Com. v. Arlott, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH MICHAEL ARLOTT
Appellant No. 1999 WDA 2015
Appeal from the Judgment of Sentence October 19, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001126-2012
CP-04-CR-0001127-2012
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MARCH 14, 2017
Joseph Michael Arlott appeals from the judgment of sentence imposed
on October 19, 2015, in the Court of Common Pleas of Beaver County. At
Docket No. 1126-2012, the jury found Arlott guilty of murder of the second
degree.1 At Docket No. 1127-2012, the jury convicted Arlott of aggravated
assault, burglary, robbery, criminal conspiracy, and related offenses.2 Arlott
was sentenced to life in prison without the possibility of parole and a
consecutive aggregate term 19 to 50 years’ imprisonment on three
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(b).
2
18 Pa.C.S. §§ 2701(a)(1), 3502(a)(1), 3701(a)(1)(i) and 903,
respectively.
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conspiracy convictions, namely, conspiracy to commit robbery, conspiracy to
commit aggravated assault, and conspiracy to commit burglary. With regard
to his conviction for second-degree murder, Arlott challenges the sufficiency
and weight of the evidence. Arlott also claims two of the conspiracy
sentences should be vacated as each conspiracy count represented only one
object and agreement. Based upon the following, we affirm the judgment of
sentence at Docket No. 1126-2012, and vacate the judgment of sentence at
Docket No. 1127-2012 and remand for resentencing.
The trial court has summarized the facts and procedural history of this
case, as follows:
On August 26, 2015, the impaneled jury returned a unanimous
verdict finding [Arlott] guilty of seventeen (17) counts on two
different cases. At Case No. 1126 of 2012, the jury found
[Arlott] guilty of Murder of the Second Degree (Felony Murder).
At Case No. 1127 of 2012, the jury found [Arlott] guilty of (1)
Aggravated Assault, (2) Burglary, (3) Robbery, (4) Criminal
Conspiracy to Commit Aggravated Assault, (5) Criminal
Conspiracy to Commit Burglary, (6) Criminal Conspiracy to
Commit Robbery, (7) Aggravated Assault with a Deadly Weapon,
(8) Criminal Conspiracy to Commit Aggravated Assault with a
Deadly Weapon, (9) Theft by Unlawful Taking, (10) Criminal
Conspiracy to Commit Theft by Unlawful Taking, (11) Unlawful
Restraint, (12) Criminal Conspiracy to Commit Unlawful
Restraint, (13) Simple Assault, (14) False Imprisonment, (15)
Criminal Conspiracy to Commit Simple Assault, and (16) Criminal
Conspiracy to Commit False Imprisonment. On the first case,
[Arlott] was sentenced on October 19, 2015 to life in prison
without the possibility of parole. On the second case, [Arlott]
received three (3) separate sentences for Criminal Conspiracy to
Commit Robbery, Criminal Conspiracy to Commit Aggravated
Assault and Criminal Conspiracy to Commit Burglary, each to be
served consecutively. The aggregate sentence for the three (3)
convictions required [Arlott] to undergo imprisonment for not
less than nineteen (19) years, nor more than fifty (50) years,
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each to be served consecutively to the life imprisonment
sentence at Case No. 1126 of 2012.1
_____________________________________
1
Specifically, for the conviction of Criminal Conspiracy to
Commit Robbery, [Arlott] was sentenced to undergo
imprisonment in a State Penal or Correctional Institution
or Facility for not less than 102 months nor more than
240 months, for the conviction of Criminal Conspiracy to
Commit Aggravated assault, [Arlott] was sentenced to
undergo imprisonment for not less than 84 months nor
more than 240 months; and for the conviction of Criminal
Conspiracy to Commit Burglary, [Arlott] was sentenced to
undergo imprisonment for not less than 42 months nor
more than 120 months; each sentence was required to be
served consecutively to each other.
_______________________________________
Following the sentencing, [Arlott] filed a Post-Sentence Motion
on October 26, 2015, requesting Judgment of Acquittal to be
entered on the Second Degree Murder charge and requesting the
sentences for the Conspiracy charges to be vacated. This Court
denied that Motion on October 27, 2015. [Arlott] then filed a
Motion to Allow Filing of Notice of Appeal Nunc Pro Tunc, which
was granted on December 14, 2015. [Arlott] then filed this direct
appeal to the Superior Court of Pennsylvania.
****
At trial, the jury heard testimony from multiple medical
professionals regarding the cause of the victim’s (Daniel J.
Santia) death. After being tortured and beaten by [Arlott] and
Co-Defendant [Beau W. Chermer] during a home invasion, the
eighty-one (81) year old victim suffered a traumatic brain injury.
The victim was found the day after the attack and was rushed to
the hospital. Testimony provided that the victim suffered from a
pre-existing heart condition, requiring him to take Coumadin to
prevent heart attacks and blood clots. Due to the severe brain
injury, the treating physicians suspended the victim’s normal
medication and briefly took him off of the Coumadin to help treat
the brain trauma. Testimony provided by Doctor Christina Toevs,
the Medical Director of the Trauma Intensive Care Unit of
Allegheny General Hospital, explained that it was customary to
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stop prescribing Coumadin for thirty (30) days following severe
brain injuries in patients. The victim ultimately died twenty-one
(21) days after the brutal attack.
The Forensic Pathologist on the case, Doctor James Smith,
determined the cause of death to be from acute myocardial
infarction, as a direct result of the trauma that had occurred to
the victim’s brain twenty-one (21) days previously. While all
parties agreed that the victim’s pre-existing condition played a
role in his death, experts disagreed that the brain trauma was
the underlying cause of the victim’s death. Commonwealth
witnesses and experts all provided that the brain injury is what
placed the victim in the hospital and what eventually caused his
death. Doctor Smith explicitly stated that the brain trauma was
the direct cause of the victim’s death. Defense Expert, Doctor
Cyril Wecht, on the other hand, testified that it was his opinion
that the victim’s death was not the result of the brain trauma,
and that he believed the evidence showed that the brain injury
had mostly healed and played no role in the victim's death.
The jury in this case, acting as the fact-finder, deliberated for
several hours before coming to a unanimous verdict.
Trial Court Opinion, 1/28/2016, at 1-2, 3-5.
Arlott challenges the sufficiency and weight of the evidence to sustain
his conviction for second degree murder, contending that the
Commonwealth failed to present sufficient evidence as to causation of death.
Specifically, he argues the victim had survived the injuries sustained in the
home invasion attack and “had been stabilized and released from trauma
treatment at the time of his death. [The victim] had a long history of
coronary disease and died of a heart attack. The Commonwealth’s evidence
fails to establish the causal connection required to sustain the conviction of
murder.” Arlott’s Brief at 12.
We first address Arlott’s sufficiency challenge.
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The standard of review for claims of insufficient evidence is well-
settled. With respect to such claims, we consider the evidence in
the light most favorable to the Commonwealth as verdict winner.
In that light, we decide if the evidence and all reasonable
inferences from that evidence are sufficient to establish the
elements of the offense beyond a reasonable doubt.
Commonwealth v. Thur, 906 A.2d 555, 568-69 (Pa. Super. 2006) (citation
omitted).
The Crimes Code defines murder of the second degree as follows:
(b) Murder of the second degree.--A criminal homicide
constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.
18 Pa.C.S. § 2502(b).
Arlott’s claim of insufficiency is a challenge to causation.
To establish criminal causation, the Commonwealth must prove
that the defendant's conduct was so directly and substantially
linked to the actual result as to give rise to the imposition of
criminal liability. Commonwealth v. Long, 425 Pa. Super. 170,
624 A.2d 200, 203-204 (1993), appeal denied, 535 Pa. 170, 633
A.2d 150 (1993) (citing Commonwealth v. Rementer, 410 Pa.
Super. 9, 598 A.2d 1300, 1304 (1991), appeal denied, 533 Pa.
599, 617 A.2d 1273 (1992)).
In Rementer, we set forth a two-part test for determining
criminal causation. First, the defendant's conduct must be an
antecedent, but for which the result in question would not have
occurred. Rementer, 598 A.2d 1305; 18 Pa.C.S.A. § 303(a)(1).
A victim's death cannot be entirely attributable to other factors;
rather, there must exist a “causal connection between the
conduct and the result of conduct; and causal connection
requires something more than mere coincidence as to time and
place.” Rementer, 598 A.2d at 1305, n. 3 (quoting LaFave and
Scott, Substantive Criminal Law, Vol. 1, Ch. 3., at 391–392
(1986)). Second, the results of the defendant's actions cannot
be so extraordinarily remote or attenuated that it would be
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unfair to hold the defendant criminally responsible. Rementer,
598 A.2d at 1305.
As to the first part of the test, the defendant's conduct need not
be the only cause of the victim's death in order to establish a
causal connection. Rementer, 598 A.2d at 1305. “Criminal
responsibility may be properly assessed against an individual
whose conduct was a direct and substantial factor in producing
the death even though other factors combined with that conduct
to achieve the result.” Long, 624 A.2d at 203 (citing
Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974),
appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304(1974)). The second part of the test is satisfied when the
victim's death is the natural or foreseeable consequence of the
defendant's actions. Id. (citing Rementer and Commonwealth
v. Pacquette, 451 Pa. 250, 301 A.2d 837 (1973)). “Where the
fatal result was an unnatural or obscure consequence of the
defendant's actions, justice would prevent us from allowing the
result to have an impact upon a finding of the defendant's guilt.”
Id. at 204, 624 A.2d 200 (citing Rementer, 598 A.2d at 1306-
1307).
Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008).
There is no dispute the victim suffered from medical problems prior to
the assault, including arthrosclerosis, here, the near total occlusion of three
coronary arteries. While the victim’s medical problems were predominantly
chronic, the autopsy discovered a fresh blood clot that had completely
occluded one of the arteries, causing a myocardial infarction,3 which proved
to be the mechanism of death.
____________________________________________
3
Myocardial infarction is the technical name for a heart attack. The
Cleveland Clinic, Center for Continuing Education, states: “Myocardial
infarction occurs when myocardial ischemia, a diminished blood supply to
the heart, exceeds a critical threshold and overwhelms myocardial cellular
(Footnote Continued Next Page)
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It is also beyond dispute that the victim suffered a severe beating in
the course of the home invasion by Arlott and co-defendant Chermer. Of
primary import to this appeal, the victim suffered a subarachnoid
hemorrhage – bleeding on the brain. In order to treat this potentially fatal
injury, the doctors had to stop the Coumadin regimen the victim had been
on to treat his severe heart condition. Coumadin is a blood thinner that
helps prevent the formation of blood clots. Essentially, the doctors had to
stop the bleeding on the brain and could only do so by allowing the blood to
clot naturally at the site of the brain injury. However, this course of action
increased the risk of the formation of other blood clots. As noted above,
another blood clot did form, occluded an artery, and killed the victim. The
central question of the trial was whether the formation of the fatal blood clot
was linked to the beating or was the formation of the blood clot 21 days
between the assault and the victim’s demise too attenuated. The resolution
of this question rested upon the testimonial evidence of Dr. James Smith,
the forensic pathologist who conducted the victim’s autopsy, and Dr. Cyril
Wecht, the forensic pathologist who reviewed the matter on behalf of the
defendants. Dr. Smith testified the assault and death were linked, while Dr.
Wecht opined the victim had essentially recovered from the beating,
rendering the assault and myocardial infarction unrelated.
_______________________
(Footnote Continued)
repair mechanisms designed to maintain normal operating function and
homeostasis.” See www.clevelandclinicmeded.com
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Our review of the certified record leads to the conclusion that Dr.
Smith’s testimony provided ample basis to support Arlott’s second-degree
murder conviction. Dr. Smith’s direct testimony spans 53 pages of the notes
of testimony. See N.T. Trial, 8/21/2015, at 127-180. Dr. Smith summed
up his opinion in the following manner:
A: Okay. That [the victim] “died as the result of an acute
myocardial infarct, secondary to a recent thrombosis of the
coronary artery vein graft. The infarct was imposed in a heart
already severely damaged from coronary artery disease and in a
state of chronic congestive failure. The circumstances relating to
his death were directly related to a severe beating he received
some 20 days prior to his death.”
The manner of death is homicide.
Q: Now you’ve talked about both of those things that we’ve been
talking about throughout your testimony –
A: Um-hum.
Q: - the heart condition and the severe beating that he took.
You said they are directly connected. Why do you say there in
your opinion that they are directly connected?
A: The, well, they’re, a lot of the features we’ve already, we
have already talked about and discussed there are the business,
most obvious being the business about the coagulation and the
use of the anticoagulant there. The anticoagulant therapy
having to be discontinued and this leading to the thrombosis in
the vein graft followed by an acute myocardial infarct and his
death, okay.
There, of course, as we’ve mentioned or as we’ve touched upon
in the other testimony there’s the fact that his stasis, I mean his
being unable to move about and so forth also contributed to this.
His congestive heart failure also contributed to this.
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Again I don’t like to prolong it, but there was, the incident where
he had to be intubated was at least in part related to a condition
from his being placed in a, the position that he was for over 12
hours where he was bound with his hands tied behind his back.
His legs were bound. He was, he was in one position and
couldn’t get out of it for many, many hours.
This leads to, especially with heart failure, leads to stasis, that
means fluids going to the lower part of the body. It causes, and
this is a direct cause of, a direct result of this is muscle necrosis,
and one of the, one of, the primary protein in muscles, protein
called myoglobulin, it’s very damaging to the kidneys. That was
secreted. His kidneys were damaged.
The kidney, because the kidneys were damaged, why he retains
fluid, and because he retains fluid, why he goes into severe
congestive heart failure and has to be intubated.
Probably that episode also helped to get, give him the
pneumonia that he got on May 7th and all of those things sort of
tie together.
He was a man who had been living with this, these coronary
artery bypasses for 34 years. He had been doing well, and now
with the intervention of the trauma that he suffered why this is,
this has, I feel, is part of, all a part and parcel of a cause, a
cause of his death.
Q: And do you see any break in that chain from the time that he
had the, was the victim of the assault up until the time of his
death?
A: No, I don’t.
Q: And also from the time that you review those reports on April
30th until the time of his death do you see any indication in those
records or in your exams that he ever totally recovered or fully
recovered –
A: Fully recovered?
Q: - from those injuries?
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A: No, definitely not. I don’t feel he had ever fully recovered,
no.
N.T. Trial, 8/21/2015, at 176-180.
In summary, the testimony of Dr. Smith drew an unbroken chain of
events from the beating to death, and the jury was free to believe his
testimony as to causation. As such, Arlott’s argument regarding
insufficiency of the evidence fails and he is not entitled to relief on this issue.
Nor do we find merit in the argument of Arlott that the second-degree
murder conviction was against the weight of the evidence.
The law pertaining to weight of the evidence claims is well-settled.
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. Commonwealth v. Widmer, 560 Pa. 308,
319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 A.2d at 319-20,
744 A.2d at 752. 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.’” Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
“a new trial should be awarded 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.” Brown, 538 Pa. at 435, 648
A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
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whether the verdict is against the weight of the evidence.
Brown, 648 A.2d at 1189. Because the trial judge has
had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by
the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. Commonwealth v. Farquharson, 467 Pa. 50,
354 A.2d 545 (Pa. 1976). One of the least assailable
reasons for granting or denying a new trial is the lower
court's conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
Here, the trial court opined: “The jury had the opportunity during
deliberations to weigh the credibility of all the witnesses and evidence
presented at trial and determined which evidence it found most compelling.”
Trial Court Opinion, 1/28/2016, at 5. The jury listened to the experts for
both the Commonwealth and defense and chose to believe Dr. Smith. The
jury, as factfinder, was entitled to believe all, some of none of Dr. Smith’s
testimony. See Commonwealth v. Sloan, 67 A.3d 808, 814 (Pa. Super.
2013). The trial court concluded that “[t]he verdict here definitely does not
shock one’s sense of justice.” Id. Moreover, Arlott presents no argument to
demonstrate that the trial court abused its discretion in rejecting his weight
claim, and we discern none on this record. Therefore, Arlott’s weight claim
fails.
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Lastly, Arlott contends the consecutive sentences for conspiracy to
commit aggravated assault and conspiracy to commit burglary should be
vacated as each conspiracy count represented only one object and
agreement. The trial court agreed with Arlott’s position, and the
Commonwealth is in agreement with the trial court.
Specifically, Arlott received an aggregate sentence of 19 – 50 years’
incarceration for conspiracy to commit robbery (8½ to 20 years), conspiracy
to commit aggravated assault (7 to 20 years) and conspiracy to commit
burglary (3½ to 10 years). However, 18 Pa.C.S.§ 903(c) states:
If a person conspired to commit a number of crimes, he is guilty
of one conspiracy so long as such multiple crimes are the object
of the same agreement or continuous conspiratorial relationship.
18 Pa.C.S. § 903(c).
The trial court reasoned as follows:
To determine if one or multiple conspiracies have been
established, the Court should apply a totality of the
circumstances test and consider the following factors:
The number of overt acts in common; the overlap of
personnel; the time period during which the alleged acts
took place; the similarity in methods of operation; the
locations in which the alleged acts took place; the extent
to which the purported conspiracies share a common
objective; and, the degree to which interdependence is
needed for the overall operation to succeed.
Com[monwealth]. v. Davis, 704 A.2d 650, 654 (Pa. Super.
1997). This test has been consistently followed by the Superior
Court and adopted as the proper test by the Supreme Court of
Pennsylvania. See e.g. Com[monwealth] v. Andrews, 768
A.2d 309, 334 (Pa. 2001); see also Com[monwealth] v.
Barnes, 871 A.2d 812, 820 (Pa. Super. 2005).
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Noting the applicable test to apply, this Court finds it would be
proper to resentence [Arlott] at Case No. 1127 of 2012, and
sentence [Arlott] according to one (1) conspiracy count.
Applying the test to the facts at hand, this Court holds the
evidence established one conspiracy as the crimes committed
were all the object of a single “continuous conspiratorial
relationship.” [Arlott’s] sentence should reflect as much.
Trial Court Opinion, 1/28/2016, at 6.
Our review of the certified record confirms the trial court’s analysis.
Accordingly, Arlott is properly subject to a single sentence for these
conspiracy charges. Therefore, we vacate the sentence at Docket No, 1127-
2012 and we remand for resentencing.
Judgment of sentence at Docket No. 1126-2012, regarding murder in
the second degree is affirmed. Judgment of sentence at Docket No. 1127-
2012 is vacated as to Arlott’s aggregate sentence on the charges of
conspiracy to commit robbery, conspiracy to commit aggravated assault, and
conspiracy to commit burglary, and remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2017
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