Commonwealth v. Konias

J-S04001-16
2016 PA Super 68COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH JOHN KONIAS, JR.,
Appellant No. 881 WDA 2014
Appeal from the Judgment of Sentence February 18, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007539-2012
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED MARCH 18, 2016
Kenneth John Konias, Jr. appeals from the judgment of sentence of life
imprisonment for first-degree murder, and a consecutive sentence of ten to
twenty years imprisonment for robbery, imposed on February 18, 2014,
after a nonjury trial. We affirm.
Appellant’s convictions arose from an incident on February 28, 2012,
when Michael Haines died as a result of a gunshot wound to the back of the
head. Appellant admitted to shooting Mr. Haines, but maintained he acted
in self-defense. The Commonwealth’s evidence in support of Appellant’s
convictions was as follows. In February 2012, Appellant was employed as an
armored truck driver for Garda Cash Logistics (“Garda”). On February 28,
2012, Appellant was assigned to work with the victim, Michael Haines, an
*
Retired Senior Judge assigned to the Superior Court.
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individual with whom he had never worked prior to that day. The two men
were assigned to Truck 5678, and responsible for a route that included stops
at Rivers Casino, the Ross Park Mall Home Depot, and JC Penney, among
other locations.
Truck 5678 was separated into three compartments. Located at the
front of the truck was a driver's area. This area was accessible only from
the exterior driver-side door. The driver’s area was composed of one seat
and a waist-high flat area extending to the right-hand side of the truck, so
there was no passenger seat. Directly behind the driver’s seat, a sliding
door separated the driver's area from the hopper, the intermediate area of
the truck. A portion of the door, which slid open to rest behind the driver,
extended approximately four inches into the doorway.
The hopper area, where the victim was seated, contained one chair
located on the right-hand side of the vehicle. Adjacent to the hopper chair,
another waist-high flat area extended to the left side of the truck.
Numerous United States postal bins, which Garda utilized to separate
various items within the truck, were upright and neatly organized on top of
this flat area. The hopper area was accessible only from the exterior via a
door on the right side of the vehicle. The final truck compartment, which
was the storage area, was separated from the hopper area by a metal fence.
That area could only be accessed from the rear doors on the truck.
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On the day in question, Appellant and Mr. Haines arrived early at each
stop along their assigned route. Appellant and the victim collected and
scanned bags of money, printing out a receipt for each customer directly
from the scanner. The hand-held scanner employed by Appellant and the
victim hung in a charger located on the wall of the hopper area of the truck.
On this particular day, after scanning each bag, Appellant placed the bags of
money in the hopper area of the truck rather than in the rear storage area,
as was customary.
Following the pick-up at the Ross Park Mall Home Depot, Appellant’s
truck pulled to a stop and parked in the lot for approximately three minutes.
During this time, Appellant shot the victim in the back of the head at close
range with a .9 millimeter handgun. Shortly thereafter, the truck exited the
parking lot, traveling toward McKnight Road. Surveillance cameras stationed
along McKnight Road recorded Appellant’s truck driving towards downtown
Pittsburgh.
Appellant drove the truck toward Garda’s headquarters, parking it
under the Thirty-First Street Bridge with the victim’s body still facing the
rear of the truck in the step-down portion of the hopper area. Appellant
traveled by foot to the Garda parking lot, retrieved his personal vehicle, and
returned to the truck. Upon returning, Appellant loaded his personal vehicle
with $2,323,252 from the hopper area of the truck. He placed paper towels
in the step-down area of the hopper to soak up the victim’s blood, activated
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the vehicle’s four-way flashers, left the engine running, and locked the truck
before fleeing the scene. The truck was eventually located by a Garda
employee around 4:30 p.m., and thereafter, Pittsburgh Police Detective
Ryan Rable arrived at the scene.
Upon his arrival, Detective Rable met with several Garda employees.
He and Detective Margaret Sherwood, together with several other officers,
inspected the vehicle. Mr. Haines was deceased by the time the truck was
discovered by Garda employees. Furthermore, U.S. postal bins situated
inside the hopper area were upright, exhibiting no signs of damage. 1 In
addition, the victim was found with his uniform shirt tucked in and buttoned.
Finally, his identification badge was still in its plastic holder, clipped to his
left pocket, and attached to a breakaway cloth lanyard.
An examination by the forensic biologist found no tears or separations
on the victim’s shirt. The victim’s pants also showed no signs of tearing or
separation. An examination by the forensic pathologist noted the cause of
the victim’s death was a single gunshot wound to the back of the head. The
victim sustained no further injuries, abrasions, bruises, or scratches. No
signs of a struggle were observed inside the truck.
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1
Testimony makes clear that, during transport of the truck to a nearby
garage, a single postal bin situated upon the hopper chair tipped, causing
items to fall onto the victim.
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Following his flight from the truck, Appellant returned home, removed
his blood-stained, Garda-issued jacket containing a .9 millimeter shell
casing, showered, and stashed portions of the money stolen from the truck
at various locations in and around the Pittsburgh area for his friends and
family to recover. Specifically, Appellant left $24,000 in a bag at his
grandmother’s gravesite, $252,000 in a bag under his father’s vehicle, and
$10,000 in a work boot located on the porch of a friend’s residence.2
Appellant then stole a license plate to replace the plate on his personal
vehicle, and discarded his cellular telephone along Route 51. Appellant
absconded to Florida with the remaining money stolen from the Garda truck.
Appellant was apprehended in Florida on April 24, 2013. At the time
of his arrest, Appellant possessed four forms of fraudulent identification, and
a stolen credit card. A search of his Florida residence revealed a loaded .9
millimeter firearm, as well as the victim’s firearm, which was taken at the
time of his death. Subsequent investigation revealed that Appellant sought
aid in attempting to flee to Haiti.
Appellant retained private counsel. On August 15 and October 9,
2013, he filed motions seeking funding for a forensic expert, clothing
analysis, and a forensic psychologist. The August 15, 2013 motion asserts,
“Although [Appellant]’s family members have retained within counsel for the
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2
Officers ultimately recovered this portion of the money.
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purposes of representation at trial, [Appellant] is now indigent and cannot
afford the costs of retaining a privately retained forensic expert for the areas
of ballistic fire arms, clothing analysis, and forensic psychology.” Motion To
Appoint Forensic Experts in Ballistic Firearms, Clothing Analysis and Mental
Health Behavioral Forensic Psychologist, 8/15/13, ¶ 11.
On October 9, 2013, Appellant again requested funding, stating,
“Although [Appellant]’s family members have retained within counsel for the
purposes of representation at trial, [Appellant] is now indigent, and so is his
family, and cannot afford the costs of retaining a privately retained
psychological expert.” Motion to Approve the Payment of Expert Fees for a
Behavioral Forensic Psychologist By Allegheny County, 10/9/13, ¶ 5. Neither
motion contained information regarding Appellant’s income, expenses,
liabilities, or other financial information necessary to aid the court’s
determination of his financial status. In addition, the motions were not
accompanied by any affidavits averring Appellant’s inability to pay for the
requested experts. The motions were denied by orders dated August 20 and
October 10, 2013, respectively.
A nonjury trial commenced on November 6, 2013 and concluded in a
conviction. The trial court rejected Appellant’s position that he acted in self-
defense during a struggle with the victim. Following his conviction,
Appellant’s counsel sought to withdraw. The court granted this motion, and
a public defender was appointed by court order on December 18, 2013. On
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February 18, 2014, the court imposed the mandatory sentence of life
imprisonment without parole for first-degree murder, as well as, a
consecutive term of ten to twenty years for robbery. Timely post-sentence
motions were denied. This appeal followed. Appellant raises the following
issues for this Court’s consideration:
I. Did the Court err in failing to provide expert funding, or
even to conduct a hearing on the need for funding, where
the defense made two separate requests for experts to
counter Commonwealth evidence and each request was
supported by allegations of indigency?
II. Did the Court err in permitting a Detective to testify to the
ultimate issue, namely whether a struggle had ensued
before the shooting, where her testimony was speculative
and based on facts outside her personal knowledge?
III. Was the verdict rendered contrary to the weight of the
evidence where, when viewed in its entirety, the evidence
was not consistent with first degree murder?
Appellant’s brief at 4.
Appellant first contends that the trial court erred in denying without a
hearing his request for public funds to hire experts to assist in his defense.
It is well-established that indigent defendants have a right to access the
same resources as non-indigent defendants in criminal proceedings.
Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.Super. 2005). The
state has an “affirmative duty to furnish indigent defendants the same
protections accorded those financially able to obtain them.”
Commonwealth v. Sweeney, 533 A.2d 473, 480 (Pa.Super. 1987).
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Procedural due process guarantees that a defendant has the right to present
competent evidence in his defense, and the state must ensure that an
indigent defendant has fair opportunity to present his defense. Ake v.
Oklahoma, 470 U.S. 68, 76 (1985).
However, “[t]he provision of public funds to hire experts to assist in
the defense against criminal charges is a decision vested in the sound
discretion of the court and a denial thereof will not be reversed absent an
abuse of that discretion.” Commonwealth v. Cannon, 954 A.2d 1222,
1226 (Pa.Super. 2008) (citations omitted). Appellant argues it was an
abuse of discretion to deny his motions without a hearing to establish the
need for experts and Appellant’s inability to pay. He asserts that the mere
fact that a defendant has retained private counsel does not automatically
indicate all other costs and fees associated with the defense can be met.
In sole support of his position, Appellant points to the statements
contained within the August 15, 2013 and October 13, 2013 motions
requesting funding from the court. Appellant characterizes the statements
as averring that “all funds have been used by counsel, that the client and his
family have exhausted their financial means, that the defendant was
incarcerated, indigent, and therefore in need of the court to grant funding
for necessary experts to dispute the Commonwealth’s evidence, and to
investigate the mental health and faculties of [Appellant].” Appellant’s Brief
at 23-24.
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In light of these statements, Appellant argues, the failure to conduct a
hearing in which counsel could explain the need for funding denied him his
right to present a full and fair defense. Furthermore, Appellant asserts,
without citation to authority, that “denying a defendant funding to explore
potential defenses or evaluate mental health is a denial of due process.”
Appellant’s brief at 26.
This Court has not established factors a trial court must consider in
exercising its discretion when making a determination of indigency for the
purpose of appointing an expert. However, as we did in Cannon, we look
for guidance to principles established for assessing indigency in determining
whether a party may proceed in forma pauperis, or is entitled to the
appointment of counsel. Cannon, supra at 1226.
In Cannon, we noted a party seeking to proceed in forma pauperis is
“required to file a petition and an affidavit describing in detail the inability to
pay the costs of litigation,” including the information from the applicant
regarding, “present or past salary and wages, other types of income within
the preceding year, other contributions for household support, property
owned, available assets, debts and obligations, and persons dependent for
support.” Id. Following the filing of this affidavit, the trial court must
“satisfy itself of the truth of the averment of an inability to pay the costs of
litigation.” Id. A trial court, in exercising its discretion in determining
whether a defendant is indigent for the purposes of in forma pauperis, “must
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focus on whether the person can afford to pay and cannot reject
allegations in an application without conducting a hearing.” Id. (emphasis
added, citations omitted).
Similarly in Cannon, we looked to principles elucidated by our
Supreme Court as to what constitutes indigency in relation to a defendant’s
request for the appointment of counsel. The Supreme Court opined,
“[a]mong other factors that may be relevant to a defendant’s financial ability
to hire private counsel are the probable cost of representation for the crime
charged and the defendant’s liabilities.” Id. at 1226-27 (emphasis added,
citations omitted).
The framework we developed in Cannon, supra, presumes a trial
court, in determining whether a defendant is indigent and entitled to the
benefit of public funding, has accurate information regarding the financial
status of the applicant from which it may exercise its discretion. It therefore
follows that, only after the defendant has provided some reliable information
as to his inability to pay, is the trial court “bound to satisfy itself of the truth
of the averments of an inability to pay” by conducting a hearing. Id.We observe, “[t]he Commonwealth is not obligated to pay for the
services of an expert simply because a defendant requests one.” Curnutte,
supra at 842. We agree with Appellant that merely retaining private
counsel does not, in itself, establish he was not indigent. However,
Appellant’s failure to supply the trial court with, at a minimum, any financial
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information substantiating his inability to pay, is fatal to his argument. A
mere averment of indigency and inability to pay is not sufficient to trigger
the necessity for a hearing under Cannon. The defendant must make some
specific showing of a financial hardship for the court to afford relief.
Therefore, we find the trial court did not abuse its discretion in denying
Appellant’s motions where Appellant failed to provide at least a modicum of
financial information within his motions. Any financial information Appellant
wished to produce at a hearing was available at the time of filing of those
motions, and inclusion of that information, at a minimum, is necessary to
enable judicial consideration of whether a hearing is necessary to determine
the truth of those averments. This contention fails.
Appellant next contends the trial court erred in permitting Detective
Sherwood to testify, over defense objection, as to whether a struggle
occurred in the Garda truck, or whether anyone may have altered the
interior of the truck prior to investigation. Appellant’s brief at 34. Citing
Pennsylvania Rules of Evidence 7013 and 702,4 concerning lay and expert
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3
Pa.R.E. § 701 states, “If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is: (a) rationally based on
the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and, (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”
4
Pa.R.E. § 702 states, “A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of
(Footnote Continued Next Page)
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testimony, respectively, Appellant argues Detective Sherwood was permitted
to present prejudicial opinion testimony concerning the crime scene,
although she was not offered as an expert witness.
A review of the record reveals the following exchange: “Q: Now, with
respect to your observations was there anything that would lead you to
believe that there was struggle or a violent confrontation or any
confrontation inside that –. A: No.” N.T. Trial, 11/6/13, at 50. Defense
counsel objected to this testimony on the grounds of speculation, arguing
the witness could not testify beyond her personal observations as to what
occurred before she arrived on the scene. The court implicitly sustained the
objection by instructing the prosecutor to rephrase his question, which he
did. “Q: With respect to the bins and the items there did you locate
anything that had fallen out of a bin? A: No, and in answer to [defense
counsel]’s objection I can say definitively that nobody else was inside the
hopper area of that truck.” Id. at 50-51.
After the witness’s unprompted response, defense counsel did not
object, made no objection or motion to strike on any basis. “In order to
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(Footnote Continued)
an opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
and, (c) the expert’s methodology is generally accepted in the relevant
field.”
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preserve an issue for review, a party must make a timely and specific
objection at trial.” Commonwealth v. Stokes¸ 78 A.3d 644, 653
(Pa.Super. 2013) citing Commonwealth v. Griffin, 684 A.2d 589, 595
(Pa.Super. 1996). Moreover, “[a] party complaining, on appeal, of the
admission of evidence in the court below will be confined to the specific
objection there made.” Commonwealth v. Bedford, 50 A.3d 707, 713
(Pa.Super. 2012) (citation omitted).
Defense counsel initially objected to Detective Sherwood’s answer.
However, after the trial court required the prosecutor to rephrase the
question, which he did, defense counsel made no further objection. Nor did
he move to strike Detective Sherwood’s statements from the record when
she volunteered evidence that had been the subject of an objection that was
sustained. We find defense counsel’s failure to object to Detective
Sherwood’s statements constitutes a waiver of the issue. Stokes, supra.Assuming, arguendo, the issue was properly before us, the trial court,
sitting as the trier of fact, “is presumed to know the law, ignore prejudicial
statements, and disregard inadmissible evidence.” Commonwealth v.
Smith, 97 A.3d 782, 788 (Pa.Super. 2014). Furthermore, in order to
constitute reversible error, an error in the admission of evidence must have
contributed to the verdict. “An error may be considered harmless only when
the Commonwealth proves beyond a reasonable doubt that the error could
not have contributed to the verdict.” Commonwealth v. Brooker, 103
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A.3d 325, 332 (Pa. Super. 2014) (citations omitted). Moreover, “this burden
is satisfied when the Commonwealth is able to show,” inter alia, “the error
did not prejudice the defendant or the prejudice was de minimis.” Id.Here, Detective Sherwood was only one of the experienced
investigative officers and experts who testified to the orderly appearance of
the hopper area of the truck, and the lack of any signs of an altercation
between Appellant and the victim. In addition to testimony from various
officers as to the condition of the interior of the truck, the trial court, in
rejecting self-defense, also relied on reports from the forensic biologist and
forensic pathologist indicating neither the victim’s clothing nor other injuries
on his body indicated evidence of a struggle. In light of the presumption
that the trial court ignored and disregarded Detective Sherwood’s statement
as well as other evidence confirming no altercation occurred, we find the
admission of Detective Sherwood’s statement to be harmless.
Appellant’s final contention is that the trial court committed an abuse
of discretion when it rejected his weight-of-the-evidence challenge.
Appellant argues his first-degree murder conviction was contrary to the
weight of the evidence because the testimony and evidence was more
consistent with justifiable self-defense.
When we review a weight-of-the-evidence challenge, we do not
actually examine the underlying question; instead, we examine the trial
court’s exercise of discretion in resolving the challenge. Commonwealth v.
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Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015). This type of review is
necessitated by the fact that the trial judge heard and saw the evidence
presented. Id. Simply put, “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.” Id. A new trial is warranted in this
context only when the verdict is “so contrary to the evidence that it shocks
one’s sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Commonwealth v.
Morales, 91 A.3d 80, 91 (Pa. 2014).
Of equal importance is the precept that, “The finder of fact. . .
exclusively weighs the evidence, assesses the credibility of witnesses, and
may choose to believe all, part, or none of the evidence. Commonwealth
v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (citation omitted) see also
Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (“A
determination of credibility lies solely within the province of the factfinder.”);
Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 2006) (“It is
not for this Court to overturn the credibility determinations of the fact-
finder.”).
Here, the trial court found no evidence presented as to the defendant’s
purported fear for his own safety, state of mind, nor any evidence of a
struggle between Appellant and the victim giving rise to a reasonable belief
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in imminent danger of death or serious bodily harm. Rather, the trial court
found the interior of the narrow and confined spaces within the Garda truck
showed no signs of a struggle having occurred, postal bins were upright and
unbroken, the victim’s shirt remained tucked in and untorn, and the victim’s
identification badge remained clasped to his left-pocket and attached to a
breakaway cloth lanyard.
Furthermore, the trial court found no evidence from which one could
infer that it was necessary for Appellant to use deadly force to repel an
attack being perpetrated upon him by the victim. Instead, the trial court
credited the testimony, and was persuaded by evidence, indicating that the
victim died from a fatal gunshot wound to the back of the head. The trial
court noted that Mr. Haines suffered no other injuries, abrasions, bruises, or
scratches consistent with a struggle.
Therefore, upon review of the record, we agree with the trial court that
it was well within its right as the ultimate fact finder to weigh the evidence in
such a manner. We can discern no abuse of discretion on the part of the
trial court in concluding the verdict was not against the weight of the
evidence.
Based on the foregoing discussion, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2016
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