. Bohdan Chae Page 17 of36
Here, the evidence shows that defendant sat upright in his hospital bed, extended his right
arm, pointed his CZ75 semi-automatic pistol at Ms. Raudenbush, and shot her as she came down
the stairs of their residence, Although defendant was partially paralyzed, testimony established
that he had full use of his right arm and hand. Thus, defendant cannot claim that he was
physically incapable of committing this· crime. By introducin~.this evidence, the Commobwealt~
. .
proved beyond a reasonable doubt that defendant committed first-degree murder. Certainly,
defendant's conduct was the product of premeditation .and deliberation, See Fisher, 564 Pa. at
. .
517, 769 A.2d at 1124 (holding that "[tjhe period of reflection nece~sary to constitute
premeditation may· be very brief; in fact, the design to· killean be formulated in a fraction of a
second").
Defendant's conduct further exhibited malice and specific intent to kill as he shot Ms.
Raudenbush, who was unarmed, in her left chest within close range, causing irreparable damage
to her vital body organs. See Commonwealth v. Holley, 945 A.2d 241 (Pa. Super. 2008) (holding
. .
that a defendant's intent can be proven by direct or circumstantial evidence). Indeed, "[sjpecific
intent to kill as well as malice can be inferred from the use of a deadly weapon upon a vital part
ofthe victim's body." Commonwealth v.. Padilla;622 Pa. 449, 461, 80 A.3d 1238, 1244 (2013),
. . .
cert. denied, 134 S.Ct. 2725 (2014). See-Commonwealth v. Bond, 539 Pa. 299, ?05, 652 A:2d
. .
308, 311 (1995) (noting 'that a gu?- is "clearly a deadly weapon"}; Commonwealth v. Solano, 5 88
Pa. 716, 736, 906 A.2d 1180, 1192 (2006), cert. denied, 550 U.S .. 93~ (2007) (noting that one of
· the factors that "weighs in on. the element of intent', is "the precise distance from which the
bullets were fired"); Commonwealth v. Rodgers, 500 Pa. 405, 4.09, 456 A.2d 1352, lJ54 (1983)
(ruling that a shotgun fired within short rang~ of the victim "establishes the specific intent to talce
life"); Commonwealth v. Davis, · 491 Pa. 363, 421 . A.2d · 179. (1980) (holding that the·
Commw. v. Bohdan Chae Page 18 of 36
Commonwealth established specific intent to kill through evidence that defendant shot unarmed
victim); Commonwealth
. :-
v, Chine, 40 A.3d 1239, 1242 (Pa. Super. 2012).(holding that evidence
. . .
or defendant shooting an "unsuspecting, unarmed" victim clearly indicated specific intent to kill
and malice).
At trial, Dr. Osbourne testified as an expert in forensic pathology and concluded to a
reasonable degree of medical certainty that the cause of Ms. Raudenbush's death was one
gunshot wound to her left chest. The bullet entered her left chest and perforated her left lung,
heart, and aorta. The bullet did not exit Ms. Raudenbush's body. Instead, it was retrieved from
her eighth thoracic vertebra .. As a result, Ms. Raudenbush bled internally and had about one liter
of blood inside her left chest cavity. See N.T. 05/14/14, p. 194 (forensic pathology expert
confirming that the heart, lung, and aorta are vital parts of the body). In addition to determining
the cause of death, Dr. . Osbourne concluded
. .
to a reasonable degree of medical certainty that the
mannerof death was homicide.' There was no evidence that Ms. Raudenbush's death resulted
from suicide, accident or natural causes. There was no soot, stipple or muzzle imprint around the
gunshot wound. Dr. Osbourne noted that one or all of these indicators would have been present
had the gunshot wound. been self-inflicted. Instead, the path of the bullet and the absence of
soot, stipple or a muzzle imprint was consistent with testimony that defendant shot and killed the
victim.
The Commonwealth- also presented ballistics evidence that directly pointed· to defendant
as the shooter. At trial, testimony established that the trajectory of the two bullet holes in the
ceiling pointed toward defendant's bed.· When police searched behind defendant's bed, they
. . . .
recovered three fired cartridge casings under the rear of his bed. They also found the murder
weapon, one CZ75 .9mm semi-automatic black pistol. At trial, Police Officer Weitman stated
Commw. v. Bohdan Chae Page 19 of 36
that the fired cartridge casings would have been found close to the victim> s body if. she had
committed-suicide. Officer Weitman also stated that the location of the trajectory probes and the·
. .
fired cartridge casings further established t~at the gun was fired from defendant's bed. After
test-firing defendant's CZ75 gun and comparing those fired cartridge casings to the three ,9mm
fired cartridge casings recovered from defendant's residence, Officer Weitman concluded to _a
reasonable 'degree of scientific certainty that the ~ecovered fired cartridge casings were fired
from defendant's gun. Officer Weitman also concluded to a reasonable degree of scientific
certainty that the bullet jacket fragment retrieved from the victim's body was. fired from.
defendant's gun because it had the same rib impressions and same caliber.
· In addition to this ballistics evidence, defendant's t~shirt, comforter, bed sheets, and
pillow were submitted to the forensic laboratory for gunshot residue testing. Mr. Gamal Emira
testified as a forensic science expert and concluded to a reasonable degree of scientific certainty
. .
that gunshot residue particles werepresent on these items. Mr. Emira opined that the presence of
gunshot residue particles ·on defendant's bedding and clothing was consistent with testimony that
defendant fired a·
.
gun from his bed. Mr. Emira further opined that the presence' of gunshot
.
residue particles on Ms. Ayyash's T-shirt was consistent with testimony that 'she came
downstairs after the shooting. and touched defendant. According to Mr. Emira, a person can
easily transfer gunshot r~sidue particles to another person by touching the person or the person's
. • • I
clothing. Contrary to defendant's position, trial testimony, ballistics evidence and forensic
· evidence directly pointed lo him as the perpetrator of this killing. In light. of .these facts, the
. .
Commonwealth proved beyond a reasonable doubt. that defendant was guilty of first-degree
murder. Therefore, therewas sufficient evidence to convict defendant of this offense.
. ~ .
Commw. v. Bohdan Chae Page 20 of 36
As stated above, defendant was convicted of possession of an instrument of crime.
Section 907 of the Crimes Code provides that- a defendant. is guilty of this offense when he
"possesses any instnunent of crime with. intent to employ it criminally." 18 Pa. C.S. §907(a).
An instrument of crime is "[a]nything specially made or specially adapted for criminal. use" or
"[a]nything used for criminal purposes and possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have." 18 Pa. C.S. §907(d). In this case, the facts
clearly show that defendant possessed a gun with the intent to commit first-degree murder
against Ms. Raudenbush. See Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super."2011)
(holding that "[i]t is ·undisputed that a gun can -be an instrument of crime'). Indeed, trial
testimony, ballistics and forensic evidence established that defendant .possessed a CZ75 semi-
automatic· pistol and that he used it to shoot and kill Ms. Raudenbush. Based on these facts, the
Commonwealth proved beyond a reasonable doubt that defendant possessed an instrument of
crime. Accordingly, there was sufficient evidence that defendant was guilty of this offense.
In raising a sufficiency· 'claim, defendant contends· that the Commonwealth did not
sufficiently link him to the crimes with which he was charged. However, in Commonwealth v.
Sullivan, 472 Pa. 129, ·1so, 371 A.2d 468, 478 (1977), the court ruled that "it is not necessary
that each piece of evidence be linked to the defendant beyond a reasonable doubt. It is only
necessary ... that the
. combination. of evidence link the defendant to the crime beyond
. ·a
reasonable doubt." As noted by the above discussion, the combination of evidence presented by
the Commonwealth proved beyond a reasonable doubt that defendant. committed first-degree
murder and possession of an instrument of crime. Consequently, defendant's sufficiency
challenge cannot prevail.:
Commw. v. Bohdan Chae Page 21 of36
Defendant next claims that the verdict was against the weight of the evidence. A new
trial will be granted on this basis «only when the jury's verdict is so contrary to the evidence as
to shock one's sense of justice." Commonwealth v. Vanliivner, 599 Pa. 617, 630, 962 A.2d
. .
1170, 1177 (2009), cert. denied, 559 U.S. 1038 (2010).. In reviewing whether the verdict was
against ~e weight of the evidence, the. trial court must exercise its discretion in determining
whether« .'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.' " Commonwealth v. Widmer, 560 Pa. 308, 320, 744
~.2d 745, 752 (2000) (quoting Thompson v. Philadelphia, 507 Pa. 592, 601, 493 A.2d ~69, 674
(1985)). The appellate court's review "is limited to whether the trial judge's discretion was
properly exercised, and· relief will only be granted where the facts and inferences of record
disclose a palpable abuse of discretion." Commonwea_lth v. Diggs, 597 Pa. 28, 39, 949 A.2d 873,
879 (2008), cert. denied, 556 U.S. 1106 (2009). In this case, defendant has not pointed to any
evidence that should have been accorcled greater, lesser or equal weight than the evidence that
was already introduced at trial. Mo~eovcr, the jury arrived at its verdict after giving due
. !
consideration to all relevant and propertr admitted evidence.
In raising a weight of the evid"r~c claim, defendant points to "separate and significantly
conflicting statements" provided by i Conunonwealth witness. However, defendant cannot
obta~ relief on this basis. See ComJ.J nwealth v.. Price, 616 A.2d 681, 685 (Pa. Supe_c H92)
(holding that "any conflict in the tes · ; ony goes to the credibility of the witnesses and is solely
to be resolved by the f actfinder"). As. ~e court held in Commonwealth v. B/aken~y, 596 Pa. 510,
523, 946 A.2d 645, 653 (2008), cert. dJnied, 555 U.S. 1177 (2009), a new trial cannot be granted
I
"merely because of some· conflict in 1·e~imonyor because the judge woul~ reach a different
conclusion on the same facts, but hould only do so in extraordinary circumstancesj.]"
Commw. ~- Bohdan Chae Page22 of36
Certainly, it 'is solely "within the province of the jury as fact-finder to .resolve all issues of
credibility, resolve conflicts in evidence, make reasonable inferences from the evidence, believe
all, none,. or some of the evidence, and ultimately adjudge [the defendant] ·guilty,,,
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006). The jury's verdict clearly
demonstrates that it exercised its lawful duty as fact finder and resolved any conflicting evidence
in the light most favorable to the Commonwealth. Consequently, defendant's claim has no
merit.
Defendant further challenges the sufficiency of evidence by arguing that the evidence
supports a voluntary manslaughter conviction rather than a first-degree murder conviction. In
challenging the jury's verdict, defendanthighlights that he and the decedent were involved in a
heated argument prior to -the murder. In Commonwealth v. Cox, 546 Pa. 515, 539, 686 A.2d
1279, 1291 (1996), cert. denied, 522 U.S. 999 (1997), the court explained that the crime of
voluntary manslaughter "involves a killing in a sudden and intense passion resulting from a
serious provocation or an unreasonable belief in 'self-defense." Voluntary manslaughter "is an
appropriate verdict for 'heat of passion' killings, where, 'at the time of the killing, [the
. defendant] acted under sudden and "intense passion [ due to] serious provocation by the victim.' "
Commonwealth v. Kim, 888 A.2d 841, 853 (Pa. Super. 2005) (quoting Commonwealth v.
Thomas, 552 Pa. 621, 640, 717 A.2d 468, 477 (1998), cert. denied, 5.28 U.S. 827 (1999)).
Specifically, heat of passion includes "emotions such as anger, rage, sudden resentment or terror,·
which renders the mind incapable of reason." Commonwealth v. Speight, 544 Pa. 451, 467, 677
A.2d 317, 324-325 (1996), abrogated on other grounds by Commonwealth v. Freeman, 573 Pa.
532, 827 A.2d 385 (2003), cert. denied, 543 U.S. 822 (2004).
Commw. v: Bohdan Chae Page 23 of36
In Commonwealth v. Copeland, 554 A.2d_5.4, 57 (Pa. Super. i988), the court explained
that - "[tjhe passion which will reduce an unlawful killing to voluntary manslaughter must be
caused. by le gaily adequate provocation." The law "is quite explicit that the determination of
. .
whether · ~ certain quantum of provocation is -sufficient to support the defense of voluntary
manslaughter is purely an objective standard." Commonwealth-v. McCusker, 44S Pa.' ~82, 389~
292 A.2d 286, 289 (1972). In determining whether there was serious provocation, one must
. . .
consider '' 'whether a reasonable [person] confronted by the same series· of events, would·
become impassioned to the extent that his mind would be incapable of cool-reflection.'''· Kim..
888 A.2d at 853 (quoting-Commonwealth v. Galloway, 485 A.2d 776, 783 (Pa. Super. 1984)).
Here, the jury was equipped with clear and legally · accurate instructions defining first-
degree murder, third-degree murder, and voluntary manslaughter· before they .engaged in
deliberations. Aft~r being provided with those instructions, the jury found defendant guilty of
first-degree murder instead of third-degree murder or voluntary manslaughter. The jury's verdict
. .
was supported by sufficient evidence that defendant intentionally shot and killed the victim
'
within close range. Although defendant and the victim bad been involved in an argument prior
to the shooting, defendant was not subjected to serious provocation that created a sudden and
intense passion rendering him incapable of cool reflection. See, e.g., Commonwealth v.
Hutchinson, 611 Pa. 280, 25· A.3d 277 (Z-011), cert. denied, 132 S.Ct. 2711 (2012) (holding that"
the defendant was not sufficiently provoked into .heat of passion by argument with victim
occurring shortly before murder 'or by other serious issues in relationship); Commonwe~lth v...
Frederick,
.
508 Pa. 527, 534, 498 A.2d 1322, 1325 (1985) (holding that evidence of the
. .
defendant and the victim· arguing before murder and having a. "stormy love affair" was
insufficient evidence of voluntary manslaughter); Commonwealth v. Walters, 431 Pa. 74, 244
Commw. v. Bohdan Chae Page 24 of 3"6
A.2d 757 (1968) (holding that there was insufficient evidence that defendant killed in heat of
passion after the victim argued with and cursed at the defendant prior to the murder);
Commonwealth v. Robinson, 452 Pa. 316, 323, 305 A.2d 354, 358 (1973) (reiterating principle
that "no words of provocation, reproach or slight assault are sufficient to reduce a ~omicide to
voluntary manslaughter").
By finding defendant guilty of first-degree.murder, the jury found insufficient evidence
of defendant killing in a sudden and intense passion resulting from a serious provocation. Even
if sufficient provocation existed, the jury's verdict indicates that it found defendant had a
sufficient cooling period to reasonably regain the capacity to reflectand respond· in a civil and
non-violent manner. See Commonwealth v. 'Rivers, 557 A.2d 5, 9 (Pa. Super. 1989) (instructing
that even "[ijf sufficient provocation exists, the fact finder must also determine whether the
defendant actually acted in the heat of passion when he committed the homicide and thus
whether the provocation led directly to the killing or whether there was a sufficient 'cooling'
period so that a reasonable man Would have regained his capacity to reflect"). As previously
discussed, there was sufficient evidence proving that defendant possessed the specific intent to
kill and acted with malice when he murdered the victim. See Commonwealth v. Whitfield, 475
Pa. 297, 303, 380 A.2d 362, 365 (1977) (explaining that "[t]he gravamen of ~oth murder of the
first degree and voluntary manslaughter, as distinguished from murder, h510 Pa. 43, 51, 507 A.2d 23,
27 (1986) (quoting Commonwealth v. Berry, 461 Pa. 233, 237, 336 A.2d 262, 264 (1975), which
noted that voluntary. manslaughter "is a concession to the infirmity _of human nature, not an
excuse for undue or abnormal. irascibility'} Indeed, it is well-settled that the court "may
.
not
substitute its judgment for that of the fact-finder." Commonwealth v. Goins, 867 A.2d 526, 528
Commw. v. Bohdan Chae Page 25 of36
(Pa. Super. 2004). See also Commonwealth v. Sinnott, 612 Pa. 321,.331, 30 A.3d 1105, 1110
(2011) (explaining that "the critical inquiry is not whether the court believes .the evidence
established guilt beyond a reasonable doubt, but whether the evidence believed by the fact-finder
was sufficient to support the verdict"). In light of these legal principles, the jury's verdict may
not be overturned. 'See Commonwealth v. Leonhard, 485 A.2d 444,. 446 (Pa. Super. 198~)
(hold!ng that the court may not. "remove from the jury its responsibility to decide the degree of
culpability"). Consequently, defendant cannot obtain relief on this basis.
Defendant next argues that this court erred in denying his motion to suppress the two
statements that he provided to police. When reviewing a challenge to the suppression court's
ruling, the appellate court is bound by .the suppression
. court's findings of fact so long as they are
supported by the record. Commonwealth v. Chandler, 505_ Pa. 113, 477 A.2d 851 (1984). The
appellate court will reverse this court's decision H 'only if there. is an error in the legal
conclusions drawn from those findings.',, Commonwealtb v. Basking, 970 A.2d 1181, 1187 (Pa.
Super. 2009) (quoting Commonwealth v. Hill, ·874 A.2d 1214, 1216 (Pa. Super. 2005)). Thus,
the appellate court considers "whether the suppression court properly applied the law to the facts
of the case." Commonwealth v. Ruey, 586 Pa. 230, 240, 892 A.id 802, 807 (2006).
In cases where the defendant's motion to suppress has been denied, the appellate court
will H 'consider only the. evidence of the prosecution's witnesses and so much of the evidence for
the defense as, fairly read in the context of the record as a whole, remains uncontradicted.' " In
re J.V., 762 A.2d 376, 379 (Pa; Super. 2000) (quoting Commonwealth v. Reddix, 513 A.2d 1041,
1042 (Pa. Super. 1986)). Our Superior Court has held that "it is the sole province of the
suppression court to weigh the credibility. of the witnesses. . . .. Further, the suppression court
judge is entitled to believe all, part or none of the evidence presented." Commonwealth v.
Commw. v. Bohdan Chae Page 26 of36
Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) (citation omitted). It is the Commonwealth's
burden to prove by a preponderance of the evidence that the evidence challeng~d by a defendant
in his motion to suppress is admissible. See Basking. The suppression of evidence is a remedy
. available in instances where the infringement not 'only .violates the Pennsylvania Rules of
Criminal Procedure, but "also implicates fundamental, constitutional concerns, is conducted in
bad-faith or has substantially prejudiced the defendantj.]" Commonwealth ~- Mason, 507 P.a.
396, 407, 490 A.2d 421, 426 (1985).
Contrary to defendant's position; his federal and state constitutional rights were· not
violated
. as he was not entitled to -the provision of Miranda 'warnings during
.
either interview.. In
Commonwealth ·v: Busch, 713 A.2d 97, 100 (Pa. Super. 1998), the court held that '~[i]t is well-
settled that the police are .'only required to advise a person of his Miranda rights if that person is
subjected to custodial interrogation.'' To « 71 A.3d 998, 1003 (Pa.·Super. 2013)
(quoting Commonwealth. v. Heggins, 809 A.2d 908, 914 (Pa. Super. 2qo2)): In· Commonwealth
. . .
v. Baker, 24 A.3d 1006, ) 019 (Pa. Super. 201 l),: the court e~p_lained 'that "police detentions
become custodial when, under the totality of the circumstances, the conditions and/or duration of
. .
the detention
. become
. so coercive as to constitute the functional equivalent of arrest."
. Police
"[ijnterrogation occurs. where the police should know
.
that their words or. actions
. . are
. reasonably
likely to elicit an incriminating response from the suspect." Commonwealth v. · Ingram, 814 A.2d
2641 271 (Pa. Super. 2002).
In effect, 'lt]he test for determining whether a suspect is being subjected to custodial
interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his
freedom in any significant way or.is placed in a situation in which he reasonably believes that.his
Commw. v. Bohdan Chae Page 27 of36
freedom of action or movement is restricted by such interrogation." Commonwealth v. Chacko,
500 Pa. 571, 577, 459 A.2d 311, 314 (1983). In making this determination, the court considers
several factors before concluding that a defendant was subjected to custodial interrogation. In
Busch, the court observed that:
Among the factors the court utilizes in determining, under the
totality of the circumstances, whether the detention became so
coercive as to constitute the functional equivalent of a formal arrest
are: the basis for the detention; the duration; the location; whether
the suspect was transferred against his will, how far, and why;
whether restraints were used; the show, threat or use of force; and
· . the methods of investigation used to confirm or dispel suspicions.
Id, 713 A.2d.at 101 (quoting Commonwealth v. Peters, 642 A.2d 1126, 1130 (Pa. Super. 1994)).
In this case, the detectives were not required to provide defendant with Miranda warnings
when they interviewed him on May 7, 2012 and on May 14,. 2012. On neither occasion
.
was
defendant in· custody as he was not restrained or kept against his will by police. Before the
detectives conducted the first interview, defendant was -transported to the hospital q_1.1e to his
medical condition. See, e.g., Commonwealth v. Perry, 710 A.2d 1183 (Pa·. Super. 1998)
(rejecting the defendant' s argument that his immobilization in the hospital room during police
questioning rendered him subject to custodial interrogation); Commonwealth v, Ellis, :549 A.2d
1323, 1333 (Pa. Super. 1988) (concluding that the defendant was not subjected to custodial
interrogation because the restraints on his freedom "were those caused by his medical condition,
. '
as opposed to any action on the part of the police"). When the second interview occurred,
defendant was inside his own home . in the presence of a family member. See, e.g.,
Commonwealth v. Mannion, 725 A.2d 196. (Pa. Super. 1999) (concluding that the defendant was
not subjected to custodial interrogation when police questioning occurred in her home because
,.
there was no evidence of intimidation or restriction of freedom by police).
Commw. v. Bohdan Chae Page 28 of36
Although the detectives informed defendant that he was being questioned about the
murder' of Ms. Raudenbush, defendant was free to stop the interviews whenever he :wfshed to do
so. Even if defendant was considered a-suspect at the timeythat fact alone was not enough to
conclude that he was subjected to custodial interrogation. See Commonwealth v. Page, 965 A.2d
. .
1212, 1218 (Pa. Super.-2009) (ruling that "[tjhe fact that the police may have 'focused' on the
individual being questioned or that the .interviewer believes the interviewee is a suspect is
irrelevant to the issue of custody"). fu both instances, defendant's freedom of action or
movement was not restricted as a result of .police interrogation. As previously mentioned, the
detectives did not place any restraints upon defendant. Rather, defendant's · freedom of
movement was limited solely by his physical disability; a factor beyond police control. See, e.g.,
. .
Commonwealth v. Johnson, 556 Pa. 216, ~39, 727 A.2d 1089, 1100 (1999) (determining that the
defendant's «inability to leave [during police questioning] was not the result of any action of
restraint by the police, but was due to his physical condition at the time'} There is also nothing
in the record to· suggest that the interviews were long in duration. Furthermore, the detectives
. ' .
did not threaten or use force on defendant. In fact, the detectives wore plainclothes and did not
. .
display their guns on either occasion. Neither did the detectives employ any illegal investigative
. .
methods."
During neither interview was defendant intimidated, coerced or deceived into making his
statements. Rather, his decision was freely and deliberately made. When defendant made this
choice, he was fullyaware of the consequences of his decision. He was alert and comprehended
. .
the questions that he ans':'ered .. After en gaging· the detectives .throughout both interviews,
. .
defendant exercised his freedom to decline further participation in the. interviews. After the first
...
. ::.-
interview,' defendant refused to. sign the written statement. During the second informal
Commw. v. Bohdan Chae .Page 29 of 36
interview, defendant deniedthe detective's request to conduct a formal interview and to provide
a written statement. In both instances, defendant's refusal evidenced his awareness that he was
free to conclude each interview at any t~e. Although the· detectives provided Miranda warnings
to defendant before he gave his second statement, those warnings. were gratuitous becaus~
defendant was not in custody. See Ellis, 549 A.2d at 1329 (holding that "Miranda warnings are ·
only required prior to custodial interrogations"), In light of the above, it is clear that defendant
• • • •,!
was not entitled to Miranda warnings on either occasion. Tue evidence further supports the
conclusion that defendant made these statements knowingly, intelligently, and voluntarily.
Consequently, both of defendant's statements were admissible as they were not made in violation
of any state or federal constitutional -right,
Defendant also contends that this court erred in allowing Sara Ayyash and Angela
Garland to testify about prior life experiences that Ms. Ayyash encountered such as losing her
. .
virginity, having difficulty with friendships, and being bullied in school. It is well settled that
"[qjuestions concerning the admissibility of evidence lie within the sound discretion of the trial
court, and [the appellate court] will not reverse the 'court's decision on such a question absent
. . a:
clear abuse of discretion." Commonwealth v. Chmiel, 558 Pa. '478, 493, 738 A.2d 406, 414
(1999). An evidentiary ruling "will not be disturbed 987 A.2d 753, 756 (Pa .. Super. 2009) (quoting
Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006)).
. .
In Commonwealth:v. Rqth, 531 A.2d 1133;. 1140 (P~.. Super. 1987), the court held that
. . .
"[a] basic requisite for the admlssibllity of any evidence in a criminal case is that it be competent
. . . . . . .
and relevant." ._See 'alsoPe. R. Evid. 402 (stating that "[ajll relevant evidence is admissible,
Commw. v. Bohdan Chae Page 30 of36
except as otherwise. provided by Jaw'} Relevant evidence "is that which tends to establish facts
in issue or in some degree advances the inquiry and is therefore probative." Commonwealth v.
Impellizzerri, 661 .A.2d 422, 428 (Pa. Super. 1995). Surely; "[njot all relevant" _evidence is
admissible, and a trial court may
. exercise its discretion to exclude relevant evidence that
. may
. . .
confuse, mislead or prejudice the jury." Commonwealth v. Byrd, 598 A.2d 1.011, 1014 (Pa.
. .
Super. 1991). In Commonwealth v, Enders, 595 .A.2d 600 (Pa. Super, 1991), the court explained
that "[a] pieceof evidence. is of essential evidentiary value· if the needforit clearlyoutweighs the
likelihood of it inflaming the minds and passions of the jurors." Id. at 604 '(quoting
Commonwealth.v. Comvay, 534 A.2d 541, 544 (Pa. Super. 1987)).
Here, the challenged testimony wasrelevantin showing Ms. Ayyash's state of mind. The·
introduction of this- evidence was an attempt to .aid the jury in. making sense out of. how Ms,
Ayyash
.
entered into" such. an inappropriate
.
relationship and why she remained even . after being
mistreated by defendant. This evidence also provided potential reasons for ·th~ inconsistencies in
Ms: Ayyash's statements .to police. Those reasons included Ms. Ayyash being afraid to share
details about the incident and desiring to protect defendant. Given her troubled history, the jury
. . .
could reasonably infer how and why- Ms. Ayyash easily succumbed to defendant's control and·
manipulation. before, during, and immediately after the murder .. Thus, there was no error in
..
p~rrnitting this evidencedue to its essential evidentiary value.
In his Preliminary Statement of Matters Complained of on Appeal, defendant asserts that
.this.
. court erred in permitting Ms. Garland to testify regarding . her attempts to. se~k law·
enforcement intervention, regarding defendant's statements and 'demeanor during phoD:e
conversations, and regarding Ms. Ayyash needing defendant's permission to leave his house to
. .
visit her .sick brother. There was no error in admitting Ms. Garland's
.
testimony concerning these
.
Commw. v. Bohdan Chae Page 31 of 36
matters. Generally, "[ejvidence of a crime, wrong, or other act is not admissible to prove a
. .
person's character in order to show that on a particular occasion the person acted in accordance
· with the character." Pa. R. Evid, 404(b)(l). Nevertheless, such evidence "may be admitted for
another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity) absence of mistake, or lack of accident." Pa R. Evid, 404(b)(2).
. · In Commonweal~h v. Passmore, 85? A.2d 6?7, 7_11. (Pa. Super. 2004), the court held that
"[ejvidence of prior bad acts is also admissiblewhere the particular crime o~ act was part of a
. . .
chain, sequence, or natural development of events forming the history of a case." This exception
is "aJso known as the 'complete. story' rationale, i.e., evidence· of other criminal .acts is
admissible 'to complete the story of the crime on trial by proving its immediate context of
happenings near in time and place.',, 'Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491,
497 (1988) (quoting McCormick, Evidence §.190 (1972 2~ ed.). Furthermore, Pennsylvania
Rule of Evidence 404(b) "is not -limited to evidence 'of crimes that have been proven beyond a
reasonable doubt in court. It encompasses both prior crimes and prior wrongs and acts, the latter
of which; by their 'aature, often lack 'definitive proof;'.,, Commonwealth v. Lockuff, 813. A.2d
857, 8~1 (Pa. Super. 2002) (emphasis omitted).
. Here, the testimony of Ms.' Garland concerning def~ndant' s prior bad acts _were admitted·
'
for reasons other than to show ills action in conformity therewith. Ms. Garland's testimony was
probative because it showed the nature of the relationship between defendant and her daughter,
. .
. . .
Ms, Ayyash. See, e.g., Commonwealth v. 'Rogers, 615 A.2d 55·· (Pa': Super. · 1992);
Commonwealth v. Ramos, 532 A,2d 22 (Pa. Super. 1987), and Commonwealth v. Colson, .507 Pa.
440, 490 A.2d 811 (19.85), abrogated on other grounds by Commonwealth v. Burke, 566 Pa. 402,
78 l.A.2d 1136 (2001) (affirming trial 'court's admission of evidence of other crimesor prior bad
Commw. v. Bohdan Chae · Page 32 of 36,
acts to show relationship of parties). 'Similar to the evidence challenged above, this evidence
provided .. the jury With a contextual background and corroborated .other evidence· that defendant
acted in a controlling and manipulative manner toward Ms. Ayyash, 5 Contrary to .. defendant>s
argument, thi~ evidence was _not_ introduced for the. inadmissible :purpose of showing that
defendant was a person of bad character or that he had criminal tendencies.
Although the contested evidence may have been disturbing, it was nonetheless relevant,
See Commonwealth v. Sasse, 921 A.2d 1229, 1234 (Pa. -Super. ·2007) (explaining that
"[ejvidence is relevant if it has any tendency to make the existence· of any· fact that is of
. .
consequencemore or less probable than it would be without the evidence"). As the court held in
Commonwealth v. Dillon, 592 Pa. 351, 367, 925 A.2d 131, 141 (2007)~ 'Te]viden~e will riot be
prohibited merely because it is harmful to the defendant.'> This court is not H 'required to
sanitize the trial 'to eliminate all unpleasant facts from the jury's consideration where those facts
are relevant to the issues at hand[.J'." Id. (quoting Commonw.ealthv. Lark, 518_ Pa. 290, 310;
543 A.2d 491, 501 (1988)). Thus, there was no error inadmitting this relevant eviden~e at trial.
5
Before admitting this evidence, this court reasoned outside the pr~ence of the jury:
There are two things here. One, you have attempted to get into these e-
mails because you contend 'the defendant was abusive toward the witness and
that he was controlling, and I don't think anybody could read this and disagree,
The defense has strenuouslyobjected, and in the main I have ruled in their favor
according - to benefit to the' defendant.
There is very much before this jury the question 'of why she, Ms.
Ayyash, has either changed her story or been less than forthcoming, If" they
believe .her at this juncture. And I thlnk the Commonwealth should be allowed
to demonstrate; A, there is corroboration for the victim's testimony which is
conceivably evidence of controlling behavior by the ·defendant; and B, absent
some idea from the mother. about-the controlling nature of the relationship, the
2013 revelation.makes very' little sense. So I'm inclined to let it in for those
purposes, I am sympathetic to the defendant's position that if she is to testify 'in
· the fashion that you've suggested, that it be limited. I don't want her to go off·
and on and on about ugly things the defendant said to her, if yte can convey the
idea that he. wanted to be - to separate her from her mother so that he could
'control her, that's admissible. It should be done with as little prejudice jo the
defendant as possible.
N.T. 05/14/i4,pp.106-107.
Commw.. v. Bohdan Chae Page 33 of 36.
Indeed, before permitting the contested portions of testimony elicited from Ms. Ayyash
and Ms. Garland, this court determined that the probative value outweighed any potential
prejudice to defendant. See Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super. 2007)
(reiterating principle from Commonwealth v. Broaster, 863 A.2d 58 8, 592 (Pa .. Super. 2004), that
"[bjecause all relevant Commonwealth evidence is meant to prejudice a defendant, ... 'exclusion
is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon
something other than the legal propositions relevant to the case"). Moreover, any potential
prejudice that may have inured to defendant was cured by a cautionary instruction to the jury.6
See Commonwealth v. King, 959 A.2d 405, 417 (Pa. Super. 2008) (ruling· that "where other
. .
crimes evidence is offered for a legitimate purpo~e, ... and a limiting instruction is provided, the
prejudicial effect of the evidence generally yields to its probative value"); Commonwealth v.
Claypool, 508 Pa. 198, 206, 495 A.2d 176, 179 (1985) (holding that "such evidence must be
accompanied by a cautionary instruction which fully and carefully explains to the jury the
limited purpose for which that evidence has been admitted"); Commonwealth v Strickland, 452
'
.
A.2d 844, 847 (Pa. Super. . 1982) (concluding that a trial judge's cautionary instructions to the
jury were sufficient to ensure a fair and impartial trial because of the well-settled principle that
"juries can be trusted to follow the trial court' s instructions'} In addition to this cautionary jury
6
This court provided the following instruction to the[ury:
Ladies and gentlemen, you've now heard evidence from both Ms.
Ayyash and Ms .. Garland tending to show that the defendant was engaged in
improper conduct for which he is not now on trial._. I am speaking of the
testimony of both women to the effect that the defendant had a sexual
relationship with Ms. Ayyash before she turned 18. This evidence is.before you
for the purpose of tending to show the nature· of the relationship between the
parties, to wit, Ms. Ayyash and Mr. Chae.
You must not regard this evidence as showing 'that the defendant is a
person of bad character or criminaJ tendencies from which you might be inclined
to infer guilt in this case.
N.T. 05/14/14,pp. 122~123.
Commw. v. Bohdan Chae Page 34 of36
instruction, defendant had ample opportunity to counter the Commonwealth's theory regarding
the relevance of this evidence. Thus, defendant's argument has no merit.
Even if this contested evidence was erroneously admitted, its admission was harmless
error as it was not the sole contributing factor to the jury's verdict. Harmless error is shown
, when "(I) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the
erroneously admitted evidence was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error so
insignificant by comparison that the error could not have· contributed to the verdict."
Commonwealth v. Laich, 566 Pa. 19, 29, 777 A.2d 1057, 1062-1063 (2001). As the court held in
Commonwealth v. Passmore, 857 A.2d 697 (Pa. Super. 200f)," '[t]he harmless error doctrine, as
adopted in Pennsylvania, reflects the reality that the accused is· entitled to a fair trial, not a
perfect trial:' H Id at 711 (quoting Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa. Super.
2001)).
In this case, the evidence of guilt was so overwhelming that the alleged error could not
have contributed to the verdict. See Laich, 566 Pa. at 29, 777 A.2d at 1062 (ruling that "an error
is harmless only if [the appellate court is] convinced beyond a reasonable doubt that there is no
reasonable probability that the error could have contributed to the verdict''). Although the
challenged portions of Ms. Ayyasli's testimony and Ms. Garland's testimony were helpful to the
Commonwealth, it was not the only evidence presented against defendant. As the above
discussion established, the challenged portions of testimony were merely corroborative of other
evidence the Commonwealth introduced to prove defendant's guilt beyond a reasonable doubt
Thus, defendant is not entitled to relief.
Commw. v. Bohdan Chae Page 35 of 36
Accordingly, in light of the foregoing, the judgment of sentence should beAFFIRt\1ED.
Commw. v. Bohdan Chae Page 36 of36