Com. v. Ward, A. , 188 A.3d 1301 ( 2018 )

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2018 Pa. Super. 142
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTOINE WARD :
:
Appellant : No. 968 WDA 2016
Appeal from the Judgment of Sentence February 24, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001839-2014
BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.
OPINION BY BOWES, J.: FILED JUNE 1, 2018
Antoine Ward appeals from the judgment of sentence of life
imprisonment entered after he was convicted of first-degree murder, third-
degree murder, and carrying a firearm without a license. We affirm.
On a snowy evening in January 2014, in the Mt. Oliver neighborhood of
Pittsburgh, Ja’yde Dorsey heard gunshots and looked out a window to see a
silver Lexus that appeared to be stopped at a stop sign. When she went
outside to inquire if anyone was injured, there were four more shots and she
saw sparks in the back of the car. Ms. Dorsey called 911, and paramedics
arrived within minutes to find Jason Eubanks and Cherylann Sabatasso dead
in the car. N.T. Trial, 10/15-19/15, at 52-54, 70. Tracks in the snow led from
the car to 302 Rochelle Street, where Appellant lived with Nichelle Goodnight.
Id. at 78, 90, 237-41, 284.
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Appellant was charged with two counts of homicide and firearms
violations. A jury convicted Appellant of the crimes listed above, and the trial
court imposed consecutive sentences of life imprisonment on the murder
convictions, followed by two to four years incarceration for carrying a firearm
without a license. Following the denial of his post-sentence motion, Appellant
timely filed a notice of appeal. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for this Court’s review, which we
have paraphrased to omit unnecessary detail.1
I. Did the Commonwealth offer insufficient evidence to prove
beyond a reasonable doubt that Appellant acted in self-defense?
II. Did the trial court err in not excluding evidence obtained
from the silver Lexus when the vehicle was transferred out of the
country before it was examined by Appellant’s investigators?
III. Did the trial court err in allowing the Commonwealth’s
medical expert to testify outside of both the scope of his report
and his area of expertise?
Appellant’s brief at 7.
We first consider Appellant’s claim that the Commonwealth offered
insufficient evidence that he did not act in self-defense. “The use of force
against a person is justified when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use
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1See Pa.R.A.P. 2116(a) (“The statement of the questions involved must state
concisely the issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail.”).
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of unlawful force by the other person.” Commonwealth v. Emler, 903 A.2d
1273, 1279 (Pa.Super. 2006) (citation and quotation marks omitted). When
a defendant raises a claim of self-defense by identifying evidence that
supports the claim, the Commonwealth has the burden of disproving self-
defense beyond a reasonable doubt. Commonwealth v. Bullock, 948 A.2d
818, 824 (Pa.Super. 2008). “[T]he Commonwealth cannot sustain its burden
of proof solely on the fact finder’s disbelief of the defendant’s testimony.”
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001).
Appellant testified at trial in support of his claim of self-defense. He said
he wanted to meet Mr. Eubanks on the night in question to obtain cocaine.
N.T. Trial, 10/20-22/15, at 700. He called Mr. Eubanks to make the
arrangements, and Mr. Eubanks said he would be at Appellant’s house in a
minute. Id. Mr. Eubanks arrived in a car that was being driven by Ms.
Sabatasso, and Appellant took a seat in the back of the vehicle. Id. They
then drove to the home of Appellant’s mother so Appellant could obtain his
tax papers to offer Mr. Eubanks as proof that Appellant would soon have
money to pay for the cocaine. Id. at 702. While Ms. Sabatasso drove, she
and Appellant argued about his accusation, conveyed to Mr. Eubanks the
previous day, that Ms. Sabatasso had sought to cheat on Mr. Eubanks with
another man. Mr. Eubanks encouraged them to calm down. Id. at 708-09.
After Appellant questioned Mr. Eubanks’s manhood, Mr. Eubanks pulled a gun
on Appellant, and the two men struggled for the weapon. Ms. Sabatasso was
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shot in the head when she stopped the car abruptly. Id. at 710. Appellant
claimed that he shot Mr. Eubanks during a subsequent struggle for the gun,
and shot him a second time, in the face, after Mr. Eubanks climbed into the
back seat and the two men again attempted to gain control of the weapon.
Id. at 711-12. Appellant ran home, placed the bullets from the gun into a
sock, put his bloody clothing in a plastic bag, and hid the gun under a kitchen
cabinet. Id. at 713-14.
Based upon the above testimony, self-defense was properly at issue in
the case. Therefore, the Commonwealth was required to disprove the
defense. Bullock, supra. Appellant contends that it failed to do so.
Appellant’s brief at 32-39. We disagree.
It is settled that “[t]he fabrication of false and contradictory statements
by an accused [is] evidence from which a jury may infer that they were made
with an intent to mislead the police or other authorities, or to establish an alibi
or innocence, and hence are indicatory of guilt.” Commonwealth v.
Carbone, 574 A.2d 584, 589 (Pa. 1990) (internal quotation marks and
citation omitted). For example, in Carbone, the defendant claimed that she
stabbed the decedent when he had attempted to rape and kill her. Id. at 588.
Although the Commonwealth offered no contradictory witnesses to the
stabbing, the jury convicted Carbone of first-degree murder. Carbone
appealed, raising the same claim as Appellant in the instant case: that the
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Commonwealth did not disprove self-defense beyond a reasonable doubt. Id.
at 589.
Our Supreme Court held that, viewing the evidence in the light most
favorable to the Commonwealth as the verdict winner, the jury could have
concluded that Carbone was not justified in killing the decedent. Specifically,
the Court pointed to the fact that Carbone initially lied to explain the blood on
her clothing, claiming that she had punched a friend in the nose. Id. at 590.
Further, her claim that the decedent walked 100 feet back to his vehicle after
she stabbed him was refuted by testimony that he would have been physically
unable to do so after being stabbed in the back and heart. Id. at 589.
In the instant case, Appellant offered multiple versions of his actions on
the day of the shootings. In his initial statement to the police, Appellant
indicated that Mr. Eubanks was supposed to come to Appellant’s house on the
day of the shooting, but that Mr. Eubanks never appeared. N.T. Trial, 10/15-
19/15, at 277. Appellant also offered three different versions of how he got
from his home on Rochelle Street to his mother’s house: that he had walked,
that he drove Goodnight’s car there, and that he had driven a different,
unidentified person’s car there. Id. at 279. Appellant first placed himself
home alone at 302 Rochelle Street during the evening in question, including
at the time Mr. Eubanks and Ms. Sabatasso were killed. Id. at 279-80. Then
he claimed that he called his friend to meet at a local bar to toast Mr. Eubanks.
Id. at 280. Appellant indicated that he learned of Mr. Eubanks’s death
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because Appellant was standing on the porch of 302 Rochelle Street when an
unidentified person walked by and informed him that there were two people
dead in a vehicle; Appellant figured it was Mr. Eubanks and Ms. Sabatasso
based upon the description of the car. Id. at 281. Appellant initially denied
having gone to the crime scene, but later contradicted that statement and said
that he went to the corner after hearing a gunshot, and called Mr. Eubanks’s
phone upon seeing the Lexus in the middle of the intersection. Id.
Additionally, the Commonwealth offered evidence that a sock containing
bullets and a plastic bag containing bloody clothing were recovered from a
wooded area at the end of Appellant’s street. Id. at 336. A pistol and
magazine were retrieved from under a cabinet in the kitchen at 302 Rochelle
Street. Id. at 393. The jury could conclude from Appellant’s attempts to
conceal or dispose of evidence of his involvement in the shootings constituted
evidence of guilt. Commonwealth v. Paddy, 800 A.2d 294, 319 (Pa. 2002)
(“[A]ttempts by a defendant to suppress evidence are admissible to
demonstrate his or her consciousness of guilt.”).
Moreover, Appellant informed the jury that Mr. Eubanks was shot during
an initial struggle for the gun, and then reached into the back seat of the car
to struggle for the gun a second time, at which time Appellant shot him in the
face. N.T. Trial, 10/20-22/15, at 711-12. However, the Commonwealth’s
medical expert testified that the first shot that hit Mr. Eubanks in his left ear
fractured his skull and would either have killed him immediately, or allowed
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for only minimal movement before fatality. N.T. Trial, 10/15-19/15, at 562-
63. From this evidence the jury could have found that Mr. Eubanks would not
have been physically able to have engaged in a second struggle for the gun
after he was shot during the initial struggle.
Thus, the record reveals that the Commonwealth did not rely solely upon
disbelief of Appellant’s testimony to prove that Appellant did not act in self-
defense. From his false statements and attempts to hide the physical
evidence, and Appellant’s testimony that he shot Mr. Eubanks in the head, the
jury was permitted to conclude that Appellant was guilty. See
Commonwealth v. Hinchcliffe, 388 A.2d 1068, 1070-71 (Pa. 1978) (holding
evidence was sufficient to support third-degree murder conviction where the
only witness to the killing was Hinchcliffe, who claimed self-defense; in
addition to being free to disbelieve some or all of Hinchcliffe’s self-defense
story, the jury could rely upon the facts that Hinchcliffe sought to dispose of
the body and hide evidence of the killing). Accordingly, Appellant’s first issue
merits no relief.
Appellant’s remaining issues concern the trial court’s evidentiary rulings.
The following principles guide our review.
The [a]dmission of evidence is within the sound discretion
of the trial court and will be reversed only upon a showing that
the trial court clearly abused its discretion. Accordingly, a ruling
admitting 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.
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Commonwealth v. Shelton, 170 A.3d 549, 552 (Pa.Super. 2017) (citations
and quotation marks omitted).
With his first evidentiary issue, Appellant contends that the physical
evidence obtained from the silver Lexus should have been suppressed. 2 The
following background information summarized by the trial court is relevant to
Appellant’s claim.
[T]he homicides occurred within Cheralynn Sabatasso’s vehicle on
January 23, 2014. The vehicle was secured on that date and
towed to the police auto squad for processing. Extensive
photographs were taken and evidence was collected from the
vehicle both at the scene and at the auto squad. On February 8,
2014, the vehicle was transported to the police impound facility.
On March 12, 2014, Appellant filed a formal motion for
discovery, requesting inspection of and copies of reports
pertaining to [. . .] physical evidence. The Commonwealth
provided photographs and reports regarding the vehicle. These
reports did not contain any opinions as to trajectory of bullets, but
rather documented general observations of items discovered
within the vehicle.
On March 25, 2014, Detective McGee signed a Request for
Chief’s Release to return the vehicle to the Sabatasso family
because the processing of the vehicle was complete and the family
requested return of the vehicle. Assistant District Attorney
Michael Berquist authorized the return and the vehicle was
subsequently transported to the residence of [Ms.] Sabatasso’s
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2 In stating his evidentiary issues in his brief, Appellant alternatively suggests
that the trial court should have given cautionary instructions regarding the
spoliation of evidence and unqualified expert testimony. Appellant’s brief at
7, 40, 60. Appellant does not cite where in the record he made a request for
cautionary instructions; nor have we found any such request in our review.
Moreover, he does not offer any argument or cite any authority to support the
claim that a cautionary instruction should have been given. Accordingly, the
claims that the trial court erred in not issuing such instructions are waived.
Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa.Super. 2006).
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mother. Shortly thereafter, [Ms.] Sabatasso’s estate transferred
ownership of the vehicle to the insurance company, and on May
5, 2014, the family requested that the vehicle be transported to
Coparts, a local salvage yard. Pittsburgh police complied and the
vehicle was transported to the salvage yard.
On May 13, 2014, Appellant’s trial attorney Christopher
Patarini, along with his investigators, met with Detective [James]
McGee at Coparts to examine the vehicle. At that time,
Appellant’s investigators took more photographs of the vehicle at
the direction of a potential defense expert, Fred Wentling, who
was corresponding with the defense team via Skype. On May 13,
2014, Attorney Patarini called ADA Berquist to request that the
vehicle be transferred back into police custody. ADA Berquist
relayed this request to Detective McGee, who assigned this
responsibility to Detective Sherwood.
At some point in time, because the insurance company now
owned the vehicle, Detective McGee was told that a court order
would be needed in order to transfer the vehicle back to police
custody. ADA Berquist requested the necessary information from
Detective Sherwood for the court order, but never received a
response. A court order was never issued. ADA Berquist was
under the impression that the police were taking care of re-
securing the vehicle. In the meantime, Coparts assured Detective
McGee that they would store the vehicle, covered, as long as the
police needed; the vehicle remained at Coparts.
On May 23, 2014, [t]he Trial Court ordered discovery for
scientific evidence to close on June 29, 2014, absent exigent
circumstances. On July 2, 2014, Appellant filed a Supplemental
Motion for Specified Discovery, requesting opinion evidence and
scientific reports.
On November 25, 2014, the insurance company sold the
vehicle and it was transported to the United Arab Emirates.
Coparts did not notify the police, the Commonwealth, or Appellant
that the vehicle had been sold and transported abroad.
On March 25, 2015, the Commonwealth’s expert, Detective
Blase Kraeer, authored a blood spatter analysis report that
included opinions regarding the trajectory of the bullets.
Detective Kraeer did not independently examine the vehicle, but
rather based his report and opinions on photographs and evidence
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taken from the vehicle during initial processing. All of that
information had been provided to Appellant during the early
phases of the discovery process.
On April 29, 2015, Attorney Patarini met with Martin
Aronson (Office of the Public Defender Investigator) and Arthur
Young (forensic DNA expert). During this meeting, Attorney
Patarini called Detective McGee ostensibly to set up a time to
examine the vehicle, but in the same conversation cancelled the
request to examine the vehicle. Detective McGee testified that
Attorney Patarini cancelled the request because an expert witness
thought it would be a waste of time to inspect the vehicle.
However, Attorney Patarini denied making such a statement.
On May 4, 2015, the Trial Court conducted a status
conference on the case, and granted an extension for the time
frame in which scientific discovery had to be produced. On that
date Attorney Patarini requested that the vehicle be made
available for inspection by his expert, Fred Wentling, and the
Commonwealth agreed to set that up. Sometime after that, the
Commonwealth learned from Coparts that the vehicle had been
sold and shipped to the United Arab Emirates.
On May 5, 2015, Attorney Patarini arranged for Wentling to
come to Pittsburgh to examine the firearm and vehicle. On May
6, 2015, Detective [Robert] Provident notified Attorney Patarini
that the vehicle had been sold and transported to the United Arab
Emirates. On May 7, 2015, Wentling came to Pittsburgh and
examined the firearm. On May 11, 2015, the prosecution
confirmed that the vehicle had been sold and was no longer
available. Finally, on July 15, 2015, Appellant filed a motion to
suppress the vehicle and all evidence derived therefrom.
Trial Court Opinion, 1/19/17, at 17-20 (citations, quotation marks, and
footnote omitted).
Appellant’s suppression claim is based upon the Fourteenth
Amendment’s Due Process Clause, which
requires defendants be provided access to certain kinds of
evidence prior to trial, so they may “be afforded a meaningful
opportunity to present a complete defense.” This guarantee of
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access to evidence requires the prosecution to turn over, if
requested, any evidence which is exculpatory and material to guilt
or punishment, see Brady [v. Maryland, 373 U.S. 83 (1963),]
and to turn over exculpatory evidence which might raise a
reasonable doubt about a defendant’s guilt, even if the defense
fails to request it, see United States v. Agurs, 427 U.S. 97
(1976). If a defendant asserts a Brady or Agurs violation, he is
not required to show bad faith.
There is another category of constitutionally guaranteed
access to evidence, which involves evidence that is not materially
exculpatory, but is potentially useful, that is destroyed by the
state before the defense has an opportunity to examine it. When
the state fails to preserve evidence that is “potentially useful,”
there is no federal due process violation “unless a criminal
defendant can show bad faith on the part of the police.”
Potentially useful evidence is that of which “no more can be said
than that it could have been subjected to tests, the results of
which might have exonerated the defendant.” In evaluating a
claim that the Commonwealth’s failure to preserve evidence
violated a criminal defendant’s federal due process rights, a court
must first determine whether the missing evidence is materially
exculpatory or potentially useful.
Commonwealth v. Williams, 154 A.3d 336, 339 (Pa.Super. 2017) (quoting
Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (some
citations omitted)).
Appellant argues that the Lexus, as the crime scene itself and “the only
evidence of the shooting at all,” was exculpatory evidence. Appellant’s brief
at 54-56. He maintains that, without examining the vehicle, forensic scientist
Fredrick Wentling was unable to reconstruct the shootings or render an opinion
with the requisite degree of certainty on whether the physical evidence
supported Appellant’s version of events. Id. at 56.
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Exculpatory evidence is “evidence which extrinsically tends to establish
[a] defendant’s innocence of the crimes charged.” Commonwealth v.
Woodell, 496 A.2d 1210, 1212 (Pa. 1985) (internal quotation marks
omitted). A claim that a defendant was denied access to exculpatory evidence
must be supported; “it cannot be based on a mere assertion.”
Commonwealth v. Snyder, 963 A.2d 396, 405 (Pa. 2009) (internal
quotation marks omitted).
It is apparent that Appellant has no support for his claim that the Lexus
contained exculpatory evidence; rather, his contention is that, if his expert
had been able to examine the car, he might have found evidence that could
have enabled him to opine that Appellant’s self-defense narrative was
forensically substantiated.
Evidence that possibly could have been exculpatory had it been available
to be tested is potentially useful evidence, not exculpatory evidence.
Chamberlain, supra, at 402 (“Evidence that is possibly exculpatory is only
merely potentially useful.”). Therefore, to prevail Appellant must establish
that the Commonwealth acted in bad faith in failing to preserve the vehicle.
Appellant offers the following argument.
At several points, the prosecution (including the police)
failed in their duty to preserve the evidence. Several discovery
motions had been filed by the defense; it was well-known that the
vehicle, as the crime scene itself, was a necessary piece of
evidence. The Commonwealth promised to “take care of it” and
make the vehicle available to the defense prior to trial. Yet
nothing was done. The defense was not informed of any
impending sale of the vehicle which would send it overseas. The
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defense was not aware of the need for an Order of Court to retain
the vehicle. The Commonwealth utterly failed in their duty to
preserve the vehicle. While we do not suggest that this [was]
done to intentionally hamper the defense, this is more than a one-
time failure to properly act to preserve the evidence. At several
points the Commonwealth failed to fulfill its duty to ensure
fundamental fairness in [Appellant’s] trial. This is bad faith.
Failure to act when tasked with a duty to so act is bad faith.
Appellant’s brief at 58-59. The trial court disagreed with Appellant’s
assessment, stating as follows.
Here, the police reasonably believed that the vehicle was being
held at Coparts. The Commonwealth was not notified of the sale
to the United Arab Emirates, and did not purposefully destroy the
vehicle or take any measures to render it unavailable for
inspection. The vehicle remained in police custody for over two
months, and was available for defense inspection for eight
months. At all times the Commonwealth was cooperative and
accommodating to the several “half-steps” that Appellant made
toward examination of the vehicle.
Trial Court Opinion, 1/19/17, at 21-22.
We agree with the trial court. The record does not reflect that the car
was disposed of “in a calculated effort to circumvent the disclosure
requirements,” or that there was any “official animus towards [Appellant] or
. . . conscious effort to suppress exculpatory evidence.” California v.
Trombetta, 467 U.S. 479, 488 (1984). Appellant had ample opportunity to
examine the Lexus. The Commonwealth believed that the car would continue
to be available. The most that Appellant can perhaps establish is that the
Commonwealth was negligent in failing to obtain an order to return the vehicle
to police custody; however, negligence is not bad faith. See, e.g., Arizona
v. Youngblood, 488 U.S. 51, 58 (1988) (holding there was no suggestion of
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bad faith where the failure to preserve evidence could “at worst be described
as negligent”); Chamberlain, supra, at 389-403 (rejecting argument that
the defendant was entitled to relief from the Commonwealth’s loss of blood
samples that the defendant sought to have DNA tested because “the
Commonwealth’s mishandling of the blood evidence was so grossly negligent
that it actually amounted to bad faith”). Accordingly, we discern no error or
abuse of discretion in the trial court’s denial of Appellant’s motion to suppress
the Commonwealth’s evidence obtained from the Lexus.
With his final issue, Appellant claims that he is entitled to a new trial
because the trial court erroneously permitted Commonwealth expert Baiyang
Xu, M.D., to testify “outside the scope of his expert report” and to offer opinion
testimony that “exceeded Dr. Xu’s technical expertise.” Appellant’s brief at 7.
Specifically, Appellant complains that Dr. Xu was permitted to testify (1)
regarding the trajectory of the bullets; (2) that the stippling he observed near
the entrance wounds on Mr. Eubanks’s head indicated that the gun was fired
within three feet of Mr. Eubanks; and (3) that the first shot to Mr. Eubanks’s
head may have been fatal. Id. at 60.
There is no question that Dr. Xu, a medical doctor employed by the
Allegheny County Medical Examiner’s Office who testified more than thirty
times as an expert in forensic pathology,3 possessed the requisite expertise
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3 N.T. Trial, 10/15-19/15, at 547.
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to offer testimony regarding the distance and direction of the shots that killed
Mr. Eubanks. See, e.g., Commonwealth v. Mollett, 5 A.3d 291, 305
(Pa.Super. 2010) (holding pathologist’s testimony regarding the timing of
gunshots and distance of the firearm “was well within his expertise”);
Commonwealth v. Guess, 416 A.2d 1094, 1096 (Pa.Super. 1979) (“A
physician who examines the gunshot wounds suffered by a decedent may give
his opinion regarding the direction and distance from which such wounds were
inflicted though that physician is not qualified as a ballistics expert.”).
We also discern no abuse of discretion in the trial court’s ruling that Dr.
Xu could opine that the shot that entered Mr. Eubanks’s head at the left ear
was fatal.
[E]xpert testimony is incompetent if it lacks an adequate basis in
fact. While an expert’s opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not competent
evidence. This means that expert testimony cannot be based
solely upon conjecture or surmise. Rather, an expert’s
assumptions must be based upon such facts as the jury would be
warranted in finding from the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa.Super. 2015) (citation
omitted).
Here, Dr. Xu indicated that, because different people respond differently
to wounds, he could not say whether the initial shot Mr. Eubanks sustained to
his head in his left ear would have been immediately fatal, or whether Mr.
Eubanks may have been able to move “a little bit” afterwards. N.T. Trial,
10/15-19/15, at 562-63. The opinion was not impermissible “conjecture or
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surmise.” Cf. Gonzalez, 109 A.3d at 727 (affirming exclusion of expert
testimony that mental health conditions may have affected rape victim’s
perception and recollection). Rather, Dr. Xu explained that the bullet that
entered Mr. Eubanks’s left ear fractured his skull, traveled down from the front
to back, and “stopped at the central back part of the skull.” N.T. Trial, 10/15-
19/15, at 558. Even without expressly stating that his opinion that the shot
to the ear would have either killed Mr. Eubanks immediately, or allowed for
only minimal movement thereafter, was rendered to “a reasonable degree of
medical certainty,” it is clear from his testimony that his opinion was based
upon fact and not speculation. Commonwealth v. Spotz, 756 A.2d 1139,
1160-61 (Pa. 2000) (holding expert testimony was properly rendered to a
reasonable degree of medical certainty although the doctor did not use the
“magic words” where the doctor explained the medical basis for all of his
conclusions).
Finally, to the extent that Dr. Xu’s testimony was beyond the scope of
his report, Appellant has not demonstrated that he was prejudiced. Dr. Xu’s
opinion was consistent with Appellant’s testimony that he was located in the
center of the Lexus’s rear seat, and Mr. Eubanks was in the front passenger
seat, when they struggled for the gun between them. According to Appellant’s
version of events, the gun muzzle would have been within three feet of Mr.
Eubanks when it fired. Further, Dr. Xu indicated that his descriptions of the
trajectories of the bullets were given “as if we are in the anatomically correct
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position,” and that he actually had no knowledge or opinion of the position of
Mr. Eubanks’s body at the time the wounds were inflicted. N.T. Trial, 10/15-
19/15, at. 561. Hence, this portion of his testimony did not negate Appellant’s
self-defense claim.
Without any indication that Appellant was prejudiced by the testimony,
no relief is due. Commonwealth v. Poplawski, 130 A.3d 697, 718-19 (Pa.
2015) (holding claim that medical examiner’s testimony as to the order of
wounds and position of the victim’s body when he was shot was outside of the
scope of the report failed, although the report merely indicated the location of
injuries based upon standard anatomical position without opining as to which
wounds came first, where the defendant failed “to carry his burden of
explaining how this admission of evidence prejudiced his defense”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2018
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