Opinion
J-S47008-16 No. 904 MDA 2015
08-11-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. HUGO M. SELENSKI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 27, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002700-2006 BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ. MEMORANDUM BY SHOGAN, J.:
Hugo M. Selenski ("Appellant") appeals the judgment of sentence imposed after a jury convicted him of first degree murder, conspiracy, solicitation, robbery, and theft. We affirm.
A prior panel of this Court summarized the background of this case:
The Commonwealth submitted affidavits of probable cause to the trial court in conjunction with disposition of pre-trial motions, which summarized the Commonwealth's proffered evidence as to the homicides. The affidavits were executed on May 19, 2006, by detectives from the Luzerne County District Attorney's Office, as well as by law enforcement officers from the Pennsylvania State Police.
According to the affidavits, homicide victim Michael Kerkowski, Jr., a licensed pharmacist and owner of a pharmacy, was arrested in April 2001 and subsequently convicted of selling controlled substances illegally. He failed to appear at his sentencing hearing on May 14, 2002, and it was presumed that he had absconded. On May 6, 2002, Gerry Kerkowski, Michael's mother, reported that Michael and Tammy Fassett were both missing. In December 2002, Michael Kerkowski, Sr., reported an
assault and robbery of his residence. He stated that his son, Michael, had entrusted $60,000 to him in April 2001, and the money was placed in an unused vent in the basement. Only he and Michael knew of the money and its location. During Michael's trial for illegal sale of narcotics, he introduced [Appellant] to Kerkowski, Sr., as his best friend, and advised his father to trust [Appellant]. Kerkowski, Sr. also related that in July 2002, he met with [Appellant], who said that he had spoken with Michael subsequent to May 3, 2002, and that Michael had not fled, but needed $30,000 to aid in his legal defense. [Appellant] also indicated that he knew about the $60,000 hidden in the basement, prompting Kerkowski, Sr. to give [Appellant] the requested $30,000.
According to Kerkowski, Sr., in June or July 2002, [Paul] Weakley, using the alias of "Eric," approached him and asked for $10,000 in order to repair a computer so he could keep in contact with Kerkowski, Jr., but Kerkowski, Sr., refused to tender the money unless he could speak with his son. Kerkowski, Sr., then contacted [Appellant] who told him not to give money to "Eric." In August 2002, [Appellant] again contacted Kerkowski, Sr., who gave him an additional $30,000. Kerkowski, Sr., asked if he could speak to Michael, to which [Appellant] responded he would see what he could do. In September or October 2002, [Appellant] again met with Kerkowski, Sr., and asked for more money. Kerkowski, Sr., refused to provide any further funds until he could talk to Michael. At that time, [Appellant] produced a pistol, demanded money and fired the weapon, whereupon Kerkowski, Sr., gave [Appellant] $40,000.
Beginning in June 2003, Weakley provided statements to District Attorney detectives implicating [Appellant] as well as himself in the homicides of Kerkowski, Jr. and Fassett. Weakley denied being present at the homicides, but stated that he helped [Appellant] rebury the bodies on or about May 6, 2002, in the grounds at 479 Mt. Olivet Road, Kingston Township, which was in the process of being conveyed to [Appellant] and Tina Strom, [Appellant's] girlfriend.
On June 5, 2003, a search warrant was served at the Mount Olivet property. Weakley accompanied the authorities to the property and pointed out the burial site.3 As a result, Kerkowski, Jr.'s and Fassett's remains were discovered, along
with flex ties and duct tape. An autopsy report found the cause of death as strangulation, and the manner of death as homicide.4
3 Weakley had also accompanied the authorities to the field behind Dallas High School, where the bodies had first been purportedly buried by [Appellant] and another person. Weakley could not locate the purported burial site. Subsequent investigations by local and federal forensic experts could not locate a burial site in the field behind the Dallas High school.
4 A person named "Reese" provided information about a meeting between [Appellant] and Kerkowski Sr[.], where Kerkowski, Sr., refused to give [Appellant] money because he did not know if his son was alive. Another person, named "Samson," advised that in April or May 2003, [Appellant] offered him $20,000 if he would help [Appellant] "dispose" of a pharmacist who had been arrested for selling oxyco[n]tin. Earnest Culp, who had rented a trailer on the Mt. Olivet Road property prior to [Appellant's] purchase, told investigators that he encountered [Appellant] and Weakley on the property near a freshly dug area, and that [Appellant] said he wanted to place a gasoline tank in the area.
Commonwealth v. Selenski , 972 A.2d 1182, 1184-1185 (Pa. Super. 2009) (one footnote omitted).
Investigators further discovered that Weakley had purchased digging tools from a hardware store on May 4, 2002. Weakley also purchased a cell phone and was in constant communication with [Appellant] from May 3, 2002, through May 5, 2002, about 36 total calls. Contrary to Weakley's statements, investigators also discovered that Weakley did not work on May 3, 2002.
Following a joint county and state criminal investigation into the deaths of Michael Kerkowski, Jr. and Tammy Fassett, the Commonwealth charged Appellant on May 19, 2006, with two counts each of homicide, conspiracy (homicide), solicitation, robbery, conspiracy (robbery), and one count of theft. After years of preliminary proceedings, appeals, changes of counsel and jurists, discovery, and extensions, Appellant proceeded to a jury trial in January of 2015, which resulted in guilty verdicts on all but two of the counts. Certified Record Docket Entry 423. Following a penalty hearing on February 17, 2015, the jury returned verdicts of life imprisonment on the dual first-degree-murder convictions. Certified Record Docket Entry 425.
The jury acquitted Appellant of solicitation to commit homicide and conspiracy to commit robbery. Certified Record Docket Entry 423.
The trial court sentenced Appellant on March 27, 2015, to consecutive terms of life imprisonment without possibility of parole, followed by fifty-six to 120 years of incarceration. Certified Record Docket Entry 545. Appellant filed a post-sentence motion on April 6, 2015, regarding restitution. Certified Record Docket Entry 549. The trial court scheduled a hearing for April 29, 2015, where Appellant's post-sentence motion was resolved by stipulation. Certified Record Docket Entry 554. This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
I. Whether [Appellant's] right to counsel of choice, pursuant to the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, was violated and a new trial should be granted because the trial court granted the Commonwealth's motion to disqualify [Appellant's] chosen counsel for a purported conflict that he waived?
II. Whether a new trial is warranted because the Commonwealth failed to disclose material and vital impeachment evidence regarding Christina Strom, namely that the Commonwealth had agreed to advocate for her at her delayed federal sentencing hearing and that a motion to reduce her sentencing exposure based upon her cooperation had been filed back in 2007?Appellant's Brief at 4-5.
III. Whether a new trial is warranted because the trial court failed to provide after the introduction of alleged co-conspirator Paul Weakley an appropriate and timely cautionary instruction that his guilty plea to the homicide charges and the Goosay charges could not be used as any evidence against [Appellant]?
IV. Whether the trial court committed reversible error when it granted the Commonwealth's motion in limine to introduce at trial the former preliminary hearing testimony of an unavailable witness, Ernest Culp, as it violated [Appellant's] right to confrontation under both the Pennsylvania and United States Constitutions?
V. Whether the trial court committed reversible error when it permitted the Commonwealth's forensic pathologist to offer expert testimony regarding alleged blunt force trauma on the body of Michael Kerkowski that was based upon hearsay facts supplied by chief prosecution witness Paul Weakley where such statements are not the type reasonably relied upon by experts in the same field?
VI. Whether the trial court committed reversible error when it denied a defense request for a mistrial after key prosecution witness Christina Strom testified that [Appellant] went to the police station to "talk about a robbery" after the Commonwealth was specifically admonished from [sic] introducing said testimony?
VII. Whether the trial court committed reversible error by permitting a sitting Common Pleas Court judge to testify on behalf of the Commonwealth because such testimony was irrelevant and highly prejudicial as it gave the appearance of using the prestige of his office to advance the credibility of and bolster the Commonwealth's case?
Appellant first challenges the trial court order granting the Commonwealth's motion to disqualify lead defense counsel Shelley Centini, Esq. and defense investigator James Sulima. Appellant's Brief at 19. The Commonwealth's motion averred, in relevant part, as follows:
2. The Commonwealth became aware of the matters which related to the attached criminal charges and referred same to the Office of the Attorney General due to the conflict with prosecuting the criminal homicide at bar.
3. Subsequently, the Court was made aware of a pending grand jury investigation directly related to the instant case.
4. On January 27, 2014, as a result of that referral and following the grand jury investigation, the Office of Attorney General filed criminal charges directly related to the instant criminal homicide trial against defendant's counsel, Shelley L. CENTINI, Esquire, for criminal acts allegedly committed during her participation in the instant case. A copy of said charges and supporting affidavit are attached hereto, made a part hereof and labeled Exhibit "A."
5. Further, on January 27, 2014, as a result of the referral by the Office of the District Attorney and following the grand jury investigation, the Office of Attorney General filed criminal charges directly related to the instant criminal homicide trial against defendant's investigator, James F. SULIMA, for criminal acts allegedly committed during his participation in the instant case. A copy of said charges and supporting affidavit are attached hereto, made a part hereof and labeled Exhibit "B."
6. Further, on January 27, 2014, as a result of the referral by the Office of the District Attorney and following the grand jury investigation, the Office of Attorney General filed criminal charges directly related to the instant criminal homicide trial against defendant, Hugo M. SELENSKI, for criminal acts allegedly committed during the pendency of his homicide case.
A copy of said charges and supporting affidavit are attached hereto, made a part hereof and labeled Exhibit "C."Motion of the Commonwealth to Remove Defense Counsel and Investigator, 1/27/14, at 1-3.
7. Further, on January 27, 2014, as a result of the referral by the Office of the District Attorney and following the grand jury investigation, the Office of Attorney General filed criminal charges alleging, inter alia, that defendant's counsel, Shelley L. CENTINI, Esquire, and investigator, James F. SULIMA, conspired with double-homicide defendant, Hugo M. SELENSKI, to commit criminal acts as set forth in the attached affidavits during the pendency of this homicide case.
8. It is the desire and intent of the Commonwealth to use the information set forth in the attached affidavits in its case-in-chief against defendant, Hugo M. SELENSKI, for homicide, as said information is relevant and directly related to the charges in the above-captioned matter and further related to evidence of his consciousness of guilt.
9. Additionally, as a result of the facts set forth in the affidavits, it is apparent that Attorney CENTINI and Mr. SULIMA have now made themselves witnesses in the Commonwealth's case as to the foregoing.
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11. The Commonwealth respectfully submits that CENTINI can no longer represent defendant in the instant matter.
12. Similarly, the Commonwealth respectfully submits that SULIMA should not be permitted to continue as defendant's investigator.
As a result of the grand jury investigation, the Attorney General charged Attorney Centini, Investigator Sulima, and Appellant with intimidation of witnesses, conspiracy (witness intimidation), theft by deception, conspiracy (theft by deception), perjury, conspiracy (perjury), solicitation (perjury), obstructing administration of law, conspiracy (obstruction), tampering with evidence, and conspiracy (tampering with evidence). Motion of the Commonwealth to Remove Defense Counsel and Investigator, 1/27/14, at Exhibits A, B, and C.
In support of its motion, the Commonwealth submitted the grand jury's findings of fact, which, in relevant part, provide as follows:
On January 6, 2012, the Luzerne County Court of Common Pleas appointed Centini to represent [Appellant] relating to charges that include criminal homicide and solicitation to commit criminal homicide. Despite her ethical obligations, the Grand Jury finds that Centini was actively engaged in unethical and criminal conduct throughout her representation of [Appellant]. Centini engaged in that conduct for improper purposes, including suborning perjury, obstructing or impairing the administration of justice, and intimidating witnesses. Centini met with at least five witnesses while continually blurring her role as [Appellant's] advocate with interests potentially adverse to those of the witness. Centini met with witnesses and solicited information or statements from them while they were represented by counsel. Centini provided witnesses with letters from [Appellant] for the purpose of intimidation and directed the witnesses to commit perjury. On at least one occasion, Centini provided a witness with money and, on another occasion, expressed to a witness that [Appellant] was angry with the witness for prior statements to police. The Grand Jury finds that these letters were drafted by [Appellant] and presented by Centini and Sulima for the specific purpose of intimidation, soliciting perjury, and obstructing justice. Centini testified that these incriminating letters were simply "lost" following this meeting. The Grand Jury finds that the statements of Centini were not truthful and were made for the purpose of keeping this body from discovering the full facts of this matter. It is the finding of this Grand Jury that the letters were hidden or destroyed to avoid prosecution for the commission of criminal acts.
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James Sulima was a Pittston police officer until 2007. Since 2007, Sulima has operated as a private detective and formed JS investigation and Consulting. The Grand Jury finds that Sulima aided in the furtherance of a criminal conspiracy with Centini and [Appellant] to obstruct or impair the
administration of justice and to intimidate witnesses. Sulima continued his criminal conduct before the Grand Jury. It is the finding of this body that Sulima lied under oath.Motion of the Commonwealth to Remove Defense Counsel and Investigator, 1/27/14, at Exhibits A, B, and C. Following a hearing on February 20, 2014, the trial court granted the Commonwealth's motion and removed Attorney Centini and Investigator Sulima. Certified Record Docket Entry 382.
On appeal, Appellant argues that his constitutional right to counsel was violated by the removal of Attorney Centini, with whom he had "developed a strong attorney-client relationship" over the course of two years. Appellant's Brief at 21. The Commonwealth counters that Appellant has a right to counsel, but not "to taxpayer-funded counsel of choice[.]" Commonwealth's Brief at 5.
It is axiomatic that a criminal defendant has an absolute right to counsel under the Fifth Amendment of the Constitution of the United States and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v. Moore , 633 A.2d 1119, 1125 (Pa. 1993); Commonwealth v. Tyler , 360 A.2d 617, 619 (Pa. 1975). "While an accused is constitutionally guaranteed the right to the assistance of counsel that right gives to a defendant only the right to choose, at his or her own cost, any attorney desired. Where, as here, an accused is indigent, the right involves counsel, but not free counsel of choice." Commonwealth v. Abu-Jamal , 720 A.2d 79, 109 (Pa. 1998). (citing Commonwealth v. Segers , 331 A.2d 462, 465 (Pa. 1975)).
Upon review of the appellate briefs, the certified record, and the applicable law, we conclude that Appellant's first issue does not entitle him to relief. Contrary to Appellant's assertion, the removal of appointed counsel under the circumstances presented herein did not violate Appellant's constitutional right to the assistance of counsel. In support of our conclusion, we adopt as our own the thorough and well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at 8-28.
Next, Appellant argues that a new trial is warranted because the Commonwealth violated Brady v. Maryland , 373 U.S. 83 (1963), by failing to disclose impeachment evidence regarding Appellant's former girlfriend and Commonwealth witness, Tina Strom. Appellant's Brief at 28. According to Appellant, the Commonwealth did not disclose that Ms. Strom would benefit from a downward departure at sentencing in her federal case if she cooperated with the Commonwealth in Appellant's case. Id. at 33. Appellant further complains that the Commonwealth "failed to disclose its tacit understanding that the Commonwealth would advocate for Ms. Strom at her federal sentencing hearing." Id. at 36. In response, the Commonwealth asserts that "[a]ny benefit Ms. Strom received was as a result of her cooperation which was known by defense." Commonwealth's Brief at 12.
In Brady , the United States Supreme Court held that a defendant's due process rights are violated when the prosecution withholds favorable, material evidence from the defense. 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 , 614 Pa. 159, 36 A.3d 121, 133 (2012) (citation omitted). Therefore, even if the first two prongs have been established, a defendant must establish that he was prejudiced by the failure to disclose. See Commonwealth v. Appel , 547 Pa. 171, 689 A.2d 891 (1997). 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." Id. (citation omitted).Commonwealth v. Pugh , 101 A.3d 820, 825 (Pa. Super. 2014), appeal denied, 117 A.3d 296 (Pa. 2015).
Upon review of the appellate briefs, the certified record, and the applicable law, we conclude that Appellant's second issue does not warrant relief. Contrary to Appellant's assertion, the record reveals that the Commonwealth did not commit a Brady violation. In support of our conclusion, we adopt as our own the thorough and well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at 29-36.
Even if the Commonwealth failed to disclose impeachment evidence, we observe that Ms. Strom testified about her federal indictment and guilty plea and defense counsel thoroughly cross-examined her regarding the terms of her plea agreement and her expectation of a benefit at her federal sentencing. N.T., 1/21/15, at 713-718, 841-843, 894, 910-912, 920, 932, 944. Therefore, Appellant could not establish "there was a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Pugh , 101 A.3d at 825 (citation omitted).
In his third issue, Appellant challenges the trial court's failure to give a cautionary instruction to the jury following the testimony of co-conspirator and Commonwealth witness Paul Weakley. Appellant's Brief at 38. Appellant complains that the jury was "allowed improperly to infer that because his co-conspirator pled guilty" to a robbery in Monroe County, Appellant "must also be guilty" of the robbery charges he faced. Id. at 42. The Commonwealth contends that Appellant failed to preserve this issue for appeal. Commonwealth's Brief at 12. According to the Commonwealth, "defense asked about an instruction, but never objected to the insufficiency of the same. . . . In fact, the instruction was given immediately following the testimony of Weakley as requested by defense." Id. at 15-16.
We reiterate: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Specifically, a party's failure to object to a curative instruction as inadequate waives a challenge to the instruction on appeal. Commonwealth v. Powell , 956 A.2d 406, 421-422 (Pa. 2008).
Our review of the record confirms that defense counsel discussed an instruction regarding the jury's use of Mr. Weakley's testimony and the trial court agreed to consider whatever language defense counsel drafted. N.T., 6/21/15, at 993-995. Defense counsel did not object to Mr. Weakley's testimony about his federal and state criminal proceedings or his relationship with Appellant. Id. at 1008-1012, 1023-1025, 1034-1035, 1042, 1045, 1048-1051. At a sidebar during Mr. Weakley's testimony, the trial court and counsel again discussed the topic of a cautionary instruction concerning the limited use of Mr. Weakley's testimony. Id. at 1333-1335. Immediately after Mr. Weakley's testimony, the trial court gave the cautionary instruction specifically advising the jury on the limited use of the co-conspirator's testimony. Id. at 1346-1348. Appellant did not challenge the adequacy of the cautionary instruction or object to the trial court's jury charge. Id. at 1346-1348, 2813-2881. Thus, we conclude that Appellant has waived this issue. Pa.R.A.P. 302(a).
Appellant's fourth issue stems from the trial court's ruling less than one month before trial on the Commonwealth's motion in limine. Appellant's Brief at 44. The trial court allowed the Commonwealth to introduce the 2006 preliminary hearing testimony of a deceased witness, Ernest Culp. Appellant presents four bases on which admission of the challenged evidence violated his Sixth Amendment right to confront witnesses: 1) the trial court "placed undue reliance on an irrelevant past ruling by Judge Muroski in 2007 permitting the introduction of Michael Kerkowski, Sr.'s preliminary hearing testimony at trial," id. at 49; 2) "the rules governing a preliminary hearing in Pennsylvania are grossly inadequate to offer a fair prior opportunity for cross-examination," id.; 3) Appellant "had different counsel at trial and at the preliminary hearing in 2006" which "the Pennsylvania Supreme Court found . . . to be a significant factor in determining whether a defendant's confrontation rights have been satisfied," id. at 50 (citing Commonwealth v. Wholaver , 989 A.2d 883, 904 (Pa. 2010)); and 4) Appellant "was not furnished with Mr. Culp's criminal history nor any prior statements at the time of the preliminary hearing," id.
Mr. Culp died on September 13, 2014. Motion in Limine, 12/11/14, at Exhibit 2 (Certificate of death for Ernest Culp).
After responding to each of Appellant's first three assertions, the Commonwealth submits, "[T]he trial court correctly applied the standard in finding that Mr. Culp was unavailable and that [Appellant] had a full and fair opportunity to cross-examine him at the preliminary hearing." Commonwealth's Brief at 22. As for Appellant's fourth assertion, the Commonwealth responds that Mr. Culp did not have a criminal history and that "all reports relevant to Mr. Culp's testimony were in possession of defense at the preliminary hearing. Furthermore, . . . current counsel has not specified any fact in particular now in his possession, but not given at the preliminary hearing, that precluded a full and fair cross-examination." Id.
"Under both the Pennsylvania and United States Constitutions, a criminal defendant has a right to confront and cross-examine the witnesses against him." Commonwealth v. McCrae , 832 A.2d 1026, 1035 (Pa. 2003); U.S. Const. Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]"); Pa. Const. art. I, § 9 ("In all criminal prosecutions the accused hath a right ... to be confronted with the witnesses against him[.]"). "It is well-established, however, that the introduction of an unavailable witness's prior recorded testimony from a preliminary hearing is admissible at trial and will not offend the right of confrontation, provided the defendant had counsel and a full opportunity to cross-examine that witness at the hearing." McCrae , 832 A.2d at 1035. A defendant asserting a lack of a full and fair opportunity for cross examination must establish that he or she was deprived of "vital impeachment evidence." Commonwealth v. Cruz-Centeno , 668 A.2d 536, 543 (Pa. Super. 1995). "Vital impeachment evidence" includes prior inconsistent statements of the witness or the witness' criminal record. Id. at 543.
Having examined Judge Muroski's analysis of the applicable law and Ernest Culp's preliminary hearing testimony, the trial court conducted the following analysis in disposing of the Commonwealth's motion in limine:
Certified Record Docket Entry 108 (Judge Muroski Order and Opinion, 5/17/07, at 11-17); Certified Record Docket Entry 198 (Judge Muroski Order and Memorandum, 7/21/10, at 6-11).
In summary fashion, Mr. Culp indicated at the time of the preliminary hearing he was 57 years of age and engaged in the landscaping business. In May of 2002 Mr. Culp resided at Box 485 Mt. Olivet Road, Wyoming, Kingston Township. During early May, Mr. Culp allegedly observed an individual walking around 479 Mt. Olivet Road—an adjacent property. Mr. Culp was shown photographs identified as Commonwealth Exhibits 3 through 7
and discussed during the course of his preliminary hearing testimony.
Mr. Culp stated that he saw [Appellant], who he had been introduced to a few weeks earlier and another individual, he later came to know as Paul Weakley. The witness stated that he observed [Appellant] holding a shovel and further observed the ground turned over as though someone had been "digging".
Mr. Culp further recounted alleged statements attributed to [Appellant]. The first alleged statement occurred on the date the aforementioned observations were made and the second approximately four to six weeks later.
As previously indicated, counsel for both [Appellant] and defendant Weakley conducted cross-examination of Mr. Culp. Both lawyers posed numerous questions regarding Mr. Culp's direct testimony.
We have examined Mr. Culp's testimony within the analytical framework set forth in Judge Muroski's previously discussed opinions and conclude this testimony is admissible at trial.
Mr. Culp's testimony was given under oath and subject to, in our judgment, meaningful cross-examination. Although some objections interposed by the Commonwealth were sustained by the district judge, defense counsel was not significantly limited in the scope or nature of the cross-examination during Mr. Culp's testimony. It is also apparent, based upon this Court's present understanding of the Commonwealth's case, that Mr. Culp's testimony is of significant importance. Although this testimony is important it is certainly not the sole source of incriminating evidence against [Appellant]. It should also be noted that Mr. Culp has no history of crimen falsi offenses; pending criminal charges or any agreement regarding pending criminal charges.
Although not essential to our determination, we are satisfied that the Commonwealth established through Detective Capitano's testimony, that [Appellant's] then counsel, Attorney Pike, was in possession of reports of interviews with Mr. Culp during the preliminary hearing conducted on June 14, 2006.
We have examined the admitted exhibits, including the April 27, 2010 report prepared by Detective Capitano, and discern no vital impeachment evidence as that term is understood in our jurisprudence.9
Trial Court Memorandum, 1/5/15, at 2-4 (footnotes omitted).9 The term "vital" impeachment evidence is discussed at page 12 of Judge Muroski's July 21, 2010 opinion and we have employed that definition presently.
Judge Muroski wrote, "This term connotes essential, critical, and indispensable information." Certified Record Docket Entry 198 (Judge Muroski Order and Memorandum, 7/21/10, at 12).
Our review of the record confirms that Appellant was represented by counsel at the 2006 preliminary hearing and that no essential, critical, and indispensable information related to Mr. Culp existed. N.T., 6/14/06, at 2. Thus, we conclude that counsel had a full and fair opportunity to cross-examine Mr. Culp. Consequently, Appellant is not entitled to relief on this issue.
Next, Appellant challenges the expert testimony of the Commonwealth's forensic pathologist, Dr. Michael Baden, who conducted the autopsies on the victims. Appellant's Brief at 53. Appellant argues that Dr. Baden's expert medical opinion regarding evidence of blunt force trauma consistent with the use of a rolling pin on Michael Kerkowski, Jr.'s body was improperly based on hearsay facts supplied by Mr. Weakley. Id. at 54. According to Appellant, "[H]earsay statements of cooperating co-conspirators is not the type of evidence customarily relied upon by forensic pathologists in rendering a medical opinion." Id. at 55. Additionally, Appellant argues that Dr. Baden's testimony caused prejudice in that it bolstered Mr. Weakley's testimony. Id.
In response, the Commonwealth relies on Pennsylvania Rule of Evidence ("Pa.R.E.") 703. Commonwealth's Brief at 24. Pa.R.E. 703 provides: "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed." According to the Commonwealth, Dr. Baden personally observed the bruising on Michael Kerkowski, Jr.'s body, opined to a reasonable degree of medical certainty that such injuries were caused by blunt force trauma, and indicated that such trauma was consistent with blows from a rolling pin; therefore, his testimony was properly admitted. Commonwealth's Brief at 24.
Upon review of the appellate briefs, the certified record, and the applicable law, we conclude that Appellant's fifth issue does not warrant relief. Contrary to Appellant's assertion, Dr. Baden's expert testimony was not based on hearsay facts but on his personal observations and the record testimony of Mr. Weakley. Moreover, Dr. Baden testified to a reasonable degree of medical certainty. In support of our conclusion, we adopt as our own the thorough and well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at 45-53.
In his sixth issue, Appellant complains that the trial court erred in denying his motion for a mistrial. Appellant's Brief at 56. The genesis for this claim was the Commonwealth's effort "to elicit testimony from [Appellant's] then-girlfriend and key prosecution witness, Christina Strom, regarding an incident when [Appellant] purportedly went to a police station in January 2003 to discuss a robbery." Id. at 56-57. Appellant recounts that, despite defense objections—which the trial court sustained—and curative instructions, Ms. Strom testified about the robbery of Michael Kerkowski, Jr., suggesting that Appellant was involved in it with Mr. Weakley. Because Appellant was on trial for robbery, he concludes, "[t]he effect of this entire sequence of testimony was highly prejudicial and denied [Appellant] of a fair trial. A mistrial was the only recourse." Id. at 59.
The Commonwealth first responds that Appellant's statements to Ms. Strom about a robbery were admissible as voluntary extrajudicial statements. Commonwealth's Brief at 25 (citing Commonwealth v. Simmons , 662 A.2d 621 (Pa. 1995)). Additionally, the Commonwealth contends that the trial court's curative instructions—to which defense counsel did not object—"cured any defect and a mistrial was therefore unwarranted." Id. Lastly, the Commonwealth suggests, "in light of the seven (7) weeks of testimony, it is impossible for the jury to reasonably infer the meaning of this scrap of testimony." Id. at 27.
We review the denial of a motion for mistrial according to the following standards:
In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when
prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, . . . assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion. Judicial discretion requires action in conformity with the law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.Commonwealth v. Jaynes , 135 A.3d 606, 614-615 (Pa. Super. 2016) (quoting Commonwealth v. Lettau , 955 A.2d 360, 363 (Pa. Super. 2008) (citations and quotation marks omitted)). A mistrial "is not necessary where cautionary instructions are adequate to overcome prejudice." Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011). Additionally, it is well settled that the jury is presumed to follow the trial court's instructions. Commonwealth v. Travaglia , 28 A.3d 868, 882 (Pa. 2011).
Upon review of the appellate briefs, the certified record, and the applicable law, we conclude that Appellant's sixth issue does not warrant relief. Ms. Strom's testimony referred to Appellant's statements. Even if the jury could infer that Appellant was implicating himself in a robbery, the trial court advised the jury to disregard the testimony. We presume the jury followed the trial court's instructions, and Appellant does not otherwise attempt to offer any evidence establishing that the jury failed to do so in the instant case. Travaglia , 28 A.3d at 882. In support of our conclusion, we adopt as our own the thorough and well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at 53-57.
In Appellant's final issue, he complains that the trial court erred in permitting the Honorable Brendan Vanston to testify. Appellant's Brief at 60. Judge Vanston presided over Michael Kerkowski, Jr.'s drug distribution trial and subsequent plea proceedings in Wyoming County. Judge Vanston testified to noticing (1) Appellant was in the courtroom during Michael Kerkowski, Jr.'s guilty plea, (2) Appellant "glared" at Judge Vanston, which caused him "some concern," and (3) Appellant and Michael Kerkowski, Jr. left the courthouse and behaved in a manner he found "unusual." Id. at 61. According to Appellant, Judge Vanston's testimony served "no legitimate purpose" other than to "throw the weight of the judge's position, authority and weight of his judicial office on the Commonwealth's side of the scales." Id. at 62, 63-64 (citing Commonwealth v. Connelly , 269 A.2d 390 (Pa. Super. 1970)).
Initially, the Commonwealth criticizes Appellant's reliance on Connelly :
Defense submitted two sentences dissected from the [ Connelly ] opinion without context. The case actually involves a judge who presided over [the] defendant's prior conviction. That judge was called to the witness stand in [the] defendant's trial on
subsequent charges under the guise of identifying that defendant as the same person who had entered a plea of guilty before him to the indictment.Commonwealth's Brief at 28 (internal citations omitted). It then defends Judge Vanston testifying as a fact witness:
He was the only witness who observed the unusual celebratory behavior of [Appellant] and his victim following the victim having been found guilty of four or five offenses at trial and then later pleading guilty to another four or five offenses. He was the only person in the courtroom besides [Appellant], Mr. Kerkowski, obviously deceased at the time of the trial at bar and Mr. Kerkowski's counsel.Id. at 29 (internal citations omitted). Lastly, the Commonwealth explains the connection between the victim's proceedings before Judge Vanston and (a) the defense theory that the money Appellant received from Michael Kerkowski, Sr. "was payment for legal services" and (b) Appellant's extortion of money from Michael Kerkowski, Jr.'s parents, "leaving them to believe that their son had fled after his guilty plea, but before his sentencing in Wyoming County, and [Appellant] was assisting him." Id. at 30 (internal citations omitted).
Generally:
relevant evidence, i.e., evidence that logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact, is admissible. However, relevant evidence may be excluded if its probative value is outweighed by the likelihood of unfair prejudice. Admission of evidence rests within the sound discretion of the trial court, which must balance evidentiary value against the potential dangers of unfairly prejudicing the accused, inflaming the passions of the jury, or confusing the jury.Commonwealth v. Wilson , ___ A.3d ___, 2016 PA Super 144, at *5 (Pa. Super. 2016) (quoting Commonwealth v. Jordan , 65 A.3d 318, 324-325 (Pa. 2013) (internal citations, quotation marks, and brackets omitted)). A trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous. Id. (citation omitted).
Upon review of the appellate briefs, the certified record, and the applicable law, we conclude that Appellant's seventh issue does not warrant relief. We discern no abuse of the trial court's discretion in permitting Judge Vanson to testify as a fact witness under the unique circumstances of this case. In support of our conclusion, we adopt as our own the thorough and well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at 60-67.
Because Appellant's issues are waived or lack merit, we conclude that he is not entitled to relief. Therefore, we affirm the judgment of sentence for the murders of Michael Kerkowski, Jr. and Tammy Fassett.
The parties are directed to attach a copy of the trial court's September 24, 2015 opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/11/2016
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