Com. v. Johnson, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTONIO M. JOHNSON
Appellant No. 2271 MDA 2013
Appeal from the Judgment of Sentence November 18, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007270-2011
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 18, 2015
Antonio M. Johnson appeals from the judgment of sentence imposed
on November 18, 2013, in the Court of Common Pleas of York County. On
September 12, 2013, a jury found Johnson guilty of first-degree murder,
criminal conspiracy to commit first-degree murder, two counts of criminal
attempt to commit homicide, and two counts of aggravated assault.1 The
court sentenced Johnson to an aggregate term of life imprisonment without
the possibility of parole, plus 20 to 40 years’ incarceration. On appeal,
Johnson raises one issue, asserting the trial court erred in granting the
Commonwealth’s motion in limine, with respect to his expert witness,
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1
18 Pa.C.S. §§ 2502(a), 903(c), 901(a), and 2702(a)(1), respectively.
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Johnathan L. Arden, M.D. After a thorough review of the submissions by the
parties, the certified record, and relevant law, we affirm.
The facts and procedural history are as follows. On September 18,
2011, at approximately 4:30 a.m., Rudolph Mendoza, Darvin Allen, and
Johnson were in a car, driving back from a party in York, Pennsylvania.
Mendoza saw an individual, Angel Rengifo, with whom he apparently has an
acrimonious relationship, standing outside a residence located at 155 South
Queen Street. The three men agreed to “get”2 Rengifo, so they decided to
park the car one block away on Poplar Street and then walk down an
alleyway to a breezeway that cuts between the buildings located on South
Queen Street. Mendoza was observed carrying a .9-millimeter gun while
Johnson handled a .40 caliber firearm. As soon as Mendoza and Johnson got
out of the breezeway, they started firing the guns at two men standing
outside the residence, Rengifo and Brandon DeJesus.3 After being hit,
Rengifo and DeJesus ran into the home, and subsequently went to the
hospital. Rengifo was struck in the pelvis area and DeJesus was shot in the
abdomen. Both men survived and were released after receiving treatment.
During the shooting, Mendoza passed in front of Johnson and was
struck by a bullet fired by his co-conspirator. The bullet went in his shoulder
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2
N.T., 9/9/2013-9/12/2013, at 319.
3
Rengifo testified he did not have a weapon and he did not observe
DeJesus with a weapon. Id. at 146-147.
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and then through his neck. Mendoza and Johnson fled back through the
breezeway. Mendoza made his way to an empty lot, where he bled out as a
result of being struck by the bullet. Johnson went to Poplar Street, where
Allen was waiting, and handed him the .9-millimeter gun that Mendoza was
carrying. Officers from the York City Police Department responded to the
scene. They observed a blood trail and eventually found Mendoza, un-
responsive, in the lot. Johnson was subsequently arrested, and charged
with multiple offenses related to the shooting.
Prior to trial, Johnson’s counsel indicated that he would be calling
forensic pathologist, Dr. Arden, to testify on Johnson’s behalf. On August
29, 2013, the Commonwealth filed a motion in limine to preclude certain
testimony from Dr. Arden with respect to the position of the shooter relative
to Mendoza and as to the movements of Mendoza immediately prior to him
being shot. The Commonwealth argued the subject matter was beyond the
scope of the pathologist’s area of expertise for him “to determine the
position of a shooter relative to the victim” and “as to how an individual
would or should respond to gunfire.” Motion in Limine, 8/29/2013, at ¶¶ 6-
7.
The matter proceeded to trial on September 9, 2013. The
Commonwealth introduced its expert forensic pathologist, Marianne Hamel,
M.D. Dr. Hamel testified she did an autopsy of Mendoza and determined he
died of a gunshot wound to the left shoulder. See N.T., 9/9/2013-
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9/12/2013, at 293. She indicated the bullet entered the back of Mendoza’s
shoulder and then exited the front of his neck. Id. at 310 (“[T]he bullet
traveled back to front, left to right, and upward.”). After the
Commonwealth’s case-in-chief, a proceeding was held on September 11,
2013, with regard to Johnson’s motion in limine. The trial court granted the
Commonwealth’s motion, finding the topic of how Mendoza received the
gunshot wound was beyond Dr. Arden’s area of expertise, and was a
question for the jury sitting as the fact-finder. Id. at 411-417. At the
conclusion of the case, the jury returned a verdict on September 12, 2013,
finding Johnson guilty of first-degree murder (as to Mendoza based on
transferred intent),4 criminal conspiracy to commit first-degree murder
(Mendoza), two counts of criminal attempt to commit homicide (as to
Rengifo and DeJesus), and two counts of aggravated assault (as to Rengifo
and DeJesus).
On November 18, 2013, the court sentenced Johnson to a mandatory
term of life imprisonment without the possibility of parole for the murder
conviction, two terms of 20 to 40 years’ incarceration for the attempted
criminal homicide convictions, and two terms of five to 10 years’
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4
See Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006) (citing the
doctrine of transferred intent, 18 Pa.C.S. § 303(b)(1), pursuant to which
“the intent to murder may be transferred where the person actually killed is
not the intended victim”).
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imprisonment for the aggravated assault offenses.5 All sentences were
consecutive to the first-degree murder but concurrent to each other. This
timely appeal followed.6
In his sole issue, Johnson claims the trial court erred in granting the
Commonwealth’s motion in limine with respect to limiting trial counsel’s
questioning of his expert witness, Dr. Arden, as to his opinion that the bullet
trajectory and characteristics of Mendoza’s wound could have come from
“return fire” and not Johnson’s gun. Johnson’s Brief at 4. Specifically, he
states:
The trial court limited the scope of counsel’s inquiry of Dr. Arden
to opinions criticizing the Commonwealth’s expert’s autopsy
report. The trial court’s rationale was that opinions expressed in
Dr. Arden’s report about an alternate theory of “return fire,” if
presented to the jury, invaded the province of the jury as a fact-
finder and went beyond the scope of Dr. Arden’s expertise as a
forensic pathologist. However, Dr. Arden’s opinions were based
on facts in the record and his analysis of the bullet trajectory in
Mendoza’s body. Such testimony falls squarely into his area of
expertise as a forensic pathologist. The limitations, thus,
imposed by the trial court precluded [Johnson] from presenting a
legitimate alternate theory, resulting in an unfair trial.
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5
The court determined the conspiracy merged with the murder conviction
for sentencing purposes.
6
During this time, trial counsel filed a motion to withdraw, which was
granted. The trial court then appointed new counsel. On January 4, 2014,
the trial court ordered Johnson to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an
extension, Johnson filed a concise statement on February 10, 2014. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 7,
2014.
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Id. at 12. Moreover, he argues it is improper for a court “to so severely
limit the testimony of a defense expert that a defendant has no alternate
theory to pose to the jury.” Id. at 13. He states that while both Dr. Hamel
and Dr. Arden agreed Mendoza was killed by a bullet that entered his
shoulder, traveled left-to-right across his body and exited his neck, “[t]hey
differed in the theory of where the bullet came from.” Id. Johnson
contends he merely “wanted to pose hypotheticals to introduce” the
alternative theory of return fire. Id. at 14. He asserts, “Significant to Dr.
Arden’s analysis was the actual wound channel in Mendoza’s body being left-
to-right as opposed to front-to-back. This directly contradicts the
Commonwealth’s theory that Mendoza stepped in front of Johnson as
Johnson was firing.” Id. Johnson concludes, “Dr. Arden opining as to how
facts in the area of crime scene investigation impact his opinion as a forensic
pathologist is perfectly acceptable.” Id. at 15.
We begin with our well-settled standard of review:
When ruling on a trial court’s decision to grant or deny a
motion in limine, we apply an evidentiary abuse of discretion
standard of review. The admission of evidence is committed to
the sound discretion of the trial court, and a trial court’s ruling
regarding the admission of evidence will not be disturbed on
appeal “unless that ruling reflects ‘manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support to
be clearly erroneous.’”
Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010) (citations
omitted). Moreover,
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[t]he basic requisite for the admissibility of any evidence in a
case is that it be competent and relevant. Though ‘relevance’
has not been precisely or universally defined, the courts of this
Commonwealth have repeatedly stated that evidence is
admissible if, and only if, the evidence logically or reasonably
tends to prove or disprove a material fact in issue, tends to
make such a fact more or less probable, or affords the basis for
or supports a reasonable inference or presumption regarding the
existence of a material fact.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003) (citation
omitted). Likewise,
Pennsylvania courts permit expert testimony as an aid to the
jury when the subject matter is distinctly related to a science,
skill, or occupation beyond the knowledge or experience of the
average layman. Conversely, expert testimony is not permitted
on matters of common knowledge. Expert testimony may not be
used to bolster the credibility of witnesses because witness
credibility is solely within the province of the jury.
Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. 1997)
(citations and quotation marks omitted). See also Pa.R.E. 702.
Here, the trial court found the following:
In this case, Commonwealth witness Marianne Hamel, a Forensic
Pathologist Medical Examiner, testified that a Forensic
Pathologist specializes in the effects of trauma and diseases on
the human body, and performs autopsies and attempts to
determine the cause and manner of death.
Dr. Jonathan Arden is also a forensic pathologist, and
testified as an expert in that area. However, a portion of his
report goes outside his area of expertise. Specifically, in the last
paragraph of page four (4) and continuing onto page five (5) of
his report, Dr. Arden discusses “the implications of the evidence
from the shooting scene for the shooting scenario, namely how
Mr. Mendoza was shot.” In this discussion, he makes a factual
determination as to who was carrying what gun based on a
statement by “Mr. Allen,” speculates as to where Mr. Mendoza
was standing while he was shooting and what position he was in,
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and speculates where he would have gone after firing his
weapon. Dr. Arden then uses these factual determinations and
speculations to determine the origin of the bullet that killed
Rudolph Mendoza. Because these determinations are either
factual determinations to be made by the jury and/or are outside
the expertise of a forensic pathologist, the Trial Court properly
granted the Commonwealth’s Motion in Limine regarding Dr.
Arden’s report.
Trial Court Opinion, 3/7/2014, at 3-4 (record citations omitted).
The court’s rationale for limiting Dr. Arden’s testimony demonstrates
its decision was not an abuse of discretion. Dr. Arden testified forensic
pathology involves the investigation and certification of deaths, particularly
examining the effects of disease and/or injuries “in the form or the function
of the human body or its components.” N.T., 9/9/2013-9/12/2013, at 477.
In his expert report, Dr. Arden opined, in relevant part:
The final area to discuss is the implications of the evidence from
the shooting scene for the shooting scenario, namely how Mr.
Mendoza was shot. According to Mr. Allen, Mr. Johnson was
carrying the .40 caliber gun and Mr. Mendoza the 9 mm gun. An
analysis photograph provided to me indicated that the 9 mm
ejected casings were mostly located in the sidewalk and street
(close to the curb) in front of the windows of 149 S. Queen St.,
and the .40 caliber casings were mostly in the street in front of
147 S. Queen St. and the breezeway between 147 and 145 S.
Queen St. This indicates that the shooter using the .40 caliber
was closer to the breezeway that they eventually left through,
and the shooter using the 9 mm was on the sidewalk closer to
what they were shooting at (155 S. Queen St.). Note also that
the green plastic recycling container was on the sidewalk at the
curb of 149 S. Queen St., and that the blood trail starts on the
sidewalk in front of 149 S. Queen St., between the building and
the recycling container. The trajectory of the gunshot wound to
Mr. Mendoza was predominantly from his left to his right. If the
9mm shooter (purportedly Mr. Mendoza) were standing on the
sidewalk closer to the “target” area, his back would likely be
turned to the .40 caliber shooter, which does not place him in
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the proper relative positioning to be shot in his left shoulder and
have the bullet travel from his left to his right. Furthermore, if
he were standing on the sidewalk in front of the front windows of
149 S. Queen St. facing and firing toward 155 S. Queen St., the
front stairs and the stoop of 149 S. Queen [St.] would be behind
him, blocking his egress to the breezeway. If after firing he had
reason to exit or retreat, he would most likely turn to his right to
proceed along the sidewalk in front of 149 and 147 S. Queen St.
to get to the breezeway (because if he turned to his left he
would be facing into the building and would be positioned to
walk along the building and be blocked by the steps). If indeed
he did turn to his right to leave, he would then be presenting to
his left side to 155 S. Queen St. in such a way that gunfire
originating from 155 S. Queen [St.] (or that direction) would be
traveling in a direction to strike him in his left shoulder and
follow a course through his body predominantly to his right, as
was demonstrated by the autopsy and autopsy photographs.
He would also be positioned in the same area as the beginning of
the blood trail on the sidewalk, near the recycling container.
Therefore, the evidence is consistent with Mr. Mendoza having
been shot from returning fire from the direction of 155 S. Queen
St. while he was on the sidewalk in front of 149 S. Queen St.,
turning to his right to leave through the breezeway between 147
and 145 S. Queen St.
Report of Consultation, Re: PA v. Antonio M. Johnson (CCP, York Co., No.
CR-7270-2011), 3/29/2013, at 4-5.
Indeed, this “alternate theory” portion of Dr. Arden’s opinion is largely
based on speculation regarding Mendoza’s position during the shooting and
falls outside of the area of his expertise as a forensic pathologist. 7, 8
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7
As noted by the Commonwealth, this “expected testimony would likely be
akin to the testimony of a crime scene reconstructionist, which Dr. Arden is
not.” Commonwealth’s Brief at 6.
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Moreover, as indicated by the trial court, these factual/credibility
determinations are to be made by the jury sitting as the fact-finder. See
Johnson, supra. Accordingly, the trial court did not abuse its discretion in
limiting Dr. Arden’s testimony. Therefore, we conclude Johnson’s claim that
the trial court erred in granting the Commonwealth’s motion in limine fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
_______________________
(Footnote Continued)
8
We note that Johnson’s reliance on Commonwealth v. Jones, 327 A.2d
10 (Pa. 1974), to demonstrate an expert may pose an alternate theory is
misplaced. In Jones, the Pennsylvania Supreme Court held that psychiatric
expert testimony as to the defendant’s below normal mental capacity was
admissible in determining the voluntariness of his confession. Id. at 13.
Here, Dr. Arden’s testimony regarding Mendoza’s location and movements
during the shooting was outside the scope of his forensic pathologist
expertise.
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