Com. v. Cedeno, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 CEDENO,
Appellant No. 1770 MDA 2014
Appeal from the Judgment of Sentence May 15, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002409-2012
BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2015
Appellant, Joseph Cedeno, appeals from the judgment of sentence of
life imprisonment and a consecutive term of 20-40 years’ incarceration,
following his conviction for first and third degree murder. After careful
review, we conclude that Appellant’s multiple claims do not entitle him to
relief. However, we vacate Appellant’s sentence for third degree murder,
because we hold the crimes of first and third degree murder always merge
for sentencing purposes when those offenses involve an individual
defendant’s killing of the same person.
On September 23, 2012, after drinking together all day, Appellant and
the victim arrived at the home of Louise Lambides, Appellant’s mother, on
Hospital Street in Carbondale, Pennsylvania. The victim was a family friend
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who had also been friends with Appellant’s then-deceased sibling, James
Spinelli.
One of Appellant’s surviving brothers, Jonathon Sandoval, arrived at
the home after Appellant and the victim were already there. He overheard
Appellant repeatedly asking Lambides, “should I do it?” Initially, Sandoval
did not know what Appellant was talking about until Appellant asked to have
a word with him in private. Sandoval took Appellant into his room and
asked him what he wanted. Appellant then asked Sandoval if Appellant
should kill the victim. When Sandoval asked Appellant why he would want
to do such a thing, Appellant told him that that he believed that the victim
might have had something to do with James Spinelli’s death. Appellant also
told Sandoval that he planned to kill the victim by “carv[ing] him up real
nice and slit[ting] his throat from ear to ear.” N.T., 5/14/14, at 106.
Sandoval begged Appellant not to do anything, told Appellant that he had no
proof that the victim was involved in James Spinelli’s death, and made
Appellant promise him that he would not harm the victim.
Eventually, Appellant and the victim left, purportedly so that Appellant
could escort the victim to his home. Appellant later returned alone and told
his mother that he had killed the victim. He took a knife out of his pocket,
washed it in the sink, and put it into a drawer in the kitchen. Appellant also
told Michael Spinelli, another of his brothers, that he had just ‘caught a
body,’ i.e., that he had killed someone. Sandoval heard Appellant say that
he had done it for their deceased brother, James Spinelli.
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Police found the victim’s body in a nearby parking lot. The victim died
as a result of numerous stab wounds to his torso. Police recovered the knife
that Appellant placed in the kitchen drawer, and subsequently discovered
that it still had traces of the victim’s DNA on it. Additionally, tears in the
victim’s fleece pull-over were consistent with having been caused by the
knife. Dr. Ross, who performed the victim’s autopsy, testified that the
victim’s wounds were consistent with having been caused by that knife or
something similar.
Jacob Huff, an inmate at the Lackawanna County Jail at the same time
as Appellant following Appellant’s arrest, testified that Appellant admitted to
him that he had stabbed the victim to death. Huff’s testimony regarding
Appellant’s admissions revealed details of the incident that were consistent
with the details provided by the Commonwealth’s other witnesses.
Following a trial held on May 13-15, 2014, the jury found Appellant
guilty of both first and third degree murder. The trial court subsequently
sentenced Appellant to a mandatory term of life imprisonment for first
degree murder and to a consecutive term of 20-40 years’ incarceration for
third degree murder. Appellant filed post-trial motions, which were denied
by the trial court on September 30, 2014. Appellant filed a timely notice of
appeal on October 16, 2014. He filed a court-ordered Pa.R.A.P. 1925(b)
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statement on October 29, 2014. The trial court issued its Rule 1925(a)
opinion on December 2, 2014.1
Appellant now presents the following questions for our review:
A. Whether the Commonwealth presented sufficient evidence
establishing that [] Appellant is guilty beyond a reasonable doubt
of first degree the murder and third degree murder of Dennis
Doherty?
B. Whether the verdict was against the weight of the evidence?
C. Whether the lower court erred in denying [] Appellant’s pre-
trial motion to produce the testimony of Dr. Matthew Berger, a
psychiatric expert whom the lower court appointed in this matter
to conduct an independent psychiatric evaluation of Appellant?
D. Whether the lower court erred in denying [] Appellant’s
request to submit evidence as to his blood alcohol level at the
time of his incriminating statement to his family members?
E. Whether the lower court erred in allowing the Commonwealth
to redirect Dr. Gary Ross?
Appellant’s Brief, at 4.
Sufficiency
Appellant’s first claim concerns the sufficiency of the evidence
supporting his conviction. Specifically, Appellant believes that the evidence
did not support his identity as the victim’s assailant—a common element to
each of his homicide convictions. Our standard of review of sufficiency
claims is well-settled:
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1
The trial court’s Rule 1925(a) opinion incorporated its September 30, 2014
memorandum opinion addressing Appellant’s post-sentence motion claims.
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A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim[,] the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Appellant “submits that the record is completely void of any physical
evidence linking him to the murder of Dennis Doherty.” Appellant’s Brief, at
16. Appellant’s claim is unsustainable in both fact and law. The police
discovered the victim’s DNA on a knife that was seen in Appellant’s
possession immediately after the homicide occurred; therefore, there was, in
fact, physical evidence tying Appellant to the murder of the victim.
In any event, evidence of guilt is not insufficient merely due to the
absence of physical evidence. “It is well established in Pennsylvania that
circumstantial evidence alone may be sufficient to determine commission of
a crime and convict the accused of it.” Commonwealth v. Cox, 333 A.2d
917, 918 (Pa. 1975); see also Commonwealth v. Wentzel, 61 A.2d 309,
312 (Pa. 1948) (“Circumstantial evidence is, in the abstract, nearly, though
perhaps not altogether, as strong as positive evidence; in the concrete, it
may be infinitely stronger.”) (quoting Commonwealth v. Harman, 4 Pa.
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269, 271 (1846)). Thus, even if there were a lack of physical evidence in
this case, Appellant’s sufficiency claim lacks any legal foundation, as the
absence of physical evidence cannot, by itself, render alternative forms of
evidence insufficient to sustain a conviction.
To the extent that Appellant presents inconsistencies between the
testimony of the Commonwealth’s witnesses and other evidence as a
challenge to the sufficiency of the evidence, we note that such arguments go
to the weight, and not the sufficiency, of the evidence. “A mere conflict in
the testimony does not render the evidence insufficient … because it is
within the province of the fact finder to determine the weight to be given to
the testimony and to believe all, part, or none of the evidence.”
Commonwealth v. Mechalski, 707 A.2d 528, 530-31 (Pa. Super. 1998)
(internal citations omitted). For these reasons, we conclude that Appellant’s
sufficiency claim lacks merit.
Weight
Next, Appellant challenges the trial court’s denial of his claim that the
verdict was against the weight of the evidence. Specifically, Appellant
contends that the weight of the evidence “pointed to someone other than
him as Doherty’s attacker.” Appellant’s Brief, at 28.
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
whether the verdict is against the weight of the evidence.
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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. 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.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
The trial court determined that the verdict was not against the weight
of the evidence. To the contrary, the trial court found that “the amount of
evidence implicating [Appellant] is so overwhelming that the failure to
convict would shock any reasonable person’s sense of justice.” Trial Court
Opinion (TCO), 9/30/14, at 7. We agree.
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Appellant asserts that the absence of certain evidence supports his
weight-of-the-evidence claim, an argument that is as illogical as it is
unconvincing, as it purposefully overlooks the ample evidence supporting his
conviction. Appellant foreshadowed his crime by asking his brother if he
should kill the victim just before the killing occurred. Appellant returned to
his mother’s home shortly after departing with the victim, and immediately
admitted to his mother that he killed the victim. DNA samples taken from
the knife that Appellant cleaned and put away in his mother’s kitchen while
admitting to killing the victim revealed the presence of the victim’s DNA.
These facts overwhelming outweigh minor inconsistencies in an eyewitness’s
testimony regarding the murderer’s description.2 Accordingly, the trial court
clearly did not abuse its discretion in denying Appellant’s post-sentence
weight-of-the-evidence motion. Thus, Appellant’s weight-of-the-evidence
claim is meritless.
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2
Georgia Strackbein, who witnessed the killing from her home, told police
that the perpetrator was about 5 feet, 9 inches tall, and wore a dark hoodie.
She did not observe the assailant using a knife. Appellant is 6 feet, 2 inches
tall, and the jacket purportedly worn by him that evening was not hooded.
However, the specific details of Strackbein’s testimony were questionable in
light of her vantage point. Strackbein claimed to have observed the killing
from a distance of 70 feet; however, other evidence revealed that her home
was at least 75 yards away from the scene of the crime. Given that her
observations were made in the evening and from such a considerable
distance, a five inch discrepancy between her description and Appellant’s
height appears trivial, as does her description of the assailant’s clothing. It
also explains her failure to observe a knife, and the evidence clearly
established that the victim was stabbed to death.
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Psychiatric Testimony
Next, Appellant claims that the trial court erred when it denied his pre-
trial motion to produce the testimony of a psychiatrist, Dr. Matthew Berger.3
Appellant contends that Dr. Berger would have testified that Appellant
suffers from schizoaffective disorder with psychotic features, a mental illness
that can cause hallucinations. Appellant contends that he was suffering an
acute manifestation of this disorder, complicated by his intoxication, when
he stated to his family members that he had killed the victim. Appellant
believes that this evidence was relevant to demonstrate that Appellant was
“not in the proper frame of mind to be able to make a knowing, voluntary,
and intelligent confession.” Appellant’s Brief, at 30. He argues that “[t]he
purpose of this testimony would be to provide the jury with evidence as to
Appellant’s state of mind at the time he made the statements so that the
jury could determine what weight, if any, to give to the alleged
confessions[.]” Id.We apply the following standard in our review of claims that a trial
court erred in the admission or exclusion of evidence:
The admission of evidence is solely within the province of the
trial court, and a decision thereto will not be disturbed absent a
showing of an abuse of discretion. “An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment exercised is
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3
Appellant similarly challenges the trial court’s granting of the
Commonwealth’s motion to preclude Dr. Berger’s testimony.
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manifestly unreasonable, or the result of partiality, prejudice,
bias[,] or ill-will discretion ... is abused.”
Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal
citations omitted).
The trial court provides important context for this claim as follows:
The defense team had two psychiatric experts examine
[Appellant] in anticipation of raising various defenses in the
case. After the evaluations were completed, at a January 10,
2014 status conference, [Appellant]’s attorneys indicated that
[Appellant] would not raise the defense of voluntary intoxication.
On January 24, 2014, [Appellant] filed a notice of expert
evidence of mental condition, and attached a report by Dr.
Matthew Berger. He indicated that the testimony was necessary
to show his state of mind when he made the inculpatory
statements to his family members. On May 8, 2014, the
Commonwealth filed a motion in limine to preclude the
testimony of Dr. Berger. Prior to trial, the court granted this
motion and [Appellant] filed a motion for reconsideration. On
the morning of trial, argument was heard on the motion for
reconsideration and the motion was denied.
TCO, at 8-9.
In refusing to permit his testimony at trial, the trial court determined
that Dr. Berger’s report “did not discuss whether [Appellant’s diagnoses of
schizoaffective disorder and substance abuse] prevented [Appellant] from
forming specific intent, or whether it affected the statements he made to his
family members on the night of the murder.” TCO, at 9. Therefore, as Dr.
Berger did not address an insanity or guilty but mentally ill defense, or
otherwise offer facts that could negate the specific intent element of first
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degree murder, the trial court precluded his testimony based on several
authorities,4 which collectively set forth the following standards of law:
A diminished capacity defense does not exculpate the
defendant from criminal liability entirely, but instead negates the
element of specific intent. For a defendant who proves a
diminished capacity defense, first-degree murder is mitigated to
third-degree murder. To establish a diminished capacity
defense, a defendant must prove that his cognitive abilities of
deliberation and premeditation were so compromised, by mental
defect or voluntary intoxication, that he was unable to formulate
the specific intent to kill. The mere fact of intoxication does not
give rise to a diminished capacity defense. Evidence that the
defendant lacked the ability to control his or her actions or acted
impulsively is irrelevant to specific intent to kill, and thus is not
admissible to support a diminished capacity defense.
Furthermore, diagnosis with a personality disorder does not
suffice to establish diminished capacity.
Hutchinson, 25 A.3d at 312 (quotation marks and citations omitted).
Appellant does not challenge the trial court’s rejection of Dr. Berger’s
testimony based upon a theory that it could have provided a diminished
capacity defense to negate the specific intent element of first-degree
murder. Instead, Appellant claims an alternative basis for admitting Dr.
Berger’s testimony: that it was relevant to the question of whether
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4
In its opinion, the trial court cites the following authorities in support of its
ruling: Commonwealth v. King, 57 A.3d 607 (Pa. 2012); Commonwealth
v. Vandivner, 962 A.2d 1170 (Pa. 2009); Commonwealth v. Sheppard,
648 A.2d 563 (Pa. Super. 1994); and Commonwealth v. Faulkner, 595
A.2d 28 (Pa. 1991). The principles of law set forth in those authorities are
aptly summarized by Commonwealth v. Hutchinson, 25 A.3d 277 (Pa.
2011).
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Appellant’s “confession” to family members was knowing, voluntary, and
intelligent, citing Commonwealth v. Jones, 327 A.2d 10 (Pa. 1974).
In Jones, the defendant purportedly participated in a violent assault
and robbery at a subway station in downtown Philadelphia that led to the
death of the victim. Jones was arrested less than two hours later, after he
was caught snatching a purse from a different victim. The next morning,
Jones signed a nine page confession in which he admitted to beating and
robbing the first victim and then throwing him onto the subway tracks.
Jones unsuccessfully contested the voluntariness of his confession in a
suppression motion. However, “[a]t trial, [Jones] renewed his attack on the
confession by offering the testimony of a psychiatrist concerning his … sub-
normal mental capacity and lack of verbal facility, and his consequent
inability to have given the confession which the Commonwealth attributed to
him.” Id. at 12. The trial court refused to allow that evidence. Our
Supreme Court granted Jones a new trial based on that refusal, holding that
“psychiatric testimony concerning a defendant's mental capacity and
condition at the time of giving an alleged confession is admissible on the
issue of his ability to give the confession.” Id. at 13.
Appellant maintains that Jones is binding in this matter. The trial
court rejected this argument, finding significant factual differences upon
which to distinguish this case from Jones. For instance, in Jones, the
defendant’s counsel
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indicated that the purpose of the offer of proof was an attempt
to ‘minimize the impact of the defendant's confession.’ The gist
of the psychiatrist's testimony, he said, would be that, in light of
the defendant's mental capacity, his I.Q. and lack of verbal
facility, defendant would have been incapable of giving a
statement of the length and continuity of the one allegedly given
by the defendant to the police. Counsel indicated that the
psychiatrist would testify that in his opinion the interrogating
detective had interjected questions which were not reflected in
the statement. He further stated that the purpose of the
psychiatrist's testimony would be to show that the defendant
had an I.Q. of 71 and was a mild mental defective, and that
‘these points would be important to the jury's evaluation of the
defendant's statement.’
Id. at 12.
Here, however, Appellant’s statement was neither made to police, nor
did it occur in a potentially coercive setting. Another crucial difference is
that Appellant’s inculpatory statements to family members were relatively
simple and uncomplicated. As the trial court recognized:
Here [Appellant] made admissions to his mother and two of his
brothers that he was going to murder the victim and that he had
murdered the victim. Unlike the nine-page written confessions
in Jones, these statements were more in the nature of excited
utterances. [Appellant] does not assert that he was incapable of
making the utterances, but rather than the jury should have
heard psychiatric testimony as to his “state of mind” when he
made them. However, Dr. Berger’s report does not discuss the
effect that [Appellant]’s drug and alcohol use or schizoaffective
disorder had on his ability to make statements about what he
had done. Thus, Jones does not apply here, and Dr. Berger’s
psychiatric testimony was properly excluded.
TCO, at 11.
We agree with the trial court’s analysis. Additionally, Appellant has
not offered, and our own research has not uncovered, any case law that
explicitly or implicitly extends Jones’ holding beyond the factual context of a
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formal confession where the confessor’s capacity to author an extensive
written confession is plausibly at issue. Here, Appellant’s inculpatory
statements were spontaneous, self-originating, unadorned, and not made to
police in an inherently coercive setting. Accordingly, we conclude that trial
court did not abuse its discretion when it refused to admit Dr. Berger’s
testimony for the purpose of providing state-of-mind context to Appellant’s
inculpatory statements.
Blood-Alcohol Content
Next, Appellant claims the trial court erred when it denied his request
to present evidence of his blood-alcohol level at the time he made the
incriminating statements to his family members. Appellant admits that he
did not seek to admit this evidence in order to negate specific intent as part
of a voluntary intoxication defense. Instead, as with the precluded
testimony of Dr. Berger, Appellant intended to offer evidence of his
intoxication in order to demonstrate his state of mind when he made the at-
issue inculpatory statements.
The trial court determined that “[b]ecause [Appellant] decided not to
raise a voluntary intoxication defense, the court precluded expert testimony
concerning his blood alcohol level.” TCO, at 12. Additionally, the
Commonwealth contends that any error in the preclusion of expert testimony
concerning Appellant’s degree of intoxication was harmless. Because we
agree that any resulting error was harmless, we need not consider whether
the trial court’s decision was erroneous.
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Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted [or precluded]
evidence was merely cumulative of other untainted evidence
which was substantially similar to the erroneously admitted [or
precluded] evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997).
Here, there was “a great deal of testimony at trial from eye witnesses
concerning the amount of alcohol consumed by [Appellant] on the night of
the murder, and his level of intoxication.” TCO, at 12. For instance,
Appellant’s mother testified that Appellant and the victim were drinking beer
and vodka before the killing, N.T., 5/13/14, at 170; that they “were
drinking all day[,]” id. at 179, and that between them, Appellant and the
victim consumed a considerable portion of a half-gallon bottle of vodka, id.
at 180.5 She also testified that Appellant appeared intoxicated, slurred his
words and bumped into things as he walked through her home. Id. at 182.
Michael Spinelli also observed Appellant drinking on the night of the
killing. Id. at 148. He stated that Appellant was speaking loudly that
evening, a typical behavior for Appellant when intoxicated. Id. at 151-52.
Spinelli also testified that Appellant was “say[ing] things that he normally
[would] say if he was drinking.” Id. at 156. Spinelli also agreed during
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5
The bottle of vodka was half-full when the two arrived, and nearly empty
at the time of the killing. Appellant’s mother stated that she was unsure
how much the pair had consumed before arriving at her home.
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cross-examination that, when drinking, Appellant “makes statements that
don’t make much sense.” Id. at 157. Jonathan Sandoval also testified that
Appellant was intoxicated. N.T., 5/14/14, at 114.
During closing argument, defense counsel focused extensively on
Appellant’s level of intoxication and erratic behavior. In addition to the
aforementioned testimony, he suggested to the jury that they could infer
Appellant’s level or degree of intoxication at the time he made his
inculpatory statements to his family from the victim’s blood alcohol
concentration that evening—a staggering .42. The trial court overruled the
Commonwealth’s objection to this suggestion, explaining, “The testimony
was that they were drinking together. So it is fair argument.” Id. at 210.
Additionally, the trial court instructed the jury that, “Evidence regarding
[Appellant’s] drinking can be used by you when evaluating [his] statements
made to any individuals on the night of the alleged crime.” N.T., 5/15/14, at
22. Thus, we agree with the trial court that the “jury was aware of
[Appellant]’s high level of intoxication on the night of the murder, and [that]
the court instructed them that they could consider it when determining his
state of mind in admitting the murder to his family members.” Id.
As such, we concur with the Commonwealth that the preclusion of
evidence of Appellant’s specific blood alcohol level was “merely cumulative”
of the other evidence produced at trial. Hawkins, supra. Appellant was
permitted to cross-examine the Commonwealth’s witnesses in order to
extract substantial evidence of his intoxication when he made the
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inculpatory statements to those witnesses. See Soda v. Baird, 600 A.2d
1274, 1277 (Pa. Super. 1991) (“The exclusion of evidence is not grounds for
the granting of a new trial if evidence of the same fact or facts was
introduced by the party applying for a new trial. There is no basis for a
reversal, and a new trial, if the excluded evidence was cumulative in
nature.”) (citation omitted). Accordingly, we conclude that even if the trial
court erroneously excluded evidence of Appellant’s blood-alcohol content at
the time he made his incriminating statements, such error was harmless.
Re-direct of Dr. Ross
Finally, Appellant asserts that the trial court erred when it permitted
the Commonwealth to question Dr. Gary Ross on re-direct. Dr. Ross, a
forensic pathologist, testified regarding the autopsy and toxicology report.
He spoke to both the cause and mechanism of the victim’s death. During
direct examination, Dr. Ross was questioned about the knife that Appellant
pulled out of his pocket and placed in his mother’s kitchen drawer. He
stated, over Appellant’s overruled objection that it went beyond the scope of
his report, that “[a] knife just like this could have caused all the injuries that
this decedent had sustained.” N.T., 5/14/14, at 162. Appellant’s claim,
however, does not arise directly from his objection to this testimony.
During cross-examination, defense counsel questioned whether Dr.
Ross could testify with any degree of certainty whether that specific knife
had been used to kill the victim, as opposed to a similar knife, and Dr. Ross
stated that he could not from the information that he had at that moment.
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Id. at 171. During re-direct, the Commonwealth asked Dr. Ross, “If you
had information that the decedent’s DNA was on that knife, what would your
opinion be?” Defense counsel objected, essentially arguing that the question
went beyond the scope of his cross-examination of Dr. Ross. The
Commonwealth responded that Appellant had opened the door to that line of
inquiry. The trial court agreed, and overruled the objection. Dr. Ross then
stated that if he knew that the decedent’s DNA was found on the knife, he
“would be very comfortable in saying that this knife is the knife that killed
[the vicitm].” Id. at 172-73.
Appellant argues that the trial court erred by permitted the
Commonwealth’s solicitation of Dr. Ross’s opinion regarding a fact not
contained in his report. We disagree. Initially, we note that Appellant fails
to provide citation(s) to any authority that would suggest that the
Commonwealth’s question on re-direct was improper. In any event, we view
the Commonwealth’s question on re-direct to be a natural and fair response
to the focus of Appellant’s questions during cross-examination. By focusing
the jury’s attention on Dr. Ross’s inability to identify the knife as the actual
or specific cause of the victim’s stab wounds, it was fair response for the
Commonwealth to highlight what facts, if any, would bridge the gap between
the actual and the definite. Moreover, the question did not involve mere
speculation that would mislead the jury—DNA samples taken from the blood
found on the knife in question were, in fact, positively matched to the victim
in this case. N.T., 5/14/14, at 91-93. Accordingly, we conclude that the
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trial court did not err when it permitted the Commonwealth to pursue its line
of questioning during the re-direct examination of Dr. Ross.
Merger/Illegal Sentence
Having addressed each of Appellant’s claims, we now turn to an
obvious error that is apparent from the record. Specifically, Appellant was
illegally sentenced when the court issued consecutive sentences for first and
third degree murder. There is no dispute in this case that Appellant’s
convictions for these crimes were based on his killing of one victim: Dennis
Doherty. Appellant was not charged with killing separate individuals, nor did
the Commonwealth present evidence of multiple homicides. Therefore, his
convictions for first and third degree murder should have merged for
sentencing purposes, rendering his current sentence illegal.
“A challenge to the legality of the sentence may be raised as a
matter of right, is non-waivable, and may be entertained so long
as the reviewing court has jurisdiction.” Commonwealth v.
Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc).
The phrase ‘illegal sentence’ is a term of art in Pennsylvania
Courts that is applied to three narrow categories of cases. Id. at
21. Those categories are: “(1) claims that the sentence fell
‘outside of the legal parameters prescribed by the applicable
statute’; (2) claims involving merger/double jeopardy; and (3)
claims implicating the rule in Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).”
Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).
Moreover, “[t]he issue [of merger] is a pure question of law, allowing for
plenary review.” Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa.
Super. 2012).
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Despite Appellant’s failure to raise this claim below or in his appellate
brief, the issue of whether the trial court failed to merge Appellant’s
sentences for first and third degree murder cannot be waived, and this Court
may address it sua sponte. Munday. The merger statute dictates as
follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765.
Here, it is beyond question that Appellant’s convictions for first and
third degree murder arise from the same criminal act—the killing of Dennis
Doherty. One may be assaulted multiple times, or be the victim of multiple
thefts; but once completed, a killing can never be repeated against the same
victim (although multiple persons may be held legally culpable for a single
killing). Thus, we have no reservation in concluding that Appellant’s
sentences for first and third degree murder “arise from a single criminal act.”
Id.
We must next determine whether “all of the statutory elements of one
offense are included in the statutory elements of the other offense.” Id.
First-degree murder occurs when “(1) a human being was unlawfully killed;
(2) the defendant was responsible for the killing; and (3) the defendant
acted with malice and a specific intent to kill.” Commonwealth v. Martin,
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101 A.3d 706, 718 (Pa. 2014). For purposes of this analysis, these elements
can be rearranged as such: a defendant is guilty of first-degree murder if he
(1) unlawfully kills another human being; (2) with malice aforethought; and
(3) with the specific intent to kill.
Recently, our Supreme Court approved of the following definition of
third-degree murder: “[T]o convict a defendant of the offense of third[
]degree murder, the Commonwealth need only prove that the defendant
killed another person with malice aforethought.” Commonwealth v.
Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (quoting Commonwealth v.
Santos, 876 A.2d 360, 363 (Pa. 2005)), cert. denied sub nom. Best v.
Pennsylvania, 134 S.Ct. 2314 (2014). Again, rearranging this definition
for our analysis, a defendant is guilty of third degree murder if he (1)
unlawfully kills another human being; (2) with malice aforethought.
As is clear from these rearranged (but substantively unaltered)
definitions, “all of the statutory elements of” third degree murder “are
included in the statutory elements of” first degree murder. 42 Pa.C.S. §
9765. Furthermore, as discussed supra, we have determined that
Appellant’s first and third degree murder convictions both arose from the
same criminal act. Thus, Appellant’s first and third degree murder
convictions must merge for sentencing purposes. Indeed, these offenses will
always merge for sentencing purposes when they both pertain to an
individual defendant’s killing of single person.
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Consequently, we hereby vacate Appellant’s sentence for third degree
murder. Because the Commonwealth never sought imposition of the death
penalty in this case, the only possible sentence for Appellant’s first degree
murder conviction is life imprisonment without the possibly of parole, a
sentence already imposed and left untouched by this decision. Thus, it is
unnecessary to remand for re-sentencing, and Appellant is not entitled to
any other form of relief.
Judgement of sentence affirmed in part, vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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