Com. v. Barksdale, D.

J-S84018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID LESLIE BARKSDALE :
:
Appellant : No. 201 MDA 2017
Appeal from the Judgment of Sentence December 9, 2016
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003560-2015
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 06, 2018
David Leslie Barksdale appeals from his judgment of sentence, entered
in the Court of Common Pleas of Dauphin County, after a jury found him guilty
of first-degree murder. Upon careful review, we affirm.
The trial court set forth the facts of this case as follows:
On June 25, 2014, Officer Duane Pyles responded to a dispatch
call indicating there was a previously reported missing person and
a strange odor in a basement. He and his partner arrived at the
scene and[,] upon knocking on the door, were greeted by two
residents of the home, as well as a stench that made it clear to
him that there was something dead in the home. One of the
residents, David Barksdale, indicated he believed he had seen an
ankle in the back of the basement. Suffice it to say, Officer Pyles
made his way to the basement and saw maggots crawling away
from the back corner. Officer Pyles thought he saw something
under a board so[,] using his baton[,] he lifted the board a bit and
saw what he recognized as a human joint. Officer Pyles and his
partner backed out of the basement and called a supervisor to the
scene.
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The body was identified as [83-year-old] Peggy Swann. She had
previously been reported missing by Barksdale. On June 8, 2014,
Barksdale and a few friends got into an argument. Barksdale was
called names and[,] in defending himself[,] indicated that he was
sleeping with Ms. Swann, amongst others. The friends, Bonita
Crummel and Michelle Black, were concerned and called Ms.
Swann to ask if she was sleeping with Barksdale. She told them
she was but it was not by choice. They agreed on a course of
action that included meeting with Peggy the following day and
reporting this to the Dauphin County Area Agency on Aging
(hereinafter “[Agency]”). Then they told Barksdale that they were
reporting him to [the Agency]. Barksdale was angry and yelled at
them and then hung up the phone. They called back several times
to no avail.
They did make the report to [the Agency] on June 9, 2014;
however, because they were unable to make contact with Peggy,
they did not go to the planned meeting. [The Agency] then went
out to make contact with Peggy; however, they were unable to
locate her. In the late night of June 9 or early June 10, Barksdale
called Bonita Crummel to tell her that Peggy was missing.
Trial Court Opinion, 5/9/17, at 1-2 (citations to record omitted).
Approximately nine months after Swann’s body was discovered,
Barksdale was arrested and charged. A jury trial was held on December 7-9,
2016, at which time the Commonwealth proceeded on the theory that
Barksdale murdered Swann because he was aware that the Agency was about
to begin an investigation into the nature of his sexual relationship with the
victim, as well as possible financial abuse. Barksdale was found guilty of first-
degree murder on December 9, 2016, and the court sentenced him that same
day to a term of life imprisonment. Barksdale’s post-sentence motions were
denied and this timely appeal followed. Both Barksdale and the trial court
have complied with Pa.R.A.P. 1925.
On appeal, Barksdale raises the following issues for our review:
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1. Did not the [trial] court err in barring [Barksdale] from fully
presenting his third-party-guilt defense by preventing [the]
introduction of the named third-party’s recent conviction for
aggravated assault against a female victim and by restricting
the relevance of the [third party’s] recent robbery convictions?
2. Did not the [trial] court err in overruling [Barksdale’s] objection
to irrelevant evidence describing the district attorney’s and
police’s motive in deciding on the timing of the filing [of] the
instant homicide charges?
3. Did not the [trial] court err in denying [Barksdale’s] motion in
limine to bar the introduction of irrelevant evidence regarding
his engaging in sex – either consensual or non-consensual –
with the 83-year-old [victim]?
4. Did not the [trial] court err in denying [Barksdale’s] motion in
limine to exclude reference to [the victim’s] statements by two
Commonwealth witnesses when such statements constituted
hearsay not admissible under any exception?
5. Did not the [trial] court abuse its discretion by failing to grant
[Barksdale] a new trial on the basis that the guilty verdict was
against the weight of the evidence when the totality of the
evidence on the core issues of the trial was unreliable,
contradictory, and incredible?
Brief of Appellant, at 5-6.
Barksdale first claims that the trial court erred in precluding him from
introducing evidence of a third party’s recent conviction for a similar crime
and by limiting the purpose for which evidence of that third party’s recent
robbery convictions could be used. For the following reasons, his claim is
meritless.
Our standard of review is well-settled:
The admissibility of evidence is within the sound discretion of the
trial court, and this Court will not reverse a trial court’s decision
concerning admissibility of evidence absent an abuse of the trial
court’s discretion. An abuse of discretion will not be found based
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on a mere error of judgment, but rather exists where the court
has reached a conclusion which overrides or misapplies the law,
or where the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (internal citations
omitted).
“A defendant has a fundamental right to present evidence provided that
it is relevant and not subject to exclusion under one of our established
evidentiary rules.” Commonwealth v. McGowan, 635 A.2d 113, 115 (Pa.
1993). “It is well established that evidence which tends to show that the crime
for which an accused stands trial was committed by someone else is relevant
and admissible.” Id. (citations omitted).
At trial, Barksdale’s defense was based largely on his assertion that an
individual named Benjamin Palmer actually killed Swann during the course of
a robbery. Palmer testified at trial that he had gone to Swann’s house on the
day she disappeared, but had left when she did not answer her door. Another
witness, a neighbor of Swann, contradicted Palmer’s testimony, testifying that
he had seen Palmer exiting Swann’s back door on that date.
On July 19, 2014, just over a month after Swann disappeared, Palmer
was arrested for multiple robberies, one of which included an aggravated
assault. In 2015, Palmer pled guilty to those charges. At trial, Barksdale
sought to introduce evidence regarding the robberies, and particularly the one
involving the aggravated assault, because they were proximate in time to
Swann’s murder and the latter offense involved “levels of similarity,” in that
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robbery was a motive and it involved facial injury to a female victim. Brief of
Appellant, at 43.
The trial court precluded Barksdale from presenting evidence regarding
the aggravated assault/robbery under an established rule of evidence,
specifically Pa.R.E. 404(b), and limited the use of the robbery convictions to
impeachment of Palmer for crimen falsi pursuant to Pa.R.E. 609.
Rule 404(b) provides, in pertinent part, as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2). This rule deals exclusively with the evidence of crimes,
wrongs or acts which a party seeks to admit to prove something about an
accused, a complainant or a witness. Commonwealth v. Thompson, 779
A.2d 1195, 1201 (Pa. Super. 2001). “[E]vidence of prior bad acts, while
generally not admissible to prove bad character or criminal propensity, is
admissible when proffered for some other relevant purpose so long as the
probative value outweighs the prejudicial effect.” Commonwealth v. Hicks,
156 A.3d 1114, 1125 (Pa. 2017), cert. denied sub nom. Hicks v.
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Pennsylvania, 138 S. Ct. 176 (2017) (citations omitted). In this case, Palmer
appeared as a witness and, as such, his testimony was subject to the
limitations imposed by Rule 404(b).
However, our courts have “long recognized an exception to the general
inadmissibility of other crimes evidence where there is a striking similarity—
or logical connection—between the proffered prior bad acts and the underlying
charged crime.” Id. In Commonwealth v. Palagonia, 868 A.2d 1212 (Pa.
Super. 2005), this Court held that:
[C]riminal defendants are entitled to offer evidence that some
other person committed a similar crime at or around the same
time they are alleged to have committed a crime. Evidence to
establish this fact is admissible after consideration of two distinct
factors that coalesce to establish its relevance and probative
value. Commonwealth v. Nocero, [] 582 A.2d 376 ([Pa.
Super.] 1990)[.] Those factors are: (1) the lapse of time between
the commission of the two crimes; and (2) the resemblance
between the methodologies of the two crimes. Id. at 378. Thus,
even if the time lapse between commission of the crimes is brief .
. ., the evidence is not admissible unless the nature of the crimes
is “so distinctive or unusual as to be like a signature or the
handiwork of the same individual.” Id.
Palagonia, 868 A.2d at 1216.
Barksdale argues that the normal evidentiary rules, in particular Rule
404(b) and the “signature crime” exception, “cannot be applied with equal
force to the admission of third-party-guilt evidence by a criminal defendant
without offending the constitutional rights identified in Holmes v. South
Carolina, [547 U.S. 319 (2006)].” Brief of Appellant, at 41. In Holmes, the
defendant was prosecuted for the beating, rape, robbery, and murder of an
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elderly woman. The prosecution relied heavily on forensic evidence, including
a palm print, fiber evidence, and DNA evidence, as well as testimony that the
defendant had been seen near the victim’s home within an hour of the fatal
attack. As part of his defense, Holmes sought to introduce evidence that the
state’s forensic evidence had been contaminated or tampered with in an
attempt to frame him. He also sought to introduce testimony from several
witnesses who had either seen a third party in the victim’s neighborhood on
the morning of the crime, or had heard the third party acknowledge his own
guilt in the crime.
The trial court excluded the third-party-guilt evidence on the basis of a
South Carolina Supreme Court case, State v. Gregory, 16 S.E.2d 532 (S.C.
1941), which held that third-party-guilt evidence is admissible if it raises a
reasonable inference or presumption as to the defendant’s own innocence, but
not if it merely “casts bare suspicion upon another.” Id. at 324. The South
Carolina Supreme Court affirmed, relying on Gregory, as well as a subsequent
case, State v. Gay, 541 S.E.2d 541 (S.C. 2001). In Gay, the South Carolina
court drastically extended the rule in Gregory by looking not only at whether
the proffered defense evidence raised a reasonable inference or presumption
of innocence, but also at the strength of the prosecution’s case. Because the
state presented “strong” evidence of Gay’s guilt – in particular, strong forensic
evidence – the court concluded that Gay’s proffered evidence did not raise the
necessary reasonable inference of innocence and, thus, excluded the
evidence.
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The U.S. Supreme Court reversed. In doing so, the Court noted several
prior cases in which it had overturned state rules excluding defense evidence
on the basis that they were “‘arbitrary’ rules, i.e., rules that excluded
important defense evidence but that did not serve any legitimate interests.”
Holmes, 547 U.S. at 325. The Court concluded its survey of prior cases by
stating:
[w]hile the Constitution . . . prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose or that are
disproportionate to the ends they are asserted to promote, well-
established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or
potential to mislead the jury.
Id. at 326.
Turning to the South Carolina rule first enunciated in Gay and applied
in the South Carolina Supreme Court to bar Holmes’ evidence, the Court noted
that:
Under [the Gay] rule, the trial judge does not focus on the
probative value or the potential adverse effects of admitting the
defense evidence of third-party guilt. Instead, the critical inquiry
concerns the strength of the prosecution’s case: If the
prosecution’s case is strong enough, the evidence of third-party
guilt is excluded even if that evidence, if viewed independently,
would have great probative value and even if it would not pose an
undue risk of harassment, prejudice, or confusion of the issues.
Id. at 329. The Court went on to hold that
by evaluating the strength of only one party’s evidence, no logical
conclusion can be reached regarding the strength of contrary
evidence offered by the other side to rebut or cast doubt. Because
the rule applied by the [South Carolina] Supreme Court in this
case did not heed this point, the rule is “arbitrary” in the sense
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that it does not rationally serve the end that the Gregory rule and
other similar third-party guilt rules were designed to further.
Id. at 331. As such, the Court concluded the rule “violates a criminal
defendant’s right to have ‘a meaningful opportunity to present a complete
defense.’” Id., citing Crane v. Kentucky, 476 U.S. 683, 690 (1986).
In light of the Court’s holding in Holmes, Barksdale posits that the
proffered evidence of Palmer’s guilt is admissible as evidence of third-party
guilt, even if it would otherwise be excludable under Rule 404(b) and even if
it does not rise to the level of the “signature crime” exception as explained in
Palagonia. Barksdale is entitled to no relief.
In Barksdale’s view, Holmes essentially eviscerates the rules of
evidence as applied to defense evidence. Barksdale’s reading is overbroad.
Rather than giving defendants carte blanche to present any third-party-guilt
evidence “unless it is remote or speculative,” Brief of Appellant, at 41, Holmes
merely invalidates those state evidentiary rules that exclude pivotal defense
evidence without serving any legitimate state interest or that are
disproportionate to the ends they are designed to promote.
Here, the “signature crime” exception to Rule 404(b) serves the
legitimate end of excluding evidence of a witness’s prior bad acts unless there
is a close factual nexus sufficient to demonstrate the relevance of the prior
bad acts to the crime in question. In the absence of such a rule, a defendant
could present tenuous, speculative, or remote evidence of another’s guilt, not
necessarily probative of his own innocence, and possibly tending to confuse
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the issues and mislead the jury. Accordingly, the “signature crime” exception
does not violate the rule set forth in Holmes and may be applied to bar
Barksdale’s evidence. We now consider whether the evidence was properly
excluded.
Here, when compared to the instant victim’s murder, Palmer’s crimes
were not “so distinctive or unusual as to be like a signature.” Palagonia,
supra. Barksdale’s defense theory was that Palmer – who admitted to being
at the victim’s house on the day she disappeared – murdered the victim during
a “robbery gone bad.” To that end, Barksdale sought to introduce evidence
of Palmer’s prior convictions for robberies and an aggravated assault that
occurred near the time of the victim’s disappearance and murder. Specifically,
during one of Palmer’s robberies, he chased the female victim into a bathroom
at knifepoint and she ended up with scratches on her face. Palmer was
convicted of aggravated assault for this incident. Because the female victim
in this matter received traumatic injuries to the face, Barksdale asserts that
there were sufficient “levels of similarity” with the prior crimes that the
evidence should be admitted as proof of third-party guilt. We disagree.
First, there was no evidence presented to show that the victim in the
instant case was robbed, or that robbery was a motive for the crime. Second,
although the victim in this matter had injuries to her face, they were
significantly more serious and extensive than scratches. The victim suffered
30 rib fractures, facial fractures, all caused by blunt force trauma, and a
fracture to the hyoid bone, caused by strangulation. Third, Palmer did not
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murder any of his robbery victims, while the victim in this case was strangled
to death. In sum, the only similarity between Palmer’s prior offenses and the
instant crime was that the victims were all female. This fact, alone, does not
establish similarities that are “so distinctive or unusual as to be like a signature
or the handiwork of the same individual.” See id. Accordingly, the trial court
did not err or abuse its discretion in excluding evidence of Palmer’s conviction
for aggravated assault and limiting the use of his robbery convictions to
impeachment for crimen falsi.
Next, Barksdale claims that the trial court erred in overruling his
objection to testimony by Detective Jason Paul explaining the timing of the
filing of the homicide charges in this matter. In particular, Barksdale objects
to testimony by Detective Paul that he and the prosecutor decided to file
charges when they did because Barksdale had been making threats to
witnesses Tracy Lynn Mitchell and Kathy DeHaven and Detective Paul “thought
it was unsafe to have him out there with his threats.”1 N.T. Trial, 12/8/16, at
____________________________________________
1 Detective Paul had not arrested Barksdale earlier because he had been
cooperating with the police and continued to speak to them. Detective Paul
testified as follows:
[DET. PAUL]: Every time we’d ask him to come down, he would.
He was holdin’ press conferences and talkin', He was leavin' voice
mails for us. So if he wanted to keep talkin', we'd keep listenin'.
Q: And that — is that a very valuable investigative tool, the words
of the prime suspect?
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879. Barksdale argues that the testimony amounts to vouching for the
veracity of Mitchell and DeHaven and references Detective Paul and the
prosecutor’s personal belief that Barksdale was an actual threat to Mitchell
and DeHaven. Barksdale argues that the testimony was irrelevant and
inadmissible under Pa.R.E. 401 and 402. Barksdale is entitled to no relief.
As the trial court conceded in its Rule 1925(a) opinion, Detective Paul’s
testimony as to why he arrested Barksdale when he did was irrelevant.
However, any error on the part of the trial court in not sustaining Barksdale’s
objection was harmless. Both Mitchell and DeHaven testified, without
objection, to the threats made to them by Barksdale. Such evidence of a
defendant’s threats against a Commonwealth witness is admissible to
demonstrate consciousness of guilt. Commonwealth v. Markle, 361 A.2d
826, 831 (Pa. Super. 1976); see also Commonwealth v. Jones, 658 A.2d
746, 748 (Pa. 1995). Moreover, we do not agree that Detective Paul’s brief
reference to his concern for the safety of Mitchell and DeHaven amounted to
“vouching” for their general veracity as witnesses. It is a police officer’s job
to take allegations of witness intimidation seriously and, as the trial court
____________________________________________
A: Yes. I mean, a lot of times we can’t talk to our prime suspects.
They don't want to talk to us. He was calling and wantin’ to talk
to us any time. So if he wanted to talk, I would listen.
Q: The more he talks, the better for you?
A: Yes.
N.T. Trial, 12/8/16, at 878.
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reasoned, “it is the logical conclusion that a jury would make had the
testimony been [simply] that he was arrested after the neighbors came to
police.” Trial Court Opinion, 5/5/17, at 9. Accordingly, this claim merits no
relief.
We address Barksdale’s next two claims together, as they both involve
his assertion that the trial court erred in denying his motion in limine to bar
the introduction of evidence regarding his sexual relationship with the victim.
The Commonwealth sought to introduce the evidence as proof of motive to kill
the victim; specifically, that Barksdale killed the victim because the Agency
commenced an investigation based on allegations that Barksdale was coercing
the victim into a sexual relationship. Barksdale asserts that the evidence was
hearsay, irrelevant, and unfairly prejudicial, arguing that
the subject matter of sexual relations between Mr. Barksdale and
[the victim] – even consensual relations – engenders an emotional
reaction based on hatred and contempt. There was a 34-year
difference in their ages. Even at the earliest stage of their
relationship, [the victim] was already a senior citizen (71[]years[-
]of[-]age) and Mr. Barksdale was still relatively youthful
(37[]years[-]of[-]age). Although consensual relations between
such persons is lawful, it is so outside the norm of common
experience that it approaches the level of “taboo.”
Brief of Appellant, at 50. Barksdale argues that unfair prejudice could have
been minimized by permitting the Commonwealth to prevent evidence that
the Agency was investigating “abuse” generally, but omit reference to the
sexual nature of the allegations.
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Under Pennsylvania Rules of Evidence 801 and 802, an out-of-court
statement is inadmissible as hearsay if it is being offered to prove the truth of
the matter asserted in the statement. Pa.R.E. 801, 802. However, an out-
of-court statement is not hearsay when it has a purpose other than to convince
the fact finder of the truth of the statement. Commonwealth v. Busanet,
54 A.3d 35, 68 (Pa. 2012). A statement is not hearsay when it is offered to
show the effect on the listener. Id. Moreover, an out-of court statement by
a murder victim may be admitted to establish the motive of the defendant
when those statements are not offered to prove the truth of the matter
asserted. Commonwealth v. Stallworth, 781 A.2d 110, 118 (Pa. 2001).
Similarly, evidence of a defendant’s prior bad acts may be admissible to
demonstrate motive under Rule 404(b)(2).2 The admission of such evidence
is within the sound discretion of the trial court, and will be reversed only upon
a showing of an abuse of that discretion. Id., citing Commonwealth v.
Miles, 681 A.2d 1295, 1304 (Pa. 1996). Evidence concerning the relationship
between the defendant and the victim may be relevant and admissible to
prove ill will, malice, or motive. Id., citing Commonwealth v. Myers, 609
A.2d 162, 164 (Pa. 1992).
____________________________________________
2 Under Rule 404(a), evidence of a crime, wrong, or other act is inadmissible
to prove a person’s character or tendency to behave in accordance therewith.
However, under Rule 404(b), such evidence is admissible to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident, where the probative value of the evidence
outweighs its potential for unfair prejudice.
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Here, the trial court properly admitted the evidence of Barksdale’s
sexual relationship with the victim as relevant and admissible to demonstrate
his motive to kill her. Furthermore, the victim’s hearsay statement to
Crummel and Black that she was sleeping with Barksdale against her will was
admissible to show its effect on the listeners. Specifically, the victim’s
statement provided the impetus for Crummel and Black to contact the Agency,
which, in turn, provided motive for Barksdale to silence the victim by killing
her. The court provided a limiting instruction to the jury, directing it not to
consider the evidence of the sexual relationship for its truth, but, rather, only
as evidence of why the Agency began an investigation. See N.T. Trial,
12/5/16, at 149. Accordingly, we can discern no abuse of discretion on the
part of the trial court in admitting the evidence in question for the above
limited purposes.
Finally, Barksdale claims that the trial court abused its discretion by
failing to grant him a new trial on the basis that the verdict was against the
weight of the evidence, where the totality of the evidence on the core issues
of the trial was unreliable, contradictory, and incredible. Barksdale argues
that testimony from two jailhouse informants was “questionable,” the
purported motives suggested by the Commonwealth were actually negated by
its own evidence at trial, and the Commonwealth presented “inconsistent and
irreconcilable evidence regarding the nature of the actions that caused the
[victim’s] injuries and ultimately her death.” Brief of Appellant, at 60.
Specifically, Barksdale argues that the Commonwealth proceeded under the
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theory that Barksdale pushed the victim down the stairs and then strangled
her, which was corroborated by the jailhouse informants, Ian Munz and Corey
Williams. However, he alleges that the Commonwealth’s forensic
anthropologist, Dennis Dirkmaat, Ph.D., testified that the victim’s injuries
were not consistent with falling down stairs. Barksdale further asserts that
the Commonwealth’s suggested motive regarding the abuse report to the
Agency is negated because witnesses confirmed that his sexual relationship
with the victim dated as far back as 2002, and he admitted the nature of his
relationship with the victim to the Agency. Finally, Barksdale asserts that the
Commonwealth failed to preserve and test evidence at the crime scene, and
that testimony regarding the victim’s date of death was inconsistent. He is
entitled to no relief.
We evaluate challenges to the weight of the evidence under settled
precepts:
[W]e may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, [] 832 A.2d 403, 408 ([Pa.]
2003) (citations omitted). Hence, a trial court’s denial of a weight
claim “is the least assailable of its rulings.” Commonwealth v.
Diggs, [] 949 A.2d 873, 880 ([Pa.] 2008). Conflicts in the
evidence and contradictions in the testimony of any witnesses are
for the fact finder to resolve. Commonwealth v. Tharp, [] 830
A.2d 519, 528 ([Pa.] 2003). As our Supreme Court has further
explained,
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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. A trial judge
must do more than reassess the credibility of the witnesses
and allege that he would not have assented to the verdict if
he were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as
the thirteenth juror. Rather, the role of the trial judge is to
determine that “notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.”
Commonwealth v. Widmer, [] 744 A.2d 745, 752 ([Pa.] 2000)
(citations omitted).
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).
Here, the trial court denied Barksdale’s motion for a new trial and
concluded that the verdict did not shock its sense of justice. Our review of
the record confirms the court’s finding. The jury was able to view the
testimony of the various witnesses, determine the weight to be given to each
witness’s testimony, and to believe all, part or none of the evidence as it
deemed appropriate. Viewed in its entirety, the evidence of record is neither
so unreliable nor contradictory as to undermine the verdict. While Dr.
Dirkmaat testified that he “might” have expected to see certain injuries that
were not present had the victim fallen down the stairs, see N.T. Trial, 12/7/16,
at 638, he also noted that he did not know the exact context of where and
how the victim may have fallen down the stairs. 3 Both the Commonwealth’s
____________________________________________
3 The following exchange took place at the end of Dr. Dirkmaat’s direct
examination:
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____________________________________________
[ATTORNEY FALBO]: And if I could just ask one more
question, I’ll pose a hypothetical for you.
Say you have an 83- year-old female, falls down the stairs
or slips down the stairs, and then someone were to kneel on her
chest and strangle her. Would the injuries of blunt-force trauma
to the ribs be similar? And the broken hyoid bone, could that cause
that?
ATTORNEY GROSS: Judge, I’m sorry. I'd object to that. He
has already testified that he doesn’t address cause or manner of
death, which is the answer the DA is seeking to elicit.
THE COURT: I think she’s asking in a hypothetical manner
whether or not that would have been caused the blunt-force
trauma that this victim suffered. I will allow him to answer.
THE WITNESS: In terms of the injuries to the chest and the
hyoid, again, the injuries to the chest indicate sort of a broad
impact that’s sort of higher up on the chest and more to the left.
So even in our report, we talk about that, that that could be
somebody with weight kneeling on this individual who’s
osteoporotic, 150 pounds, something that — I don't know the
number of forces, but that seems reasonable.
The hyoid is most likely that it’s not a car crash or anything
like that. So manual strangulation is consistent — this damage is
consistent with that.
And then the facial fractures would be — we don’t have
enough to say anything about an instrument or anything like that,
but there’s significant forces there. Whether it’s from a fist or an
instrument or a foot or something like that, we can’t really tell.
The other aspect of your question, about falling down the
steps, I would expect if it’s — I don’t know the context. But if it’s
a long stairway and an osteoporotic, elderly individual, you might
see other — other fractures, maybe to ribs or, you know, in the
attempts to set yourself. People falling get a lot of what they call
Colles fractures and things like that, and we didn’t see any of that.
And there were no random rib fractures that might not — that
could be explained by that.
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J-S84018-17
experts agreed that strangulation was the likely cause of death. This
conclusion is consistent with the testimony of jailhouse informants Munz and
Williams, who also corroborated the Commonwealth’s suggested motive, as
well as the manner in which Barksdale attempted to hide the victim’s body.
Finally, Barksdale’s admission to the Agency that he engaged in a sexual
relationship with the victim does not negate the Commonwealth’s suggested
motive. Regardless of his admission, the death of the victim eliminated any
possibility that she might formally accuse him of unwanted sexual contact.
Her death left Barksdale’s self-serving statements immune to refutation by
the victim, thus extinguishing his potential criminal exposure.
In sum, any conflicts in the evidence and contradictions in the testimony
of any witnesses were for the fact finder to resolve, Tharp, supra, and we
can discern no abuse of discretion on the part of the trial court in concluding
that the verdict does not shock one’s sense of justice. Champney, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/06/2018
____________________________________________
ATTORNEY FALBO: Thank you.
N.T. Trial, 12/7/16, at 637-38.
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