Opinion
J-S66017-15 No. 2046 WDA 2014
04-21-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. ERIN NICOLE EVERETT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered November 14, 2014
In the Court of Common Pleas of Somerset County
Criminal Division at No: CP-56-CR-0000249-2011 BEFORE: OLSON, STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Erin Nicole Everett appeals from the November 14, 2014 judgment of sentence entered in the Court of Common Pleas of Somerset County ("trial court") following Appellant's bench conviction for, inter alia, first-degree murder under Section 2502(a) of the Crimes Code, 18 Pa.C.S.A. § 2502(a). Upon review, we affirm.
The facts and procedural history underlying this case are undisputed, and recounted in detail on pages 1 through 17 of the trial court's March 7, 2016 Pa.R.A.P. 1925(a) opinion. Briefly, Appellant was charged with, inter alia, first-degree murder for the shooting death of her girlfriend, Tory Elizabeth Minnick ("victim"). Prior to trial, the Commonwealth filed a motion in limine, seeking to exclude the testimony of Antoinette Petrazzi Woods, Ph.D, LPC, whom Appellant sought to present as an expert on Battered Woman Syndrome ("BWS") and Post-Traumatic Stress Disorder ("PTSD"). The Commonwealth argued that Petrazzi Woods did not have specialized knowledge to qualify as an expert witness on these issues. The Commonwealth argued that even if Petrazzi Woods did qualify as an expert, her evaluation of Appellant indicated that Appellant did not meet the full criteria for either PTSD or BWS. Moreover, the Commonwealth argued that BWS was relevant only in cases where a defendant alleges self-defense. The Commonwealth pointed out that Appellant could not make out a theory for self-defense because the victim was asleep when Appellant murdered her. Over Appellant's objection, the trial court granted the Commonwealth's motion.
The case eventually proceeded to a bench trial, at which various witnesses, including Appellant and William Nair, testified. Mr. Nair testified that he exchanged text messages with Appellant, who is the cousin of his then-fiancée, prior to the killing and advised Appellant on how to use her father's gun, and where to purchase ammunition for the gun. Mr. Nair also testified that he did not think Appellant was serious about killing the victim. On cross-examination, when asked about whether he texted a picture of his penis to Appellant, Mr. Nair indicated that he did not. Mr. Nair testified that the picture was sent by his roommate, whom he tried to set up with Appellant. Also, when asked whether he had told anyone prior to trial that someone else had used his phone, Mr. Nair indicated that he had. He specifically stated that he had told the Commonwealth about it during his last conversation with the district attorney. Upon hearing this, Appellant moved for a mistrial, arguing that the Commonwealth committed a Brady violation by failing to disclose to Appellant the identity of the other individual prior to trial. The court disagreed, denying Appellant's motion for a mistrial. In so doing, the trial court concluded that Appellant failed to establish that the picture of the penis would have led to exculpatory or impeaching evidence or that Appellant was prejudiced by its nondisclosure. Sometime thereafter, Appellant took the stand and admitted to murdering the victim while the victim slept. The trial court ultimately convicted Appellant of, inter alia, first-degree murder and sentenced her to life imprisonment without the possibility of parole. At the trial court's direction, Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, raising the following assertions of error:
Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963).
The Commonwealth opined that Mr. Nair pinned the penis picture on the other individual because "he was covering his ass with his fiancée." N.T. Trial, 11/12/14, at 1.127.
[1.] Whether the trial court erred in granting the [Commonwealth's] Motion in Limine precluding the testimony of [Appellant's] Expert, Dr. Antoinette Petrazzi-Woods as to Battered Woman Syndrome, Spousal Abuse Syndrome, Post-Traumatic Stress Disorder, and other disorders, thereby prejudicing [Appellant] to an extent that it constitutes reversible error?
[2.] Whether the trial court erred by prohibiting [Appellant] from presenting any evidence or experts regarding [Appellant's] mental health, state of mind or mental conditions and disorders, by erroneously relying upon improper evidence including the affidavit of probable cause and police reports severely prejudicing [Appellant]?Appellant's Pa.R.A.P 1925(b) Statement. In response, the trial court prepared a detailed 1925(a) opinion, addressing Appellant's assertions of error seriatim. Addressing Appellant's first issue, the trial court concluded that the Commonwealth's motion in limine excluding Petrazzi Woods' testimony was timely and that it did not abuse its discretion in granting the motion. In support of its grant of the Commonwealth's motion in limine, trial court reasoned that, because Appellant could not establish a claim for self-defense as the victim was asleep when Appellant killed her, Petrazzi Woods' testimony on BWS and PTSD was irrelevant. Additionally, the trial court noted that Petrazzi Woods was not qualified to be an expert on BWS or PTSD because "there is no indication whatsoever that she possesses any knowledge, skill, experience, training or education to afford her 'specialized knowledge' in the field of BWS and/or PTSD." Trial Court Opinion, 3/7/16, at 24. Alternatively, the trial court concluded that even if Petrazzi Woods were qualified, her testimony would not have helped the trier of fact on these issues, because Petrazzi Woods "ultimately found that [Appellant] suffers from neither BWS nor PTSD." Id. at 25. The trial court next addressed Appellant's second assertion of error, namely that the court had erred in relying on the affidavit of probable cause and police reports in concluding that Appellant could not establish a claim for self-defense. The trial court reasoned that under Pa.R.E. 104, it was not bound by the rigors of the evidentiary rules to determine preliminary questions on the admissibility of evidence or the qualifications of an expert. With respect to Appellant's third assertion of error, relating to prosecutorial misconduct, the trial court concluded that Appellant waived the issue by failing to make a timely objection. Additionally, the trial court found that "no ex parte communications occurred between the District Attorney and the court." Trial Court Opinion, 3/7/16, at 27. The trial court next addressed Appellant's fourth issue relating to a Brady violation. The trial court rejected Appellant's argument that a Brady violation occurred because the Commonwealth failed to disclose to Appellant Mr. Nair's roommate's use of Mr. Nair's cellphone and the roommate's texting of sexually explicit images to Appellant. The trial court concluded that "Appellant had failed to demonstrate that the undisclosed evidence was favorable to her and that she had been prejudiced by its nondisclosure." Id. at 29. With respect to Appellant's fifth assertion of error, the trial court noted that it fully considered Mr. Nair's involvement and concluded, based on the evidence presented, that it did not rise to the level of conspiracy. The trial court found that Mr. Nair did not plant in Appellant's mind the idea to kill the victim. Id. at 32. On the contrary, the idea to kill was Appellant's, and it was Appellant who, after much deliberation, killed the victim as the victim slept. Finally, addressing Appellant's sixth assertion of error, the trial court concluded that it did not abuse its discretion in denying Appellant's weight of the evidence challenge.
[3.] Whether the District Attorney committed prosecutorial misconduct by having ex parte communications with the court during the bench trial proceedings by informing the judge in Chambers immediately prior to [Appellant's] mother's testimony, that she had attempted to smuggle handcuff keys into jail in [Appellant's] court clothing thereby prejudicing the [c]ourt as to the witness?
[4.] Whether the trial court erred in failing to grant a mistrial when during testimony it was discovered that there was an alleged third witness who may have provided exculpatory evidence and whose name and identity were known by the District Attorney who never disclosed the information to the Defense, yet admitted to having knowledge of the witness during the bench trial?
[5.] Whether the trial court erred in failing to mitigate [Appellant's] level of guilt by failing to take into consideration the level and magnitude of aid provided by William Nair, who encouraged, advised, counseled, and otherwise enticed [Appellant] to carry out the crime in her distraught state of mind instead of calling for assistance or help?
[6.] Whether the verdict was against the weight of the evidence?
Even if the trial court had improperly relied on the affidavit of probable cause or the police reports to conclude that Appellant could not establish self-defense because the victim was asleep at the time of the killing, the error was harmless. As noted earlier, Appellant admitted at trial to the fact that the victim was asleep. In Commonwealth v. Grove , 526 A.2d 369 (Pa. Super. 1987), we noted that "[a]s a matter of law, any imminence to [the] appellant's perceived risk of death or serious bodily injury ended, as did the conflict on the 'present occasion,' when the victim went to bed and fell asleep." Grove , 526 A.2d at 375.
Under Brady , "a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature." Commonwealth v. Spotz , 18 A.3d 244, 275-276 (Pa. 2011) (citation omitted). To prove a Brady violation, the defendant bears the burden of demonstrating that: "(1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant, and (3) the suppression prejudiced the defendant." Commonwealth v. Koehler , 36 A.3d 121, 133 (Pa. 2012) (citation omitted). To establish prejudice, the defendant must prove that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Commonwealth v. Appel , 689 A.2d 891, 905 (Pa. 1997) (citation omitted), abrogated on other grounds , Commonwealth v. Fears , 86 A.3d 795 (Pa. 2014); see also Commonwealth v. Bomar , 104 A.3d 1179, 1189 (Pa. 2014) ("Stated differently, the undisclosed evidence must be 'material to guilt or punishment.'") (citation omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth v. Chmiel , 30 A.3d 1111, 1130 (Pa. 2011) (citation omitted).
On appeal, Appellant repeats the same assertions of error., After careful review of the parties' briefs, the record on appeal, and the relevant case law, we conclude that the trial court's Rule 1925(a) opinion, authored by President Judge D. Gregory Geary, cogently disposes of Appellant's issues on appeal. See Trial Court Opinion, 3/7/16, at 17-37. We, therefore, affirm the trial court's November 14, 2014 judgment of sentence. We direct that a copy of the trial court's March 7, 2016 Rule 1925(a) opinion be attached to any future filings in this case.
Appellant withdraws the issue of prosecutorial misconduct, acknowledging that she "did not formally place [an] objection on the record in open court," and therefore rendering the issue "moot and waived." Appellant's Brief at 28.
We note that Appellant's weight of the evidence challenge is waived, because she failed to properly preserve this issue for our review. A challenge to the weight of the evidence must be raised with the trial judge or it will be waived. Pennsylvania Rule of Criminal Procedure 607 requires that a "claim that the verdict is against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion." Pa.R.Crim.P. 607. This claim must be presented to the trial court while it exercises jurisdiction over a matter since "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." Commonwealth v. Burkett , 830 A.2d 1034, 1037 (2003) (citation omitted), appeal denied , 927 A.2d 648 (Pa. 2007). Instantly, Appellant failed to raise the weight of the evidence claim orally or in writing prior to or after sentencing. In fact, Appellant raised it for the first time in her Rule 1925(b) statement. Even if Appellant had preserved this issue, we still would have concluded that she is not due any relief based on the reasons outlined in the trial court Rule 1925(a) opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/21/2016
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