Com. v. Leonard, R., III ( 2022 )

J-S34044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT GEORGE LEONARD, III :
:
Appellant : No. 577 MDA 2021
Appeal from the Judgment of Sentence Entered May 3, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001364-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 22, 2022
Robert George Leonard, III (Appellant) appeals from the judgment of
sentence entered in the Schuylkill County Court of Common Pleas, following
his jury convictions of third-degree murder, strangulation,1 and related
offenses, committed against his girlfriend. Appellant argues: (1) the trial
court erred in precluding his cross-examination of the Commonwealth’s expert
witness, as to how methamphetamine could have affected the state of mind
of the victim, and of individuals generally; and (2) his sentence for
strangulation was illegal because it violated the merger doctrine and the
Double Jeopardy clause. We affirm. We also grant the application of
Appellant’s counsel, assistant public defender John Fegley, Esquire, to
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1 18 Pa.C.S. §§ 2502(c), 2718(a)(1).
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withdraw from representation on the ground he has accepted new
employment.
I. Facts & Procedural History
The evidence presented at Appellant’s jury trial is generally not
disputed. Appellant and his girlfriend, Terri Gee (the Victim), were
staying in a camper . . . in the Raush Creek Trailer Riders trailer
park. On . . . January 5[, 2019,] at about 10:30 p.m., Appellant
and [the Victim] were seen on the surveillance camera video at a
truck stop not far from the campground, where Appellant
showered and changed into camo pants.
There were also surveillance cameras near the campground
office. At about 5:30 a.m. on January 6, Appellant could be seen
on the surveillance camera tapes walking back and forth
erratically and carrying a knife in his hand. Nicholas Bender, the
campground director of operations, arrived at the office around
8:00 a.m. followed closely thereafter by [colleague] Jeanette
Greenhouse[.] Bender and Greenhouse had not reviewed the
surveillance tapes when Appellant came to the office. He was
acting strange and appeared to be on something. Bender asked
Appellant if everything was all right, and Appellant replied that he
did not know. Greenhouse noticed blood on Appellant’s camo
pants and sneakers. When Greenhouse asked where [the Victim]
was, [A]ppellant said [the Victim] had given the camper to her
family and left two nights before.
Appellant went back to the campsite. When Bender passed
by the site around 10:30 a.m., he saw [A]ppellant pacing back
and forth in the bed of his pickup and “windmilling” his arms. The
police were contacted to do a wellness check for [the Victim], but
they did not respond. By now [A]ppellant was back at the office
sitting on the porch.
Bender went to [A]ppellant’s campsite and found [the Victim]
in the front passenger seat of [A]ppellant’s pickup. The truck was
idling. Her T-shirt was covered with dried blood; her chest was
moving up and down; and she was foaming at the mouth. Bender
returned to the office and called 9-1-1. Appellant said he was glad
Bender found her and that he did not know what happened. Then
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he told Bender [the Victim] had killed her son and threatened to
kill him if he told anyone. Appellant claimed that the son was in
the back of the truck. Her son was not in the truck.
* * *
When asked by police about the blood stains on his pants and
sneakers, Appellant claimed he cut his leg and rolled up his pants,
but there was no cut. He acknowledged using methamphetamine.
A pocket knife with dried blood on it was found in his front pants
pocket. Laboratory tests confirmed that the blood on the knife,
the blood on [A]ppellant’s pants and the blood on his sneakers
[were the Victim’s].
Trooper Timothy Marcovich, a State Police drug recognition
expert interviewed [A]ppellant . . . after he was arrested. He
testified that [A]ppellant appeared to be under the influence of
methamphetamine.
Trial Ct. Op., 6/15/21, at 2-4.
The Victim was transported to the hospital, and she died there three
days later. Trial Ct. Op. at 3. Dr. Wayne Ross performed an autopsy. At trial,
he testified, as a forensic pathology expert witness for the Commonwealth, to
the following:
[The Victim] suffered multiple blunt force trauma to the head, two
stab wounds to the neck, and both manual and ligature
strangulation. [T]he traumatic injuries to her brain, the stab
wounds to her neck, or the strangulation would each alone have
been fatal.
Id. at 3.
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Appellant was charged with murder of the first degree,2 murder of the
third degree, strangulation, aggravated assault with a deadly weapon,3 and
related offenses. The case proceeded to a multi-day jury trial commencing
March 5, 2021.
Pertinent to Appellant’s argument on appeal, we note a toxicology report
for the Victim, reviewed by Dr. Ross, showed amphetamine and
methamphetamine. See N.T. Trial Vol. III, 3/8/21, at 686.4 At a lengthy,
mid-trial side-bar discussion, Appellant sought to cross-examine Dr. Ross on
the effect these substances could have had on the Victim’s condition and state
of mind. Id. at 531-34. Appellant acknowledged there was no eyewitness to
the assault, but averred that because there was such a lack of evidence as to
where or how the assault occurred, “the jury could make their own
conclusions.” Id. at 531, 532. Appellant further argued his proffered cross-
examination would show how any person, who is under the influence of
methamphetamine generally, could act. Id. at 531-33. He argued:
[Methamphetamine] makes people aggressive. There [are]
people who mutilate their own body or kill other people because
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2 18 Pa.C.S. § 2502(a).
3 18 Pa.C.S. § 2702
4 The certified record includes three volumes of trial testimony, entitled,
respectively, Volume I, II, and III. Although each represents the proceedings
of a separate day of trial, all three volumes state the same date, “March 8,
2021,” on their cover pages. For consistency, we likewise include this March
8th date in our citations to the trial transcripts.
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they’re under such an influence of this methamphetamine. And
[the Victim’s] methamphetamine was substantial. It wasn’t just
a little bit. . . .
Id. at 532-33.
The trial court reasoned there was no evidence the Victim committed
such actions, and indeed no evidence about her conduct or state of mind at
all. N.T. Trial Vol. III at 531, 533. The court opined Appellant could not
theorize, nor ask the jury to speculate, what the Victim could have done. Id.
Any evidence pertaining to how the Victim could have acted was “[p]ure
speculation.” Id. at 532. Similarly, the court stated, any evidence of how
other people may act under the influence of methamphetamine was
speculative and irrelevant. Id. at 533-35.
In response, Appellant claimed “that is basically what [the
Commonwealth is] doing,” i.e., it was attempting to show Appellant’s behavior
under the influence of methamphetamine. N.T. Trial Vol. III at 535-36. The
trial court disagreed, pointing out the Commonwealth’s evidence was relevant
to show who stabbed the Victim, where it was shown she was mortally
wounded: “That is not speculation. That is why it is different.” Id. at 536.
Ultimately, the court ruled that Appellant may ask Dr. Ross, “Were there any
result[s] of toxicology reports?” Id. at 541. However, the court precluded
Appellant from asking what effects methamphetamine may have had on the
Victim. Id.
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On cross-examination of Dr. Ross, Appellant elicited testimony that the
Victim’s toxicology report showed amphetamine and methamphetamine,
specifically a blood level of 810 ng/ml of methamphetamine. N.T. Trial Vol.
III at 686, 687. When asked whether this was amount was high, Dr. Ross
responded, “It is a high level. She takes methamphetamine at the atomic
level.” Id. at 687. There were no further questions about this toxicology
report.
Appellant presented exhibits, but did not call any witnesses nor testify
on his own behalf. The jury found Appellant not guilty of murder of the first
degree, but guilty of murder of the third degree, aggravated assault with a
deadly weapon, aggravated assault,5 strangulation, simple assault, possessing
an instrument of a crime (PIC), and recklessly endangering another person
(REAP).6
On May 3, 2021, the trial court conducted sentencing. Pertinently, the
court found that strangulation and third degree-murder did not merge. The
court imposed the following sentences: (1) for third-degree murder, 20 to 40
years’ imprisonment; (2) for strangulation, a consecutive five to 10 years’
imprisonment; and (3) for PIC, a consecutive 2.5 to five years’ imprisonment.
____________________________________________
5 18 Pa.C.S. § 2702(a)(1).
6 18 Pa.C.S. §§ 2701(a)(1), 907(b), 2705, respectively.
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The court found simple assault, REAP, and the two counts of aggravated
assault merged. Appellant’s aggregate sentence was thus 27.5 to 55 years.
Appellant did not file a post-sentence motion, but took this timely
appeal. He complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
II. Statement of Questions Involved
1. Did the trial court err in limiting trial counsel’s ability to elicit
testimony from the Commonwealth’s expert witness regarding
information within his report about the levels of amphetamine and
methamphetamine in the decedent’s blood and the general effects
those drugs have on an individual and thus effectively preclude
[Appellant] from arguing self-defense or that the wounds the
decedent suffered were self-inflicted?
2. Did the sentencing court impose an illegal sentence when it
ordered the sentence on the charge of strangulation to run
consecutively to the sentence for the charge of third-degree
murder? Included in this question is whether the trial court erred
in applying the statutory merger doctrine found at 42 Pa.C.S. §
9765 which is contrary to the broader merger doctrine drawn from
the Pennsylvania Constitution’s Double Jeopardy Clause.
Appellant’s Brief at 4.
III. Preclusion of Cross-Examination of Expert Witness
In his first issue, Appellant avers the trial court erred in barring him
from examining the Commonwealth’s expert witness about “the general
effects [amphetamine and methamphetamine] have on an individual and thus
effectively preclude [him] from arguing self-defense or that the wounds the
[Victim] suffered were self-inflicted[.]” Appellant’s Brief at 9.
We first note the relevant standard of review:
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Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. Admissibility depends on relevance
and probative value. Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference or
presumption regarding a material fact.
Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006) (en
banc) (citation omitted).
Appellant reiterates that he sought to introduce testimony from Dr.
Ross, that the “ample amount of methamphetamine in [the Victim’s] system
. . . could cause changes in a person’s mental capacity[,]” and “could make a
person hallucinate, act aggressively, and mutilate her own body.” Appellant’s
Brief at 10. Appellant challenges the trial court’s finding “that this theory was
speculative and that there was no evidence that the [Victim] actually acted in
such a manner.” Id. Instead, he emphasizes, “this proffered testimony was
the evidence that gave an inference that the [Victim’s] injuries were a result
of self-mutilation and not from [Appellant’s] actions.” Id. at 11. Furthermore,
Appellant claims that in “requiring affirmative proof that” something occurred,
“the trial court applied the wrong legal standard for a defendant’s admission
of evidence.” Id. at 11-12. Instead, he maintains, the proper standard for
admitting a defendant’s evidence is merely whether “the proffered testimony
supported an inference.” Id. at 12. Similarly, Appellant contends that “when
an accused seeks to offer evidence that another person committed the acts,
the question for admissibility is not whether there was affirmative proof that
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the [Victim] inflicted the injuries upon herself,” but rather “whether the
proffered evidence ha[s] a tendency to make it more probable than less
probable that the [Victim’s] highly intoxicated state led to actions of self-
mutilation[.]” Id. Finally, Appellant reasons that where the Commonwealth
was permitted to present evidence that he was “acting erratically and under
the influence of drugs[,]” he “was denied this same opportunity to present
evidence that the [Victim] was also under the influence of a high amount of
methamphetamine.” Id. at 14. We determine no relief is due.
In its opinion, the trial court reiterated its reasons, stated at trial, for
denying Appellant’s proposed cross-examination:
Although defense counsel was permitted to ask Dr. Ross about the
level of amphetamine in the [V]ictim’s system, she was not
permitted to ask the witness to speculate about what the [V]ictim
might had done because of the drugs. [C]ounsel intended to
argue to the jury that Appellant may have acted in self-defense
against a drug-induced attack by the [V]ictim or that [she] may
have bludgeoned, stabbed and strangled herself. There was no
evidence [the Victim] physically attacked [A]ppellant. Speculation
about what a person might do with high levels of
methamphetamine in her system is not evidence that anything
occurred.
Trial Ct. Op. at 7. We agree the court’s rationale, that the proffered testimony
was both speculative and not relevant. See N.T. Trial Vol. III at 530-41.
While Appellant cites his own statement, at trial, that methamphetamine
“could make a person hallucinate, act aggressively, and mutilate her own
body,” this statement was merely argument, not evidence. See Appellant’s
Brief at 10, citing N.T. Trial Vol. III at 532-33. The proposed cross
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examination of the Commonwealth’s expert witness may have been relevant
if there were a witness who testified that the Victim repeatedly stabbed, hit,
or strangled herself. However, without such evidence or at least a proffer of
evidence, the trial court was correct in precluding this line of cross
examination.
Appellant’s comparison of his proposed evidence, about the effects of
methamphetamine on Victim’s condition and state of mind, to the
Commonwealth’s evidence about his own erratic behavior and
methamphetamine use that evening, is meritless. As the trial court repeatedly
pointed out at trial, there was independent evidence tending to show Appellant
was the person who stabbed the Victim: surveillance video of them together,
as well as of Appellant “walking back and forth erratically[,] carrying a knife
in his hand[;]” blood on Appellant’s pants and sneakers; a “knife with dried
blood on it . . . found in [Appellant’s] front pants pocket;” and a laboratory
report confirming the blood on the knife and Appellant’s pants and sneakers
were the Victim’s. Trial Ct. Op. at 2-4. This evidence contrasts with the utter
lack of any evidence — conceded by Appellant — of the Victim’s conduct,
condition, or state of mind at the time of the assault. See N.T. Trial Vol. III
at 531. Appellant wanted to make an issue of the Victim’s conduct, but in the
absence of evidence about the effect of methamphetamine on the Victim that
night or perhaps in the past, the suggested cross-examination would have
elicited speculative testimony, confused the issues, and misled the jury.
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Furthermore, Appellant ignores Dr. Ross’ testimony that the Victim
sustained “only” one defensive wound, a bruise, on her left lower leg. N.T.
Trial Vol. III at 646, 656, 685. “She had no stab wounds on her arms . . . but
she had two clear stab wounds to the neck.” Id. at 657. Dr. Ross opined:
“The lack of several defensive wounds on her body” indicated the Victim was
“either unconscious, significantly incapacitated, [and/or] significantly
injured . . [a]s she [was] being assaulted.” Id. at 656.
IV. Claim of Illegal Sentence
In his second issue, Appellant avers his sentence for strangulation as
illegal, both under the merger doctrine and Double Jeopardy jurisprudence.
We first note:
A claim that crimes should merge for sentencing purposes raises
a non-waivable challenge to the legality of the sentence; thus, our
standard of review is de novo and our scope of review is plenary.
* * *
[W]hether two offenses merge for sentencing is governed by
Section 9765 of the Sentencing Code, which states the following:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S. § 9765 (emphasis added).
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Commonwealth v. Edwards, 256 A.3d 1130, 1136-37 (Pa. 2021).7
Furthermore, this Court has explained: “The protections afforded by
double jeopardy [include] protection against multiple punishments for the
same offense.” Robinson, 166 A.3d at 1276 (citation omitted). As stated
above, “Double Jeopardy claims ‘implicate the fundamental legal authority of
the court to impose the sentence that it did[.]’” Id.
Appellant was convicted of strangulation under the following subsection
of our Crimes Code:
A person commits the offense of strangulation if the person
knowingly or intentionally impedes the breathing or circulation of
the blood of another person by:
(1) applying pressure to the throat or neck[.]
See 18 Pa.C.S. § 2718(a)(1). Murder of the third degree is defined in relation
to murder of the first and second degree:
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7 At the sentencing hearing, Appellant’s counsel’s objection to the
strangulation sentence was limited to an argument that the sentence should
run concurrent with, and not consecutive to, the sentence for third-degree
murder. N.T. Sentencing, 5/3/21, at 11-12. Nevertheless, as stated above,
a claim that a sentence “should merge for sentencing purposes raises a non-
waivable challenge to the legality of the sentence.” Edwards, 256 A.3d at
1136-37.
Similarly, while Appellant made no argument on double jeopardy
grounds, this issue is not waived on appeal. See Commonwealth v.
Robinson, 166 A.3d 1272, 1276 (Pa. Super. 2017) (“Double Jeopardy claims
‘implicate the fundamental legal authority of the court to impose the sentence
that it did’ and, therefore, challenge the legality of the sentence imposed.”).
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(a) Murder of the first degree.—A criminal homicide
constitutes murder of the first degree when it is committed by an
intentional killing.
(b) Murder of the second degree.—A criminal homicide
constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.
(c) Murder of the third degree.—All other kinds of murder
shall be murder of the third degree. Murder of the third degree is
a felony of the first degree.
18 Pa.C.S. § 2502(a)-(c).
On appeal, Appellant concedes that under the
elements test [of] Section 9765, the crime[s] of strangulation and
murder in the third degree do not merge as each has an element
the other does not.
Strangulation requires the intentional impeding of breath or
circulation of blood through the application of pressure to the
throat or neck. 18 Pa.C.S. § 2718(a)(1). Murder of the third
degree is the malicious but unintentional killing of another person.
Commonwealth v. Packer, [168 A.3d 161 (Pa. 2017).]
Appellant’s Brief at 21-22 (paragraph break added).
However, Appellant relies, as he did before the trial court, 8 on the
Pennsylvania Supreme Court’s grant of allowance of appeal in Edwards, 256
A.3d 1130, on the question of whether “Section 9765 has been interpreted in
an overly broad manner when applying the merger doctrine.” Appellant’s Brief
at 21. Appellant asserts: “If, in deciding Edwards, our Supreme Court
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8 See Trial Ct. Op. at 6.
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returns to its historical application of merger in the double jeopardy context,
we would [argue Appellant] is being punished twice for the same criminal act.”
Id. at 22 (emphasis added).
On August 17, 2021, shortly after Appellant filed his brief with this
Court, our Supreme Court issued a decision in Edwards.9 The Court
acknowledged that “our merger doctrine has ‘not [been] altogether
harmonious[,]’” but held Section 9765 “has evidenced the Legislature’s intent
on how sentencing courts must proceed when faced with a merger issue.”
Edwards, 256 A.3d at 1139. The Court thus concluded the Superior Court
did not “construe the statute in an overly broad manner to bar merger,” and
declined to disturb the Pennsylvania courts’ current interpretation of Section
9765. Id. at 1140. The Court stated that in applying Section 9765, “our
analysis begins and ends with the statutory elements of each offense,” and
not “an evaluation of the specific facts as applied to the elements.” Id. at
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9 The question on which the Court granted allowance of appeal was:
Did not the Superior Court err in construing 42 Pa.C.S. § 9765 in
an overly broad manner to bar merger even though all of the
elements of the [REAP] offense are contained within the elements
of the statutory alternative of the Aggravated Assault offense for
which [the defendant] was convicted?
Edwards, 256 A.3d at 1135. The defendant argued that “based on the
specific facts under which he was convicted, the elements of REAP merge into
the second statutory alternative under Section 2702(a)(1) for causing serious
bodily injury.” Id.
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1137. As Edwards did not afford the relief anticipated by Appellant, we
conclude no relief is due.
We address Appellant’s additional assertions that “under an evidentiary
approach, the act of strangulation would be the same act which caused the
death of the [Victim],” and that separate sentences for strangulation and
third-degree murder “punish[es] him twice for the same criminal act.” See
Appellant’s Brief at 22-23. These arguments wholly ignore the trial court’s
discussion that regardless of the outcome in Edwards, Appellant’s crimes did
not “arise from a single criminal act:”
There was not just one criminal act involved in the killing of [the
Victim. A]ppellant bludgeoned her; he stabbed her twice in the
throat; and he strangled her. It was not the accumulation of those
injuries that caused her death. Dr. Ross testified that each of
these acts, individually would have caused her death.
See Trial Ct. Op. at 6. See also 42 Pa.C.S. § 9765; Edwards, 256 A.3d at
1136-37. We agree. For the foregoing reasons, no sentencing relief is due.
V. Counsel’s Application to Withdraw from Representation
Appellant’s counsel, Assistant Public Defender Fegley, has filed a
praecipe to withdraw his appearance. Attorney Fegley avers that during the
pendency of this appeal, he accepted new employment with the Bucks County
District Attorney’s Office. Counsel further explains that Appellant remains a
client of the Schuylkill County Public Defender’s Office and of Lora McDonald
— whom we note represented Appellant at the pre-trial proceedings, trial, and
sentencing. We grant Attorney Fegley’s application for leave to withdraw.
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VI. Conclusion
We conclude no relief is due on Appellant’s evidentiary or illegal
sentence claims. We affirm the judgment of sentence, and we grant Attorney
Fegley leave to withdraw from representation.
Judgment of sentence affirmed. Attorney Fegley’s application to
withdraw from representation granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/22/2022
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