Com. v. Giles, T. ( 2022 )

J-S32027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRELL GILES :
:
Appellant : No. 227 MDA 2022
Appeal from the Judgment of Sentence Entered August 11, 2021
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000992-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 21, 2022
Appellant, Tyrell Giles, appeals from the aggregate judgment of
sentence of 11½—25 years’ incarceration, imposed after a jury convicted him
of two counts of aggravated assault, recklessly endangering another person,
and possessing instruments of crime.1 After careful review, we affirm.
In its opinion dismissing Appellant’s post-sentence motions, the trial
court provided a summary of the facts adduced at his May 26, 2021 jury trial
as follows:
At the jury trial, Chief Harold Easter of the Norther Lebanon
Township Police Department testified that he was on duty on July
16, 2020[,] and responded to a dispatch to Martin Drive in North
Lebanon Township for a report of a person bleeding on a lawn in
a residential neighborhood. When he arrived at the location, he
observed a male l[]ying in the grass just off the pavement. He
was not wearing a shirt, there was a wound on the lower right side
of his back, and he was bleeding. The man was identified as
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1 Respectively, 18 Pa.C.S. §§ 2702(a)(1), 2702(a)(4), 2705, and 907(a).
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Jarrod Sales. Sales told Chief Easter that he had been at the
Mobil[] Gas Station at 121 and Cumberland Streets in the City of
Lebanon when an individual approached him and stabbed him.
Sales said he had never seen the person who stabbed him before.
Sales’ vehicle was parked on the street adjacent to where he was
l[]ying. When Chief Easter looked inside the vehicle, he observed
thick, coagulated blood on the right side of the driver’s seat. He
was able to observe Sales’ wound when he and other officers
applied a compress bandage and pressure to try to stop the
bleeding. Chief Easter explained that he had served in combat in
the military and had been in law enforcement since 1969, with 46
years’ experience instructing other police officers in defensive
tactics, the use of weapons, and wounds. One of those courses
involved edged weapons. He explained that the difference
between a knife or stab wound and a puncture wound is that a
puncture wound would be round/circular and jagged and would be
caused by something like a re-rod or glass. A knife wound would
be long and thin. Chief Easter explained that it appeared that
Sales had been lacerated with a sharp object as the wound was
smooth and narrow with clean edges. Based on his training and
experience, Chief Easter opined that it was consistent with a
wound caused by a knife or a[n] edged[ ]weapon. Chief Easter
also noted that in addition to the back wound, the victim had
recent abrasions on his lower legs.
Due to the fact that the incident occurred in the City of Lebanon,
the Lebanon City Police Department took over the investigation at
that point and the North Lebanon Township Police had no further
involvement. Chief Easter identified a series of photographs which
were taken of Sales and his vehicle on July 16, 2020 (Exhibits “1A
through 1G”)[,] and a Powerpoint which had been prepared for
the jury trial[] (Exhibit “2”)[.]
On cross-examination, Chief Easter acknowledged that he had
never received any medical training. However, he explained on
re-direct that he has observed many people who had been stabbed
throughout his career. Based on his training and experience, he
found that Sales’ wound was consistent with a stab wound. He
also reiterated that Sales told him at the scene that he had been
stabbed.
Sergeant Keith Uhrich of the Lebanon City Police testified that on
July 16, 2020[,] at approximately 12:40 p.m.[,] he was
dispatched to the gas station at 1201 Cumberland Street due to a
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report of a stabbing having occurred there. Sergeant Uhrich
identified a Powerpoint diagram which showed the layout of the
gas station and the surrounding area[] (Exhibits “3A through
3N”)[.] He also identified a series of photographs which he had
taken at the scene[] (Exhibits “4A through 4K”)[.]
Sergeant Uhrich personally retrieved the surveillance video of the
incident from the gas station[] ( Exhibit “S”)[.] The video was
played at the jury trial. In the video, Sergeant Uhrich pointed out
that Sales could be seen pulling into the gas station and parking
his vehicle. Then a black car pulls into the parking lot from 12th
Street. Before the black car was entirely inside the parking lot, a
male jumped out and ran toward the gas pumps where Sales was
standing. Sales began to run[,] and the male pursued him toward
a red truck in the parking lot. During this time, the female driver
parked the black car near the front of the store. After Sales’ hat
and shoes fell off, he ran back toward the gas pumps. The male
continued to chase him, keeping his hand in his right pocket the
entire time. The male ultimately pulled his hand out of his pocket
and could be seen making a folding motion, swinging his hand into
the right back side of Sales. After that, the male continued to
pursue Sales, finally ending up on top of him and continuing the
assault.
The jury was also shown a frame-by-frame surveillance video
taken from another angle which focused on the assault. The male
from the black car could be seen making a stabbing motion into
Sales. Prior to that point, Sales’ shirt was entirely white and had
no blood on it. After the male made those motions, a blood spot
appeared on Sales’ shirt. The spot of blood began to get larger
and the shirt became soaked in blood. During the pursuit, the
male kept his hand in his right pocket. At the end of the incident,
the male’s hand could be seen reaching for the ground. The male
kept his left hand balled up as he reached over to his right hand
and his right hand returned to his pocket. There appeared to be
something hanging or sticking from the male’s right hand.
Eventually, Sales was able to push the male off and the male
returned to the black vehicle. After he got up, Sales went into the
gas station and watched out the window. After the black car
pulled out of the parking lot onto Cumberland Street, Sales exited
the gas station, picked up his shoes and hat[,] and got into his
own vehicle. He drove out of the parking lot heading north on 12th
Street, but left his bloody shirt by the red truck in the parking lot.
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When Sergeant Uhrich processed the crime scene, he located
Sales’ bloody shirt. He identified the shirt (Exhibit “7”) and a
series of photographs of the shirt which showed a smooth slice
through the back[] (Exhibit “8”)[.] One of the photographs
showed the trail of blood and a pool of blood where Sales had been
l[]ying in the parking lot while he was pinned down by the male.
Sergeant Uhrich explained that they were unable to find a knife,
weapon, or anything else near the gas pumps which could have
caused Sales’ injury. However, he noted that this was not unusual
as “people usually take their weapons with them.” []N.T. [Jury
Trial, 5/26/21,] at 57[.]
Sergeant Uhrich explained that he first learned [Appellant]’s
identity through an anonymous call to the Police Department. The
caller informed the police that the driver of the black car was
Ashley Nunemaker[,] and that she was with a man named Lamar.
When they pulled [Appellant]’s full legal name, it was discovered
that his middle name is Lamar. [Sergeant Uhrich] obtained a
picture of [Appellant] and compared it to the surveillance video to
determine that they were the same person. When Sergeant
Uhrich eventually interviewed [Appellant], [he] admitted to being
the passenger in the black car. He also informed Sergeant Uhrich
that the car was driven by a female named Ashley.
Sergeant Uhrich visited Ashley Nunemaker at her home the day
after the incident. Nunemaker allowed the police to search her
home for [Appellant] but he was not there. The police also
searched Nunemaker’s black Nissan, which was the car seen on
the video, but found no knives or weapons. Nunemaker returned
to the police station to make a statement and identified
[Appellant] from a photographic lineup as the person who was
with her at the gas station the previous day[] (Exhibit “9”)[.]
[Appellant]’s picture and a description of the incident were
released to the press and posted on social media. [Appellant]’s
state parole officer was also notified. [Appellant] turned himself
in to the police on July 19, 2020. Sergeant Uhrich interviewed
[Appellant] at that time and made an audio record[ing] of the
interview[] (Exhibits “11A” and “11B”)[.]
[Appellant] told Sergeant Uhrich that he had turned himself in
because his family, friends, and state parole officer told him he
was wanted for a stabbing, but he claimed that he did not know
anything about the incident. Sergeant Uhrich explained to
[Appellant] what could be seen on the gas station surveillance
video and described the severity of Sales’ injuries to him.
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[Appellant] admitted that he was at the scene but denied using a
knife on Sales: “I don’t remember no stabbing.” []N.T. Jury
Trial[,] 5/26/21[,] at 73[.] [Appellant] further admitted that he
chased Sales throughout the gas station, that Sales fell, and that
the two were tussling. He repeatedly described the entire day as
a blur and stated that he did not recall the stabbing. He also
acknowledged that on July 16, 2020, he had received a phone call
from a female who informed him that Sales had to go to the
hospital. However, he denied that he had a weapon or that he
stabbed Sales.
Sergeant Uhrich also identified photographs taken of Sales’ car[]
(Exhibit[s] “12A” and “12B”)[.] When Sergeant Uhrich compared
the slice in Sales’ shirt (Exhibit “8”) to the scar on Sales’ back, he
noted that both had clean edges with an arc to the left.
On cross-examination, Sergeant Uhrich acknowledged that
[Appellant] told him that his phone was missing when [Appellant]
came in to be interviewed. On redirect, however, Sergeant Uhrich
noted that [Appellant] had also told him that his mother and other
individuals had called to let him know that he was wanted for a
stabbing.
Jarrod Sales testified that around lunchtime on July 16, 2020, he
was at the gas station and had parked his car at a gas pump. He
was wearing a white tee[-]shirt and sneakers with the laces
untied. As he was pumping gas, a man ran toward him and chased
him to a red truck in the parking lot. Sales then ran back toward
his car. Sales explained[,] “I mean, I don’t remember it. Like, all
this shit was just a blur to me[,]” and that, [“]when I woke up in
the hospital, that’s when, like, people told me what happened.”
[]N.T. Jury Trial[,] 5/26/21[,] at 100[.] He confirmed that it was
him on the video and that he did not have any injuries prior to the
attack. He explained that he spent seven days in the hospital,
that he had surgery on his stomach as a result of his injuries, and
that his hospital bill had totaled approximately $30,000.00. He
explained that he did not want to appear in court to testify because
he did not remember much of the incident. He had also received
many messages on social media about appearing in court. On
cross[-]examination, Sales acknowledged that he had met
Nunemaker and [Appellant] prior to this incident but maintained
that he did not actually know them. At first, he did not recall
seeing either of them that day but later recalled that he recognized
Nunemaker at the gas station when he was down on the ground.
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Joleesha Heist testified that Sales had called her on July 16,
2020[,] and told her that he had just been stabbed and that he
would need a ride home from the hospital. She picked Sales up
at Hershey Medical Center (“HMC”) and he told her that he was in
pain. When Heist subsequently spoke with Sergeant Uhrich, she
told him that Sales had told her he had been stabbed. An
audiotape of that conversation was admitted into evidence as
Exhibit “20”.
Sergeant Duane Koons of the North Lebanon Police Department
testified that he was on duty on July 16, 2020[,] and was
dispatched to Martin Drive for a call of suspicious activity and to
conduct a welfare check on a subject on the ground in the area of
Martin Drive and Water Street. When he arrived at the location,
Chief Easter was already there. Sergeant Koons observed Sales
on the ground. He was bleeding and had a wound on his right
lower back above the hip. He told the officers that he had been
stabbed at a gas station located at 12th and Cumberland Streets.
When they asked him who stabbed him, he told them that it was
on the videos.
Sergeant Koons observed that Sales’ wound was about an inch to
one and [one] quarter inches in length. The wound looked like a
slice with very clean edges and was bleeding very quickly. Based
on his training, experience, and prior observation of stab wounds,
Sergeant Koons explained that it was consistent with a stab wound
and looked like it had been inflicted with an edged weapon. On
cross-examination, Sergeant Koons explained that Sales was
moaning and in pain at the scene. He was slipping in and out of
consciousness toward the end of the interaction, but he was able
to converse with the police and emergency medical staff.
Officer Justin Stehr of the Pennsylvania Parole Board testified that
[Appellant] was on parole in July of 2020[,] and that Officer Stehr
was assigned to his supervision. He spoke with [Appellant] via
telephone on July 16, 2020[,] at 3:05 p.m. At that time,
[Appellant] told him he was eating at Texas Roadhouse. Officer
Stehr told [Appellant] he wanted to see him in person at
[Appellant]’s home. Officer Stehr went to [Appellant]’s home at
4:32 [p.m.] that afternoon and met with [Appellant]. He
described [Appellant]’s demeanor as cool and calm. The next day,
Officer Stehr was notified that the Lebanon City Police were
looking for [Appellant] in relation to the stabbing and that an
arrest warrant would be issued if they could not locate him.
Officer Stehr tried to reach [Appellant] by calling on his cellphone
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but the cellphone was turned off. He left a voicemail and a text
message telling [Appellant] to call him. He was aware that
[Appellant] turned himself in three days after the incident. At that
time, Officer Stehr had been supervising [Appellant] for about a
year and, although there were a few issues with his supervision
for which [Appellant] received medium-level sanctions, there had
been no major sanctions imposed on him.
Ashley Nunemaker testified that in July of 2020, she was in a
romantic relationship with [Appellant]. She also knew Sales as he
had been dating her best friend. She was with [Appellant] on the
date of this incident as they were intending to go to Autozone on
Cumberland Street and then go shopping. They were in her car
that day and she was driving with [Appellant] in the front
passenger seat. As they were traveling on 12th Street toward
Autozone, they decide[d] to stop at the Mobil[] station at the
intersection of 12th and Cumberland Streets to get a soda.
[Appellant] had been talking on the phone during the ride.
As Nunemaker turned right into the gas station, she was digging
in her purse for change. When they entered the parking lot,
[Appellant] jumped out of the car while it was still in motion and
ran toward Sales who was pumping gas. Nunemaker parked her
car in front of the store and got out of the vehicle. At that point,
[Appellant] was attacking Sales in the middle of the gas pumps
near Sales’ car. When Sales ran away, [Appellant] ran after him.
She observed Sales fall onto his back on the ground by the red
truck with [Appellant] on top of him. Sales asked her to help him
and she tried to pull [Appellant] off Sales and tried to put her
hands on [Appellant] so he could not strike Sales. However,
[Appellant] would not stop and continued the assault.
When [Appellant] stood up, Nunemaker got into her car and began
to drive away. As she was exiting the parking lot, [Appellant]
jumped into her vehicle. She proceeded on Cumberland Street
toward Boscov’s, but made [Appellant] get out of the vehicle at
16th and Lehman Streets. She stated that she had no idea that
something like this was going to happen that day. When she
asked [Appellant] about what happened at the gas station, he had
no reaction and did not respond to her questions. She did not
notice a knife or weapon in [Appellant]’s hand or anything on the
ground. She did notice the severity of Sales’ injuries and
described his back as being full of blood.
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On redirect, Nunemaker explained that Sales’ back did not have
any blood on it when Sales was running back toward his car from
the red truck. After Sales got up after [Appellant] had him pinned
on the ground, there was blood on his shirt. Nunemaker
acknowledged that she did not see a knife or weapon[,] but stated
that she was not looking for one during the incident. The police
came to Nunemaker’s home the following day looking for
[Appellant] and searched her car and her home. She also went to
the police department with them to view a photographic lineup
and she pointed out [Appellant] as the person who had attacked
Sales[] (Exhibit “9”)[.]
Alicia Kain, Penn State Health … Information Supervisor,
authenticated Sales’ medical records from his treatment at HMC[]
(Exhibit[s] “22A” and “22B”)[.] Dr. Steven Moore, an HMC
Emergency Room and Critical Care physician, testified that he was
on duty when Sales was brought into the Emergency Room by
ambulance and that Sales was immediately labeled a trauma
patient. Upon examination, Dr. Moore determined that Sales was
in critical condition with very low blood pressure and a single
injury that appeared to be a stab wound on his lower right back.
Due to the injury, Sales was moved to the operating room for
surgery. Dr. Moore described the wound as linear with very clean
borders and was consistent with what would be seen with a stab
wound. Dr. Moore expressed his opinion that Sales had been
stabbed with a reasonable degree of medical certainty.
Dr. Karima Fitzgerald, an HMC trauma surgeon, testified that
Sales was transferred to her for surgery from the HMC Emergency
Room. She explained that he responded after being given a unit
of blood but then became hypotensive (low blood pressure) which
indicated possible internal bleeding due to the wound in his back.
Upon examination, she determined that the wound involved a
laceration to Sales’ kidney, that the kidney was bleeding
internally, and that he had lost enough blood to become
hypotensive.
Dr. Fitzgerald explained that in order to repair the damage to
Sales’ kidney, she performed a midline laparotomy which involved
making an incision across his stomach. She believed the
laceration to his back to be 2 to 3 centimeters long. It had clean,
even edges: “[I]t didn’t look like anything that had been from a
blunt object or anything other than a stab.” []N.T. [Jury Trial,
5/26/21,] at 197[.] Dr. Fitzgerald’s inspection of Sales’ shirt
strengthened her opinion that this was a stab wound. She also
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stated her opinion, with a reasonable degree of medical certainty,
that Sales sustained serious bodily injury as the result of a
stabbing.
Post-Sentence Motion Opinion (“PSMO”), 1/7/22, at 2-15.
The jury found Appellant guilty on all counts. On August 12, 2021, the
trial court sentenced him to 10-20 years’ incarceration for aggravated assault
pursuant to Section 2702(a)(1),2 a concurrent term of 1-2 years’ incarceration
for recklessly endangering another person, and a consecutive term of 1½-5
years’ incarceration for possessing instruments of crime, for an aggregate
term of incarceration as stated above. Appellant filed a timely post-sentence
motion on August 23, 2021, raising sufficiency, weight, and sentencing claims.
The trial court ultimately entered an order and opinion denying Appellant’s
post-sentence motion on January 7, 2022.
Appellant filed a timely notice of appeal on February 4, 2022,3 and a
timely, court-ordered Pa.R.A.P. 1925(b) statement on February 28, 2022. The
trial court issued its Rule 1925(a) opinion (dated March 23, 2022) on March
24, 2022. Appellant now presents the following questions for our review:
1. The evidence was insufficient to establish [Appellant]’s guilt on
all [c]ounts charged in this case[.]
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2 Appellant’s Section 2702(a)(4) violation merged for sentencing purposes
with his Section 2702(a)(1) violation.
3 Appellant mistakenly indicated in his notice of appeal that he was appealing
from the order denying his post-sentence motion on January 7, 2022.
However, in “a criminal action, appeal properly lies from the judgment of
sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa. Super. 2001) (en
banc). We have corrected the caption accordingly.
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2. The verdict with respect to all [c]ounts was against the weight
of evidence as it relied on circumstantial evidence alone.
3. The [trial c]ourt erred when it allowed [Chief Easter] to testify
to the statements made by the alleged victim over [d]efense
[c]ounsel’s hearsay objection on the basis that the statement was
an excited utterance.
4. The [trial c]ourt erred when it allowed the Commonwealth to
play a video of the incident without proper authentication as to
the authenticity and accuracy of the images being depicted in said
video.
5. The [trial c]ourt erred when it allowed the Commonwealth to
introduce evidence of the amount of money that the victim owed
in medical bills to establish whether the injury qualified as
“[s]erious bodily injury[.”]
6. The [trial c]ourt erred when it denied [Appellant]’s post[-]
sentence motion without a hearing in which it was argued that
[Appellant]’s [p]rior [r]ecord [s]core was improperly calculated as
the two prior convictions used to substantiate this score were out
of state convictions and the evidence of these convictions was
never properly entered into evidence or authenticated; thus,
resulting [in] him receiving an illegal sentence in this case.
7. The [trial c]ourt erred when it denied [Appellant]’s motion in
limine requesting that the Commonwealth’s two officers be
prohibited from testifying regarding whether the victim’s wound
was a “ stab” wound caused by a knife or some other object when
they were not qualified as experts to present such testimony.
Appellant’s Brief at 16-17.
I.
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In Appellant’s first claim, he asserts that there was insufficient evidence
to support the offenses for which he was convicted.4, 5 Specifically, Appellant
asserts that “the Commonwealth failed to show that Appellant ever possessed
a weapon[,]” as “no witness ever saw a weapon in Appellant’s possession.”
Appellant’s Brief at 42.
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4 Appellant’s statement of this issue mirrors the statement of the same issue
in his Rule 1925(b) statement. As such, it appears fatally vague on its face,
as it fails to identify which elements of which offenses lacked sufficient
evidence. See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009) (holding that Gibbs waived his sufficiency challenge where he “not only
failed to specify which elements he was challenging in his 1925[(b)]
statement,” but “also failed to specify which convictions he was challenging”).
However, we overlook this deficiency and decline to find waiver in the narrow
circumstances of this case, as the only fact contested at Appellant’s trial
concerned his possession and use of a knife or similar weapon to commit the
assault on the victim. Moreover, in the argument section of his brief, Appellant
specifies which elements of which offenses that the Commonwealth ostensibly
failed to prove with sufficient evidence. As such, Appellant’s failure to provide
more specificity regarding the nature of his sufficiency claim did not impede
the trial court’s review of his claim, nor does it hinder our own review for the
same reason. Nevertheless, we chastise appellate counsel for risking waiver
of this issue by failing to adhere to basic appellate rules. See Pa.R.A.P.
1925(b)(4)(ii) (“The Statement shall concisely identify each error that the
appellant intends to assert with sufficient detail to identify the issue to be
raised for the judge.”) (emphasis added); and see Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
5 Despite claiming in his statement of the issues that he was challenging the
sufficiency of the evidence with respect to all the charges for which he was
convicted, Appellant effectively abandons any such claim with respect to his
conviction for recklessly endangering another person. See Appellant’s Brief
at 40 (“The evidence was insufficient to establish Appellant’s guilt on count 1,
2[,] and 4 of the information.”) (emphasis and capitalization omitted).
Appellant further provides no argument supporting a challenging to the
sufficiency of the evidence for that offense.
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For sufficiency-of-the-evidence claims, our standard of review is whether,
viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Edwards, 229 A.3d 298, 305–06 (Pa. Super. 2020)
(cleaned up), aff’d, 256 A.3d 1130 (Pa. 2021).
Appellant contends that the Commonwealth’s ostensible failure to prove
his possession of a knife (or similar weapon) was a fatal defect with respect
to his conviction at Count 4, possessing instruments of crime, as his
possession of a weapon is the sine qua non of that offense. See Appellant’s
Brief at 42. He also argues that “the evidence … falls short with respect to
both” counts of aggravated assault, because “these offenses require the
Commonwealth to demonstrate that Appellant had the means to cause such
an injury and that he had the requisite intent to commit this injury.” Id.Appellant further maintains that
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[t]he Commonwealth attempt[ed] to carry their burden on this
element by showing that Appellant punched the victim in the area
where the injury occurred. However, the video does not show that
he possessed a knife at the time he made contact with the victim.
Further, no object matching the description of a knife was found
at the scene nor in Appellant’s possession. Thus, the
Commonwealth merely surmises that [he] had a knife at the time
that he made contact with the victim, but there is no actual
evidence to support this conclusion.
Id. at 42-43.
The trial court deemed Appellant’s first claim meritless, reasoning as
follows:
[Appellant] contends that the Commonwealth’s evidence was
insufficient to support the jury’s verdict on Aggravated Assault
(both Counts 1 and 2) and Possessing Instruments of Crime
(Count 4). To sustain a conviction under Count 1, the
Commonwealth [had to] prove that [Appellant] “attempted to
cause serious bodily injury to another, or caused such injury
intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of is human life.” 18
Pa.C.S.[] § 2702(a)(1). For Count 2, the Commonwealth was
required to prove that [Appellant] “attempted to cause or
intentionally or knowingly caused bodily injury to another with a
deadly weapon.” 18 Pa.C.S.[] § 2702(a)(4). Count 4 required
proof that [Appellant] possessed any instrument of crime with
intent to employ it criminally. 18 Pa.C.S.[] § 907(a).
[Appellant]’s argument focuses on his claim that there was
insufficient proof that he possessed a weapon at the time of this
incident.
The evidence provided by the medical and law enforcement
witnesses, as well as the physical evidence and Sales’ reports to
the police, emergency workers, and Heist provided overwhelming
circumstantial evidence that [Appellant] possessed and used a
knife during his assault on Sales and that Sales sustained serious
bodily injuries as a result. On the surveillance video, [Appellant]
could be seen holding his hand in his pocket, then looking as if he
was holding something in his hand, making a stabbing motion into
Sales’ back where his wound appeared, and then placing his
balled[-]up hand back into his pocket. Blood appeared on Sales’
back only after [Appellant] had made this stabbing-motion. Sales
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called Joleesha Heist shortly after the incident and told her he had
just been stabbed. He repeatedly reported that he had been
stabbed to the police and emergency workers who were attending
to him when he was found on Martin Drive. Chief Easter and
Sergeant Koons testified that the wound was clean and thin and
was consistent with a stab wound inflicted with a knife or edged-
weapon. The shirt found by Sergeant Uhrich at the scene showed
a clean linear slit which was consistent with a knife cut in the area
of Sales’ wound. Both physicians who treated Sales at HMC
opined, with a reasonable degree of medical certainty, that the
wound had been caused by stabbing with a knife or similar object.
There was no evidence of any other object at the scene that could
have caused Sales’ injuries. Sergeant Uhrich explained that
perpetrators usually take their weapons with them after an attack.
On the video, [Appellant] could be seen keeping his hand in his
pocket, removing it and making the stabbing motion, then
replacing his hand after reaching for something after the attack.
Despite the fact that no witness actually testified that they saw
[Appellant] with a knife, we believe this evidence was sufficient to
sustain the jury’s finding [that Appellant] possessed a weapon
[and] used it to stab Sales[.]
PSMO at 18-20.
We agree with the trial court’s thorough analysis. There was ample
circumstantial evidence in this case supporting the inference that Appellant
attacked Sales with a knife (or a similar weapon6). Appellant’s first claim is
meritless.
II.
____________________________________________
6 Appellant also argues that “there was evidence presented from the
Commonwealth’s witnesses suggesting that [Sales’] injury could have been
inflicted by a sharp object other than a knife.” Appellant’s Brief at 43. This is
a distinction without a difference in the factual circumstances of this case.
With respect to the offenses for which Appellant was convicted, it matters not
whether Appellant specifically used a knife or another sharp object in inflicting
the wound on Sales, where there was overwhelming circumstantial evidence
that Appellant wielded that object when he attacked Sales.
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Next, Appellant claims that the jury’s verdict was against the weight of
the evidence with respect to Counts 1, 2, and 4, echoing many of the same
arguments he presented in his sufficiency claim. He notes that neither Sales
nor Nunemaker testified to having observed a weapon, despite being the only
eyewitnesses to the attack, and that the police never recovered a weapon
“that could have been used to cause this injury.” Appellant’s Brief at 46. He
argues that “it is just as likely that the victim was injured in some other way
other than what the Commonwealth alleges[,]” speculating that, because “it
was clear that the victim fell a couple of times during this assault[,]” Sales
“could have landed on a sharp object that would have injured him in this way.”
Id. He contends that the location of the assault – a gas station – was a place
where such objects were “likely to be lying around.” Id. at 47.
The following principles are applicable to a challenge to the weight
of the evidence:
“A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court.” Commonwealth v. Widmer,
… 744 A.2d 745, 751–52 ([Pa.] 2000); Commonwealth v.
Brown, … 648 A.2d 1177, 1189 ([Pa.] 1994). A new trial
should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would
have arrived at a different conclusion. Widmer, … 744 A.2d
at 752. Rather, “the role of the trial judge is to determine
that ‘notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.’” Id. []
(citation omitted). It has often been stated that “a new trial
should be awarded when the jury’s verdict is so contrary to
the evidence as to shock one’s sense of justice and the
award of a new trial is imperative so that right may be given
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another opportunity to prevail.” Brown, … 648 A.2d at
1189.
Commonwealth v. Clay, … 64 A.3d 1049, 1054–55 ([Pa.] 2013).
In other words, “[a] weight of the evidence claim concedes that
the evidence is sufficient to sustain the verdict, but seeks a new
trial on the ground that the evidence was so one-sided or so
weighted in favor of acquittal that a guilty verdict shocks one’s
sense of justice.” Commonwealth v. Lyons, … 79 A.3d 1053,
1067 ([Pa.] 2013).
This Court’s standard of review in evaluating a trial court’s
ruling on a weight of the evidence claim is different than the
standard of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, … 354 A.2d 545 (Pa. 1976). One of
the least assailable reasons for granting or denying a
new trial is the lower court’s conviction that the
verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Widmer, … 744 A.2d at 753[].
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial
based on a challenge to the weight of the evidence is
unfettered. In describing the limits of a trial court’s
discretion, we have explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
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exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the 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.
Widmer, … 744 A.2d at 753 (quoting Coker v. S.M.
Flickinger Co., … 625 A.2d 1181, 1184–85 ([Pa.] 1993)).
Clay, 64 A.3d at 1055.
Further, our Supreme Court has clarified that[,]
[t]o determine whether a trial court’s decision constituted a
palpable abuse of discretion, an appellate court must
“examine the record and assess the weight of the evidence;
not however, as the trial judge, to determine whether the
preponderance of the evidence opposes the verdict, but
rather to determine whether the court below in so finding
plainly exceeded the limits of judicial discretion and invaded
the exclusive domain of the jury.” Where the record
adequately supports the trial court, the trial court has acted
within the limits of its judicial discretion.
Id. at 1056 (quoting Brown, 648 A.2d at 1190 (citation omitted))
[].
Commonwealth v. Landis, 277 A.3d 1172, 1183–84 (Pa. Super. 2022),
reargument denied (Aug. 1, 2022).
The trial court determined that the verdict was not against the weight
of the evidence, indicating instead that the jury had “ample evidence that
[Appellant] was in possession of a weapon and that he used that weapon to
cause Sales’ injuries.” PSMO at 22. The court further stated that the “jury
obviously found the Commonwealth’s witnesses to be credible and we find no
conflicting evidence of such great weight which would overshadow that
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finding.” Id. We ascertain no abuse of discretion by the trial court in its
rejection of Appellant’s weight-of-the-evidence claim. Appellant merely
speculates as to alternative possible causes of Sales’ wound, theories which
the jury was free to reject in light of the other evidence in this case that clearly
supports the inference that Sales’ wound was caused by Appellant’s use of a
weapon. Thus, Appellant’s second claim lacks merit.
III.
Next, Appellant argues that the trial court erred in overruling his hearsay
objection during Chief Easter’s testimony. Specifically, Chief Easter testified
that, when he first encountered Sales and saw that he was bleeding, he asked
Sales what had happened to him. N.T., 5/26/21, at 8. Defense counsel
objected on hearsay grounds. Id. The Commonwealth argued that Sales’
statement to Chief Easter was admissible under the excited utterance
exception to the hearsay rule. Id. The trial court overruled the objection on
that basis, and Chief Easter then testified that Sales told him “that he was
gassing up at the Mobil[] station at 12th and Cumberland when an individual
approached him and stabbed him.” Id. Chief Easter then “asked him if he
knew this person, and he said he never saw him in his life.” Id.“The admissibility of evidence is solely within the discretion of the trial
court and will be reversed only if the trial court has abused its discretion.”
Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002).
“Hearsay is defined as ‘a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth
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of the matter asserted.’” Id (quoting Pa.R.E. 801(c)). Hearsay testimony is
inadmissible in this Commonwealth, except as provided in the Pennsylvania
Rules of Evidence or “by other rules prescribed by the Pennsylvania Supreme
Court, or by statute.” Pa.R.E. 802.
Pennsylvania’s evidentiary rules provide an exception to the rule against
hearsay for excited utterances, which are statements “relating to a startling
event or condition, made while the declarant was under the stress of
excitement that it caused.” Pa.R.E. 803(2). Under Rule Rule 803(2), “[w]hen
the declarant is unidentified, the proponent” of the exception “shall show by
independent corroborating evidence that the declarant actually perceived the
event or condition.” Id. The Comment to Rule 803(2) provides further
guidance for the application of the exception as follows:
This rule differs from F.R.E. 803(2) insofar as it requires
independent corroborating evidence when the declarant is
unidentified. See Commonwealth v. Upshur, 764 A.2d 69 (Pa.
Super. 2000).
This exception has a more narrow base than the exception for a
present sense impression, because it requires an event or
condition that is startling. However, it is broader in scope because
an excited utterance (1) need not describe or explain the startling
event or condition; it need only relate to it, and (2) need not be
made contemporaneously with, or immediately after, the startling
event. It is sufficient if the stress of excitement created by the
startling event or condition persists as a substantial factor in
provoking the utterance.
There is no set time interval following a startling event or condition
after which an utterance relating to it will be ineligible for
exception to the hearsay rule as an excited utterance. In
Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super.
1978), the [C]ourt explained:
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The declaration need not be strictly contemporaneous with
the existing cause, nor is there a definite and fixed time
limit. … Rather, each case must be judged on its own facts,
and a lapse of time of several hours has not negated the
characterization of a statement as an “excited utterance.” …
The crucial question, regardless of the time lapse, is
whether, at the time the statement is made, the nervous
excitement continues to dominate while the reflective
processes remain in abeyance.
Pa.R.E. 803(2) (comment).
The trial court admitted Sales’ statement to Chief Easter under the
excited utterance exception to the rule against hearsay because:
Sales made the statement to Chief Easter within a very short time
after he had experienced a startling event — an unprovoked attack
and stabbing. It is apparent that he was still under the stress of
that excitement when the statements were made as he was l[]ying
on the grass bleeding from his injuries. Sales’ demeanor, as well
as his scrapes, wounds, and bloody appearance indicated that he
had just been involved in this startling event and that his
statements were a spontaneous, rather than a reflective, reaction
to being attacked and stabbed.
Trial Court’s Rule 1925(a) Opinion (“TCO”), 3/23/22, at 5.
In arguing that the excited utterance exception did not apply to Sales’
statement to Chief Easter, Appellant first contends that
Sales[’] own testimony was that he does not remember what
happened to him at the time of the incident. He repeatedly stated
this during his testimony. He would simply refer all questions to
the video of the incident. Thus, by his own admission, he did not
have any recollection of the incident and there is no evidence to
suggest that he witnessed the incident.
Appellant’s Brief at 50.
Here, Appellant confusingly appears to be claiming that Sales did not
witness the attack in which he was the victim, due to Sales’ memory issues
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about the incident at the time of trial. This claim is simply belied by the record,
which included video evidence which indisputably showed Sales’ being
assaulted by Appellant. Nevertheless, even if Appellant is more narrowly
contending that Sales did not witness the specific ‘stabbing’ act, his argument
is still meritless. “[I]ndependent corroborating evidence that the declarant
actually perceived the event or condition” giving rise to the excited utterance
exception to the rule against hearsay is only required when “the declarant is
unidentified….” Rule 803(2). Here, the declarant, Sales, is clearly “identified”
within the meaning of the rule. Thus, the Commonwealth was not required to
show independent evidence that Sales had witnessed his own stabbing beyond
the information provided within the contested statement. Nevertheless, the
video evidence clearly corroborated that Sales had the opportunity to witness
the alleged stabbing.
Appellant cites to Commonwealth v. Pronkoskie, 383 A.2d 858 (Pa.
1978), but we find that case distinguishable. In Pronkoskie, the defendant
was accused of murdering his wife. The Commonwealth sought to admit
hearsay statements made by the couple’s three-year-old daughter, Tina,
which included, inter alia, the statement: “Daddy shot mommy.” Id. at 859.
The Pronkoskie Court ultimately deemed her statements inadmissible under
the excited utterance exception, because:
While the Commonwealth has established Tina’s presence in the
trailer at the time of the shooting, there is nothing to indicate that
Tina actually saw what occurred. Indeed, her responses during
the competency examination contain repeated indications that she
did not actually see the shooting. While generally[,] the
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proponent of the evidence need only establish that a declarant
was in a position to view an incident, … the present record raises
serious enough doubts concerning Tina’s presence at the event
that a verdict based upon her statements would border upon
speculation or conjecture.
Id. at 861–62 (footnotes omitted).
Appellant ostensibly attempts to analogize Sales’ memory issues at trial
to Tina’s statements at her competency hearing indicating that she had not
witnessed the shooting. In Pronkoskie, however, Tina was not the victim of
the shooting, and there was no evidence that she had actually witnessed it.
Moreover, the “more incriminatory utterances by Tina were those made …
remote in time[,]” that is, much longer than an hour after the shooting and,
due to her young age, the Court found it “not unlikely that Tina’s imagination
might have distorted her perception of the incident.” Id. at 863. Additionally,
the ostensibly excited nature of Tina’s “utterance [was] belied by the calm and
unemotional manner in which [it was] made.” Id.
Here, by contrast, the video evidence clearly established that Sales was
in a position to witness the assault of which he was the victim. The video
timestamp on the gas station security cameras indicated that it was
approximately 12:15 p.m. when the assault began. See N.T., 5/26/21, at 33.
Sales then drove away from the gas station but was found soon thereafter by
Chief Easter in the front lawn of a home in North Lebanon Township, still
bleeding from his wound. While Chief Easter did not testify as to the exact
time when he found Sales, we can glean from the record that it was no later
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than 12:40 p.m.7 When Chief Easter came upon Sales, Sales was still bleeding
from his wound, and lying in the grass, having exited his car. Id. at 7.
Appellant claims that Sales was “clearly quite deliberative and thoughtful at
the time[,]” but, that conclusion is not supported by the record. Although
Chief Easter did not describe Sales’ demeanor, Sergeant Koons testified that
Sales was “moaning” in obvious pain while being questioned by Chief Easter,
and that he appeared to be “slipping in and out” of consciousness toward the
end of their interaction. Id. at 137. Based on these facts, we ascertain no
abuse of discretion by the trial court in its determination that Sales’ statement
was made soon after the startling event (the assault), and that he was still
under the excitement of that event because he was lying in the grass, bleeding
from his injuries and moaning in pain, and eventually he was slipping in and
out of consciousness while Chief Easter spoke with him. See TCO at 5. Thus,
we conclude that Appellant’s third claim is also meritless.
IV.
Next, Appellant argues that the trial court erred by admitting the
security videos from the Mobil gas station over his objection. He asserts that
the video evidence was not properly authenticated because “the
Commonwealth did not have anyone associated with the Mobil[] gas station
____________________________________________
7 Sergeant Uhrich responded to the gas station at 12:40 p.m., after learning
from North Lebanon Township police that a stabbing had occurred there. That
information was obtained from Sales. See N.T., 5/26/21, at 20-21. Thus, at
most, 25 minutes had elapsed from the time of the stabbing until Sales made
the statement to Chief Easter.
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or anyone who was familiar with the video system available to testify about
the operability or the authenticity of the video itself.” Appellant’s Brief at 52.
He also claims that “no eyewitnesses testified regarding the accuracy of the
video and what it depicted.” Id. at 52-53.
Pursuant to Pennsylvania Rule of Evidence 901, authentication is
required prior to admission of evidence. The proponent of the
evidence must introduce sufficient evidence that the matter is
what it purports to be. See Pa.R.E. 901(a). Testimony of a
witness with personal knowledge that a matter is what it is claimed
to be can be sufficient. See Pa.R.E. 901(b)(1). Evidence that
cannot be authenticated by a knowledgeable person, pursuant to
subsection (b)(1), may be authenticated by other parts of
subsection (b), including circumstantial evidence pursuant to
subsection (b)(4).6 See Pa.R.E. 901(b)(4).
6 Pursuant to Rule 901(b)(4), evidence may be
authenticated by “Distinctive Characteristics and the Like.
The appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together
with all the circumstances.” Pa.R.E. 901(b)(4).
Commonwealth v. Mangel, 181 A.3d 1154, 1158–59 (Pa. Super. 2018).
Here, the trial court determined that the following testimony
authenticated the video evidence:
At trial, Sergeant Keith Uhrich of the Lebanon City Police
Department testified that he personally viewed and retrieved the
video from the Mobil[ gas s]tation shortly after the report of the
attacked was received by Lebanon City Police. Sergeant Uhrich
confirmed the accuracy of the timestamp, as the video indicated
that it was created and copied on the date of this incident, July
16, 2020. He confirmed that the video was an accurate depiction
of the Mobil[ gas s]tation on that date. He was also able to confirm
that Sales appeared in the video. []N.T.[,] 5/26/21[,] at 35.
During the trial, Sergeant Duane Koons of the North Lebanon
Police Department testified that he also responded to the dispatch
to the location where Sales was reported to be l[]ying on the
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ground after he fled the Mobil[ gas s]tation. [Id.] at 133[.] At
that time, Sales told him he had been stabbed at the Mobil[ gas
s]tation and that the incident had been recorded on the [s]tation’s
video cameras. [Id.] at 134-135[.] In addition, Sales would
testify at the trial that it was him in the video. [Id.] at 101, 104[.]
[Appellant] also placed himself at the Mobil[ gas s]tation during
his interview with Sergeant Uhrich. [Id.] at 72[.]
TCO at 6-7.
The trial court determined that Appellant’s authentication objection at
trial — that “Sergeant Uhrich was not present at the time of the incident and
could not testify that the video depicted any of his personal observations[,]”
and that “the Commonwealth had not presented any witness who could verify
that the camera system was working properly on that date and the accuracy
of the timestamp” — were matters that “went to the weight, rather than the
admissibility, of this evidence[.]” Id. at 7.
The Commonwealth further argues:
First, the footage was authenticated by a witness with knowledge-
- the victim, Jarrod Sales. See Pa.R.E. 901(b)(1). While Sales,
who had been threatened not to testify, was reluctant to do so, he
nonetheless identified himself on the video and agreed that the
video showed what happened that day. []N.T.[, 5/26/21], at
100-02.
Second, the testimony of Sgt. Uhrich overwhelmingly supported
the premise that the video footage was “what it was claimed to
be” under Pa.R.E. 901(b)(4) and (9). Sgt. Uhrich went to the
crime scene shortly after the attack on July 16, 2020[,] to
investigate the assault. As part of his investigation, he personally
retrieved and viewed all recorded camera angles depicting the
incident from the Mobil [gas station]’s surveillance cameras.
[]N.T.[, 5/26/21], at 26-27[]. Sgt. Uhrich’s personal observations
of the physical crime scene at that time were accurately depicted
by and consistent with the video footage. [Id.] at 28[]. The date
stamp displayed on the footage showed the correct date, July 16,
2020. [Id.] at 27[]. The timestamp displayed on the footage
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displayed the correct time. [Id.] at 27[]. That same date, he
made the copies of the footage ultimately shown to the jury,
copies he had since reviewed more than 50 times. [Id.] at 36[].
Moreover, Sgt. Uhrich was able to authenticate the footage by
circumstantial evidence as specifically permitted by subsection
(b)(4): “[t]he appearance, contents, substance, internal patterns,
or other distinctive characteristics of the item, taken together with
all the circumstances.” He was able to identify people and objects
in the video content that confirmed the connection of the footage
with the assault at issue. Sgt. Uhrich was able to identify the
victim at various times during the video, including a close-up of
Sales’[] face when he fled inside the Mobil [gas station] for safety.
[]N.T.[, 5/26/21] at 27-28, 35[]. Sgt. Uhrich was able to identify
the car of Ashley Nunemacher, [in] which [Appellant] both arrived
to and fled from the scene. [Id.] at 31-32[]. Sgt. Uhrich was
able to identify the victim’s vehicle and the distinct characteristics
of the crime scene itself on the day of the incident, including a
missing gas pump where part of the assault occurred. [Id.] at
28, 31[]. He was able to reconcile the trail of blood and bloody
shirt of the victim as he saw them on the video with what he
discovered during his physical search and investigation of the
crime scene. [Id.] at 40-41, 50, 55-56[]. Thus, distinct contents
and overall substance of the footage further established that the
video evidence was what it was claimed to be: video evidence of
the assault perpetrated by … Appellant.
Commonwealth’s Brief at 57-59.
We agree with the Commonwealth’s thorough analysis. There was
ample circumstantial evidence presented to verify the authenticity of the
security video evidence presented at Appellant’s trial. The video was retrieved
by police soon after the incident, it showed an accurate timestamp, the victim
identified himself from the video footage,8 and Sgt. Uhrich provided a
substantial amount of testimony supporting the conclusion that the video
____________________________________________
8 Thus, Appellant’s contention that no eyewitnesses were offered to
authenticate the video is simply belied by the record.
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accurately depicted the location of the assault that had occurred immediately
prior to when the police secured the video, by comparing his personal
observations of the scene to what was depicted in the video. Moreover, we
also agree with the Commonwealth that there is no absolute requirement
under Rule 901 that accuracy of the video be established “by the business
representative or building owner where the cameras are installed.”
Commonwealth’s Brief at 60.9 Accordingly, we ascertain no abuse of
discretion by the trial court in its overruling Appellant’s objection to the
authentication of the video evidence.
V.
Next, Appellant argues that the trial court erred in permitting the
Commonwealth to introduce Sales’ medical bills as evidence of the seriousness
of his injury. Appellant claims that the medical bills were not relevant to prove
serious bodily injury,10 and that the admission of that evidence misled the jury
____________________________________________
9 Appellant cites to two, non-precedential decisions by this Court, both of
which involved challenges to the authenticity of a video that were ultimately
rejected. See Appellant’s Brief at 53-55. However, only unpublished
memorandum decisions filed after May 1, 2019, may be cited for their
persuasive value. See Superior Court I.O.P. 65.37(B). Thus, we decline to
address Appellant’s analysis of those cases in relation to this matter, as both
of those memorandums were filed before the requisite date.
10 To prove Appellant committed aggravated assault under subsection (a)(1),
the Commonwealth was required to demonstrate that he attempted “to cause
serious bodily injury to another, or cause[d] such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference
to the value of human life….” 18 Pa.C.S. § 2702(a)(1).
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to the extent that it was “clearly prejudicial and deprived Appellant of a fair
trial in this case.” Appellant’s Brief at 60.
We note that: “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.
Furthermore, “[a]ll relevant evidence is admissible, except as otherwise
provided by law. Evidence that is not relevant is not admissible.” Pa.R.E.
402. The trial 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.
As explained by the trial court,
Sales testified that his injuries required surgery to his stomach,
that he was in the hospital for seven days following this incident,
and that he had unpaid medical bills of approximately $30,000.
[]N.T.[,] 5/26/21[,] at 107-[]08[.] The amount of the medical
expenses and the bills he incurred for the treatment of his injuries
is reflective of the extent and degree of medical care and attention
which were necessary and which were provided to him as the
result of the injuries inflicted during the attack. This evidence was
relevant and probative as to whether he sustained “serious bodily
injury” for purposes of the offense of aggravated assault charged
in Count 1 of the information.
TCO at 8.
We agree with the trial court. Sales’ $30,000 medical bill was
circumstantial evidence that tended to make it more likely that he had suffered
serious bodily injury than had he incurred lesser expenses, or no cost at all,
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for the treatment of his wound. Appellant’s bald argument that such evidence
is not at all relevant to establish serious bodily injury is unsupported by any
caselaw, and simply contrary to common sense. Furthermore, to the extent
that Appellant is merely arguing that the jury was misled or confused by the
cost of his medical expenses despite its relevance,11 the record belies that
assertion, as Sales also testified that his injury required surgery and a seven-
day stay in the hospital. In light of that other evidence establishing the extent
of his injuries, we disagree that that jury was misled or confused by the cost
of his medical care. Appellant did not incur such significant medical expenses
despite otherwise minimal medical intervention to treat his stab wound.
Rather, the cost of his medical care was proportionate and/or reflective of the
seriousness and extent of his treatment, given that the wound required
surgery and a week-long stay in the hospital. Accordingly, we conclude that
Appellant’s fifth claim lacks merit.
VI.
In his penultimate claim, Appellant asserts that his Prior Record Score
(“PRS”) was incorrectly calculated as a repeat felon (“RFEL”), based on his
out-of-state convictions from New York. There is no dispute in this appeal as
to whether Appellant was properly classified as an RFEL if his New York
____________________________________________
11 See Rule 403.
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convictions are treated separately for purposes of calculating his PRS.12
However, Appellant argues that, because his sentences for his New York
convictions were ordered to run concurrently, only the most serious of those
offenses should have been used to calculate his PRS.
We address Appellant’s sentencing claim under the following standards:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation
omitted). However,
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
____________________________________________
12 The Commonwealth opines that Appellant’s PRS may have been
understated. See Commonwealth’s Brief at 74-75. However, the
Commonwealth did not file an appeal to contest the discretionary aspects of
Appellant’s sentence. Thus, for purposes of this appeal, we consider only
whether Appellant’s PRS assignment was too high based on his out-of-state
convictions.
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appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)
… (internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003)….
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912-13.
As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant
must articulate the reasons the sentencing court’s actions violated
the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, there is no dispute that Appellant filed a timely notice of appeal.
Furthermore, Appellant provides a Rule 2119(f) statement in his brief.
Appellant’s Brief at 61-63. Additionally, a “claim that the sentencing court
misapplied the Sentencing Guidelines” with respect to the calculation of a PRS
“presents a substantial question.” Commonwealth v. Johnson, 758 A.2d
1214, 1216 (Pa. Super. 2000). However, the Commonwealth disputes
whether Appellant properly preserved his claim for our review.
The Commonwealth acknowledges that, in his post-sentence motion,
Appellant “challenged the methodology by which his [PRS]—and therefore
[his] RFEL classification—was calculated.” Commonwealth’s Brief at 65.
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However, the Commonwealth maintains that “Appellant did not in any way …
challenge the authenticity of his New York convictions or the accuracy of the
sentences received on those convictions.” Id. Nevertheless, in his Rule
1925(b) statement, Appellant presented his claim as follows:
The [trial c]ourt erred when it denied [Appellant]’s post sentence
motion without a hearing in which it was argued that [Appellant]’s
[PRS] was improperly calculated as the two prior convictions used
to substantiate this score were out[-]of[-]state convictions and
the evidence of these convictions was never properly entered into
evidence or authenticated; thus, resulting [in] him receiving an
illegal sentence in this case.
Appellant’s Rule 1925(b) Concise Statement, 2/28/22, at 1 ¶ 6.
After reviewing the record, we agree with the Commonwealth that
Appellant failed to preserve a claim that that his out-of-state convictions were
not properly entered into evidence or authenticated. Nevertheless, any such
claim was effectively abandoned in Appellant’s brief, as he presents no
argument therein regarding the admission or authenticity of his out-of-state
convictions. To the contrary, Appellant argues in his brief under the
assumption that the record accurately represents the relevant facts regarding
those New York convictions. See Appellant’s Brief at 66 (concluding that, “if
we are to assume the accuracy of the New York sentencing documents, then
it is clear that Appellant’s New York convictions were served concurrently. As
a result, the [t]rial [c]ourt erred when it sentenced him as if he was an RFEL”).
As to Appellant’s claim that his PRS was improperly calculated, we deem that
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issue adequately preserved in Appellant’s Rule 1925(b) statement. 13 Thus,
with regard to that narrow issue, we conclude that Appellant has satisfied the
requirements to invoke our jurisdiction to review his discretionary-aspects-of-
sentencing claim. Thus, we turn to address that claim on its merits.
As background, it is now undisputed that, at the time of sentencing in
this case, Appellant had two prior, out-of-state convictions in New York. First,
Appellant pled guilty in New York to 2nd degree Burglary on September 12,
2006, and was sentenced for that offense on February 7, 2007, to 5 years’
imprisonment. Second, he pled guilty in New York to 1st Degree Manslaughter
on September 28, 2008, and was sentenced for that offense on November 7,
2008, to 14 years’ imprisonment, to be served concurrently to his February 7,
2007 sentence for burglary.
____________________________________________
13 The Commonwealth narrowly interprets Appellant’s Rule 1925(b) statement
as having abandoned the improper-calculation argument based upon the
concurrent nature of the out-of-state sentences, due to Appellant’s inclusion
of the additional language challenging the authentication of those out-of-state
convictions. Although Appellant could have been clearer, we believe that his
statement of the issue in the Rule 1925(b) statement was an attempt to
preserve both claims, particularly since Appellant challenged the court’s denial
of his post-sentence motion (wherein the Commonwealth claims that no
authentication claim had been raised). While the trial court did not directly
address the improper-calculation claim in its Rule 1925(a) opinion, that was
not surprising because it had already addressed that specific claim in its
opinion denying Appellant’s post-sentence motion. See PSMO at 22-25. The
trial court further stated that it only intended to address claims in its Rule
1925(a) opinion that it had not previously addressed in the post-sentence
motion opinion, see TCO at 2, and the court made no comment as to whether
it believed Appellant had abandoned the improper-calculation claim. In these
circumstances, we conclude that Appellant did not abandon his improper-
calculation claim in his Rule 1925(b) statement.
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Appellant argues that because his sentences were set to run
concurrently, Pennsylvania’s Sentencing Guidelines14 dictate, or are at least
ambiguous, as to whether his New York “convictions should be aggregated,
which would make Appellant an[] RFEL, or if they should be combined, which
would reduce his PRS to a 4.” Appellant’s Brief at 64. Appellant points to
Section 303.5 of the Sentencing Guidelines, which provides as follows:
(a) If there is a single offense in the prior judicial proceeding, that
offense shall be counted in the calculation of the Prior Record
Score.
(b) If there are multiple offenses in the prior judicial proceeding:
(1) The most serious offense of the judicial proceeding shall
be counted in the calculation of the Prior Record Score.
(2) Any offense for which a sentence of supervision or
confinement is imposed consecutive to a sentence for
another offense in the judicial proceeding shall be counted
in the calculation of the Prior Record Score.
204 Pa. Code § 303.5.
Appellant maintains that, although “Section 303.5 specifically states
that any sentence that is run consecutively shall be counted in the calculation
of the [PRS,] … it is silent with respect to cases that are run concurrently.”
Appellant’s Brief at 65. Appellant then turns to a prior version of Section 303.5
to argue as follows:
Prior to 2005, the guidelines specifically required that sentences
must be “totally concurrent” in order to not be counted towards a
defendant’s [PRS]. In 2005[,] this language was removed to read
as it does in the current version of [Section] 303.5. Given the
removal of this language, it is clear that the requirement for “total
____________________________________________
14 See 204 Pa. Code § 301.1 et seq.
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concurrency” was dropped from the legislation. Instead, the
current law only counts sentences that are run consecutively to
one another in the determination of a defendant’s prior record
score.
Id. at 66.
The trial court disagreed, reasoning instead that, because Appellant’s
“sentences were imposed at two separate sentencing proceedings, both
offenses were properly utilized in the calculation of his PRS[,]” despite the fact
that the second sentence had been ordered to run currently to the first. PSMO
at 24.
The Commonwealth agrees with the trial court, arguing that Appellant’s
stated analysis is not accurate, as demonstrated by a review of
the actual language of [Section] 303.5, read in conjunction with
other sections— particularly the definitions section— promulgated
by the Sentencing Commission. Section 303.5 states:
[](a) If there is a single offense in the prior judicial
proceeding, that offense shall be counted in the calculation
of the Prior Record Score.
(b) If there are multiple offenses in the prior judicial
proceeding:
(1) The most serious offense of the judicial proceeding
shall be counted in the calculation of the Prior Record
Score.
[204 Pa. Code § 303.5] (emphasis added).
The term “judicial proceeding” is defined by the Sentencing
Commission in § 303.2. That section states, in pertinent part:
(b) Judicial proceeding. A judicial proceeding is a proceeding
in which all offenses for which the offender has been
convicted are pending before the court for sentencing at
the same time. A judicial proceeding may include multiple
offenses and transactions.
204 Pa. Code § 303.2. (emphasis added).
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… Appellant’s erroneous interpretation of [Section] 303.5 confuses
concurrent sentences or confinement with concurrent sentencing
proceedings. Those legal terms of art are not the same. As
[Section] 303.2 makes clear, … Appellant in the instant case had
two separate judicial proceedings, not one. He was convicted and
sentenced on the [b]urglary charge at one judicial proceeding
more than 21 months before his [m]anslaughter conviction was
pending before the New York court for sentencing in a separate
judicial proceeding. To have been considered part of one judicial
proceeding under the [g]uidelines, both offenses would have had
to have been pending “before the court for sentencing at the same
time.” [204 Pa. Code § 303.2(b).] The fact that the judge who
ultimately sentenced … Appellant on the [m]anslaughter charge
permitted the [m]anslaughter sentence to be served concurrently
with the previously-sentenced [b]urglary charge is irrelevant
under the [g]uidelines.
Therefore, the points assigned to … Appellant’s two New York
convictions were properly aggregated to determine his [PRS].
Commonwealth’s Brief at 71-73.
We agree with the Commonwealth’s analysis. Appellant’s argument
simply ignores that his sentences for his two New York convictions, although
ultimately set to run concurrently, stemmed from entirely separate judicial
proceedings. Because Appellant’s burglary and manslaughter convictions
from New York arose from separate judicial proceedings, Section 303.5(b)(1)
did not apply and, therefore, the trial court was not required to only count the
more serious of those offenses towards its calculation of Appellant’s PRS in
this case. As such, we conclude that Appellant’s sixth claim is meritless.
VII.
Finally, Appellant asserts that the trial court erred in denying his motion
in limine, in which he sought to exclude testimony from Chief Easter and
Sergeant Koons indicating their belief that Sales’ wound was consistent with
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his having been stabbed by a knife or similar weapon. Appellant contends
that, because neither witness was qualified as a medical or forensics expert,
and because they did not witness the stabbing, the court abused its discretion
by permitting the officers to testify as to the cause of Sales’ wound.
Pa.R.E. 701 provides that:
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.
Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
Here, the trial court determined that the witnesses’ testimony was
admissible because both officers had the requisite training and experience to
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identify that Sales’ wound was consistent with a stab wound caused by a knife
or similar, edged weapon:
[Appellant] next assigns error to our denial of his [m]otion in
limine in which he asked us to preclude the testimony of Chief
Easter and Sergeant Koons to the effect that Sales had sustained
a “stab” wound caused by a knife or some other edged object.
[Appellant] argues that the officers were not qualified as experts
to present such testimony. However, neither officer offered that
Sales’ wound was definitely caused by [a] stabbing with a knife or
some type of edged weapon, but only testified that the wound
appeared to be consistent with having been caused in that
manner.
Chief Easter testified that he had extensive training and
experience in identifying types of wounds through his long-term
position as a law enforcement officer and from his service in the
military. []N.T.[,] 5/26/21, at 9-10[.] He explained that he had
observed numerous stab wounds during his service in Vietnam.
[Id.] at 17[.] He had also taught a course on edged weapons to
police cadets. [Id.] at 5-6[.] He described the appearance of
wounds inflicted with an edged weapon, such as a knife, and
explained the difference between wounds inflicted with a knife and
a puncture wound. [Id.] at 6[.] He testified that Sales’ injuries
were consistent with a stab wound. [Id.] at 14[.] We believe
that Chief Easter demonstrated that he had the requisite
knowledge from his training and experience to render this
testimony and we see no error in its admission.
Sergeant Koons testified that he saw Sales’ wound when he
responded to the report of Sales l[]ying on the ground in Northern
Lebanon after the Incident. [Id.] at 135[.] Sergeant Koons
explained that the wound was clean, like a slice, and was bleeding
quickly. [Id.] Sergeant Koons confirmed that he had 32 years of
experience in law enforcement and that, during that time, he had
dealt with many stab victims and had observed many stab
wounds. [Id.] at 136-[]37[.] He testified that Sales’ wound was
consistent with a stab wound and with having been inflicted with
an edged weapon. [Id.] at 136[.] We believe that Sergeant Koons
also demonstrated that he possessed the requisite training and
experience to offer this statement.
TCO at 9-10.
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Appellant argues that Chief Easter and Sergeant Koons were not
properly qualified as experts because the Commonwealth ostensibly failed to
establish that they had medical training, or “specialized training or experience
in recognizing stab wounds.” Appellant’s Brief at 68, 69. Appellant contends
that this case is controlled by Commonwealth v. Harper, 230 A.3d 1231(Pa. Super. 2020).
In Harper, police responded to a report of a shooting, but “there was
no shooting in progress and no one present was involved in the shooting.” Id.
at 1234. “However, the police recovered three .40-caliber Smith & Wesson
casings and nine 9-millimeter casings from the scene.” Id.
Around the same time, Harper presented at a hospital with a gunshot wound
to the knee. Id. While at the hospital, Harper was visited by Officer Moffatt.
At trial, Officer Moffatt testified that “he believed, based on his experience and
his observation of ‘the angle and location’ of the wound, that [Harper] had ‘a
self-inflicted gunshot wound.’” Id. Harper’s trial counsel failed to object to
this testimony. Based on that testimony, as well as incriminating statements
made by Harper to Officer Moffatt, Harper was convicted of firearms offenses.
Id.
In the appeal from the denial of his Post Conviction Relief Act (PCRA)15
petition, Harper successfully demonstrated that his trial counsel was
ineffective for failing to seek suppression of his inculpatory statements to
____________________________________________
15 42 Pa.C.S. §§ 9541-9546.
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Officer Moffatt, and for failing to object to those statements at trial pursuant
to the corpus delicti rule. Id. at 1236-41. In his third claim for relief, Harper
also asserted that his trial counsel was ineffective for failing to object to Officer
Moffatt’s opinion that Harper’s gunshot wound was self-inflicted, arguing that
Officer Moffatt could have testified, as a lay witness, about his
observation that [Harper] had a wound in his knee. However,
[Harper] claims, an opinion that [he] sustained a self-inflicted
gunshot wound would encompass not only a medical diagnosis,
but also forensic science. [Harper] emphasizes no foundation was
laid for this testimony and Officer Moffatt was not qualified as an
expert.
Id. at 1241.
This Court agreed, finding arguable merit to Harper’s ineffectiveness
claim because,
the pertinent portion of Officer Moffatt’s testimony was beyond
the scope of lay testimony permitted by Rule of Evidence 701(c).
An opinion that a gunshot wound was self-inflicted would require
specialized expert medical and forensic training. See Pa.R.E.
702(c). Aside from a vague reference to his “experience” and “the
angle and location” of [Harper]’s wound, as well as his
uncorroborated opinion that the wound was “[f]rom the top of the
knee down towards the foot,” Officer Moffatt offered no medical
or forensic observations of the wound, nor any medical or forensic
theories supporting his opinion.
Id. at 1242.
Appellant argues that Harper “is similar to the present matter[,] as
[Chief] Easter [and Sergeant Koons] also had no specialized training or
experience in recognizing stab wounds.” Appellant’s Brief at 69. We disagree.
In Harper, Harper acknowledged that Officer Moffatt could have
testified as a lay witness that Harper had a wound to his knee. The specific
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testimony that the Harper Court found had exceeded the bounds of Rule
701(c), which governs the opinion testimony of lay witnesses, was that the
wound had been self-inflicted. As noted by the Harper Court, that testimony
required some medical or forensic expertise, and the Commonwealth failed to
lay a foundation establishing that Officer Moffatt had any such expertise.
Here, by contrast, the trial court found that both Chief Easter and
Sergeant Koons had the requisite training and experience to testify to their
opinions that Sales’ wound was consistent with having been caused by a knife
or similar edged weapon. While they did not purport to be medical experts,
both witnesses testified that they had extensive experience observing wounds
caused by knives due to their careers in law enforcement and the military.
Thus, their testimony was admitted under Rule 702 due to their special
training and experience, and not as the opinion testimony of lay witnesses
under Rule 701. As such, Harper is distinguishable.
Appellant argues that the officers had no specialized training or
experience in recognizing stab wounds, but the record simply belies that
contention. Both witnesses testified that they had experience recognizing
stab wounds, laying a foundation that established specialized training that was
simply absent from the record in Harper, where no foundation was laid to
support Officer Moffatt’s opinion testimony. Moreover, we do not believe that
the mere observation that a wound is consistent with having been caused by
an edged weapon requires the same level of medical or forensic expertise as
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is required to determine whether a gunshot wound was self-inflicted. Thus,
we would also find that Harper is distinguishable for that reason, as well.
Accordingly, we conclude that Appellant has failed to meet his burden
of demonstrating that the trial court abused its discretion by admitting the
officers’ testimony that Sales’ wound was consistent with a stabbing caused
by a knife or similar weapon. Nor do we ascertain any abuse of discretion in
the court’s determining that the officers’ specialized training was sufficient to
qualify them to offer those opinions. Thus, we conclude that the contested
opinion testimony was permissible under Rule 702 due to the officers’
extensive experience observing stab wounds.
In any event, we agree with the Commonwealth that, even if the officers’
testimony was not admissible, Appellant was not prejudiced by the admission
of those opinions because they were merely cumulative of the uncontested
medical opinions of two physicians. As the Commonwealth argues:
[E]ven if it were improper for the officers to offer the challenged
observations, their testimony on this issue was cumulative of
similar, expert opinion testimony offered by two expert witnesses
at trial: Drs. Moore and Fitzgerald. Both physicians, whose expert
qualifications were not challenged by Appellant at trial or on
appeal, testified, to a reasonable degree of medical certainty, that
[Sales’] wound was the result of a stabbing. Dr. Fitzgerald’s
expert opinion was even more specific: she opined that the victim
had been stabbed with a knife. Thus, even if the officers’
testimony regarding the nature of the victim’s wound was
admitted in error, that error was harmless, and so Appellant is not
entitled to a new trial. See Commonwealth v. West, [834 A.2d
625, 634 (Pa. Super. 2003)] (“Not all errors at trial, however,
entitle an appellant to a new trial, and [t]he harmless error
doctrine, as adopted in Pennsylvania, reflects the reality that the
accused is entitled a fair trial, not a perfect trial….”);
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Commonwealth v. Watson, [945 A.2d 174, 177 (Pa. Super
2008)] (holding that harmless error exists when “the erroneously
admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence”); Commonwealth v. Smalls, 980 A.2d 549,
562 (Pa. 2009) ([stating that the] admission of improper
testimony can be deemed harmless error, if the testimony is
merely cumulative of other properly admitted evidence).
Commonwealth’s Brief at 80-81.
Because the disputed testimony by Chief Easton and Sergeant Koons
was cumulative of the unchallenged expert testimony by Drs. Moore and
Fitzgerald, see N.T., 5/26/21, at 184-85 (Dr. Moore’s testifying, to a
reasonable degree of medical certainty, that Sales was stabbed); id. at 199
(Dr. Fitzgerald’s testifying, to a reasonable degree of medical certainty, that
Sales was stabbed), we agree with the Commonwealth that, even if the
officers’ opinion testimony was inadmissible under Rule 702, that error was
harmless. Accordingly, Appellant is not entitled to relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2022
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