Com. v. Savage, K.

J-A09035-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KAREEM SAVAGE, :
:
Appellant : No. 787 WDA 2019
Appeal from the Judgment of Sentence Entered April 17, 2019
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000154-2018
BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 18, 2020
Kareem Savage (Appellant) appeals from the April 17, 2019 aggregate
judgment of sentence of life imprisonment after a jury found him guilty of
one count each of assault by life prisoner, assault by prisoner, aggravated
assault, and third-degree murder. Upon review, we affirm.
We glean the following from the record. On September 1, 2016,
Appellant was serving a life sentence at SCI Albion in the Delta Alpha
housing unit. Anthony Wilson (Victim) was also an inmate in that unit. At
approximately 3:25 p.m., after inmates began coming into the day room
from the outdoor recreation area, corrections officer Ethan Smith heard a
commotion and observed several inmates fighting. Officer Smith reported
the fight on the prison radio system and began to lock down the area.
___________________
* Retired Senior Judge assigned to the Superior Court.
J-A09035-20
Corrections officer Keith Conley entered the day room within seconds
of the radio call and ordered the inmates to return to their respective cells.
As the group returned to their cells, two inmates remained prone on the
ground: Rosco Brown and Victim. Victim was unresponsive. Once the area
was secured, Victim was transported to the hospital.
A surveillance camera captured the prison fight.1 The camera was
programmed to pan continuously across the Delta Alpha housing block. As it
panned, it captured part of the altercation before panning past the day
room. Within seconds, the radio call alerted the control room to take manual
control of the camera, and the operator refocused the camera directly on the
fight.
Based on the prison investigation, prison officials believed that George
Spoonhour initially knocked Victim to the ground before joining in a separate
altercation with Shanne Jones-Coleman and Antwan Sheppard against
Brown. After Spoonhour knocked Victim onto the ground, Appellant was
identified on the surveillance video punching Victim and, once Victim was
prone and unresponsive, stomping repeatedly on Victim’s face with his
prison-issued boots.
1 Two videos were introduced at Appellant’s jury trial. The first video
(Exhibit 2-A) captured the altercation and some of the aftermath; the
second video (Exhibit 2-B) was a sequential continuation of what was
captured in the first video, showing the aftermath of the altercation and
Appellant returning to his cell. See N.T., 2/12/2019, at 58-59 (explaining
the relationship between the two videos).
-2-
J-A09035-20
At the hospital, Victim was diagnosed with a nasal fracture, a tear
above his right eyebrow, swelling of the brain, and blood on his brain, which
caused his brain to shift to the side. He remained in a persistent vegetative
state, requiring continuous mechanical ventilation to breathe. Over the next
couple months, Victim was transported multiple times between skilled
nursing facilities and hospitals due to blood infections and severe pneumonia
resulting from the continuous ventilation. On November 21, 2016, Victim’s
family decided to cease medical care and begin comfort care. Victim was
placed on a morphine drip the following day. Victim passed away on
December 6, 2016.
As a result of the foregoing, Appellant was charged with one count
each of assault by life prisoner, assault by prisoner, aggravated assault, and
criminal homicide. Appellant proceeded to a jury trial on February 12-13,
2019. At trial, the Commonwealth introduced, inter alia, forensic autopsy
reports from Dr. Ashley Zezulak and Dr. Lauren Huddle, DNA evidence, and
the surveillance videos.
Dr. Zezulak performed Victim’s autopsy, and concluded that Victim’s
cause of death was acute morphine overdose based on the level of morphine
found in Victim’s toxicology screen. Victim’s death certificate stated that the
cause of death was morphine toxicity, which was due to multi-organ failure,
which was due to long-term intubation and being in a vegetative state,
which was due to head trauma from the prison altercation.
-3-
J-A09035-20
At trial,2 Dr. Huddle testified that Victim had been on a morphine drip
for two weeks prior to his death. Dr. Huddle noted that his morphine level
was within the therapeutic range, and Victim’s genotype contained an
indicator that Victim may have required higher doses of morphine for
adequate pain control. Based on the foregoing, Dr. Huddle did not agree
with Dr. Zezulak that a morphine overdose was the cause of Victim’s death.
Rather, based on her investigation, Dr. Huddle concluded that Victim’s cause
of death was “bilateral acute and bronchial pneumonia … due to
complications of blunt force trauma of the head.” N.T., 2/12/2019, at 210;
see also Dr. Huddle’s Report, 2/1/2019, at 5 (unnumbered). Specifically,
“[t]he initial event that caused his death was the blunt force trauma to his
head, which was sustained on September 1st of 2016. Following that event,
he remained unconscious and under continuous medical care, and he
ultimately died due to those complications on December 6th, 2016.” N.T.,
2/12/2019, at 210; see also Dr. Huddle’s Report, 2/1/2019, at 5
(unnumbered). When asked on cross-examination if Victim could have
received more medical care instead of only comfort care, Dr. Huddle testified
2 Dr. Zezulak was no longer employed by ForensicDX, the company that
performed Victim’s autopsy, at the time of Appellant’s trial. ForensicDX
tasked one of its current forensic pathologists, Dr. Huddle, with reviewing
Dr. Zezulak’s autopsy report in preparation for the trial. Dr. Huddle did so,
and also reviewed the autopsy photographs, Victim’s medical records, and
histologic slides (slides created from pieces of Victim’s organs for
examination under a microscope) to create her own forensic autopsy report
for Victim. N.T., 2/12/2019, at 155-57.
-4-
J-A09035-20
in her opinion that Victim could have continued to receive medical care, but
it “would have just prolonged the inevitable.” N.T., 2/12/2019, at 224.
Regarding the DNA evidence, Appellant’s boots were confiscated on
September 1, 2016, for processing. Following testing, it was determined
that the right sole, left toe, and left sole contained DNA mixtures. The DNA
profile obtained from the known reference sample for Victim matched the
DNA profile from the right sole and left sole of Appellant’s boots. In the
mixture on the left toe, Victim could not be excluded as a contributor to the
major component. Id. at 179-80.
After viewing the video of the altercation multiple times during the
Commonwealth’s case-in-chief, the jury requested and viewed the video
three more times at regular speed, and three times at half speed, during
deliberations. The jury found Appellant guilty as indicated above.
On April 17, 2019, the trial court sentenced Appellant to a term of life
imprisonment for assault by life prisoner and a consecutive term of 20 to 40
years of incarceration for third-degree murder. The trial court granted
Appellant’s oral request for an extension of time to file a post-sentence
motion. N.T., 4/17/2019, at 9-10. Thus, on May 7, 2019, Appellant timely
filed a post-sentence motion challenging the sufficiency and weight of the
evidence based on an argument that no evidence was presented to establish
that Victim’s death resulted from the prison altercation. The trial court
denied Appellant’s post-sentence motion the next day.
-5-
J-A09035-20
This timely-filed notice of appeal followed.3 On appeal, Appellant
challenges the sufficiency and weight of the evidence. Appellant’s Brief at 3.
Preliminarily, we note that the trial court found Appellant’s claims on
appeal waived because his “concise statement [wa]s too vague to allow the
[trial] court to identify the pertinent issues[.]” Trial Court Opinion,
8/7/2019, at 1 (unnecessary capitalization omitted). In pertinent part,
Appellant’s concise statement provided as follows.
1. Was the weight of the evidence supported by the evidence?
2. Was the verdict of the jury supported by the sufficiency of the
evidence?
3. The trial transcript is not yet prepared and counsel would
specifically request to amend these matters upon completion
of the transcript.[4]
Pa.R.A.P. 1925(b) Statement, 7/1/2019.
We consider waiver based on a deficient Pa.R.A.P. 1925(b) statement
mindful of the following.
“When the trial court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.”
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super.
2001). “When an appellant fails adequately to identify in a
concise manner the issues sought to be pursued on appeal, the
trial court is impeded in its preparation of a legal analysis which
3Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
4 The trial transcripts were filed on July 1, 2019, the same day Appellant
filed his Pa.R.A.P. 1925(b) statement. Although Appellant sought leave to
amend his concise statement after the completion of the trial transcript, as
of more than one month after the filing of the transcripts, no amendment
had been filed. See Trial Court Opinion, 8/7/2019, at 1 n.1.
-6-
J-A09035-20
is pertinent to those issues.” In re Estate of Daubert, 757 A.2d
962, 963 (Pa. Super. 2000). “In other words, a [c]oncise
[s]tatement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no
[c]oncise [s]tatement at all.” Dowling, 778 A.2d at 686.
Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002).
We have repeatedly held that [i]n order to preserve a challenge
to the sufficiency of the evidence on appeal, an appellant’s
[Rule] 1925(b) statement must state with specificity the element
or elements upon which the appellant alleges that the evidence
was insufficient. … Therefore, when an appellant’s 1925(b)
statement fails to specify the element or elements upon which
the evidence was insufficient[,] ... the sufficiency issue is waived
on appeal.
Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)
(citations and quotation marks omitted). “Such specificity is of particular
importance in cases where[] the appellant was convicted of multiple
crimes[,] each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.” Commonwealth
v. Brown, 186 A.3d 985, 990 (Pa. Super. 2018) (citation and quotation
marks omitted).
In the instant case, Appellant was convicted of assault by life prisoner,
assault by prisoner, aggravated assault, and third-degree murder. Each of
these crimes involves multiple elements. In Appellant’s Pa.R.A.P. 1925(b)
statement, he simply questioned, in boilerplate fashion, whether “the verdict
of the jury [was] supported by the sufficiency of the evidence[.]” Pa.R.A.P.
1925(b) Statement, 7/1/2019. Appellant failed to specify which element(s)
of which conviction(s) the Commonwealth failed to prove beyond a
-7-
J-A09035-20
reasonable doubt. As such, the trial court was unable to identify the errors
Appellant intended to challenge on appeal. Consequently, we agree with the
trial court and deem Appellant’s sufficiency claim waived. See
Commonwealth v. Hoffman, 198 A.3d 1112, 1125 (Pa. Super. 2018)
(finding sufficiency claim waived for failing to specify the element(s) upon
which the evidence was lacking); Commonwealth v. Tyack, 128 A.3d 254,
260 (Pa. Super. 2015) (finding sufficiency claim waived because boilerplate
Pa.R.A.P. 1925(b) statement failed to specify the element(s) the
Commonwealth failed to prove).
We next turn to Appellant’s weight claim.
As an initial matter, a challenge to the weight of the evidence
must be preserved either in a post-sentence motion, by a written
motion before sentencing, or orally prior to
sentencing. Pa.R.Crim.P. 607(A)(1)–(3). “The purpose of this
rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Comment to Pa.R.Crim.P. 607. If an appellant never gives the
trial court the opportunity to provide relief, then there is no
discretionary act that this Court can review. Commonwealth v.
Thompson, 93 A.3d 478, 491 (Pa. Super. 2014). Further, []
issues not presented in a court-ordered Pa.R.A.P. 1925(b)
statement are deemed waived on appeal.7 Pa.R.A.P.
1925(b)(4)(vii).
______
7 We note that, even if [Jones] had raised the specific
weight claim for the first time in his Rule 1925(b)
statement, it would not have “undone” the waiver resulting
from [his] failure to raise the specific weight claim in
accordance with Pa.R.Crim.P. 607. Commonwealth v.
Ali, [] 10 A.3d 282 ([Pa. Super.] 2010).
-8-
J-A09035-20
Commonwealth v. Jones, 191 A.3d 830, 834-35 (Pa. Super. 2018) (some
footnotes omitted).
In Appellant’s post-sentence motion, he challenged the weight of the
evidence with regard to his third-degree murder conviction. Specifically, he
averred that the evidence was lacking as to causation, and that the forensic
pathologists offered different opinions as to Victim’s cause of death. Post-
Sentence Motion, 5/7/2019, at 1-2 (unnumbered). In his Pa.R.A.P. 1925(b)
statement, Appellant presented this claim in boilerplate fashion, merely
asking whether “the weight of the evidence [was] supported by the
evidence[.]” Pa.R.A.P. 1925(b) Statement, 7/1/2019. Finally, in the
argument section of his brief, Appellant challenges the weight of the
evidence based on (1) inconsistent opinions about causation from Dr. Huddle
and Dr. Zezulak, (2) the video evidence, (3) his identification as the
assailant, and (4) the DNA mixture on Appellant’s boots. Appellant’s Brief at
7-13. Because Appellant improperly raised new theories of relief for the first
time on appeal (i.e., the video evidence, his identification, and the DNA
mixture), his weight of the evidence claim based upon those theories is
waived. See Jones, 191 A.3d at 835 (“Simply put, since [Jones] failed to
raise his particular new weight theories before the trial court and the trial
court did not, therefore, review the new theories and weigh the evidence
according to it, there is no discretion for this Court to review.” (citation
omitted)).
-9-
J-A09035-20
Thus, the only weight claim Appellant preserved for appeal is that the
verdict was against the weight of the evidence based upon the
inconsistencies between the forensic reports of Dr. Huddle and Dr. Zezulak
regarding causation. We review this claim mindful of the following.
“A verdict is against the weight of the evidence ‘where 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.’” Commonwealth v. Williams, 176
A.3d 298, 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 833
A.2d 245, 258 (Pa. Super. 2003)).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted).
We examine challenges to the weight of the evidence according to the
following standard.
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. 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. When a trial
court considers a motion for a new trial based upon a weight of
the evidence claim, the trial court may award relief only 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. The
inquiry is not the same for an appellate court. Rather, when an
- 10 -
J-A09035-20
appellate court reviews a weight claim, the court is reviewing the
exercise of discretion by the trial court, not the underlying
question of whether the verdict was against the weight of the
evidence. The appellate court reviews a weight claim using an
abuse of discretion standard.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and
quotation marks omitted).
As discussed above, the trial court deemed Appellant’s concise
statement too vague to permit review. However, in the event this Court
declined to find waiver, the trial court determined that Appellant’s claims
were without merit, noting that the jury had the benefit of the videotape of
the prison altercation, that defense counsel “pointed out and argued all the
discrepancies and inconsistencies in the evidence, and it was for the jury to
decide who [sic] to believe.” Trial Court Opinion, 8/7/2019, at 2.5
On appeal, Appellant argues that Dr. Zezulak’s report should have
garnered greater weight than Dr. Huddle’s testimony or report because Dr.
Zezulak performed the physical autopsy of Victim. Appellant’s Brief at 8.
Relying on Dr. Zezulak’s report, Appellant argues the guilty verdict for third-
5 We note that the trial court intermingles its analysis of Appellant’s
sufficiency-of-the-evidence and weight-of-the-evidence claims in its
Pa.R.A.P. 1925(a) opinion, likely due in part to Appellant’s intermingling of
these issues in his post-sentence motion and the vagueness of his concise
statement. Nonetheless, it is clear that the trial court considered Appellant’s
post-sentence motion challenging the weight of the evidence as to
causation, and denied that motion because the jury’s credibility
determinations and verdict were not “so contrary to the evidence as to shock
one’s sense of justice.” Trial Court Opinion, 8/7/2019, at 2. Thus, we need
not remand for the filing of a supplemental opinion.
- 11 -
J-A09035-20
degree murder was against the weight of the evidence because Victim’s
“cause of death was morphine toxicity due to [Victim] being taken off of
medical care and placed on palliative care alone.” Id. at 9.
Appellant essentially asks this Court to reassess the credibility of Dr.
Huddle and any inconsistencies between the two autopsy reports in
Appellant’s favor. “However, it is well settled that th[is] Court cannot
substitute its judgment for that of the trier of fact.” Gibbs, 981 A.2d at 282(citation omitted). The jury heard Dr. Huddle’s testimony regarding her
review of Dr. Zezulak’s report and the reasons why Dr. Huddle came to a
different conclusion regarding Victim’s cause of death. The jury additionally
had the opportunity to review both the report prepared by Dr. Zezulak and
the report prepared by Dr. Huddle. In rendering its verdict, the jury clearly
credited Dr. Huddle’s testimony and report, which “left no doubt that
[A]ppellant’s conduct” of stomping on Victim’s head “started an unbroken
chain of causation which led to [Victim’s] death.” Commonwealth v.
Roberson, 403 A.2d 544, 545 (Pa. 1979) (citations omitted). Accordingly,
the trial court did not abuse its discretion in denying Appellant’s weight
claim.
Judgment of sentence affirmed.
- 12 -
J-A09035-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2020
- 13 -