Com. v. Raschid, S. ( 2019 )

J. A24039/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SOHAEL M. RASCHID, : No. 342 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, June 2, 2017,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0001016-2015
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 27, 2019
Sohael M. Raschid appeals from the June 2, 2017 aggregate judgment
of sentence of 30 to 95 years’ imprisonment imposed after a jury found him
guilty of the following 14 offenses: criminal attempt – rape of a substantially
impaired person; rape of a substantially impaired person; sexual assault;
involuntary deviate sexual intercourse (“IDSI”) – substantially impaired
person; IDSI – person less than 16 years old; indecent assault – substantially
impaired person; indecent assault – person less than 16 years old; three
counts of unauthorized administration of intoxicant; and two counts each of
furnishing liquor or malt or brewed beverages to a minor and unlawful
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administration of a controlled substance by a practitioner.1 After careful
review, we affirm the judgment of sentence.
The factual history underlying these convictions was set forth at great
length in the trial court’s January 22, 2018 opinion in support of its order
denying appellant’s post-sentence motion, and need not be reiterated here.
(See trial court opinion, 1/22/18 at 6-22.) The trial court summarized the
relevant procedural history of this case as follows:
[Appellant] was charged on March 22, 2015 by the
Pennsylvania State Police for incidents involving four
complainants (K.R., [S.M., C.N., and A.P.2]) alleged to
have occurred on April 25, 2014, May 10, 2014,
December 17, 2014, and March 22, 2015,
respectively. The charges generally involved
allegations that [appellant] administered one or more
controlled substances to the victims rendering them
unconscious or unable to respond, and then
commit[ed] or attempt[ed] to commit sexual offenses
on the victims.
....
On January 4, 2016, [appellant] filed an Omnibus
Pretrial Motion. The court scheduled hearing and
argument for March 11, 2016; the Commonwealth
was directed to file an answer within 20 days. On
January 4, 2016, the Commonwealth filed a Motion to
Consolidate Bills of Information. The following day,
this court ordered that hearing on the
1 18 Pa.C.S.A. §§ 901(a), 3121(a)(4), 3124.1, 3123(a)(4), 3123(a)(7),
3126(a)(5), 3126(a)(8), 2714, 6310.1(a), and 35 P.S. § 780-113(a)(14),
respectively.
2 K.R. was 13 years old at the time of the assault and knew appellant in his
capacity as her gynecologist; S.M. was a former employee and girlfriend of
appellant; and C.N. and A.P. are both former patients of appellant. (Notes of
testimony, 2/20/17 at 53; 2/21/17 at 23, 30-31; and 2/23/17 at 5-6, 212.)
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Commonwealth’s Motion be scheduled for March 11,
2016.
....
On March 11, 2016, the hearing was held on
[appellant]’s Omnibus Pretrial Motion as well as the
Commonwealth’s Motion to Consolidate Bills of
Information. Counsel for both sides were granted
leave to submit legal briefs not later than April 8,
2016. . . .
....
On April 20, 2016, this court issued a written opinion,
granting in part and denying in part the
Commonwealth’s Motion to Consolidate Bills of
Information. On June 24, 2016, this court issued its
decision granting in part and denying in part
[appellant’s] Omnibus Pretrial Motion.
On March 1, 2017, following an eight-day jury trial,
[appellant] was found guilty of [the aforementioned]
fourteen counts[.] . . . [Appellant] was acquitted as
to all charges filed at docket CP-28-CR-0001017-
2015.[Footnote 5] The court directed counsel for both
sides to submit pre-sentence memoranda regarding
merger for sentencing purposes and scheduled
sentencing for June 2, 2017. The court also directed
the Franklin County Adult Probation Department to
prepare a Pre-Sentence Investigation Report (PSI).
Counsel for both sides were granted leave to file their
memoranda not later than May 19, 2017.
[Footnote 5] This docket related to
offenses involving alleged victim [A.P.].
On June 2, 2017, after three hours of testimony and
argument this court sentenced [appellant] to an
aggregate term of not less than 360 months
(30 years) to not more than 1,140 months (95 years)
in a State Correctional Institution. . . .
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On October 5, 2017, [appellant] filed [] timely
Optional Post-Sentence Motions Pursuant to
Pa.R.Crim.P. 720(B) (Post-Sentence Motion), raising
challenges to the sufficiency and the weight of the
evidence. On October 6, 2017, the court directed the
Commonwealth to file an answer not later than
October 27, 2017. The Commonwealth timely
complied.
On January 22, 2018, this court issued its Opinion and
Order denying [appellant’s] Post-Sentence Motion.
On February 21, 2018, [appellant] filed the instant
notice of appeal.[3]
Trial court Rule 1925(a) opinion, 4/11/18 at 1-6 (some footnotes, emphasis,
and extraneous capitalization omitted).
Appellant raises the following issues for our review:
1. Whether the trial court abused its discretion
when it consolidated cases related to four
alleged victims that included 24 counts for one
trial before a jury, despite the fact that the
cases and crimes charges [sic] were distinct
from each other, arose out of different
circumstances, and evidence of each case would
not be admissible at a separate trial for the
other?
2. Whether the trial court abused its discretion in
overruling defense counsel’s objection and
admitting testimony and reports relating to
blood test evidence in the face of confusion over
the time the sample was taken, the
identification of the vial, and lack of proof of a
chain of custody?
3. [Whether] the trial court abused its discretion
when it sentenced appellant to minimum
sentences at the aggravated level, to be served
consecutively, resulting in sentences totaling
3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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360 to 1,140 months, ignoring the appellant’s
lack of a prior record, his prior long service as a
physician, the pre-sentence investigation, and
recommended sentences?
4. Did the trial court abuse its discretion when it
sentenced appellant to an aggregate sentence
of [360 to 1,140] months in a state correctional
institution, which is at the top of the standard
range of sentences, is a departure above what
was recommended by the probation department
as a result of the pre–sentence investigation,
and fails to consider the mitigating factors
present in this case?
5. The court erred in allowing, over trial counsel’s
objection, the Commonwealth and its witnesses
to refer to [C.N., S.M.,] and K.R. as the “victim,”
creating an improper inference that the district
attorney, the police, and scientific experts, and
possibly the court, believed the “victims[?”]
Appellant’s brief at 12 (full capitalization omitted).
I. Consolidation
Appellant first argues that the trial court abused its discretion in
granting, albeit in part, the Commonwealth’s motion to consolidate the
charges filed at Docket Numbers CP-28-CR-0001016-2015 and CP-28-CR-
0001017-2015. (Id. at 20.) In support of this contention, appellant avers
that,
[g]iven confusing testimony about different alleged
events, different alleged victims, and confusion about
blood samples and tests, hundreds of Commonwealth
Exhibits, and seven days of testimony followed by
lengthy closings on the eighth day, the facts were not
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capable of separation by the jury so that there is no
danger of confusion.
Id. (internal quotation marks omitted).
The decision of “[w]hether or not separate indictments should be
consolidated for trial is within the sole discretion of the trial court and such
discretion will be reversed only for a manifest abuse of discretion or prejudice
and clear injustice to the defendant.” Commonwealth v. Johnson, 179 A.3d
1105, 1115 (Pa.Super. 2018), appeal denied, 197 A.3d 1174 (Pa. 2018).
Pennsylvania Rule of Criminal Procedure 582 governs the joinder of cases for
trial and provides, in relevant part, that “offenses charged in separate
indictments or informations may be tried together if . . . the evidence of each
of the offenses would be admissible in a separate trial for the other and is
capable of separation by the jury so that there is no danger of confusion[.]”
Pa.R.Crim.P. 582(A)(1)(a).
Instantly, we find no merit to appellant’s contention that the trial court
abused its discretion in consolidating these cases for trial. As recognized by
the trial court, appellant acquiesced to the trial court’s consolidation of the
offenses filed at Nos. CP-28-CR-0001016-2015 and CP-28-CR-0001017-2015,
with certain exceptions that the trial court ultimately sustained. (See trial
court opinion, 4/20/16 at 18-20.) In his brief filed in opposition to the
Commonwealth’s consolidation motion, appellant acknowledged as follows:
[Appellant] does not oppose consolidation as to
all but Count 17 at Docket Number CR-1016-15
[(relating to a charge of possession with intent to
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deliver marijuana)] and Counts 5-10 at Docket
Number CR-1008-15 [(relating to charges filed with
respect to R.S., who is not a complainant in this
matter)].
Appellant’s “Proposed Findings of Fact and Briefs in Support of [Appellant’s]
Omnibus Pretrial Motions and in Opposition to Commonwealth’s Motion to
Consolidate Bills of Information,” 4/11/16 at 71 (emphasis added).
Based on the foregoing, appellant’s first claim of trial court error must
fail.
II. Admissibility of C.N.’s Blood Test Evidence and Chain of Custody
Appellant next contends that the trial court abused its discretion in
admitting into evidence, over his counsel’s objection, “expert testimony and a
report relating to the blood draw from [C.N.]” that showed a high
concentration of Zolpidem4 in her system. (Appellant’s brief at 26.) For the
reasons that follow, we find that this claim is entirely devoid of merit.
“Generally speaking, the admission of expert testimony is a matter left
largely to the discretion of the trial court, and its rulings thereon will not be
reversed absent an abuse of discretion.” Commonwealth v. Watson, 945
A.2d 174, 176 (Pa.Super. 2008) (citations omitted).
The threshold inquiry with admission of evidence is
whether the evidence is relevant. Evidence is relevant
if it logically tends to establish a material fact in the
4 Zolpidem, more commonly known known as Ambien, is a drug that is utilized
to improve sleep in patients with insomnia. (See notes of testimony, 2/27/17
at 41.)
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case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or
presumption regarding the existence of a material
fact.
Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa.Super. 2014) (citations
and internal quotation marks omitted), appeal denied, 95 A.3d 275 (Pa.
2014). “An expert’s testimony is admissible when it is based on facts of record
and will not cause confusion or prejudice.” Watson, 945 A.2d at 176 (citation
omitted).
In the instant matter, the Commonwealth introduced the expert
testimony of Dr. Edward Barbieri, a forensic toxicologist at NMS Labs who
reviewed the analysis of C.N.’s blood and drew conclusions therefrom. (Notes
of testimony, 2/27/17 at 12-13, 23.) Dr. Barbieri testified at trial that a very
high dosage of Zolpidem was found in C.N.’s blood immediately after she
reported to the hospital at 1:05 a.m., and again at 5:00 p.m., on
December 18, 2014. (Id. at 44-45.) Dr. Barbieri opined that Zolpidem is
among the top 50 drugs used to facilitate sexual assault in the United States.
(Id. at 44.) Dr. Barbieri further testified that he observed the photograph of
a bottle of Zolpidem containing 10-milligram tablets that was seized during a
search of appellant’s residence on December 23, 2014. (Id.; see also notes
of testimony, 2/21/17 at 138.)
Appellant’s objection to this testimony was based upon his belief that it
was not relevant because “[an] expert can only rely on information . . . that’s
reasonably relied on by people in the field and if there’s a problem with the
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chain of custody . . . [t]here’s also not a sufficient basis to present expert
testimony on that specimen.” (Notes of testimony, 2/27/17 at 4-5.)
Appellant avers that this expert testimony and a report upon which it
was based should have been excluded because,
[t]here was confused and inconclusive testimony as to
whether the test was from [C.N.’s] first visit to the
hospital, or subsequent visit to the hospital, whether
the “gray top tube” was the one tested, or from the
first blood draw.
Appellant’s brief at 26-27 (citation omitted).
Our review of the record, however, reveals at the time appellant lodged
his objection, he had already admitted into evidence C.N.’s toxicology results.
Specifically, on the second day of his jury trial, appellant moved for the
admission of an NMS toxicology report signed by Dr. Barbieri that contained
an analysis of C.N.’s blood and urine, and an NMS forensic case log, detailing
the chain of custody information for the subject blood vials. (See notes of
testimony, 2/21/17 at 260-261.) The trial court admitted both without
objection from the Commonwealth. (Id.) Based on the forgoing, we agree
with the trial court that “[i]t would seem axiomatic that a party cannot be
heard to complain about testimony concerning an expert report that they,
themselves, admitted into evidence.” (See trial court Rule 1925(a) opinion,
4/11/18 at 44.)
Moreover, we find no basis upon which to disturb the trial court’s
comprehensive and well-reasoned findings on chain-of-custody evidence in
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this case. It is well settled that “any issue regarding gaps in the chain of
custody relate to the weight of the evidence, not its admissibility.”
Commonwealth v. Witmayer, 144 A.3d 939, 950 (Pa.Super. 2016)
(citations omitted; emphasis added), appeal denied, 169 A.3d 27 (Pa. 2017).
Here, the trial court found “that the question of the gray-top tube did not
undermine the mountain of other reliable chain of custody evidence to the
point that the trier of fact could not make a reasonable inference that it was
[C.N.’s] blood that was tested.” (Trial court Rule 1925(a) opinion, 4/11/18 at
44.) In support of this conclusion, the trial court stated as follows:
There was ample evidence presented by the
Commonwealth that the blood actually drawn at the
Carlisle Regional Medical Center from [C.N.] was, in
fact, the blood surrendered to [Trooper Courtney]
Pat[t]illo. There was ample evidence that the blood
taken by [Trooper Pattillo] and placed into evidence
at PSP Chambersburg was, in fact, the blood given to
him by the Carlisle Regional Medical Center. There
was ample evidence presented by the Commonwealth
that the blood taken from PSP Chambersburg’s
evidence room by [Trooper Michael] Dick was, in fact,
the blood placed there by [Trooper Pattillo]. There
was ample evidence presented by the Commonwealth
that the blood vials taken from the evidence room at
PSP Chambersburg by [Trooper] Dick were, in fact,
the vials he turned over to the Chambersburg
Hospital. There was ample evidence presented by the
Commonwealth that the vials received by the
Chambersburg Hospital were, in fact, the ones sent to
and received by NMS labs. Most importantly, there
was evidence that the blood vials received by NMS
labs were labeled with [C.N.’s] name, sealed, dated
and initialed.
Id. at 42-43.
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Although appellant raised the possibility that “there was a critical break
in the chain of custody,” citing Commonwealth v. Hess, 666 A.2d 705(Pa.Super. 1995), appeal denied, 674 A.2d 1067 (Pa. 1996), these specific
allegations went to the weight — not the admissibility — of the evidence. We
are precluded from reweighing the evidence and substituting our judgment for
that of the trier of fact. See, e.g., Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013).
Based on all of the foregoing reasons, we discern no abuse of discretion
on the part of the trial court in overruling appellant’s objection to the
admission of reports analyzing C.N.’s blood draw, as well as the expert
testimony related to it.
III. Challenges to Discretionary Aspects of Sentence
We now turn to appellant’s challenges to the discretionary aspects of his
sentence. Specifically, appellant contends that the trial court abused its
discretion in sentencing him to an aggregate term of 30 to 95 years’
imprisonment without first considering several mitigating factors, including his
rehabilitative needs and character, as well as his “lack of a prior record, his
prior long service as a physician, the [PSI report], and [the] recommended
sentences[.]” (Appellant’s brief at 27-31.)
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
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1064 (Pa.Super. 2011). On the contrary, an appellant challenging the
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, the record reveals that appellant filed a timely notice of appeal on
February 21, 2018, and included a statement in his brief that comports with
the requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at 18-19.)
Appellant, however, failed to preserve his sentencing claims by raising them
at the June 2, 2017 sentencing hearing or in his October 5, 2017
post-sentence motion. (See notes of testimony, 6/2/17 at 84-103;
post-sentence motion, 10/5/17.5) Accordingly, appellant’s challenges to the
discretionary aspects of his sentence are waived. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (stating, “issues challenging
5 Specifically, appellant raised the following claims in his October 5, 2017
post-sentence motion: a motion for judgment of acquittal based upon
insufficient evidence; and a motion for a new trial claiming the verdicts were
against the weight of the evidence. (Post-sentence motion, 10/5/17 at
§§ II-III.)
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the discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.” (citation omitted)).
IV. Reference to Complainants as “Victims”
In his final claim, appellant inexplicably argues that the trial court
abused its discretion in allowing Assistant District Attorney Lauren Sulcove
and Commonwealth witness Trooper Lindsey Trace to refer to complainants
C.N., S.M., and K.R. as “victims.” (Appellant’s brief at 32; see also notes of
testimony, 2/23/17 at 205-206.) Appellant avers that in doing so, the trial
court “creat[ed] an improper inference [to the jury] that the District Attorney,
the police, and scientific experts, and possibly the court, believed the
‘victims.’” (Id.)
It is well settled that “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Rahman, 75 A.3d 497, 504 (Pa.Super. 2013) (citation
omitted). Here, appellant’s argument on this issue is comprised of four scant
sentences and does not include a single citation to legal authority to support
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his contention. (See appellant’s brief at 32.) Accordingly, this claim is
waived.6
Judgment of sentence affirmed.
6 Even if appellant had not waived his claim, he has failed to establish how the
use of the word “victim” at trial was inherently prejudicial to him. As
recognized by the trial court, the “[r]eference to the prosecutrix in a rape case
as ‘the victim’ is not an expression of the judge’s opinion as to the guilt of the
defendant.” (See trial court opinion, 4/11/18 at 48, citing Commonwealth
v. Williams, 439 A.2d 765, 768 (Pa.Super. 1982).) Moreover, we note that
any potential prejudice that may have resulted from Trooper Trace’s reference
to the complainants as “victims” was cured by the following cautionary
instruction to the jury:
Ladies and gentlemen of the jury, [appellant’s trial
counsel] made an objection regarding the use of the
term victim as opposed to the alleged victim and I just
want to give you an instruction on that.
While I overruled the objection, I want you to
understand that simply because an attorney or a
witness or somebody is referred to refers to another
individual as a victim is not evidence in and of itself
that a crime occurred or that [appellant] had anything
to do with it. You will be asked at the end of this trial
to make that determination based in your
deliberations after the close of all the evidence, after
you’ve received my instructions and you'll be the ones
deciding that. Not the Commonwealth, not the
defense, not the witnesses and not me. All right.
Notes of testimony, 2/23/17 at 207-208.
Accordingly, appellant’s claim fails. See Commonwealth v. Hairston,
84 A.3d 657, 666 (Pa. 2014) (stating, “[w]hen examining the potential for
undue prejudice, a cautionary jury instruction may ameliorate the prejudicial
effect of the proffered evidence.” (citation omitted)), cert. denied, 135 S.Ct.
164 (2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/27/2019
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