Com. v. Martin, M.

J-S37021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ANTHONY MARTIN,
Appellant No. 1371 WDA 2015
Appeal from the Judgment of Sentence May 22, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003982-2013
BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 22, 2016
Appellant, Michael Anthony Martin, appeals from the judgment of
sentence entered following his conviction of first degree murder. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
FACTUAL HISTORY
The charges in this case arose from the stabbing death of
Earl Weygandt, whose body was located on August 7, 2013 in a
Jeep Grand Cherokee parked on the berm of Pennsylvania Route
31 in Donegal Township, Westmoreland County. The
Pennsylvania State Police discovered Mr. Weygandt’s body after
they received a report that the vehicle was on fire and that
someone appeared to be inside. The evidence presented at trial
established that on August 7, 2013, State police arrived at the
scene, and a preliminary investigation was conducted. After
identifying the victim, the police were dispatched to 3 Daily
Avenue in Charleroi, the residence of Mr. Weygandt’s wife. Their
daughter, Jeannie Lynn Martin and her husband, [Appellant],
lived in the basement in Mrs. Weygandt’s home. Mr. Weygandt
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lived alone in a camper that was parked at the Roaring Run
Resort. Upon arrival, Pennsylvania State Police Trooper Isaac
Lanham began questioning Mr. Weygandt’s wife, his
stepdaughter, and [Appellant]. (Trial Transcript “TT” 1/5/15-
1/9/15; 1/12/15 295). At trial, Trooper Lanham testified that
[Appellant] relayed to him that on August 7, 2013, he was doing
an electrical job in Uniontown and that he had arrived at the
residential job site at approximately 1:00 p.m. with a man by
the name of Mike Russo. (TT 302-303). [Appellant] told
Trooper Lanham that he and Mr. Russo worked there until about
8:00 pm. (TT 304). Trooper Lanham testified that [Appellant]
related that due to his driver’s license being suspended, he and
Mr. Russo took the long way home. (TT 305). [Appellant]
described his route as having driven through the City of
Uniontown, accessing State Route 40, then driving eastbound on
Route 40 to Ohio Pyle, which took him to State Route 31. (Id.)
Trooper Lanham testified that [Appellant] indicated that he made
it to Mount Pleasant but reported that his car broke down.
[Appellant] then told Trooper Lanham that he called Mr.
Weygandt at 9:25 p.m. to ask for a ride or a jump. (TT 306.)
[Appellant] said that while he was waiting for Mr. Weygandt,
someone came and picked Mr. Russo up and took him to
Monessen. Additionally, [Appellant] told Trooper Lanham that
eventually his friend, Jeff Ritenour, came and jumped his car
battery and he drove back to Charleroi. (TT 305-307).
State police later interviewed Mr. Russo and Mr. Ritenour
about the incident. Initially, both Mr. Russo and Mr. Ritenour
confirmed [Appellant’s] account. Later in the day, State Police
questioned Mr. Russo and Mr. Ritenour a second time; during
the second interview, [b]oth Russo and Ritenour indicated that
[Appellant] came to them and asked them to cover for him. Mr.
Ritenour testified that he initially lied to the police and said that
[Appellant] was at his home on the night of the incident, but
when they questioned him a second time, he told them that
[Appellant] did not stay at his house. (TT 419-422).
After acquiring this information, the state police
questioned [Appellant] a second time; however, [Appellant]
maintained his story. (TT 620). Trooper Lanham then asked
[Appellant] if he would come to the state police barracks in
Greensburg for further questioning, and he complied. (TT 625).
At trial, evidence was introduced in the form of an audio visual
recording of a statement that [Appellant] gave to the police in
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which he confessed to stabbing Mr. Weygandt. (TT 610, 629).
[Appellant] argued that he was acting in self-defense. The
record revealed that Mr. Weygandt was stabbed a total of nine
times. Matthew Zevoteck, the security guard at Roaring Run
where Mr. Weygandt lived testified to a prior incident on August
5, 2013. Mr. Zevoteck testified that Mr. Weygandt called the
security guard to report that someone was banging on his door
and windows. Mr. Zevoteck drove up to Mr. Weygandt’s lot and
found [Appellant] sitting at the picnic table on Mr. Weygandt’s
trailer lot saying that his car had broken down. (TT 225-247).
Glenn Bard, the Chief Technical Officer of PATCtech
testified that he reviewed three sets of cell phone records that
had been obtained by investigators during the investigation. (TT
529). Mr. Bard testified that he reviewed the pinging of Mr.
Weygandt’s and [Appellant’s] cell phones and was able to
determine communication between the two cell phones and the
locations of each cell phone during the incident. (TT 529-554).
[Appellant] elected not to testify at trial.
PROCEDURAL HISTORY
On or about August 8, 2013, [Appellant] was arrested and
charged with Criminal Homicide and Murder of the First Degree.
After the preliminary hearing, the First Degree Murder Charge
was held for court, and the Criminal Homicide charge was
amended to Murder of the Third Degree. [Appellant] was
charged as follows:
1. Count One: Murder of the First Degree, in
violation of 18 Pa.C.S.A. § 2502(a).
2. Count Two: Murder of the Third Degree, in
violation of 18 Pa.C.S.A. § 2502(c), 1st degree
felony.
On January 5, 2015, [Appellant] proceeded to a jury trial
before this [h]onorable [c]ourt. During trial, [Appellant] was
represented by Attorney Brian Aston. Testimony began on
January 5, 2015 and lasted until January 9, 2015. On January
12, 2015, the jury returned a verdict of guilty of murder of the
first degree. On March 26, 2015, [Appellant] was sentenced at
Counts One and Two to a mandatory sentence of life in prison
without the possibility of parole at a State Correctional
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Institution. On March 27, 2015, [Appellant] timely filed Post-
Sentence Motions. On March 31, 2015, Mr. Aston withdrew as
counsel, and on the same date, this Court appointed Attorney
Tim Andrews to represent [Appellant]. On May 22, 2015, this
Court entered an order amending the sentence dated March 26,
2015 to reflect that [Appellant] was convicted [and sentenced]
on Count One alone. One June 23, 2015, [Appellant] filed
Amended Post-Sentence Motions. A hearing on the Post-
Sentence Motions was held on August 18, 2015, and all Post-
Sentence Motions were denied. On August 31, 2015, [Appellant]
filed a timely Notice of Appeal to the Superior Court. On
September 14, 2015, this Court received the docketing
statement from the Superior Court accepting the appeal.
Trial Court Opinion, 11/3/15, at 1-4. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
I. DID THE TRIAL COURT ERR IN PERMITTING THE
INTRODUCTION OF MULTIPLE AUTOPSY PHOTOGRAPHS WHEN
THEY WHERE [sic] OF LITTLE TO NO PROBITIVE [sic] VALUE
GIVEN THE ADMISSION OF THE DEFENDANT AND THE OTHER
EVIDENCE?
II. DID THE TRIAL COURT ABUSE IT’S [sic] DISCRETION IN
DETERMINING THAT THE VERDICT OF THE JURY WAS NOT
AGAINST THE WEIGHT OF THE EVIDENCE IN THAT THE JURY
FAILED TO GIVE ANY WEIGHT TO SIGNIFICANT EVIDENCE OF
SELF-DEFENSE?
Appellant’s Brief at 4.
Appellant first argues that he is entitled to a new trial because the trial
court erred in admitting certain photographs into evidence. Appellant’s Brief
at 9-13. Specifically, Appellant contends that the photographs of the
victim’s autopsy were inflammatory and graphic and would have so inflamed
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the minds of the jurors that they would not be impartial with regard to
Appellant’s claim of self-defense.
Before addressing the merits of Appellant’s claim, we must determine
whether Appellant properly has preserved the issue for our consideration. It
is well settled in Pennsylvania that a party must make a timely and specific
objection at trial in order to preserve an issue for appellate review.
Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo, 641 A.2d 1176,
1185 (Pa. Super. 1994) (citation omitted) (“In order to preserve an issue for
review, a party must make a timely and specific objection at trial”). Failure
to do so results in waiver of that issue on appeal. See Pa.R.A.P. 302(a).
With respect to preserving challenges to the admission or exclusion of
evidence, Pa.R.E. 103 addresses rulings on evidence and requires a
contemporaneous objection in order to preserve a claim of error in the
admission of evidence and provides, in relevant part, as follows:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
(B) states the specific ground, unless it was apparent
from the context. . . .
Pa.R.E. 103(a). However, Pa.R.E. 103 further provides that once the trial
court enters a definitive ruling on the record, either before or during trial,
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“a party need not renew an objection or offer of proof to preserve a claim of
error for appeal.” Pa.R.E. 103(b).
Our review of the certified record reflects that the Commonwealth
called Trooper Richard Nuttall of the Pennsylvania State Police to testify
regarding his responsibility of attending the autopsy of the victim performed
by Doctor Cyril Wecht. N.T., 1/5-12/15, at 472-493. Trooper Nuttall
testified that part of his purpose in attending the autopsy was to take
photographs as it was performed. Id. at 473. Before the Commonwealth
even began questioning the trooper about the photographs or attempted to
introduce the photographs into evidence, defense counsel requested to
approach the court, and a sidebar was conducted. Id. at 475. At the
sidebar, defense counsel argued that the photographs, marked as
Commonwealth Exhibits 39 through 49, were overly graphic and that it
would be prejudicial and inflammatory to introduce them into evidence. Id.
at 475-476. After the trial court dismissed the jurors, Appellant’s counsel
made the following argument to the trial court:
Your Honor, I do concede that there is a jury instruction wherein
the jury can infer intent to kill whenever a deadly weapon is
utilized on a deadly part of the body. I don’t believe that it’s
necessary to show them graphic photos of an injury that was
inflicted by a knife when you can say he was stabbed in the
chest that pierced his heart, he was stabbed in the side of the
neck and his trachea was severed. I mean, the jury understands
those are vital parts of the body. This is about whether or not
it’s absolutely necessary to show the jury this evidence or
whether it’s overly inflammatory. And I believe that there’s less
inflammatory ways for the Commonwealth to be allowed to make
their argument.
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Id. at 479-480.
The trial court then took a brief recess to review the photographs in
question. Id. at 480. The proceedings then reconvened in the judge’s
chambers, and the trial judge specifically went through each of the
photographs in question and discussed his determination regarding their
admissibility. Id. at 480-486. Indeed, the trial court reconvened with the
following comment:
I’ve reviewed the pictures, and I do agree with [the District
Attorney] that the jury is entitled to see the pictures. However,
it doesn’t make sense to show them duplicates of the pictures.
So I’m going to limit the photographs, and I’m going to need
your help to tell me what some of these pictures of the vital
organs are exactly because I think they’re duplications.
Id. at 480-481. Subsequently, the trial judge and the District Attorney
reviewed each photograph on the record, and the trial court specifically
excluded Commonwealth Exhibits 39, 40, 46, and 47. Id. at 481-486. The
trial court permitted the remaining photographs to be shown to the jury. At
no time did Appellant’s counsel make any objection regarding the trial
court’s evidentiary determination with regard to particular photographs.
Thereafter, the proceedings reconvened in the courtroom before the
jury, at which time Trooper Nuttall was presented with Commonwealth
Exhibits 38, 41, 42, 43, 44, 45, 48, and 49. Id. at 488. Specifically, the
following transpired:
[District Attorney]: Do [the photographs] show the injuries to
[the victim] as well as the damage that was done to his clothing?
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[Trooper Nuttall]: That is correct.
[District Attorney]: And are they fair and accurate depictions of
his physical injuries as well as his clothing?
[Trooper Nuttall]: Yes.
[DISTRICT ATTORNEY]: Your Honor, I’d move to
admit those exhibits.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: No objections.
THE COURT: They are admitted.
Id. at 488-489 (emphasis added).
We conclude that, although he lodged an anticipatory objection prior to
the Commonwealth presenting the photographic exhibits to the witness,
Appellant’s counsel failed to make a timely and specific objection to the
photographs at the time that they were actually moved for admission.
Accordingly, while it might have been prudent for defense counsel to make
an anticipatory objection before the evidence was admitted, we are left to
conclude that his statement of “No objections” when prompted by the trial
court resulted in waiver of this issue for appellate review.1
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1
We further note that after Appellant was afforded some relief, i.e., through
the exclusion of certain photographs and the fact that the trial court directed
the victim’s face be covered in particular photographs, Appellant still failed
to raise an objection.
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Furthermore, even if this issue had not been waived, we would
conclude that it lacks merit. As a panel of this Court observed in
Commonwealth v. Hetzel, 822 A.2d 747, 765 (Pa. Super. 2003), “[t]he
viewing of photographic evidence in a murder case is, by its nature, a
gruesome task.” In Commonwealth v. Robinson, 864 A.2d 460 (Pa.
2004), our Supreme Court aptly summarized the law to be applied in these
circumstances as follows:
It has been a steadfast principle of our jurisprudence that
pictures of the victim are not per se inadmissible. In relation to
admissibility of these photographs, we have promulgated the
following test:
[A] court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has
relevance and can assist the jury’s understanding of
the facts. If the photograph is inflammatory, the
trial court must decide whether or not the
photographs are of such essential evidentiary value
that their need clearly outweighs the likelihood of
inflaming the minds and passions of the jurors. If an
inflammatory photograph is merely cumulative of
other evidence, it will not be deemed admissible.
“The admissibility of photos of the corpse in a homicide case is a
matter within the discretion of the trial court, and only an abuse
of discretion will constitute reversible error.” As we also
explained . . . :
A criminal homicide trial is, by its very nature,
unpleasant, and the photographic images of the
injuries inflicted are merely consonant with the
brutality of the subject of inquiry. To permit the
disturbing nature of the images of the victim to rule
the question of admissibility would result in exclusion
of all photographs of the homicide victim, and would
defeat one of the essential functions of a criminal
trial, inquiry into the intent of the actor. There is no
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need to so overextend an attempt to sanitize the
evidence of the condition of the body as to deprive
the Commonwealth of opportunities of proof in
support of the onerous burden of proof beyond a
reasonable doubt. Further, the condition of the
victim’s body provides evidence of the assailant’s
intent, and, even where the body’s condition can be
described through testimony from a medical
examiner, such testimony does not obviate the
admissibility of photographs.
Robinson, 864 A.2d at 501-502 (citations omitted).
The trial court addressed this issue as follows, which we adopt as our
own:
During a sidebar, the Commonwealth moved to admit
twelve autopsy photographs of Earl Weygandt. [Appellant’s]
counsel objected to the admissibility arguing that the
photographs were “overly graphic” and “overly prejudicial and
inflammatory.” (TT 475-476). The trial court carefully
considered the photographs and took great lengths in limiting
and minimizing any prejudicial effect to [Appellant]. Exhibits 39,
40, …, 46, and 47 were excluded due to duplication or their
inflammatory nature. Exhibits 38, 41, [42,] 43, 44, 45, 48, and
49 were admitted with the limitation that the Commonwealth
was required to redact the decedent’s face in the photographs.
This was done to, both, preserve the dignity of the victim and to
reduce prejudice to [Appellant]. (TT 473-436). The remaining
photographs or portions of photographs clearly demonstrated
essential evidentiary value. Namely, Trooper Richard Nuttall
testified that he took the photographs at the autopsy, and he
described the injuries that the decedent sustained. (TT 488-
492). The forensic pathologist, Dr. Cyril Wecht, also testified
relative to the exhibits. Dr. Wecht testified to the procedure of
how an autopsy is conducted. (TT 582-583.) Additionally, Dr.
Wecht used some of the photographs to more specifically explain
the nature of the victim’s injuries to the jury. (TT 586-604).
These photographs were properly admitted, and [Appellant] is
not entitled to a new trial on this basis.
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Trial Court Opinion, 11/3/15, at 6. Thus, on the basis of the analysis stated
above and our review of the photographs, which we have not found to be
inflammatory, we conclude that Appellant’s claim lacks merit.
In his second issue, Appellant argues that the trial court erred in
failing to grant his motion for a new trial based on the weight of the
evidence. Appellant’s Brief at 14-15. Specifically, Appellant contends that
the verdict reflects that the jury ignored evidence that he was acting in self-
defense at the time of the murder.
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
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-[7]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
A.2d 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:
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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-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
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Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
The jury, sitting as the finder of fact, chose to believe the evidence
presented by the Commonwealth and to disregard the evidence of self-
defense presented by Appellant, as was its right. The trial court aptly
explained:
Based upon this Court’s review of the entire record, this
Court does not find that the jury’s verdict is so contrary to the
evidence as to shock this Court’s sense of justice. The jury was
certainly capable of determining whether to believe all, part, or
none of the evidence with respect to whether the Commonwealth
met its burden and to determine the credibility of each witness.
In the present case, this Court finds that all of the evidence that
the jurors had available them was overwhelmingly in support of
the verdict rendered. Through the duration of the trial, the
jurors considered the following testimony: Trooper Lanham who
testified that [Appellant] drove entirely out of the way to get
back home on August 7, 2013; the testimony from Trooper
Lanham and Mr. Ritenour who testified that [Appellant] asked
Mr. Russo and Mr. Ritenour to lie for him; [Appellant’s] recorded
confession; Mr. Bard’s testimony regarding cell phone pinging;
and Mr. Zevoteck’s testimony that showed that [Appellant]
attempted to lure Mr. Weygandt out on a prior occasion. It is
the opinion of this Court that all of these relevant facts clearly
support the jury’s finding that [Appellant] acted willfully,
deliberately and with premeditation in bringing about the death
of Mr. Weygandt. Accordingly, it is the opinion of this Court that
the jury’s verdict was not against the weight of the evidence and
that the verdict should stand.
Trial Court Opinion, 11/3/15, at 7. Thus, we decline Appellant’s invitation to
assume the role of fact finder and reweigh the evidence. Accordingly, we
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conclude that the trial court did not abuse its discretion in determining that
Appellant’s weight of the evidence claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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