Com. v. Crimi, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL A. CRIMI :
:
Appellant : No. 481 MDA 2022
Appeal from the Judgment of Sentence Entered December 2, 2021
In the Court of Common Pleas of Columbia County
Criminal Division at No(s): CP-19-CR-0000298-2020
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED: MAY 1, 2023
Michael Crimi appeals the judgment of sentence imposed by the
Columbia County Court of Common Pleas after a jury convicted him of third-
degree murder and related offenses for beating his then-girlfriend’s three-
year-old daughter, I.B., to death. Crimi raises seven issues on appeal,
including: a challenge to the trial court’s granting of one of his requested
remedies for the Columbia County Clerk of Courts’ (“clerk of courts”)
inadvertent disclosure of ex parte and sealed defense motions to the Columbia
County District Attorney’s office (“DA”); challenges to the trial court’s
discretion in declining to conduct individual voir dire of potential jurors as well
as its discretion in admitting social media posts and testimony by the
Commonwealth’s forensic pathologist into evidence; a sufficiency and a weight
claim; and a discretionary aspect of sentencing claim based in part on the fact
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that he was 19 years old when the offenses occurred. As Crimi’s issues are
either waived or meritless, we affirm.
On November 25, 2017, I.B. was in the care of Crimi, when Crimi called
911 because I.B. was unconscious. I.B. was taken to the hospital and later
died from blunt head trauma. The death was ruled a homicide and Crimi was
charged with the homicide, along with related offenses. The Commonwealth
also filed a notice of its intent to seek the death penalty.
Defense counsel filed several ex parte motions related to expert
witnesses and investigative services, which were placed under seal. However,
the clerk of courts inadvertently disclosed seven of those motions to the DA
and posted them on the public docket. Crimi filed a motion to dismiss based
on this disclosure, seeking to either have his charges dismissed or the death
penalty notice revoked or, in the alternative, have the prosecution of his case
transferred to the Pennsylvania Office of the Attorney General (“OAG”). See
Motion to Dismiss, 8/4/2020, at 7-8 (unpaginated).
The court held a hearing on the motion on September 3, 2020. Following
the submission of briefs, the court issued an order and opinion the following
month. In the opinion, the court found that the title of the motions revealed
defense strategy, and although the disclosure of the ex parte motions had
been inadvertent, the court agreed that the circumstances mandated the
appointment of another prosecutor. See Trial Court Opinion, 10/2/2022, at 3,
7. The court transferred prosecution of the case to the OAG.
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Crimi filed a motion for reconsideration, which the court denied after
holding a hearing on the motion on November 5, 2020. Two months later, on
January 12, 2021, the court granted the OAG’s motion to withdraw the
intention to seek the death penalty.
The court set a trial date. Prior to the start of jury selection, the court
announced that because this was no longer a capital case, there would not be
individual voir dire. Rather, the court would conduct the voir dire en masse,
and when doing so, would reference the proposed voir dire questions
submitted by the parties. See N.T., 9/24/2021, at 2. The court advised
counsel they would be allowed to ask supplemental questions. See id. at 5.
Jury selection was then conducted and completed on September 30, 2021.
Trial began a few days later, on October 4, 2021. I.B.’s mother, Sierra
Brown, testified the following day. She recounted I.B. was born in
Pennsylvania in 2014 when Brown was in ninth grade, and that I.B.’s father
had never met I.B. See N.T., 10/5/2021, at 465-466. Brown stated she moved
to Florida, and attended a high school for teenage mothers there. See id. at
468, 471. Brown met Crimi while in Florida, and the two began dating in June
2017. See id. at 472.
Brown testified she and I.B. moved back to Pennsylvania in August
2017. See id. at 474. The two of them moved into their own apartment the
following month, in September 2017. See id. at 477. Crimi then moved to
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Pennsylvania, and in with Brown and I.B., in October 2017. See id. at 478-
79.
Brown got a job working four days a week from 7 a.m. until 5:30 p.m.
See id. at 480. Crimi watched I.B. on the days Brown went to work. See id.
at 480. Brown recalled that she got several texts from Crimi about I.B. while
she was in Crimi’s care, and the Commonwealth admitted the texts into
evidence. Brown read several texts which indicated Crimi’s frustration with
caring for I.B. For example, Brown testified that on October 25, 2017, Crimi
sent a text to Brown while she was at work complaining I.B. “won’t stop crying
and I’m going to jump off the balcony.” Id. at 538. He then texted he was
“literally about to go insane today.” Id.
Brown testified she received a text from Crimi a few days later, on
October 28, telling her I.B. had fallen in the tub and hit her head. See id. at
488. When Brown returned home, she saw I.B. had a bruise around her right
eye. See id. at 488-489. Brown testified I.B. also had a bruise on her left
cheek at this time, which Crimi told Brown I.B. had gotten when she had fallen
down the stairs. See id. at 492. Then, on October 29, Crimi sent a message
to Brown telling her he was angry as he believed I.B. was lying to him. See
id. at 542.
In early November 2017, Brown testified I.B. began losing her hair and
vomiting. Brown eventually took I.B. to the emergency room on November
10, where I.B. had a CT scan of her head. I.B. was ultimately diagnosed with
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constipation and discharged, with Brown being advised to make follow-up
appointments. See id. at 495-498.
Brown testified that I.B.’s vomiting abated but that I.B. became more
and more clingy to Brown, and was wetting her bed despite being potty-
trained. See id. at 494, 497, 499. According to Brown, Crimi would get
frustrated with I.B., and Brown had to tell Crimi not to spank I.B. after seeing
him use that form of punishment on her. See id. at 500.
Brown testified her relationship with Crimi deteriorated between
November 10 and November 25, as the two were arguing more and more.
See id. at 500-501. Brown testified Crimi grew increasingly clingy, see id. at
493, and sent her texts professing his love for her while also relaying his
insecurity about Brown’s feelings for him. See id. at 543-554. She recounted
that she asked Crimi to move out multiple times, but he refused. See id. at
507.
Brown testified she got a call on November 22 from Crimi, who was
watching I.B. Crimi told Brown that I.B. had once again fallen and hit her head
on the bathtub faucet. See id. at 504. I.B. got a bruise around her right eye.
See id. at 505. The following day was Thanksgiving, which Brown, I.B. and
Crimi spent together. Brown testified she again asked Crimi to leave that day,
but he did not. See id. at 505.
The following evening, November 24, Crimi went to work. While Brown
was feeding I.B. dinner, I.B. fell from her booster seat and bumped her head,
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leaving a bump on her right temple. See id. at 509, 511. According to Brown,
the incident did not cause any behavior changes in I.B. and Brown was not
concerned I.B. had sustained a concussion. See id. at 510. Brown gave I.B.
a bath, did not notice any injuries other than around her eye and forehead,
and put I.B. to bed. See id. at 508, 531-532; N.T., 10/6/2021, at 666-667.
Brown went to bed before Crimi got home from work. See N.T., 10/5/2021,
at 511.
The next morning, November 25, Brown testified she had to go to work
and left at around 6:20 in the morning. See id. at 512. Before leaving for
work, Brown stated she said goodbye to I.B., who was awake in her bed and
told Brown goodbye and that she loved her. See id. at 512. According to
Brown, she noticed I.B. still had the injury on her forehead from the booster-
seat fall the night before, see id. at 513, but was “alive and well and in good
health.” Id. at 515. Crimi was in the apartment when Brown left for work, and
was the person responsible for caring for I.B. that day. See id. at 515.
Brown testified she was called to Human Resources at her work after
lunch, where she was told to call Crimi. Crimi informed Brown that there was
an emergency - I.B. was unresponsive and he had unsuccessfully tried to wake
her by putting her in the tub. See id. at 517. He told Brown he had called
911. See id.
Kristopher Harger, the EMT who responded to the 911 call, also testified
at trial. According to Harger, he and his partner received the report of an
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unresponsive child around 12:20 p.m. on November 25, and they arrived at
the apartment approximately ten minutes later. Crimi was there. Harger tried
to ascertain what had happened, and Crimi told Harger about various falls I.B.
had recently taken which were not “very descriptive or specific” and “changed
quite a few times.” N.T. 10/4/2021, at 45, 61-62. Crimi did, at one point, tell
Harger he had tried to wake I.B. up at around 11 that morning and put her in
the bathtub when he could not rouse her. See id. Throughout the encounter,
Crimi was, according to Harger, agitated, anxious and jittery. See id. at 49,
61, 95, 110.
Harger found I.B. on a mattress, where she was naked and
unresponsive. See id. at 47. She had blood around her nose and mouth. See
id. at 69. She also had bruising around her head, including “battle wounds”
behind her right ear and her left ear. Id. at 47-48. After Harger carried I.B.
to the ambulance, he noticed she had additional bruising around her ribs. See
id. at 69-70. I.B. was taken to Berwick Hospital, although it was decided en
route that she would be life-flighted to Geisinger Medical Center (“Geisinger”).
She was life-flighted to Geisinger that same afternoon.
Dr. Paul Bellino was the inpatient consultant for the child abuse team at
Geisinger and he examined I.B. once she arrived at the hospital. Dr. Bellino
testified about his findings at trial, after being accepted as an expert in
pediatric trauma and abuse. See N.T., 10/4/2021, at 209. Dr. Bellino reported
that I.B. was intubated and comatose when she arrived at the hospital. See
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id. at 210. She was in critical condition, with what Dr. Bellino described as a
very poor prognosis for survival, and was “clearly visibly injured with a number
of bruises.” Id. at 211, 212, 215.
In fact, Dr. Bellino cataloged 40 discreet bruises on I.B. over “pretty
much every body surface: Her head, her ears, face, her shoulders, armpits,
upper arm, lower arm, legs, even her feet, her buttocks, her back.” Id. at
219; see also id. at 222-231 (referring to photographs submitted as exhibits
and describing specific bruises on I.B.’s body in those photographs). Dr.
Bellino testified that “the sheer fact that [I.B.] had so many bruises and the
location of those bruises gives me an understanding of what happened to her
… And when I think about what happened to her as a whole, it becomes
obvious that … these bruises are indicative of a severe beating which is
ultimately the cause of her death.” Id. at 232; 284 (reiterating that “I mean,
I have no doubt [I.B. was] beaten to death.”).
Dr. Bellino also referenced the CT scan of I.B.’s head that had been
taken at the hospital. Dr. Bellino reported that the scan showed bleeding in
I.B.’s head and swelling of her brain so severe that it was cutting off the flow
of blood to the brain. See id. at 215-216. It was, according to Dr. Bellino,
markedly different from the CT scan that had been performed on I.B. on
November 10, which “was perfectly normal.” Id. at 217. In contrast, I.B.’s CT
scan performed on November 25 showed bleeding “basically over both of the
upper portions of the skull” and was “very concerning.” Id. at 217-218.
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According to Dr. Bellino, the bleeding around I.B.’s brain was “caused when
the brain move[d] inside the skull in a violent fashion.” Id. at 233.
Dr. Bellino further testified that I.B. had a number of retinal
hemorrhages in both eyes, which is “probably one of the most distinguishing
features of abusive head trauma.” Id. at 240. Dr. Bellino concluded that I.B.’s
injuries, in his opinion, were not accidentally inflicted but rather were from
“severe forceful activity.” Id. at 240-241. He opined that I.B.’s injuries were
so extensive that I.B. would not have had any real function after they were
inflicted. See id. at 241-242. So, for example, I.B. would not have been able
to tell her mother goodbye and that she loved her if the injuries had already
been inflicted. See id. at 242. In the end, without medical intervention, Dr.
Bellino testified he “wouldn’t have expected [I.B.] to be able to do anything,
let alone live for more than a couple hours, after a beating like that.” Id. at
281.
Brown testified she was told on November 28 that I.B. had been
declared brain dead. See N.T., 10/5/2021, at 527. Brown decided to take I.B.
off life support that same day, and I.B. died. See id. A memorial service was
held for I.B., but Crimi did not attend the service because he had returned to
Florida with his family. See id. at 530.
Crimi testified on his own behalf. He testified he was 19 when he moved
in with Brown and I.B. See N.T., 10/7/2021, at 951. He agreed that he and
Brown argued, but he maintained he wanted the relationship to work. As for
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the time around I.B.’s death, Crimi testified he went to work on November 24
and got home around midnight or 12:30 in the morning on November 25. See
id. at 982-983.
He testified he woke up the morning of November 25 when a truck
arrived to deliver a TV to the apartment. See id. at 984. I.B. was not yet
awake, and after the TV was installed, Crimi stated he went in to wake I.B.
up. According to Crimi, I.B. was under a blanket and her eyes were slightly
open and only showing the white part of the eye. She was not responsive.
Crimi maintained he tried to perform CPR, and when that didn’t work, he
placed I.B. in the bathtub. See id. at 986-987. At some point, Crimi did a
search on his phone for “how to wake up a knocked out toddler,” with
“knocked out,” according to Crimi, meaning not waking up. Id. at 987. He
then tried to call Brown, could not reach her, and called his mother and then
911. See id. at 989. Crimi maintained he never hit, kicked, or did anything to
cause physical harm to I.B. See id. at 1006.
Following the five-day trial, the jury convicted Crimi of third-degree
murder, aggravated assault and endangering the welfare of a child (“EWOC”).
The court sentenced Crimi to 216 to 444 months’ incarceration for the murder
conviction, and to a consecutive term of 12 to 36 months of incarceration for
the EWOC conviction. Crimi filed post-sentence motions, which the trial court
denied.
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Crimi filed a timely notice of appeal, and the trial court directed Crimi to
file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Crimi
complied, raising ten issues. The trial court summarily dismissed Crimi’s
claims as meritless in its three-page Rule 1925(a) opinion. Crimi now raises
the following issues for our consideration:
1. Whether the Trial Court erred in not dismissing the case when
seven defense ex parte motions under seal were provided to
the prosecuting district attorney by the clerk of courts.
2. Whether the Trial Court erred in its conduction of jury selection,
when individual voir dire was requested by both parties and
granted by the court and then [the court] did not allow counsel
to conduct their own voir dire and ask the potential jurors
questions.
3. Whether the Trial Court erred in granting evidence of prior bad
acts under [Pa.R.Crim.P.] 404(b).
4. Whether the Court erred in allowing hearsay evidence of the
Commonwealth’s forensic pathologist.
5. Whether the Trial Court erred in denying the motion for
acquittal or a new trial based on sufficiency and weight of the
evidence and not dismissing first-degree murder on motion for
demurrer.
6. Whether the Trial Court erred in not considering [Crimi’s]
expressed remorse, lack of aggravating circumstances and
evidence of mitigating factors when sentencing [Crimi] to
consecutive sentences at the high end of the sentencing range.
7. [Whether] [t]he Commonwealth committed prosecutorial
misconduct in not providing a picture testified by mother that
was taken of the minor child by mother after her fall with
mother the evening prior to the alleged injuries.
Appellant’s Brief at 5-6.
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In his first issue, Crimi essentially claims the trial court abused its
discretion by not dismissing his case after it was discovered that the clerk of
courts had inadvertently delivered the ex parte defense motions to the DA.
Crimi does not provide more than a selective and incomplete background
explaining his claim, but he does make a series of generalized claims that the
Commonwealth's actions violated his rights to due process, equal protection,
effective counsel and against self-incrimination, and asserts the DA engaged
in misconduct. He claims the remedy for these violations should have been
dismissal of all charges, not the transferral of the prosecution of his case. This
claim fails.
In making his argument, Crimi fails to acknowledge that one of the
remedies he proposed for the clerk of courts’ dissemination of the ex parte
motions was the transfer of the prosecution of the case from the DA’s office
to the OAG. After a hearing, this is the exact remedy the trial court gave Crimi.
The court gave the following background and explanation for the award of the
remedy:
[Seven ex parte defense] motions were delivered by the clerk of
courts to the [DA]’s office and docketed and identified on the
public docket. The titles of the motions [were placed on the
outside of the sealed envelope and] identified the subject of each
motion. The assistant district attorney [(“ADA”)] stated that he
glanced at the motions and saw their titles. Regarding one motion,
he read it and conferred with an out of county district attorney for
witness preparation regarding a witness referred to in the motion.
The ADA was credible when he testified that it had not occurred
to him that he should not have received the motions.
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Subsequently, [Crimi’s] counsel discovered that the ADA
had been given copies of the motions by the clerk of courts. The
ADA removed the motions from the ADA file and returned them to
defense counsel.
***
[Crimi] requests dismissal of all the charges based on his
defense having been compromised. Such an extreme remedy is
not warranted. But the fact[s do] demand a remedy. … The
appearance of and the actual denial of due process and the
appearance of unfairness to this indigent defendant in this capital
case warrants untarnished prosecutorial eyes.
Trial Court Opinion, 10/2/2020, at 2-3, 6-7. The trial court then directed that
the prosecution of the case be transferred to the OAG’s office, just as Crimi
requested.
Crimi’s only acknowledgement of this remedy and his only argument
regarding its alleged inadequacy in his appellate brief is the following
statement:
The removal of the District Attorney’s office only did so much as
a protective order was not issued until after the case was
transferred and the Commonwealth via the District Attorney and
Attorney General's Office had already spoken, emailed and met.
Appellant’s Brief at 38.
Although Crimi does not explain this assertion further, he appears to
contend that the remedy of transferring prosecution to the OAG did not cure
any violation of his rights because although prosecution was transferred, there
had been communication between the two offices about the case. Again, Crimi
does not reference this in his appellate brief, but he did file a motion for
reconsideration from the court’s decision to transfer prosecution of the case.
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At the hearing on that reconsideration motion, Crimi specifically argued the
court should either dismiss the charges or bar death as a possible penalty
because “[a]pparently, there’s been communication [about the ex parte
motions] between the [ADA] and the [AOG]’s office about the case.” N.T.,
11/5/2020, at 4. After hearing testimony on the matter, including from the
ADA, the court made this specific finding:
The court finds that no information was released to the Attorney
General’s Office whatsoever concerning the ex parte motions
under seal. The [DA]’s office specifically did not reveal such
information. The [OAG]’s office is a blank slate on that issue and
knows nothing about it, and the Court makes that specific finding
based upon the testimony here today.
Id. at 31.
Given this specific credibility finding by the court, which Crimi does not
even acknowledge, Crimi has not put forth any meritorious argument that the
court abused its discretion by transferring prosecution of the case as a remedy
for the inadvertent disclosure of the ex parte defense motions. This claim
warrants no relief.
In his second claim, Crimi argues the trial court abused its discretion by
denying his request that voir dire of the jury pool be conducted individually,
and instead conducting voir dire en masse. This claim also fails.
As Crimi explicitly acknowledges, individual voir dire is only required in
capital cases. See Pa.R.Crim.P. 631(F). Although it is true Crimi’s case was
originally a capital case, the OAG withdrew the intention to seek the death
penalty, making Crimi’s case a non-capital one. Again, as Crimi recognizes, in
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such non-capital cases, the trial court has the discretion to determine who will
ask questions of the jurors and whether the jurors will be questioned
collectively or individually. See id. “[T]he sole purpose of examination of
jurors under voir dire is to secure a competent, fair, impartial and
unprejudiced jury,” and, as such, “the inquiry should be strictly confined to
disclosing qualifications of a juror and whether the juror has formed a fixed
opinion or may be otherwise subject to disqualification for cause.”
Commonwealth v. Ellison, 902 A.2d 419, 423-424 (Pa. 2006) (citation
omitted).
Here, in arguing the trial court abused its discretion, Crimi outlines
general law about voir dire and then tacks on the following bald assertions:
The way the questioning was done by the Court resulted in few to
no responses of the jury pool. Counsel was not permitted to follow
up on questions to the jurors. Counsel was not given a proper or
adequate opportunity to question[ ] the jurors to determine the
jurors[’] qualifications.
Appellant’s Brief at 42.
As the Commonwealth points out, Crimi does not elaborate on these
assertions or point to the place in the record where any of these alleged issues
occurred, as specifically required by our Rules of Appellate Procedure. See
Pa.R.A.P. 2119(c). He does not identify any juror who required follow-up
questions where none were given, or provide the additional questions that he
asserts counsel was not allowed to ask. He does not identify any seated juror
who indicated an inability to be fair and impartial. In the end, Crimi’s
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undeveloped claims are waived, see id.; Commonwealth v. Love, 896 A.2d
1276, 1287 (Pa. Super. 2006) (stating that arguments that are not sufficiently
developed are waived), and certainly fail to convince us that the court abused
its discretion in the manner in which it conducted voir dire. No relief is due on
this claim.
In his third allegation of error, Crimi alleges the trial court abused its
discretion in allowing evidence of his prior bad acts. He argues the trial court
should not have allowed the Commonwealth to introduce evidence of his use
of, and attempts to obtain, marijuana or evidence of his social media posts in
the weeks leading up to I.B.’s death. This claim is waived, and in any event,
lacks merit.
Crimi first generally asserts the trial court erred by allowing evidence of
his use of, and inability to obtain, marijuana in the time leading up to I.B.’s
death. Crimi, however, once again does not provide this Court with the
background relevant to this claim, nor does he identify the specific evidence
he is challenging or point to the places in the record where this evidence was
referenced. His claim is waived for these reasons. See Pa.R.A.P. 2119(c);
Love, 896 A.2d at 1287. Even if we were to overlook waiver, Crimi has not
established his claim warrants relief.
Prior to trial, the Commonwealth sought to introduce evidence of Crimi’s
“drug use and threats of killing others in the weeks preceding [I.B.]’s death.”
See Commonwealth’s Response to Defendant's Pretrial Motions, 8/3/21, 4-5
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(unpaginated). More specifically as to the drug use, the Commonwealth
outlined in its pretrial filings that it planned to introduce evidence of Crimi’s
Facebook posts indicating his frustration with I.B. and his relationship with
Brown, how he needed “to smoke,” and that he had been seeking drugs and
continued to do so up until the morning of I.B.’s death. See id. at 4-5
(unpaginated). The Commonwealth argued this evidence was admissible to
show Crimi’s state of mind, motive, and the history of the case. See id.; N.T.,
7/1/2021, at 24. Ultimately, the trial court granted the motion and found
evidence of Crimi’s drug use was admissible for the limited purpose of
showing, inter alia, motive and the history of the case. See Trial Court Order,
9/3/2021, at 1-2 (unpaginated).
At trial - and again Crimi does not specifically identify the challenged
evidence or reference its place in the record - the Commonwealth did present
evidence of several of Crimi’s Facebook posts indicating Crimi was frustrated
and “in pain”, and that Crimi wanted or needed “to smoke.” See N.T.,
10/6/2021, at 691-717 (Special Agent David Scicchitano reading Facebook
posts from Crimi’s Facebook account). There was one Facebook post from
November 16, 2017 where Crimi stated I.B. had “just pooped on me and I
need to smoke.” See id. at 700. The posts also generally relayed Crimi’s
attempts to obtain drugs, up to and including on November 25, 2017. See id.
at 691-717.
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Crimi acknowledges the Commonwealth used this evidence of his drug
use to support its argument that Crimi sought marijuana as a coping
mechanism for his increasing frustration with his childcare responsibilities.
See Appellant’s Brief at 47-48. Crimi argues, however, the trial court should
not have allowed the Commonwealth to introduce the evidence because it is
irrelevant and unduly prejudicial.
We review a trial court’s ruling on the admission of evidence for an abuse
of discretion. See Commonwealth v. Urrutia, 653 A.2d 706, 709 (Pa. Super.
1995). Generally, the threshold question with the admission of evidence is
whether the evidence is relevant. See Commonwealth v. DiStefano, 236
A.3d 93, 98 (Pa. Super. 2020). Pursuant to our Rules of Evidence, evidence is
relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence and that fact is of consequence in determining
the action. See id.; Pa.R.E. 401. Even if evidence is relevant, however, the
court can still exclude the evidence if it concludes that the probative value of
the evidence is outweighed by, among other things, a danger of unfair
prejudice. See Pa.R.E. 403.
When evidence involves “a crime, wrong, or other act[,]” it is
inadmissible to prove a person’s character in order to show that the person
acted in accordance with that character. Pa.R.E. 404(b)(1). Such evidence
may be admissible, however, when relevant for another purpose such as
proving motive or lack of accident or establishing the history of the case. See
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Pa.R.E. 404(b)(2); Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988).
It is only admissible for such a purpose in criminal cases, though, when the
trial court determines that the probative value of the evidence outweighs its
potential for unfair prejudice. See id. In this context, unfair prejudice means
a “tendency to suggest decision on an improper basis or to divert the jury’s
attention away from its duty of weighing the evidence impartially.” Pa.R.E.
403 cmt.
Here, the trial court found that the evidence of Crimi’s drug use was
relevant to establishing motive and the history of the case, was not unduly
prejudicial, and was therefore admissible. In support of his argument that the
trial court abused its discretion in reaching this conclusion, Crimi argues the
evidence should not have been admissible as the Commonwealth failed to
establish a timeline or nexus connecting his marijuana use and I.B.’s death
and there was no evidence that he killed I.B. solely because he could not
obtain drugs. The Commonwealth responds:
First, the Commonwealth did establish a timeline for when
[Crimi] posted about wanting to obtain drugs or “smoke,” because
the posts were dated. Those dates demonstrated that the posts
were created within the weeks prior to I.B.’s death, and they were
usually accompanied by expressions of frustration either with I.B.
or his relationship with [ ] Brown.
Second, the Commonwealth never contended that [Crimi]
killed I.B. because he couldn’t obtain drugs … [T]he posts about
needing to get drugs and/or to smoke were part of a larger
narrative showing [Crimi’s] downward spiral [and increasing
frustration with I.B. and Brown] in the weeks leading to I.B.’s
death.
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Commonwealth’s Brief at 38-39.
We agree with the Commonwealth that Crimi’s arguments that the trial
court abused its discretion in allowing the evidence referencing his drug use
are unconvincing. Therefore, even if the issue were deemed not to be waived,
Crimi has failed to establish the trial court abused its discretion, and his claims
to the contrary merit no relief.
In the latter part of his third issue, Crimi also condemns the
Commonwealth’s use of his social media posts referencing murder and his
desire to kill something. He does not identify any of those posts, except one
where “when allegedly attempting to obtain marijuana, [Crimi] stated, ‘[B]y
the way I really appreciate I been wanting to kill people lately ha ha.’”
Appellant’s Brief at 51. He summarily claims these posts were inadmissible
because they were not directed toward anyone individually, in particular
toward I.B. However, as the Commonwealth explains, these posts helped
explain Crimi’s increasing frustration with his situation and relationship with
Brown, and were probative as evidence of Crimi’s motive, not as evidence that
he actually threatened I.B. In short, Crimi’s undeveloped claim does not
establish an abuse of discretion on the part of the trial court, and it does not
warrant relief.
In his fourth claim, Crimi asserts the trial court abused its discretion by
allowing hearsay evidence of the Commonwealth’s forensic pathologist. Again,
without cogently explaining his claim, Crimi argues he was denied his right to
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confront the “medical examiner” because the medical examiner did not testify
and he therefore could not cross-examine her about her opinions in the
autopsy report. We agree with the Commonwealth that this claim was not
properly preserved and is therefore waived.
As the Commonwealth explains, and the record reflects, the forensic
pathologist who had performed the autopsy and completed the autopsy
report, Dr. Barbara Bollinger, was no longer with the forensic pathology
practice by the time Crimi’s trial began. Therefore, another forensic
pathologist from the practice, Dr. Rameen Starling-Roney, reviewed the
autopsy report, other reports prepared by other medical experts that were
reviewed as part of the autopsy and photographs, and testified at Crimi’s trial
about the opinions and conclusions he had reached. The Commonwealth
continues:
[A]t no time did [Crimi] object to Dr. Starling-Roney
testifying about the findings of Dr. Bollinger during the autopsy
while explaining the basis for his own conclusions. He certainly
never suggested that in relying on Dr. Bollinger’s report, it
rendered Dr. Starling-Roney’s testimony impermissible hearsay or
violated his confrontation clause rights. Indeed, the only such
objection raised was when Dr. Starling-Roney attempted to
reference the findings of the neuropathologist who examined
I.B.’s brain post-mortem, and whose findings were incorporated
into the autopsy report. See N.T.[,] 10/5/2021, [at] 341-342. The
trial court overruled that objection insofar as Dr. Starling-Roney
explained that forensic pathologists frequently rely on the reports
of medical professionals in forming their opinions regarding the
cause and manner of death, including the type of report generated
by the neuropathologist. [See id.]
Aside from this specific objection with respect to the
neuropathologist’s report, [Crimi] never objected to Dr. Starling-
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Roney’s reliance on Dr. Bollinger’s autopsy findings generally, let
alone on the basis of hearsay or a constitutional violation.
Accordingly, this claim is waived on appeal. See Pa.R.E. 103(a)
([providing that a] party may claim error in admission of evidence
only when [the] party makes a timely and specific objection).
Commonwealth’s Brief at 41-42.
Crimi does not direct us to any place in the record where he properly
preserved this evidentiary challenge, and the record supports the
Commonwealth’s conclusion that Crimi failed to lodge a timely objection to
the testimony he now claims was inadmissible hearsay and violative of his
confrontation rights. The claim is waived. See Pa.R.E. 103(a); Pa.R.A.P.
302(a) (stating that issues not raised in the trial court are waived and may
not be raised for the first time on appeal.)
Next, Crimi claims the trial court erred in denying his post-sentence
motion for acquittal or a new trial based on his assertions that the evidence
was insufficient to support his third-degree murder conviction and that such a
verdict was against the weight of the evidence. He asserts the evidence was
insufficient because it was primarily based on Brown’s credibility and her “self-
serving statement that [I.B.] said ‘bye mommy’ before she left for work.”
Appellant's Brief at 60. He asserts the Commonwealth did not prove malice
and offers only this single conclusory statement in support: “The
Commonwealth did not [prove] malice through the evidence that was provided
during trial.” Id. at 61.
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While Crimi does identify his third-degree conviction as the charge he
seeks to challenge and does mention the element of malice in his appellate
brief, he did not do so in his Pa.R.A.P. 1925(b) statement. In fact, again as
the Commonwealth points out, Crimi’s Rule 1925(b) statement did not identify
the specific verdict or the specific element of any such verdict Crimi was
alleging the Commonwealth had failed to prove. Instead, in his Rule 1925(b)
statement, Crimi merely asserted: “The Trial Court erred in denying the
motion for acquittal or a new trial based on sufficiency and weight of the
evidence.” Concise Statement of Matters Complained of on Appeal, 5/9/2022,
at 1 (unpaginated).
This Court has made clear:
In order to preserve a challenge to either the sufficiency or weight
of the evidence on appeal, an appellant’s Rule 1925(b) concise
statement must state with specificity the elements or verdicts for
which the appellant alleges that the evidence was insufficient or
against the weight of the evidence.
Commonwealth v. Juray, 275 A.3d 1037, 1048 (Pa. Super. 2022) (citation
omitted). Otherwise, the issue is waived. See id.Here, Crimi merely made the general assertion in his Rule 1925(b)
statement that the trial court erred in failing to grant him relief based on his
sufficiency and weight of the evidence claims, without identifying which charge
or specific element or elements he was challenging. His sufficiency and weight
claims are therefore waived. See id.- 23 -
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In his sixth claim of error, Crimi argues the trial court abused its
discretion by sentencing him in the high end of the standard sentencing range.
He essentially asserts the trial court’s failure to duly consider his evidence of
mitigation led to what he sees as an excessive sentence. This claim is also
waived, but this time, it is for lack of development.
When an appellant raises claims challenging the discretionary aspects
of his sentence, as Crimi does here, this Court will only review the claims if
the appellant shows he filed a timely notice of appeal, properly preserved his
claims at sentencing or in a post-sentence motion, included a statement
pursuant to Pa.R.A.P. 2119 (f) in his brief, and raised a substantial question
that his sentence is not appropriate under the Sentencing Code. See
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (defining a
substantial question as one where the appellant advances a colorable
argument that the sentencing court’s actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms underlying the sentencing process).
Crimi has met these requirements. He filed a timely appeal, preserved
his claim in a post-sentence motion and included a Rule 2119(f) statement in
his brief. He also cited a case supporting his contention that his claim that the
trial court imposed an excessive sentence without duly considering mitigating
circumstances raises a substantial question under the Sentencing Code. See
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (stating
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that an excessive sentence claim, in conjunction with an assertion that the
sentencing court failed to consider mitigating factors, raises a substantial
question).
Turning to the merits of Crimi’s discretionary sentencing claim, we note
that Crimi’s Rule 2119(f) statement is focused on the fact that Crimi was 19
years old at the time of the offenses and the mitigating effect he believes his
age should have had on his sentence. See Appellant’s Brief at 18-20.
However, in his argument section, Crimi cites general law on sentencing and
then offers only this single sentence in support of his argument:
At sentencing[,] evidence of mitigation was presented regarding
[Crimi’s] background, his age, his character, his low likelihood of
reoffending, his lack of prior adult criminal record, advancing legal
and scientific theory of youthful offenders’ brain development
reducing their risk to society as they mature, and his behavior and
advancements during his period of incarceration.
Appellant’s Brief at 64.
He then gives a stand-alone cite to the notes of testimony from his
sentencing hearing where he presented evidence of mitigation. Despite
providing this general list of, and general citation to, the mitigation evidence
he presented at sentencing, Crimi does not specify in any meaningful way the
mitigation evidence he presented or even attempt to explain how the trial
court abused its discretion in how it considered this evidence. In fact, he does
not make any argument at all regarding the trial court’s discretion or abuse
thereof. Moreover, Crimi’s skeletal argument does not account for the fact that
the trial court had the benefit of a presentence investigation report as well as
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sentencing memoranda from Crimi and the Commonwealth, and heard from
multiple witnesses at the sentencing hearing. Crimi’s claim is woefully
undeveloped, and it is waived for that reason. See Love, 896 A.2d at 1287.
Crimi’s seventh and final claim is described by the Commonwealth as
“convoluted,” “nonsensical,” and “waived.” Commonwealth’s Brief at 53. The
claim involves a picture of I.B. taken by Brown after I.B. fell from her booster
seat on November 24, 2017, the night before she was killed. Crimi alleges the
Commonwealth “had access to the picture for years” but did not turn this
picture over to Crimi during discovery. Appellant’s Brief at 67. It appears he
is claiming this intentional withholding of the picture constituted prosecutorial
misconduct, although he does not explain how he was prejudiced or even what
specific relief he is seeking. This claim, like his others, does not provide Crimi
with any basis for relief.
In making his claim, Crimi acknowledges that at trial, Brown was shown
Commonwealth Exhibit 8, a photograph, and Brown testified that the injury in
that photograph is the one from when I.B. slid off her booster seat and hit her
head on the table. See Appellant’s Brief at 66; see also N.T., 10/5/2021, at
531. At that time, however, Crimi did not make any objection in relation to
the photograph or Brown’s testimony related to the photograph. In fact, Crimi
does not point to any place in the record where he raised the Commonwealth’s
alleged misconduct related to this photograph before the trial court and before
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he raised it on appeal. As such, this claim is waived. See Pa.R.E. 103(a); Pa.
R.A.P. 302(a).
As none of Crimi’s claims on appeal merit relief, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2023
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