Com. v. Chermer, B.

J-S78019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BEAU W. CHERMER
Appellant No. 128 WDA 2016
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-0001125-2012
CP-04-CR-0001130-2012
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MARCH 14, 2017
Beau W. Chermer appeals from the judgment of sentence imposed on
October 19, 2015, in the Court of Common Pleas of Beaver County. At
Docket No. 1125-2012, the trial judge1 found Chermer guilty of murder of
the second degree.2 At Docket No. 1130-2012, Chermer pled guilty to 16
counts arising from the same incident, including aggravated assault,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Although Chermer and his co-defendant, Joseph Arlott, were tried
together, after the mistrial was granted and the new trial rescheduled,
Chermer opted for a bench trial.
2
18 Pa.C.S. § 2502(b).
J-S78019-16
burglary, robbery, criminal conspiracy, and related offenses.3 Chermer was
sentenced to life in prison without the possibility of parole and a consecutive
aggregate term 19 to 50 years’ imprisonment on three conspiracy
convictions, namely, conspiracy to commit robbery, conspiracy to commit
aggravated assault, and conspiracy to commit burglary.4 Chermer claims
(1) the trial court erred in imposing sentence on more than one of the
conspiracy charges,5 (2) the trial court erred in denying Chermer’s motion
and amended motion to bar retrial on double jeopardy grounds and other
constitutional grounds, (3) the evidence was insufficient to sustain the
verdict for murder in the second degree, (4) the evidence was against the
weight of the evidence to support the conviction for murder in the second
degree, and (5) the trial court erred in failing to strike the Commonwealth’s
rebuttal testimony of James Smith, M.D. Based upon the following, we
affirm the judgment of sentence at Docket No. 1125-2012, and vacate the
judgment of sentence at Docket No. 1130-2012 and remand for
resentencing.
____________________________________________
3
18 Pa.C.S. §§ 2701(a)(1), 3502(a)(1), 3701(a)(1)(i) and 903,
respectively.
4
The trial court opted not to sentence Chermer on any of the other counts
to which he pled guilty. See Sentence Order, 10/19/2015.
5
The trial court has agreed that it erred in sentencing Chermer
consecutively on the three counts of conspiracy and has asked this Court to
vacate that sentence and remand for resentencing. For purposes of our
discussion, we will address this issue last.
-2-
J-S78019-16
The trial court has summarized the facts and procedural history of this
case, as follows:
On August 26, 2015, the Court returned a verdict finding
[Chermer] guilty of Murder of the Second Degree (Felony
Murder) at Case No. 1125 of 2012. Prior to trial, [Chermer] had
waived his right to a trial by jury and agreed to be tried at Case
No. 1125 of 2012 in a Bench Trial. Also before trial, [Chermer]
plead[ed] guilty to all sixteen (16) counts at Case No. 1130 of
2012, arising out of the same incident. The counts at Case No.
1130 of 2012, which [Chermer] plead[ed] guilty to, include: (1)
Aggravated Assault, (2) Criminal Conspiracy to Commit
Aggravated Assault, (3) Aggravated Assault, (4) Criminal
Conspiracy to Commit Aggravated Assault, (5) Burglary, (6)
Criminal Conspiracy to Commit Burglary, (7) Robbery, (8)
Criminal Conspiracy to Commit Robbery, (9) Unlawful Restraint,
(10) Criminal Conspiracy to Commit Unlawful Restraint, (11)
Theft by Unlawful Taking, (12) Criminal Conspiracy to Commit
Theft by Unlawful Taking, (13) Simple Assault, (14) Criminal
Conspiracy to Commit Simple Assault, (15) False Imprisonment,
and (16) Criminal Conspiracy to Commit False Imprisonment. On
the first case, [Chermer] was sentenced on October 19, 2015 to
life in prison without the possibility of parole. On the second
case, [Chermer] 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 [Chermer] to
undergo imprisonment for not less than nineteen (19) years, nor
more than fifty (50) years, each to be served consecutively to
the life imprisonment sentence at Case No. 1125 of 2012.1
[Chermer] received no additional sentences for the other
thirteen (13) counts he plead[ed] guilty to at Case No. 1130 of
2012.
_____________________________________
1
Specifically, for the conviction of Criminal Conspiracy to
Commit Robbery, [Chermer] 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, [Chermer] was sentenced to
-3-
J-S78019-16
undergo imprisonment for not less than 84 months nor
more than 240 months; and for the conviction of Criminal
Conspiracy to Commit Burglary, [Chermer] 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, [Chermer] filed an Omnibus 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, and only one (1) sentence for conspiracy be imposed.
Chermer then filed a Supplemental Omnibus Post-Sentence
Motion o[n] December 23, 2015, requesting judgment of
acquittal for the Murder conviction, a new trial for the Murder
conviction, and a motion for modification of sentence for the
Conspiracy convictions. This Court denied that motion on
January 4, 2016. [Chermer] then filed this direct appeal to the
Superior Court of Pennsylvania.
****
At trial, the Court heard testimony from multiple medical
professionals regarding the cause of the victim’s (Daniel J.
Santia) death. After being tortured and beaten by [Chermer] and
the Co-Defendant2 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, a blood
thinner, to prevent 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
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.
______________________________
-4-
J-S78019-16
2
The Co-Defendant in this case is Joseph Michael Arlott,
who was convicted by a jury of all counts at Case No. 1126
of 2012 and at Case No. 1127 of 2012.
__________________________________
The Commonwealth’s Forensic Pathologist, 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 heart 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. (Tr.
Transcr. Vol. V, 127-208 (Aug. 21, 2015). There was no doubt
that [Chermer] and Co-Defendant [Arlott] caused the victim’s
extensive brain trauma. [Chermer’s] Forensic [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.
This Court returned a verdict of guilty for the Second Degree
Murder charge.
Trial Court Opinion, 2/23/2016, at 1-2, 3-5.
Chermer first claims the trial court erred in denying his motion to
dismiss the charges against him on double jeopardy grounds. Our scope
and standard of review for this question is as follows: “An appeal grounded
in double jeopardy raises a question of constitutional law. This [C]ourt's
scope of review in making a determination on a question of law is, as
always, plenary. As with all questions of law, the appellate standard of
review is de novo.” Commonwealth v. Taylor, 120 A.3d 1017, 1020 (Pa.
Super. 2015) (citation omitted). Further,
-5-
J-S78019-16
the double jeopardy clause of the Pennsylvania Constitution
prohibits retrial of a defendant not only when prosecutorial
misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial.
Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).6
Here, Detective Robert Chamberlain, of the District Attorney’s Office,
testified he had taken a series of photographs of the victim when he visited
him in the hospital some weeks after the assault. These photographs
showed the victim, still alive, to be severely bruised and battered. In the
midst of Detective Chamberlain’s testimony, lead detective Greg Durkos, of
the Hopewell Police Department, informed one of the prosecuting attorneys
he believed he had taken the photographs shortly after the victim’s
admission into the hospital. Indeed, prior to Detective Chamberlain’s
testimony, ADA Frank Martocci expressed a concern regarding when the
photographs had been taken, believing they depicted fresher injuries. N.T.
Trial, 1/29/2014 at 191. Accordingly, in attempting to authenticate the
photographs, Detective Chamberlain, while believing he had taken the
pictures, could not accurately date the pictures and stated he would have to
check the time signature on his computer at his office.
____________________________________________
6
In Smith, our Supreme Court broadened the double jeopardy protection
provided by the federal courts and United States Constitution, which requires
the prosecution to have intentionally caused a mistrial through misconduct.
See Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416
(1982).
-6-
J-S78019-16
After the close of testimony for the day, Detective Durkos conclusively
demonstrated he had taken the pictures by examining the relevant
information contained on his computer. The next day, the Commonwealth
alerted both the defense and trial court to the problem. The Commonwealth
also offered to present testimony to the jury detailing the mistake and
thereby correcting any misimpression Detective Chamberlain’s testimony
caused. However, the defense requested a mistrial and the trial court
granted it.
Subsequently, Chermer and Arlott sought to bar retrial on the ground
of double jeopardy.7 An extensive hearing on the issue was held on March
24, 2014 at which both Detectives Durkos and Chamberlain testified. In
denying the motion to bar a retrial, the trial court stated in its March 31,
2014,8 opinion:
Based upon all the evidence presented and the argument of
counsel, this Court finds no reason to change the Court’s Opinion
and Order of February 18, 2014 on the issue of intentional
misconduct by the prosecution in permitting Detective
Chamberlain to attempt to authenticate the twenty (20)
photographs which he clearly did not take. As pointed out in the
February 18, 2014 Opinion, the prosecution’s preparation for
____________________________________________
7
Chermer initially filed an interlocutory appeal regarding the double
jeopardy issue. However, the interlocutory appeal was quashed by per
curiam order, dated September 22, 2014. Our Supreme Court subsequently
denied allowance of appeal, see 112 A.3d 649 (Pa. 2015) (Table).
8
The trial court authored two opinions regarding the double jeopardy issue,
having granted reconsideration after initially denying the motion to bar a
retrial. The March 31, 2014 opinion is the second of the opinions.
-7-
J-S78019-16
trial is suspect and did bring about the trial error, however, that
conduct has not been proven to rise to the level of having been
committed purposefully or in bad faith with the intent to prevent
the Defendants from receiving a fair trial, it did not constitute an
intentional attempt to deny or subvert the Defendants’
constitutional rights, and it certainly was not a trial strategy
undertaken to provoke he Defendants into seeking a mistrial.
This Court cannot ignore the fact that the inaccurate testimony
was called to everyone’s attention by the Commonwealth itself.
As to the first ground raised, the defendants have not
established grounds to require the barring of re-trial on Double
Jeopardy grounds.
Trial Court Opinion, 3/31/2014 at 3.
We have reviewed the certified record, including the relevant notes of
testimony from the initial trial and the hearing on the motion to bar a retrial.
We find no error in the trial court’s conclusion. Chermer has presented no
evidence or argument to overcome the fact that the Commonwealth came
forward itself to disclose the problem, a problem that might never have been
evident without that disclosure. In order to prevail on this claim, Chermer
must demonstrate that the Commonwealth acted intentionally in trying to
provoke a mistrial or in attempting to deny him a fair trial. The trial court
determined that such improper intent was inconsistent with self-disclosure
and denied Chermer relief. We affirm that decision.
Next, Chermer argues there was insufficient evidence to support his
conviction of second-degree murder. Specifically, he claims the
-8-
J-S78019-16
Commonwealth failed to prove a sufficient nexus between the assault of the
victim and his demise.9
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).
Chermer’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
____________________________________________
9
Because Chermer pled guilty to all the underlying crimes, including
burglary, aggravated assault, and robbery, the only real issue at trial was
whether the assault caused the victim’s death.
-9-
J-S78019-16
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
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
- 10 -
J-S78019-16
occluded one of the arteries, causing a myocardial infarction,10 which proved
to be the mechanism of death.
It is also beyond dispute that the victim suffered a severe beating in
the course of the home invasion by Chermer and co-defendant Arlott. 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
____________________________________________
10
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
repair mechanisms designed to maintain normal operating function and
homeostasis.” See www.clevelandclinicmeded.com
- 11 -
J-S78019-16
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.
Specifically, Chermer argues:
The Trial Court recites that its verdict was based on the opinion
of the Commonwealth’s expert, [Dr.] Smith, that the brain
trauma [the victim] suffered was the direct cause of his death.
However, [Dr.] Smith never rendered that opinion.
[Dr.] Smith’s actual testimony was that [the victim] had
recovered from the injuries caused by the beating and that the
injuries were not the cause of, nor a contributing factor in, [the
victim’s] death.
Chermer’s Brief, at 40.
The certified record leads to the conclusion that this argument is
meritless. 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.
- 12 -
J-S78019-16
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.
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,
- 13 -
J-S78019-16
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?
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 judge was free to believe his
testimony as to causation. As such, Chermer’s argument regarding
insufficiency of the evidence fails and he is not entitled to relief on this issue.
Next, Chermer argues the verdict was against the weight of the
evidence. Specifically, he argues Dr. Smith failed to quantify how much
more likely it was for a blood clot to form absent the Coumadin therapy and
did not address Dr. Wecht’s theory of changed hematological state until
rebuttal. Also, he argues the trial court failed to properly weigh the effect of
the “do not resuscitate” (DNR) order placed by the decedent’s family.
- 14 -
J-S78019-16
Our Supreme Court has set forth detailed instructions regarding the
review of a challenge to the weight of the testimony.
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 Pa. 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
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).
- 15 -
J-S78019-16
Essentially, Chermer’s argument regarding his challenge to the weight
of the evidence is to highlight the fact that Dr. Wecht disagreed with Dr.
Smith as to certain medical issues. As Clay instructs, this is an improper
basis to overturn a verdict. Here, the trial court determined Dr. Smith’s
opinion was supported by the testimony of the treating physicians.
Additionally, the trial court opined:
This Court returned a verdict of guilty for the Second
Degree Murder charge. This Court had the opportunity during
trial to weigh the credibility of all the witnesses and evidence
presented at trial and determined which evidence it found most
compelling. This Court found, and the jury in the Co-
Defendant’s case agreed, that the Commonwealth presented
sufficient evidence to support a conviction for Second Degree
Murder. Likewise, the verdict is also not against the weight of
the evidence. The verdict shows that the Court found the
Commonwealth’s witnesses more compelling, and that
testimony, on its own, supports the conviction finding
[Chermer’s] actions caused the victim’s death.
****
Similarly, this conviction does not “shock one’s sense of justice”
and is not against the weight of the evidence presented.
Trial Court Opinion, 2/23/2016, at 5.
Based upon the foregoing, the trial court did not abuse its discretion in
denying Chermer’s claim the verdict was against the weight of the
evidence.11
____________________________________________
11
As noted above, as part of his weight of the evidence claim, Chermer also
asserts the trial court failed to adequately account for the DNR order placed
by the victim’s family. Our review of the certified record shows there was no
(Footnote Continued Next Page)
- 16 -
J-S78019-16
Penultimately, Chermer claims the trial court erred in failing to strike
the rebuttal testimony of Dr. James Smith.
Our standard of review in cases involving the admission of
expert testimony is broad: “Generally speaking, the admission of
expert testimony is a matter left largely to the discretion of the
trial court, and its rulings thereon will not be reversed absent an
abuse of discretion.”
Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (citation
omitted).
On rebuttal, Dr. Smith disagreed with Dr. Wecht’s conclusion that the
fatal myocardial infarction took place too long after the beating and
cessation of Coumadin to be related. In explaining why he disagreed, he
enlarged his prior testimony, explaining the clotting process and how
removal from Coumadin effects said process. Although he did not reiterate
his opinions were made to a reasonable degree of medical certainty, the trial
court examined the testimony as a whole and determined Dr. Smith’s
rebuttal testimony was not rendered incompetent by that fact.
While this issue purports to challenge Dr. Smith’s rebuttal testimony,
the first half of Chermer’s argument is a repeat of his prior argument that
Dr. Smith’s direct testimony was insufficient. Repeating this argument has
not compelled us to reconsider its merits.
_______________________
(Footnote Continued)
medical evidence to support a claim that the DNR order had any effect upon
the medical outcome of this matter.
- 17 -
J-S78019-16
Chermer is correct that Dr. Smith did not repeat the fact that his
rebuttal testimony was provided within a reasonable degree of medical
certainty. However, Dr. Smith’s testimony from the Commonwealth’s case
in chief was given to that standard. The trial court also noted that rather
than focusing on “magic words,”
“the substance of the testimony presented by the expert must
be reviewed to determine whether the opinion rendered was
based on the requisite degree of certainty and not on mere
speculation.” [Commonwealth v. Miller, 987 A.2d 638, 656
(Pa. 2009)].
Trial Court Opinion, 2/23/16, at 8 (additional citations omitted).
The trial court recognized that Dr. Smith’s initial testimony had been
explicitly rendered to a reasonable degree of medical certainty and reviewed
the detail of his rebuttal testimony to determine the rebuttal testimony was
proffered to the same standard and was not based on mere speculation. Our
review of the certified record leads us to conclude the trial court did not
abuse its discretion therein. Accordingly, Chermer is not entitled to relief on
this claim.
In his last issue, Chermer argues he was sentenced illegally in regards
to the conspiracy charges. The trial court has agreed with Chermer; we
agree as well.
Specifically, Chermer received an aggregate sentence of 19 to 50
years’ incarceration for conspiracy to commit robbery (8½ to 20 years),
- 18 -
J-S78019-16
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:
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).
Noting the applicable test to apply, this Court finds it would be
proper to re-sentence [Chermer] at Case No. 1130 of 2012, and
sentence [Chermer] for a single Conspiracy. Applying the test to
the facts at hand, this Court agrees the evidence established one
Conspiracy, as the crimes committed were all the object of a
single “continuous conspiratorial relationship.” [Chermer’s] re-
sentence should reflect as much.
Trial Court Opinion, 2/23/2016, at 11.
Our review of the certified record confirms the trial court’s analysis.
Accordingly, Chermer is properly subject to a single sentence for these three
- 19 -
J-S78019-16
conspiracy charges. Therefore, we vacate the sentence at Docket No. 1130-
2012 and remand this matter for resentencing.
Judgment of sentence at Docket No. 1125-2015, for second-degree
murder, is affirmed. Judgment of sentence at Docket No. 1130-2012 is
vacated as to Chermer’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
- 20 -