Com. v. Wolowski, B.

J-A11030-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

BRANDON LEE WOLOWSKI :

:

Appellant : No. 940 WDA 2019

Appeal from the Judgment of Sentence Entered May 23, 2019

In the Court of Common Pleas of Washington County

Criminal Division at No(s): CP-63-CR-0000151-2013

BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: FILED: JULY 27, 2021

Appellant, Brandon Lee Wolowski, appeals from the judgment of

sentence entered in the Washington County Court of Common Pleas, following

his jury trial convictions for one count each of first-degree murder, attempted

criminal homicide, and aggravated assault, and two counts of robbery.1 We

affirm.

The relevant facts and procedural history of this case are as follows:

Factual History

On January 8, 2013, Michelle Powell went to the grocery

store with a friend. Subsequently, Ms. Powell returned

home to 905 Fayette Street in the City of Washington,

Washington County, where she resided with her boyfriend,

Matthew Mathias. [Appellant], who lived nearby, came over

to visit Ms. Powell and Mr. Mathias. The three of them talked

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1 18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a)(1), and 3701(a)(1)(i),

respectively.

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for a little while before [Appellant] offered to get Ms. Powell

and Mr. Mathias some crack cocaine to smoke. [Appellant]

left for approximately twenty minutes before returning with

the drugs. [Appellant] gave Ms. Powell and Mr. Mathias the

crack which they smoked in the kitchen. While they were

smoking, [Appellant] drew a handgun and pointed it at Ms.

Powell’s face. [Appellant] indicated that he wanted Mr.

Mathias’s guns. At first, Ms. Powell and Mr. Mathias believed

it to be a joke, but [Appellant] stated, “This is not a fucking

joke, I want the guns.”

[Appellant] told them to get him the guns and told Ms.

Powell to flip the lights on and off. [Appellant] then pointed

the gun back at Ms. Powell’s face and told Mr. Mathias to get

the guns. Mr. Mathias then ran out of the kitchen and down

the hallway at which point he entered the computer room.

[Appellant] ran after Mr. Mathias and Mr. Mathias left the

computer room and ran out the front door. Ms. Powell

observed [Appellant] shooting at Mr. Mathias as he was

running down the hallway and out the front door. Ms. Powell

ran to the front door in an attempt to lock it shut, but the

dead bolt was open. As Ms. Powell attempted to lock the

front door, [Appellant] pushed his way back inside the

home. While Ms. Powell was hiding behind the front door,

[Appellant] was shooting at her. Ms. Powell attempted to

use the front door to shield herself, but [Appellant] pulled

the door back and shot her in the face. As Ms. Powell

begged him to stop, [Appellant] told her that he was going

to kill her.

[Appellant] then fled from the scene and Ms. Powell ran out

the front door and across the street seeking help. She was

bleeding profusely from her face due to the gunshot wound.

Across the street, Ms. Powell encountered the neighbor[,

John Lytle,] and asked him to call 911. [Mr. Lytle] then took

Ms. Powell into his home, located at 916 Fayette Street,

Washington. Sergeant Carl Martin of the City of Washington

Police Department received a report of shots fired and a

person injured in the West End of the city. At 916 Fayette

Street, Sergeant Martin found Ms. Powell who was suffering

from an apparent gunshot wound to the side of her face as

well as her wrist/hand area. Ms. Powell gave Sergeant

Martin a general description of the shooter and indicated

that his name was Brandon. Ms. Powell indicated that she

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could not remember his last name, but it was a funny last

name or a street last name. Ms. Powell described the

shooter as a white male with dark hair.

After spending approximately three to five minutes with Ms.

Powell, Sergeant Martin proceeded to Addison Street after

having been informed that [Appellant] had gone into the

rear apartment at 808 Addison Street. Sergeant Martin and

his fellow officers approached the door to the apartment,

knocked on the door and asked for Brandon to open the

door. When the door was finally opened, police found

[Appellant] and two other individuals in the apartment.

[Appellant] was kept at the apartment for approximately 45

minutes prior to being transported to the police station

where he was interviewed by detectives. During this time,

[Appellant] was asking questions about the investigation

and was “Mirandized”[2] at which time he acknowledged that

he understood his rights.

Sergeant Chris Luppino of the City of Washington Police

received a call at 7:30 P.M. that there was a deceased

victim, Mr. Mathias, on scene and that Ms. Powell was being

taken by ambulance to Washington Hospital. Sergeant

Luppino left his residence and went directly to the

emergency room at Washington Hospital. Upon arriving at

the hospital, Sergeant Luppino observed gunshot wounds to

Ms. Powell’s face, chest, and arm. Ms. Powell told Sergeant

Luppino that she was shot by an individual named Brandon,

who she described as having dark hair, skinny, and

approximately 19-years-old. Ms. Powell informed Sergeant

Luppino that [Appellant] had come to Mr. Mathias’s home to

rob him of his guns. She further related that [Appellant]’s

mother’s name was Bee McMasters and his girlfriend,

Candy, just had a baby.

Lieutenant Daniel Stanek of the City of Washington Police,

the lead investigator, was called to duty around 7:30 P.M.

on January 8, 2013. Lieutenant Stanek first went to the

police station before proceeding to the scene of the crime,

905 Fayette Street. After being briefed at 905 Fayette

Street, and at 808 Addison Street, where [Appellant] was

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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arrested, Lieutenant Stanek proceeded to the city police

station where [Appellant] had been detained. Prior to

interviewing [Appellant], [Appellant] was again

“Mirandized,” acknowledged his understanding of his rights

and agreed to give a recorded statement. [Appellant] then

confessed that he had been at 905 Fayette Street that night

and that he had shot both Mr. Mathias and Ms. Powell.

[Appellant] confessed that he had went to the residence to

rob Mr. Mathias of his firearms which he planned to sell to

obtain money. [Appellant] went on to confess that he had

been planning to commit the robbery for several days and

that he believed he might have to shoot both victims.

Procedural History

On February 11, 2013, the Washington County District

Attorney’s Office filed a criminal information charging

[Appellant with criminal homicide, attempt to commit

criminal homicide, aggravated assault, and 2 counts of

robbery].

On February 13, 2013, Glenn Alterio, Esquire of the

Washington County Public Defender’s Officer entered his

appearance on behalf of [Appellant]. On February 19, 2013,

the District Attorney’s Office filed notice of aggravating

circumstances, notifying [Appellant] of the Commonwealth’s

intention to seek the death penalty. …

On August 2, 2013, [Appellant] filed a handwritten petition

asking for Attorney Alterio and the Public Defender’s Officer

to withdraw and for the trial court to appoint new counsel.

On September 4, 2013, [Appellant] filed a pro se petition

for habeas corpus. On September 26, 2013, [Appellant]

again acting pro se, filed an amended petition to have the

Public Defender withdraw and to have the trial court appoint

counsel. On October 8, 2013, [Appellant] filed an amended

petition for habeas corpus as well as a motion to suppress

evidence.

On October 15, 2013, Attorney Alterio presented a petition

to withdraw his appearance and that of the Public Defender’s

Office and the trial court scheduled a hearing for October

31, 2013 on the matter. During that hearing, the trial court

indicated it would take [Appellant]’s petition under

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advisement as the court had to consider the limited number

of death penalty qualified attorneys available. Attorney

Alterio continued his representation and, on February 20,

2014, presented a petition to retain an expert witness.

Additionally, Attorney Alterio presented a petition seeking

release of [Appellant]’s records from the Juvenile Probation

Department of Washington County and the Child & Youth

Social Service Agency of Washington County.

The court authorized the payment and retention of a

psychiatrist or psychologist for the defense and ordered

Washington County Juvenile Probation to release records of

any mental health treatment, or any other treatment,

pertaining to [Appellant] while under their supervision. The

trial court further ordered that it would conduct an in camera

review of [Appellant]’s Child and Youth Service files to

determine whether the files contained any relevant

mitigation information. On April 29, 2014, the trial court

additionally granted [Appellant]’s request for new counsel

and permitted the Public Defender’s Officer to withdraw so

that Noah Geary, Esquire, who was death penalty qualified

at the time, could enter his appearance.

During a status conference held September 5, 2014, the

trial court granted defense counsel’s request for a

continuance to secure the services of a psychiatrist or

psychologist as well as to review the pro se petition for

habeas corpus and motion for suppression filed by

[Appellant]. On April 15, 2015, the trial court, at the

request of the defense, ordered [Appellant] be transported

to Torrance State Hospital for up to ninety (90) days to have

his mental health evaluated.

Following the suppression hearing conducted on November

8, 2016, per agreement of the Commonwealth and the

defense, the trial court agreed to conduct an in camera

review of [Appellant]’s recorded confession and the

preliminary hearing transcript. On February 17, 2017, the

trial court entered an order denying [Appellant]’s petition

for habeas corpus as well as the motion to suppress. On

April 18, 2017, the trial court entered a case management

order setting jury selection to begin August 7, 2017, and the

jury trial to begin August 21, 2017.

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At the status conference conducted August 1, 2017,

Attorney Geary, for the first time, requested that co-counsel

be appointed in accordance with the American Bar

Association Guidelines. At that time, and leading up to that

point, defense counsel had represented that [Appellant]

would most likely accept the Commonwealth’s plea offer to

avoid the death penalty and a mandatory life sentence

without parole. Defense counsel represented that co-

counsel was necessary as a precaution to counsel

[Appellant] regarding the plea offer. The defense then

asked the trial court to re-schedule jury selection and trial.

…[T]he court, on August 22, 2017, entered an order

appointing Jeremy Davis, Esquire as co-counsel, who was

death qualified. Although Attorney Geary claimed he could

work with Attorney Davis, he ultimately refused to do so due

to Davis’ distant familial relation with a retired Fayette

County judge, against whom Attorney Geary had filed a

lawsuit. In this regard, on September 12, 2017, Attorney

Geary presented a motion for re-consideration of

appointment of co-counsel. On September 18, 2017, per

Attorney Geary’s request, the trial court vacated Attorney

Davis’s appointment and appointed Thomas Farrell, Esquire

as co-counsel. On October 16, 2017, the trial court entered

a case management order setting jury selection to begin

April 23, 2018 and the trial to begin May 21, 2018. On

December 4, 2017, Attorney Geary filed a petition for

recusal, which the trial court denied. On December 19,

2017, the trial court denied [Appellant]’s request to amend

the order denying recusal so that he could seek an

interlocutory appeal.

On March 8, 2018, upon consideration of [Appellant]’s

application for a stay of the proceedings, the trial court

ordered that jury selection and trial be continued. On April

10, 2018, the trial court issued a new case management

order for jury selection to begin September 24, 2018 and

trial to begin October 29, 2018. On June 4, 2019,

[Appellant] filed an omnibus pre-trial motion challenging his

arrest as well as a Rule 600 motion. On July 26, 2018, the

trial court denied [Appellant]’s Rule 600 motion and

scheduled a hearing on his omnibus pre-trial motion. On

August 2, 2018, despite having been appointed on

September 18, 2017, Attorney Farrell first entered his

appearance. The court conducted a hearing on [Appellant]’s

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omnibus pretrial motion on August 2, 2018, which continued

over into August 6, 2018. On September 7, 2018, a revised

omnibus pre-trial motion and brief in support of that motion

was filed by the defense. After consideration of the

testimony and the briefs of the defense and the

Commonwealth, on September 14, 2018, the trial court

issued its opinion and order denying said motion.

On September 24, 2018, jury selection commenced. Jury

selection was scheduled to take place through the end of

September leading up to the trial date at the end of October.

Although selection of the jury panel had nearly been

completed and the trial date was nearing, due to the

pendency of [Appellant]’s petition for review to the Supreme

Court regarding recusal, [Appellant] and the Commonwealth

jointly requested the court postpone the trial, which the

court granted.

Thereafter, on October 25, 2018, the Commonwealth filed a

motion in limine to preclude expert testimony from Dr.

Michael Crabtree for the defense. … On October 30, 2018,

the defense filed a brief in opposition to the

Commonwealth’s motion in limine to preclude testimony

from Dr. Crabtree. On October 30, 2018, following a

hearing on the record, the trial court granted the

Commonwealth’s motion to preclude Dr. Crabtree’s

testimony regarding the voluntariness of [Appellant]’s

confession. …

On February 19, 2019, jury selection began again with

selection scheduled to take place through February and trial

scheduled to begin on March 11, 2019. On March 8, 2019,

the Commonwealth presented a motion in limine to preclude

the testimony of an expert witness for the defense, Dr.

[Robert] Levine. On March 11, 2019, the trial court issued

its opinion and order addressing the expert testimony of Dr.

Levine as well as re-visiting Dr. Crabtree’s testimony. The

trial court again ruled that Dr. Crabtree could not testify as

to the voluntariness of [Appellant]’s confession during the

guilt phase. The court further precluded the testimony of

Dr. Levine, finding that his report was not admissible under

Rule 702.

On March 11, 2019, [Appellant]’s multi-day trial began. At

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the conclusion of the testimony, after deliberating on the

guilt phase, on March 14, 2019, the jury found [Appellant]

guilty of 1st Degree Murder, Attempted Homicide,

Aggravated Assault, and two counts of Robbery. The jury

then reconvened for the penalty phase. The Commonwealth

presented the victim impact evidence. The Commonwealth

offered the trial evidence in support of the aggravating

factors, homicide committed in the course of a felony—

Robbery, and placing another person in jeopardy—Michelle

Powell. The Defense presented evidence of mitigating

factors including Dr. Crabtree who offered expert testimony

of [Appellant]’s mental health history, and his fetal alcohol

syndrome. Dr. Crabtree opined that [Appellant] had an IQ

of 93 indicating that [Appellant] was of average intelligence.

[Appellant] also presented the testimony of his sister, who

related [Appellant]’s family history, his multiple

placement[s] during his involvement with CYS and his

involvement in the juvenile justice system. After

deliberation on the penalty phase, the jury found the

existence of both aggravating factors, but found that the

mitigating evidence outweighed the aggravating factors.

Accordingly, the jury returned a unanimous decision for a

life sentence.

On May 23, 2019, the trial court [sentenced Appellant to an

aggregate term of life imprisonment, plus an additional

twenty-two to forty-four years’ imprisonment.]

… On June 21, 2019, [Appellant timely] filed his notice of

appeal to the Superior Court from the judgment of sentence

entered May 23, 2019. On July 3, 2019, the trial court

ordered [Appellant] to file his concise statement of matters

complained of on appeal. On July 24, 2019, the trial court

granted Attorney Geary’s request for an extension to file the

concise statement…. [Appellant filed his concise statement

on August 9, 2019.]

(Trial Court Opinion, filed June 12, 2020, at 1-13) (internal footnotes omitted).

Appellant raises ten issues on appeal:

1. Did the [trial] [c]ourt abuse its discretion in denying the

admission of a Present Sense Impression and Excited

Utterance which proved that Appellant did not shoot

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victim Powell?

2. Did the [trial] [c]ourt abuse its discretion in refusing to

permit Appellant to impeach victim Powell during cross-

examination with a prior inconsistent statement proving

that her boyfriend, and not Appellant, shot her?

3. Did the [trial] [c]ourt abuse its discretion in refusing to

permit Appellant to impeach the Lead Investigator’s

testimony that Appellant was the sole suspect in the

shooting with the 911 recording which proved that victim

Powell’s boyfriend shot her, not Appellant?

4. Did the [trial] [c]ourt abuse its discretion in denying the

admission of the observations by a witness of suspicious

conduct of victim Powell’s son immediately after the

murder?

5. Did the [trial] [c]ourt commit reversible error by failing to

permit Appellant to challenge the voluntariness of his

confession to offer evidence of Appellant’s fetal alcohol

syndrome, and intellectual disabilities at trial?

6. Did Appellant produce evidence of the substantial

appearance of personal animus of the trial judge against

defense counsel to justify of his Recusal Petition?

7. In conjunction with the above, did the [trial] [c]ourt

prevent Appellant from producing evidence by refusing

to permit a record to be made of the presentation of the

Recusal Petition proceedings?

8. In conjunction with the above, did the [trial] [c]ourt abuse

its discretion in denying to recuse itself from this case?

9. Did the [trial] [c]ourt abuse its discretion in ruling that

Appellant’s arrest was supported by probable cause?

10. Did the cumulative effect of all of the errors on

evidentiary rulings deprive Appellant of a fair trial?

(Appellant’s Brief at 7-9).

As a preliminary matter, issues not raised in a Pa.R.A.P. 1925(b)

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statement will be deemed waived for appellate review. Commonwealth v.

Castillo, 585 Pa. 395, 888 A.2d 775 (2005). A Rule 1925(b) statement that

is not specific enough for the trial court to identify and address the issues the

defendant wishes to raise on appeal may also result in waiver.

Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied,

591 Pa. 712, 919 A.2d 956 (2007). Significantly:

When a court has to guess what issues an appellant is

appealing, that is not enough for meaningful review. When

an appellant fails adequately to identify in a concise manner

the issues sought to be pursued on appeal, the trial court is

impeded in its preparation of a legal analysis which is

pertinent to those issues. In other words, a Concise

Statement which is too vague to allow the court to identify

the issues raised on appeal is the functional equivalent of no

Concise Statement at all.

Id. at 2.

Instantly, in his brief on appeal, Appellant phrases his first issue as: “Did

the [trial] [c]ourt abuse its discretion in denying the admission of a Present

Sense Impression and Excited Utterance which proved that Appellant did not

shoot victim Powell?” (Appellant’s Brief at 7). Appellant, however, failed to

include this specific claim in his Rule 1925(b) statement. Rather, the seventh

issue in Appellant’s concise statement reads as follows: “The trial [c]ourt erred

by not admitting into evidence the 911 recording and the corresponding

notes/transcript of the 911 Operator.” (Appellant’s Rule 1925(b) Statement,

filed 8/9/19, at 2). While Appellant might have intended for the seventh issue

in his concise statement to address the first issue presented in his brief, this

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was not clear to the trial court. Instead, the trial court addressed the seventh

issue presented in Appellant’s concise statement in terms of Appellant’s failure

to authenticate the 911 phone call. The trial court did not discuss any

exceptions to the rule against hearsay in its analysis. As Appellant’s issue was

not made clear to the trial court in a manner which allowed for the court to

properly address it in its opinion, Appellant’s first issue on appeal is waived

for purposes of our review. See Reeves, supra.

Similarly, Appellant failed to specify issues nine and ten in his Rule

1925(b) statement. Thus, Appellant has also waived these issues for appellate

review.3 See Castillo, supra.

____________________________________________

3 Appellant did not raise issue ten at all in his concise statement. Appellant

did not specify in his concise statement his ninth issue on appeal which states:

“Did the [trial] [c]ourt abuse its discretion in ruling that Appellant’s arrest was

supported by probable cause?” (Appellant’s Brief at 9). Nevertheless, we

note that the trial court seemingly discussed and disposed of this issue while

addressing the fifth issue raised in Appellant’s 1925(b) statement, which

stated more generically that “[t]he trial [c]ourt erred in denying [Appellant]’s

Second Pre-Trial Motion, in its entirety.” (Appellant’s Rule 1925(b) Statement

at 1). In its analysis, the trial court explained that Appellant’s second pre-

trial motion challenged, inter alia, the legality of his arrest, claiming it lacked

sufficient probable cause. The trial court initially found that the motion was

filed “five years too late,” per Pa.R.Crim.P. 579(A). (Trial Court Opinion at

27). The court, however, looked beyond this procedural deficiency to

determine that the issue lacked merit where the following evidence from the

suppression hearings in August 2018 proved there was sufficient probable

cause to arrest Appellant: (1) Sergeant Martin and Lieutenant Bradley’s

testimony that Ms. Powell told them that the name of the man who shot her

was Brandon; (2) Sergeant Martin’s testimony that Ms. Powell described the

shooter as a white male with dark hair and explained that the shooter lived in

the 800 block of Addison Street; (3) Sergeant Martin’s testimony that he was

informed that Appellant was located at 808 Addison Street and, upon arriving

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Appellant’s second through fifth issues concern the admission of

evidence. “The admissibility of evidence is at the discretion of the trial court

and only a showing of an abuse of that discretion, and resulting prejudice,

constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-

98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014).

The term discretion imports the exercise of judgment,

wisdom and skill so as to reach a dispassionate conclusion,

within the framework of the law, and is not exercised for the

purpose of giving effect to the will of the judge. Discretion

must be exercised on the foundation of reason, as opposed

to prejudice, personal motivations, caprice or arbitrary

actions. Discretion is abused when the course pursued

represents not merely an error of judgment, but where the

judgment is manifestly unreasonable or where the law is not

applied or where the record shows that the action is a result

of partiality, prejudice, bias or ill will.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal

denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81

____________________________________________

at that location and being greeted by Appellant at the door, Sergeant Martin

noticed Appellant matched Ms. Powell’s description; (4) Sergeant Manfredi’s

testimony that one of his confidential informants (“CI”) told him that Appellant

was in the apartment next to the CI’s on Addison Street and had admitted to

shooting and/or killing somebody; and (5) Sergeant Manfredi’s testimony that

he learned that the shooter’s name was Brandon and he was a white male.

(Id. at 26-29). While Appellant has waived this issue on appeal for vagueness

in his Rule 1925(b) statement, we agree with the trial court’s analysis and

disposal of this issue as meritless.

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(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

In his second and third issues combined, Appellant argues the trial court

abused its discretion in refusing to permit Appellant to utilize the 911 phone

call from Ms. Powell’s neighbor, Mr. Lytle,4 to impeach Ms. Powell and

Lieutenant Stanek at trial. Regarding Ms. Powell, Appellant contends that,

even if the 911 call did not qualify as substantive evidence, the call still should

have been admitted as a prior inconsistent statement regarding who shot Ms.

Powell. Appellant asserts the following exchange would prove that “someone

other than [Appellant]” shot Ms. Powell:

911 Operator: …[A]ny idea who did this?

[Mr. Lytle]: I—her—she said her—her boyfriend.

911 Operator: What’s his name?

[Mr. Lytle]: What’s your boyfriend’s name? (Inaudible

response).

[Mr. Lytle]: Matthew.

911 Operator: Where’s he at?

[Mr. Lytle]: Matthew Mathias.

911 Operator: Matthew Mathias?

[Mr. Lytle]: Yes.

(Appellant’s Brief at 21) (citing the Transcription of the 911 Call, dated

1/8/13).

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4 Mr. Lytle identified himself on the 911 call as his son-in-law, Bo Fleming.

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Regarding Lieutenant Stanek, Appellant maintains he should have been

permitted to utilize the 911 call to impeach Lieutenant Stanek where Appellant

asserts Lieutenant Stanek’s testimony “clearly leads the jury to believe that

Appellant was the only suspect.” (Appellant’s Brief at 35). Specifically,

Appellant takes issue with the following testimony from Lieutenant Stanek on

direct examination:

The common theme throughout this was that the shooter

had been identified by first name, and that first name was

Brandon, and that had come from the officers who were

arriving on scene who had talked with the surviving victim,

Michelle Powell. They were telling me this—that, you know,

it was Brandon.

(Id. at 34) (citing N.T. Trial, 3/13/19, at 438). Appellant avers that, in

contrast to Lieutenant Stanek’s testimony, Appellant was not the only possible

suspect where the 911 call “evidenced that [Mr. Mathias] shot [Ms.] Powell.

Not…Appellant.” (Appellant’s Brief at 35). Appellant concludes this Court

should overturn his convictions, vacate his judgment of sentence, and remand

for a new trial. We disagree.

The Pennsylvania Rules of Evidence provide:

Rule 613. Witness’s Prior Inconsistent Statement to

Impeach; Witness’s Prior Consistent Statement to

Rehabilitate

(a) Witness’s Prior Inconsistent Statement to

Impeach. A witness may be examined concerning a prior

inconsistent statement made by the witness to impeach the

witness’s credibility. The statement need not be shown or

its contents disclosed to the witness at that time, but on

request the statement or contents must be shown or

disclosed to an adverse party’s attorney.

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(b) Extrinsic Evidence of a Witness’s Prior

Inconsistent Statement. Unless the interests of justice

otherwise require, extrinsic evidence of a witness’s prior

inconsistent statement is admissible only if, during the

examination of the witness,

(1) the statement, if written, is shown to, or if not

written, its contents are disclosed to, the witness;

(2) the witness is given an opportunity to explain or

deny the making of the statement; and

(3) an adverse party is given an opportunity to

question the witness.

This paragraph does not apply to an opposing party’s

statement as defined in Rule 803(25).

Pa.R.E. 613(a)-(b). “Our courts long have permitted non-party witnesses to

be cross-examined on prior statements they have made when those

statements contradict their in-court testimony.” Commonwealth v.

Carmody, 799 A.2d 143, 148 (Pa.Super. 2002). “Such statements [are]

known as prior inconsistent statements….” Id. “A party may impeach the

credibility of an adverse witness by introducing evidence that the witness has

made one or more statements inconsistent with his [or her] trial testimony.”

Commonwealth v. Bailey, 469 A.2d 604, 611 (Pa.Super. 1983).

Nevertheless, “[m]ere dissimilarities or omissions in prior statements…do not

suffice as impeaching evidence; the dissimilarities or omissions must be

substantial enough to cast doubt on a witness’ testimony to be admissible as

prior inconsistent statements.” Id. Additionally, “it must be established that

the witness, in fact, made the allegedly inconsistent statement.”

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Commonwealth v. Woods, 710 A.2d 626, 630 (Pa.Super. 1998), appeal

denied, 556 Pa. 709, 729 A.2d 1129 (1998).

Instantly, regarding Appellant’s claims concerning Ms. Powell, the 911

recording was comprised of communications between Mr. Lytle and the 911

operator. Ms. Powell did not participate in the call. The following discussion

occurred at sidebar concerning this issue:

[Defense Counsel]: It’s a gentleman named John Lytle. He

calls 911. This was provided to me by the Government in

discovery. And he is with the witness and she’s bleeding.

They are in his home. He is on the 911 call. The 911

operator says, do we know who shot her. He says, who shot

you. And you can hear her groaning in the background. And

John Lytle says, her boyfriend. The 911 operator said, what

is his name. John Lytle says what is your name. Matthew,

Matthew. What’s his last name. Mathias.

The Court: Can you hear her on the tape?

[Defense Counsel]: You can hear her groaning.

[The Commonwealth]: Moaning.

[Defense Counsel]: You can hear her moaning.

[The Commonwealth]: So the nature of the 911 call,

Your Honor, is that it’s her groaning in the background.

There is a man speaking and that man is speaking to the

caller on the 911 call. Both of those people are available

and could be called as witnesses to testify.

[The Commonwealth]: We are objecting because she is

not the one that is on the 911 call. He is a third party in

this.

[The Commonwealth]: Relaying it.

[The Commonwealth]: Relaying it. So if he wants to

play that after he calls these people, maybe that’s how you

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lay the foundation for it. I don’t think you can play the 911

tape from a third party relaying information from her

because you can’t determine the accuracy of it.

The Court: Can you hear her saying my boyfriend or do

you just hear her groaning?

[Defense Counsel]: You just hear groaning.

[The Commonwealth]: And so that’s one person’s

interpretation to another person on 911.

(N.T. Trial, 3/11/19, at 127-28).

This sidebar discussion makes clear that it was Mr. Lytle’s statement on

the 911 call concerning who the shooter was, not Ms. Powell’s. As the trial

court explained: “By defense counsel’s admission, Ms. Powell can only be

heard groaning on the recording. There is nothing within the 911 recording

to indicate the victim’s statement of who shot her. Furthermore, it is not

appropriate to attempt to impeach Ms. Powell with the caller’s, Mr. Lytle’s,

interpretation of what she may or may not have said immediately after being

shot…” (Trial Court Opinion at 35-36). We agree with the trial court’s

explanation.

Similarly, regarding Lieutenant Stanek, the 911 call does not include

any statements which could be used as impeachment evidence against him.

As previously stated, the call occurred between Mr. Lytle and a 911 operator.

Lieutenant Stanek was not involved. Thus, we conclude the court properly

precluded the 911 call as impeachment evidence against Ms. Powell and

Lieutenant Stanek. See Ballard, supra; Woods, supra.

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In his fourth issue, Appellant argues the trial court abused its discretion

in denying the admission of DeChaunte Adams’ testimony regarding her

observations of “suspicious conduct” on the part of her paramour Mike Breese,

Ms. Powell’s son. Specifically, Appellant contends the trial court erred in

omitting Ms. Adams’ testimony that, on the night of the shooting, Mr. Breese

(1) sat in a dark room downstairs; (2) made no effort to go to the hospital to

check on his mother after learning of the shooting; and (3) ran up to the

bedroom and “put a gun in a drawer or took a gun from a drawer” and ran out

of the house. (Appellant’s Brief at 36-37). Appellant alleges this testimony

would have been relevant to support his theory that Mr. Breese, not Appellant,

shot and killed Mr. Mathias after growing tired of “the abuse [Mr.] Mathias

perpetrated against [Ms.] Powell, [Mr.] Breese’s Mother.” (Id. at 38).

Appellant concludes this Court should overturn his convictions, vacate his

judgment of sentence, and remand for a new trial. We disagree.

Pennsylvania Rule of Evidence 401 defines relevant evidence as follows:

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Pa.R.E. 401. “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.”

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Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904

(2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003).

“Once evidence is found to be relevant, it will be inadmissible only if its

probative value is substantially outweighed by the danger of unfair prejudice

or confusion.” Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa.Super.

1999), appeal denied, 568 Pa. 657, 795 A.2d 972 (2000).

Pennsylvania Rule of Evidence 403 provides:

Rule 403. Excluding Relevant Evidence for

Prejudice, Confusion, Waste of Time, or Other

Reasons

The court may exclude relevant evidence if its probative

value is outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.

Pa.R.E. 403.

Instantly, the trial court addressed this issue as follows:

The trial court submits that Ms. Adams’ testimony in this

regard was entirely irrelevant. Ms. Adams was going to

testify to her observations of Mr. Breese on the night of the

murder, even though there was no evidence that Mr. Breese

was involved in the killing of Mr. Mathias and shooting of

Ms. Powell. The evidence presented was overwhelming that

[Appellant] is the one who committed the shooting. The

testimony offered, that [Ms. Powell]’s son was upset and

looking for a gun after finding out that his mother had been

shot, was not probative to the issue. Furthermore, any

potential probative value of the evidence was outweighed

by the danger of misleading the jury. Allowing this evidence

to come in would only serve to confuse and mislead the jury.

Thus, it was proper to exclude Ms. Adams’ testimony

regarding her observations of Mr. Breese on the night in

question.

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(Trial Court Opinion at 41). We agree with the trial court’s analysis. Ms.

Adams’ testimony concerning her observations of Mr. Breese on the night in

question was completely irrelevant to establish who killed Mr. Mathias and

shot Ms. Powell, where there was no evidence that Mr. Breese was involved.

That Mr. Breese sat in a dark room, did not go to the hospital to see his

mother, and possibly “put a gun in a drawer or took a gun from a drawer” do

nothing to prove that he was involved in the shootings or that Appellant was

not. See Pa.R.E. 401; Drumheller, supra. Thus, Appellant is not entitled

to relief on this claim.

In his fifth issue, Appellant argues the trial court erred in granting the

Commonwealth’s motion in limine seeking to prohibit licensed psychologist

and expert witness, Dr. Michael Crabtree, from testifying as to the

voluntariness of Appellant’s confession. Appellant avers Dr. Crabtree would

have testified to Appellant’s brain damage, learning disability, and cognitive

impairments. Despite the trial court’s refusal to admit Dr. Crabtree’s

testimony on these topics, Appellant asserts the court seemingly reversed its

position on this issue in its September 14, 2018 order and opinion denying

Appellant’s suppression motion, acknowledging that testimony on such topics

was admissible, stating:

This jury instruction merely reiterates the proposition that

there are a variety of factors that must be considered when

determining whether a defendant has voluntarily waived his

Miranda rights before giving a confession. Any cognitive

disabilities of [Appellant] would be only one of multiple

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factors to determine the voluntariness of his confession, but

do not warrant that he should be treated as a juvenile.

(Appellant’s Brief at 44) (citing Trial Court’s Order and Opinion, filed 9/14/18,

at 17). Additionally, Appellant avers the court erred in relying on cases

involving false confession experts to reject Dr. Crabtree’s testimony where Dr.

Crabtree (1) was not a false confession expert, and (2) was offered to testify

to the very factors the jury must consider and weigh during deliberations (e.g.,

Appellant’s intelligence, education, mental state, etc.). Appellant maintains

Dr. Crabtree’s testimony concerned the voluntariness of Appellant’s

confession, which is “separate and distinct” from false confession testimony.

(Appellant’s Brief at 47).

Appellant further attacks the court’s decision to exclude Dr. Crabtree’s

testimony based upon the court’s observations of Appellant in the courtroom.

Appellant contends the court cannot make such a decision where the judge

was not an expert on neurological deficits, and the court’s opinion was “based

upon limited observations of Appellant 6 years after the night in question.”

(Id. at 49). Appellant concludes the omission of Dr. Crabtree’s testimony

denied him a fair trial and the court’s decision constitutes reversible error. We

disagree.

“[A] court’s decision to grant or deny a motion in limine is subject to an

evidentiary abuse of discretion standard of review.” Commonwealth v.

Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (en banc). Likewise, “[o]ur

standard of review in cases involving the admission of expert testimony is

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broad: 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) (internal citation and quotation marks

omitted). “An expert’s testimony is admissible when it is based on facts of

record and will not cause confusion or prejudice.” Id.

Pennsylvania Rule of Evidence 702 governs the admission of expert

testimony and provides:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of

an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the

relevant field.

Pa.R.E. 702. Furthermore, “[a]n expert may base an opinion on facts or data

in the case that the expert has been made aware of or personally observed.”

Pa.R.E. 703.

Additionally, “[t]here has been a long-standing policy in this

Commonwealth of protecting the jury’s prerogative to determine credibility

from the undue influence that accompanies expert testimony on the subject

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of credibility of witnesses.” Commonwealth v. Pugh, 101 A.3d 820, 822

(Pa.Super. 2014) (en banc), appeal denied, 632 Pa. 670, 117 A.3d 296 (2015)

(en banc). Significantly, our Supreme Court has held that “[e]xpert testimony

on the phenomenon of false confessions…invade[s] the jury’s exclusive role

as the sole arbiter of credibility.” Id. at 823 (relying on Commonwealth v.

Alicia, 625 Pa. 429, 92 A.3d 753 (2014)).

In Alicia, the defendant was charged with murder and related offenses.

During police questioning, the defendant ultimately confessed to shooting the

victim. The defendant later filed a motion for use of a false confessions expert,

claiming that defendant is of low intelligence and had been a SSI disability

beneficiary for most of his life due to mental health issues, and was susceptible

to making a false confession. The Commonwealth filed a motion to exclude

any such defense expert. The court permitted the expert’s proffered

testimony, in part, and the Commonwealth filed an interlocutory appeal. A

divided panel of this Court affirmed.

Nevertheless, our Supreme Court reversed, holding that “expert

testimony [regarding false confessions] constitutes an impermissible invasion

of the jury’s role as the exclusive arbiter of credibility.” Id. at 446, 92 A.3d

at 764. The Court further stated: “[T]he matter of whether [the defendant’s]

confession is false is best left to the jury’s common sense and life experience,

after proper development of relevant issues related to, inter alia, the particular

circumstances surrounding the elicitation of his confession, using the

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traditional and time-honored techniques of cross-examination and argument.”

Id. at 447, 92 A.3d 764.

Instantly, after taking into consideration Dr. Crabtree’s original and

amended reports, as well as the Commonwealth’s and defense counsel’s

arguments, the court granted the Commonwealth’s motion in limine and

excluded Dr. Crabtree’s testimony. The court reasoned:

Review of the amended expert report of the proposed

defense expert, Dr. Crabtree, dated March 4, 2019, reveals

that the amended report is not significantly different from

his original expert report dated October 16, 2018, which the

court excluded following argument on the Commonwealth’s

previous motion in limine, by order dated October 30, 2018.

Both the original report and amended report of Dr. Crabtree

opine as to [Appellant]’s ability to understand the waiver of

his constitutional rights and to understand the questions

that were asked of him by police. As such, Dr. Crabtree’s

opinions go directly to the voluntariness of his confession

and invade the province of the jury, in contravention to the

case law set forth in [Alicia, supra] and [Pugh, supra].

Unlike the defendant in Pugh, [Appellant] has never

recanted his confession or claimed that he did not

understand the nature of the Miranda warnings given to

him prior to the confession. Unlike the defendant in Alicia,

whose “IQ was 64, placing him in the range considered

mentally retarded,” [Appellant]’s IQ is 84, according to Dr.

Crabtree’s report, and according to the Torrance [State

Hospital] report dated September 23, 2015, his IQ is 93,

within the average range of intellectual ability. While Dr.

Crabtree’s expert report regarding [Appellant]’s learning

disabilities and fetal alcohol syndrome would be appropriate

for the penalty phase of the trial, should that occur, such

expert report is not admissible for the guilty phase of the

trial.

Following the hearings on [Appellant]’s Revised Omnibus

Pretrial Motion, the trial court entered an order denying the

motion to suppress the confession, finding that [Appellant]

knowingly and intelligently waived his Miranda rights. The

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court found that [Appellant] did not demonstrate any

cognitive impairment to police, or lack of understanding of

the waiver, or of the questions asked, or the charges. The

trial court further found no evidence that [Appellant] was

subjected to coercive tactics or unduly harsh conditions

during his questioning or that he lacked sufficient

intelligence to understand the waiver of his rights. The court

further noted that, based on the representations of counsel

regarding [Appellant]’s enhanced level of participation in his

defense (which [Appellant] continued to demonstrate during

jury selection), [Appellant] does not exhibit signs of

cognitive impairment which would have interfered with his

knowing, intelligent, and voluntary waiver of his Miranda

rights on the night the crimes were committed.

(Trial Court Opinion and Order, filed March 11, 2019, at 1-2). We agree with

the trial court’s analysis of this issue. Here, Dr. Crabtree’s expert report and

proposed testimony concerned Appellant’s inability to voluntarily confess to

the crimes at issue due to his cognitive impairments. Although Appellant

attempts to differentiate this case from that involving a “false confession

expert,” Dr. Crabtree’s proffered testimony would similarly conflict with the

jury’s responsibility to assess the credibility of Appellant’s confession. See

Alicia, supra; Pugh, supra. Thus, the trial court properly granted the

Commonwealth’s motion in limine to exclude Dr. Crabtree’s testimony, and

Appellant’s claim merits no relief. See Reese, supra; Watson, supra.

For purposes of disposition, we combine Appellant’s sixth, seventh, and

eighth issues.5 In these issues, Appellant argues that the trial court erred in

____________________________________________

5 Appellant failed to present separate argument sections in his brief regarding

issues seven and eight, which could warrant waiver. See Commonwealth

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denying his recusal motion where Appellant’s counsel produced sufficient

evidence of the trial court’s “personal animus” toward counsel. Appellant

avers the trial court exhibited personal animus toward counsel after counsel

requested the trial court remove Attorney Davis as co-counsel due to counsel’s

pending lawsuit against Attorney Davis’ cousin. Appellant contends counsel

explained to the court that Attorney Davis’ cousin hated counsel due to the

lawsuit, to which the trial court replied: “There are a lot of people who hate

you.” (Appellant’s Brief at 53). Appellant maintains counsel interpreted the

court’s comment to mean that the trial judge included himself in the group of

people who hated counsel. Additionally, Appellant asserts the trial court

refused to allow counsel to find alternative death penalty-certified co-counsel

and forced counsel to “draft, file, and present a Motion for Reconsideration”

before the court replaced Attorney Davis with Attorney Farrell. (Id. at 55).

Appellant additionally claims the court belittled the existence of the apparent

conflict with Attorney Davis, and stated the conflict existed only “in the mind”

of counsel. (Id.) As further evidence of the court’s “personal animus” toward

____________________________________________

v. Buterbaugh, 91 A.3d 1247, 1262 (Pa.Super. 2014) (stating: “The

Pennsylvania Rules of Appellate Procedure require that each question an

appellant raises be supported by discussion and analysis of pertinent

authority, and failure to do so constitutes waiver of the claim”). See also

Pa.R.A.P. 2119(a) (stating argument section shall be divided into as many

sections as there are questions presented, followed by discussion and citations

to pertinent legal authorities). Nevertheless, Appellant has apparently

combined all these arguments together as the sixth issue in his brief. Thus,

we choose to address them here.

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counsel, Appellant also alleges the court failed to pay a $5,000.00 bill that

counsel submitted, but the court managed to pay a $27,000.00 bill for

Attorney Farrell. Appellant emphasizes that in order to be paid, counsel had

to sue the trial judge.

Appellant further asserts that he presented his recusal petition in a

timely manner and, at the presentation of the recusal motion, the trial judge

“became so enraged that he prevented a record of the presentation

proceedings from being made by the Court Stenographer,” and prevented the

proceedings from being audio recorded as well. (Id. at 56). Based upon

these actions by the trial judge, Appellant alleges the court’s statement in its

opinion that Appellant “has failed to offer any evidence” is disingenuous where

the trial court prevented any record from being created for this issue. (Id. at

56) (citing Trial Court Opinion, filed June 12, 2020, at 17-18). Appellant

concludes the trial court erred in denying the recusal motion and, if this Court

should grant a new trial, it should ensure that a different judge preside over

the proceedings. We disagree.

“[A] party seeking recusal or disqualification must raise the objection at

the earliest possible moment or that party will suffer the consequence of being

time barred.” Commonwealth v. Pappas, 845 A.2d 829, 846 (Pa.Super.

2004), appeal denied, 580 Pa. 712, 862 A.2d 1254 (2004). Furthermore, “[i]t

is the burden of the party requesting recusal to produce evidence establishing

bias, prejudice or unfairness which raises a substantial doubt as to the jurist’s

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ability to preside impartially.” Commonwealth v. Birdsong, 611 Pa. 203,

222, 24 A.3d 319, 330 (2011). “In considering a recusal request, the jurist

must first make a conscientious determination of his or her ability to assess

the case in an impartial manner, free of personal bias or interest in the

outcome.” Commonwealth v. Flor, 606 Pa. 384, 443, 998 A.2d 606, 641-

42 (2010), cert. denied, 563 U.S. 941, 131 S.Ct. 2102, 179 L.Ed.2d 900

(2011). “The jurist must then consider whether his or her continued

involvement in the case creates an appearance of impropriety and/or would

tend to undermine public confidence in the judiciary.” Id. at 443, 998 A.2d

at 642.

Instantly, the court appointed Attorney Davis as co-counsel on August

22, 2017, and Appellant filed a motion for reconsideration of the appointment

on September 12, 2017. The court granted counsel’s request on September

18, 2017, appointed Attorney Farrell as co-counsel, and rescinded the order

appointing Attorney Davis. Appellant, however, waited to file his recusal

motion until December 4, 2017. Thus, Appellant’s motion is arguably

untimely. See Pappas, supra. See e.g., Lomas v. Kravitz, 642 Pa. 181,

170 A.3d 380 (2017) (determining recusal issue was waived where appellant

filed motion more than one month after all facts supporting motion had been

disclosed).

Moreover, even if Appellant’s motion was timely filed, it would merit no

relief. Appellant’s arguments concerning recusal focus on counsel’s and the

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court’s interactions, and apparent disagreements, over replacing Attorney

Davis with Attorney Farrell as co-counsel. Appellant contends the court made

disparaging remarks toward counsel, repeatedly refused counsel’s request to

appoint Attorney Farrell, and caused counsel to spend time “draft[ing], fil[ing],

and present[ing] a Motion for Reconsideration.” Ultimately, however,

Appellant and counsel got their way, and the court agreed to appoint Attorney

Farrell as co-counsel and remove Attorney Davis as co-counsel. Furthermore,

Appellant’s remaining complaints concern issues that occurred after the filing

of the recusal motion. Appellant has therefore failed to present sufficient

evidence of any bias, prejudice, or unfairness, and the trial court properly

denied Appellant’s recusal motion. See Birdsong, supra; Flor, supra.

Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2021

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