Com. v. Shaffer, K.

J-S56021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KYLE W. SHAFFER
Appellant No. 72 MDA 2014
Appeal from the Judgment of Sentence of December 17, 2013
In the Court of Common Pleas of Columbia County
Criminal Division at No.: CP-19-CR-0000443-2012
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 23, 2014
Kyle Shaffer appeals the December 17, 2013 judgment of sentence.
We affirm.
morning one-vehicle accident that resulted in the
passenger, Russell Hack. As the alleged driver of the vehicle, Shaffer was
1
homicide by vehicle,2
homicide by vehicle while DUI,3 and various summary offenses.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. § 3802(b).
2
75 Pa.C.S. § 3732.
3
75 Pa.C.S. § 3735.
J-S56021-14
Prior to trial, Shaffer filed a motion in limine seeking to prohibit the
Commonwealth from introducing forty-nine graphic photographs that were
taken after the truck was removed from the original location of the accident.
During the accident, Shaffer, while driving at a high rate of speed, failed to
negotiate a turn in a road. The truck went over an embankment, and came
to rest on its roof. The truck was towed up a hill before being flipped over
onto its tires. This was done while the deceased victim was still inside of the
vehicle. Shaffer contended that, because moving the truck altered the
to the issue of guilt, which rendered the photographs overly prejudicial. On
November 5, 2013, the trial cour
conclusion of the hearing, the trial court denied the motion.
On the same day, the parties and the trial court began jury selection.
During selection, one prospective juror expressed her discomfort with
observing graphic photographs:
water or something like that, I have no problem. . . . I just want
you to be aware that I might need something like that.
she was placed on the jury and became juror number twelve. Shaffer did
not object to juror number twelve being selected as a competent juror.
Trial began on November 13, 2013. When photographs of the accident
and the victim were displayed during the trial, juror number twelve became
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squeamish, and did not look at a significant amount of the photographs.
During a break in the testimony, the following exchange occurred between
juror number twelve:
THE COURT:
counsel right now. And I noted during
the entire time the photographs were
shown that juror No. 12, [], did not look
at the photos save for a couple of the
collision photographs which she glanced
at. But the great majority of the
photographs she was just staring at
Trooper [Todd] Tolan listening to him
and looking at him. I made a point of
keeping an eye on her and she missed a
lot of the photographs, particularly the
one
where his leg was stuck in there.
[DEFENSE COUNSEL]:
THE COURT:
Everybody else was, by the way.
[DEFENSE COUNSEL]: Should we just confirm that with her and
I would not object to her being struck for
cause.
THE COURT: Should we do that?
[DEFENSE COUNSEL]:
THE COURT: No, I think we should have a talk with
her definitely.
[DEFENSE COUNSEL]: My guess, she will probably confirm,
through.
THE COURT: I think she was very uncomfortable
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conference room or someplace back
there and talk to her.
(Whereupon , Juror No. 12 [] was brought into Chambers.)
BY THE COURT:
Q.
pictures?
A.
Q. You got to look at the pictures.
A. I tried.
Q.
A.
Q. I noticed you were having a tough time with it and I
thought you were having a tough time with this.
A.
Q. I know you could be fair but the fairness we were
but you said you would be fair and honest.
A.
Q. But the issue was I think looking at the photos.
A.
Q. Some people have a tough time doing that.
A. I told [the jury selection judge] when they were picking
floor. It gets me too worked up. I tried to look. I glanced
and kept my head down.
Q. I could tell there were some you would glance at and most
of them
A.
Q.
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A. I tried to listen to what he was saying as far as the gist of
it.
[DEFENSE COUNSEL]:
them more.
Juror 12: Let me calm down.
(Whereupon, Juror No. 12 was excused from further service.)
N.T., 11/13/2013, at 222-24. Notably, defense counsel did not object, nor
did he explicitly acquiesce further, to the exclusion of juror number twelve
and the replacement of her with an alternate juror.
The trial court summarized the basic facts that were presented to the
jury as follows:
[Shaffer] and the victim were out drinking one evening. In the
early morning hours[,] the victim and [Shaffer] were traveling
that time[, Shaffer] was driving and the victim was in the
passenger seat. [Shaffer] allege[d] that he changed seats with
the victim and that the victim was driving. Shortly thereafter,
the vehicle failed to negotiate a turn (speeding) and landed on
its roof over an embankment. [Shaffer] got out of the vehicle.
When the police arrived, the victim was trapped and hanging
upside down in the passenger seat. He was deceased.
that established the above general factual scenario, the Commonwealth also
presented testimony from Trooper Tolan, who testified as an expert in
collision analysis and accident reconstruction. Trooper Tolan testified that
r at the
time of the accident. Moreover, based upon his analysis of the location of
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state of the vehicle after the crash, Trooper Tolan opined that Shaffer had
been the driver of the vehicle at the time of the crash.
At the close of evidence, the jury found Shaffer guilty of all of the
above-referenced charges. Additionally, the trial court found Shaffer guilty
of the summary offenses. On December 17, 2013, the trial court sentenced
Shaffer to an aggregate sentence of forty to ninety-
imprisonment.
On January 7, 2014, Shaffer filed a notice of appeal. On January 9,
2014, the trial court directed Shaffer to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following one
request for an extension of time, Shaffer timely filed a concise statement on
February 25, 2014. On February 28, 2014, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).
Shaffer raises the following four issues for our consideration:
I. Whether the trial court erred when it unilaterally excused
juror number twelve at the end of the first day of trial
without good cause and without any competent evidence
of her inability to continue to serve as a juror?
II.
juror substitution process was prejudicially erroneous?
III.
motion in limine to preclude the introduction of certain
photographs of the vehicle that were taken after the
vehicle had been removed from its resting place where
these photographs were misleading, irrelevant and their
probative value was substantially outweighed by the
prejudice?
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IV. Whether the evidence presented to support the charges
was insufficient because it failed to establish that Shaffer
was the individual operating the vehicle at the time of the
accident?
Brief for Shaffer at 4.
pertaining to the removal and replacement of juror number twelve. Hence,
we consider them in tandem. However, we do not reach the merits of either
claim, because Shaffer has waived both challenges for failure to object to the
It is both a bedrock and axiomatic principle in appellate jurisprudence
foundational tenet most recently in Commonwealth v. Akbar, 91 A.3d 227
(Pa. Super. 2014):
Preliminarily, we observe that to preserve a claim of error for
appellate review, a party must make a specific objection to the
alleged error before the trial court in a timely fashion and at the
appropriate stage of the proceedings; failure to raise such
objection results in waiver of the underlying issue on appeal.
Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super.
2011); Commonwealth v. Shamsud Din, 995 A.2d 1224 (Pa.
Super. 2010). See also Commonwealth v. Arroyo, 723 A.2d
162, 170 (Pa. 1999) (explaining if ground upon which objection
is based is specifically stated, all other reasons for its exclusion
are waived).
Akbar, 91 A.3d at 235.
We have reviewed the record in this case thoroughly, and have found
that Sha
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twelve, or the process that the trial court utilized to replace that juror.4 In
his reply brief, Shaffer seeks to overcome waiver by maintaining that the
e truth that trial counsel did not concur in the
Id. at 5. However, Shaffer does not point to one
location in the trial record where he actually objected or opposed the trial
manifestly is not the same as lodging an objection to that action. Our
jurisprudence and rules of procedure require parties to formally announce a
properly may be contested on appeal.5 Here, Shaffer did not object,
explicitly or implicitly, after the trial court removed juror number twelve, nor
did Shaffer object to any procedure utilized by the trial court in doing so and
____________________________________________
4
Regarding the replacement process, Shaffer argues that the process
was flawed constitutionally and procedurally, inter alia: (1) because he was
not present during the questioning of juror number twelve; (2) because he
was not given adequate opportunity to question her; and (3) because the
alternate juror was not adequately apprised that her role had changed from
alternate to primary juror. Again, Shaffer raised none of these objections
first before the trial court. Thus, they are waived.
5
Our rules also require parties to identify in their appellate brief the
precise location in the record where that party objected or contested an
action or ruling. See Pa.R.A.P. 2117(c). Conspicuously, Shaffer has not
complied with this rule.
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waived.
In his third issue, Shaffer argues that the trial court erred by denying
his motion in limine, and subsequently permitting the Commonwealth to
introduce at trial many photographs of the damaged truck and the victim
that were taken after the truck had been winched up from the embankment
and flipped
and the inevitable movement of the lifeless body of the victim after it was
pulled up the hill and flipped over were starkly different than that at the time
of the accident and were simply m
at 21. Because the only issue in the case was who was driving the car at the
time of the accident, Shaffer also maintains that showing photographs
ipped over
were overly prejudicial. We disagree.
Commonwealth
v. Ogrod, 839 A.2d 294, 334 (Pa. 2003) (citing Commonwealth v. Baez,
merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super.
2012) (citing Commonwealth v. Brougher, 978 A.2d 373, 376 (Pa. Super.
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fact
in the case, tends to make a fact at issue more or less probable or supports
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012).
luded if its probative value is
Id.
The photographs that were admitted at trial are contained in the
certified record, and we have reviewed them extensively. Although a few of
blood, Shaffer does not contest their admission based upon their gruesome
nature. Rather, Shaffer argues that they were irrelevant and misleading
because they were taken after the vehicle had been moved and flipped over.
However, the fact that the pictures were taken after the vehicle had been
moved, and with the body still inside the vehicle, does not render the
photographs per se irrelevant. As noted by Shaffer, the central issue in this
case was whether Shaffer or the victim was driving the vehicle at the time of
the accident. The photographs clearly were relevant to this issue.
The photographs depict not only the damage done to the vehicle, but
the body may
have shifted slightly during the process of moving the vehicle, the pictures
passenger side, with his derriere on the passenger seat. See
-5G, C-5H, C-5D, and C-5E. Moreover, in one of
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the pictures, the victim is holding in his right hand a handle that is typically
affixed to the roof of the interior of a vehicle that was broken off in the
accident. See -5H. Although not conclusive, the
fact that the victim was holding the handle in his right hand is suggestive
that he was sitting in the passenger seat at the time of the accident. Finally,
the pictures of the vehicle demonstrate that the most significant damage to
the vehicle was on the passenger side. The passenger side was crushed
from the top, supporting the premise that whoever was sitting on the
passenger side would be pinned to that location by the damage. See
-5A.
These pictures clearly were relevant to the issue of who was driving
the vehicle at the time of the accident. The jury also knew that they were
taken after the vehicle was moved. The fact that the pictures were taken
after the vehicle was moved, in this case at least, affects the weight
assigned to the photographs by the jury, but does not render them per se
inadmissible or irrelevant. For the preceding reasons, the photographs were
neither irrelevant nor overly prejudicial. Hence, the trial court did not abuse
its discretion by denying in limine or by admitting the
photographs at trial.
In his final issue, Shaffer argues that the evidence presented at trial
was insufficient to prove beyond a reasonable doubt that he was the driver
of the vehicle. We disagree.
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When reviewing challenges to the sufficiency of the evidence, our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations
omitted). Further, in viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, the court must give the prosecution
the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
Shaffer was convicted of DUI, homicide by vehicle, and homicide by
vehicle while DUI. Shaffer contends that the proof for each of these crimes
was insufficient because the Commonwealth failed to prove that he was
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driving the vehicle at the time of the accident. Viewed in the light most
favorable to the Commonwealth, the evidence proves otherwise.
First, the photographic evidence depicts the victim pinned in the
passenger side of the vehicle with his legs under the dashboard and his
derriere in the passenger seat. Second, the medical reports presented by
the Commonwealth at trial demonstrate that Shaffer had blood on the
outside of his clothing that did not come from him, and was only present on
the right side of his body. In other words, drawing all reasonable inferences
use, if he was in the passenger
not the right. Finally, and most importantly, based upon the damage to the
ody,
Trooper Tolan, an expert in collision analysis and accident reconstruction,
opined that Shaffer was the driver of the vehicle and that the victim was the
passenger at the time of the accident. This evidence was sufficient to
demonstrate that Shaffer was the driver of the vehicle beyond a reasonable
doubt.
belief that the jury should have believed his testimony that he and the victim
switched places after dropping off the third member of their party, and upon
challenging other credibility determinations reached by the jury. However, a
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Commonwealth v. Gibbs,
981 A.2d 274, 281 82 (Pa. Super. 2009).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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