Com. v. Wade, A.

J-A18005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN WADE :
:
Appellant : No. 1669 WDA 2016
Appeal from the Judgment of Sentence May 26, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004799-2014
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 27, 2019
Allen Wade appeals from the judgment of sentence of two consecutive
life-without-the-possibility-of-parole sentences imposed following his
conviction of two counts of murder in the first degree and related charges.
We affirm.
The trial court provided a thorough summary of the facts underlying this
appeal:
In February 2014, sisters Sarah and Susan Wolfe resided
together at 701 Chislett Street in the East Liberty section of the
City of Pittsburgh. Appellant resided next door at 703 Chislett
Street with his girlfriend, LaShawn Rue.
On February 7, 2014, at approximately 1:00 P.M., Matthew
Buchholz, Sarah’s boyfriend, received a Facebook message from
Garrett Sparks, a physician who worked with Sarah at UPMC.
Sparks asked Buchholz to check on Sarah because she was late
for work that morning and nobody had heard from her. At
approximately the same time, Pittsburgh Police Officer Frank
Walker received a “well check” request for Susan from her co-
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worker because Susan also had not yet arrived at work that
morning.
Buchholz immediately drove to the Wolfe residence, and
knocked on the door but did not receive a response. Officer
Walker arrived shortly thereafter and spoke with Buchholz.
Buchholz and Officer Walker surveyed the perimeter of the home
and noticed that Sarah’s vehicle, a lime green Ford Fiesta, was not
parked on the street. Buchholz left to retrieve a spare key to the
Wolfe residence from his nearby residence and returned within ten
minutes to open the door for Officer Walker.
Officer Walker and Buchholz entered the residence together.
The alarm had been disarmed, and the two proceeded further into
the residence to look for Sarah and Susan. Buchholz called out
for Sarah, but there was no response. He noticed that the
basement door, which was usually only cracked open, was wide
open. He looked through the doorway and observed a pair of bare
legs on the floor of the basement. He immediately pulled back
and called for Officer Walker. Buchholz then noticed that the
entryway table was broken, and that blood, which was later
matched to Susan, was spattered on the walls in the entryway.
He ran outside onto the porch and collapsed. He remained seated
on the porch until he was taken to police headquarters for
questioning.
Officer Walker proceeded to the basement door. He looked
down into the basement and observed Susan face down, nude,
with an apparent gunshot wound to the back of her head. A short
distance away, he observed Sarah with a blanket over her face
and blood coming out from underneath the blanket and her left
arm was “up in the air.” Officer Walker called for a medic, backup
officers, supervisors, and ordered Buchholz to remain on the
porch. Backup officers arrived and secured the scene. Several
homicide detectives, the mobile crime unit, and the medical
examiner arrived shortly thereafter and began processing the
scene.
Susan was lying face-down in the basement, nude, on top
of a pile of clothing, and was pronounced dead on scene. Upon
autopsy the cause of death was determined to be a penetrating
gunshot wound to the head. Susan suffered skull fractures and
hemorrhages as a result of the gunshot wound. Susan also
suffered blunt force trauma to the head, multiple lacerations of
the skull, and seven full thickness lacerations (a laceration where
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the bone is exposed) to the back hemisphere of her head. The
full thickness lacerations indicated that she was struck with a hard
blunt instrument. She additionally suffered blunt force trauma to
the trunk, and abrasive injuries and faint contusions on her back
and chest, as well as abraded contusions on her face. There was
vomit on the ground beneath her face, and feces exiting her
rectum. Toilet paper was attached to the feces. The presence of
vomit indicated that she was alive at some point while she was in
the basement. A spent .38/.357 bullet was recovered from
between the two cerebral hemispheres near the front of the brain
during her autopsy. The bullet was damaged, but the crime lab
was able to identify its rifling characteristics as six lands and
grooves and a right hand twist.
Sarah also was lying on the floor of the basement, with a
comforter over her head, and she was also pronounced dead on
scene. Upon autopsy the cause of death was determined to be a
penetrating gunshot wound to the head. Sarah suffered multiple
contusions and abrasions on the face and neck due to some form
of blunt force trauma. She also suffered numerous contusions and
abrasion on all four extremities, consistent with being dragged
down the basement steps. Sarah’s clothes exhibited bleach marks
and a purple sticky, slippery liquid was found on her purse and
her pants. The basement smelled of bleach, and there was fabric
softener/detergent, consistent with the liquid on the purse, on the
steps heading to the basement. During autopsy, a spent .38/.357
caliber bullet was recovered from inside her right eye socket. The
bullet was heavily damaged, but had a rifling classification of six
lands and grooves with a right hand twist, and could have been
discharged from the same firearm that discharged the bullet
recovered during Susan’s autopsy.
No car keys, cell phones, or bank cards were found near the
sisters or in Susan’s purse which was found near the bodies. A
search warrant was obtained for the bank records of the two
sisters. The search revealed that an individual attempted to use
both of their debit cards at the East Liberty Citizens’ Bank branch
ATM early that morning. Specifically, the following transactions
were attempted or completed: (1) at 12:44 A.M. a withdrawal
was denied using Sarah’s card; (2) at 12:45 A.M. a withdrawal
was denied using Sarah’s card; (3) at 12:46 A.M. a withdrawal
was successfully made using Sarah’s card; (4) at 12:52 A.M., a
withdrawal was denied using Sarah’s card; and (5) at 12:53 A.M.
a withdrawal was denied using Susan’s card.
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A “BOLO” was issued for Sarah’s Ford Fiesta, and in the early
morning hours of February 8th the vehicle was located in the
business district of East Liberty on South Witfield Street. This
location was approximately three blocks from the ATM machine
where the withdrawals were attempted or completed. The vehicle
was secured and subsequently towed for processing.
Uniformed Police Officer Gregory McGee started his shift on
February 8, 2014, at 7:00 a.m. Officer McGee, after finishing up
some initial calls, went to Whitfield Street where the Wolfe vehicle
was found. Officer McGee walked on Whitfield Street away from
that area toward Station Street and soon discovered what he
described as a “pattern” of discarded clothing, including a winter
black knit hat and a pair of grey sweatpants. The black knit hat
was laying just off the sidewalk on top of snow and leaves in a pile
of mulch. The sweatpants were discovered approximately sixty
feet ahead and were “arranged” on the sidewalk, as if the person
who had worn them had been standing up and just pulled their
pants down and stepped out of them like a “fireman’s pants.” The
sweatpants looked as though they had not been disturbed and had
been there for only a short period of time. Officer McGee also
observed a University of Pittsburgh Medical Center (UPMC)
business card approximately one foot away from the sweatpants.
The card was that of Cameron Mager, who was a social worker at
UPMC. The number “4991” was handwritten on the back. Officer
McGee advised his supervisor as to what he had found and was
directed to call the homicide detectives who met him at the scene
shortly thereafter. After the detectives arrived, Officer McGee
continued to canvass the area and observed some black knit
items, later identified as a balled up pair of socks, in a garbage
can in the rear of the Midas Muffler Shop further on Whitfield
Street.
The mobile crime unit arrived, documented and collected
the items discovered on Whitfield Street: the sweatpants, the
business card, the knit hat, and the socks found in the garbage
can outside the Midas Muffler Shop. All items were submitted to
the crime lab for testing. Additionally, the vehicle was inventoried
after being towed, and several items were tested for DNA and/or
fingerprints. In total, over 100 items of evidence were collected
form the Wolfe residence, Sarah’s vehicle, Whitfield Street, and
the bodies of Susan and Sarah Wolfe. All of the items were
submitted for forensic testing.
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The items from Whitfield Street were submitted for DNA
testing.9 The crime lab found that: (1) the waistband of the
sweatpants contained a mixture of at least three persons, of which
Appellant and Rue, Appellant’s girlfriend, could not be excluded as
possible contributors; (2) a possible bloodstain on the sweatpants
contained a mixture of two individuals, with Appellant as the major
contributor; and, (3) the sock contained a mixture of at least three
persons, from which Appellant could not be excluded. The
probability of selecting another person in the African-American
population with the same DNA profile as Appellant is 1 in 3.95
quintillion.
9Appellant had provided a DNA sample at an earlier date, on an
unrelated case, and his DNA profile was stored in the CODIS
System.
During the autopsy, red/brown staining was found on the
leading edge of three of Susan’s right hand fingernails. These
were clipped and submitted to the Allegheny County Crime Lab.
The crime lab determined that the fingernails contained a mixture
of at least three individuals, and that Appellant, Rue, and Susan
could not be excluded. Due to restrictions in the county crime lab
math models regarding determining major and minor contributors
in mixtures of this small size, the crime lab sent the data to Dr.
Mark Perlin of Cybergenetics for additional testing using
probabilistic genotyping (TrueAllele). Using TrueAllele, it was
determined that the DNA found on Susan’s fingernails matched
Appellant, and that it was 6.06 trillion times more probable than
a coincidental match to an unrelated African American individual.
The UPMC business card found on Whitfield Street next to
the sweatpants was identified by Cameron Mager as a business
card that he gave to his clients in his capacity as a social worker
at UPMC. He provided one such card to Susan Wolfe on an initial
meeting in September 2013. He never met with Appellant. The
number “4991” found on the back of the business card was not
written by Mager or the crime lab. The number “4991” was the
last four digits of the Wolfes’ childhood family telephone number
in the state of Iowa where the sisters grew up and their parents
still lived.
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Police canvassed the East Liberty area for surveillance
videos to tract the whereabouts of the individual who had
abandoned Sarah’s vehicle and the person who had attempted to
use the sisters’ debit cards. They sought videos from several area
businesses, and recovered videos from Citizen Bank, Target,
Carnegie Library, Monet Capital at Walnut and Highland, Midas
Muffler Shop, and the Sunoco Gas/Convenience Store at East
Liberty Boulevard and Highland Avenue.
A compilation of the videos was played at trial, which
spanned the timeframe of February 7, 2014 at 12:32 a.m. to
approximately 1:12 a.m., [and] showed Appellant dressed in a red
jacket, grey sweatpants, and white shoes. The videos further
established that Appellant drove Sarah’s Lime Green Ford Fiesta
past the Carnegie Library around 12:32 a.m. and parked the
vehicle on Whitfield Street. He exited Sarah’s vehicle and walked
toward Centre Avenue. Appellant then walked through the East
Liberty area, made a left onto Penn Avenue, and walked past a
Citizen’s Bank ATM and Target Store. Appellant then crossed Penn
Avenue toward Centre Avenue and made a left onto Kirkwood
Street. Minutes later he crossed back over Penn Avenue and
walked toward the area he had originally come from eventually
stopping at the Citizens’ Bank where he attempted to make a
withdrawal from the ATM there. While at the ATM, he held two
PNC Bank ATM cards in front of the ATM camera and attempted to
cover his face with the light-colored shirt he was wearing. At the
ATM he used the sisters’ PNC Bank ATM cards ultimately getting
$600 from the machine using Sarah’s ATM card. After successfully
making the ATM withdrawal, Appellant walked across Penn Circle
toward Whitfield Street near where he had parked Sarah’s vehicle
earlier. Appellant thereafter discarded the grey sweatpants he
was wearing outside of the Midas Muffler Shop on Whitefield Street
and continued walking toward Highland Avenue.
Additionally, Appellant was observed in one of the videos
emptying his pockets and throwing something into the trash can
at the front entrance of the Sunoco store on Highland Avenue
before entering. The police conducted a garbage pull on the
dumpsters at the Sunoco store on February 13, 2014, and located
six bags there were from the outside of the Sunoco store. In one
of the bags, they found an “Iowa Prison Industries” pen. Iowa
Prison Industries does not conduct business in Pittsburgh. Susan
and Sarah’s sister, Mary Wolfe, who was an elected member of
the Iowa General Assembly, worked with Iowa Prison Industries.
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As part of this relationship, Mary received pens from Iowa Prison
Industries during facility tours that she would keep at her home
office in Iowa. Prior to moving to Pittsburgh, Susan worked in the
reception area of her sister’s home office and often used those
pens.
Still photographs of Appellant were created from the Sunoco
video and distributed to uniform and patrol officers. On February
19, 2014, Pittsburgh Police Officer Wade Sarver was on patrol in
the area, attempting to locate the individual from the Sunoco store
video. He observed fellow Officer John Svitek talking to Appellant
on his porch at 703 Chislett Street, and immediately recognized
Appellant as the individual in the Sunoco video. Officer Svitek
concluded his brief conversation with Appellant, left Appellant’s
porch, and spoke with Sarver in the street. Officer Svitek had
been in the area talking to the Appellant because he believed he
fit the description of the actor based upon a picture he had been
given earlier in the investigation by Zone Five command staff. The
two officers conferred about their perception that Appellant
matched the actor in the Sunoco video, and they returned to 703
Chislett to maintain contact with Appellant as well as contact their
superior and homicide detectives. Appellant answered the door
and invited the officers inside. Sarver contacted the homicide
office to actually conduct an interview with Appellant, and he
waited with Appellant until they arrived, approximately fifteen
minutes later.
Homicide Detectives interviewed Appellant at his home and
showed him the Sunoco still photo. Upon viewing the photo,
Appellant replied, “that sure looks like me.” Appellant was
subsequently transported to the homicide office and formally
interviewed there. When asked if he had ever been inside 701
Chislett Street, Appellant told detectives that he had never been
in that residence. Without any mention of DNA or semen,
Appellant gratuitously remarked that they would never find his
DNA or semen inside the house. Appellant also told the detectives
that he previously owned a .380 caliber firearm, but he had since
sold it.
In investigating Appellant’s statement that he had never
been in the Wolfe residence before, the detectives discovered that
Susan and Sarah had been the victims of a burglary on December
30, 2013, wherein two televisions and two cable boxes were
stolen. In that incident the means of entry was toward the back
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of the house, on the same side as Appellant’s residence, through
a small ground level window that had been pried out, a maneuver
that would have taken a lot of time and tools. The sisters had
reported the burglary to authorities, and the police advised the
sisters to get a security system. The following day, Officer
Yolanda Roberts visited the home and collected a knit hat from
the kitchen counter, which the sisters told police did not belong to
them. The hat had not been subject to further testing at that
juncture but was retained in the police evidence room.
That knit hat was submitted to the crime lab for DNA testing
as part of the homicide investigation. The crime lab determined
that Sarah and Susan were excluded, but could not draw any
conclusions regarding Appellant’s DNA profile. The crime lab
recommended that the data be sent to Dr. Perlin for probabilistic
genotyping. Using TrueAllele, it was determined that Susan and
Sarah were excluded, and Appellant’s DNA matched the DNA
found on the hat, with a finding that it was 65.3 thousand times
more probable than a coincidence.
Trial Court Opinion, 5/9/18, at 9-21 (citations and footnotes omitted).
Appellant was arrested and charged with three counts of theft by
unlawful taking, two counts each of criminal homicide and robbery, and one
count each of burglary, access device fraud, and person not to possess a
firearm. The Commonwealth served notice of its intention to seek the death
penalty and filed a notice of its intention to present Pa.R.E. 404(b) evidence.
Specifically, the Commonwealth sought introduction of evidence that the
victims’ home had been burglarized five weeks before the murders, and that
a knit hat recovered during the investigation of that incident contained DNA
that matched Appellant’s profile. Following a hearing, the trial court granted
the motion. Additionally, the court granted a defense motion to sever the
person not to possess a firearm charge.
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On May 2, 2016, Appellant proceeded to a jury trial on all remaining
charges. Prior to the close of trial, all three of the receiving stolen property
charges were withdrawn. On May 23, 2016, Appellant was found guilty of two
counts of first-degree murder and all remaining charges. After the jury
hopelessly deadlocked on the death penalty, the trial court imposed a
sentence of life without the possibility of parole for each murder conviction
and consecutive ten-to-twenty year terms of imprisonment for each robbery
and burglary conviction. Appellant timely filed a post-sentence motion, which
was denied. Appellant timely appealed, and both Appellant and the trial court
complied with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
I. Did the trial court abuse its discretion when permitting the
Commonwealth to introduce evidence of a hat that had been
found at the victims’ home subsequent to a burglary over a
month prior to the instant offenses in that the evidence was
not relevant, more prejudicial than probative, and
inadmissible under both the propensity evidence exception
and the hearsay rule?
II. Did the trial court abuse its discretion when it permitted
evidence prejudicial to the defense (specifically, PowerPoint
slides used by Dr. Lorenz during his expert testimony
regarding DNA testing and analysis) to go out with the jury
during its deliberations?
III. Did the trial court abuse its discretion when it failed to grant
a mistrial after the Commonwealth elicited testimony from
a witness, Matthew Buchholz, about a polygraph
examination related to the double murder?
Appellant’s brief at 9.
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In his first claim, Appellant argues that the trial court erred when it
admitted a black knit hat recovered after the December 2013 burglary of the
victims’ residence, since it was (1) irrelevant, (2) more prejudicial than
probative, and (3) inadmissible hearsay. Id. at 20. We consider Appellant’s
challenge to the admission of the hat mindful of our standard of review:
The admissibility of evidence is a matter addressed to the sound
discretion of the trial court and . . . an appellate court may only
reverse upon a showing that the trial court abused its discretion.
As abuse of discretion is not a mere error in judgment but, rather,
involves bias, ill will, partiality, prejudice manifest
unreasonableness, or misapplication of law.
Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (internal
citations and quotation marks omitted). Additionally, we note that we may
affirm the trial court’s ruling on any basis supported by the record.
Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017).
By way of background, the victims reported a burglary at their home on
December 30, 2013, five weeks before they were murdered. N.T. Jury Trial –
Volume III, 5/9/16, at 1197. On that occasion, there were signs of forced
entry through a low bathroom window in the side of the house and two
televisions and cable boxes were missing. Id. at 1198. On December 31,
2013, a member of the mobile crime unit responded to the victims’ home in
order to photograph and gather evidence. Id. at 1210. While the officer was
in the residence, Susan pointed out a hat on the kitchen counter that did not
belong to anyone in the home. Id. at 1215. The officer recovered the hat
and placed it into an evidence locker. Id.
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Two weeks after the murders, a detective interviewed Appellant and
twice asked him if he had ever been inside the victims’ home, either while
they lived there or before. N.T. Jury Trial – Volume Five, 5/13/16, at 2034,
2036. Both times, Appellant denied having ever been inside the home. Id.
Additionally, he volunteered that the police would never find his DNA or semen
inside the house. Id. at 2036. However, at trial, Dr. Mark Perlin testified that
a comparison through probabilistic genotyping showed a DNA match between
the hat recovered during the burglary and Appellant was 65.3 thousand times
more probable than coincidence. N.T. Jury Trial – Volume Four, 5/12/16, at
1804-05. Notably, the victims were excluded as contributors to the hat.
First, Appellant alleges that the hat was not relevant. Relevant evidence
is admissible if it “tends to establish a material fact, makes a fact at issue
more or less probable, or supports a reasonable inference regarding a material
fact.” Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) citing
to Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). The trial
court found that the evidence was relevant, since it tended to establish that
Appellant had been inside the sisters’ residence previously. Trial Court
Opinion, 5/9/18, at 24. We agree. The existence of this evidence, placing
Appellant inside the victims’ house, directly contradicted Appellant’s two
statements to police. Thus, the record supports the trial court’s conclusion
that the hat was relevant.
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Next, Appellant attacks the admission of the hat, and testimony
surrounding its admission, as improper propensity evidence. He contends that
it connected him to a prior burglary although it failed to show that he was in
the victims’ home, since the hat could have been brought inside the home by
one of the sisters. Appellant’s brief at 27.
Under Pa.R.E. 404(b):
(1) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.
(3) Evidence of other crimes, wrongs, or acts proffered under
subsection (b)(2) of this rule may be admitted in a criminal case
only upon a showing that the probative value of the evidence
outweighs its potential for prejudice.
Notably, if evidence is being offered under one of the exceptions, it is only
admissible if the probative value outweighs the danger of unfair prejudice to
the defendant. Pa.R.E. 404(b)(3).
By introducing the hat into evidence, the Commonwealth connected
Appellant to the prior burglary at the victims’ residence. When reviewed in
light of Pa.R.E. 404(b), this evidence presented by the Commonwealth
constituted evidence of other crimes committed by Appellant. However, the
Commonwealth posits that the evidence falls within a rebuttal exception,
recognized by our Supreme Court in Commonwealth v. Saxton, 532 A.2d
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352, 357 (Pa. 1987), and reiterated by us in Commonwealth v. Matthews,
783 A.2d 338, 341 (Pa.Super. 2001), which rendered evidence of this type
admissible for a limited purpose. Commonwealth’s brief at 33. We agree.
Under the precedent established by these cases, the Commonwealth
may introduce evidence of a defendant’s prior crime in order to rebut
statements made by a defendant which created improper or false inferences
favorable to him. Matthews, supra at 341. That is precisely what happened
here. Appellant’s DNA, present on an article of clothing found inside the
residence six weeks prior to the murders, rebutted Appellant’s self-serving
statements that he had never been in the home, falling squarely within this
well-established exception.
Further, Appellant has failed to persuade us that the probative value
was outweighed by the evidence’s prejudicial impact. The Commonwealth
limited its usage of the evidence to permissible grounds: to show that
Appellant had been in the house before. Further, despite three offers by the
trial court to provide a cautionary instruction, Appellant repeatedly declined
the court’s offer. N.T. Jury Trial - Volume One, 5/3/16, at 405; N.T. Jury Trial
– Volume Three, 5/9/16, at 1218; N.T. Jury Trial – Volume Six, 5/18/16, at
2348. Accordingly, we discern no basis to disturb the trial court’s overruling
of Appellant’s objection to the admission of the hat and all testimony
surrounding it into evidence on this basis.
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Finally, Appellant attacks the admission of Susan’s identification of the
hat as not belonging to her or her sister, as inadmissible hearsay that does
not fit an enumerated exception. Appellant’s brief at 36. The trial court and
the Commonwealth respond that this statement does not constitute hearsay
because it was not admitted to prove Appellant committed a burglary, but to
explain the detective’s course of conduct. Trial Court Opinion, 5/9/18, at 25;
Commonwealth’s brief at 45. Specifically, the statement was offered to show
why the detective collected the hat as part of her investigation into the
commission of the burglary. Id. We agree.
Hearsay is “an out of court statement offered for the truth of the matter
asserted and is inadmissible unless it falls within an exception to the hearsay
rule.” Commonwealth v. Manivannan, 186 A.3d 472, 480 (Pa.Super.
2018); Pa.R.E. 801(c). However, it is well-established that an out-of-court
statement offered, not for its truth, but to explain the witness’s course of
conduct, is not hearsay. Commonwealth v. Johnson, 42 A.3d 1017, 1035
(Pa. 2012).
Appellant relies on Commonwealth v. Dent, 837 A.2d 571 (Pa.Super.
2003), to argue that, despite the long standing precedent that course of
conduct testimony is not hearsay, the statement was still hearsay as admitted
because it was introduced under the pretext of the course of the detective’s
investigation in order to connect him to the burglary. We disagree.
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In Dent, the sole issue was the identity of a shoplifter. The appellant
maintained that she was not in the store at the relevant time. The
Commonwealth introduced the testimony of an officer who identified Appellant
from surveillance footage. In an attempt to strengthen the weak identification
evidence, the Commonwealth sought to utilize an identification made by
appellant’s sister on-scene to that same police officer, as course of conduct
evidence. We found that since the officer had not seen Appellant and the
surveillance footage was unavailable at trial, the entire case hinged upon the
sister’s identification. We expressed concern that the identification evidence
had been presented in the form of an “oblique narrative” relating to the course
of police investigations, and concluded that this aspect of the officer’s
testimony was inadmissible hearsay that should have been excluded. Id. at
580.
However, Dent is factually distinguishable. Susan’s statement did not
identify Appellant as the owner of the hat, nor did the detective’s testimony
prove that Appellant had been in the house at the time of the burglary. Here,
the statement was plainly not an “oblique narrative”, since it was used solely
to explain the reason why the detective collected the hat. This was pure
course of conduct testimony. Accordingly, we find that the trial court did not
err when it found that the detective’s statement did not constitute hearsay on
this basis.
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Appellant’s second issue is an attack on the trial court’s decision to allow
the jury to have access during deliberations to Dr. Lorenz’s PowerPoint slides.
Appellant’s brief at 49-51. The decision as to whether an exhibit should be
allowed to go out with the jury during deliberations is within the sound
discretion of the trial judge, and such choice will not be overturned absent an
abuse of discretion. Commonwealth v. Dupre, 866 A.2d 1089, 1102
(Pa.Super. 2005); Pa.R.Crim.P. 646(A). Specifically, Pa.R.Crim.P. 646
provides as follows:
(A) Upon retiring, the jury may take with it such exhibits as the
trial judge deems proper, except as provided in the paragraph (B).
(B) During deliberations, the jury shall not be permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded
confession by the defendant;
(3) a copy of the information;
(4) written jury instructions.
(C) The jurors shall be permitted to have their notes for use during
deliberations.
Pa.R.Crim.P. 646.
At trial the PowerPoint exhibits were admitted, in conjunction with Dr.
Lorenz’s testimony, by motion of the Commonwealth. N.T. Jury Trial – Volume
Three, 5/10/16, at 1408, 1509-10; N.T. Jury Trial – Volume Four, 5/12/16, at
1719. The PowerPoint was not initially sent out with the jury for deliberations.
However, once the jurors asked for the entire PowerPoint presentation, the
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“case specific” portions of it were provided, after an extensive review of the
slides and over multiple defense objections. N.T. Jury Trial – Volume Six,
5/20/16, at 2617-56. Importantly, the trial court found that providing the
PowerPoint slides to the jury was not precluded by the Pennsylvania Rules of
Criminal Procedure or appellate precedent, as the slides did not equate to
transcripts of trial testimony. Id. Additionally, the court determined that any
potential prejudice to Appellant could be cured by a cautionary instruction.
Accordingly, before giving the jury the slides, the court instructed the jurors
not to place undue emphasis on the content of the slides, but to review them
in the context of Dr. Lorenz’s entire testimony. Id. at 2656.
Appellant concedes that the PowerPoint presentation was admitted into
evidence as a Commonwealth exhibit and that exhibits are generally permitted
to be given to the jury during their deliberations. Appellant’s brief at 51.
However, he maintains that the trial court’s inclusion of the PowerPoint slides
was the functional equivalent of giving the jury a transcript of Dr. Lorenz’s
trial testimony, absent the cross-examination. Thus, he contends that they
should have been prohibited under Pa.R.Crim.P. 646(C)(1). Id. at 57-60. We
disagree.
Our Supreme Court has explicitly held that the term “transcript” in Rule
646(C) refers only to a written transcript of testimony. Commonwealth v.
Williams, 9 A.3d 613, 623 (Pa. 2010) (finding that the jury’s review of audio-
recorded trial testimony during its deliberations did not constitute a
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“transcript” that would be prohibited under Rule 646(C), since it was not a
“written, typed or printed copy of testimony orally.”). Perhaps most akin to
our case, in Commonwealth v. Woodard, 129 A.3d 480, 497 (Pa. 2015),
our Supreme Court found that the trial court did not abuse its discretion when
it allowed the jury to review expert medical reports during its deliberations.
The Court explained that medical reports are not “specifically precluded from
examination during deliberations pursuant to Rule 646(C).” Id. Further, no
prejudice arose from the jury’s review of these materials because both expert
reports from the defense and the prosecution were included. Id.Viewed plainly, the trial court found that the PowerPoint slides were not
the functional equivalent of “a written reproduction of a witness’s testimony
as a transcript.” Williams, supra at 623. Trial Court Opinion, 5/9/18, at 30.
A review of the certified record and relevant legal precedent supports the trial
court’s conclusion. It was well within the trial court’s discretion to grant the
jury’s request to review these slides as an aid to assist them in unpacking
complex DNA evidence testimony that went on for many hours. Further, just
as in Woodard, the trial court guarded against any potential prejudice when
it delivered a cautionary instruction. See Commonwealth v. Aiken, 168
A.3d 137, 143 (Pa. 2017) (reiterating the long-held presumption that jurors
follow trial court instructions). Accordingly, no relief is due.
In his final issue, Appellant argues that the trial court abused its
discretion when it failed to grant a mistrial after the Commonwealth elicited
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testimony from Matthew Buchholz about a polygraph examination. Appellant’s
brief at 64-76. A motion for a mistrial is within the discretion of the trial court.
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003). A mistrial
upon motion of one of the parties is required only when an incident is of such
a nature that its unavoidable effect is to deprive the appellant of a fair and
impartial trial. Id. It is within the trial court’s discretion to determine whether
a defendant was prejudiced by the incident that is the basis of a motion for a
mistrial. Id. On appeal, our standard of review is whether the trial court
abused that discretion.
By way of background, after a pre-trial oral motion in limine by the
defense, both sides agreed to avoid mentioning the fact that Buchholz had
taken a polygraph examination at trial. Buchholz was the first witness called
by the Commonwealth. He explained his actions and interactions throughout
the morning of February 7, 2014, up until the point that he discovered the
victims’ bodies in their basement. The questioning proceeded chronologically,
focusing next on Buchholz’s interactions with the police. The following
exchange occurred:
Q. Without asking any specific questions as to what was done
at the police station, did you meet with them? Did you
speak with them?
A. Yes, I talked to an officer for – I was there for several hours.
I talked to a couple of different officers. They asked me to
take a polygraph test, which I did. I was there for several
hours talking with them.
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N.T. Jury Trial – Volume One, 5/2/16, at 117-18. The parties immediately
approached sidebar and defense counsel requested a mistrial. Id. at 118.
The prosecutor represented that he had “deliberately [tried] to steer
clear of [any mention of polygraph testing].” Id. at 119. The trial court
agreed that there had been no deliberate attempt by the prosecutor to solicit
the improper reference and refused to declare a mistrial. Trial counsel
declined the court’s offer to instruct the jury to disregard this information,
reasoning that to do so would only draw more attention to the inappropriate
testimony. Id.
During a short recess, defense counsel advised the court that she had
spoken with Buchholz, and he had informed her that the Commonwealth had
not instructed him to refrain from any mention of the lie detector test. The
prosecutor responded that he had indeed spoken with Buchholz, but that he
had done so many months before during a pretrial interview. Id. at 153. The
trial court found “that in the pressures attached to testifying and preparation
this was not an intentional conduct on behalf of the prosecutor or the witness.”
Id. at 154.
The next day, defense counsel presented the court with a curative
instruction that she had prepared. N.T. Jury Trial – Volume One, 5/3/16, at
286-87. At the close of testimony on the second day, the court delivered the
instruction as follows:
Yesterday you heard the testimony from Mr. Buchholz that
he took a lie detector test at or during the time of his interview
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with the Pittsburgh Police homicide detectives. It is recognized
that these tests and the results lack any established scientific
reliability, and they are deemed inadmissible in any court
proceeding because of their inherent [un]reliability. And that is
the law of the United States and this Commonwealth.
You are entirely to disregard Mr. Buchholz’s testimony and
references in that regard, and you may not draw any inferences
from that part of his testimony. Thus, you may not consider any
evidence regarding the test.
Determining the weight and credibility of Mr. Buchholz and
any witness is your function to be completed consistent with the
instructions that I have given you and I will give you at the
conclusion of this case.
Id. at 498-99. The trial court also instructed the jury how to evaluate witness
credibility in both its opening remarks and final charge. N.T. Jury Trial –
Volume One, 5/2/16, at 17; N.T. Jury Trial – Volume Six, 5/18/16, at 2526-
27.
In determining whether a reference to a polygraph test warrants a
mistrial, our Supreme Court has provided three factors that guide our
analysis: “(1) whether the Commonwealth prompted the reference to the
polygraph test; (2) whether the reference suggested the results of the
polygraph; and (3) whether the trial court issued prompt and adequate
instructions regarding the unreliability and inadmissibility of polygraph tests.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013). Next, we
assess the resulting prejudice, considering “whether such reference,
considered in the light of the circumstances of the case, cause[d] an inference
to arise as to the defendant’s guilt or innocence.” Id.- 21 -
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Appellant acknowledges that the prosecutor’s question did not
specifically refer to a polygraph test, but nonetheless alleges that the
prosecutor deliberately solicited this testimony anyway through his own
negligence. Appellant’s brief at 69-70. Further, he argues that one could
infer from Buchholz’s mention of the polygraph suggested that he had passed
it, because of the police actions that followed: namely, that law enforcement
quickly eliminated Buchholz as a suspect and directed their focus to Appellant.
Id. at 71. This inference was especially damaging, he argues, since the
primary defense strategy was to offer Buchholz as an alternative suspect.
Finally, he contends that the trial court’s failure to administer a curative
instruction to the jury until the end of the next day’s testimony, rather than
the beginning of the next day, was “too removed in time to rectify any
prejudice caused by the error.” Id. at 76.
In declining Appellant’s motion for a mistrial, the trial court relied on the
specific wording of the Commonwealth’s narrow question, and found that the
Commonwealth did not deliberately introduce the remark and that Buchholz’s
statement did not suggest a result. Trial Court Opinion, 5/9/18, at 43-45.
Also, significant to the court’s analysis was the fact that it offered to provide
a cautionary instruction immediately, which the defense rejected. Id. at 45.
We agree.
We note the following: “[n]ot every mention of a polygraph is prejudicial
or worthy of a mistrial.” Fortenbaugh, supra at 195. The reference was a
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brief, isolated incident that was not solicited by the prosecutor’s question. The
answer did not suggest the results of the polygraph examination, despite
Appellant’s attempt to construe Buchholz’s answer in light of testimony that
was elicited over the next sixteen days. The trial court promptly offered to
deliver a curative instruction, which the defense initially refused. When it was
subsequently requested to do so, the court delivered a thorough and accurate
instruction. Considering the circumstances, we find no abuse of discretion in
the trial court’s denial of a mistrial on this ground. Accordingly, no relief is
due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2019
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