Com. v. Ferrante, R. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT FERRANTE, :
:
Appellant : No. 660 WDA 2015
Appeal from the Judgment of Sentence February 4, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, No(s): CP-02-CR-0013724-2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 18, 2018
Robert Ferrante (“Ferrante”) appeals from the judgment of sentence
entered following his conviction of first-degree murder. See 18 Pa.C.S.A.
§ 2502. We affirm.
We adopt the thorough and comprehensive summary of the factual
history of this case, as set forth in the Opinion of the Honorable Jeffrey
Manning, for the purpose of this appeal. See Trial Court Opinion, 9/15/16,
at 4-23.
Briefly, the Commonwealth’s evidence established that at 11:18 p.m.,
on April 17, 2013, Autumn Klein, M.D., Ph.D. (“Dr. Klein”), was seen leaving
Presbyterian University Hospital, her place of employment. Upon arriving at
her residence, Dr. Klein collapsed. At 11:52 p.m., Dr. Klein’s husband,
Ferrante, called for an ambulance. Pittsburgh paramedics Jerad Albaugh and
Steve Mason arrived at the residence, where they found Dr. Klein
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unconscious on the kitchen floor. Ferrante told the paramedics that he was
upstairs when Dr. Klein had entered the home, and discovered Dr. Klein
when he came downstairs. Ferrante explained to paramedics that a zip lock
bag containing a white powder, found in the kitchen, contained creatine.
Ferrante explained that Dr. Klein took the creatine to help with fertility.
At the hospital, Andrew Farkas, M.D. (“Dr. Farkas”), asked Ferrante
whether Dr. Klein had suffered previously from headaches. Ferrante stated
that right before collapsing, Dr. Klein had complained of not feeling well.
When placing an IV, Dr. Farkas observed that Dr. Klein’s blood was bright
red. Dr. Klein was subsequently transferred to the intensive care unit
(“ICU”). Three days later, the supervising physician in the emergency room,
Thomas Martin, M.D. (“Dr. Martin”), told Dr. Farkas that the results of Dr.
Klein’s blood test indicated the presence of a high level of cyanide. Dr.
Farkas contacted the Allegheny County Medical Examiner’s Office and
informed them of his concerns regarding Dr. Klein. Dr. Klein was
pronounced dead on April 20, 2013.
On July 24, 2013, Ferrante was charged with one count of criminal
homicide for the death of Dr. Klein. A jury ultimately convicted Ferrante of
first-degree murder. Following the preparation of a pre-sentence
investigation report, the trial court sentenced Ferrante to life in prison.
Ferrante filed post-sentence Motions and supplemental post-sentence
Motions, all of which the trial court denied. Ferrante filed a Motion to
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reconsider the denial of his post-sentence Motions, which the trial court also
denied. Thereafter, Ferrante timely filed a Notice of appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained
of on appeal.
Ferrante raises the following claims for our review:
I. Whether the Commonwealth had a duty to disclose to
[Ferrante] before trial that [the] Nichols Institute
(“Nichols”), a/k/a Quest Diagnostics, [Incorporated
(“Quest”),] had a criminal conviction and had committed
other bad acts which were relevant to the reliability of the
Quest cyanide test result introduced at trial?
II. Whether the evidence was insufficient to sustain a
conviction of first-degree murder?
III. Whether the guilty verdict of first-degree murder was
against the weight of the evidence?
IV. Whether the [trial] court erred in denying [Ferrante’s]
suppression Motions [Nos.] 1, 20, 24, 28, 38, 60, 63,
[and] 64[,] [and] allowing the fruits of the
Commonwealth’s illegal searches and seizures to be
introduced at trial against [Ferrante]?
Brief for Appellant at 1.
Ferrante first claims that the Commonwealth violated the United
States Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83 (1963),
by not disclosing that a subsidiary of Quest, Nichols Institute1 had a prior
crimen falsi conviction. Brief for Appellant at 20. Ferrante argues that the
Commonwealth had an affirmative duty to disclose exculpatory evidence,
1
Ferrante argues that, the fact that Nichols was a subsidiary of Quest is a
distinction without a difference, as the two are “interchangeable,” as Quest
had paid Nichols’s criminal and civil fines. Brief for Appellant at 24.
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even though there had been no request for such evidence by the accused.
Id. Ferrante contends that after trial, his counsel discovered that Nichols
had been convicted of a felony, for which it paid a fine of $40 million. Id.Ferrante additionally points out that Quest had paid $241 million to settle
claims regarding Nichols’s violations of the False Claims Act, for
systematically overcharging California’s Medi-Cal program for over 15 years.
Id. at 21. Ferrante states that a determination of the cause of Dr. Klein’s
death depended upon the reliability of Quest’s tests of Dr. Klein’s blood. Id.
Regardless of whether the Commonwealth knew of this information, Ferrante
claims that the Commonwealth had an obligation to find out and disclose
Nichols’s prior criminal conviction and bad acts. Id. at 22. Ferrante asserts
that these criminal convictions, “as well as the numerous lawsuits, are
reflective of [the] lax standards and unreliable testing methods” of Quest.
Id.
“In Brady, the United States Supreme Court held that the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to
punishment[,] irrespective of the good faith or bad faith of the prosecution.”
Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (internal
quotation marks and citation omitted).
Pursuant to Brady and its progeny, the prosecutor has a duty to
learn of all evidence that is favorable to the accused which is
known by others acting on the government’s behalf in the case,
including the police. Kyles v. Whitley, 514 U.S. 419, 437, 115
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S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Pursuant to Kyles, “the
prosecutor’s Brady obligation clearly extends to exculpatory
evidence in the files of police agencies of the same government
bringing the prosecution.” Commonwealth v. Burke, 566 Pa.
402, 781 A.2d 1136, 1142 (Pa. 2011). Moreover, there is no
Brady violation when the defense has equal access to the
allegedly withheld evidence. See Commonwealth v. Spotz,
587 Pa. 1, 896 A.2d 1191, 1248 (Pa. 2006) (“It is well
established that no Brady violation occurs where the parties had
equal access to the information or if the defendant knew or could
have uncovered such evidence with reasonable diligence.”
(internal citation omitted)).
Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013).
Our Supreme Court has explained that, in order to establish a Brady
violation,
a defendant must show that: (1) evidence was suppressed by
the state, either willfully or inadvertently; (2) the evidence was
favorable to the defendant, either because it was exculpatory or
because it could have been used for impeachment; and (3) the
evidence was material, in that its omission resulted in prejudice
to the defendant. However, [t]he mere possibility that an item
of undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not establish
materiality in the constitutional sense. Rather, evidence
is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (internal quotation
marks and citations omitted).
Pennsylvania Rule of Criminal Procedure 573 codified the United States
Supreme Court’s holding in Brady:
Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
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might obtain under this rule, the Commonwealth shall
disclose to the defendant’s attorney all of the following
requested items or information, provided they are
material to the instant case. The Commonwealth shall, when
applicable, permit the defendant’s attorney to inspect and copy
or photograph such items.
(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the
possession or control of the attorney for the
Commonwealth[.]
Pa.R.Crim.P. 573(B)(1)(a) (emphasis added).
We have reviewed the parties’ arguments regarding this claim, as set
forth in their briefs, and the record certified to this Court on appeal.
Further, we have reviewed the trial court’s comprehensive and well-reasoned
Opinion with regard to this claim. See Trial Court Opinion, 9/15/15, at 39-
40. We agree with the sound reasoning of the trial court, as set forth in its
Opinion, and affirm on this basis with regard to Ferrante’s first claim, albeit
with the following addendum. See id.There is nothing of record indicating that the Commonwealth had, in
its
possession, evidence of Nichols’s conviction.2 Further, Ferrante had equal
access to information regarding Nichols’s conviction of misbranding, and
could have uncovered such conviction with due diligence. See id. However,
2
Evidence of unrelated civil settlements generally would not be admissible.
See Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009)
(recognizing that “evidence of prior bad acts or unrelated criminal activity is
inadmissible to show that a defendant acted in conformity with those past
acts or to show criminal propensity.”).
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more fundamental to Ferrante’s claim, even if the Commonwealth were
under a duty to discover and disclose the conviction of Nichols, we cannot
conclude that the information was “material,” as Ferrante had suffered no
prejudice from the Commonwealth’s non-disclosure.
Nichols previously had pled guilty to misbranding a
Chemiluminescence Intact Parathyroid Hormone Immunoassay (“PHI”),
which is used to test parathyroid hormone (“PTH”) levels in patients. See
U.S.F.D.A. “Quest Diagnostics Incorporated To Pay $302 Million to Resolve
Allegations that a Subsidiary Sold Misbranded Test Kits.” (available at:
https://www.fda.gov/ICECI/CriminalInvestigations/ucm261942.htm,
(12/15/17). “The PTH tests at issue … were widely used by medical
practitioners to determine if patients suffering from conditions such as End
Stage Renal Disease were also suffering from hyperparathyroidism, a
condition which involves the overactivity of the parathyroid glands and the
release of excessive amounts of PTH.” Id. As alleged in the criminal
information against Nichols, there were periods of time in which the
Advantage Intact PTH Assay provided elevated results, yet Nichols
improperly represented that its results were similar to another test. Id.The Quest technicians testifying in this case did not use the Advantage
Intact PTH Assay to determine the levels of cyanide in Dr. Klein’s blood.
Thus, we cannot conclude that Nichols’s misbranding conviction, a conviction
involving a different testing procedure for a different substance, was
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“material.” Similarly, even if such evidence was admissible, we would
conclude that Ferrante suffered no prejudice resulting from the alleged non-
disclosure, as the evidence was not “material.” Consequently, Ferrante is
not entitled to relief on this claim.
For the above-stated reasons, we additionally deny Ferrante’s
Application for a remand to explore whether the Commonwealth was aware
of Nichols’s conviction.
Ferrante next claims that the evidence was not sufficient to sustain his
conviction of first-degree murder. Brief for Appellant at 25, 26. Ferrante
argues that the Commonwealth’s case “rested solely on circumstantial
evidence,” and that the Commonwealth failed to prove that he had caused
Dr. Klein’s death. Id. at 25. In support, Ferrante directs our attention to
the following evidence, presented at trial.
Ferrante asserts that although the Center for Disease Control and
Prevention states that cyanide poisoning “produced symptoms within
seconds to minutes; death may occur within minutes[,]” and that such
symptoms include nausea, vomiting, abdominal pain and irritation of the
lining of the esophagus and stomach, were not observed by the first
responders or the staff at the emergency room. Id. at 26. Ferrante points
to testimony that the symptoms presented by Dr. Klein were inconsistent
with cyanide poisoning. Id. at 27. Ferrante additionally refers to the
testimony of Cyril Wecht, M.D. (“Dr. Wecht”), who opined that Dr. Klein’s
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“cause of death was undetermined, but could lead to a conclusion of cardiac
dysrhythmia.” Id. Ferrante posits that the evidence does not exclude other
hypotheses consistent with his innocence, and that Dr. Klein could have died
from cardiac dysrhythmia. Id.
Ferrante also asserts that there were conflicts in the Commonwealth’s
evidence as to the level of cyanide found in Dr. Klein’s blood. Id. at 28.
Specifically, Ferrante contends that the Commonwealth “ignored the NMS
[Labs (“NMS”)] results in favor of a single result from an unaccredited, non-
forensic laboratory with a history and reputation for dishonesty.” Id.
Ferrante points out the discrepancies in the cyanide level reported by Quest,
and the level indicated in a second test performed by NMS. Id. at 28-29. In
addition, Ferrante relies on evidence that Dr. Klein’s organs were accepted
for transplantation to living people, as no cyanide was detected by the
Center for Organ Recovery & Education (“CORE”). Id. at 28. According to
Ferrante, “[a] conviction based on conjecture, especially here[,] when
scientific evidence and technology was available to prove guilt/innocence to
a certainty, cannot stand.” Id. at 29.
Finally, Ferrante directs our attention to the testimony of Quest lab
technician Sonia Obscemea, who stated that Quest’s test could have
produced a false positive result. Id. Ferrante also argues that the trial
court should have considered the known or potential rate of error. Id.
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The standard we apply in reviewing the sufficiency of the evidence is
whether,
viewing all the evidence admitted at trial the 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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted).
In its Opinion, the trial court set forth a comprehensive summary of
the evidence presented at trial, viewed in a light most favorable to the
Commonwealth, as verdict winner. See Trial Court Opinion, 9/15/13, at 4-
23. The trial court addressed Ferrante’s challenge to the sufficiency of the
evidence, in its Opinion, and concluded that the claim lacks merit. Id. at 40.
We agree with the sound reasoning of the trial court, as set forth in its
Opinion, and affirm on this basis with regard to Ferrante’s second claim. See
id. at 4-23, 44.
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In his third claim, Ferrante argues that the verdict is against the
weight of the evidence. Brief for Appellant at 30, 39. In support, Ferrante
points out that Quest is not an accredited forensic laboratory and that
forensic laboratories are subject to stringent requirements. Id. at 30-31. In
addition, Ferrante asserts that Quest did not follow its own standard
operating procedures, when it failed to repeat the cyanide test; its control
test was not negative for cyanide; and the lab technician failed to run a
dilution control. Id. at 31-32. According to Ferrante, Obcemea, the lab
technician, “could not remember how many spectrophotometers she used at
that time or which machine she used on Klein’s blood sample.” Id. at 33.
Further, Ferrante asserts that Obcemea could not remember whether the
spectrophotometer that she used to test Dr. Klein’s sample was the one
taken out for repairs a week later. Id. Ferrante also points out that Dr.
Klein’s blood cyanide level was amended three times by different Quest
personnel, and that a false positive can result from the method used by
Quest to test the sample. Id. at 34-35. Ferrante directs our attention to
other purported errors by Obcemea, and violations of Quest’s standard
operating procedures. Id. at 35-39.
In order to preserve a challenge to the verdict as against the weight of
the evidence, “the issue must be raised with the trial judge in a motion for a
new trial either orally prior to sentencing, by written motion prior to
sentencing, or in a post-sentence motion.” Commonwealth v. Lewis, 45
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A.3d 405, 410 (Pa. Super. 2012) (en banc). As our Supreme Court has
explained,
[t]he decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the
evidence is within the sound discretion of the trial court. Thus,
the function of an appellate court on appeal is to review the trial
court’s exercise of discretion based upon a review of the record,
rather than to consider de novo the underlying question of the
weight of the evidence. An appellate court may not overturn the
trial court’s decision unless the trial court palpably abused its
discretion in ruling on the weight claim. Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is so contrary to the evidence as to shock
one’s sense of justice.
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).
In his post-sentence Motions filed on February 17, 2015, Ferrante
challenged the weight of the evidence based upon the following assertions:
The verdict was also against the weight of the evidence. As
stated above, the Commonwealth’s toxicology evidence was “so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture.” Commonwealth v. Farquharson,
467 Pa. 50,60, 354 A.2d 545, 550 (1976). The Commonwealth’s
experts (i.e., the pathologist and the toxicologist) accepted the
Quest blood test result (3.4 mg/L or 2.2 mg/L) without
reservation. The Pennsylvania Courts have held that if the basis
for the expert’s opinion is faulty (i.e., reliance on the Quest
results here) the opinion is incompetent and entitled to no
weight. See Viener v. Jacobs, 834 A. 2d 546 (Pa. Super.
2003); see also Commonwealth v. Sero, 387 A.2d 63 (Pa.
1978).
On the other hand, the defense experts did not accept this faulty
Quest evidence and concluded that a finding of cyanide
poisoning could not be made within any reasonable degree of
medical certainty, and that the cause of death was consistent
with cardiac. Hence, the opinions of the defense experts are
entitled to greater weight. Accordingly, [Ferrante] is entitled to,
at a minimum, a new trial.
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Post-Sentence Motions, 2/17/15, at 7. In his Supplemental Post-Sentence
Motions, Ferrante raised no further challenge to the verdict as against the
weight of the evidence.
As set forth above, Ferrante did not challenge the verdict as against
the weight of the evidence, based upon Quest’s purported violation(s) of its
standard operating procedures. The trial court did not address these
contentions in its Opinion. “[A] challenge to the weight of the evidence must
first be raised in the trial court and failure to do so [will constitute] a waiver
of the claim.” Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa. 1997).
Because Ferrante failed to preserve this challenge to the weight of the
evidence before the trial court, in his post-sentence Motions, we conclude
that it is not preserved for our review.3 See Cash, 137 A.3d 1270; see
also Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time
on appeal).
In his fourth claim, Ferrante claims that the trial court erred in denying
the following suppression Motions: Numbers 1, 20, 24, 28, 38, 60, 63 and
64. Brief for Appellant at 39. Ferrante argues that by denying these
Motions, the suppression court improperly permitted “fruits of the
Commonwealth’s illegal searches and seizures to be introduced against
[Ferrante] at trial.” Id. (capitalization omitted). Specifically, Ferrante
3
To the extent that Ferrante generally challenges the verdict as against the
weight of the evidence, we affirm on the basis of the trial court’s Opinion
with regard to Ferrante’s claim. See Trial Court Opinion, 9/15/16, at 44.
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argues that the Quest blood test results are “prone to error and are entitled
to no weight[;]” “the search warrants were issued based upon the
Commonwealth’s misstatements relative to the Quest tests[;] and the
evidence seized pursuant to those warrants must be suppressed.” Id.Ferrante first argues that the items seized pursuant to the search
warrant for Ferrante’s vehicle should have been suppressed. Id. at 40. In
this regard, Ferrante states that the search warrant sought evidence of
“cyanide and any and all items that are capable of storing, transporting or
delivering cyanide.” Id. (capitalization omitted). Ferrante challenges the
seizure of his computer, a Lexar “jump drive,” and a USB storage device
from the trunk of his car. Id. According to Ferrante, because this initial
seizure was unlawful, evidence seized from these items, pursuant to
subsequent warrants, are fruits of the poisonous tree, and should be
suppressed. Id. at 41.
In its Opinion, the trial court addressed Ferrante’s challenge to the
seizures resulting from the vehicle search, and concluded that the challenge
lacks merit. See Trial Court Opinion, 9/15/13, at 24-32. We agree with the
sound reasoning of the trial court, as set forth in its Opinion, and affirm on
this basis as to Ferrante’s challenge to the items seized from his vehicle.
See id.
Ferrante next challenges the search warrants seeking computers,
laptops and other electronic devices. Brief for Appellant at 41. Ferrante
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argues that there is no information, in the affidavits of probable cause,
indicating why evidence of a crime may be found in these computers or
devices. Id. Ferrante contends that the initial search warrants sought
“[a]ny and all computers or laptops that may contain [c]yanide information.”
Id. at 42. Ferrante asserts that the warrants were overbroad, and
“permitted an illegal rummaging through [Ferrante’s] computers in search of
incriminating evidence.” Id.
In its Opinion, the trial court addressed these contentions and
concluded that they lack merit. See Trial Court Opinion, 9/15/13, at 32-37.
We agree with the sound reasoning of the trial court, as set forth in its
Opinion, and affirm on this basis with regard to Ferrante’s assertions. See
id.
In his fourth claim, Ferrante also argues that the evidence seized
should be suppressed because the search warrants were not stored in the
Allegheny County Department of Court Records. Brief for Appellant at 43.
Ferrante contends that law enforcement officials violated Pa.R.Crim.P. 210
(Return of Papers to Clerk) by not maintaining and preserving these records.
Brief for Appellant at 43.
Our review of the record discloses that Ferrante did not raise this claim
in his Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal. Accordingly, it is waived. See Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005) (stating that “[a]ny issues not raised in a
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Pa.R.A.P. 1925(b) statement will be deemed waived.”); see also
Commonwealth v. Mason, 130 A.3d 601, 635-36 (Pa. 2015) (stating that
“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
Finally, we address an Application for Relief, filed by Ferrante. In his
Application, Ferrante asks this court to remand the case for an evidentiary
hearing. Application for Relief, 10/20/17. Ferrante contends that at an
evidentiary hearing, he would present evidence related to the testing of Dr.
Klein’s liver, prior to the transplant of that organ. Id. Ferrante directs our
attention to testimony, by Dr. Wecht and another expert, that cyanide is not
limited to blood, but is deposited in organs and tissues throughout the body.
Id. at 4.
Pennsylvania Rule of Criminal Procedure 720(c) provides that “[a]
post-sentence motion for a new trial on the ground of after-discovered
evidence must be filed in writing promptly after such discovery.”
Pa.R.Crim.P. 720(c).
Our review of the record discloses that the evidence related to Dr.
Klein’s transplanted organ is not “newly discovered,” but cumulative to other
evidence presented at trial. During opening arguments, defense counsel
informed the jury that
[t]he samples and the blood that [were] sent to CORE, the
transplant people, [tested] negative, negative for cyanide. The
organs, there is a liver and a healthy kidney in two people as we
talk. Dr. Martin thought it was so critical when he heard about
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the cyanide level of 3.4, he frantically called CORE to hold off on
the transplantation. Where do we clean our blood from? Our
liver and kidneys. Well, they are in two healthy people for all we
know because there was successful transplantation and the
blood testing was negative.
N.T. (Vol. I), 11/4-7/13, at 66. Dr. Wecht also testified regarding two tests
performed by CORE on body tissues from Dr. Klein. N.T. (Vol. IV), 11/4-
7/13, at 163. Dr. Wecht stated that the two tests on Dr. Klein’s tissues
came back “negative.” Id.
Contrary to Ferrante’s assertion, the letter from a transplant recipient,
regarding the condition of his/her organ, is merely cumulative of the results
of the CORE test. As such, we decline Ferrante’s request for a remand on
this issue.
Ferrante’s Application further alleges a claim of ineffective assistance
of counsel. Absent extraordinary circumstances, which do not exist here,
“claims of ineffective assistance of counsel are to be deferred to PCRA
review; trial courts should not entertain claims of ineffectiveness upon post-
verdict motions; and such claims should not be reviewed upon direct
appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). We
decline to remand the matter for a hearing, without prejudice to Ferrante’s
right to raise this claim in a timely filed petition under the Post Conviction
Relief Act.4
4
See 42 Pa.C.S.A. §§ 9541-9546.
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Motion to file exhibit under seal granted; Applications for Relief
Denied; Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2018
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Circulated 12/22/2017 12:16 PM
IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT
ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
v. CC No.: 2013013724
ROBERT FERRANTE,
Defendant.
OPINION
. ·. . ,•.
Honorable Jeffrey A .
'{•. :·
Manning, P.J.
Court of Common Pleas
Room 325 Courthouse
436 Grant Street
Pittsburgh, PA 15219
Counsel of Record:
For the Defendant:
Christopher Eyster, Esq.
110 Ross Street, Suite 340
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,:
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Pittsburgh, PA 15219
t\.
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: .. For the Commonwealth:
{_,., ..· \"'.
u, Lisa Marie Pellegrini, Esq.
Assistant District Attorney
Allegheny County DA's Office
303 Courthouse
436 Grant Street
Pittsburgh, PA 15219
1
IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT
ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
v. CC No.: 2013013724
ROBERT FERRANTE
Defendant.
OPINION
Manning, J.
The defendant was charged by criminal information with one
count of Criminal Homicide arising out of the poisoning death of his
wife, Autumn Klein. The defendant filed an Omnibus Pre-Trial Motion
that included 89 separate motions seeking to suppress evidence.
Following a hearing on 10/20/14, the defendant's Motions were
denied. He then proceeded to a jury trial which commenced on
October 23, 2014, and concluded on November 7, 2014, with the jury
returning a verdict of guilty of Murder of the First Degree. Post
Sentence Motions were filed and denied. A timely Notice of Appeal was
filed and the defendant, pursuant to this Court's Order, filed a Concise
Statement of Matters Complained of on Appeal. This Court then
ordered an Amended Concise Statement filed because the defendant's
original Concise Statement averred that he was challenging the Court's
denial of his Pre-Trial Motion. Because that Pre-Trial Motion challenged
2
the denial of the Pre-Trial Motion. As that motion included 89 distinct
suppression motions, many of which were withdrawn by the defendant
and/or were conceded by the Commonwealth, the defendant was
ordered to specify which of those motions are being challenged on
appeal. His Amended Concise Statement of Matters Complained of on
Appea I provided that specificity.
The defendant raised, in his Concise Statement and Amended
Concise Statement, the following claims:
1. The Court erred in entering several Orders prior to
the trial concerning custody of the parties' minor
child, Cianna Ferrante;
2. The Court erred in denying the Suppression Motions
numbered 1, 20, 21, 28, 38, 60, 63 and 64, that
were set forth in the defendant's Omnibus Pre-Trial
Motion;
3. The Court erred in its rulings on the defendant's
Post Sentence Motions concerning the allegation
that the Commonwealth committed a Brady violation
by failing to disclose a criminal conviction of
Nicholas Institute Diagnostics;
4. The Court erred in denying the Motion for Judgment
of Acquittal based on the insufficiency of the
evidence;
5. The Court erred in denying the Motion for a new trial
because the verdict was against the weight of the
evidence; and
6. The Court violated Pennsylvania Rule of Criminal
Procedure 581(i) in failing to issue written findings
of fact and conclusions of law regarding the denial of
the defendant's suppression motions.
3
Before turning to the legal issues, it is important to review the
facts established by the evidence, keeping in mind that those facts
must be construed in favor of the Commonwealth as the verdict
winner. The Commonwealth's evidence established that victim, Dr .
. Autumn Klein, was seen leaving Presbyterian University Hospital at
approximately 11:18 p.m. (I, 901) At approximately 11:52 p.m. on
that same date, the defendant telephoned 911 requesting an
ambulance as his wife had collapsed. (I, 76-77)
A Pittsburgh City Paramedic, Jerad Albaugh, responded with his
partner, Steve Mason. They entered the house and found Dr. Klein
lying on the kitchen floor, unconscious. She was breathing and had a
pulse, but her blood pressure was low. When he asked the defendant
what happened, he said that he was upstairs with his daughter and.,
and· when he came down, found his wife lying on the floor. (I, 114-
116)
Paramedic Albaugh indicated that the victim's condition began to
worsen; she remained non-responsive and her heart rate, breathing
and blood pressure worsened. He realized that they had to transport
her immediately. As he was treating Dr. Klein, he heard his partner
ask the defendant about a ziplock bag with a white substance in it that
was sitting on the counter. The defendant said that his wife was trying
I The designation "I, 90", refers to the volume of the transcripts and the page number.
4
to get pregnant and was taking fertility drugs as well as creatine as a
supplement to help her get pregnant. They then transported Dr. Klein
to Presbyterian Hospital as it was only a block and half away. (I, 121)
At the hospital, Dr. Klein came under the care of Andrew Farkas,
M.D., an emergency room resident. She was non-responsive and a
check of her vital signs indicated that she was extremely ill. (I, 130)
He began an IV line and intubated her to allow her to use a ventilator
to assist in her breathing. (I, 132) When the defendant arrived, he
told Dr. Farkas that his wife had no health problems other than low
thyroid. When asked if she suffered from headaches, he told them that
she told him immediately prior to her collapse that she was not feeling
well and had a headache. He further related that she has had some
fainting episodes in the weeks or months prior to her collapse. (I, 133-
134) Dr. Farkas also noticed, when placing a central line, that her
blood was bright red. He said that this is a sign that she had a lot of
acid in her blood which was a sign of a severe metabolic dysfunction.
(I, 143) Dr. Klein was eventually transferred to the Intensive Care Unit
and Dr. Farkas was no longer involved in her care.
Three days later he spoke with Thomas Martin, M.D., the
supervising physician in the ER, who advised him that the test results
from the blood taken from Dr. Klein were back and indicated the
presence of a high level of cyanide. (I, 149). Dr. Farkas became
5
concerned and contacted the Allegheny County Medical Examiner's
office and advised them of these results.
Dr. Martin was on duty when the victim was brought in. He
examined Dr. Klein and concluded that she was critically ill. (I, 163).
While supervising her treatment, he spoke with the defendant, who
told him:
... that his wife had worked until late in the evening and
had come home and that shortly after arriving home she
had complained of a headache and grabbed her head,
assumed somewhat of a squatting position, and then had
collapsed. He told me that over the preceding weeks
preceding this presentation Dr. Klein had had two what he
characterized as more minor episodes where she
complained of light-headedness. I believe one of them
was while she was at church. He told me that she was
somewhat resistant to having these looked into. They had
informally consulted a physician friend who I think
provided some assurance but it didn't sound like she had
had any major investigation into these episodes.
(I, 166). The defendant added that she had been taking some
vitamins and had been on fertility drugs until February.
Dr. Martin testified that while he was treating Dr. Klein her
heart stopped twice and she had to be resuscitated. Eventually, she
was placed on extracorporeal membrane oxygenation (ECMO), which
assists the heart. Though this stabilized Dr. Klein, she remained
critically ill. (I, 184-187). She was transferred to the cardio-thoracic
intensive care unit and was no longer under Dr. Martin's direct care.
He later learned that she had died on April 20, 2013.
6
Dr. Jon Rittenberger was part of the post-cardiac arrest team
which follows patients who had suffered cardiac arrest. When he first
encountered her, she was critically ill and " ... appeared neurologically
devastated." (I, 216). In addition to examining her, he reviewed the
records from her ER treatment and was struck by the fact she was
recalcitrant to everything that was tried to restore her cardiac and
pulmonary function, which was unusual in a young, healthy person.
(I, 221). Because her symptoms and presentation were consistent
with cyanide poisoning, he ordered a test to determine the cyanide
level in her blood. (I, 225). Blood for that test was drawn on April 18
at 2:32 p.m. to be sent to Quest Diagnostics for testing.
Throughout April 18 and 19, though the functioning of her other
organs seemed to slowly improve, Dr. Klein's condition remained
"grave", according to Dr. Rittenberger. On April 18 he conducted a
brain death test, the results of which indicated that Dr. Klein had
suffered brain death. (I, 228). A second such test on the 19th was
consistent with the first one.
Between the first and second brain death tests, after advising
the defendant of the results of the first brain test, Dr. Rittenberger
discussed the possibility of an autopsy with the defendant. He
explained that it was initially believed that Dr. Klein may have suffered
from episodes of passing out and that such incidents can be caused by
7
a rhythm disturbance to the heart which can be genetic. Because she
had a daughter who might inherit the gene causing this disturbance,
he suggested an autopsy to explore possibility. Dr. Ferrrante did not
agree and would not agree to an autopsy. (I. 230)
Dr. Rittenberger also testified that when he ordered the test for
cyanide levels on April 18, he told only Dr. Callaway, who was
assisting her caring for the victim and the nurse who drew the blood.
(I, 239). He did not discuss it with the defendant or the victim's
parents or other family members. He did not learn of the test results
until Dr. Farkas called him on April 23, three days after Dr. Klein's
death on April 20. (I, 232).
Former Pennsylvania State Trooper Scott Lucas testified
regarding assistance he provided to the Pittsburgh Police in accessing
various electronic devices seized in this matter pursuant to search
warrants. (I, 479) He related an exchange of messages between the
I-Phone belonging to Dr. Klein and her husband, the defendant, that
took place on April 17, 2013. The gist of those messages were that
Dr. Klein was advising the defendant that she was ovulating and he
was reminding or encouraging her to take creatine to assist in her
fertility. (I,. 488-490).
The defendant was interviewed by detective James McGee on
April 25, 2013, two days after it had been determined that Dr. Klein
8
had died from cyanide poisoning and an investigation opened into her
death. The defendant stated that his wife had ceased fertility
treatment earlier that year but that he had put her on a creatine
regimen that he said might help her get pregnant. (I, 426) He said
that his wife seemed happy. On the night of April 17, according to the
defendant, his wife came home around 11:00, kissed him on the
cheek, said she did not feel well and collapsed to the floor. (I, 428)
He called 911 and attempted to perform CPR while waiting for the
ambulance. When asked if he had creatine in the home, he showed
the detective two ziplock bags that contained creatine and allowed
them to take the bags. (I, 430) Det. McGee asked the defendant if
he knew how his wife died and he said he thought it was a heart attack
or a brain condition. When he advised the defendant that his wife died
from cyanide poisoning, " ... he looked at his daughter and said why
would she do this to herself and then he looked back at me and said
who would have done this to her." (I, 436-437)
On May 2, 2013 police searched the lab area used by Dr.
Ferrante and others. On the side of the lab used by a Dr. Friedlander,
a 125 gram bottle of potassium cyanide was located. A search of Dr.
Ferrante's area of the lab resulted in the seizure of a 500 gram bottle
of potassium ferricyanide. (I, 459-460) Law enforcement returned to
the lab again on May 3, 2013 and were directed to a refrigerator on
9
/
the defendant's side of the lab where a 250 milligram bottle of
potassium cyanide was located. The seal on the bottle was broken.
(I, 461-463)
Michelle Perpetua was the manager for the lab where Dr.
Ferrante worked. (I, 532) Her duties include ordering supplies or
materials needed by the doctors. (I, 534) The requests for supplies
always came to her through the defendant's assistants; never through
him. On April 15, 2013, however, he came to Ms. Perpetua and asked
her to order potassium cyanide for him. She did so and it was
delivered the next day. (I, 540-545) After hearing in the media that
the victim died from cyanide poisoning, she reported this purchase to
her superior. (I, 547)
Amanda Mihalik, a research assistant for the defendant, testified
that a day or so before Dr. Klein collapsed, the defendant asked her to
transfer some creatine to a ziplock bag which he said he was going to
give to his wife. (II, 85) She also observed the defendant mixing
things in beakers, in the lab, and drinking it. She thought this odd
because they were not supposed to take any food or drink into the lab
because of the dangerous chemicals present. (II, 8) The defendant's
chief research assistant, Jinho Kim, testified that he has worked for the
defendant since December 2007. He had never used, or saw the
defendant use, cyanide in any research. {II, 104-107)
10
On April 16, 2013, Dr. Ferrante came to him and handed him a
plastic bottle containing cyanide. He did not explain to him at that
time what the cyanide was for when he handed it to him, but came
back a few minutes later and explained that he planned to use the
cyanide for future experiments. Dr. Kim asked if he should put the
cyanide in a locked cabinet, but the defendant said that was not
necessary so he stored it under his work bench. (II, 109) He did not
see the cyanide again until after Dr. Klein died, when detectives came
to the lab looking for cyanide and he found it in the refrigerator. He
had not moved it from under his bench. (II, 110)
Pennsylvania State Trooper John Roche testified regarding a
search he conducted of the data copied from the hard drive of a silver
MacBook Pro, serial number C02CM349DC7C. These searches were
conducted using search terms to try to detect what terms may have
been searched on internet search engines on that computer. (II, 162-
164) This search revealed that, on January 31, 2013, at various
times throughout the day, the following terms were searched for on
the Google search engine: "Cyanide polsonlnq": " Human Toxicity 3-
Nitropropionic Acid"; "Toxicity 3-Nitroproprionic Acid Cardiomyopathy";
and " Toxic Dose Human 3-Nitroproprionic Acid Cardiomyopathy". (II,
167-168. On February 18 "Divorce in Pa" was searched. On February
19, the term II
Does Increased Vaginal Size Suggest Wife is Having Sex
11
with Another" was searched. (II, 169). Additional Google searches
were conducted for "Creatine IVF" on March 3 and for "This is What a
Heart Attack Feels Like to a Woman Billboard" on March 15; fro
On April 14 the term "Potassium Cyanide Neuroscience Project"
was searched as was "Potassium Cyanide Sigma". (II, 170-171) On
April 22 and 23, 2013, the following Google searches were conducted:
" "medical examiner toxicology report"; "Toxicology Studies Potassium
Cyanide"; " Detecting Cyanide Poisoning"; " Potassium Cyanide
Detection Blood Urine"; "Dialysis and Removal of Toxins";
"Cardiopulmonary Failure Metabolic Acidosis Causes"; and "Causes
Sudden Death Acute Cardiopulmonary Failure Metabolic Acidosis
Causes". (II, 172-174). The searches on the 23rd were made prior to
the defendant meeting with the detectives and being advised that his
wife had died of cyanide poisoning.
Trooper Roche testified that "Safari" is another internet search
engine that was accessed to search a variety of terms on this
computer. His review of the hard drive revealed that the following
web addresses were accessed on January 8, 2013: "Cyanide Poisoning
Causes, Symptoms, Treatments, Went to Seek Medical Care:" on
MedicineHealth.com, "Cyanide Poisoning Causes, Symptoms,
Treatment, Cyanide Poisoning Causes" on MedicineHealth.com ",
"Cyanide Poisoning, Causes, Symptoms, Diagnosis and Treatment" on
12
MedicineHealth.com ", "Illinois Man Killed By Cyanide Poisoning After
Striking It Rich In Lottery" at CNN.com and "Cyanide Poisoning" at
Wikipedia The Free Encyclopedia. (II, 175-178) On April 14, 2013
the web address "http://www.sigma-aldrich.com/catalog/display/
msdscontent.do" was accessed. On April 22, 2013, "Toxicology
Reporting" at the Miami Dade County Medical Examiner Toxicology
website, '"'Cyanide Poison Hard to Detect" at CNN.com, " Emergency
Response Safety and Health Database Systemic Agent Potassium
Cyanide NIOSH" at the CDC website, " How Would a Coroner Detect
When Someone is Killed by Cyanide" from an article from Yahoo.com,
"How Can You Detect Potassium Cyanide", "How Would You Test for
Potassium Cyanide", "The Facts About Cyanide" were searched for on
April 22, 2013. (II, 175-181).
Sonia Obcemea testified that she is a medical technician at
Quest Laboratories. She has a degree in chemistry and has worked at
Quest for 37 years. She has conducted more than a thousand tests on
blood for the presence of cyanide. (II, 291, 294) She was assigned
to test the sample of Autumn Klein's blood sent by Presbyterian
Hospital. She tested it on April 20, 2013. (II, 295) Initially, she
observed that the blood was a very deep color red, which indicated to
her that it was likely to contain a high level of cyanide. (II, 299) Her
13
testing revealed that the amount of cyanide was 2.2 milligrams per
liter, a " ... very, very high" result. (II, 303)
Ryan Bartoletti, was a group leader at Quest. Part of his job was
to review the results of others on his team, including those of Ms.
Obcemea. He was tasked with checking the results reached by Ms.
Obcemea. (II, 355) He testified that in doing so, he made an error
that led to a higher reading, 3.4 milligrams per liter. He described his
error:
... It's set up where the Y axis here is the absorbance
value and the X axis here is the concentration of cyanide
given that absorbance value following on this line. Where I
made the error when I did the checking of Sonia's work
was I confused the axises.
Q. Why did you do that?
A. I don't honestly know. So what I did then is
instead of plotting the absorbance on the Y axis to get the
concentration on the X axis, I plotted the absorbance on
the X axis to then get the concentration on the Y axis
giving me that higher value.
Q. Now, you then came up with -
A. It was a value of .67.
Q. Okay. And that .67, you had to multiply -
A. By the dilution factor.
Q. So we'll just use this chart over here because it's
easier. So you came up -- you -
ATTORNEY PELLEGRINI: May he step down? May he
step down?
14
THE COURT: Yes.
Q. Just make sure the jury -- just describe to the
jury what you did.
A. So initially, like I said, this was not here, this is
the writing that I put in after I was -- after I was done
reviewing the work. So the absorbance stays the same.
There was no changing of any -- there's no additional work
done with the sample. I used the data that Sonia
generated. So on that plot that's shown up there, when I
plotted .54 on the X axis and drew up to our line and then
over to the Y axis to get the concentration which was
incorrect, I got this .67 value, and because she had done
the sample on a time slide solution, which I'm sure she
already described, I multiplied that times the concentration
to get the 3.35 value for the concentration of cyanide in
that patient's sample.
Q. So then I'll show you what I've marked, using
those calculations, did you then generate a final report?
A. Yeah, I entered the value into our lab information
system and then released it to our client, and because we
round to one decimal place, it went out as 3.4 to the client.
(II, 355-357) He said that the data that resulted from the testing was
correct, but that he applied that data incorrectly to reach the higher
result that was forwarded to the hospital. After discovering the error,
he did not retest because either level was a lethal amount. (II, 359)
Quest clinical technology supervisor Michael Browne testified
that, in response to a search warrant, he retrieved the "run", or
paperwork, from the testing performed on the victim's blood sample.
(II, 391) When he reviewed the run, he noted that there was a
discrepancy in the results. The discrepancy was the result of a
15
calculation error by Mr. Bartoletti. (II, 396) Browne took this
information to his supervisor, Dr. Edinboro, who instructed him to
issue an amended report with the correct result. (II, 397) This
amended report had the same value originally obtained by Ms.
Obcamea. (II, 398)
Allegheny County Medical Examiner Toxicologist Alesia Smith
testified that she conducted a test on a blood sample from the victim.
She described the testing process at length, explaining that her
process does not result in a specific number result, but only a positive
(for the presence of cyanide) or a negative (if there is no cyanide
present). (II, 435-446) She tested a sample of whole blood collected
from the victim on 4/18/13 at 6:00 a.m. (II, 448) The blood tested
positive for the presence of cyanide. (III, 8) A fellow toxicologist,
Rafael Gelpi, testified that he tested a blood plasma sample drawn
from the victim on April 18 at 8:00 a.m. (III, 31) He described the
results:
The results were very remarkable. I tested the plasma as
you can see. This right here, yellow is a reaction to plasma
in comparison with red blood cells. I have been doing this
test for 23 years. This is the first time that I ever seen a
plasma react. It gives me indication that there has to be a
lot of cyanide in there. You do see cyanide on plasma in
low concentrations but there has to be a lot in whole
blood.
3 (II, 3)
16
Nancy Love, employed in the trace section of the Medical
Examiner's Office, testified that she was asked to determine the
volume of three containers of cyanide. Commonwealth Exhibit 170,
Laboratory item 40-A, was a bottle labeled to contain 500 grams of
Sigma potassium ferricyanide. It contained 313 grams. 86.
Commonwealth Exhibit 171, Laboratory Item 40-b was a Sigma
potassium cyanide bottle labeled to contain 25 grams. It was found to
contain 24.868 grams on one weighing and 25.158 grams on another.
(III, 86-87) Commonwealth exhibit 172, laboratory item 41, was a
container of Sigma Potassium Cyanide labeled to contain 250 grams
and found to contain 241.7 grams when initially weighed and 241.6
grams after an amount was removed for testing. (III, 87-88; 90-91)
Environmental chemist Olexa then testified that the substance within
each of the bottles tested was, in fact, cyanide. Potassium
ferricyanide in laboratory item 40-A and potassium cyanide in 40-B
and 41. (III, 115-116)
Todd Lukasevic, Associate Medical Examiner for Allegheny
County, testified as to the cause of death of the victim. He performed
the autopsy on Dr. Klein on April 21, 2013. The autopsy revealed no
obvious cause of death. (III, 289) After preserving the brain and
tissue from the heart for further testing, the body was released to the
family. The death certificate stated that the cause was "pending
17
toxicology result, neuro-pathologist consultation and cardiac
pathologist consultation ... " He then was notified by Dr. Farkas of the
determination by Quest that there was lethal dose of cyanide in the
victim's blood. (III, 292) He immediately called the funeral home to
which the body was released and learned that she had been cremated.
As the investigation into the cause of death continued, Dr. Lukasevic
reviewed a report from the cardiac pathologist to whom he had sent
the cardiac tissue. She reported that there was no evidence of disease
of the heart that could have caused death. (III, 295) The
neuropathologist who examined the brain reported the final diagnosis
as "global ischemic encephalopathy.", which Dr. Lukasevic described
as the brain being dead from lack of blood and oxygen. (III, 296)
This finding was " ... a very significant finding and consistent with a
toxic ingestion of cyanide", according to Dr. Lukasevic. (II, 296) He
stated that he believed that Dr. Klein died from cyanide poisoning. In
offering that opinion, he considered all of the blood test results. He
said that it did not matter if the quantitative results were 2.2 or 3.4,
the correct and erroneous results reported by Quest. The manner of
death, he concluded, was homicide. He held these opinions to a
reasonable degree of medical certainty. (Ill, 300)
His opinion that cyanide was the cause of death was
corroborated by Christopher Holstage, M.D., a faculty member at the
18
Medical College of Virginia. Dr. Holstage is also a fellow in medical
toxicology. He reviewed the medical records of the treatment of Dr.
Klein, as well as the toxicology results, and concluded, within a
reasonable degree of medical certainty, that her cause of death was
cyanide poisoning. (III, 347-410)
The defendant presented Robert Alan Middleberg, a forensic
toxicologist at NMS laboratories. He testified that his lab was asked to
conduct toxicology tests on two blood samples taken from the victim.
The sample they tested, according to the witness, was drawn at 3: 31
p.m. on April 18, 2013. (III, 465 & 526). Testing of that sample
revealed a level of between .3 and .5 micrograms per milliliter. (III
464) He did not believe that Dr. Klein had "clear cyanide findings in
her. " (III, 490) He testified that he could not state, with certainty,
what role, if any, cyanide played in the death of the victim. (IIII,
492).
Dr. Middleberg reviewed the police reports of the interviews of
Drs. Martin, Farkas, Calloway, Sappington, Pizon, Guyette and
Rittenberger. (III, 496). He also reviewed the criminal complaint. He
did not, however, review any other police reports or interviews or the
victim's medical records. (III 497) He acknowledged that he was not
aware that the victim had undergone dialysis prior to writing his report
and that that could affect the test levels. (III, 499)
19
The defendant presented Lewis Nelson, M.D., Vice Chair of the
Department of Emergency medicine at NYU Hospital and a medical
toxicologist. He testified out of order and was videotaped and the
video played during the defendant's case. His testimony appears in
Volume III of the transcripts, pp. 162 - 212. He stated that, in his
opinion, based on the medical records he reviewed, it could not be
stated with certainty that Autumn Klein died from cyanide poisoning.
(III, 165-167. He acknowledged that her symptoms and condition
upon admission and through the course of treatment to her death was
consistent with cyanide poisoning, but believed that that were there
too many inconsistencies for him to be certain that cyanide poisoning
was the cause of death. (III, 185)
The defense also presented Shaun Carstairs, M.D., an attending
ER physician and medical toxicologist. He reviewed the medical
records, the criminal complaint, the autopsy results, interviews of
various treating physicians and the reports of the other toxicologists
and physicians who rendered opinions in this matter. (III, 559). He
concluded " ... that based upon the records that I had an opportunity to
review, I can't -- it's my opinion that it cannot really be definitively
stated that Dr. Klein died as a result of cyanide poisoning. (III, 565).
He provided several reasons for his opinion. First, he believed that the
victim was conscious upon he arrival to the ER. (III, 565). Second,
20
the test result from the two laboratories, Quest and NMS, showed
disparities. He said that the initial results from Quest were modified
downwards for reason that were not clear to him. (III, 566). He also
did not think that any of her symptoms were specific to cyanide
poisoning. (III, 566).
Forensic Pathologist, Dr. Cyril H. Wecht, also testified for the
defense. He concluded that " ... the cause of death in this case is
undetermined and hence the manner of death is undetermined." (IV,
161). He explained how he reached that conclusion:
So you have very significant inconsistencies ranging from a
corrected level of 2.2 micrograms per milliliter which could
be a factor and 0.3 to 0.5 which is a normal level by two
large national laboratories. You have other tests that are
significant that is consistent for metabolized thiocyanate
that are within normal ranges. You have two tests done by
CORE on body tissues which are negative so you've got a
mixed bag and that's what leads me at that point and
today to the opinion that I've rendered as undetermined.
(IV, 162-163). He also suggested that a long history of ingesting large
doses of creatine could lead to false positives for cyanide. (IV, 171).
The defendant's daughter, Kim Ferrante, testified that she told
her father, sometime on Saturday, April 20, that a test for the
presence of cyanide had been ordered. During her direct testimony,
when asked if she was aware of the pending cyanide test, she said,
"So, I think that one of the cardiologists or cardio-thoracic surgeons
told me--". (IV, 223) Later, when asked by the prosecutor to identify
21
the doctor who told her about the cyanide test, she said, " It wasn't a
doctor. I overheard two nurses discussing it at the nurse's station.
(IV, 229). She was also present when the possibility of an autopsy
being performed was discussed and said that her father did not oppose
an autopsy, but wanted to make sure that her organs would be
donated. (IV, 225). She was involved in the funeral arrangements and
said that it was her understanding that Dr. Klein had expressed a wish
to be cremated. (IV, 226).
The defendant also testified. He denied having anything to do
with the death of his wife. He explained that the cyanide he ordered
was connected with research he was planning to do with stem cells.
(IV, 253). His searches in January for terms associated with cyanide
were, he claimed, related to this research. (IV, 255). He said that
discussions about the autopsy were to make sure that that did not
interfere with her desire to donate her organs. (IV, 289). When asked
about the internet searches related to toxicology testing for the
presence of cyanide or how a medical examiner would detect cyanide,
he explained:
I knew her organs had been donated. It was still
unbelievable to me that her organs could be donated if
there was cyanide. I knew the ME had done his exam and
had not heard back, no results. Typical of myself, when
something really bothers me, I just Google and look up
everything about it, how it could have happened, why it
could have happened, et cetera.
22
(IV, 291). He claimed that his daughter had told him about the
pending cyanide test. (IV, 291) He acknowledged that he was
interviewed by representatives of CORE, the Center for Organ Donation
and Recovery regarding his donation of his wife's organs after knowing
about the pending cyanide test but never discussed that with those
representatives. (IV, 323-324)
The first claim raised by the defendant concerns three orders
entered regarding the custody Cianna Ferrante, the minor child of the
victim and defendant, who was 6 years old when her mother was
murdered. On July 24, 2013, pursuant to a Petition for Special Relief
filed in the Family Division of this Court at FD 13-003356, the
Honorable David Cashman entered an order granting legal and
physical custody of Cianna to her maternal grandparents, Lois and
Charles Klein. Later, by order dated January 24, 2014, this Court
denied a request from the defendant that an order that he have no
contact with his daughter be lifted. The Court also noted in that order
that the issue of custody was to be addressed in the context of the
custody matter which, after Judge Cashman's initial Order was entered
pursuant to the Petition for Special Relief, was then assigned to Judge
Cathleen Bubash serving in this Court's Family Division. Finally, the
Court denied the defendant's February 2, 2015 Motion to Lift No
23
Contact Order, again noting that questions pertaining to custody were
to be presented to Judge Bubash.
This Court did not enter a final Order regarding custody. The
defendant's requests that this Court address custody matters were
referred to Judge Bubash. It is this Court's understanding that there
were additional proceedings before Judge Bubash that resulted in the
entry of a final custody order and that the defendant is pursuing an
appeal of that order before the Superior Court at 1923 WDA 2015. As
no final order was entered and the defendant is currently litigating
custody in the Superior Court, this claim is without merit.
The defendant challenges this Court's denial of 82 of the 80
separate Suppression Motions that were included in his Omnibus Pre-
Trial Motion. The defendant challenged the sufficiency of the Affidavits
of Probable Cause and/or the scope of the warrant in the following
Motions: lst3, 20th4, 21st5, 28th6 and 60th7. As they involve the same
legal principles, they will be addressed together.
Pa. R. Crim. P. 503 provides in pertinent part:
(B) No search warrant shall issue but upon probable
2 Those are the motions numbered 1, 20, 21, 28, 38, 60, 63 and 64.
3 Search warrant No. 2244-2013, executed May 3, 2013 authorizing search of 2013 Hyundai motor vehicle.
4
Search warrant No. 2689-2013, executed May 29, 2013 authorizing search of Apple Macbook Air
computer.
5 Search warrant No. 2690-2013, executed May 29, 2013, authorizing search of Apple Macbook Air
computer.
6 Search warrant No. 2697-2013, executed May 29, 20123 authorizing search of a 4 GB Lexas Flash Drive.
7
Search warrant No. 6526-2013, executed December 23, 2013, authorizing search of Macbook Air laptop
computer.
24
cause supported by one or more affidavits sworn to
before the issuing authority in person or using
advanced communication technology. The issuing
authority, in determining whether probable cause has
been established, may not consider any evidence
outside the affidavits.
(D) At any hearing on a motion for the return or
suppression of evidence, or for suppression of the fruits
of evidence, obtained pursuant to a search warrant, no
evidence shall be admissible to establish probable
cause other than the affidavits provided for in
paragraph (B).
Pa.R.Crim.P. 503(8), (D) (emphasis added). The Pennsylvania
Supreme Court has held that "[i]n analyzing whether a warrant was
supported by probable cause, judicial review is confined to the four
corners of the affidavit." Commonwealth v. Coleman, 574 Pa. 261, 830
A.2d 554, 560 (2003) (citation omitted) (emphasis added), appeal
denied, 581 Pa. 696, 864 A.2d 1203 (Pa.2004).
The only facts relevant to this Court's determination of the
validity of the warrants are those contained within the four corners of
affidavits. In Commonwealth v Edmunds, the Pennsylvania Supreme
Court explained that the twin aims of Article 1, Section 8 of the
Pennsylvania Constitution are "the safeguarding of privacy and the
fundamental requirement that warrants shall only be issued upon
probable cause." Id. at 899. Probable cause is determined based on
the totality of the circumstances. Commonwealth v. Gray, 503 A.2d
921 (1985). The totality of the circumstances test is satisfied where
25
the police officers have a reasonable belief that the items to be seized
are related to criminal conduct and that those items are presently
located in the place to be searched. Commonwealth v. Jackson, 337
A.2d 582 (1975).
Consistent with these aims, to be valid, a warrant must describe
the place to be searched and the items to be seized with specificity,
and the warrant must be supported by probable cause. The place to be
searched must be described with enough precision to allow "the
executing officer to ascertain and identify, with reasonable effort, the
place intended, and where probable cause exists to support the search
of the area so designated, a warrant will not fail for lack of
particularity." Commonwealth v. Carlisle, 501 A.2d 664(Pa.Super.1985), aff'd 534 A.2d 469 (1987), citing In re Search
Warrant B-21778, 491 A.2d 851, 856 (1985), aff'd 521 A.2d 422(1987) (rejecting attorney's claim that place to be searched in search
warrant should have been restricted to his personal office).
Where a search warrant adequately describes the place to be searched
and the items to be seized, the scope of the search "extends to the
entire area in which the object of the search may be found ... "
Commonwealth v. Reese, 549 A.2d 909, 911 (1988). A warrant is
unconstitutional for over breadth only when it authorizes in clear or
specific terms the seizures of an entire set of items, or documents,
26
many of which will prove unrelated to the crime or investigation.
Commonwealth v. Santer, 454 A.2d 24 (Pa. Super. 1982).
In Santer, the defendant filed a motion to suppress evidence
obtained from his office because "the search warrants were defective
in that they were overly broad in describing the items to be seized and
therefore constituted unlawful general search warrants." Id. at 25. The
warrant at issue identified the items to be seized as: "All
Patient/Physician records and charts. All ledgers and bookkeeping
pertaining to patients and visits." Id. at 26. The Superior Court
determined that the warrant was improper because "[d]espite this
specificity, the warrant was not restricted ... to the files of the eight
named individuals ... Instead, it authorized the seizure of all of the
patients' 'records and charts,' and all 'ledgers and bookkeeping
pertaining to patients,' whether the patients were or were not taking·
any drugs, and whether they were current patients or had not been
patients for many years." Id. at 27-28 (emphasis in original) (footnote
omitted).
The United States Supreme Court has recognized the inherent
difficulty, and, in fact, unavoidability, in ignoring all innocent records
while searching for incriminating ones:
"In searches for papers, it is certain that some innocuous
documents will be examined, at least cursorily, in order to
determine whether they are in fact, among those papers
authorized to be seized. Similar dangers, of course, are
27
present in executing a warrant for the 'seizure' of
telephone conversations. In both kinds of searches,
responsible officials, including judicial officials, must take
care to assure that they are conducted in a manner that
minimizes unwarranted intrusions upon privacy."
Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976). See also
Commonwealth v. Rega, 70 A.3d 777, 785 (Pa. 2013) (acknowledging
the difficulty in avoiding the search of innocuous documents).
The Affidavit of Probable Cause submitted with the request for
the search warrant application for the search of Hyundai Motor Vehicle
owned by the defendant alleged:
"The City of Pittsburgh Homicide Unit is presently
conducting an investigation into the poisoning death of
Dr. Autumn Kline, a W/F with a date of birth of
11/30/1971. Dr. Kline resides at 219 Lytton Avenue,
Pittsburgh, PA 15213.
On April 17, 2013, Dr. Kline was transported by
Pittsburgh Medics from her address listed above to
UPMC Presbyterian Hospital unresponsive. Dr. Klein
entered the emergency room unresponsive and
remained unresponsive until April 20, 2013 at 1231
hours where she was pronounced deceased by Dr.
Joseph Darby. Prior to' the victim being taken to the
Allegheny County Medical Examiner's office for an
autopsy the victim's organs were retrieved by C.O.R.E.
at the hospital.
On April 21, 2013, Dr. Luckasevic of the Allegheny
County Medical Examiner's Office performed an autopsy
on the victim, and part of the autopsy procedure is to
draw blood from the victim and have the blood tested
for numerous drugs and chemicals.
On April 22, 2013, the victim was taken to McCabe1s
Funeral Home, and on April 23, 2013, the victim was
taken to Pittsburgh Crematory for cremation.
28
On April 23, 2013, Allegheny County Medical
Investigator Kelly Vay contacted the Pittsburgh Bureau
of Police Homicide Office and talked to Detective James
McGee. Ms. Vay relayed the above information and
informed Detective McGee the victim's blood came back
and there is a high level of Cyanide in the victim's blood.
Dr. Luckasevic informed Detective McGee the level of
Cyanide in the victim's blood was a lethal dose and was
the cause of her death.
On April 25, 2013, at 1300 hours Detectives James
McGee and Robert Provident interviewed the husband of
the victim, Doctor Robert Ferrante, and he informed
detectives that on April 17, 2013 he was at home and
the victim, his wife, came home from work around 2300
hours this same date. Dr. Ferrante stated she gave him
a kiss on the cheek, stated she was not feeling good,
and then passed out onto the kitchen floor. Dr. Ferrante
stated the victim did not go unconscious, she was
unable to speak, and had an upward gaze. Dr. Ferrante
stated the victim did not go unconscious, she was
unable to speak, and had an upward gaze. Dr. Ferrante
stated he called 911 and the operator was giving him
instructions on how to perform CPR on the victim. Dr.
Ferrante stated after he got off the phone with 911 he
contacted a friend, Dr. Robert Friedlander, and told him
what was occurring.
During an interview with Dr. Ferrante, it was learned
that he put the victim on a Creatine regimen in order to
help with her trying to get pregnant. Dr. Ferrante stated
the victim would take five grams of Creatine in the
morning and five grams of Creatine in the evening. Dr.
Ferrante said that Creatine has an awful taste, se he
would mix it in a sugary drink or would mix it with
cinnamon sugar and put it on the victim's toast in the
morning.
Also during this interview, your affiant asked Dr.
Ferrante, who is a Professor of Neurological Surgery, if
he knew how the victim died. He replied she either died
of a brain injury or of a heart attack. Your affiant then
informed Dr. Ferrante that the victim died as a result of
29
a Cyanide poisoning. The only comment Dr. Ferrante
made was "why would she do that to herself"?
Dr. Luckasevic told investigators that Cyanide has a
rapid effect on humans when taken, and, if the dose is
large enough, is always fatal. According to Dr. Ferrante,
the victim came home and was home for several
minutes then collapsed. Knowing the speedy effects of
Cyanide, it is believed that the victim consumed the
Cyanide at her residence.
A purchase order was obtained during the investigation
showing that Dr. Ferrante purchased Cyanide on April
15, 2013. Dr. Ferrante works in a laboratory where he
has access to Cyanide. It was learned from Doctor Maria
Baldwin that the victim did not work in a research
laboratory, she did not do any bench work in a
laboratory, and all of her work was involved in patient
care.
Your affiant is requesting a search warrant for the
vehicle of Doctor Robert Ferrante, which is a 2011
Hyundai Pennsylvania plat HVL-7823, to search for any
items that may be used to store, transport, or
administer the delivery of Cyanide. Also to search for
any computers, or laptops, that may have stored
information pertaining to Cyanide, or any and al
literature pertaining to Cyanide, or chemical logs that
would track the usage or distribution of Cyanide."
(Search Warrant No. MD2244-2013).
The defendant, in his motion, challenged the warrant on several
bases: that the affidavit did not establish probable cause; that the
affidavit contained information previously obtained unlawfully; that the
· warrant was overbroad; that the affidavit included false statements
and/or that the area or items to be searched was not adequately
described. No evidence was presented at the suppression hearing as
30
to his motion. Accordingly, the claims that the affidavit contained
information that had been illegally obtained or contained falsehoods
were, in essence, abandoned at the hearing as additional evidence
would had to have been presented to establish those claims. No such
evidence was presented.
As for the sufficiency of the affidavit, this claim was without
merit. The facts set forth above established that the victim died from
cyanide poisoning; that because cyanide is fact acting she likely
ingested it when she was home with the defendant and her daughter;
that the defendant purchased cyanide two days prior to his wife's
death and had access to cyanide at his laboratory. These facts were
more than sufficient to establish probable cause to believe that some
evidence of cyanide, including trace amounts in the car or in
containers within the car, might be present. The officers knew that
cyanide was accessible to the defendant at his laboratory and knew
that the victim ingested cyanide at home. These facts supported the
conclusion that the cyanide had to be moved from the defendant's
office to the home and the most likely means to do so was the
defendant's vehicle.
Moreover, there was evidence that the cyanide had only recently
been ordered. Computers and other electronic devices are likely to
have records of any purchases made online, either through web
31
browser histories, e-mail order confirmations or receipts. They may
also reveal internet searches about the effects of cyanide. The affidavit
clearly provided sufficient facts to allow a judge to conclude that such
evidence might be present on computers and other electronic devices
accessible to the defendant. The warrants did not permit the search
of the contents of the electronic devices; only their seizure. The
searches for the content were the subject of subsequent warrant
applications.
The next three applications for search warrant, involving the
20th, 21st, and 28th the Motion to Suppress, relied on Affidavits of
Probable Cause that set forth, nearly verbatim, the same facts. They
were significantly longer than the affidavit quoted from above, but set
forth essentially the same factual circumstances surrounding the death
of Autumn Klein. The first portion of the affidavits recounted the
training and education of the affiant. The second provided a summary
of the relevant technology, explaining the various technical aspects of
computers and internet searches. The third section of the affidavits set
forth, in terms very similar to that set forth above, the history of the
investigation. The final section identified the various electronic items,
including computers, cell phones, smart phones and various storage
devices that had been seized pursuant to earlier search warrants that
law enforcement now wanted to access. These warrants sought
32
authority to examine the contents of the various devices to search for
specific and particular information.
The search warrant challenged in the 20th Motion to Suppress
sought authorization to search the contents of MacBook Air laptop with
a serial number of C02D94JRDDR4. The 21st Motion challenged the
warrant for the search of the contents of a MacBook Air laptop with a
serial number of C02D94BODDRO while the28th Motion challenged
the warrant permitting the search of the contents of an external hard
drive identified as the "G Tech External HOD".
As to each of these search warrants, the affidavits clearly set
forth sufficient basis to believe the evidence of the crimes committed
could be found in the data stored on the these devices; the two laptop
computers and the external hard drive. The affidavits stated the
following, as to each of the items:
Your affiant avers that those who possess laptop
computers such as the Apple MacBook or laptop [serial
number omitted] normally incorporates and uses such
a device or item on a regular, routine basis. Electronic
devices, advances the technology and/or in items such
as this have allowed one's ability to create, store,
search or communicate documents, messages, ideas,
images or other data more conveniently and with
greater ease than ever before. This date, once created,
is normally retained within the item or device. These
items or devices may also be thought of as a storage
container from which evidence of a crime may be
recovered. In this instance, your affiant avers that
amount the data contained therein is evidence
regarding the means, research, planning, motive,
commission and/or the identification of suspects
33
and/or suspect collaboration with others.
Common motives include murder for gain, revenge,
elimination, jealousy or lust of killing. In addition,
forensic analysis of these items may indicate
whether any of the aforementioned data sought
by law enforcement pursuant to this investigation
has been modified or deleted in any manner.
(Commonwealth Exhibit 11, Suppression Hearing, Emphasis added).
Each of these search warrants then used exactly the same language in
describing what data was to be searched for and seized:
1. Contents containing in whole or in part evidence of
means, research, planning, motive, commission and or
suspect identity and/or collaboration with others regarding
the suspected criminal homicide of Dr. Autumn Klein,
including but not limited to: letters, documents, email
contents, history or any other communication or
correspondence including the identification of email
addresses, user names or similar contact or address type
data, web browser and/or internet search histories;
images, graphic, videos, documents; all of the
aforementioned to include any deleted data.
2. Indicia or use, ownership or control over the item to be
searched.
3. Any data or evidence indicating attempts or act
intended to conceal or prevent the discovery of the crime
of. criminal homicide, including any data deletion.
4. Financial documents or other data reflecting checking,
saving or investment accounts, transactions or records of
Dr. Autumn Klein, Dr. Robert Ferrante, and/or others
including financial intuition names, account numbers and
addresses.
All forensic searches to be conducted by Pennsylvania
State Police Computer Crimes Unit Trooper D. Scott Lucas
and/or other members under his supervision and/or
34
control and pursuant to standard forensic methods and
practices as determined by Tpr. Lucas.
The items to be sought in the search were items that would be
evidence relevant to establishing " ... means, research, planning,
motive, commission and or suspect identity and/or collaboration with
others regarding the suspected criminal homicide of Dr. Autumn
Klein." This was not a blanket authorization to go fishing in these
computers for anything and everything. The search was limited to
data that fit within this limitation.
In Commonwealth v. Orie, 88 A.3d 983 (Pa. Super 2014), the
Superior Court held that applications seeking authority to search the
data on previously seized computers were not overbroad where they
identified the specific data that they were searching for. In Orie, the
data was information relevant to political campaign activities as the
charges in that case involved her use of state employees to perform
such activities while being paid by the state. Because the data
requested as specified, the warrant was not overbroad.
The warrant applications for these three warrants also
specifically identified data that would be relevant to the crime charged.
The Commonwealth was only seeking data that would show,
" ... means, research, planning, motive, commission and or suspect
identity and/or collaboration with others regarding the suspected
criminal homicide of Dr. Autumn Klein." In addition, the warrant
35
sought any "indicia of use, ownership or control" over the item being
searched. Certainly, evidence showing that that the defendant had
access to or control over the computer or other electronic device was
certainly relevant.
The Commonwealth indicated that it would use standard forensic
methods to search for and secure the evidence that fit within the
parameters set forth in the application. It was not a fishing expedition
and the Commonwealth neither requested nor was granted access to
all data on any of these devices. The applications identified the items
to be searched for with sufficient particularity and the Motions to
Suppress that evidence were properly denied.
In the 6Qth Motion, again, the Affidavit of Probable Cause is
nearly identical to those described above, setting forth the affiant's
education, experience and training, the technical aspects of
computers, as well as a history of the case. In this Affidavit, the
Commonwealth sought authorization to search the contents of another
computer that had been seized pursuant to an earlier search warrant.
That warrant led to the seizure of a safe in the defendant's office.
After obtaining a warrant authorizing the search of the safe, the
Commonwealth discovered that the safe contained a computer. The
computer had been secured in the safe since its original seizure seven
months previously.
36
As with the affidavits submitted with the applications for the
search warrants addressed above, the affidavit and application
specifically identified the data that would be sought in the forensic
analysis of this computer. It was not overbroad.
In the 38th Motion to Suppress, the defendant seeks to suppress
evidence obtained as a result of a warrant that authorized the search
of the contents of the defendant's g-mail account. Once again, the
Affidavit of Probable Cause laid out the history of the investigation of
this matter as set forth earlier in this Opinion. With regard to the mail
account, the affiant stated the following:
On May 31, 2013, your affiant was provided additional
investigative information from the University of
Pittsburgh, including email account information for Dr.
Ferrante. Among the email accounts provided for Dr.
Ferrante was the Gmail account rjferr25@gmail.com.
Your affiant is aware that Gmail is a free email service
provided by Google, and that rjferr25@gmail.com
appears to be a valid Gmail email address. Your affiant
also avers that Google maintains the following initial
information from those who first subscribe to the Gmail
service:
• First and last name
• Birthday
• Gender
• Mobile Phone number
• Current email address
• Location (i.e., USA)
Google also maintains email content from the Gmail
accounts, including sent, received, draft and deleted
emails indefinitely. Your affiant is also aware that
Google internet searches conducted while logged in
37
under a Gmail account may be stored by Google as
well.
Your affiant avers that subscriber information and
email content of rjferr25@gmail.com will provide
information pertinent to the ongoing criminal homicide
investigation, and requests that the contents of this
account from January 1, 2013 to date of this search
warrant, including incoming, outgoing, draft and
deleted content be provided.
Your affiant avers that those who subscribe and have
access to electronic mail (email) normally incorporate
and use such a device or items on a regular and
routine basis. Electronic mail, advances in technology
and/or items such as this have allowed one's ability to
create, store, search or communicate documents,
messages, ideas, images or other data more
conveniently and with greater ease than ever before.
This data, once created, is normally retained within the
item or device. These items or devices may also be
thought of as a storage container from which evidence
of a crime may be recovered. In this instance, your
affiant avers that among the data contained therein is
evidence regarding the means, research, planning,
motive, commission and/or the identification of
suspects and/or suspect collaboration with others.
Common motives include murder for gain, revenge,
elimination, jealousy or lust of killing. In addition,
forensic analysis of these items may indicate whether
any of the aforementioned data sought by law
enforcement pursuant to this investigation has been
modified or deleted in any manner."
The Court is satisfied that the affidavit of probable Cause established
the likelihood that evidence could be found in the contents of the
defendant's Gmail account and that the application was sufficiently
specific about what data would be sought.
38
Next, the defendant contends that the Court erred in denying his
claim that he was entitled to a new trial due to a Brady violation. The
defendant contends that the Commonwealth failed to disclose that
· Nichols Institute of Diagnostics, Inc .. was convicted of a criminal
offense involving dishonesty . Attached to the Post Trial Motion and
marked exhibit C is a copy of the judgment of sentence in The United
States of America v. Nichols Institute of Diagnostics, Inc., case
number 09-CR-0203-SJ, in which the corporate defendant pleaded
guilty to one count violating 21 USC § 333(a)(2). A fine of 30 million
dollars was imposed a result of that conviction. The Criminal
Information, also attached as an exhibit, states that Nichols Institute
of Diagnostics, Inc., a California corporation at the time, misbranded
or mislabeled a testing device they manufactured. Another document,
a memo from the Department of Justice, states that Nichols Institute
of Diagnostics is a subsidiary of Quest Diagnostics, Inc. and that the
guilty plea that Nichols made was pursuant to a global settlement in
which Quest Diagnostics also settled a civil matter related to the same
allegations.
This claim is specious. Quest Diagnostics did not plead guilty to
a crime. A subsidiary, Nichols Diagnostic, did. More importantly,
Quest Diagnostics did not testify in this trial. Four employees of Quest,
Leslie Edinboro, Sonia Obcemea, Ryan Bartoletti and Michael Browne
39
did. They described the testing of the blood sample taken from the
victim that was determined to contain cyanide. None of these
witnesses could have been impeached with evidence that a subsidiary
of the corporation they worked for was convicted in an unrelated
criminal matter. A witness may be impeached by the witness's own
conviction for a crime of falsehood because a crime of falsehood calls
into question the witnesses credibility or honesty. A conviction of a
corporate entity that employs the witness says absolutely nothing
about the credibility of the individuals employed. by that corporation,
particularly when there is no suggestion that these particular
employees had anything to do with the conduct that led to the
conviction.
The defendant next two claims raise challenges to the weight of
the sufficiency of the evidence. The standard to be applied in reviewing
a challenge to the sufficiency of the evidence 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."
Commonwealth v. Passmore, 857 A.2d, 697, 706 (Pa. Super 2004).
The Court in Passmore went on to note:
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
40
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.
Ibid, at 706- 707.
Applying this test to the evidence presented makes it abundantly
clear that the evidence in this case was sufficient to sustain the jury's
verdict. The Commonwealth presented expert testimony which
opined that the Autumn Klein's death was caused by cyanide
poisoning. They presented expert testimony from those who tested a
sample of her blood who stated that it contained lethal levels of
cyanide. Although the defense attacked the validity of the test of the
blood for the presence of cyanide, it is apparent that the jury accepted
the explanation proffered by Quest employer Bartoletti regarding his
error that lead to the seemingly inconsistent results.
The Commonwealth also offered circumstantial evidence which,
taken in a light favorable to the Commonwealth as the verdict winner,
tended to corroborate the Commonwealth's theory that the defendant
used cyanide to poison his wife. The most compelling of the
41
circumstantial evidence is, quite simply, the timeline. Dr. Klein was
seen on security video leaving Presbyterian Hospital in no apparent
distress. According to the defendant, within minutes of arriving home,
she collapsed on the floor and was soon non-responsive, as she
remained until her death two days later. All of the medical experts
who testified that such a collapse would occur within minutes of a
person ingesting cyanide. The medical experts also were in agreement
that the physical symptoms she exhibited at the scene and later at the
hospital were consistent with cyanide poisoning, although the
Commonwealth experts also indicated that such symptoms could be
consistent with other causes of death, although none were able to
identify such other cause of death.
Finally, there was circumstantial evidence consisting of emails
between the victim and the defendant which suggested marital
difficulties as well as the defendant's internet searches surrounding
cyanide poisoning, both before and after his wife's collapse. Of
particular relevance would be those searches that he conducted on his
computer after his wife's collapse but before the detectives advised
him that his wife had died of cyanide poisoning. Searches on his
computer for information as to how difficult it is for a medical
examiner to detect the presence of cyanide is certainly suspicious of a
guilty mind. Although the defendant explained that he had learned
42
that there was a pending cyanide test prior to being told that his wife
had died from cyanide poisoning, his daughter's testimony regarding
how she came to learn of that was inconsistent. She initially stated on
direct examination that she was told about the cyanide testing by a
"cardiologist or cardio-thoracic surgeon ... " (IV, 223) but, later,
claimed to have overheard two nurses talking about it. Moreover,
neither her nor her father mentioned the cyanide test when the police
first advised them that the cause of death was cyanide poisoning. The
jury was certainly free to assess the credibility of this explanation in
rendering their verdict.
Ultimately, this verdict in this case turned on the expert
testimony. As with any witness, a jury is free to believe some, none
or all of the testimony of an expert witness. It is for the fact finder to
ascertain what happened based on that, and other, testimony. It was
for the jury to decide if they accepted the opinion of the
Commonwealth witnesses on the issue of causation or if the testimony
of the defendant's witnesses were sufficient to raise a reasonable
doubt. By their verdict, the jury made it clear that they credited the
. testimony of the Commonwealth's witnesses. Once the jury
determined that Dr. Klein's death was caused by cyanide, the
remaining circumstantial evidence was certainly sufficient to prove that
the defendant caused her to ingest the cyanide that killed her. The
43
Court is satisfied that the evidence in this matter was sufficient to
support that finding and support the verdict of guilty.
The weighing of evidence is the exclusive province of the fact
finder. As was pointed out above, the jury is free to believe all, part,
or none of the evidence and to determine the credibility of the
witnesses. A reviewing court cannot substitute its judgment for that of
the finder of fact and may only reverse a jury's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Begley, 780 A.2d 605, 619 (2001). This jury's
verdict was not, in any way, contrary to the evidence presented. It
was consistent with the evidence presented by the Commonwealth.
That the jury credited that evidence over the evidence presented by
the defendant is not a basis for claiming that the verdict was against
the weight of the evidence. This Court's sense of justice was not
shocked by the verdict. Accordingly, the Post Trial Motion seeking a
new trial on the basis that the verdict was against the weight of the
evidence was properly denied.
Finally, the defendant contends the Court erred in failing to
comply with the requirements of Pennsylvania Criminal Procedure 532
(I) by not issuing written findings of fact and conclusions of law at the
time the suppression motions were denied. The purpose of this rule to
provide the reviewing court with the facts as found by the suppression
44
court and the legal reasoning that led to the Court's suppression
decision. This Court has done that in this Opinion as to those
suppression rulings that the defendant is challenging in this appeal.
The Court set forth its factual findings as to each of the six
suppression rulings identified in the Amended Concise Statement of
Errors and explained its legal reasoning as to each ruling. The
reviewing court thus has everything it will need to address the
defendant's claim that this Court erred in denying those motions.
For the reasons set forth, the defendant's judgment of sentence
should be affirmed.
BY THE COURT:
Date:
45