Com. v. Gilbert, J. ( 2022 )


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  • J-S27035-21
    
    2022 PA Super 12
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JAMES MANASSEH GILBERT                     :
    :
    Appellant               :   No. 37 WDA 2021
    Appeal from the Judgment of Sentence Entered December 20, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
    CP-25-CR-0002794-2018
    BEFORE:      OLSON, J., NICHOLS, J., and COLINS, J.*
    OPINION BY COLINS, J.:                              FILED: JANUARY 25, 2022
    Appellant, James Manaseeh Gilbert, appeals from the judgment of
    sentence following his conviction of first-degree murder1 and related offenses.
    We affirm.
    The evidence at trial was as follows. Appellant and Marinda Matasowski
    (“the victim”) were parents to a son, J.M., who was one-year old at the time
    of his mother’s death. On the evening of August 2, 2018, the victim called
    her mother, Kimberly Lobaugh, and Ms. Lobaugh agreed to babysit J.M. during
    the victim’s overnight shift as a certified nursing assistant at a hospital.
    The victim and Appellant arrived at Ms. Lobaugh’s home shortly after 10
    p.m. and brought J.M. inside. Upon entering, Appellant asked Ms. Lobaugh
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   18 Pa.C.S. § 2502(a).
    J-S27035-21
    “[c]an we go downstairs and talk?” N.T., 11/4/19, at 60. The victim then
    handed J.M. to Ms. Lobaugh and the four of them walked downstairs into the
    bottom floor of Ms. Lobaugh’s split-level home. Sensing something was wrong
    from Appellant’s behavior, Ms. Lobaugh asked Appellant “[w]hat’s going on?”
    and stated “[w]hatever is wrong, whatever’s going on, we can try to work it
    out.” Id. at 63. Appellant then stated, “I just want to talk to [the victim] and
    tell her that I love her” and asked her to go upstairs with J.M. Id. at 64-65.
    Soon after leaving Appellant and the victim alone downstairs, Ms.
    Lobaugh heard her daughter scream. Ms. Lobaugh went downstairs and saw
    Appellant with a knife in his hand stabbing himself in his chest and the victim
    laying on the floor. Appellant said to Ms. Lobaugh “I don’t know why I did it”
    and hugged her and J.M. Id. at 67.
    Patrick Matasowski, the victim’s brother who lived with Ms. Lobaugh,
    came downstairs from his room after hearing his mother scream. As he was
    walking down the stairs, he saw Appellant coming upstairs from the lower
    level with blood on his clothing and saying that he had to go to the hospital.
    Mr. Matasowski accompanied Appellant out to the victim’s car to drive him to
    the hospital. Mr. Matasowski then returned to the house to get the keys to
    the car whereupon he discovered that the victim was severely injured. Mr.
    Matasowski removed J.M. from the room where the stabbing had occurred and
    returned to help provide first aid to his sister.
    Officer Mark Fritz of the Millcreek Township Police Department was the
    first officer to respond to the scene. When he arrived, Appellant was outside
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    of Ms. Lobaugh’s house by the garage. Officer Fritz described Appellant as
    having a “[v]ery calm, focused” demeanor. N.T., 11/5/19, Vol. I, at 74. Upon
    noticing the blood on Appellant, Officer Fritz asked Appellant if he was injured.
    Appellant informed the officer that he had stabbed himself in the chest. Officer
    Fritz then asked Appellant whether he had a weapon, to which Appellant
    responded, “I think I killed her, she’s in there, she’s the devil.” Id. Other
    officers responding to the scene discovered a 12-inch-long blood-stained
    kitchen knife in close proximity to the victim’s body and determined that the
    brand of the knife was consistent with the kitchen knife set in the apartment
    Appellant and the victim shared.
    Appellant was charged with general criminal homicide, aggravated
    assault, reckless endangerment, and possessing an instrument of crime. 2 He
    proceeded to a jury trial in November 2019. The trial court charged the jury
    as to first- and third-degree murder and further instructed the jury as to a
    defense of diminished capacity due to voluntary intoxication, which could
    reduce the murder conviction from first-degree to third-degree murder but
    would not serve as a defense to any other charge. N.T., 11/6/19, at 120-25.
    On November 6, 2019, a jury convicted Appellant of first-degree murder,
    aggravated assault, reckless endangerment, and possessing an instrument of
    ____________________________________________
    2   18 Pa.C.S. §§ 2501, 2702(a)(1), 2705, and 907(a), respectively.
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    crime. On December 20, 2019, the trial court sentenced Appellant to a term
    of imprisonment of life without parole. Appellant’s timely appeal followed.3
    Appellant raises four issues in this appeal. First, Appellant argues that
    the trial court improperly barred the testimony of a psychiatrist who treated
    Appellant for mental health issues at Erie County Prison, following Appellant’s
    arrest. Second, Appellant contends that the trial court abused its discretion
    by allowing the Commonwealth to call a rebuttal witness to testify about her
    experience of smoking marijuana that had been found in Appellant’s
    apartment after Appellant had testified that he was experiencing ill effects
    from smoking marijuana at the time of the stabbing. Third, Appellant argues
    that the trial court abused its discretion by permitting testimony regarding
    incidents of domestic violence between Appellant and the victim on the theory
    that Appellant had “opened the door” to such testimony. Finally, Appellant
    asserts that the trial court abused its discretion by permitting the
    Commonwealth to introduce evidence of his September 11, 2018 summary
    harassment conviction.4
    ____________________________________________
    3Appellant filed his concise statement of errors complained of on appeal on
    February 12, 2020, and the trial court filed its Pa.R.A.P. 1925(a) opinion on
    April 8, 2020.
    4 In his statement of questions, Appellant raises a fifth issue related to the
    admission, over Appellant’s objection, of autopsy photographs during the
    testimony of the Erie County Coroner. Appellant’s Brief at 3-4. However, in
    the argument section of his brief, Appellant states that the admission of the
    autopsy photographs was squarely within the trial court’s discretion and the
    issue was only raised “based upon emotion and belief of the defendant; but
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    The issues presented in this appeal each relate to evidentiary rulings
    made by the trial court. “The admissibility of evidence is a matter within the
    sound discretion of the trial court and will be reversed only where there is a
    clear abuse of discretion.” Commonwealth v. Clemons, 
    200 A.3d 441
    , 474
    (Pa. 2019) (citation omitted). The trial court will be found to have abused its
    discretion only where its “judgment is manifestly unreasonable or where the
    law is not applied or where the record shows that the action is a result of
    partiality, prejudice, bias or ill will.” Commonwealth v. Lekka, 
    210 A.3d 343
    , 354 (Pa. Super. 2019) (citation omitted).
    Appellant first argues that the trial court abused its discretion by
    prohibiting Dr. Sean Su, a psychiatrist employed part-time by Erie County
    Prison, from testifying regarding his treatment of Appellant in the weeks
    following his arrest. While Appellant acknowledges that Dr. Su would not meet
    the standard necessary for him to testify as an expert with respect to a
    diminished capacity defense, Appellant contends that Dr. Su would have
    provided relevant testimony as a fact witness regarding his diagnosis of
    Appellant with psychosis and major depressive disorder and Appellant’s
    ____________________________________________
    undersigned counsel cannot in good conscience further [the] argument.” 
    Id. at 23
    . Therefore, Appellant “conceded” the issue and “removed [it] from [this
    Court’s] consideration.” Id. at 4 (emphasis omitted). As counsel has
    abandoned this issue for the purpose of this appeal, we will not address it
    further. See Commonwealth v. Williams, 
    141 A.3d 440
    , 471 (Pa. 2016)
    (“Appellate counsel need not (and should not) raise every nonfrivolous claim,
    but rather may select from among them in order to maximize the likelihood
    of success on appeal.”) (citation omitted).
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    reports of auditory hallucinations and other mental health symptoms.
    Because the Commonwealth charged Appellant with criminal homicide
    generally and instructed the jury that they could find him guilty of first-degree
    or third-degree murder, see N.T., 11/6/19, at 120, Appellant asserts that the
    testimony of Dr. Su regarding Appellant’s mental state would be particularly
    relevant to the question of whether Appellant lacked the specific intent to kill
    necessary to show that he should be convicted of murder of the first degree.
    Appellant argues that the trial court’s decision to preclude Dr. Su’s testimony
    deprived Appellant of his due process right to defend himself of the criminal
    charges against him.
    The record reveals that Appellant filed             a pre-trial   motion for
    psychological examination, in which he described Appellant’s mental health
    history and attached various records related to his treatment. Among the
    records attached to this motion was an August 23, 2018 report by Dr. Su, in
    which he indicated that Appellant suffered major depressive disorder with
    psychosis and that he reported auditory hallucinations. Motion for Psychiatric5
    Examination, 5/10/19, ¶30, Exhibit 8.            The trial court granted Appellant’s
    motion.
    Although an evaluation was performed, Appellant did not ultimately call
    the psychologist who performed the evaluation to testify at trial. Instead,
    ____________________________________________
    5 While Appellant requested that the trial court authorize the dispersal of funds
    for Appellant’s examination by a psychiatrist, the individual Appellant chose
    for the examination was a psychologist.
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    Appellant notified the Commonwealth that he intended to call Dr. Su. to testify
    about his after-the-fact diagnosis of Appellant. The Commonwealth noted its
    objection based upon relevance to the extent Dr. Su would provide general
    testimony related to Appellant’s mental state but would not offer testimony
    that was sufficient to show that Appellant lacked capacity to kill the victim.
    N.T., 10/23/19, at 29-30; N.T., 11/4/19, at 11-13; N.T., 11/5/19, Vol. I, at
    14-15. Appellant stated that Dr. Su would not testify regarding Appellant’s
    state of mind at the time of the killing, nor would Appellant seek to assert a
    diminished capacity defense based upon a mental disorder. N.T., 10/23/19,
    at 30; N.T., 11/4/19, at 15; N.T., 11/5/19, Vol. I, at 13. Instead, Appellant
    indicated that Dr. Su would testify as a fact witness regarding his diagnosis of
    Appellant with major depressive disorder and psychosis approximately three
    weeks after the incident in question. N.T., 10/23/19, at 31-32; N.T., 11/4/19,
    at 13-15; N.T., 11/5/19, Vol. I, at 13-14, 16.
    The trial court sustained the Commonwealth’s objection. N.T., 11/5/19,
    Vol. I, at 25. The court explained its reasoning in its Pa.R.A.P. 1925(a) opinion
    as follows:
    Appellant conceded that neither Dr. Su, nor any other medical
    professional, would offer the requisite psychiatric testimony to
    support a diminished capacity defense. However, when pressed
    on relevancy, counsel admitted that Dr. Su’s testimony would
    “[go] to the assertions of the Commonwealth that my client acted
    deliberately, maliciously, premeditatively.” [N.T., 11/5/19,
    Vo. I, at 20 (emphasis supplied).]
    There is no difference between the stated proffer and the defense
    of diminished capacity.     First degree murder is a homicide
    “committed by an intentional killing.” 18 Pa.C.S.[] §2502(a). An
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    “intentional killing” is a “[k]illing by means of poison, or by lying
    in wait, or by any other kind of willful, deliberate and
    premeditated killing.”           18 Pa.C.S.[] §2502(d) (emphasis
    supplied). By counsel’s own admission, the proffered evidence
    would have put Appellant’s capacity to commit an intentional
    killing at issue without providing the requisite supporting
    psychiatric evidence.       Accordingly, Dr. Su’s testimony was
    correctly excluded.
    Trial Court Opinion, 4/8/20, at 6.
    A defense of diminished capacity is “an extremely limited defense”
    where a defendant admits criminal liability generally but seeks to mitigate a
    first-degree murder charge to third-degree murder.          Commonwealth v.
    Hutchinson, 
    25 A.3d 277
    , 312 (Pa. 2011).            “To establish a diminished
    capacity defense, a defendant must prove that his cognitive abilities of
    deliberation and premeditation were so compromised, by mental defect or
    voluntary intoxication, that he was unable to formulate the specific intent to
    kill.” 
    Id.
     In this case, Appellant conceded that Dr. Su’s testimony could not
    be used to establish a diminished capacity defense based upon a mental defect
    as he would not testify that Appellant suffered from a mental disorder affecting
    his cognitive functions on the date he stabbed the victim.               See 
    id.
    (“[D]iagnosis with a personality disorder does not suffice to establish
    diminished capacity.”); Commonwealth v. Vandivner, 
    962 A.2d 1170
    , 1183
    (Pa. 2009) (“[P]sychiatric evidence that a defendant lacked the ability to
    control his actions or that he acted impulsively is irrelevant and inadmissible
    on the issue of the defendant's specific intent to kill.”) (citation omitted).
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    Even though Dr. Su’s testimony would not support a diminished capacity
    defense, Appellant argued that the psychiatrist’s diagnosis of Appellant with
    major depressive disorder and psychosis would be “highly relevant to whether
    a jury convicts [Appellant] or not on [] first[-] or third[-]degree” murder.
    N.T., 11/5/19, Vol. I, at 14.      When asked by the trial court how Dr. Su’s
    testimony would be relevant if not under a diminished capacity theory,
    Appellant   stated   that   such   evidence   was   relevant   to   whether   the
    Commonwealth met its “burden to prove that it was a deliberate, malicious,
    premeditated murder.” 
    Id. at 17
    ; see also 
    id. at 20
    . However, as the trial
    court aptly concluded, Appellant’s proffer was nearly identical to the role that
    psychiatric evidence plays in a diminished capacity defense to show that the
    defendant lacked the mental capacity of premeditation and deliberation such
    that he could not form a specific intent to kill. Trial Court Opinion, 4/8/20, at
    6; Hutchinson, 25 A.3d at 312.         To allow Appellant to submit psychiatric
    evidence bearing on his specific intent to kill without that evidence meeting
    the diminished capacity standard laid out by our Supreme Court would “create
    confusion with the jury,” as the trial court stated. N.T., 11/5/19, Vol. I, at
    22-24; see Pa.R.E. 403 (providing that the court may exclude relevant
    evidence if its probative value is outweighed by a danger of, inter alia,
    “confusing the issues” or “misleading the jury”). Moreover, such confusion
    would be compounded in this case where Appellant testified that he consumed
    possibly tainted marijuana a few hours before the stabbing incident, and the
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    J-S27035-21
    trial court instructed the jury as to a diminished capacity defense based upon
    voluntary intoxication. N.T., 11/6/19, at 124-25.
    In light of the circumscribed use of psychiatric testimony in murder
    cases and Appellant’s failure to proffer a basis for the admission of Dr. Su’s
    testimony distinguishable from the diminished capacity defense, we discern
    no abuse of discretion in the trial court’s exclusion of Dr. Su’s testimony. See
    Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1140-41 (Pa. Super. 2009)
    (affirming trial court’s determination that psychiatric testimony of a
    defendant’s “life history and his psychological issues since incarceration,
    rather than his state of mind at the actual time of the crime” was irrelevant
    as they would not support either a diminished capacity defense or a theory of
    self-defense). Appellant’s first issue thus merits no relief.
    Appellant next argues that the trial court abused its discretion by
    permitting Miranda Will to testify as a rebuttal witness regarding her condition
    after smoking marijuana that was taken from the apartment shared by
    Appellant and the victim three days after the victim’s death.         Appellant
    contends that this evidence was not relevant as it “bore zero bearing on the
    facts at issue in the trial” as “[n]o connection whatsoever was made between
    the marijuana Ms. Will smoked and the marijuana [A]ppellant smoked the
    night of the homicide.”    Appellant’s Brief at 20-21.     Therefore, Appellant
    asserts that Ms. Will’s discussion of the effects of the marijuana was not
    permitted as lay opinion testimony under Pennsylvania Rule of Evidence 701
    as her testimony was not relevant to the issues under consideration by the
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    jury. See Pa.R.E. 701(b) (stating that lay opinion testimony is permitted only
    when it is “helpful to clearly understanding the witness’s testimony or to
    determining a fact in issue”).
    Prior to trial, counsel for Appellant indicated to the court that he
    intended to present evidence that he became delirious prior to stabbing the
    victim as a result of smoking potentially tainted marijuana; Appellant
    therefore requested that the Commonwealth preserve and analyze any
    marijuana it had collected during the police investigation. N.T., 3/20/19, at
    3-4; N.T., 10/23/19, at 34-35.             Three quantities of marijuana—two on
    Appellant’s person and one in the victim’s vehicle—were recovered and each
    was tested and determined to contain only marijuana and no other controlled
    substance. N.T., 10/23/19, at 35; N.T., 11/5/19, Vol. I, at 60-64. Defense
    counsel stated at a subsequent pre-trial hearing that the Commonwealth likely
    had not tested the potentially tainted marijuana he had smoked that evening
    because he had smoked a marijuana blunt6 at home and left it there on an
    end table. N.T., 3/20/19, at 3-4,11-14; N.T., 10/23/19, at 35. Ms. Will later
    learned about the discussion of the tainted marijuana in the apartment
    through a friend who had attended that pre-trial hearing, and she contacted
    the victim’s mother, Ms. Lobaugh. N.T., 11/6/19, at 66-67. Ms. Will told Ms.
    ____________________________________________
    6 According to Ms. Will, “[a] blunt is a cigar that is broken down and emptied
    out so that we can replace the nicotine with marijuana”; the marijuana is then
    rerolled and sealed inside the cigar paper before it is smoked. N.T., 11/6/19,
    at 62.
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    Lobaugh that she and her boyfriend, Cody Perry, went into the apartment
    after the victim’s death in order to obtain a keepsake of the victim with Ms.
    Lobaugh’s consent, and Mr. Perry found a blunt in the apartment, which the
    two then smoked.     N.T., 10/23/19, at 36-37.     Ms. Lobaugh reported this
    conversation with Ms. Will to police. Id. at 37.
    Upon learning of the Commonwealth’s intention to call Ms. Will as a
    witness regarding the smoking of the blunt, Appellant filed a motion in limine
    seeking to exclude any potential testimony by Ms. Will or Mr. Perry as they
    lacked any expertise to ascertain whether the marijuana was tainted with any
    other substance. The trial court ruled at a pre-trial hearing that if Appellant
    testified that after smoking the potentially tainted blunt his mental processes
    were altered beyond what he normally would have experienced when
    consuming marijuana, the testimony of Ms. Will or Mr. Perry would be relevant
    on rebuttal. Id. at 40-41.
    At trial, Appellant testified that he was a regular marijuana smoker and
    that he “rolled up” marijuana in a blunt and smoked it on the evening of
    August 2, 2018. N.T., 11/5/19, Vol. II, at 67-68, 118-19. Appellant testified
    that the marijuana “didn’t make me feel normal” and that he “thought
    something was in it because” “it wasn’t like [] normal” marijuana. Id. at 68,
    120. Appellant stated that, after smoking, he thought he heard voices outside
    and that someone was watching him from outside the apartment and that he
    continued to feel the experience of being watched and being watched up until
    the point that he stabbed the victim. Id. at 69-71, 79. Appellant stated that
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    he was not sure whether the marijuana he smoked that evening was the same
    as that found by police on his person as he had changed clothes prior to driving
    with the victim to Ms. Lobaugh’s house. Id. at 68-69, 120-21. Appellant
    further stated that the marijuana blunt taken from his apartment by Ms. Will
    and Mr. Perry could have been the same marijuana he smoked a few hours
    before stabbing the victim, although he could not be certain. Id. at 121-23.
    After the defense rested, the Commonwealth called Ms. Will as a rebuttal
    witness. Ms. Will testified that she went to the apartment shared by the victim
    and Appellant three days after the victim’s death to collect mementos, and
    during that visit, Mr. Perry found the partially smoked blunt in the apartment.
    N.T., 11/6/19, at 58-61. Ms. Will stated that she and Mr. Perry smoked the
    blunt while they drove back from the apartment. Id. at 63. Ms. Will testified
    that she regularly smoked marijuana and that after smoking the blunt she
    “felt the normal high that [she] usually [experienced] from marijuana which
    would be kind of mellowed out, . . . kind of in a better mood, relax[ed]” and
    hungry. Id. at 63-64. Ms. Will stated that she felt no unusual effects and she
    was able to drive fine. Id. at 64. In addition, Ms. Will stated that she did not
    notice any unusual behavior from Mr. Perry, who was also a regular marijuana
    smoker, after smoking. Id. at 64-65.
    “[T]the admission of rebuttal testimony is within the sound discretion of
    the trial court, and the appropriate scope of rebuttal evidence is defined by
    the evidence that it is intended to rebut.”   Commonwealth v. Yocolano,
    
    169 A.3d 47
    , 56 (Pa. Super. 2017) (quoting Commonwealth v. Ballard, 80
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    J-S27035-
    21 A.3d 380
    , 401 (Pa. 2013)). Evidence is generally admissible “if it is relevant—
    that is, if it tends to establish a material fact, makes a fact at issue more or
    less probable, or supports a reasonable inference supporting a material fact—
    and its probative value outweighs the likelihood of unfair prejudice. Clemons,
    200 A.3d at 474 (citation omitted); see also Pa.R.E. 401 (“Evidence is
    relevant if: (a) it has any tendency to make a fact more or less probable than
    it would be without the evidence; and (b) the fact is of consequence in
    determining the action.”). Pursuant to Pennsylvania Rule of Evidence 701, a
    lay witness may testify in the form of an opinion when the testimony 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[, relating to opinion
    testimony by an expert witness].
    Pa.R.E. 701.
    It is well-established that a witness may offer lay opinion testimony
    regarding another’s readily physical condition or appearance, where the
    opinion does not require medical or specialized training.           See, e.g.,
    Commonwealth v. Gause, 
    164 A.3d 532
    , 538 (Pa. Super. 2017) (en banc).
    This case requires our consideration of a different question: may a lay witness
    offer an opinion about whether their own mental and physical condition
    remained consistent across several instances when they consumed what they
    understood to be the same drug.
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    J-S27035-21
    Upon review, we see no abuse of discretion in the trial court permitting
    Ms. Will to testify about her condition after smoking the partially smoked blunt
    and comparing her experience to prior instances in which she had smoked
    marijuana. Ms. Will’s testimony established that she was a regular marijuana
    smoker, and therefore she was familiar with the feeling of intoxication from
    ingesting that substance.      N.T., 11/6/19, at 63-64.      She then testified
    regarding her own perception of the effects of smoking the blunt as compared
    to prior instances when she had smoked marijuana, finding no discernable
    difference on the date in question. 
    Id. at 64
    ; see Pa.R.E. 701(a). Ms. Will
    did not offer an opinion relying on scientific, technical, or other specialized
    knowledge, but instead her testimony was based solely upon her comparison
    of her reactions to different occasions where she had smoked marijuana. See
    Pa.R.E. 701(c). Furthermore, Ms. Will was permitted to offer her lay opinion
    that Mr. Perry, her boyfriend, did not exhibit any unusual behavior following
    his smoking of the blunt, such as mumbling, delirium, or not being able to
    follow a conversation. N.T., 11/6/19, at 64-65; see also Gause, 164 A.3d at
    538.
    Moreover, the trial court did not abuse its discretion in determining that
    Ms. Will’s testimony regarding her experiences after smoking the blunt was
    relevant as rebuttal to Appellant’s testimony regarding the unusual effects he
    felt at the time of the stabbing that he believed were brought on by smoking
    marijuana. Appellant testified that the blunt he rolled and smoked a few hours
    prior to stabbing the victim made him feel not “normal” and he insinuated that
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    it may have been laced with some other unknown psychoactive substance.
    N.T., 11/5/19, Vol. II, at 68, 120. In addition, Appellant requested and was
    granted a jury instruction based upon a defense of diminished capacity due to
    voluntary intoxication.     N.T., 11/6/19, at 124-25.      While Appellant’s
    statements concerning what he did with the remainder of the potentially
    tainted marijuana were vague and inconclusive, he did not rule out that he
    left the marijuana at home and his testimony that he smoked it in a blunt form
    at home was consistent with Ms. Will and Mr. Perry finding a blunt in the
    apartment. As the blunt was smoked and not turned over to the police, the
    Commonwealth was not able to test it to determine its chemical composition.
    Therefore, Ms. Will’s testimony was directly responsive to Appellant’s
    testimony and served to rebut his defense based upon his testimony that the
    marijuana he smoked induced a violent episode. See Yocolano, 169 A.3d at
    56. Having found that Ms. Will’s testimony was relevant and permissible lay
    opinion testimony, we therefore find no merit in Appellant’s second appellate
    issue.
    In his third issue, Appellant argues that the trial court abused its
    discretion by permitting the Commonwealth to offer “hearsay evidence
    relating to alleged domestic violence perpetrated by [A]ppellant” through the
    testimony of “virtually every [Commonwealth] witness.” Appellant’s Brief at
    32. Appellant contends that the Commonwealth was “given license to explore
    domestic violence allegations unfettered” following the trial court’s ruling
    during the testimony of Ms. Lobaugh, the Commonwealth’s first witness and
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    the victim’s mother, that Appellant had opened the door to her testimony
    relating to the victim’s reports of previous abusive behavior by Appellant. Id.
    at 34. Appellant asserts that this ruling “changed the nature and course of
    the entire trial,” resulting in violations of Appellant’s rights under the
    confrontation clause as he was not able to cross-examine the victim at trial,
    the ultimate source of these hearsay domestic violence reports. Id. at 35.
    Initially, we note that while Appellant argues that the purportedly
    improper testimony regarding domestic violence permeated the trial, he only
    cites to one specific portion of the testimony of Ms. Lobaugh in his appellate
    brief.    In fact, Appellant does not even reference the names of the other
    witnesses who he claims made objectionable references to domestic violence
    incidents. Our appellate rules require that an appellant who refers to evidence
    of record in his brief must include “a reference to the place in the record where
    the matter referred to appears.” Pa. R.A.P. 2119(c). An appellant’s failure to
    properly develop an argument with citations to the relevant portions of the
    record will result in the waiver of his appellate claims. See Commonwealth
    v. Brown, 
    200 A.3d 986
    , 991 (Pa. Super. 2018) (“In order for this Court to
    determine whether [the appellant] was prejudiced by the trial court’s adverse
    ruling on his motion in limine, he must, at a minimum, direct us to the specific
    places in the record where allegedly prejudicial testimony was elicited.”); see
    also Commonwealth v. Mulholland, 
    702 A.2d 1027
    , 1034 n.5 (Pa. 1997)
    (“In a record containing thousands of pages, this court will not search every
    page to substantiate a party’s incomplete argument.”).        As Appellant has
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    identified only the testimony of one witness who testified as to domestic
    violence between himself and the victim—that of Ms. Lobaugh—we will confine
    our discussion to this one instance of purportedly improper testimony.7
    In her direct examination, Ms. Lobaugh stated that “a lot of arguments,
    a lot of fights” took place between the victim and Appellant during the latter
    part of 2017. N.T., 11/4/19, at 46. Ms. Lobaugh also discussed a period of a
    few months when Appellant was living in another state and the victim was “a
    lot more relaxed” and less “on edge.” 
    Id. at 48-49
    . The prosecutor then drew
    Ms. Lobaugh’s attention to an “incident” or “fight of sorts” in June of 2018 that
    caused the victim to pack all of her belongings and move in with her before
    finally going back to live with Appellant a few weeks later. 
    Id. at 51-52
    . No
    objection was lodged by the defense to any of these statements.
    ____________________________________________
    7 Appellant’s sole arguable citation to other objectionable trial testimony is his
    reference to the “witnesses listed off by the [t]rial [c]ourt in its [Pa.R.A.P.]
    1925 [o]pinion,” who Appellant states “all made allegations that [A]ppellant
    was harming [the victim] throughout their relationship with impunity.”
    Appellant’s Brief at 42. In its opinion, the trial court discussed three other
    Commonwealth witnesses who testified as to domestic violence incidents
    between Appellant and the victim: Ms. Will, Carly Blanks, and Danielle
    Burhenn. Trial Court Opinion, 4/8/20, at 15-17. However, as the trial court
    noted, Appellant did not object to the relevant portions of Ms. Will’s, Ms.
    Blank’s, and Ms. Burhenn’s testimony, and therefore he waived any potential
    appellate challenge to their testimony. 
    Id.
     While Appellant asserts in his brief
    that he lodged a general objection prior to trial to any hearsay testimony that
    would imply that he abused the victim, see Appellant’s Brief at 35 (citing N.T.,
    11/4/19, at 5, 11), Appellant’s failure to cite to the challenged portions of the
    trial transcript in his brief or even reference the names of the witnesses who
    offered allegedly improper testimony obviates any need by this Court to
    address any other testimony beyond the specifically referenced portions of
    Ms. Lobaugh’s testimony. Brown, 200 A.3d at 991.
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    J-S27035-21
    During cross-examination of Ms. Lobaugh, defense counsel initiated the
    following two exchanges:
    Q. Okay. And up to that point -- I don’t want to belabor the point,
    but up to that point you never knew of any issues or troubles in
    the relationship at that point, correct?
    A. Yes, there were.
    Q. There were?
    A. Yes.
    Q. Normal boyfriend /girlfriend issues or?
    A. Yeah, I think it went a little beyond that, but yes, there was
    arguing, fighting.
    *     *     *
    Q. Okay. Now, [did] you and [Appellant] ever have discussion
    about the relationship between he and [the victim]?
    A. Yes, I have.
    Q. What type of discussion did you have?
    A. Depending on what was going on at the time, there was a lot
    of arguments, a lot of fighting going on, and he wanted me
    to say she was wrong. And yes, just a lot of discussion as to
    whose fault started what.
    Q. And it was a lot of, I guess, would you agree, a lot of
    arguments were pretty meaningless, small things blown
    out of proportion?
    A. At times.
    Id. at 74, 78-79 (emphasis added).
    During redirect, the prosecutor questioned Ms. Lobaugh as follows:
    Q. [Y]ou were asked by [defense counsel] about the relationship
    between [Appellant] and your daughter, and he described -- he
    used the term that they had some minor fights. Do you recall him
    asking you that?
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    J-S27035-21
    A. Yes, I do.
    Q. And I think you said well, some, but it went beyond that.
    A. Yes, it did.
    Q. Okay. Can you describe what you mean when you say that
    the arguments that they had went beyond the minor incidents that
    [defense counsel] talked about?
    A. I received many, many phone calls from her crying as
    she had been hit, beat up.
    Id. at 102 (emphasis added). Defense counsel objected, but the trial court
    ruled that he had “opened this door” during his cross-examination of Ms.
    Lobaugh. Id. at 102-03. The questioning continued as follows:
    Q. Go ahead.
    A. She would call crying, very upset, crying, saying that
    she had been hit or beat up.
    Id. at 103 (emphasis added).
    The trial court did not abuse its discretion in permitting Ms. Lobaugh’s
    testimony on redirect over Appellant’s objection. As this Court has explained,
    [o]ne who induces a trial court to let down the bars to a field of
    inquiry that is not competent or relevant to the issues cannot
    complain if his adversary is also allowed to avail himself of that
    opening. The phrase ‘opening the door’ . . . by cross examination
    involves a waiver. If defendant delves into what would be
    objectionable testimony on the part of the Commonwealth, then
    the Commonwealth can probe further into the objectionable area.
    Commonwealth v. Lewis, 
    885 A.2d 51
    , 54-55 (Pa. Super. 2005) (quoting
    Commonwealth v. Stakley, 
    365 A.2d 1298
    , 1299-1300 (Pa. Super. 1976)).
    Instantly, the prosecution questioned Ms. Lobaugh regarding “fights”
    and “arguments” between Appellant and the victim, but without addressing
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    J-S27035-21
    the particulars of the fights, including whether any physical abuse occurred.
    N.T., 11/4/19, at 46, 51. On cross-examination, Appellant then delved into
    whether Ms. Lobaugh understood the disputes only to be “[n]ormal” or
    “meaningless” and whether she had discussed with Appellant who was at fault.
    Id. at 74, 78-79.   This opened the door for the Commonwealth to probe
    further into the objectionable nature of the domestic disputes, eliciting
    testimony from Ms. Lobaugh that the victim had complained that Appellant
    had physically struck her. Id. at 102-03. As the trial court explained,
    [Defense] counsel’s cross-examination was intended to cast
    Appellant in a positive light by implying that [the v]ictim’s own
    mother did not take [the v]ictim and Appellant’s arguments
    seriously, when in fact that was not the case. Thus it was proper
    to allow the Commonwealth to probe into Ms. Lobaugh’s actual
    opinion. [The v]ictim's statements to Ms. Lobaugh that Appellant
    was abusive toward her were offered not for the truth of the
    matter asserted, but rather as the basis for Ms. Lobaugh’s true
    opinion of the relationship, which had been mischaracterized by
    Appellant’s counsel’s questioning.       Accordingly, [A]ppellant
    opened the door to the testimony and the same was properly
    permitted.
    Trial Court Opinion, 4/8/20, at 15; see Lewis, 882 A.2d at 55 (holding that,
    by cross-examining police detective about previous drug-related encounters
    with co-defendant, defense counsel opened the door to prosecutor eliciting
    more detailed description of the encounters from the detective on redirect);
    Stakley, 
    365 A.2d at 1299-1300
     (defense attorney’s cross-examination of
    investigator regarding his knowledge of defendant’s military discharge opened
    the door for prosecutor to elicit testimony that the discharge was
    dishonorable). Accordingly, this issue does not merit the requested relief.
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    J-S27035-21
    Finally, Appellant argues that “the trial [c]ourt abused its discretion and
    committed plain error by allowing the Commonwealth to enter evidence into
    the trial record of [Appellant’s September 11, 2018] conviction for summary
    harassment” related to the June 2018 fight between Appellant and the victim.
    Appellant’s Brief at 5. Appellant contends that, because the June 2018 dispute
    was raised during Ms. Lobaugh’s testimony, he “was effectively forced to
    address this incident,” by calling the officer who had responded to the incident
    as a defense witness. Id. at 43.
    However, as the trial court recognized in its opinion, Appellant’s
    recounting of the events related to the summary harassment conviction is
    inconsistent with the record. Trial Court Opinion, 4/8/20, at 17. Prior to trial,
    Appellant filed a motion in limine in which he sought to bar the Commonwealth
    from admitting any evidence of Appellant’s prior convictions pursuant to
    Pennsylvania Rule of Evidence 404(b). See Pa.R.E. 404(b)(1) (providing that
    except as expressly permitted by the rule “[e]vidence of a crime, wrong, or
    other act is not admissible to prove a person's character in order to show that
    on a particular occasion the person acted in accordance with the character”).
    On the morning that trial began, the trial court ruled that the Commonwealth
    could not admit evidence of the summary conviction. The court stated that,
    in light of the fact that Appellant appeared without counsel and no complaining
    witness was present at his September 11, 2018 trial, it was “not going to let
    that one go” into the record. N.T., 11/4/19, at 4, 6-7. The trial court did
    indicate that the Commonwealth could present evidence related to the June
    - 22 -
    J-S27035-21
    2018 incident, but only to the extent that testimony was within the personal
    knowledge of the witnesses. Id. at 4-11.
    As discussed above, the June 2018 incident was briefly discussed during
    the direct examination of Ms. Lobaugh without objection from Appellant:
    Q. Okay. So [Appellant and the victim are] now at [the apartment
    complex where they lived] in May of 2018. Did -- are you aware
    of an incident in June of 2018 between the two of them?
    A. Yes, I am.
    Q. All right. We don’t have to go into particulars for the jury, but
    is it fair to say that it was an incident, a fight of sorts, correct?
    A. Yes, it was.
    Q. Okay. And without, again, describing the incident, what
    happened in terms of where [the victim] lived after that incident?
    A. After that incident she moved in with me.
    Id. at 50-51. No mention was made during the testimony of Ms. Lobaugh, or
    indeed any other of the Commonwealth’s witnesses, of criminal charges being
    filed based on the June 2018 incident.
    The June 2018 incident arose again during Appellant’s testimony. Upon
    questioning from his counsel, Appellant described the June 2018 incident at
    length and stated that, as a result, he “somehow, was convicted of
    harassment.” N.T., 11/5/19, Vol. II, at 47-51. Appellant then called Officer
    Christopher Buckner of the Millcreek Township Police Department to explain
    his investigation of the June 2018 incident, as well as the ultimate disposition
    of the harassment charge against Appellant. N.T., 11/6/19, at 41-50. Officer
    - 23 -
    J-S27035-21
    Buckner stated that both Appellant and the victim alleged physical abuse, but
    that only the victim wanted to press charges. Id. at 43-44, 47.
    We find no merit in Appellant’s argument regarding the evidence of his
    summary harassment conviction. To the extent Appellant challenges the trial
    court’s ruling on his motion in limine seeking to exclude evidence of a prior
    bad act under Rule of Evidence 404(b), he prevailed before the trial court and
    the trial court ruled that the Commonwealth could not introduce the
    conviction. Furthermore, to the extent Appellant challenges Ms. Lobaugh’s
    brief discussion of the June 2018 incident during her trial testimony, Appellant
    failed to object and therefore he waived his claim. N.T., 11/4/19, at 50-51.
    Finally, to the extent Appellant argues that he was compelled to address his
    conviction during his testimony, the record contradicts his claim because the
    Commonwealth, in compliance with the trial court’s pre-trial ruling, did not
    initially elicit evidence related to the conviction.
    As we find that none of Appellant’s appellate issues merit relief, we
    affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 01/25/2022
    - 24 -
    

Document Info

Docket Number: 37 WDA 2021

Judges: Colins, J.

Filed Date: 1/25/2022

Precedential Status: Precedential

Modified Date: 1/25/2022