Com. v. Fason, L. ( 2021 )

J-A28039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY BENEFIELD FASON :
:
Appellant : No. 255 WDA 2020
Appeal from the Judgment of Sentence Entered September 17, 2019
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000168-2018
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 06, 2021
Larry Benefield Fason (Appellant) appeals from the judgment of
sentence entered in the Cambria County Court of Common Pleas following his
jury conviction of first-degree murder and aggravated assault.1 Appellant
challenges both the sufficiency and weight of the evidence supporting his
convictions, the trial court’s failure to give a requested jury instruction, and a
purported Brady2 violation. We affirm.
The evidence presented at Appellant’s jury trial established the
following. On November 5, 2017, Johnstown Police Department officers and
detectives were dispatched to the area of Bell Place and Messenger Street in
Johnstown, Pennsylvania, after a report of a deceased body. N.T., 7/16/19,
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1 18 Pa.C.S. §§ 2502(a), 2702(a)(1).
2 Brady v. Maryland, 373 U.S. 83 (1963).
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at 74-75. When they arrived on the scene, they observed a deceased female
lying in an apartment complex’s trash receptacle area. Id. at 76. The
deceased, later identified as Angela Lunn (Victim), a known acquaintance of
Appellant, was partially clothed and had multiple contusions on her face and
head. Id. at 89; N.T., 7/17/19, at 56.
Upon investigation, detectives noticed droplets of blood “leading from
[Victim] up to the staircase to the rear of an apartment complex.” N.T.,
7/16/19, at 78. The blood trail led to a third floor apartment, where Appellant
resided. Id. Appellant allowed police to enter the apartment to remove some
of Victim’s personal belongings. Id. at 80. Once inside, police immediately
were “hit with a very strong smell of cleaning products; ammonia, like Clorox
type smell.” N.T., 7/17/19, at 59. The police also noticed blood stains around
the kitchen sink and droplets of blood on the floor, which appeared “to be the
same blood trail leading out the door.” N.T., 7/16/19, at 81.
Police obtained a “body warrant” for Appellant, seeking photographs of
his body, as well as samples of his blood, DNA samples, pubic hair, hair
follicles, and fingernail clippings. Id. at 94. Appellant was transported to a
local hospital where a Sexual Assault Nurse Examiner (SANE) examined
Appellant and found blood on his finger, right foot, left toes, and underneath
his left foot toenails. Id. at 97-100. The officers also obtained a search
warrant for Appellant’s apartment, where they recovered a “jug” of ammonia
and a “jug” of detergent from the kitchen, and a tire iron, which was sticking
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out of a water jug in the master bedroom. Id. at 96; N.T., 7/17/19, at 44,
47.
Upon noticing a surveillance camera facing the trash bin area, Detective
Sergeant Corey Adams contacted the manager of the Elks Lodge to view the
video beginning at midnight the night before. See N.T., 7/16/19, at 122-23.
Because he did not have a flash drive available, Detective Sergeant Adams
recorded the relevant portion of the video with his cell phone. Id. at 127.
The detective returned to the Lodge the next day, and used a flash drive to
download the surveillance video from the hours of 4:00 am to 7:00 pm. on
November 5, 2017. Id. at 127-28. He then deleted the video on his cell
phone. Id. The detective explained that the recording does not provide “one
continuous video,” but rather “chunks it into clips” so that “[s]ometimes [the
recording is] missing a couple of seconds[.]” Id. at 129. The recording, which
was played for the jury at trial, showed Victim arrive at the apartment complex
at 4:15 a.m. on November 5th. See id. at 131-32. At approximately 5:30
a.m., Appellant could be seen placing two “shopping bags” inside a dumpster.
See id. at 132-33. An hour later, the video showed Appellant positioning
Victim’s body in the trash bin area before returning to his apartment. See id.
at 133-36. Although eight seconds were omitted from the video clip played
for the jury, Detective Sergeant Adams testified that he viewed the original
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video, and “nothing . . . happens in those eight seconds.” 3 Id. at 136. The
detective later retrieved the shopping bags from the dumpster, and discovered
“numerous rags and towels soaked with blood, clumps of hair, . . . a pillowcase
saturated in blood, and other pieces of garbage.” Id. at 142.
Police detained Appellant for questioning and, that same day, he
provided three separate statements to Detective Bradley Christ and Detective
Sergeant Adams.4 See N.T., 7/17/19, at 64, 66-67, 70, 74-75. In his first
statement, Appellant told the detectives Victim arrived at his house “beat up.”
N.T., 7/17/19, at 69. He claimed she was “going to go to the hospital,” so he
“helped clean her up and then she walked out the back door.” Id. After about
an hour and a half break, the detectives spoke with Appellant again, and told
him they had reviewed surveillance video of the scene, which showed him
taking “garbage bags to the dumpster and bringing [Victim’s] body out.” Id.
at 70, 72. In his second statement, Appellant again claimed Victim knocked
on his door, “but this time he [stated] she was attacking him” and began
“trashing his apartment.” Id. at 72. During the altercation, Appellant claimed
he had to “push her,” and when he did so, “she fell in the hallway and hit her
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3 During cross-examination of Detective Sergeant Adams, Appellant pointed
out that there were other segments missing from the flash drive recording.
See N.T., 7/16/19, at 154-58. The detective responded that he could not be
sure “those seconds were still on the video” he had recorded, and later deleted
from his cell phone. Id. at 158.
4Detective Christ was the lead detective in the interview. See N.T., 7/16/19,
at 126. He provided Appellant with Miranda warnings. N.T., 7/17/19, at 65-
66. See Miranda v. Arizona, 384 U.S. 436 (1966).
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head[.]” Id. at 73. Appellant stated he followed her out of his apartment,
where she collapsed on the bottom step. Id. Appellant maintained he then
“picked her up and set her down in the garbage [but] she was still verbally
speaking to him at that time.” Id.
During another break, the detectives learned Victim sustained “some
pretty substantial injuries [that were not] really lining up with” Appellant’s
prior statements. N.T., 7/17/19, at 74-75. Appellant then provided a third
statement police, claiming:
[Victim] came to his door, knocked. He was sleeping. He then let
her in. She comes in, she smoked some dope, and she gets mad
with [Appellant] because he wouldn’t give her any money. He
tells her to leave. [Victim] starts shoving and fighting with [him]
again. He advises that he pushes her and she falls and hits her
head in the hallway. He tells her again she has to leave. They
walk . . . down the back steps together. He’s [ ] in front of her.
She collapses at the bottom so he lifts her up and tell her to go
home. And . . . he was very adamant that [Victim] was clearly
speaking English to him when he ultimately left her in that
garbage receptacle.
Id. at 77. However, after the detectives confronted Appellant with the extent
of Victim’s injuries, which would have left her unable to leave his apartment
on her own, Appellant commented: “I just snapped the fuck out.” Id. He
then told detectives for the first time that Victim fell from the third floor to the
second floor, and “was pretending she couldn’t get up[.]” Id. at 78. Appellant
claimed he “grabbed her by the ankles and drug her down the other set of
steps to the landing[.]” Id. He consistently maintained that Victim was alive
and speaking when he left her near the trash receptacle. See id. at 79.
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The trial court summarized the testimony of forensic pathologist Dr.
Kevin Whaley regarding Victim’s injuries as follows:
[Dr.] Whaley testified that [Victim] suffered numerous defensive
and blunt force traumas that resulted in a variety of injuries and
that three of those injuries would have been fatal with one being
immediately fatal.
[Dr.] Whaley testified that [Victim’s] injuries from the blunt
force trauma included: a fracture to her mandible; a right and left
basilar skull fracture; diffuse subgaleal hemorrhaging, where
blood pools under the scalp; [subarachnoid] hemorrhaging where
blood pools around the brain; cerebrospinal fluid leaking from the
left ear canal through the left side basilar fracture across the
petrous ridge; a green stick fracture to her right arm’s ulna; a
comminuted fracture of her right wrist bones; a fracture to the left
arm’s ulna bone; fractures to the front and sides of her left ribs
numbers 3-7; a punctured left upper lung lobe resulting from a
broken rib entering the lung; fractures to the front and sides of
her right ribs numbers 2 and 6-10; her right ear being partially
torn off; a lacerated spleen resulting from a broken rib piercing
the organ; vaginal and rectal tearing; her left ear being damaged;
hair torn from the scalp; and multiple abrasions, lacerations and
bruises over her body. [Dr.] Whaley explained that [Victim’s]
injuries to her arms were consistent with defensive injuries that
result when a person attempts to shield the head or body with
their forearms.
[Dr.] Whaley testified that the bruising on [Victim’s]
buttocks, chest, abdomen, thighs, arms, and chin suggested it had
been caused by a weapon since the bruising showed a tram track
pattern. . . . Based on the bruises here [Dr.] Whaley concluded
[Victim] had been struck repeatedly and with significant force by
a long and narrow diameter object, such as a rod or board, on her
head, chest, abdomen, arms, legs, buttocks, and chin. . . .
[Dr.] Whaley explained, that of the injuries [Victim]
sustained three would be fatal with one resulting in immediate
death. [Dr.] Whaley noted that both the punctured lung and
lacerated spleen would have resulted in [Victim’s] death unless
immediate medical aid was provided. He noted that there was
little blood loss from [Victim’s] lung or spleen injury into the body
cavity indicating that the injuries occurred immediately prior to or
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after [Victim’s] death when her blood pressure was minimal to
nonexistent. [Dr.] Whaley explained that a person with a left side
basilar fracture like [Victim’s] would be able to survive for a period
of time without medical attention but would eventually die without
aid[.] He explained that a similar right side basilar fracture would
be “most immediately lethal” as it would result in damage to the
brain stem resulting in the shutdown of a person’s autonomic
functions such as heart rate and respiration. [Dr.] Whaley
testified that it would take a significant blow to cause such a right
side basilar fracture as the bone in that area is the thickest in the
body. He opined that based upon the autopsy[,] it was likely
caused by the blow to [Victim’s] chin with the force resulting in
the fractured jaw and traveling through the skull to cause the two
basilar fractures and injury to the brain stem. . . . Finally, he
opined that such a right side basilar fracture could not be caused
by a simple fall or a normal fall down stairs.
Trial Ct. Op., 1/27/20, at 8-10.
Forensic testing revealed one hair fragment, but no blood on tire iron
recovered from Appellant’s apartment. See N.T., 7/17/19, at 148. With
regard to the items sent for DNA testing, Appellant’s DNA matched DNA found
under the nails of Victim’s hands. See Trial Ct. Op., 1/27/20, at 13. Victim’s
DNA matched the blood sample recovered from Appellant’s left toes and boxer
shorts, as well as various blood samples recovered from Appellant’s
apartment. Id. Moreover, “DNA from the four human hairs recovered from
the clumps located in the dumpster contained one DNA profile that was a
match to [Victim].” Id.
Appellant testified to the following in his own defense at trial. In the
early morning hours of November 5, 2017, Victim came to his apartment with
“bruises on her face, . . . [h]er lip was busted[, and s]he was leaking blood
from her mouth.” N.T., 7/18/19, at 52. Victim asked to use his bathroom,
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and borrowed some towels so she could “wash[ ] up.” Id. at 52-53. The two
then smoked “weed” and “crack cocaine.” Id. at 54. Appellant started to get
“piss[ed] off” when Victim neglected to use an ashtray, and let the ashes from
her cigarettes fall on the floor. Id. at 55. As he attempted to sweep up the
ashes, he and Victim had words, and she bit his finger. Id. at 57. At that
point, Appellant pushed her “kind of rough.” Id. Appellant explained: “She
came back — she like had her head on my chest, . . . and then I pushed her
off me again a little harder[, and] she fell and hurt herself on the wall[.]” Id.
He told the detectives that he “just F-ing snapped out” because he was angry
at Victim for messing up his apartment. Id. at 58. Appellant then put the
bloody rags Victim used to clean herself in a garbage bag, and took them to
the dumpster. Id. at 58-59. He also began cleaning the blood spots
throughout the apartment with disinfectant. Id. Shortly thereafter, Appellant
discovered Victim “broke [his] weed plant[,]” at which point, he told her she
“really [had] to go.” Id. at 60. As Victim started down the steps, “[s]he got
her feet messed up on the top of the step, and . . . fell backwards” to the
second floor landing. Id. at 61. Appellant helped her up, and as she was
holding his arm for support, she lost her grip, and fell “straight down” the rest
of the steps, and struck her head on a pillar. Id. at 62. Victim got up and
walked a few steps before collapsing. Id. at 63. Appellant admitted he then
dragged her to the dumpster area before returning to his apartment. Id at
64-65. He claimed he never meant to hurt her, and he “thought she was
okay” because she was still mumbling when he left her. See id. at 64-65, 67.
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On cross-examination, Appellant stated he “told a lot of pieces of lies”
to the police because he was scared and “in shock” because they had just
gotten him out of bed and told him Victim was dead. N.T., 7/18/19, at 69.
He also claimed he was afraid the police would charge him with a crime simply
because he is black and Victim was white. Id. at 79, 88-89.
The Commonwealth presented one rebuttal witness, biochemical
engineer and accident reconstructionist, Dr. Andrew Rentschler, who opined
the basilar skull fracture and other injuries Victim sustained were “inconsistent
with a backward fall down the steps[.].” See N.T., 7/18/19, at 123. See also
id. at 115 (explaining Victim did not have “any depressed or comminuted or
splintered-type fractures to her skull [that] you would expect with enough
force striking the skull” to cause the basilar skull fracture). Dr. Rentschler
testified his opinion would not change even if Victim had been pushed down
the steps. See id. at 126-28.
Prior to trial, Appellant filed a motion to suppress the video surveillance
footage from the Elks Lodge because the “gaps” in the footage included
“missing video that [was] critical to [the] defense[.]”5 Trial Ct. Op., 7/11/19,
at 3. The court conducted a suppression hearing on July 5, 2019, and denied
Appellant’s motion by order entered July 11th. The case proceeded to a jury
trial, and on July 19, 2019, the jury convicted Appellant of first degree murder
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5 Appellant’s motion is not docketed, nor included in the certified record.
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and aggravated assault. On September 17, 2019, the trial court imposed a
mandatory term of life imprisonment.
Appellant filed a timely post-sentence motion on September 27, 2019,
followed by an amended motion on January 8, 2020. The court denied the
motions on January 27th, and this timely appeal follows.6
Appellant presents the following four issues for our review:
1. Did the trial court err in denying . . . Appellant’s Motion for
Judgment of Acquittal based on a challenge to the sufficiency of
the evidence?
2. Did the trial court err in denying . . . Appellant’s Motion for a
New Trial based on a challenge to the weight of the evidence?
3. Did the trial court err in denying . . . Appellant’s Motion for a
New Trial based on the [c]ourt’s refusal to instruct the jury on
voluntary and involuntary manslaughter?
4. Did the trial court err in denying . . . Appellant’s Motion to
Suppress Evidence?
Appellant’s Brief at 3.
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his conviction of first-degree murder.7
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom when viewed in the light
most favorable to the Commonwealth as verdict winner, are
sufficient to establish all of the elements of the offense beyond a
reasonable doubt. We must also bear in mind that:
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6Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statements of errors complained of on appeal.
7 Appellant presents no argument concerning his aggravated assault
conviction.
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the Commonwealth may sustain its burden by means of
wholly circumstantial evidence; the entire trial record should
be evaluated and all evidence received considered, whether
or not the trial court’s rulings thereon were correct; and the
trier of fact, while passing upon the credibility of witnesses
and the weight of the proof, is free to believe all, part, or
none of the evidence.
Commonwealth v. Chmiel, 889 A.2d 501, 516–17 (Pa. 2005) (citations
omitted), cert. denied, 549 U.S. 848 (2006).
A conviction of first-degree murder requires the Commonwealth to
prove beyond a reasonable doubt “a human being was unlawfully killed; the
defendant was responsible for the killing; and the defendant acted with malice
and a specific intent to kill.” Commonwealth v. Houser, 18 A.3d 1128, 1133
(Pa. 2011). See 18 Pa.C.S. § 2502(a). Both a specific intent to kill and malice
may be inferred when the defendant uses a deadly weapon on a vital part of
the victim’s body. Houser, 18 A.3d at 1133-34 (citations omitted).
Furthermore, we note “proof of motive is not necessary for a conviction of
first-degree murder[.]” Chmiel, 889 A.2d at 517.
In the present case, Appellant contends “there is nothing in the record
from which the jury could infer that [Appellant] had a conscious purpose to
bring about [Victim’s] death.” Appellant’s Brief at 7. Rather, he maintains
“the evidence . . . indicates that [Victim] had an open invitation to
[Appellant’s] home, and that [Appellant] enjoyed her company.” Id. While
Appellant admits the two argued on the night of Victim’s death, he insists
there was “nothing” in the record to “suggest he was capable of wanting to
kill his friend over a petty argument” and the Commonwealth presented no
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evidence of motive. See id. at 7-8. Furthermore, he points to the county
coroner’s testimony at his preliminary hearing which suggested some of the
bruises on Victim’s body may have been sustained “more than 72 hours before
she was photographed by the coroner.” Id. at 10. With regard to the use of
a deadly weapon, Appellant notes that while the prosecutor, in her closing
argument, referred to the tire iron found in his apartment, there was no blood
or DNA recovered from that object. Id. Thus, the jury had to “engage in pure
speculation as to whether the tire iron was used as a weapon.” Id.
Accordingly, Appellant insists the evidence was insufficient to support his
conviction of first-degree murder.
The trial court disposed of Appellant’s sufficiency claim as follows:
Here the evidence establishes that: [Victim] arrived at
[Appellant’s] apartment alive; that only she and [Appellant] were
present; [Victim] was found in a trash shelter in the alley behind
[Appellant’s] apartment dead; [Victim’s] death resulted from
multiple blunt force traumas that inflicted numerous serious
injuries; [Victim] suffered three injuries any of which would have
been fatal; [Victim’s] injuries were the result of significant force
used over multiple parts of her body; video showed [Appellant]
carrying [Victim’s] body into the alley and placing it in the trash
shelter; video showed [Appellant] disposing of bags containing
[Victim’s] hair; [Victim’s] blood was found in [Appellant’s]
apartment; and [Victim’s] blood or DNA was found on
[Appellant’s] body, under his nails, and on his clothing. In
addition the jury heard testimony detailing how [Appellant]
provided three separate stories to [police] concerning what
happened between him and [Victim] on the morning of her death.
Viewed in its totality the evidence is sufficient to establish
the element of specific intent to kill. Dr. Whaley determined the
most immediate cause of [Victim’s] death was the blow to her jaw
resulting in a broken jaw and a right side basilar fracture that
impacted her brain stem. Both [Drs.] Whaley and Rentschler
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testified that such a blow would have required significant force to
result in such injuries. [Victim] did not suffer a single injury that
resulted in her death as [Dr.] Whaley testified she suffered from
multiple other injuries include two additional fatal injuries.
Dr. Whaley testified that [Victim] suffered from multiple
blunt force traumas across her body[.] He noted there was little
blood loss from [Victim’s] lung or spleen injury into the body
cavity indicating that the injuries occurred immediately prior to or
just after [her] death when her blood pressure was minimal to
nonexistent. [Dr.] Whaley further explained that [Victim’s]
injuries to her arms were consistent with defensive injuries that
result when a person attempts to shield the head or body with
their forearms to ward off an attacker.
The nature and extent of [Victim’s] extreme injuries would
allow a jury to find that [Appellant] acted with the specific intent
to kill. . . .
Trial Ct. Op., 1/27/20, at 20-21.
Our review of the record reveals no basis to disagree with the trial court.
Appellant’s argument focuses primarily on the lack of motive for the killing,
and a purported lack of evidence demonstrating he possessed the requisite
intent to kill Victim. However, as noted supra, the Commonwealth is not
required to prove motive in a first-degree murder prosecution, and the intent
to kill may be inferred from the use of a deadly weapon on a vital part of the
victim’s body. See Houser, 18 A.3d at 1133-34; Chmiel, 889 A.2d at 517.
Based upon the evidence presented at trial, the jury could have inferred
Appellant developed the intent to kill Victim during their argument. Indeed,
after changing his story several times, Appellant admitted to the detectives
that he “just snapped the fuck out.” N.T., 7/17/19, at 77. See
Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013) (“The law does not
require a lengthy period of premeditation; indeed, the design to kill can be
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formulated in a fraction of a second.”), cert. denied, 571 U.S. 1204 (2014).
Furthermore, as the trial court explained, both Drs. Whaley and Rentschler
opined that the “blow [which caused Victim’s brain stem injury] would have
required significant force[,]” and her injuries were not consistent with
Appellant’s claim that Victim fell down the steps. Trial Ct. Op., 1/27/20, at
20-21. See also N.T., 7/17/19, at 182, 197; N.T., 7/18/19, at 114, 117, 120-
23, 126-28. The jury was free to determine the credibility of the witnesses,
including Appellant, and “believe all, part, or none of the evidence.” See
Chmiel, 889 A.2d at 516–17 (citation omitted).
We note that Appellant emphasizes the testimony of the county corner
at the preliminary hearing, which indicated some of Victim’s bruises were more
than 72 hours old. See Appellant’s Brief at 10; N.T. Preliminary H’rg, 1/26/18,
at 62. However, Appellant ignores the coroner’s further testimony that Victim
had “over a hundred bruises to her body” and that some of the bruising was
“fresh.” Id. at 63. Moreover, Dr. Whaley testified at trial that Victim suffered
“a significant number of blunt force injuries, three of which would [have been]
lethal[.]” N.T., 7/17/19, at 163. Thus, the fact Victim may have also had
some older bruising is not dispositive.
With regard to the tire iron, we note the Commonwealth is not required
to produce or identify a murder weapon in order to secure a conviction of
murder. Nevertheless, Dr. Whaley testified that based upon his observation
of Victim’s injuries, she was struck forcefully with an object. See N.T.,
7/17/19, at 165, 172-73, 177-78, 197 (identifying “pale area” in center of
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bruise under chin where “object actually hit” and “tram-track patterns” in
bruising on buttocks, arms and thighs). Because we conclude the evidence
was sufficient for the jury to find beyond a reasonable doubt that Appellant
murdered Victim with the specific intent to kill, Appellant’s first claim fails.
Next, Appellant challenges the weight of the evidence supporting his
murder conviction.8 Our review of a weight challenge is distinct from a
sufficiency challenge:
When a trial court evaluates a weight of the evidence claim, the
trial court may award relief only “when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and the
award of a new trial is imperative so that right may be given
another opportunity to prevail.” On appeal, the inquiry differs.
When it considers a weight claim, an appellate court must review
the trial court’s exercise of discretion. “A motion for a new trial
based on a claim that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.” “A new
trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion.” We do not contemplate the
underlying question of whether the verdict actually was
against the weight of the evidence. Rather, we evaluate
the trial court’s decision of that issue, and we do so under
an abuse of discretion standard.
Commonwealth v. Clemons, 200 A.3d 441, 463–64 (Pa. 2019) (citation
omitted and emphasis added), cert. denied, 140 S. Ct. 176 (U.S. 2019).
In the present case, Appellant contends that if his “actions were the
cause of [Victim’s] death, the death was unintentional.” Appellant’s Brief at
11. His sole argument consists of a list of factors, which he claims “weigh[ ]
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8 Appellant properly preserved his weight claim in his timely filed post-
sentence motion. See Pa.R.Crim.P. 607(A)(3).
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against a finding of the specific intent to kill[,]” including: (1) no motive was
presented by the Commonwealth or developed during trial; (2) Appellant “is
not known to have violent tendencies;” (3) Appellant and Victim were friends,
and Appellant’s teenaged daughters also considered Victim a friend; and (4)
Appellant did not “try to hide his actions” from the surveillance camera, nor
flee the scene, both of which tend to show he “did not believe his actions were
unlawful.” Id. Indeed, Appellant insists a conviction of “first-degree murder
where the accursed doesn’t even have a motive to kill should shock the Court’s
sense of justice.” Id. at 12.
The trial court addressed Appellant’s weight claim as follows:
[T]he jury was presented with substantial evidence related to the
nature and extent of [Victim’s] injuries. In addition evidence
showed that she and [Appellant] were alone in the period
immediately before her death and testimony established that her
injuries were inconsistent with the version of events offered by
[Appellant]. The jury was free to choose which evidence to accept
and their verdict indicates that they did not credit [Appellant’s]
version of events or explanation of how [Victim] was injured[,]
but chose to accept the uncontradicted scientific evidence
concerning the causes of [Victim’s] injuries. Their verdict is
consistent with the evidence presented and does not shock the
[c]ourt’s sense of justice such that the verdict must be set aside.
Trial Ct. Op., 1/27/20, at 24.
Appellant fails to establish an abuse of discretion by the trial court. See
Clemons, 200 A.3d at 464. Rather, he simply presents evidence favorable to
his defense, and ignores the medical, scientific, and video evidence supporting
the Commonwealth’s case. No relief is warranted.
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Appellant next contends the trial court erred when it failed to instruct
the jury on voluntary and involuntary manslaughter. Appellant’s Brief at 12.
Our review of a challenge to the trial court’s jury instructions is well-settled:
“[W]e review the charge as a whole to ensure it was a fair and complete
statement of the law.” Commonwealth v. Spell, 28 A.3d 1274, 1281 (Pa.
2011) (citation omitted).
Defendants are generally entitled to instructions that they have
requested and that are supported by the evidence.
Commonwealth v. Markman, 916 A.2d 586, 607 (2007);
Commonwealth v. DeMarco, 809 A.2d 256, 261 (2002)
(“Where a defendant requests a jury instruction on a defense, the
trial court may not refuse to instruct the jury regarding the
defense if it is supported by evidence in the record.”);
Commonwealth v. Browdie, 671 A.2d 668, 673–74 (1996)
(“[W]e hold that a trial court shall only instruct on an offense
where the offense has been made an issue in the case and where
the trial evidence reasonably would support such a verdict.”). We
have explained that the reason for this rule is that “instructing the
jury on legal principles that cannot rationally be applied to the
facts presented at trial may confuse them and place obstacles in
the path of a just verdict.” Commonwealth v. Taylor, 876 A.2d
916, 925–26 (2005) (quoting Commonwealth v. White, 415
A.2d 399, 400 (1980)). A criminal defendant must, therefore,
“establish that the trial evidence would ‘reasonably support’ a
verdict based on the desired charge and may not claim
entitlement to an instruction that has no basis in the evidence
presented during trial.” Id. (citing Commonwealth v. Carter,
466 A.2d 1328, 1332–33 (1983)).
Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa. 2014). “In determining
whether the evidence would support a manslaughter charge, we must view
the evidence in the light most favorable to the defendant.” Commonwealth
v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. 1996). However, we note the
“refusal to give a requested charge does not require reversal unless the
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appellant was prejudiced by that refusal.” Commonwealth v. Baker, 963
A.2d 495, 507 (Pa. Super. 2008) (citation omitted).
Pursuant to 18 Pa.C.S. § 2503, a person commits voluntary
manslaughter if he kills another while, inter alia, “acting under a sudden and
intense passion resulting from serious provocation by” the victim. 18 Pa.C.S.
§ 2503(a)(1). A person is guilty of involuntary manslaughter if the death of
another person is the direct result of the defendant “doing . . . an unlawful act
in a reckless or grossly negligent manner, or . . . doing . . . a lawful act in a
reckless or grossly negligent manner[.]” 18 Pa.C.S. § 2504(a).
Here, Appellant argues a charge of voluntary manslaughter was
warranted because “the facts adduced at trial court support a theory that [he]
caused [Victim’s] death . . . when he ‘snapped out’ in response to [Victim’s]
odd conduct in his apartment.”9 Appellant’s Brief at 14. He claims that if he
did attack Victim as the Commonwealth contends, “he must have been
provoked” since the Commonwealth presented no evidence of motive, and he
had “no other reason to hurt” Victim. Id. at 15. With regard to a charge of
involuntary manslaughter, Appellant contends that his recitation of the events
that night support such a charge. Indeed, he testified Victim fell down the
steps twice, once “hitting her head on a brick pillar.” See id. at 12-13. He
claims he thought she was “just playing hurt,” although Appellant
____________________________________________
9 The record is unclear whether Appellant requested a manslaughter
instruction before the jury was charged. However, he preserved this claim by
objecting to the court’s failure to provide such an instruction after the charge.
See N.T., 7/18/19, at 213.
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acknowledges she “would likely still be alive had [he] called 911 instead of
ignoring the serious condition [she] was in.” Id. at 13. Appellant also
emphasizes Dr. Rentschler’s testimony that, while unlikely, it was not
impossible for Victim to sustain her injuries from a fall. See id. at 14. Thus,
Appellant insists he is entitled to a new trial so that a jury may be charged
with both voluntary and involuntary manslaughter.
The trial court determined that neither a charge on voluntary or
involuntary manslaughter was warranted under the facts of this case. See
Trial Ct. Op., 1/27/20, at 25-29. With regard to voluntary manslaughter, the
court concluded there was no evidence Appellant “acted with ‘sudden and
intense passion’ in causing [Victim’s] fatal injury.” Id. at 26. The court
opined:
Rather, [Appellant’s own] testimony shows a single incident where
he shoved [Victim] during an argument causing her to strike her
head after which he continued to interact normally with [her]. The
medical and scientific evidence was clear that this fall would not
have caused [Victim’]s fatal injury.
Id. at 27. Moreover, the court emphasized the “unequivocal medical
testimony” that Victim “would have died immediately from [the brain stem]
injury and not been able to walk and talk with [Appellant].” Id.
We note, too, that Appellant fails to point out any evidence
demonstrating his purported outburst was the result of “serious provocation”
from Victim. See 18 Pa.C.S. § 2503(a)(1). “The ultimate test for adequate
provocation remains whether a reasonable man, confronted with this series of
events, became impassioned to the extent that his mind was incapable of cool
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reflection.” Commonwealth v. Montalvo, 986 A.2d 84, 100 (Pa. 2009)
(citation omitted). Appellant argues only that he “must have been
provoked” by the Victim to act in way that was so out of his character. See
Appellant’s Brief at 15 (emphasis added). Absent any evidence of serious
provocation, Appellant’s challenge fails.
With regard to involuntary manslaughter, the trial court similarly
determined the evidence did not support a finding that Appellant “acted
recklessly or with gross negligence in causing [Victim’s] death.” Trial Ct. Op.,
1/27/20, at 28. The court opined:
[Appellant] testified only that he pushed [Victim] causing her to
fall and strike her head. The unequivocal medical evidence was
that such a fall could not have caused the fatal injury. [Appellant]
pushing [Victim] in response to being bitten does not reveal a
conscious disregard for an unjustifiable risk of death from his
action.
Id. at 28-29. Again, we find no basis to disagree.
Appellant focuses on Dr. Rentschler’s acknowledgment that it was
“possible” for a person to “hit their head on the corner of [a] pillar and sustain
an injury similar to what [Victim] sustained[.]” Appellant’s Brief at 14, citing
N.T., 7/18/19 at 142. However, immediately after this questioning, the
following exchange occurred during the Commonwealth’s redirect
examination:
[Commonwealth:] Dr. Rentschler, let’s cut to the chase. Would
it be possible to sustain the basilar skull fracture that would
require 1,000 pounds of pressure without having a serious
indentation in the skull?
[Dr. Rentschler:] No, no, it would not. In this case, it would not.
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N.T., 7/18/19, at 142. Thus, while Dr. Rentschler conceded an individual
could sustain a basilar skull injury from a fall, he clearly opined that a fall
was not the cause of Victim’s injury herein. Thus, we agree no charge of
involuntary manslaughter was warranted.
Furthermore, we note that although the jury was charged on both first-
degree and third-degree murder, they returned a verdict of guilty on the
higher graded offense. See N.T., 7/18/19, at 204-10. Accordingly, even if
the trial court erred in failing to provide a manslaughter charge, Appellant
suffered no prejudice. See Baker, 963 A.2d at 507; Commonwealth v.
Haynes, 577 A.2d 564, 574 (Pa. Super. 1990 (concluding appellant was not
prejudiced by trial court’s denial of manslaughter charge, when jury was
charged on first, second and third-degree murder; “jury could have exercised
its mercy dispensing power and brought in a verdict of third or second degree
murder[,] but it found appellant guilty of first-degree murder). Accordingly,
Appellant is entitled to no relief on this claim.
Lastly, Appellant avers the trial court erred when it failed to suppress
the recorded surveillance video based upon a Brady violation. Appellant’s
Brief at 19-20. This claim was addressed during a pretrial suppression hearing
conducted on July 5, 2019.
Our standard of review for an order denying a motion to suppress
evidence is well-established:
[We are] limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
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Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth 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 suppression
court’s factual findings are supported by the record, [the appellate
court is] bound by [those] findings and may reverse only if the
court’s legal conclusions are erroneous.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation
omitted).
In order to establish a Brady violation, a defendant must demonstrate:
“(1) the prosecutor has suppressed evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant, and (3) the
suppression prejudiced the defendant.” Commonwealth v. Koehler, 36
A.3d 121, 133 (Pa. 2012) (citation omitted).
To demonstrate prejudice, “the evidence suppressed must have
been material to guilt or punishment.” Evidence is material under
Brady when there is a reasonable probability that, had the
evidence been disclosed, the result of the trial could have been
different. “The mere possibility that an item of undisclosed
information might have helped the defense, or might have
affected the outcome of the trial does not establish
materiality in the constitutional sense.”
Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (citations
omitted and emphasis added). Moreover,
[t]here is another category of constitutionally guaranteed access
to evidence, which involves evidence that is not materially
exculpatory, but is potentially useful, that is destroyed by the
state before the defense has an opportunity to examine it. When
the state fails to preserve evidence that is “potentially useful,”
there is no federal due process violation “unless a criminal
defendant can show bad faith on the part of the police.”
Potentially useful evidence is that of which “no more can be said
than that it could have been subjected to tests, the results of
which might have exonerated the defendant.”
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Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (citations
omitted and emphasis added).
Here, Appellant contends the trial court should have suppressed the
surveillance video from the Elks Lodge because it was missing 42 seconds “of
the 149 seconds of video depicting the interaction between [Appellant] and
[Victim].”10 See Appellant’s Brief at 17, 20. He claims the “un-altered video
was in the possession of the police [but] was irretrievable corrupted as a result
of [their] actions.” Id. at 17. Appellant maintains Detective Sergeant Adams,
who recorded the video, should have checked the flash drive recording before
deleting the recording on his cell phone. Id. at 18. Further, he insists the
missing video “is a violation of the Brady rule because the video would have
been exculpatory at trial and would have been available to impeach
prosecution witnesses.” Id. at 20. Specifically, Appellant maintains that the
missing video would have provided the jury “a basis on which to believe [his]
version of the incident[,]” and “would potentially have provided material to
impeach the testimony of Dr. [ ] Whaley [that Victim] would have been
‘instantaneously incapacitated’ by a basilar skull fracture.” Id. Thus, he
____________________________________________
10 It merits mention that the missing 42 seconds of video are not continuous.
Appellant explains the relevant video was split into four segments: (1)
6:28:39 a.m. to 6:29:55 a.m.; (2) 6:30:03 a.m. to 6:30:21 a.m.; (3) 6:30:37
a.m. to 6:31:31 a.m.; and (4) 6:31:49 a.m. to 6:32:04 a.m. See Appellant’s
Brief at 17. Thus, “[t]he missing portions include eight seconds between the
first and second video, sixteen seconds between the second and third video,
and eighteen seconds between the third and fourth video.” Id.
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argues “the Commonwealth’s use of the altered video resulted in extreme
prejudice against [him].” Id. at 21.
First, we conclude Appellant cannot establish the deletion of the cell
phone video constituted a Brady violation. As noted supra, in order to
establish a Brady violation, Appellant must demonstrate the missing video
was material to his guilt or innocence. See Haskins, 60 A.3d at 547. Here,
Appellant can only engage in speculation as to what could have been observed
on the missing 42 seconds of video. See Trial Ct. Op., 7/11/19, at 8
(Appellant “failed to established that the missing video is materially
exculpatory[;] instead he has only established that the missing video
segments might be potentially useful by showing speculative events that may
have occurred during the missing time”). Thus, Appellant’s Brady claim fails.
Moreover, we conclude Appellant cannot demonstrate he is entitled to
relief under the “potentially useful” evidence test. See Chamberlain, 30 A.3d
at 402. In its opinion denying Appellant’s motion to suppress, the trial court
explained that because the missing video was “merely potentially useful,”
Appellant was required to “establish that the loss of the video segments was
a result of bad faith on the part of the Commonwealth.” Trial Ct. Op.,
7/11/19, at 9 (emphasis added). In concluding Appellant failed to do so, the
trial court opined:
The evidence of record shows that [Detective Sergeant] Adams:
viewed the video on November 5[, 2017]; recorded a portion of it
on his cell phone using its video camera; and downloaded the
video on November 6th using the recording devices built-in
software. Further, [Detective Sergeant] Adams testified that he
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had used similar systems before to download the video and that
gaps in the video appeared once downloaded. Viewed in its
totality the evidence does not show that [Detective Sergeant]
Adams acted to circumvent discovery or in bad faith in
downloading the surveillance video in the method he did. Indeed,
[Appellant’s] counsel acknowledged at the July 5[, 2019,] hearing
that “at this time . . . we haven’t shown that there was any bad
faith on the part of the police department.” N.T. 7/5/19 p. 8.
Trial Ct. Op., 7/11/19, at 9-10. Because the record supports the court’s
findings, and Appellant’s appellate brief fails to identify any bad faith on the
part of the Commonwealth, we conclude no relief is warranted. See
Chamberlain, 30 A.3d at 402.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/06/2020
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