Com. v. Berry, K. , 172 A.3d 1 ( 2017 )

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2017 PA Super 282COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH LAMONT BERRY, :
:
Appellant : No. 193 MDA 2017
Appeal from the Judgment of Sentence December 19, 2016
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0000595-2015
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
OPINION BY DUBOW, J.: FILED AUGUST 31, 2017
Appellant, Keith Lamont Berry, appeals from the Judgment of
Sentence entered by the Northumberland County Court of Common Pleas
following his convictions after a jury trial of Robbery, Theft by Unlawful
Taking, Receiving Stolen Property, and two counts of Simple Assault. 1 After
careful review, we affirm.
The underlying facts, as gleaned from the certified record, are as
follows. On May 5, 2015, the victim, Mary McGinley, reported an assault to
police. Mt. Carmel Borough Police Officer Matthew Dillman responded to the
reported assault at the home of the victim’s aunt at 131 West Third Street in
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701; 18 Pa.C.S. § 3921; 18 Pa.C.S. § 3925; and 18 Pa.C.S.
§ 2701, respectively.
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Mount Carmel, Pennsylvania. Upon arriving at that location, Officer Dillman
encountered the victim, who stated that Appellant had punched her in the
face inside Appellant’s residence at 24 East Second Street, also in Mount
Carmel. The victim also reported that Appellant had taken her cell phone
when she tried to call police for help. Officer Dillman observed fresh and
dried blood on the victim’s shirt and chest area, an open wound across the
bridge of the victim’s nose, a swollen bump on the side of the victim’s
forehead, and the victim’s twisted nose. Officer Dillman called for an
ambulance.
Approximately 30 minutes after responding to the home of the victim’s
aunt, Officer Dillman traveled to Appellant’s residence. When he knocked on
the door, there was no answer. Later that evening, Officer Dillman returned
to Appellant’s home with Corporal David Donkochik and several other
officers. Appellant’s wife, Anna Marie Soto, answered the door. When the
officers explained that they were looking for Appellant, Soto claimed that she
did not know Appellant’s location. During their conversation with Soto,
Corporal Donkochik and Officer Dillman observed droplets, which appeared
to be blood, on the tile floor next to a mop and bucket eight feet inside the
front door in the same location where the victim stated that Appellant had
punched her in the face. The officers photographed the blood droplets and
left Appellant’s home.
Shortly thereafter, the officers learned of Appellant’s whereabouts and
responded to 50 North Maple Street in Mount Carmel. The officers entered
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the apartment and discovered Appellant hiding in the bathroom with Soto.
Appellant was crouching in the shower with the shower curtain closed.
Police arrested Appellant and charged him with the above offenses.
On October 26, 2016, the day before trial, Appellant filed and litigated
a Motion in Limine seeking to preclude “[a]ny reference, at any stage of the
trial, to the substance being found on the floor of [Appellant’s] apartment,
as ‘blood.’” Appellant’s Motion in Limine, filed 10/26/16, at 1. The trial
court denied Appellant’s Motion in Limine. Appellant proceeded to a jury
trial on October 27, 2016, at which the victim, Corporal Donkochik, Officer
Dillman, and Emergency Medical Technician Michael Amarose testified. The
trial court permitted Corporal Donkochik and Officer Dillman to testify about
observing droplets of blood near a mop and bucket in Appellant’s home
during their conversation with Soto on the date of the incident. The jury
convicted Appellant of each of the above charges.
On December 19, 2016, the trial court imposed a term of 9 to 22
months’ incarceration.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court2 complied with Pa.R.A.P. 1925.
Appellant presents one issue for our review:
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2
On April 3, 2017, the trial court filed a “Statement In Lieu of Formal
Opinion.”
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Whether the lower court abused its discretion in denial of
Appellant’s Motion in Limine?
Appellant’s Brief at 5.
In his sole claim, Appellant avers that the trial court erred in admitting
testimony from Corporal Donkochik and Officer Dillman stating that the
substance they observed “was indeed blood, despite the absence of tests
conducted on the substance.” Appellant’s Brief at 12. Although Appellant
acknowledges that “a lay witness is competent to testify that a stain or
stains appeared to him to be blood[,] Appellant avers that the testimony
“was not stated as an opinion or on the belief the substance may be blood,
but rather a definitive statement that the substance was in fact blood.” Id.
(acknowledging Commonwealth v. Williams, 410 A.2d 880, 885 (Pa.
Super. 1979), which rejected a similar claim and held that lay witnesses may
testify that a stain appeared to be blood).
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.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.
Super. 2015) (citation and quotation omitted). “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.” Commonwealth v. Huggins, 68
A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
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Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). 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. Pa.R.E. 401; Commonwealth v. Drumheller, 808
A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”
Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence
§ 401.06 et seq., § 403.06 et seq. (2017 ed. LexisNexis Matthew Bender).
Pennsylvania Rule of Evidence 701 addresses the admission of opinion
testimony by lay witnesses and provides:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that 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.
Pa.R.E. 701.
Generally, lay witnesses may express personal opinions related to their
observations on a range of subject areas based on their personal
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experiences that are helpful to the factfinder. See Commonwealth v.
Davies, 811 A.2d 600, 602 n.1 (Pa. Super. 2002) (citation omitted); see
also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence §
701.05 et seq. (2017 ed. LexisNexis Matthew Bender). Pursuant to
Pennsylvania Rule of Evidence 104(a), the trial court exercises its discretion
to determine whether such a lay opinion is helpful to the factfinder, which is
the touchstone of its admissibility. See Pa.R.E. 104(a); Lewis v. Mellor,
393 A.2d 941, 948-49 (Pa. Super. 1978) (en banc) (describing this
procedure under the Federal Rules and adopting this approach in
Pennsylvania).
“A lay witness may testify that a certain substance appeared to be
blood without having to subject the substance to chemical analysis.”
Commonwealth v. Glover, 401 A.2d 779, 782 (Pa. Super. 1979) (citation
omitted). This Court has addressed the admission of testimony from a lay
witness that a given substance appeared to be blood on several occasions.
Pennsylvania courts have consistently permitted such testimony. See also
Commonwealth v. Williams, 410 A.2d 880, 887 (Pa. Super. 1979)
(holding that “[a] lay witness is competent to testify that a stain or stains
appeared to him to be blood[,]” and citing McLain v. Commonwealth, 99
Pa. 86 (1881)); Commonwealth v. Schroth, 388 A.2d 1034, 1038 (Pa.
1978) (reiterating the same general rule and concluding it was not error to
show jury a crime scene diagram that indicated a “blood stain” given the
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accompanying testimony by the person who created the diagram and the
curative instructions).
As an initial matter, Appellant mischaracterizes the record in his
argument. Appellant baldly asserts that the testimony “was not stated as an
opinion or on the belief the substance may be blood, but rather a definitive
statement that the substance was in fact blood.” Id. at 12. Although
Appellant refers to specific pages of the trial transcript in his brief argument,
Appellant does not include any direct quotations of the objectionable
testimony about which he complains on appeal. See Appellant’s Brief at 10-
12. Appellant’s argument, which is based on the contents of the statements
as well as the implications and inferences from the statements, has telling
omissions, which is ultimately fatal to Appellant's argument on appeal.
Upon closer inspection, the certified record and the contents of the
trial transcript do not support Appellant’s various averments. Our review of
the certified record and the trial transcript demonstrates that Corporal
Donkochik and Officer Dillman consistently referred to the droplets in the
context of their observations about how the droplets appeared to be blood.
See, e.g., N.T. Trial, 10/27/16, at 75 (“some of the droplets that I had
spoke[n] to you about, which we made the determination appeared to be
blood.”).
Substantively, we agree with the trial court that the testimony from
Corporal Donkochik and Officer Dillman was not outside the scope of Pa.R.E.
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701. See Trial Court Opinion, 4/3/17, at 1-3. Corporal Donkochik and
Officer Dillman gave permissible lay opinion testimony regarding their
observations of the blood droplets while inside Appellant’s home during their
conversation with Soto. The trial court’s determination is consistent with the
holding in Glover, supra at 782.
Additionally, Corporal Donkochik testified about his 24 years of
experience as a police officer and his relevant crime scene training. N.T.
Trial, 10/27/16, at 75. Notably, Officer Dillman testified that he directly
observed the victim covered in blood, including blood on the victim’s
clothing, which did not elicit any objection from Appellant. See id. at 92.
Under Pennsylvania Rules of Evidence 701 and 702, this testimony from
Officer Dillman, to which Appellant did not object, was substantively no
different from the testimony about the droplets of blood on the tile floor.
The jury was well aware of Appellant’s theory and its obligation to
determine whether the droplets were blood, the victim’s blood, or some
other substance as part of its fact-finding duty. The Commonwealth
produced Officer Dillman’s photographs of the blood droplets for the jury to
independently review. See Commonwealth’s Exhibit C-8. Appellant
emphasized and referred to the substance as “alleged blood droplets”
throughout trial. N.T. Trial, 10/27/16, at 77, 94. Appellant extensively
cross-examined Corporal Donkochik and Officer Dillman on this issue, and
both Corporal Donkochik and Officer Dillman testified that they did not test
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the substance because they knew the identities of both the victim and
Appellant and they did not need to connect Appellant to the crime scene
given these particular circumstances.
Moreover, the trial court provided several relevant jury instructions at
trial regarding the Commonwealth’s burden, the jury’s duty to determine the
weight and credibility of the evidence presented, as well as the jury’s
responsibility to judge the “truthfulness and accuracy of each witness’
testimony and decide whether to believe all or part or none of that
testimony.” Id. at 111, 118, 120-21. The trial court emphasized that the
jury is the sole judge of the credibility of the witnesses using their common
sense and “everyday practical knowledge of life” and should give the
evidence and testimony “whatever credibility and weight you think it
deserves.” Id. at 121-22.
Our conclusion today is consistent with more than a century of
Pennsylvania case law addressing objections to lay opinion testimony
regarding untested substances that appear to the observer to be blood, as
well as the considerable discretion afforded to trial courts. Whether or not
the droplets were the victim’s blood, or blood at all, were matters relating to
the weight and credibility of that evidence properly reserved for the jury as
fact-finder.
We discern no abuse of discretion or error of law in the trial court’s
determination that Corporal Donkochik and Officer Dillman testified as to
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matters within their personal knowledge and experience with respect to the
blood droplets. Thus, Appellant is entitled to no relief.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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