Commonwealth v. Williams , 176 A.3d 298 ( 2017 )

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2017 PA Super 382COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHAWN J. WILLIAMS,
Appellant No. 1692 MDA 2016
Appeal from the Judgment of Sentence May 5, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001412-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
OPINION BY SHOGAN, J.: FILED DECEMBER 08, 2017
Appellant, Rashawn J. Williams, appeals from the judgment of
sentence entered in the Court of Common Pleas of Lycoming County on May
5, 2016, following a six-day jury trial. We affirm.
The trial court briefly summarized the facts of the crime and initial
procedural history as follows:
On June 1, 2014, Appellant Rashawn Williams shot and
killed Aaron Lowry [(“the victim”)] outside the Lamplight Hookah
Lounge on West Fourth Street in Williamsport[,] Pennsylvania[,]
and then fled to High Point North Carolina. On June 6, 2014,
when law enforcement officers attempted to apprehend the
Appellant in High Point, he fled from an apartment and was
pursued into a wooded area by a law enforcement canine, which
bit him and caused some injuries to his face and left ankle that
were treated at a local hospital. Appellant was extradited back
to Pennsylvania and charged with homicide, [two counts of]
aggravated assault, possession of a firearm without a license,
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person not to possess a firearm, possession of an instrument of
crime (firearm), simple assault, terroristic threats, and flight to
avoid apprehension or prosecution.[1]
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 1.
On November 12, 2014, the Commonwealth sought, and was granted,
access to the medical records from High Point Regional Hospital, where
Appellant was treated following his capture on June 6, 2014. On November
25, 2014, Appellant filed a motion to quash the November 12 order,
asserting that disclosure of the records violated the Health Insurance
Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936(1996) (“HIPAA”). Appellant filed an omnibus pretrial motion on January 2,
2015, asserting, inter alia, that the medical records should be suppressed.
On December 23, 2015, the trial court denied Appellant’s motion to quash
and suppression of the medical records.
The Commonwealth filed multiple motions in limine on March 7, 2016,
March 18, 2016, and March 22, 2016, seeking to preclude, inter alia, the
testimony of Dr. Eric Vey, a defense expert. Also on March 22, 2016, and on
March 30, 2016, pursuant to Pa.R.E. 404(b), the Commonwealth filed a
notice of intent to introduce evidence including certified records of
Appellant’s prison telephone calls. Appellant also filed multiple motions in
limine on April 4, 2016, and April 7, 2016, along with a motion to introduce
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1 18 Pa.C.S. §§ 2501, 2702(a)(1) and (4), 6106, 6105, 907(b), 2701(a)(3),
2706, and 5126, respectively.
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certified police reports. On April 7 and 8, 2016, the trial court ruled on the
various motions in limine and notices of intent. Order, 4/7/16; Order,
4/8/16.
A jury trial ensued on April 12-18, 2016, following which the jury
convicted Appellant of all charges. On April 21, 2016, Appellant filed a Post
Verdict Motion for Extraordinary Relief pursuant to Pa.R.Crim.P. 704(B)(1),2
which the trial court denied by opinion and order dated May 5, 2016, and
filed on May 10, 2016. Also on May 5, 2016, the trial court sentenced
Appellant to life imprisonment without the possibility of parole, and a
concurrent aggregate sentence of twelve to twenty-four years of
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2 Pa.R.Crim.P. 704 provides, in pertinent part:
Rule 704. Procedure at Time of Sentencing
* * *
(B) Oral Motion for Extraordinary Relief.
(1) Under extraordinary circumstances, when the interests of
justice require, the trial judge may, before sentencing, hear an
oral motion in arrest of judgment, for a judgment of acquittal, or
for a new trial.
(2) The judge shall decide a motion for extraordinary relief
before imposing sentence, and shall not delay the sentencing
proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no effect on the
preservation or waiver of issues for post-sentence consideration
or appeal.
Pa.R.Crim.P. 704(B)(1–3).
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incarceration.3 Appellant filed post-sentence motions on May 9, 2016, which
the trial court denied on October 6, 2016. Appellant filed a timely notice of
appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following eight issues on appeal, which we have
reordered for purposes of clarity and ease of disposition:
I. Was the evidence presented at trial insufficient to prove that
the Appellant had the specific intent to kill as required to support
the guilty verdict for murder of the first degree?
II. Was the evidence presented at trial insufficient to prove
malice as required to convict the Appellant of third degree
murder and aggravated assault?
III. Did the Commonwealth fail to disprove the Appellant’s self-
defense claim where undisputed evidence established that the
victim and at least one other individual jumped the Appellant?
IV. Was the first degree murder conviction so contrary to the
weight of the evidence as to shock the conscience of the court
and require that the Appellant be given a new opportunity to
proceed to trial and prevail?
V. Did the trial court abuse its discretion by refusing to instruct
the jury on heat of passion voluntary manslaughter?
VI. Did the trial court abuse its discretion by failing to suppress
the Appellant’s medical records from North Carolina because the
Commonwealth unlawfully obtained them?
VII. Did the trial court abuse its discretion by excluding
evidence offered by the defense, including: precluding Dr. Vey’s
testimony that the victim could have folded a knife and put it in
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3 The trial court originally described the aggregate sentence for the four
concurrent counts as ten and one-half to twenty-one years of imprisonment.
Order, 5/5/16. On July 22, 2016, the trial court corrected the “patent and
obvious error” of addition. Order, 7/22/16.
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his pocket; excluding evidence of the victim’s prior conviction for
aggravated assault with a deadly weapon; and excluding
proffered testimony that it is not unusual for witnesses to be
uncooperative?
VIII. Did the trial court err by admitting evidence offered by the
Commonwealth, including: admitting the Appellant’s intercepted
telephone calls; admitting testimony that the Appellant’s
girlfriend phoned a friend to ask to borrow money; and
admitting, in rebuttal, hearsay testimony that a witness had
informed the Appellant’s baby’s mother when the victim died?
Appellant’s Brief at 4.
We first address Appellant’s arguments relating to the sufficiency of
the evidence supporting the convictions for first-degree murder and
aggravated assault, along with his claim of unrebutted self-defense.4
Because a determination of evidentiary sufficiency presents a question of
law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the
sufficiency of the evidence, we must determine whether the evidence
admitted at trial and all reasonable inferences drawn therefrom, viewed in
the light most favorable to the Commonwealth as verdict winner, were
sufficient to prove every element of the offense beyond a reasonable doubt.
Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017).
“[T]he facts and circumstances established by the Commonwealth need not
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4 While Appellant makes reference to insufficient evidence supporting third-
degree murder, we observe that he was not convicted of that crime. Thus,
we make no further comment regarding third-degree murder.
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preclude every possibility of innocence.” Commonwealth v. Colon-Plaza,
136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v.
Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within
the province of the fact-finder to determine the weight to be accorded to
each witness’s testimony and to believe all, part, or none of the evidence.
Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015).
The Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Mucci, 143 A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate
court, we may not re-weigh the evidence and substitute our judgment for
that of the fact-finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa.
Super. 2015).
Appellant first asserts that the Commonwealth failed to present
sufficient evidence that he possessed the specific intent to kill the victim. In
support, Appellant presents a summary of the evidence in a light most
favorable to him, rather than the Commonwealth, the verdict winner, as
required by our case law. Von Evans, 163 A.3d at 983. Appellant’s Brief at
9–13. Appellant argues that because the victim, Aaron Lowry, approached
Appellant from behind while Appellant was engaged in a verbal confrontation
with Shariah5 Worthy, the mother of Appellant’s daughter, the victim clearly
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5 Shariah’s name is variously spelled in the record as Shariah and Sheriah.
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was the aggressor. Appellant asserts that he merely reacted and therefore,
did not have the specific intent to kill the victim. Id. at 11–12. Appellant
further argues that there can be no inference of specific intent in this case
based upon Appellant’s use of a deadly weapon on a vital part of the victim’s
body due to “numerous factors [that] negate any permissible inference.”
Id. at 12.
We note initially that Appellant has failed to comply with our rules of
appellate procedure. In three pages of asserted factual underpinnings to
this argument, Appellant fails to make one reference to where in the record
these facts are located. Appellant’s Brief at 9–11. It is not this Court’s
responsibility to comb through the record seeking the factual underpinnings
of Appellant’s claim. Commonwealth v. Samuel, 102 A.3d 1001, 1005
(Pa. Super. 2014) (citing Commonwealth v. Mulholland, 702 A.2d 1027,
1034 n.5 (Pa. Super. 1997)). See Pa.R.A.P. 2119(c) (“If reference is made
to . . . any . . . matter appearing in the record, the argument must set forth
. . . a reference to the place in the record where the matter referred to
appears.”). See also Commonwealth v. Harris, 979 A.2d 387, 393 (Pa.
Super. 2009) (“When an allegation is unsupported by any citation to the
record, such that this Court is prevented from assessing this issue and
determining whether error exists, the allegation is waived for purposes of
appeal. Pa.R.A.P. 2119(c)”); Commonwealth v. Einhorn, 911 A.2d 960,
970 (Pa. Super.2006) (“An appellate brief must provide citations to the
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record”). Nevertheless, we endeavor to locate support for Appellant’s
claims.
An individual commits first-degree murder when he intentionally kills
another human being; an intentional killing is defined as a “willful, deliberate
and premeditated killing.” 18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a
conviction for first-degree murder, the Commonwealth must prove that: (1)
a human being was unlawfully killed; (2) the accused was responsible for the
killing; and (3) the accused acted with malice and a specific intent to kill.
Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa. 2013). A jury may infer
the intent to kill “based on the accused’s use of a deadly weapon on a vital
part of the victim’s body.” Sanchez, 36 A.3d at 37.
In addressing the sufficiency of the evidence supporting the first-
degree murder verdict, the trial court stated as follows:
The evidence presented clearly established that Appellant
possessed a firearm, which he was not licensed to carry
concealed on his person. In fact, Appellant was prohibited from
possessing a firearm due to a prior conviction for robbery.
Appellant, according to his own testimony, took the firearm out
of his pocket, pointed it at the victim and fired it. N.T., April 15,
2016, at 59-60.
The victim suffered a gunshot wound to the chest. N.T.,
April 12, 2016, at 86. The bullet was fired from at least 18
inches away. Id at 96. The bullet injured the victim’s upper and
lower lobes of the left lung, which is a vital organ, as well as the
victim’s sternum, ribs, and the pericardium or sack surrounding
the victim’s heart. Id at 89, 91. Those injuries led to bleeding
which eventually led to a lack of oxygen to the brain and the
heart. Id. at 91-92.
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Since the evidence clearly established that Appellant used a
firearm on a vital organ of the victim’s body, the evidence was
sufficient to establish specific intent to kill necessary for first
degree murder. Furthermore, Appellant’s possession and use of
a firearm for which he had no license to carry is additional
evidence of his intention to commit the crime. 18 Pa.C.S. §
6104.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 22.
The testimony at trial established that Archie Bell and the victim exited
Lamplight Hookah Lounge and observed Appellant engaged in an altercation
with Shariah Worthy, a woman Mr. Bell had danced with earlier that evening
and who was the mother of Appellant’s child. N.T., 4/12/16, at 29–47. Mr.
Bell described Ms. Worthy as having a “terrified” look on her face as she
backed away from Appellant. Id. at 29. Mr. Bell and the victim ran in the
direction of Appellant; Mr. Bell was behind the victim and was close enough
that he “could have rested [his] hand on” the victim’s shoulder. Id. at 33.
When they were within an “arm’s length” of Appellant, Appellant shot the
victim. Id. at 32. Mr. Bell testified that Appellant “put the gun in my face,
told me to back up or he would give me one, too.” Id. At that point,
Appellant fled in a car that was parked around the corner, and the victim,
bleeding from his nose and mouth, collapsed on the pavement as he tried to
escape. Id. at 34–35.
The evidence amply proved that Appellant was responsible for killing
the victim. Appellant’s use of the gun on the victim allowed the jury to infer
the specific intent to kill necessary for a finding of first-degree murder.
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Appellant’s claim that the inference in this case was improper because “he
did not aim the gun at a specific area of the victim’s body,” is specious.
Appellant’s Brief at 12. In Commonwealth v. Washington, 927 A.2d 586(Pa. 2007), the appellant argued that there was insufficient evidence to
sustain a conviction of first-degree murder because he merely aimed in the
victim’s direction, which could not “rationally support an inference that he
had the specific intent to kill; rather, the evidence is equally consistent with
the probability that [he] sought only to scare or wound” the victim. Id. at
607. The High Court found that the appellant’s claim had no merit. It
specifically rejected the proposition that it had to conclude a defendant
intentionally aimed at a vital part of the victim’s body before it could find
sufficient evidence to support an inference of the specific intent to kill. Id.
Rather, our Supreme Court held that “the critical inquiry is the use of a
deadly weapon on a vital part of the body, not the intentional aiming of the
weapon at a vital part of the body.” Id. (emphasis in original) (internal
quotations and citations omitted). This issue lacks merit.
Next, we address Appellant’s claim that there is insufficient evidence in
the record showing that Appellant acted with the necessary malice for
aggravated assault. Appellant’s Brief at 23. Appellant fails to adequately
develop this contention, asserting only that “[d]espite permissible inferences
from use of a deadly weapon to a vital organ and unlawful possession of a
firearm, as argued in his first argument disputing sufficiency for specific
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intent, the Appellant avers the evidence failed to show that he had the
requisite malice as required for . . . aggravated assault.” Appellant’s Brief at
23–24. While he cites to case law defining and describing malice, Appellant
wholly fails to substantiate his claim with citation to relevant cases or
develop his contention. This failure to adequately develop and support his
issue results in waiver. See Commonwealth v. Woodard, 129 A.3d 480,
509 (Pa. 2015) (quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.
2013), which stated that “where an appellate brief fails to . . . develop an
issue in any other meaningful fashion capable of review, that claim is
waived. It is not the obligation of an appellate court to formulate [the]
appellant’s arguments for him.”) (internal quotations omitted)).
Even if not waived, we would reject the claim, as did the trial court.
Opinion and Order,6 10/11/16, at 14. Aggravated assault is defined as
follows:
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life;
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6 The October 1, 2016 order disposed of Appellant’s post-sentence motion,
filed May 9, 2016, and argued in the trial court on August 29, 2016.
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18 Pa.C.S. § 2702. Malice is a crucial element of aggravated assault and is
established when there is a “wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of social
duty . . . .” Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa.
Super. 2005). In the absence of any specific argument, we would rely on
the premise that a jury may infer malice “based on the defendant’s use of a
deadly weapon on a vital part of the victim’s body.” Commonwealth v.
Hitcho, 123 A.3d 731, 746 (Pa. 2015) (citing Commonwealth v.
Arrington, 86 A.3d 831, 840 (Pa. 2014)).
We next address Appellant’s claim that the Commonwealth failed to
disprove he acted in self-defense. Appellant’s Brief at 18. He suggests that
the uncontested evidence established that he did not provoke the use of
force. Id. Appellant acknowledges that he had a duty to retreat but asserts
that he did not have the ability to do so. Id. at 18–19. Once again,
Appellant liberally refers to testimony at trial without supporting reference to
the notes of testimony. Id. at 18–19.
A claim of self-defense requires evidence establishing the following
three elements:
“(a) that the defendant reasonably believed that he was in
imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such
harm; (b) that the defendant was free from fault in provoking
the difficulty which culminated in the slaying; and (c) that the
defendant did not violate any duty to retreat.” Commonwealth
v. Samuel, 527 Pa. 298, 590 A.2d 1245, 1247–48 (1991). See
also Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449
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(1997); 18 Pa.C.S. § 505.2. Although the defendant has no
burden to prove self-defense, . . . before the defense is properly
in issue, “there must be some evidence, from whatever source,
to justify such a finding.” Once the question is properly raised,
“the burden is upon the Commonwealth to prove beyond a
reasonable doubt that the defendant was not acting in self-
defense.” Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627,
630 (1977). The Commonwealth sustains that burden of
negation “if it proves any of the following: that the slayer was
not free from fault in provoking or continuing the difficulty which
resulted in the slaying; that the slayer did not reasonably believe
that he was in imminent danger of death or great bodily harm,
and that it was necessary to kill in order to save himself
therefrom; or that the slayer violated a duty to retreat or avoid
the danger.” Commonwealth v. Burns, 490 Pa. 352, 416 A.2d
506, 507 (1980).
Commonwealth v. Mouzon, 53 A.3d 738, 740-741 (Pa. 2012).
The Pennsylvania Crimes Code governs self-defense and provides, in
relevant part, as follows:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the person.—
The use of force upon or toward another person is justifiable
when the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.—
***
(2) The use of deadly force is not justifiable under this
section unless the actor believes that such force is
necessary to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse compelled by force
or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
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(ii) the actor knows that he can avoid the necessity
of using such force with complete safety by
retreating. . . .
***
(2.3) An actor who is not engaged in a criminal activity,
who is not in illegal possession of a firearm and who is
attacked in any place where the actor would have a duty to
retreat under paragraph (2)(ii) has no duty to retreat and
has the right to stand his ground and use force, including
deadly force, if:
(i) the actor has a right to be in the place where
he was attacked;
(ii) the actor believes it is immediately necessary
to do so to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse by
force or threat; and
(iii) the person against whom the force is used
displays or otherwise uses:
(A) a firearm or replica of a firearm as
defined in 42 Pa.C.S. § 9712 (relating to
sentences for offenses committed with
firearms); or
(B) any other weapon readily or apparently
capable of lethal use.
18 Pa.C.S. § 505(a)–(b); Commonwealth v. Smith, 97 A.3d 782, 786 (Pa.
Super. 2014).
We rely on the trial court’s rejection of this claim:
Appellant avers the Commonwealth failed to disprove self-
defense beyond a reasonable doubt where all uncontested
evidence established that the victim and at least one friend
jumped Appellant. The evidence was not uncontested. The
Commonwealth presented evidence that although the victim
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approached Appellant neither the victim nor his friend punched
Appellant or jumped him. Archie Bell testified that neither he
nor the victim punched Appellant and [no] one else was with
them at the time. N.T., April 12, 2016, at 36-37. Christofer
Snyder testified that he saw Appellant, his baby’s mother
(Shariah Worthy), and two Indian/Native American-looking men
(the victim and Archie Bell) discussing something loudly or
having an irritable moment. N.T., April 12, 2016, at 104-105,
118. They were just at the end of the building talking. Id. at
116. He didn’t see the two men running down the street toward
the end of the building. Id. He didn’t see any altercation; he
heard noises and he heard them talking loudly. Id. at 119. He
also didn’t see the shooting but he heard what he initially
thought was a firecracker and then he saw the girl running
across the street saying “he’s got a gun.” Id. at 107, 110.
Even assuming for the sake of argument that the evidence
was uncontested that the victim and/or one of his friends threw
the first punch or “jumped” Appellant, the evidence was not
uncontested with respect to the victim or any of his friends
displaying a knife. In other words, even if the evidence had
been uncontested that Appellant would have been justified in
using non-deadly force, it was not uncontested that Appellant
was justified in using deadly force.
Appellant was not entitled to stand his ground and use
deadly force in this case, because he illegally possessed the
firearm.
***
Appellant admitted in his own testimony that he possessed the
gun in his pocket, he had convictions for robbery and criminal
trespass, and he had the firearm illegally concealed on his
person. N.T., April 15, 2016, at 49, 59, 106. Moreover,
Pennsylvania law prohibits individuals with robbery convictions
from possessing firearms. 18 Pa.C.S. § 6105. Since Appellant
clearly was in illegal possession of the firearm, he could not
stand his ground and use deadly force.
Appellant’s illegal possession of the firearm meant he had
a duty to retreat if he could safely do so. See 18 Pa.C.S. §
505(b)(2)(ii). Archie Bell testified that there was nothing
blocking Appellant from running down the sidewalk. N.T., April
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12, 2016, at 37. Although defense witness Rashawn Ruley
testified that three guys jumped on Appellant’s back “like
attacking him,” when asked when in relation to the fighting that
the gunshot went off, Ruley replied “Like probably, like I would
say probably after—after the altercation, after he got hisself (sic)
together or something because it was three guys and it was just
him.” N.T., April 14, 2016, at 148. Therefore, Appellant was not
entitled to use deadly force, instead, he had a duty to retreat.
Furthermore, the evidence viewed in the light most
favorable to the Commonwealth established that the victim did
not display or otherwise use the knife. Archie Bell testified that
the victim did not have anything in his hands. N.T., April 12,
2016, at 32-33. The knife was found in the victim’s pocket as
opposed to on the sidewalk or in the victim’s hands. The
Commonwealth also presented evidence that the victim’s blood
on the knife was a transfer stain from the victim’s blood seeping
through the pocket of his jeans shorts onto the knife.
Additionally, the testimony from the defense witnesses
that the victim displayed a knife was not persuasive. Appellant
repeatedly talked about his case in recorded telephone
conversations with his girlfriend, friends, and family. Appellant’s
stories about the incident constantly changed. Initially he
claimed he was not even present at the scene that night. Later,
he claimed that he did not have a gun; the victim or one of his
friends did. At no point in these conversations, however, did
Appellant claim that the victim had a knife.
Rashawn Ruley also testified that the victim had a sharp
object in his right hand, but that was after Mr. Ruley heard a
shot and Appellant, who he knew as “Dewboy,” walked past him.
Mr. Ruley heard the victim’s friends say call the cops because
the victim just got shot[,] and then the victim collapsed. N.T.,
April 14, 2016, at 138-139. This testimony puts the knife in the
victim’s hands after Appellant shot him.
Finally, the jury could have inferred from the evidence
presented that Appellant concocted his story about the victim
displaying a knife after his girlfriend read Pennsylvania’s self-
defense law to him in one of the phone conversations. Appellant
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never mentioned the knife in his phone conversations; the first
time he mentioned the victim wielding a knife was in his trial
testimony. His witnesses, Rashawn[7] Ruley and Rasheem
Johnson, were his friends or acquaintances who did not come
forward and provide the information to the police, were drunk or
had been drinking that night, were not willing to be interviewed
and were incarcerated with Appellant for periods of time during
the pendency of this case.
When all of the evidence presented at trial is viewed in the
light most favorable to the Commonwealth as the verdict winner,
it was sufficient to disprove Appellant’s self-defense claim
beyond a reasonable doubt.
* * *
Simply put, the jury’s verdict was not based solely on
presumptions and consciousness of guilt. It was based on ample
evidence that Appellant shot the victim in the chest, the bullet
struck his left lung, and the victim died as a result. Appellant’s
own testimony established that he pulled a firearm out of his
pocket, pointed it at the victim who was only a few feet
away from him, and fired it. The verdict was also based on
evidence, such as the fact that the knife was found in the
victim’s pocket and testimony from the Commonwealth’s
witnesses that the victim did not have a knife in his hand, which
showed that Appellant was not confronting deadly force but, at
most, a punch with a closed fist.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 23, 27–28 (emphasis in original).
Accordingly, we agree.
Appellant also assails the weight of the evidence. Appellant’s Brief at
14. We have held that “[a] motion for new trial on the grounds that the
verdict is contrary to the weight of the evidence, concedes that there is
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7 Rashawn’s name is variously spelled in the record as Rashaun and
Rashawn.
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sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153
A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer,
744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the
standard applied to a weight-of-the-evidence claim as follows:
The decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the
evidence is within the sound discretion of the trial court. Thus,
“the function of an appellate court on appeal is to review the trial
court’s exercise of discretion based upon a review of the record,
rather than to consider de novo the underlying question of the
weight of the evidence.” An appellate court may not overturn
the trial court’s decision unless the trial court “palpably abused
its discretion in ruling on the weight claim.” Further, in
reviewing a challenge to the weight of the evidence, a verdict
will be overturned only if it is “so contrary to the evidence as to
shock one’s sense of justice.”
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal
citations omitted). A trial court’s determination that a verdict was not
against the interest of justice is “[o]ne of the least assailable reasons” for
denying a new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529
(Pa. Super. 2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055
(Pa. 2013)). A verdict is against the weight of the evidence where “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.
Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (quoting Widmer, 744 A.2d at
751–752)). “[W]e do not reach the underlying question of whether the
verdict was, in fact, against the weight of the evidence. . . . Instead, this
Court determines whether the trial court abused its discretion in reaching
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whatever decision it made on the motion[.]” Commonwealth v.
Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted).
A challenge to the weight of the evidence must first be raised at the
trial level “(1) orally, on the record, at any time before sentencing; (2) by
written motion at any time before sentencing; or (3) in a post-sentence
motion.” Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017).
Appellant properly preserved his weight of the evidence claim by raising the
issue in his post-sentence motions filed on May 9, 2016.
Appellant underscores the trial court’s statement that:
[a]lthough the court might have arrived at a different conclusion
than the jury with respect to the premeditation and deliberation
and/or the specific intent to kill necessary for a first degree
murder conviction because the victim was the initial aggressor
and Appellant did not have any prior history with them, the
jury’s verdict did not shock the court’s conscience.
Appellant’s Brief at 14–15 (citing Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 21).
We note, however, that the trial court, and indeed Appellant himself,
acknowledge that a new trial should not be granted merely because the
judge on the same facts would have arrived at a different conclusion.
Clay, 64 A.3d at 1055 (citing Widmer, 744 A.2d at 752).
Appellant also contends that the testimony of Robert Eigenbrod that
Mr. Bell and a third individual “actually jumped” Appellant “is more credible”
than the testimony of Mr. Bell. Appellant’s Brief at 15. Once again,
Appellant fails to cite to the record where this testimony is located.
Moreover, the credibility of witnesses is a matter for the fact-finder, here the
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jury, which was free to believe all, part, or none of the evidence.
Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007). The trial
judge, who viewed the witnesses’ demeanors at trial, determined that the
verdict did not shock its sense of justice. We ascertain no abuse of
discretion in this determination.
In rejecting Appellant’s claim that the verdict was against the weight
of the evidence, the trial court stated:
Although the court might have arrived at a different
conclusion than the jury with respect to the premeditation and
deliberation and/or the specific intent to kill necessary for a first
degree murder conviction because the victim was the initial
aggressor and the Defendant did not have any prior history with
him, the jury’s verdict did not shock the court’s conscience. The
standard is not whether the court would reach the same
conclusion as the jury, but rather whether the jury’s verdict
made Justice totter on her pedestal or took the court’s breath
away. It did not. [Appellant’s] claims regarding the victim
brandishing a knife or saying that he was going to kill
[Appellant] came across as concocted, especially in light of the
statements [Appellant] made in his phone conversations with his
girlfriend, friends, and relatives in which [Appellant] asserted
that he was not even there and he did not possess a gun (which
he admitted at trial were untrue) and the fact that in these
phone conversations [Appellant] never mentioned the victim
having a knife in his hand. Therefore, the court was not at all
surprised that the jury rejected [Appellant’s] claim that he was
justified in using deadly force in this case. Furthermore, the jury
could, and apparently did, infer that [Appellant] had the specific
intent to kill from his use of deadly weapon on a vital part of the
victim’s body.
Trial Court Opinion (Post-Sentence Motions), 10/11/17, at 12–13. The trial
court did not err in concluding that the verdict was not against the weight of
the evidence.
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Appellant next contends that the trial court abused its discretion by
refusing to instruct the jury on heat-of-passion voluntary manslaughter.
Appellant’s Brief at 20. Our Supreme Court has described the heat-of-
passion defense:
A heat of passion defense is a partial defense that addresses the
element of intent and, if successfully argued, mitigates first-
degree murder to third-degree murder. See Commonwealth v.
Hutchinson, 611 Pa. 280, 25 A.3d 277, 314 (2011). It seeks to
show that the defendant is guilty of voluntary manslaughter, not
murder, by proving that at the time of the killing he or she was
acting under a sudden and intense passion resulting from serious
provocation by the victim. See 18 Pa.C.S. § 2503(a) (“a person
who kills an individual without lawful justification commits
voluntary manslaughter if at the time of the killing he is acting
under a sudden and intense passion resulting from serious
provocation by . . . the individual killed.”).
In order to successfully argue heat of passion, a defendant
must prove (1) provocation on the part of the victim, (2) that a
reasonable man who was confronted with the provoking events
would become “impassioned to the extent that his mind was
incapable of cool reflection,” and (3) that the defendant did not
have sufficient cooling off time between the provocation and the
killing. See Commonwealth v. Busanet, 618 Pa. 1, 34–35, 54
A.3d 35, 55 (2012) (holding no evidence of provocation where
the victim’s threats against Appellant were made weeks prior to
the shooting, thereby affording Appellant sufficient time to
engage in cool reflection); [Commonwealth v.] Martin, 607
Pa. at 186, 5 A.3d [177] at 189 [(Pa. 2010)] (“In determining
whether there was sufficient provocation to create uncontrollable
passion in a reasonable person, we determine whether the killer
actually acted in the heat of passion, whether the provocation
lead directly to the slaying of the person responsible for the
provocation, and whether the killer had sufficient cooling off
time.”); Commonwealth v. Williams, 602 Pa. 360, 391 n. 30,
980 A.2d 510, 529 n. 30 (2009) (a violent confrontation
occurring two days before the murder would not serve to reduce
the degree of guilt to manslaughter, since killings do not occur
under the heat of passion where there was sufficient time for
cooling between whatever provocation might have existed and
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the actual killings). Further, “if any element is missing, the
provocation defense fails.” Martin, supra. See also
Commonwealth v. Sanchez, 623 Pa. 253, 314, 82 A.3d 943,
980 (2013) (“If any of these be wanting—if there be provocation
without passion, or passion without a sufficient cause of
provocation, or there be time to cool, and reason has resumed
its sway, the killing will be murder.”).
Commonwealth v. Mason, 130 A.3d 601, 627–628 (Pa. 2015).
Appellant asserts that the trial court’s acknowledgement that the
victim was the “initial aggressor,” coupled with testimony of other witnesses,
established provocation by the victim. Id. at 22. In addition, he suggests
that because there was no cooling off period, he acted under “sudden and
intense passion.” Id. at 21–22. Appellant asserts that his testimony
supported “terror” on his part. Id. Finally, he suggests the testimony of
Rashawn Ruley established “sufficient provocation by the victim.” Id.
Appellant wholly fails to identify where in the record this “support” is
located. Id. at 21–22. Pa.R.A.P. 2119 (c) (If reference is made to any
matter appearing in the record, “the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the place in the
record where the matter referred to appears.”) (citation omitted).
In reviewing a jury charge, we determine “whether the trial court
committed a clear abuse of discretion or an error of law which controlled the
outcome of the case.” Commonwealth v. Brown, 911 A.2d 576, 582–583
(Pa. Super. 2006). We must view the charge as a whole; the trial court is
free to use its own form of expression in creating the charge.
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Commonwealth v. Roane, 142 A.3d 79, 95 (Pa. Super. 2016). “A trial
court has broad discretion in phrasing its instructions, and may choose its
own wording so long as the law is clearly, adequately, and accurately
presented to the jury for its consideration.” Id. Moreover, it is well-settled
that “the trial court has wide discretion in fashioning jury instructions. The
trial court is not required to give every charge that is requested by the
parties[,] and its refusal to give a requested charge does not require
reversal unless the appellant was prejudiced by that refusal.”
Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013) (quoting
Brown, 911 A.2d at 583).
The trial court analyzed this claim as follows:
This case was purely a self-defense claim. The defense did
not present any evidence that Appellant acted out of any kind of
sudden rage, terror, resentment or any other passion or
emotion.
Appellant testified that the victim and one or two others
attacked him from behind. He was being punched in the head,
grabbed by the neck and collar of his shirt, and “rag-dolled.” He
was trying to block punches when he heard something to the
effect of I’m going to kill you and he saw the guy going in his
pocket. He thought the guy was going for a gun, so Appellant
had to get his arm loose so he could get the gun he had in his
right pocket. As Appellant was trying to reach his gun, he saw a
knife in the hands of the guy who said he was going to kill him.
Appellant pulled out his gun, pointed it in the guy’s direction and
fired. Once the gun was fired, everybody kind of stopped.
Appellant pointed the gun and told all three guys to back up.
Appellant then walked to his car and drove away. N.T., April 15,
2016, at 57-62.
Since there was no evidence that Appellant was overcome
by a sudden and intense passion, a heat of passion jury
instruction was not appropriate in this case. Commonwealth v.
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Taylor, 876 A.2d 916, 925 (Pa. 2005) (“It is settled that a trial
court should not instruct the jury on legal principles which have
no application to the facts presented at trial. Rather, there must
be some relationship between the evidence presented and the
law upon which an instruction is requested.”). Therefore, the
court did not err in failing to give such an instruction.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 19–20; Trial Court Opinion (Post-
Sentence Motions), 10/11/17, at 11.
We have reviewed the notes of testimony, in particular, Appellant’s
testimony and that of Rashawn Ruley. N.T., 4/15/16, at 48–158; N.T.,
4/14/16, at 136–159. Appellant’s evidence supports the trial court’s
characterization of this case as “purely a self-defense claim.” Pa.R.A.P.
1925(a) Opinion, 2/6/17, at 19. We have located no evidence that Appellant
acted out of a sudden rage, terror, resentment, or any other passion or
emotion, nor has Appellant identified any such testimony. This issue lacks
merit.
Appellant’s sixth issue avers that the trial court abused its discretion
by failing to suppress Appellant’s North Carolina medical records.
Appellant’s Brief at 25.
Our standard of review in addressing a
challenge to a trial court’s denial of a suppression
motion is limited to determining whether the factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct.
We may consider only the evidence of the
prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the record
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supports the findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d 14,
26–27 (Pa. Super. 2008) (en banc) (citations, quotations, and
quotation marks omitted). Moreover, it is within the lower
court's province to pass on the credibility of witnesses and
determine the weight to be given to their testimony. See
Commonwealth v. Clemens, 2013 PA Super 85, 66 A.3d 373,
378 (Pa. Super. 2013).
Commonwealth v. McCoy, 154 A.3d 813, 815–816 (Pa. Super. 2017)
(quoting Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super.
2016), appeal denied, 145 A.3d 725 (Pa. 2016)). “Furthermore, our
Supreme Court in In the Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1085
(2013), clarified that the scope of review of orders granting or denying
motions to suppress is limited to the evidence presented at the suppression
hearing.” McCoy, 154 A.3d at 816.
The trial court explained the procedural history regarding the
Commonwealth’s efforts to obtain the medical records in this manner:
On October 6, 2014, the attorney for the Commonwealth
sent a subpoena to the Hospital requesting [Appellant’s] medical
records for the dates 6/4/2014-6/8/2014. The subpoena also
noted that [Appellant] was a fugitive wanted for homicide
charges in Lycoming County, Pennsylvania, and he was arrested
by U.S. Marshals in High Point and brought to the [High Point
Regional UNC Health Care (“Hospital”)] for treatment. After
receiving the subpoena, the attorney for the Hospital spoke with
the attorney for the Commonwealth by telephone and outlined
the procedure that the Commonwealth needed to follow before
the records would be released. Based on that telephone
conversation, the Commonwealth presented President Judge
Nancy Butts with a petition for a certificate directing an out-of-
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state witness to produce medical records, as well as a praecipe.
Judge Butts signed the certificate, which requested that a North
Carolina judge compel the record’s custodian to release certified
medical records to the Lycoming County District Attorney’s
Office. A judge in Guilford County, North Carolina[,] issued an
order directing the record’s custodian to deliver [Appellant’s]
medical records to the Lycoming County District Attorney’s
office. The subpoena, petition, praecipe, certificate and court
order are attached to the Commonwealth's brief as exhibits.
When [Appellant’s] counsel was notified that the
Commonwealth had obtained an order for the release of
[Appellant’s] medical records, counsel filed a motion to quash.
The motion not only requested suppression of the medical
records but also that the records be sealed until the court could
determine whether the Commonwealth properly obtained them.
Judge Butts directed the Commonwealth to turn the records over
to the court, which . . . held them pending resolution of the
motion.
Trial Court Opinion (Suppression), 12/23/15, at 1–2.
Appellant contends that the Commonwealth violated HIPPA,
maintaining that the medical records from High Point Medical Center are
protected health information. Id. Appellant references 45 C.F.R. § 160.103as the definition for his use of the phrase “health information,” and it
appears that he refers to a compilation of the definitions of “Health
information,” and “Protected health information,” as set forth in 45 C.F.R.
160.103. Appellant’s Brief at 25. Appellant’s references are conclusory and
undeveloped. Id.Appellant also suggests the Commonwealth’s request for the records
failed to comply with HIPAA, asserting that its request made “only a bald
assertion that the information [was] material and necessary to preparation
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of the Commonwealth’s homicide case against the Appellant.” Appellant’s
Brief at 25. Appellant wholly fails to identify or explain with what aspect of
the “regulations” the Commonwealth failed to comply. Id. Appellant alleges
what the “proper procedure would have been” without citing to any support
for his conclusion. Id. at 26.
Appellant maintains that the Commonwealth’s reliance on the
procedure outlined by counsel for High Point Regional Medical Center, as set
forth in 42 Pa.C.S. § 5964 of the Uniform Act to Secure the Attendance of
Witnesses from Within or Without a State in Criminal Proceedings, was
incorrect because that section applies only to secure attendance of a
witness, not to obtain documents. Appellant’s Brief at 26–27. He submits
that he has located no case on point. Id. at 27. In essence, he contends he
was entitled to notice and an opportunity to be heard before the records
were released to the Commonwealth. Id. at 27–28. Appellant avers that
“the only remedy, in light of the sequence of events in this matter, was to
preclude the Commonwealth from using the records.” Id. at 29.
We find no merit to Appellant’s claim, and rely on the trial court’s
thorough and insightful analysis in rejecting this issue:
[Appellant] contends he was entitled to notice and an
opportunity to be heard prior to the Commonwealth receiving his
medical records pursuant to 45 C.F.R. § 164.512(e). The court
cannot agree.
First, the Commonwealth cannot violate HIPAA. Although
[Appellant’s] medical records meet the definition of “health
information,” the Commonwealth is not a “covered entity.” The
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term covered entity is: (1) a health plan; (2) a health care
clearinghouse; or (3) a health care provider who transmits any
health information in electronic form in connection with a
transaction covered by this subchapter. 45 C.F.R. § 160.103. A
district attorney’s office is not a covered entity. State v.
Downs, 923 So.2d 726, 731 (La.App.1 Cir. 2010).
Second, the notice provisions in section 164.512(e)(2)(ii)
do not apply in this case. The Hospital did not disclose
[Appellant’s] medical records until after it received an order of
court. The notice provisions of section 164.512(e)(2)(ii) only
apply if the covered entity responds “to a subpoena, discovery
request, or other lawful process, that is not accompanied by
an order of a court or administrative tribunal.” 45 C.F.R §
164.512(e)(2)(ii) (emphasis added).
Instead, the court finds that the applicable provisions are
the ones related to disclosure for law enforcement purposes
contained in section 164.512(f), which states in relevant part:
A covered entity may disclose protected health
information for a law enforcement purpose to a law
enforcement official if the conditions in paragraphs
(f)(1) through (f)(6) of this section are met, as
applicable.
(1) Permitted disclosures: Pursuant to process
and as otherwise required by law. A covered
entity may disclose protected health
information:
[* * *]
(ii) In compliance with and as limited by the
relevant requirements of:
(A) A court order or court-ordered
warrant, or a subpoena or summons
issued by a judicial officer[.]
45 C.F.R. § 164.512(f)(1)(ii)(A).
The definition of law enforcement official includes county
prosecutors and assistant district attorneys. 45 C.F.R. §164.103- 28 -
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(“Law enforcement official means an officer or employee of any
agency or authority of . . . a political subdivision of a State or
territory . . . who is empowered to . . . prosecute or otherwise
conduct a criminal, civil, or administrative proceeding arising
from an alleged violation of law.”). There is no notice
requirement under this law enforcement exception. See United
States v. Elliott, 676 F.Supp.2d 431, 438 (D. Md. 2009)(the
judicial and administrative proceedings exception (45 C.F.R. §
164.512(e)) does require that in certain circumstances that
notice be provided to the person whose records are being
sought; the law enforcement exception contains no such
requirement). Moreover, the Commonwealth complied with the
requirements of this section; it obtained a court order for release
of the records and the paperwork that resulted in the issuance of
the order limited the records sought to those related to the
injuries [Appellant] sustained when he was apprehended
between June 4 and June 8, 2014.
The court also rejects [Appellant’s] allegation that the
Commonwealth was on a fishing expedition. [Appellant] was
charged with criminal homicide, flight to avoid apprehension,
and other related offenses. He fled to High Point, North
Carolina, where he was apprehended by authorities and treated
at the Hospital. [Appellant’s] flight and conduct during his
apprehension is clearly relevant to the charge of flight to avoid
apprehension, trial or punishment. It also is relevant and
admissible to show [Appellant’s] consciousness of guilt for
criminal homicide and the other related charges.
During his flight and apprehension, [Appellant] sustained
injuries. It was reasonable for the Commonwealth to expect the
records to contain information to support its contention that
[Appellant] fled from the authorities and that such flight evinced
consciousness of guilt. The injuries themselves and the manner
in which they were sustained could support its contentions.
Moreover, medical personnel typically take a history and ask a
patient how he sustained his injuries. Statements made for
purposes of medical diagnoses and treatment and statements of
an opposing party are recognized exceptions to the hearsay rule.
Pa.R.E. 803 (4) and (25). Therefore, it was reasonable for the
Commonwealth to expect that evidence relevant to the charges
in this case would be in [Appellant’s] medical records. In fact,
there are multiple references to dog bites to the patient’s face
and left ankle, and a nurse’s note indicates that the patient was
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brought in by the High Point Police Department (HPPD) for a dog
bite by a police dog. More importantly, however, there is a chart
which, in addition to the information that was contained in the
nurse’s note, indicates that [Appellant] stated “he was hiding in
the bushes when he was bitten by the dog and has a lot of
scrapes to the face and body from that.”
Generally for medical records or any other business record
to be admissible at trial, the records custodian must testify or
certify the authenticity of the records. Pa.R.E. 901; Pa.R.E.
902(11). Therefore, as stated in the certificate signed by Judge
Butts, the Hospital’s records custodian, Karen Gammons, was a
necessary and material witness in the reproduction of the
certified medical records.
Finally, even if there was a violation of HIPAA, [Appellant]
would not be entitled to the remedy of suppression. HIPAA
violations are punished through the imposition of civil and
criminal penalties against covered entities. 42 U.S.C. §§ 1320d-
5, 1320d-6. There is no right to private action or relief for
HIPAA violations. Dominic J. v. Wyoming Valley West High
School, 362 F.Supp.2d 560, 573 (M.D.Pa. 2005). Furthermore,
although the Pennsylvania appellate courts have not addressed
this issue, numerous other jurisdictions have held that
suppression is not an appropriate remedy for HIPAA violations.
Elliott, supra; United States v. Zamora, 408 F.Supp2d 295
(S.D. Tex. 2006); State v. Carter, 23 So.3d 798, 800-801 (Fla.
Ct App. 2009); State v. Yenzer, 195 P.3d 271 (Kan.Ct.App.
2009); State v. Bauer, 931 N.E.2d 1283, 1292 (Ill.Ct.App.
2010); State v. Eichhorst, 879 N.E.2d 1144,1154-1155
(Ind.Ct.App. 2008); State v. Straehler, 745 N.W.2d 431(Wis.Ct.App. 2007).[8]
____________________________________________
8 See also Baum v. Keystone Mercy Health Plan, 826 F.Supp.2d 718,
721 (E.D. Pa. 2011) (no private right of action under HIPAA). There are
multiple federal cases from the eastern, middle, and western districts of
Pennsylvania that are not reported in the federal reporter that hold, while
acknowledging that neither the United States Supreme Court or the Court of
Appeals for the Third Circuit has addressed the issue of whether there is a
private right of action under HIPAA, no such right is implied in the statute
nor is a remedy found within the statute. See, e.g., Henderson v.
Borough of Baldwin, 20116 WL 5106945 (W.D. Pa. 2016) (HIPAA does not
(Footnote Continued Next Page)
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[Appellant also] contends that the Uniform Act to Secure
the Attendance of Witnesses from Within or Without a State in
Criminal Proceedings (42 Pa.C.S.A. 5961, et seq.) is not the
proper procedure for the Commonwealth to obtain [Appellant’s]
medical records. According to [Appellant], neither this Act nor
any other specific act in Pennsylvania permits obtaining
documents; therefore the proper procedure would be to first
obtain the records pursuant to HIPAA regulations. Since the
court has found that the records were obtained pursuant to the
law enforcement exception contained in the HIPAA regulations,
[Appellant] is not entitled to relief on his claim that the records
were improperly obtained pursuant to the Uniform Act.
The court also notes that the records were not obtained in
response to the Commonwealth’s subpoena, but rather the
judges’ certificate and orders. While a court can compel the
release of records to a party, a subpoena can only compel
production of records at a hearing or other judicial proceeding.
Pa.R.Crim.P. 107 (“A subpoena in a criminal case shall order the
witness named to appear before the court at the date and time
specified, and to bring any items identified or described.”); see
also Pa.R.[C.]P. 234.1(c) (“A subpoena may not be used to
compel a person to appear or produce documents or things ex
parte before an attorney, a party or a representative of a
party.”).
Trial Court Opinion (Suppression), 12/23/15, at 3–7 (emphasis in original).
Next, Appellant posits that the trial court erred in granting the
Commonwealth’s motions in limine to exclude 1) opinion evidence of defense
witness, Dr. Vey, that after Appellant shot the victim, the victim could have
(Footnote Continued) _______________________
create a private right of action); Tapp v. Brazill, 2011 WL 6181215 (E.D.
Pa. 2011) (same); Ball v. Famiglio, 2012 WL 1886676 (M.D. Pa. 2012)
(same). Of course, the decisions of federal courts are not binding on
Pennsylvania state courts, even when a federal question is involved;
however, Pennsylvania state courts follow the Third Circuit Court of Appeals
whenever possible. Feleccia v. Lackawanna Coll., 156 A.3d 1200, 1215
n.6 (Pa. Super. 2017).
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folded a knife and put it in his pocket; and 2) evidence of the victim’s prior
conviction for aggravated assault with a deadly weapon. The
Commonwealth filed the motions on March 7, 2016, and March 18, 2016,
respectively. Appellant also maintains the trial court abused its discretion in
excluding proffered testimony that it is not unusual for witnesses to be
uncooperative. Appellant’s Brief at 31–35. We disagree.
We note our standard of review:
In evaluating the denial or grant of a motion in limine, our
standard of review is the same as that utilized to analyze an
evidentiary challenge. Commonwealth v. Pugh, 101 A.3d 820,
822 (Pa. Super. 2014). It is well settled that “the admission of
evidence is solely within the discretion of the trial court, and a
trial court’s evidentiary rulings will be reversed on appeal only
upon an abuse of that discretion.” Commonwealth v.
Woodard, 129 A.3d 480, 494 (Pa. 2015) (citation omitted). “An
abuse of discretion will not be found based on a mere error of
judgment, but rather occurs where the court has reached a
conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Id. (citation omitted). “The
court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Pa.R.E. 403.
Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super. 2016), appeal
denied, 168 A.3d 1287 (Pa. 2017).
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The March 7, 2016 motion in limine asserts, inter alia, that Dr. Vey
opined9 “that because the victim was not incapable of performing physical
activity[,] he may have been capable of closing a pocket knife and returning
it to his pocket after being shot, but before collapsing.” Motion in Limine,
3/7/16, at ¶ 3. The Commonwealth also maintained that Dr. Vey’s
testimony was speculative and would not assist the jury. Id. at ¶¶ 6, 9.
Appellant explains that when police obtained the victim’s clothing, the victim
had a folded utility knife in his shorts pocket, and Appellant intended to
testify that the victim had a knife in his hand when Appellant shot him.
Appellant’s Brief at 31. Appellant maintains that the trial court’s conclusion
that the proffered testimony was speculative was an abuse of discretion. Id.
at 32. Other than citing a case regarding an expert’s use of hypothetical
questions, Appellant cites no case law in support of his claim. Id. at 31–32.
The trial court addressed Appellant’s issue at length. We rely on the
court’s thorough explanation:
In his expert report, Dr. Vey noted that the gunshot wound
(GSW) sustained by the victim caused a perforation of his left
upper and lower lung lobes, but did not cause any damage to his
____________________________________________
9 While the motion in limine asserts that Dr. Vey’s report is attached to the
motion, it was not in the record certified to us on appeal. Ultimately, we had
to enter an order directing supplementation of the record. We remind
Appellant that “[i]t is an appellant’s duty to ensure that the certified record
is complete for purposes of review.” Commonwealth v. Lopez, 57 A.3d
74, 82 (Pa. Super. 2012) (citing Commonwealth v. Reed, 971 A.2d 1216,
1219 (Pa. 2009)).
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heart. Dr. Vey opined that “contrary to popular belief, aside
from certain GSWs to the brain, physical activity of a person that
has been fatally shot does not necessarily cease immediately
after injury. GSWs to the heart and lung are often associated
with extended activity until blood loss causes shock, followed by
death.” Dr. Vey noted several examples from the medical
literature where individuals were capable of walking upstairs and
lying down in bed, returning fire, and dialing an old fashioned
rotary telephone after sustaining GSWs to vital organs. He then
further opined: “Given the preceding, relatively prolonged
physical activity on the part of the victim, after having been
shot, it is not unreasonable, and it is conceivable that he may
have been capable of closing a pocket knife and returning it to
his pocket after having been shot, but prior to his collapse.” Dr.
Vey also opined, based on the absence of soot and powder
stippling, that the range of fire in this case was no closer than
18-24 inches. Near the end of his report, Dr. Vey states: “The
preceding conclusions are based on my knowledge, training and
experience, which encompasses the foregoing discourse, and the
medical and scientific journal article citations and treatises
pertaining thereto; and are given to a reasonable degree of
medical and scientific certainty.”
Dr. Vey provided the defense with a second report in which
the only change or difference appeared to be removal of the
word “conceivable” and replacement with the phrase “it may
have been possible” in Dr. Vey’s opinion regarding the victim’s
ability to close a pocket knife and return it to his pocket after
having been shot, but prior to his collapse.
* * *
The court granted the Commonwealth’s motions because
Dr. Vey’s opinion, as stated in his expert reports, regarding the
victim’s ability to close a pocket knife and put it in his pocket
was not sufficiently definite and did not meet the standard for
expert testimony.
The way the court understood Dr. Vey’s opinion, it was
conceivable that the [victim] may have been capable of closing
the pocket knife or it may have been possible for the [victim] to
close a pocket knife and return it to his pocket after having been
shot, but prior to his collapse. These italicized terms were too
indefinite. To the court, Dr. Vey’s opinion was no more definite
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than maybe the victim could do it and maybe he couldn’t.
Although an expert need not use “magic words” or hold his
opinion to an absolute certainty, an opinion based on mere
possibilities is not competent evidence. Commonwealth v.
Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015); Gillingham v.
Consol Energy, Inc., 51 A.2d 841, 849 (Pa. Super. 2012).
The court acknowledged that it may have misunderstood
or misconstrued Dr. Vey’s reports. If Dr. Vey meant that the
[victim] had the capability of closing a knife and placing it in his
pocket for a period of time immediately after being shot and
gradually lost that capacity due to blood loss but he could not
pinpoint the exact moment that the decedent lost this capacity,
or if Dr. Vey meant the [victim] could close the knife and place it
in his pocket under certain circumstances and he could state
what those circumstances would be, Dr. Vey could author an
amended report stating such. Based on the expert reports that
Appellant provided to the court, however, the court could only
guess or speculate what the victim’s capabilities were. Dr. Vey
never issued a more definitive report. The court also noted that
the parties did not provide the court with any facts or
circumstances from which the jury could conclude that the victim
ever had the knife out of his pocket. Therefore, the court
precluded Dr. Vey from rendering any expert opinion regarding
the victim’s ability to close a pocket knife and place it in his
pocket after he was shot.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 7–10 (emphasis in original).
Appellant’s argument on appeal does not convince us that the trial court
abused its discretion in proscribing Dr. Vey’s opinion.
Next, Appellant urges that the trial court abused its discretion in
precluding evidence of the victim’s conviction for assault with a deadly
weapon. Appellant’s Brief at 33. The Commonwealth filed a motion in
limine on March 18, 2016, seeking to preclude the victim’s 2003 out-of-state
conviction for misdemeanor assault with a deadly weapon. Motion in Limine,
3/18/16, at ¶¶ 3–4. In precluding admissibility of the conviction, the trial
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court noted that the crime occurred on January 1, 2002, and “involved the
victim brandishing a wooden stick to take another individual’s wallet.”
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 11. The trial court stated:
When a claim of self-defense is properly at issue, evidence
of the victim’s prior convictions for aggression may be admitted
for two limited purposes: (1) to corroborate the defendant’s
knowledge of the victim’s violent character to show that the
defendant reasonably believed he was in danger, or (2) as
character/propensity evidence to show that the victim was the
aggressor. Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa.
2012. Not every conviction, however, is admissible for these
purposes. Instead, only those crimes that are similar in nature
and not too distant in time will be relevant and admissible. Id.Furthermore, the determination as to similar nature and
remoteness rests within the sound discretion of the trial judge.
Id.The court found that the conviction was too remote and
not similar enough to shed any light on whether the victim was
the initial aggressor in this case. The victim’s conviction
occurred more than ten years before this incident and
approximately thirteen (13) years before Appellant’s trial. The
victim did not possess or use a knife, but rather a wooden stick.
Furthermore, there was nothing to indicate that Appellant was
aware of this conviction, and the uncontested evidence
presented at trial showed that the victim punched or attempted
to punch Appellant before the victim was shot. Therefore, this
evidence was not probative of any issue in this case.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 11–12.
Appellant asserts that he endeavored to admit the conviction as
evidence that the victim herein was the aggressor. Appellant’s Brief at 34.
Our review of the record reveals that the Commonwealth conceded that the
victim was the aggressor. See N.T. (Closing), 4/18/16, at 124 (“Both
[Appellant] and Archie Bell confirm that [the victim] came up from behind
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[Appellant], and either attempted to throw, or threw a punch. So
obviously [the victim] initiated this physical altercation. We
understand that, we concede that.”) (emphasis added). This issue lacks
merit.
The third subpart to this issue relates to the trial court’s exclusion of
testimony from Greta Davis, an attorney from the Public Defender’s Office,
during surrebuttal “that it is not unusual for witnesses to be uncooperative
to either side when they perceive themselves as a witness for the other
side.” Appellant’s Brief at 35; N.T., 4/18/16, at 48. Appellant avers that he
desired to present this testimony after the Commonwealth put on rebuttal
testimony by Detective Stephen Sorage that when he interviewed defense
witnesses Rashawn Ruley and Rasheem Johnson, they did not respond to
questions. Id. at 34–35. The trial court declined admission of the
testimony because it was not relevant, and it was speculative. N.T.,
4/18/16, at 49. In defending its decision, the trial court stated:
What was relevant in this case was not some vague
generalization regarding why some individuals might not
cooperate with law enforcement, but rather why the particular
witnesses in this case did not speak with law enforcement. The
proffer regarding Ms. Davis’[s] testimony was not specific to the
defense witnesses in this case.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 18–19.
The trial court’s decision was not an abuse of discretion. The proffered
testimony was too remote, speculative, and irrelevant to Detective Sorage’s
testimony regarding these witnesses. Moreover, even if the trial court’s
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decision is indefensible, any error was harmless. “[A]n erroneous ruling by a
trial court on an evidentiary issue does not require us to grant relief where
the error was harmless.” Commonwealth v. Chmiel, 889 A.2d 501, 521
(Pa. 2005). There is no reasonable probability that the proscription of Ms.
Davis’s testimony may have contributed to the verdict. Id. This issue lacks
merit.
Appellant’s final issue also is presented in three subparts, which are
further subdivided. Appellant suggests the trial court erred by allowing
evidence offered by the Commonwealth, including: Appellant’s intercepted
telephone calls, testimony that Appellant’s girlfriend telephoned a friend to
ask to borrow money, and hearsay testimony in rebuttal that a witness had
informed Shariah Worthy when the victim died. Appellant’s Brief at 36–39.
Appellant initially argues that the trial court erred in admitting two
telephone calls by the Commonwealth. The first was a call between
Appellant and “Clint” on June 7, 2014, when Appellant was incarcerated in
North Carolina. Appellant’s Brief at 36. Appellant avers that while the trial
court limited portions that could be played to the jury, it erroneously
permitted some parts. Appellant maintains that the portion of the call when
the police K-9 chased Appellant into the bushes is “irrelevant.” Appellant’s
Brief at 36. Because Appellant can be heard swearing, he maintains “it
portrayed him in an unfair light to the jury.” Id.- 38 -
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The second telephone call between Appellant and his mother involved
a discussion about Shariah Worthy. Appellant’s Brief at 36. Appellant
asserts that he objected to portions of the call wherein Appellant told his
mother that Ms. Worthy told the victim that Appellant was abusive.
Appellant allegedly denied such abuse to his mother. Id. at 37.
Appellant also contends that the trial court erred in admitting
testimony of Amelia Nance, a friend of Appellant’s girlfriend, Erica Lambert.
Appellant’s Brief at 37. Appellant avers that he objected to Ms. Nance’s
testimony that Ms. Lambert asked her to borrow $100 on June 1, 2014, on
the basis of hearsay. Id. (citing N.T., 4/13/16, at 92). Appellant contends
that the trial court’s determination that the statement was not hearsay was
erroneous. Appellant’s Brief at 38.
Lastly, Appellant assails the trial court’s decision to permit testimony
from Alisa Jackson, a friend of Ms. Worthy, who testified that she texted Ms.
Worthy at 3:51 a.m. on June 1, 2014, and informed her that the victim had
died. Appellant’s Brief at 38. Appellant asserts that he had testified that
when he fled Pennsylvania, until he was in Virginia, he did not know the
victim had died. Id. The Commonwealth allegedly introduced cellular
telephone records that indicated Appellant and Ms. Worthy had telephone
communication shortly after 3:51 a.m. Appellant argues that the testimony
was hearsay. Id. at 39.
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We note that Appellant fails to cite one case in support of any
argument he advances on this issue. Further, he fails to identify, with one
exception, where in the record any of his claims are substantiated.
Moreover, Appellant’s arguments in his brief are conclusory and
undeveloped. They are nothing more than a restatement of his positions; he
fails even to adequately explain the trial court’s reasons supporting its
evidentiary rulings. Appellant’s Brief at 36–39. Appellant wholly fails to
refer to relevant or controlling case law. See Commonwealth v.
Woodard, 129 A.3d 480, 509 (Pa. 2015) (quoting Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which stated that “where an
appellate brief fails to . . . develop an issue in any other meaningful fashion
capable of review, that claim is waived. It is not the obligation of an
appellate court to formulate [the] appellant’s arguments for him.”) (internal
quotations omitted)).
Despite the conclusory and undeveloped nature of his claims, we do
not find them waived. The trial court thoroughly addressed these
contentions, and we rely on the trial court’s evaluation and rejection of the
claims:
Appellant also claims the trial court erred by admitting
intercepted phone calls/visits during the Commonwealth’s case-i
-chief, including one with “Clint” from June 7, 2014[,] where
Appellant discussed being attacked by the police canine; and one
from June 16, 2014[,] with his mother (Commonwealth Exhibit
110, June 16, 2014, from 30:48 to 31:18 minutes) where he
discussed Sheriah Worthy bringing the victim and Bell to the
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Hookah Lounge. Appellant contends the calls were irrelevant to
the charges and the June 16 call was triple hearsay.
During the June 7th call, Appellant tells “Clint” that he
would not have surrendered to the police if it wasn’t for the dog
biting him. After “Clint” and Appellant discussed the number of
staples and stitches Appellant received for his injuries, Appellant
stated, “That John was tearing me up, bull. I wouldn’t have
gave (sic) up but that dog, bull. I wouldn’t have gave (sic) up,
but that dog that mother f—r bite he make (sic) me give up.”
This call was clearly relevant to the charge of flight to
avoid apprehension or prosecution. It also tended to rebut
Appellant’s claims that he went to North Carolina for reasons
other than to avoid apprehension for his charges. If that were
true or if Appellant was not aware that the victim had died at the
time he left Pennsylvania, he would not have fled from law
enforcement officers in North Carolina before the officers even
had a chance to tell him why they were there. The evidence was
also relevant and admissible to show Appellant’s consciousness
of guilt.2
2 For the sidebar discussion about the admissibility of
this call, see N.T., April 14, 2016, at 53-55. The call
was played during Agent Kevin Stiles[’s] testimony in
the Commonwealth’s case in chief. Id. at 100-101.
As far as the court can tell, the June 16 visitation recording
between Appellant and his mother or a female relative was not
admitted during the Commonwealth’s case-in-chief; instead, it
was played during cross-examination of Appellant. N.T., April
15, 2016, at 142.
During direct examination, Appellant stated that he left the
Hookah Lounge, saw his daughter’s mother (Shariah Worthy)
outside on the sidewalk and asked her if she had a ride. She
said yes she was waiting for her brother, and before Appellant
could respond he was punched in the right side of his face. Id.
at 57. On cross examination, the prosecutor asked Appellant
why Shariah walked out of the Hookah Lounge that night.
[Appellant] answered, “I asked her to go home.”
The June 16, 2014 recording was admitted to impeach
Appellant’s testimony and show that Appellant kicked Ms.
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Worthy out of the Hookah Lounge and his interaction with her
was not as amicable as he made it seem.
The transcript of the recording from between 30:48 and
31:18 (contained in Commonwealth Exhibit 110, along with
several other calls and visitations) consisted of the following
statement by Appellant:
You brought them there, you brought them there,
you brought them there, because they told her, they
told her, this [is] what they told her: we’re not going
to let him do nothing. I don’t put my hands on her.
Know what I’m saying? But I do, when she’s in
certain clubs, we can’t be in, we can’t party together.
I kicked her out. And, they told her we’re not going
to let him to (sic) nothing to you. So she was telling
them that I was doing something to her, which,
you’re my daughter’s mom, I’m not going to put my
hands [sic] I have to.
This issue was discussed during a lengthy sidebar
conference. N.T, April 15, 2016, at 128-137. Appellant’s
statements fell within the hearsay exception in Rule 803(25) of
the Pennsylvania Rules of Evidence. The statements of other
people were not offered for the truth of the matter asserted.
Moreover, immediately after the recording was played the
court gave the jury a cautionary instruction about the use of this
evidence. Id. at 142-143. Appellant’s counsel then requested
another sidebar, during which he requested a further instruction
to the jury. Id. at 144-147. The court then gave an additional
instruction specifically explaining to the jury that the first portion
of the statement about what other people said could not be
considered for the truth of the matter asserted. Id. at 147-148.
Appellant next avers the trial court erred by admitting,
over defense objection, the testimony of Amelia Nance that Erica
Lambert borrowed money from her on June 1, 2014. Appellant
contends that the entirety of Ms. Nance’s testimony was
inadmissible hearsay. The court did not agree.
Hearsay is defined as a statement that: (1) the declarant
does not make while testifying at the current trial or hearing;
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and (2) the party offers in evidence to prove the truth of the
matter asserted in the statement. Pa.R.E. 801(c).
Ms. Nance’s testimony was not hearsay. Generally, Ms.
Nance did not testify about statements Erica Lambert made to
her. Instead, she testified about actions she herself took in
response to a phone call from Erica Lambert. Ms. Nance
testified that sometime between 7:00 and 8:00 a.m. on June 1,
2014[,] she met Ms. Lambert at a Sheetz gas station in
Chambersburg[,] PA. Appellant, who she knew as Dewboy, was
with Ms. Lambert. Ms. Lambert and Appellant were in a
champagne or gold colored car. N.T., April 13, 2016[,] at 91-94.
The only reason the contents of the phone call were
discussed was to show how Ms. Nance knew to go to that
particular Sheetz gas station. The prosecutor asked, “How did
you know to go to that spot?” In response to that question, Ms.
Nance replied, “Okay so she (Erica Lambert) called me and she
asked if she could meet me at the Sheetz to borrow a hundred
dollars at that particular Sheetz.” This statement was not
offered to show its truth, i.e. that Ms. Lambert called to borrow a
hundred dollars or even that she actually borrowed that amount
of money. It was offered to show how Ms. Nance knew to meet
Ms. Lambert at that location. Therefore, the discussion of the
contents of the phone call was not hearsay.
Appellant also asserts the trial court erred by admitting the
victim’s jean shorts into evidence during the Commonwealth’s
rebuttal when it failed to introduce this evidence in its case-in-
chief. The court did not agree.
This evidence was proper rebuttal evidence. In its case-in-
chief, the Commonwealth presented evidence that the victim
was not brandishing a knife during the incident and that a knife
was found in the victim’s pocket. There also was evidence that
the victim’s blood was on the knife. The defense presented
evidence that the victim had a knife in his hand before Appellant
shot him. The Commonwealth realized that, based on the
defense testimony that the victim had a knife in his hand, the
defense would argue that the blood on the knife would
corroborate the testimony of the defense witnesses. The
Commonwealth introduced the victim’s jean shorts to show that
the pocket was soaked with blood. This evidence was admitted
to rebut the defense evidence and show that the victim’s blood
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seeped through the shorts and was transferred from the pocket
to the knife while the knife was in the victim’s pocket. See N.T.,
April 15, 2016[,] at 173-175.
Appellant also avers the trial court erred by admitting the
testimony of Alisa Jackson, in rebuttal, that she told Sheriah
Worthy that the victim was deceased at 3:41 a.m. on June 1,
2014, because that testimony was entirely hearsay.
This evidence was not being offered for the truth of the
matter that the victim actually died at 3:41 a.m., but rather as a
link in the chain of circumstantial evidence to show that
Appellant was made aware of the victim’s alleged death before
he fled from Pennsylvania to High Point, North Carolina.
Appellant claims the trial court erred by denying the
defense request to present testimony in surrebuttal that it is not
uncommon for witnesses to be uncooperative. The evidence the
defense wanted to present was testimony from Greta Davis,
another attorney in the Public Defender’s Office. See N.T., April
18-19, 2016[,] at 48-49. What was relevant in this case was not
some vague generalization regarding why some individuals
might not cooperate with law enforcement, but rather why the
particular witnesses in this case did not speak with law
enforcement. The proffer regarding Ms. Davis’[s] testimony was
not specific to the defense witnesses in this case.
Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 14–19.
We conclude that none of Appellant’s issues has merit. Accordingly,
the judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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