Com. v. Stiver, J.

J-S24044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOHN P. STIVER :

:

Appellant : No. 907 WDA 2020

Appeal from the Judgment of Sentence Entered July 31, 2020

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0001897-2018

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 27, 2021

Appellant John P. Stiver appeals from the judgment of sentence of life

imprisonment entered in the Court of Common Pleas of Blair County on July

31, 2020, following his convictions of first-degree murder1 and numerous,

related offenses after a five-day jury trial which commenced on January 27,

2020, and ended on January 31, 2020. Following a careful review, we affirm.

On July 26, 2018, after an unsuccessful drug deal which had occurred

earlier that day, Appellant shot and killed David Hoover. The trial court set

forth the relevant facts leading up to the homicide as follows:

This case boils down to the Appellant, Dillion Bryan and

Edward “Cowboy” Clemens lying in wait for Mark Adams and the

decedent, David Hoover, in the church parking lot at Bethany

Lutheran Church. On July 26, 2018 at approximately 2:16 p.m.,

there was a prior drug transaction at the Sheetz Store on Chestnut

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2502.

J-S24044-21

Avenue wherein Edward “Cowboy” Clemens rode with the

Appellant to the Sheetz Store. Clemens entered the store and

made a drug transaction with David Hoover in the men's restroom.

The agreement was that Clemens would provide an 8 ball of

cocaine for $250. Within the Sheetz Store, Clemens obtained the

$250 from Hoover and also provided two Klonopin pills for $10.

The two Klonopin pills came from the Appellant as there were prior

arrangements between Clemens and the Appellant to obtain such

Klonopins, including specifically a text message about obtaining

“pins”. It was the intent of both Clemens and the Appellant to

“burn” Hoover. They had no intent to provide him the 8 ball of

cocaine on the date in question. Clemens confirmed that the

Appellant was part of the plan to burn Hoover. Clemens claimed

that Hoover had stolen $360 from an envelope within his

residence at a prior time. Clemens took the $250, returned to

[Appellnt’s] vehicle, and they drove away. [R.R. # 47, E. Clemen's

testimony, 1/28/20, pp. 111-114]. Hoover went to Mark Adam's

vehicle and waited. Clemens had told him to wait and that he

would be back in approximately 15 minutes. [R.R. #47, M. Adams,

1/28/20, pp. 50-53].

After Hoover and Adams waited about 30-45 minutes, they

realized that they had been burned. Hoover tried to call Clemens

twenty-five (25) times without success. [R.R. # 54, Detective D.

Dey, 1/29/20, pp. 184-189; [R.R. #45, Sergeant Merritts,

1130/20, p. 101], At that time, Adams returned to work. [R.R.

#47, M. Adams, 1/28/20, pp. 53-54].

After Adams got off work at 4:00 p.m., he picked up Hoover

and they drove through Altoona looking for Clemens with the

intent to get their money back. They found Clemens with 2 other

people (including the Appellant) in an alley at Third Avenue.

Adams revealed to Hoover that he had a bat in the trunk of his

white Chevrolet Malibu. Hoover retrieved the bat and walked over

toward Clemens and his two companions. Clemens yelled “I'll get

your money”, at which time the other two individuals (the

Appellant and Bryan) got into the Ford Fusion and left. [R.R. #47,

M. Adams, 1/28/20, pp. 54-60]. There was ultimately a high

speed chase through Altoona wherein Adams and Hoover lost the

Appellant and Clemens. [R.R. #47, M. Adams, 1/28/20, p. 60].

The Appellant ultimately drove to the church parking lot and

parked the vehicle. Clemens was walking along the alley and then

hid behind a dumpster. He also hid hypodermic needles, which

were later found by police. [R.R. # 47, Patrolman Trent, 1/28/20,

pp. 19-20]; [R.R. # 53, Patrolman M. Angermeier, 1/27/20, p.

188]. When the Appellant arrived on scene and parked his vehicle,

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Clemens walked toward the vehicle. The Appellant got out of the

vehicle, went to his trunk, obtained the shotgun and put it in his

backseat. [R.R. #45, Sergeant Merritts, 11/30/20, pp. 92-93].

The Appellant admitted this in his statement to Sergeant Merritts.

The white Chevrolet Impala, in which Adams was driving and

David Hoover was a passenger, then stopped in the alley by the

parking lot. [R.R. # 47, M. Adams, 1/28/20, pp. 62-63]. Hoover

got out of the vehicle, walked around the back of the Appellant's

blue Ford Fusion, went along the passenger side, carrying a

baseball bat. Hoover did not possess a gun. At no time did Hoover

enter the vehicle, nor attempt to enter the vehicle, nor attempt to

remove the Appellant or Bryan from the vehicle. At no time did

Hoover threaten anyone. The Appellant subsequently backed up

his vehicle, reached out the driver's window and shot Hoover with

the 12-gauge shotgun that he obtained from his father's

residence. The Appellant then drove away at a high rate of speed.

[R.R. #47, M. Adams, 1/28/20, pp. 63-67, 81-82].

Clemens confirmed that when he got back into the blue Ford

Fusion after the incident (which he claimed he did not witness),

that the Appellant stated “I killed him,” referring to Hoover. [R.R.

#47, E. Clemens, 1/28/20, p. 119].

The forensic pathologist, Dr. Kevin Whaley, testified that

Hoover was approximately 10 to 12 feet away from the Appellant

when the shot occurred. Hoover subsequently fell to the ground

and laid dying in the parking lot, surrounded by a pool of blood.

[R.R. #54, Dr. Whaley, 1129120, pp. 145,158-161]. These events

were confirmed by the testimony of Mark Adams (whom the jury

found to be a credible witness), the surveillance videos of

neighbors, and as re-created by the computer generated

animation (CGA). The entire incident lasted only approximately 40

seconds. After the shooting, the Appellant was observed speeding

down an alleyway, captured by surveillance video. [R.R. #47,

Patrolman G. Trent, 1/28/20, p. 32; M. Adams, 1/28/20, p. 67];

[R.R. #45, Sergeant Merritts, 1/30/20, p. 115]. Bryan was in the

Appellant's car. An individual who appeared to be Clemens was

seen running from the scene. Adams drove his white vehicle

around Hoover's body, out the alley, then took a left onto Second

Avenue and parked. [R.R. #46, M. Adams, 1/31/20, pp. 37-38].

Adams called 911 and waited on scene until the police arrived.

[R.R. #47, M. Adams, 1/28/20, pp. 67-68, 72]; [R.R. #53,

Patrolman M. Miller, 1127120, pp. 122-124]; [R.R. #45, Sergeant

Merritts, 1/30/20, p. 79].

Trial Court Opinion, filed 3/26/21, at 86-90.

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On February 11, 2020, Appellant filed his Post-Trial Motion. Contained

therein was a “Motion for a Mistrial based on a Brady[2] Violation” and “Motion

to Dismiss Criminal Charges Due to Prosecutorial Misconduct.” On February

24, 2020, Appellant filed his Amended Post-Trial Motion wherein he added

subsections entitled “Prejudiced Juror Should Not Have Been Allowed to

Deliberate” and “Motion for Judgment Notwithstanding the Verdict.” Following

a hearing on July 7, 2020, the trial court denied Appellant’s Post- Trial Motions

along with Appellant’s Petition to Reopen on July 30, 2020.

Appellant was sentenced on July 31, 2020, to life in prison and

concurrent prison terms for his non-merging convictions. On August 26, 2020,

Appellant filed a timely Notice of Appeal. The trial court ordered Appellant to

file a concise statement of matters complained of on appeal on August 27,

2020, and Appellant complied on September 17, 2020, at which time he

presented fourteen (14) issues for the trial court’s review.

In his brief, Appellant presents the following Statement of the Questions

Involved:

I. Whether the denial of court-appointed experts to an indigent

defendant in a self-defense case to challenge the positions and

shot trajectory deprived [Appellant] of his Fifth Amendment Rights

and fundamental Due Process.

II. Whether the trial court erred in allowing the Commonwealth to

present a Computer-Generated Animation solely based on its

version of the incident after denying an indigent [Appellant’s]

____________________________________________

2 Brady v. Maryland, 373 U.S. 83 (1963).

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request for a similar opportunity of experts given the severity of

the charges and complexity of the evidence.

III. Whether failing to preserve exculpatory evidence – and denial

of opportunity to introduce evidence of Brady violation – violated

[Appellant’s] Due Process rights.

IV. Whether impermissible juror bias and prejudgment of guilt

deprived [Appellant] of a fair trial.

V. Whether introduction of ancient convictions to impeach a

defense witness was prejudicial error.

VI. Whether denying application of the Castle Doctrine to

[Appellant] using deadly force in self-defense from an Aggressor

with deadly weaponry while occupying his vehicle was erroneous.

VII. Whether the exclusion of evidence regarding a witness’

mental health condition was reversible error.

VIII. Whether introduction of gruesome and inflammatory autopsy

photographs lacking probative value was prejudicial error.

IX. Whether the denial of severance of charges unduly prejudiced

Mr. Stiver.

X. Whether the denial of judgment notwithstanding the verdict

was error where the evidence was insufficient to establish guilt of

murder to shock one’s conscience requiring reversal.

Brief for Appellant at 8-9.

This Court reviews each of Appellant’s issues under the following

standards of review:

Appellant’s first issue challenges the trial court’s decision not to appoint

him an expert although he was an indigent defendant. In criminal matters,

our standard of review of challenges related to the appointment of an expert

witness for the defense is as follows:

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The provision of public funds to hire experts to assist in the

defense against criminal charges is a decision vested in the sound

discretion of the [trial] court and a denial[,] thereof[,] will not be

reversed absent an abuse of that discretion.

Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa.Super. 2008), appeal

denied, 964 A.2d 893 (Pa. 2009). Moreover,

[i]t is well-established that indigent defendants have a right to

access the same resources as non-indigent defendants in criminal

proceedings. The state has an affirmative duty to furnish indigent

defendants the same protections accorded those financially able

to obtain them. Procedural due process guarantees that a

defendant has the right to present competent evidence in his

defense, and the state must ensure that an indigent defendant

has fair opportunity to present his defense.

Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa.Super. 2016) (citations

and quotation marks omitted), appeal denied, 145 A.3d 724 (Pa. 2016). The

Commonwealth, however, “is not obligated to pay for the services of an expert

simply because a defendant requests one.” Konias, 136 A.3d at 1020-1021

(citation omitted). Rather, the defendant must demonstrate “the content and

relevancy of the proposed expert testimony before such a request will be

granted.” Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.Super. 2005)

(citation omitted). A request for an expert witness, whose necessity is based

upon mere speculation as to the assistance the expert will provide to the

defense, does not warrant the appropriation of public funds. Commonwealth

v. Harris, 703 A.2d 441, 449 (Pa. 1997), cert. denied, 525 U.S. 1015 (1998).

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Appellant’s second, seventh and eighth issues challenge the trial court’s

evidentiary rulings. The following standard governs this Court’s review of the

admissibility of evidence:

Admission of evidence is within the sound discretion of the

trial court and will be reversed only upon a showing that the trial

court clearly abused its discretion. Admissibility depends on

relevance and probative value. Evidence is relevant if it logically

tends to establish a material fact in the case, tends to make a fact

at issue more or less probable or supports a reasonable inference

or presumption regarding a material fact.

Judicial discretion requires action in conformity with law,

upon facts and circumstances judicially before the court, after

hearing and due consideration. An abuse of discretion is not

merely an error of judgment, but if in reaching a conclusion the

law is overridden or misapplied or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice,

bias, or ill will, as shown by the evidence or the record, discretion

is abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa.Super. 2011)

(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13–14 (Pa. Super.

2006) (en banc ) (internal citations omitted)).

The admission of demonstrative evidence, like a computer-generated

animation, requires a trial court to weigh the possible probative value and

prejudicial effects of the animation. This is a matter within the discretion of

the trial judge which this Court will not overturn absent an abuse of that

discretion. See Commonwealth v. Serge, 586 Pa. 671, 682, 896 A.2d 1170,

1177 (2006); Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856, 858

(1973).

Furthermore, our Supreme Court has explained that

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[w]hen a witness suffers from a mental disability relevant to his

or her ability to accurately observe, recall or report events, the

jury must be informed of the disability in order to assist it in

properly assessing the weight and credibility of the witness's

testimony. The evidence can be said to affect credibility when it

shows that the witness's mental disorganization impaired his or

her capacity to observe an event at the time of its occurrence, to

maintain a clear recollection of it, or to communicate the

observation accurately and truthfully at trial.

Commonwealth v. Davido, 630 Pa. 217, 260, 106 A.3d 611, 637 (2014)

(citations omitted).

When considering the admissibility of photographs of a homicide victim,

which by their very nature can be quite disturbing, the trial court must engage

in a two-step analysis:

First a trial court must determine whether the photograph

is inflammatory. If not, it may be admitted if it has relevance and

can assist the jury's understanding of the facts. If the photograph

is inflammatory, the trial court must decide whether or not the

photographs are of such essential evidentiary value that their

need clearly outweighs the likelihood of inflaming the minds and

passions of the jurors.

Commonwealth v. Pruitt, 597 Pa. 307, 327,951 A.2d 307, 319 (2008)

(internal brackets and citation omitted). As the Supreme Court recognized,

photographic images of a homicide victim are often relevant to determining

the intent element of the crime of first-degree murder. Id.

Thirdly, Appellant asserts his due process rights were violated as a result

of the Commonwealth’s failure to preserve and provide him with certain

exculpatory evidence. This issue presents a question of law, for which our

standard of review is de novo and our scope of review is plenary.”

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Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa.2020). Our Supreme

Court summarized the law relevant to the adjudication of such claims as

follows:

The law governing alleged Brady violations is well-settled.

In Brady, the United States Supreme Court held that the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution. The Supreme Court

subsequently held that the duty to disclose such evidence is

applicable even if there has been no request by the accused, and

that the duty may encompass impeachment evidence as well as

directly exculpatory evidence. Furthermore, the prosecution's

Brady obligation extends to exculpatory evidence in the files of

police agencies of the same government bringing the prosecution.

On the question of materiality, the Court has noted that such

evidence is material if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different. The materiality inquiry is

not just a matter of determining whether, after discounting the

inculpatory evidence in light of the undisclosed evidence, the

remaining evidence is sufficient to support the jury's conclusions.

Rather, the question is whether the favorable evidence could

reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict. Thus, there are three

necessary components that demonstrate a violation of the Brady

strictures: the evidence was favorable to the accused, either

because it is exculpatory or because it impeaches; the evidence

was suppressed by the prosecution, either willfully or

inadvertently; and prejudice ensued.

Commonwealth v. Lambert, 584 Pa. 461, 470-71, 884 A.2d 848, 853-54

(2005).

Next, Appellant sets forth a biased juror claim as a result of Juror

Number Eleven’s statements made at the outset of the last day of trial. In

this regard, this Court has stated the following:

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“The decision to discharge a juror is within the sound

discretion of the trial court and will not be disturbed absent an

abuse of that discretion.” Commonwealth v. Carter, 537 Pa.

233, 643 A.2d 61, 70 (1994). “This discretion exists even after

the jury has been [e]mpanelled and the juror sworn.” Id.

(emphasis added). Our Supreme Court explained that “a finding

regarding a venireman's impartiality ‘is based upon

determinations of demeanor and credibility that are peculiarly

within a trial [court]'s province. ... [Its] predominant function in

determining juror bias involves credibility findings whose basis

cannot be easily discerned from an appellate record.’ ” Smith,

540 A.2d at 256 (quoting Wainwright v. Witt, 469 U.S. 412,

428–29, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). It is the

appellant's burden to show that the jury was not impartial.

Commonwealth v. Noel, 629 Pa. 100, 104 A.3d 1156, 1169

(2014). Further, this Court has found that per se prejudice does

not result where a juror becomes upset during the trial. See

Commonwealth v. Pander, 100 A.3d 626, 632 (Pa.Super. 2014)

(en banc ).

In Commonwealth v. Briggs, [608 Pa. 430, 12 A.3d 29

(2011)] our Supreme Court set forth the standard for prospective

juror disqualification:

The test for determining whether a prospective juror

should be disqualified is whether he is willing and able

to eliminate the influence of any scruples and render a

verdict according to the evidence, and this is to be

determined on the basis of answers to questions and

demeanor. ... It must be determined whether any biases

or prejudices can be put aside on proper instruction of

the court. ... A challenge for cause should be granted

when the prospective juror has such a close relationship,

familial, financial, or situational, with the parties,

counsel, victims, or witnesses that the court will

presume a likelihood of prejudice or demonstrates a

likelihood of prejudice by his or her conduct or answers

to questions.

608 Pa. 430, 12 A.3d 291, 333 (2011) (quoting Commonwealth

v. Cox, 603 Pa. 223, 983 A.2d 666, 682 (2009)).

While most cases address the issue of prospective jurors,

we have employed the same analysis in cases where a question

arises about a juror's impartiality during trial. See Pander, 100

A.3d at 632 (“While Hale and the cases discussed therein involved

juror challenges prior to trial, we find the discussion therein apt

....”); Carter, 643 A.2d at 70 (“Th[e trial court's] discretion exists

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even after the jury has been [e]mpanel[ ]ed and the juror

sworn.”).

Commonwealth v. Rush, 162 A.3d 530, 537–38 (Pa.Super. 2017)

(emphasis in original, some brackets added).

In his fifth question, Appellant argues the trial court erred in permitting

the Commonwealth to impeach a defense witness with numerous convictions,

including burglary and theft, that occurred decades prior to trial. With regard

to the impeachment of witnesses for prior offenses, this Court has observed

that:

“[f]or the purpose of attacking the credibility of any witness,

evidence that the witness has been convicted of a crime, whether

by verdict, or by plea of guilty or nolo contendere, shall be

admitted if it involved dishonesty or false statement.” Pa.R.E.

609(a). “Crimes involving dishonesty or false statement [are]

commonly referred to as crimen falsi crimes.” Commonwealth v.

Moser, 999 A.2d 602, 607 (Pa.Super. 2010). “[C]rimen falsi

involves the element of falsehood, and includes everything which

has a tendency to injuriously affect the administration of justice

by the introduction of falsehood and fraud.” Commonwealth v.

Jones, 334 Pa. 321, 323, 5 A.2d 804, 805 (1939).

Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.Super. 2011). If the

conviction is more than ten years old, it “is admissible only if...its probative

value substantially outweighs its prejudicial effect...and the proponent gives

an adverse party reasonable written notice of the intent to use it so that the

party has a fair opportunity to contest its use.” Pa.R.E. 609(b).

Next, Appellant posits the trial court erred in failing to allow Appellant

to apply the Castle Doctrine to his alleged use of force in self-defense. In this

regard, this Court has stated:

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When a court instructs the jury, the objective is to explain to the

jury how it should approach its task and the factors it should

consider in reaching its verdict. In examining jury instructions, our

standard of review is to determine whether the trial court

committed a clear abuse of discretion or an error of law controlling

the outcome of the case. A charge will be found adequate unless

the issues are not made clear, the jury was misled by the

instructions, or there was an omission from the charge amounting

to a fundamental error. Moreover, in reviewing a challenge to a

jury instruction, the entire charge is considered, not merely

discrete portions thereof. The trial court is free to use its own

expressions[,] as long as the concepts at issue are clearly and

accurately presented to the jury.

Commonwealth v. Bradley, 232 A.3d 747, 759 (Pa.Super. 2020) (internal

citations, quotations, and original brackets omitted).

Appellant further claims his charges for Possession with Intent to Deliver

and Theft by Unlawful Taking should have been severed from the homicide

charges. Our standard of review of the denial of a motion to sever is as

follows: “Joinder and severance of separate indictments for trial is a

discretionary function of the trial court; consequently, the trial court's decision

is subject to review for abuse of that discretion.” Commonwealth v.

Brookins, 10 A.3d 1251, 1255 (Pa.Super. 2010), appeal denied, 610 Pa. 625,

22 A.3d 1033 (2011). In addition,

The traditional justification for permissible joinder of offenses or

consolidation of indictments appears to be the judicial economy

which results from a single trial. The argument against joinder or

consolidation is that where a defendant is tried at one trial for

several offenses, several kinds of prejudice may occur: (1) [t]he

defendant may be confounded in presenting defenses, as where

his defense to one charge is inconsistent with his defenses to the

others; (2) the jury may use the evidence of one of the offenses

to infer a criminal disposition and on the basis of that inference,

convict the defendant of the other offenses; and (3) the jury may

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cumulate the evidence of the various offenses to find guilt when,

if the evidence of each offense had been considered separately, it

would not so find.

Commonwealth v. Janda, 14 A.3d 147, 155 (Pa.Super. 2011) (quoting

Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981)).

“Thus[,] in arriving at a meaningful standard to guide the trial court in its

exercise of discretion, and to permit appellate courts to determine whether

the trial court abused this discretion, we must weigh the possibility of

prejudice and injustice caused by the consolidation against the consideration

of judicial economy.” Id.

Finally, Appellant states that in light of all of the aforesaid, the trial

court’s failure to grant his motion for Judgment for Acquittal or Judgment

Notwithstanding the Verdict constitutes reversible error and the matter should

be remanded for a new trial. Specifically, Appellant avers he lacked the

requisite mental state to commit murder.3 We consider this issue mindful of

the following:

____________________________________________

3 A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing. 18 Pa.C.S.A. § 2502. Intentional killing is

defined as “killing by means of poison, or by lying in wait, or by any other kind

of willful, deliberate and premeditated killing.” Id. To establish the offense of

first-degree murder, the Commonwealth must prove, (1) a human being was

unlawfully killed; (2) the defendant was responsible for the killing; and (3) the

defendant acted with malice and a specific intent to kill. Commonwealth v.

Padilla, 80 A.3d 1238, 1244 (Pa. 2013). For first degree murder, a killing is

with malice if the perpetrator acts with an intent to kill; “it is the specific intent

to kill which distinguishes murder in the first degree from lesser grades of

murder.” Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. 2000).

(Footnote Continued Next Page)

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A motion for judgment of acquittal challenges the sufficiency

of the evidence to sustain a conviction on a particular charge, and

is granted only in cases in which the Commonwealth has failed to

carry its burden regarding that charge.

The standard of review for claims of insufficient evidence is

well-settled. With respect to such claims, we consider the

evidence in the light most favorable to the Commonwealth as

verdict winner. In that light, we decide if the evidence and all

reasonable inferences from that evidence are sufficient to

establish the elements of the offense beyond a reasonable doubt.

We keep in mind that it was for the trier of fact to determine the

weight of the evidence and the credibility of witnesses. The jury

was free to believe all, part or none of the evidence. This Court

may not weigh the evidence or substitute its judgment for that of

the factfinder.

Commonwealth v. Devries, 112 A.3d 663, 667 (Pa.Super. 2015) (citations

omitted). “This standard is equally applicable to cases where the evidence is

circumstantial rather than direct so long as the combination of the evidence

links the accused to the crime beyond a reasonable doubt.” Commonwealth

v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014).

We have reviewed the certified record including the transcripts from the

five-day jury trial, Appellant’s brief, the applicable law, and the ninety-five

page, well-reasoned Opinion authored by the Honorable Timothy M. Sullivan

of the Blair County Court of Common Pleas and filed on March 26, 2021,

pursuant to Pa.R.A.P. 1925(a).

____________________________________________

“Specific intent to kill can be inferred from the use of a deadly weapon upon

a vital part of the victim's body.” See Commonwealth v. Padilla, 80 A.3d

1238, 1244 (Pa. 2013).

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Upon doing so, we conclude that Judge Sullivan’s Opinion precisely sets

forth the relevant standards of review this Court must employ in analyzing

each issue Appellant presents on appeal and meticulously and accurately

disposes of each claim mindful of the same. Applying the applicable standards

of review set forth above to the trial court’s analysis, we discern no abuse of

discretion or error of law.

Accordingly, we adopt Judge Sullivan’s Opinion as our own and affirm

the judgment of sentence on that basis. We direct the parties to attach the

trial court's opinion in the event of further proceedings in this matter.

Judgment of sentence affirmed.

Judge Kings joins the memorandum.

Judge Dubow files a concurring memorandum in which Judge King joins

and President Judge Emeritus Stevens concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2021

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Received 3/26/2021 11:45:27 AMCirculated 07/28/2021

Superior Court 12:49

Western PM

District

Filed 3/26/2021 11:45:00 AM Superior Court Western District

907 WDA 2020

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

APPELLEE SUPERIOR COURT DOCKET

907 WDA 2020

TRIAL COURT DOCKET NO:

CP-07-CR-0001897 —2018

V.

JOHN P. STIVER, 11,

APPELLANT

HON. TIMOTHY M. SULLIVAN PRESIDING JUDGE

PETER J. WEEKS, ESQUIRE DISTRICT ATTORNEY

NICHOLE M. SMITH, ESQUIRE FIRST ASST. DISTRICT ATTORNEY

KRISTEN L. ANASTASI, ESQUIRE COUNSEL FOR APPELLANT

OPINION PURSUANT TO RULE 1925(a) OF THE

PA RULES OF APPELLATE PROCEDURE

FACTUAL/PROCEDURAL HISTORY.

After jury trial held January 27-31, 2020, the Appellant, John P. Stiver, II, was

convicted of First Degree Murder and related charges for an incident which occurred

in the Bethany Lutheran Church parking lot within the City of Altoona, Blair County,

PA on Thursday, July 26, 2018. On such date, the Appellant shot and killed the

1

victim, David Hoover. The Co-Affiants were Detective Sergeant Terry Merritts and

Patrolman Nathan Snyder of the Altoona Police Department.

A Post Trial Motion was filed on behalf of the Appellant on February 11, 2020

[Reproduced Record #37]. An Amended Post Trial Motion was then filed on February

27, 2020. [R.R. #39]. A hearing was originally scheduled on April 15, 2020; however,

due to the Statewide Judicial Emergency and the closure of the courts to the public,

an Order was entered on April 2, 2020 [R.R. #42] continuing the matter. The hearing

was subsequently held on July 7, 2020 at which time the Appellant presented the

testimony of Kimberly A. Benton and her husband, Frank Benton, Jr. After

submissions of Memoranda of Law by both the Commonwealth [R.R. #55] and the

Appellant, we entered an Opinion and Order dated July 30, 2020 denying and

dismissing the Appellant's Amended Post Trial Motions, as well as the Appellant's

Petition to Reopen. [R.R. #56]. The matter proceeded to sentencing on July 31, 2020

at which time the Appellant received alife sentence for his conviction of Murder of the

First Degree and concurrent sentences relative to his non-merging convictions. [R.R.

#59].

2

On August 26, 2020, the Appellant timely filed a Notice of Appeal to the

Superior Court. [R.R. #63]. We entered a Rule 1925(b) Order on August 27, 2020

[R.R. #65] directing the Appellant to file his Concise Statement of Errors Complained

of on Appeal within twenty-one days' service of our Rule 1925(b) Order. The

Appellant complied, filing his Statement of Matters Complained of on Appeal on

September 17, 2020. [R.R. #67]. The Appellant raised fourteen separate alleged

errors which will be addressed below.

The Appellant's alleged errors involve issues which have been previously

addressed through pretrial and post trial motions and opinions issued by this court.

Rather than attach our pretrial and post trial opinions and orders as exhibits to this

Rule 1925(a) Opinion, we will incorporate and repeat same herein so that all of the

Appellant's alleged errors are addressed in one Opinion.

MATTERS COMPLAINED OF ON APPEAL:

1. Denial of Castle Doctrine Defense.

Applicable Law.

Our standard of review in regard to atrial court's decisions on jury instructions

is well-settled: "[O]ur standard of review when considering the denial of jury

instructions is one of deference-an appellate court will reverse acourt's decision only

3

when it abused its discretion or committed an error of law." Commonwealth v.

Galvin, 603 Pa. 625, 651, 985 A.2d 783, 798-99 (2009).

At issue are the following subsections of 18 Pa. C.S. §505:

(b) Limitations on justifying necessity for use of force

(2.1) Except as otherwise provided in paragraph (2.2), an

actor is presumed to have areasonable belief that deadly

force is immediately necessary to protect himself against

death, serious bodily injury, kidnapping or sexual

intercourse compelled by force or threat if both of the

following exist:

(i) The person against whom the force is

used is in the process of unlawfully and

forcefully entering, or has unlawfully and

forcefully entered and is present within, a

dwelling, residence or occupied vehicle; or the

person against whom the force is used is or is

attempting to unlawfully and forcefully remove

another against that other's will from the

dwelling, residence or occupied vehicle.

(ii) The actor knows or has reason to believe

that the unlawful and forceful entry or act is

occurring or has occurred.

(2.2) The presumption set forth in paragraph (2.1) does

not apply if:

4

(iii) the actor is engaged in acriminal activity or is using

the dwelling, residence or occupied vehicle to further a

criminal activity.

18 Pa. C.S. §505(b)(2.1), (2.2).

The "castle doctrine" is an evidentiary means by which a defendant

may attempt to prove justification by self-defense. The castle doctrine is

subject to a similar, initial standard by which courts must assess the

appropriateness of a self-defense instruction, namely, that a valid claim of

self-defense, or the castle doctrine, must be made out as amatter of law, and

this determination must be made by the trial judge. A court does not

necessarily assess burdens of proof when considering applicability of acastle

doctrine jury instruction, but instead whether there was any evidence to justify

the instruction. Commonwealth v. Cannavo, 199 A.3d 1282,1287-1288 (Pa.

Super. 2018).

5

Discussion.

During the fifth and final day of trial, January 31, 2020, we entertained

oral argument from counsel relative to whether we should charge the jury on

the castle doctrine. The following constitutes the arguments placed on record

by counsel:

ATTORNEY ANASTASI: Judge, we have argument on the

Castle Doctrine. Ibelieve that that would go one step

further, meaning, Mr. Stiver would not have the duty to

retreat. Castle Doctrine does extend to occupied vehicles.

He was in his occupied vehicle at the time. We contend he

was not engaged in criminal activity. Criminal activity was

defined as either a misdemeanor or a felony at the time.

He did not have that. The only thing they do have, the

firearm, but he's only charged with a summary, so, that

would take that out of the criminal activity portion that the

statute requires. If the Commonwealth would argue that

the drug deal or the theft is part of the criminal activity to

meet that requirement for him to have aduty to retreat, the

case law when they're talking about it is it's

contemporaneous, like, the person couldn't receive the

Castle Doctrine in his house because he had afirearm and

he's 6105, he can't possess afirearm. This deal -- the drug

deal and the theft occurred three and a half hours prior to

the use of force. We believe that that is nowhere close in

time in being contemporaneous that the Courts have

carved out, Imean, it's very sparse law on this part of the

Castle Doctrine but the cases that we do have, it's

immediate. What they are doing, having the gun in his

hand when he's 6105 and he can't have it, something to

that effect but they don't contemplate activity -- criminal

activity hours prior to and then, Imean, if it took these guys

aweek to find him, then he can't use the Castle Doctrine in

his house because aweek ago, there was adrug deal. So,

we would state that the Castle Doctrine does apply, which

6

would permit Mr. Stiver not have to retreat. That's all.

Thank you.

BY THE COURT: Attorney Anastasi, thank you. Attorney

Weeks.

ATTORNEY WEEKS: Thank you, Your Honor. Your Honor,

I would initially point out that Attorney Anastasi has

advanced no evidence in this case that Mr. Hoover was

attempting to enter the vehicle of the defendant. That is a

requirement of the Castle Doctrine. Not even Dillion Bryan

advanced any claim that the decedent was attempting to

enter. Dillion Bryan did testify that he believed Mr. Hoover

was striking the car multiple times with a bat; never said

anything about an attempt to enter the vehicle. For that

reason and that reason alone, the Castle Doctrine would

not be available in this case. Even assuming arguendo that

some witness had been produced by Attorney Anastasi that

claimed the decedent was trying to enter the vehicle, this

defendant is involved in criminal activity in numerous ways.

Initially, he illegally has possession of a firearm that's

loaded in his vehicle. That is for Your Honor to determine.

He has, Isubmit, we have shown evidence that he had

controlled substances in his pocket. More pertinently, we

have shown evidence that he had controlled substances in

the center console of his vehicle atop his expired photo ID

with the blue straw. Both of those are misdemeanors in this

Commonwealth, as was the charge of paraphernalia. This is

not a paraphernalia case. This is not a possession case.

That still applies, though, when Your Honor is evaluating

whether this defendant can avail himself of the Castle

Doctrine. And, finally, Attorney Anastasi has suggested

numerous times over the course of the pendency of this

litigation that the drug deal and theft from Sheetz has no

bearing on what happened in the church parking lot. Your

Honor, that is the causation of this homicide. Mr. Hoover

and Mr. Adams are trying to find the defendant and Mr.

Clemens because the defendant and Mr. Clemens are

charged with stealing $250 from them. Mr. Hoover and Mr.

Adams met with Mr. Clemens and Mr. Stiver at Sheetz

where drugs were exchanged and more money was

exchanged with the promise of drugs. That is directly on

point to what happened and, in fact, the testimony, Isubmit,

from both sides is clear that once the iightbulb goes off in

7

Mr. Hoover's head that they're not coming back with the

cocaine that Iordered, he begins immediately both pursuing

them and calling everyone that he can think of to try to

locate where they are. So, to argue that that criminal

conduct has no bearing on whether the Castle Doctrine

applies, Isubmit, is not a realistic argument. However, I

don't think Your Honor needs to get that far because, again,

there has to be some evidence of record, some claim even

that the decedent was trying to enter the vehicle and, here,

we just don't have that. So, as a matter of law, this is not

one of the cases where the Castle Doctrine would apply

because we don't have an attempt by the decedent to enter

the vehicle. If for some reason Your Honor finds that that is

not fatal to the Castle Doctrine applying, there are

numerous ways this defendant was engaged in criminal

activity that should bar him from being able to seek refuge

under the Castle Doctrine. Iwould ask that the jury -- that

not only Your Honor find that the Castle Doctrine does not

apply but that Your Honor indicate to the jury -- because the

Castle Doctrine is something that people throughout the

Commonwealth -- not just lawyers but everyday citizens are

very aware of the Castle Doctrine. The Castle Doctrine

simply does not apply in this case because of this

defendant's bad behavior and because of that, Iwould ask

the jury to be instructed that the Castle Doctrine does not

apply.

[R.R. #46, 1/31/20 Transcript, pp. 62-66].

We denied the Appellant's request for jury instruction relative to the

castle doctrine and stated on the record the following:

BY THE COURT: We'll note again we're back on the

record in the Commonwealth of Pennsylvania vs. John

Stiver, II, CR 1897-2018. I'd note we're in the presence of

counsel and Mr. Stiver outside the presence of the jury.

So, I'll just read this into the record: We agree with the

Commonwealth that the Castle Doctrine does not apply

under 18 Pa. C.S. Section 505(b), the limitation section,

specifically, 2.1. There is no evidence that David Hoover

unlawfully and forcefully entered the defendant's vehicle or

attempted to do so or that he tried to remove the defendant

8

from his vehicle. At no time did anyone ever testify that

David Hoover entered or tried to enter the defendant's

vehicle. At most, there was testimony that David Hoover

walked around the back of the defendant's vehicle and

along the passenger side and may have struck the vehicle

in the back with his bat. Further, under 2.2, the

presumption that an actor had a reasonable belief that

deadly force is immediately necessary to protect himself

against death or serious bodily injury does not apply if,

under subsection 3(i), the actor [is] engaged in criminal

activity or is using the occupied vehicle to further criminal

activity. In this case, there is evidence pertaining to the

prior drug transaction that occurred at the Sheetz store.

The alleged theft of $250, possession of drug

paraphernalia and possession of acontrolled substance on

both the defendant's person and in the console of his car.

Therefore, we find as amatter of law that the defendant is

not entitled to an instruction on the Castle Doctrine. We

will note an objection of record by the defendant to the

Court's ruling.

[R.R. #46, 1/31/20 T., pp. 72-73].

Thus, we submit that the facts evinced at trial did not justify an

instruction on the castle doctrine, and we assert that this alleged error lacks

merit.

2. Denial of Motion for Mistrial.

In his Amended Post-Trial Motion filed February 24, 2020 [R.R. #39], the

Appellant sought a mistrial for an alleged Brady violation, claiming that the police

withheld exculpatory evidence of a video-tape depicting the decedent with a deadly

weapon. This issue was addressed in our Opinion and Order dated July 30, 2020

[R.R. #56], which we incorporate and re-state herein.

9

Applicable Law:

The law governing alleged Brady violations is well-settled. [Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)]. In Brady, the United States Supreme

Court held that "the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197.

Furthermore, the prosecution's obligation extends to exculpatory evidence in

the files of police agencies of the same government bringing the prosecution. Kyles

v. Whitley, 514 U.S. 419, 437-438, 115 S.Ct. 1555, 1567-1568, 131 L.Ed.2d 490

(1995); Commonwealth v. Burke, 566 Pa. 402, 413, 781 A.2d 1136, 1142 (2001).

On the question of materiality, the court has noted that "[s]uch evidence is

material 'if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.' The materiality

inquiry is not just a matter of determining whether, after discounting the inculpatory

evidence in light of the undisclosed evidence, the remaining evidence is sufficient to

support the jury's conclusions. 'Rather, the question is whether 'the favorable

evidence could reasonably be taken to put the whole case in such adifferent light as

10

to undermine confidence in the verdict."' Thus, there are three necessary components

that demonstrate aviolation of the Brady strictures: the evidence was favorable to

the accused, either because it is exculpatory or because it impeaches; the evidence

was suppressed by the prosecution, either willfully or inadvertently; and prejudice

ensued." Commonwealth v. Burke, supra., 781 A.2d at 1141 (internal citations

omitted).

Discussion:

In his Amended Motion [R.R. #39], the Appellant alleged that on or about July

26, 2018 (date of incident), the Altoona Police Department entered the residence of

Frank & Kimberly Benton to view surveillance footage from the security cameras

mounted on their home. The Appellant claimed that such surveillance footage

revealed evidence favorable to the defense and that "the police deliberately and

consciously decided not to collect the surveillance tape nor did they request

preservation of the same . ." [¶3 of Amended Post Trial Motion]. The Appellant

further alleged that the Benton video tape depicted the decedent (David Hoover) ...

"advancing on the Defendant with a deadly weapon in conformance with the

Defendant's Justification defense." [¶3].

11

The Appellant asserted that the police failed to document within any incident

reports that they entered the Benton residence or viewed the Benton videotape [¶4];

that the Commonwealth failed to provide any report of the police meeting with Ms.

Benton or inform defense counsel of the exculpatory video contents [¶6] and that

such video "would have shown the aggressor's mannerisms, mood and tone." [T7].

The Appellant also asserted that the Benton video tape constituted mandatory

discovery, i.e., evidence that was "favorable to the accused that is material either to

guilt or to punishment including information that tends to exculpate the defendant, to-

mitigate the level of the defendant's culpability, to support apotential defense, or that

tends to impeach a prosecution of witnesses' credibility," pursuant to Pa.R.Crim.P.

573. [¶10]. As aresult, the Appellant asserted aBrady violation.

In support of his post trial motion, the Appellant presented the testimony of

Kimberly A. Benton and her husband, Frank Benton, Jr., during our July 7, 2020

hearing. Mr. & Mrs. Benton reside at 208 4th Avenue, Altoona, PA 16602, in close

proximately to the Bethany Lutheran Church parking lot where the subject incident

took place. [R.R. #48, 7/7/20, T., p. 1]. During her testimony, Mrs. Benton confirmed

that they had surveillance cameras installed at their home and that such video will

tape over itself after 90 days. [R. R. #48, 7/7/20, T., p. 3]. She confirmed that any

12

video related to the July 26, 2018 incident has been taped over. The Benton's have

three separate video cameras, one facing Second Street, one facing Fourth Avenue

and one facing the back of their home. [R.R. #48, 7/7/20, T., p. 4]. After learning of

the shooting, Mrs. Benton personally watched the video, and it was her recollection

that she saw awhite vehicle driving up Second Street and then parking. [R.R. #48,

7/7/20, T., p. 4]. She recalls seeing aman get out of this vehicle, going to the trunk,

and taking something out. She was unable to specifically identify the item being

removed from the trunk. She did describe it as a"large object" and stated that she

assumed it was abaseball bat since there are children that often play baseball in the

nearby lot. [R.R. #48, 717/20, T., p. 5]. She acknowledged that after retrieving this

item, the male went to his right at an angle and that she was unable to observe

anything else on the video. [R.R. #48, 7/7/20, T., p. 5]. She testified that when the

man got the item out of the trunk, he initially held it up, but as he was walking, he was

holding it down to his side. [R.R. #48, 7/7/20, T., pp. 11-12]. She also did not

observe any other adult individuals. She confirmed that there is no audio on their

surveillance tapes. [R.R. #48, 7/7/20, T., pp. 5-6].

13

Mrs. Benton confirmed that Altoona Police Officers came to their residence,

although she recalled that only one officer came into their home. [R.R. #48, 717/20, T.,

p. 6]. She indicated that this was approximately 1hour after the shooting. [R.R. #48,

7/7/20, T., p. 9]. Mrs. Benton confirmed that no police officer ever asked her to retain

the tape or requested acopy of the tape, or to preserve the tape. [R.R. #48,717120, T.,

pp. 10-11].

On cross-examination, Mrs. Benton acknowledged that Detective Shane

Strobel came to their home in May of 2020 and inquired about placement of their

surveillance cameras and the angles of same. [R.R. #48, 7/7/20, T., p. 13]. Certain

slides were presented during our hearing which she confirmed showed the various

angles from their three cameras. Slide No. 2, wherein the camera faced Fourth

Avenue and toward First Street, showed her front porch. [R.R. #48, 7/7/20, T., p. 13].

She acknowledged that one cannot see the Bethany Church parking lot as the

camera was mounted. [R.R. #48, 7/7/20, T., p. 14]. She confirmed the position of this

camera is the same today as it was on July 26, 2018. [R.R. #48, 717120, T., p. 14].

She also acknowledged that Slide No. 3, involving the camera facing the backyard

and the alley way between Fourth and Fifth Avenue, does not allow one to see the

parking lot or Bethany Church at all. [R.R. #48, 717120, T., p. 14]. As to Slide No. 4,

14

facing Fourth Avenue, Mrs. Benton acknowledged that the church parking lot is in the

upper corner and that you cannot see the entire parking loft. She also admitted that

the view is obstructed by her own front porch, a pole and ahouse across the street.

She acknowledged that you cannot see the wall of the Bethany Church, nor the alley

that runs between the church and the parking lot. [R.R. #48, 717120, T., pp. 14-16].

Mrs. Benton confirmed that she never told anyone, including defense counsel,

that the item retrieved from the white vehicle's trunk was a handgun. [R.R. #48,

7/7/20, T., p. 19]. She also admitted that she never showed defense counsel these

various camera angles, nor that the video would have showed the victim acting

aggressively. [R.R. #48, 7/7/20, T., pp. 20-21]. She acknowledged that she saw the

white vehicle go down Fourth Avenue and turn up Second Street. She did not know

where the vehicle may have turned around. She could not see where the vehicle

went. [R.R. #48, 717120, T., p. 22]. Mrs. Benton confirmed that she did not know the

identity of the police officer who came to the residence and further acknowledged that

at no time did she ever provide the video to the Altoona Police Department. [R.R. #48,

7/7120, T., pp. 27-28]. Finally, she confirmed that Slide No. 5, which was video

footage taken from a neighbor's residence (Christopher Irvin), showed more of the

15

church parking lot than any of her videos. She also agreed that Mr. Irvin's video had

audio. [R.R. #48, 717120, T., pp. 28-29].

During our July 7, 2020 hearing, Frank Benton, Jr. also testified. He is

Kimberly's wife and confirmed the location of the three surveillance cameras mounted

on their home. On the date of incident, he recalled a police officer walking up and

down the block asking if anyone had video surveillance. [R.R. #48, 717120, T., p. 30].

He told police that he did, and a police officer came into his home and watched the

video. Mr. Benton, who also watched the video, recalled seeing awhite car go down

Fourth Avenue, come to a stop sign, take a right on Second Street and then come

back down, parking in between two trees at the edge of the parking lot. He recalled

seeing amale get out of the driver's seat and retrieve something out of the trunk. He

was carrying this item beside him and went off on an angle across the church parking

lot. [R.R. #48, 717/20, T., pp. 30-32]. Mr. Benton asked the officer if he needed acopy

of the video, to which he claimed the officer advised that he would be back in touch

with him if he needed the video for evidence. Mr. Benton confirmed that he never

heard from anyone from the Altoona Police Department, nor did he meet with anyone

involving the case prior to trial. [R.R. #48, 7/7/20, T., p. 33].

16

On cross-examination, it was Mr. Benton's belief that he observed the white

car turn around and park before the shooting and that it would surprise him if the

testimony at trial revealed that the white car turned around after the shooting. [R. R.

#48, 7/7/20, T., p. 35]. Mr. Benton admitted that Slide No. 5, which was the video

tape from Christopher Irvin's home, showed a larger portion of the church parking lot

than any of the Benton videos. [RR. #48, 7/7/20, T., p. 36]. He recalled speaking to a

female police officer on the day of the shooting and providing certain information

regarding the video. [R.R. #48, 7/7/20, T., pp. 36-37]. Mr. Benton identified the white

vehicle in Slide No. 20 as being the vehicle he observed when watching the video

tape. [R.R. #48, 7/7/20, T., p. 39]. He recalled watching the video two to three times,

but acknowledged that it has been approximately two years ago since he last watched

it. [R.R. #48, 717/20, T., p. 40]. He recalled seeing Lieutenant Ashley Day traversing

the street after the shooting, but Lieutenant Day did not come into their home.

Instead, Lieutenant Day went into Mr. Irvin's home. [R.R. #48, 717/20, T., pp. 40-41].

Mr. Benton indicated that the police officer who came into their home was a male

[R.R. #48, 7/7/20, T., p. 41]; however, he does not know his name. [R.R. #48, 7/7/20,

T., p. 46]. Mr. Benton also testified that he never advised defense counsel that

Lieutenant Day came into their home. [R.R. #48, 7/7/20, T., pp. 42-43]. When shown

17

Slide No. 4, Mr. Benton confirmed that it only shows a corner of the parking lot, but

that you cannot see the wall of the Bethany Lutheran Church, nor the upper right

portion of the parking lot. [R.R. #48, 717/20, T., pp. 46-47].

At the conclusion of Mr. Benton's testimony, there were certain stipulations

entered of record by counsel; specifically, that the video surveillance tape obtained

from Christopher Irvin's home was provided by the Commonwealth to the defense

during discovery and that it was corrupted; that Mr. Irvin was making highly

inflammatory comments relative to the incident on social media; and that there was a

joint decision made by the Commonwealth and the defense not to play Mr. Irvin's

video to the jury during the trial. jR.R. #48, 717/20, T., pp. 50-52].

In response to the Appellant's post-trial motion, the Commonwealth asserted

that at no time did it ever have any video in its possession from Mr. & Mrs. Benton's

residence. Additionally, the Commonwealth asserted that it never had any reason to

believe that the contents of the video materially differed from the Commonwealth's

theory of the case, the physical evidence and the eye witness statements. Further, it

pointed out that the Altoona Police Department incident report, page 19, put defense

counsel on notice that video surveillance existed at the Benton residence as of July

26, 2018. [R.R. #52].

18

The Commonwealth also asserted that there were several meetings with the

defense to review and explain all of the video footage seized during the investigation

including the video provided by Sheetz, Marsha Pippetti, William Kuny and

Christopher Irvin. [R.R. #52].

The Commonwealth acknowledged that Mrs. Benton did report to the District

Attorney's Office for a pretrial interview; however, at no time did she disclose any

information that was materially different or inconsistent with the Commonwealth's

theory of the case, or any other inculpatory or exculpatory evidence that was not

previously provided to the defense. [R.R. #52].

It is important to note that the Commonwealth conceded throughout the trial

that the decedent was wielding a baseball bat, including at the time of the shooting.

Based upon the foregoing, we found that the Benton video was never collected

and thus, it was never in the possession of the Commonwealth nor the Altoona Police

Department. Further, neither Mr. nor Mrs. Benton specifically described the item being

retrieved from the white vehicle trunk as being a baseball bat. Significantly, at the

time of trial, the Commonwealth's evidence clearly established that the victim, David

Hoover, was brandishing abaseball bat, even possibly striking the blue Ford Fusion

vehicle in which the Appellant and Dillion Bryan were passengers. The evidence

19

presented by the Commonwealth demonstrated the aggressive behavior by the

victim. The computer generated animation (CGA) also clearly showed that Mr. Hoover

was holding abaseball bat during the subject incident. JR.R.#56].

Our analysis of the above led to several conclusions. The Benton video tapes

were never in the possession of the Blair County District Attorney's Office nor the

Altoona Police Department. Mr. & Mrs. Benton's testimony confirmed as much. The

fact that the Bentons had video footage from their home was disclosed to defense

counsel during discovery. Neither Mr. nor Mrs. Benton specifically described the item

being retrieved from the trunk of the white vehicle by an unknown male as abaseball

bat. At most, Mrs. Benton described it as a"large object", which she assumed was a

baseball bat. At no time did Mr. or Mrs. Benton observe any other adult individual in

their video footage. Their observations were limited and of short duration. Their video

did not capture what occurred in the parking lot between David Hoover and the

Appellant. Even if one would assume that the item retrieved from the trunk of the

white vehicle was a bat, such is merely cumulative of the substantial evidence

presented to the jury during trial that Mr. Hoover had a bat in his possession. The

Commonwealth acknowledged and took ownership of the fact that on the date in

question, its victim (David Hoover) had a bat in his hands during the confrontation

20

with the Appellant in the church parking lot. We found absolutely no evidence of bad

faith nor the withholding of material evidence by the Commonwealth nor the Altoona

Police Department. We did not find that presentation of this limited evidence

contained within the Benton video(s) would have resulted in a different outcome for

the Appellant, nor in any way called into question the veracity of the jury's verdict.

[R.R. #56].

Thus, we submit that the Appellant's alleged error lacks merit.

3. Denial of Motion to Reopen.

Discussion:

Based upon the same rationale set forth in No. 2 above, we denied the

Appellant's Motion to Reopen in our Opinion and Order dated July 30, 2020 [R.R.

#56] (which we incorporate herein). Further, the Appellant presented no statutory

authority nor case law supporting his request that the court should have "reopened"

the record after jury verdict.

4. Denial to Remove Juror.

This issue was addressed in our Opinion and Order dated July 30, 2020 [R.R.

#56], which we incorporate and re-state herein:

21

Applicable Law:

The decision to discharge ajuror is within the sound discretion of the trial court,

even after the jury has been empaneled and sworn, and will not be disturbed in the

absence of an abuse of that discretion. Commonwealth v. Smith, 206 A.3d 551,

562 (Pa. Super. 2019). When there is no evidence to support the trial court's decision

to remove a juror, the court has abused its discretion. Bruckshaw v. Frankford

Hosp. of City of Philadelphia, 58 A. 3d 102, 111 (Pa. 2012).

Discussion:

In his amended post-trial motion [R.R. #39], the Appellant argued that acertain

Juror demonstrated bias and should have been removed from the panel. The court

tipstave, Lou Kensinger, brought to our attention a conversation she had with Juror

#11 after court concluded on Thursday, January 30, 2020. Once this was brought to

the court's attention, we directed our tipstaves to segregate Juror #11 when she

reported to court the morning of Friday, January 31, 2020, which they did. Juror #11

was kept in the lawyer's lobby away from all other jurors. In the presence of counsel

and the Appellant, but outside the presence of the jury, Ms. Kensinger was sworn and

described what happened the evening before. [R.R. #46, 1/31/20, T., pp. 7-11]. We

22

then called Juror #11 to testify as to her conversation with the tipstave. Juror #11 did

confirm that she had a conversation with Ms. Kensinger and expressed frustration

with the defense witness, Dillion Bryan. She expressed frustration that Dillion Bryan

could not identify the Appellant in court, when he was with him in the car on the day of

the shooting. [R.R. #46, 1/31/20, T., p. 11]. She also personally felt that he was

"higher than akite". [R.R. #46, 1/31/20, T., pp. 12 and 15]. She admitted that she did

not find Mr. Bryan to be a credible witness. However, Juror #11 also confirmed that

she had not prejudged the case [R.R. #46, 1/31120, T., p. 16]; that she could still

afford the Appellant his presumption of innocence and that she would hold the

Commonwealth to its burden of proving each element of the crimes charged beyond a

reasonable doubt. [R.R. #46, 1/31/20, T., pp. 17-18]. She also indicated that there

were still questions that she had in her own mind. [R.R. #46, 1/31/20, T., p. 18].

{Quite frankly, we found this specific testimony to be favorable to the defense}. We

heard arguments from counsel and then denied Attorney Anastasi's motion to strike

for cause. [R.R. #46, 1/31/20, T., pp. 20-23]. In doing so, we were satisfied, based

upon Juror #11's responses to the court and counsels' questions under oath, as well

as our observations of her demeanor, that she was being honest and sincere relative

to her testimony that she remained afair and impartial juror.

23

We also note that Juror #11 was wise enough to ensure that her discussion

with the tipstave, which was elicited by the tipstave, occurred outside the presence of

all the other jurors. She did not share her personal feelings about Mr. Bryan as a

witness with any other juror. [R.R. #46,1/31/20, T., pp. 12-13]. In further support of our

ruling, we, including counsel, questioned the competency of Mr. Bryan when he was

called as adefense witness. In fact, we conducted an on-the-record colloquy, outside

the presence of the jury, to ensure his competency to testify. [R.R. #45, 1/30/20, T.,

pp. 176-182]. After such colloquy, we found him competent to testify. Attorney Weeks

indicated that Mr. Bryan "gave one of the most bizarre testimonies" he has ever

witnessed. [R.R. #46, 1/31/20, T., p. 21]. If this were a trial by court, we would not

have found Mr. Bryan to be acredible witness by any stretch of the imagination. We

firmly believe that no fair, objective and impartial juror would have found Mr. Bryan's

testimony to be credible. His testimony was not supported by any other evidence in

the case.

We believe our decision in this case is supported by a recent Superior Court

decision in Commonwealth v. Marrero, 217 A.3d 888 (Pa. Super. 2019), In

Marrero, ajuror made acomment during the course of aconversation amongst jurors

regarding the concept of facing trial before ajury of one's peers, stating that none of

24

the jurors was a peer of the defendant. Although the defendant took the juror's

comment as referring to his Latino heritage, when questioned by the court about this

comment, the juror said she was referring to the fact that she was older than the

defendant. The court believed the juror's testimony that she had not involved race and

would deliberate fairly and impartially. 217 A.3d at 892.

In the case at bar, Juror #11 made a comment during her colloquy with the

court and counsel that "I don't deal well with millennial snot-nosed kids and he didn't

even know where he was ... Ihad a meltdown over it because Ipersonally feel he

was higher than akite ..." [R.R. #46, 1/31/20, T., pp. 11-12]. There are afew factors

in our situation even more favorable than what existed in Marrero. Here, Juror #11's

comments were about aparticular witness, not the Appellant. Further, her comments

were made privately to a single tipstave (after the tipstave invited the conversation)

and did not occur in the presence of any other juror. Juror #11 did not share her

personal thoughts regarding Mr. Bryan with any other juror.

Therefore, we found no fault in Juror #11 reaching the conclusion that Mr.

Bryan was not a credible witness upon the conclusion of his testimony. Such is

human nature. The most important factors in our determination were that Juror #11

could still afford the Appellant his presumption of innocence; that she would hold the

25

Commonwealth to its burden of proof; that she had not prejudged the Appellant's

guilt; and that she was and could remain fair and impartial. We found her testimony in

all these respects to be honest and entirely credible.

5. Introduction of Evidence of Conviction.

The Appellant claims that we committed error in allowing the Commonwealth to

impeach defense witness, Kenneth Lafferty, by a40 year old conviction.

Applicable Law.

"[E]vidence of prior convictions can be introduced for the purpose of

impeaching the credibility of awitness if the conviction was for an offense involving

dishonesty or false statement, and the date of the conviction or the last day of

confinement is within ten years of the trial date. If aperiod greater than ten years has

expired the presiding judge must determine whether the value of the evidence

substantially outweighs its prejudicial effect." Commonwealth v. Randall, 515 Pa.

410, 415, 528 A.2d 1326, 1329 (1987).

In order to determine whether the value of aremote crimen fatsi conviction

substantially outweighs its prejudicial effect, the court looks to 5factors. Those factors

include: "(1) the degree to which the commission of the prior offense reflects upon

26

the veracity of the defendant-witness; (2) the likelihood, in view of the nature and

extent of the prior record, that it would have a greater tendency to smear the

character of the defendant and suggest apropensity to commit the crime for which he

stands charged, rather than provide a legitimate reason for discrediting him as an

untruthful person; (3) the age and circumstances of the defendant; (4) the strength of

the prosecution's case and the prosecution's need to resort to this evidence as

compared with the availability to the defense of other witnesses through which its

version of the events surrounding the incident can be presented; and (5) the

existence of alternative means of attacking the defendant's credibility." !d at 1328.

"It is only when the crimen falsi conviction is more than ten years old ... that

evidence of the conviction becomes conditioned on the probative value of the

evidence substantially outweighing its potential prejudicial effect." Commonwealth v.

Hoover, 630 Pa. 599, 612-13, 107 A.3d 723, 730-31 (2014), citing Pa. R.E. 609(b)(1).

This determination is within the discretion of the trial court using the 5factors listed in

Randall as aguide in that discretionary determination. Id,

[T]he decision to admit or exclude evidence is committed to the trial court's

sound discretion and its evidentiary rulings will only be reversed upon ashowing that

it abused that discretion." Commonwealth v. Laird, 605 Pa. 137, 168, 988 A.2d 618,

27

636 (2010). "[T]he Superior Court may reverse an evidentiary ruling only upon a

showing that the trial court abused that discretion. A determination that atrial court

abused its discretion in making an evidentiary ruling "may not be made `merely

because an appellate court might have reached adifferent conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such a

lack of support so as to be clearly erroneous." Commonwealth v. Hoover, supra,,

107 A.3d at 729 (quoting Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483,

495 (2009)).

Discussion:

On January 30, 2020, the fourth day of trial, the defense called Kenneth R.

Lafferty as awitness [R.R. #45, 1130/20, T., pp. 156-175]. During his testimony, Mr.

Lafferty stated, inter alia, that he was friends with the victim, David Hoover, that they

spoke on the phone all the time and that Mr. Hoover came to his house "almost every

day." [R.R. #45, 1130/20, T., p. 157].

Mr. Lafferty testified that on the date of incident (July 26, 2018), that he

received 5or 6phone calls from Mr. Hoover. He said that Mr. Hoover asked if Eddie

("Cowboy" Clemens) was with him and then told him "that Eddie had ripped his friend

off and he was looking for him ...". Mr. Hoover explained that the incident was

28

about drugs. Mr. Lafferty further testified: "... he [Hoover] talked about going and

finding him and stuff and then he said well my friend has agun and Isaid let your

friend deal with it. He said my friend has agun and he said he's going to kill him."

[R.R. #45, 1/30/20, T., pp. 157-158]. Mr. Lafferty testified that Mr. Hoover was "upset"

and confirmed that he was mad. [R.R. #45, 1/30/20 T., p. 158]. He also stated that

these phone calls occurred between 3:00-5:00 p.m. [R.R. #45, 1/30/20, T., pp. 158-

159].

When it came time for the Commonwealth to cross-examine Mr. Lafferty, the

following exchange occurred on the record at sidebar:

BY ATTORNEY WEEKS: Your Honor, Ibelieve the

Commonwealth's objection to the witness's testimony is

on record. Because of the distance in time the

Commonwealth was just able to run the witness's criminal

history. We were not aware Attorney Anastasi was calling

this witness. As she had indicated before, she was calling

adifferent witness first. 1immediately upon receiving the

name and date of birth of the witness we did ask our office

to run it. They did. This individual has numerous theft

[convictions]. They are outside the ten year lookback.

We are asking Your Honor to allow us to impeach him

with that information. We believe it would be appropriate

in this case for the following reasons. One, he and he

alone has this evidence of this phone call. Attorney

Anastasi waived her opportunity to ask Mark Adams about

the phone call and the veracity of this witness will -- the

jury's determination of this witness's veracity is going to

determine basically this entire case now because this

witness is testifying that the decedent threatened to kill the

defendant and his associate over a phone call that he

didn't report to the police from almost two years. So we

believe it's —

29

BY ATTORNEY SMITH: It was never reported to the

police so we're clear.

BY ATTORNEY WEEKS: Yeah, he's never reported it to

the police but only reported it to Attorney Anastasi after

being approached by the defendant's family on Tuesday.

BY THE COURT: Attorney Anastasi, your response.

BY ATTORNEY ANASTASI: It's completely inappropriate

to put in his record. It's past the ten year lookback. Like

they're saying 1haven't seen it but it's past ten years and

there's been no -- just because it's a surprise witness,

even though Ihave given proffers on him twice, it's still not

enough to introduce some old record.

BY ATTORNEY WEEKS: Your Honor, Iapologize for

interrupting but the witness has been proffered twice but

in the last hour and ahalf or two hours and the Court can

employ abalancing test after ten years to decide whether

the prejudicial effect outweighs the probative value. Here

submit the probative value is extremely high.

BY THE COURT: Counsel, what I'm going to do is I'm

going to grant the Commonwealth's motion. Obviously

beyond that ten year period is within the Court's

discretion. Because of the unique circumstances of this

particular witness, the unique circumstances in his

testimony and the fact that there was late disclosure I'll

grant the Commonwealth's request. You can impeach

him by crimen falsi beyond the ten years.

[R.R. #45, 1/30120 T., pp. 164-165].

There were numerous crimen falsi convictions for Mr. Lafferty, including a1976

theft by unlawful taking; a 1986 theft of property and receiving stolen property; and a

2000 theft by unlawful taking and receiving stolen property. [R.R. #45, 1/30/20 T., pp.

165-167].

30

In rebuttal, the Commonwealth called Detective Randy Feathers of the D.A.'s

Office, who testified as to Mr. Lafferty's prior convictions based upon his review of the

NCIC federal data base. [RR. #46, 1/31/20 T., pp. 41-43]. Detective Feathers

confirmed that Mr. Lafferty had prior convictions in 1976 for theft by unlawful taking, in

1986 for theft by deception and receiving stolen property; and in 2000 for theft by

unlawful taking and receiving stolen property, all occurring in Pennsylvania. [R.R. #46,

1/3'1/20, T., pp. 43-44, Com. Ex. 39].

Detective Feathers also confirmed that there was a 1975 conviction in the

State of Florida for burglary; and finally, a2012 conviction in Maryland for theft of less

than $100. [R.R. #46, 1/31/20, T., p. 46].

It is important to point out that this impeachment by prior crimen falsi

convictions was of a defense witness, not the Appellant himself. In applying the 5-

factor test set forth in Randall above, as it may be relevant to awitness, we find:

(1) the degree to which the commission of the prior offense(s) reflects upon

the veracity of the [witness]. Here, there were five (5) different crimen falsi convictions

occurring over a37-year time frame in three different states. Clearly, the number, time

period and different locations could call the witness' veracity into question in the

minds of the jurors.

31

{2} the likelihood, in view of the nature and extent of the prior record, that it

would have agreater tendency to smear the character of the defendant and suggest a

propensity to commit the crime for which he stands charged, rather than provide a

legitimate reason for discrediting him as an untruthful person: There is no evidence

that the Appellant was involved or even knew Mr. Lafferty at the time of any of his

prior crimen falsi convictions. In fact, the Appellant was not born until September

25,1984, well after the 1975 and 1976 convictions. He would have been two years old

at the time of Mr. Lafferty's 1986 conviction, and 14 years old at the time of the 2000

conviction. Thus, Mr. Lafferty's prior convictions in no way smeared the character of

the Appellant nor in any way suggested apropensity to commit the crimes for which

he was charged. The sole purpose for which the prior crimen falsi convictions were

utilized was to impeach the credibility of Mr. Lafferty.

32

(3) the age and circumstances of the defendant. As set forth above, the

Appellant was thirty-five (35) years old as of the time of trial.

(4) the strength of the prosecution's case and the prosecution's need to

resort to this evidence as compared with the availability to the defense of other

witnesses through which its version of the events surrounding the incident can be

presented. As the Commonwealth argued at side-bar and as set forth above, Mr.

Lafferty was the only witness who testified that Mr. Hoover and his associate had a

gun and threatened to kill the Appellant. Mr. Lafferty claimed this threat occurred just

a few hours before the shooting. During a phone call on the date of incident, Mr.

Lafferty described Mr. Hoover as being upset and mad. Mr. Lafferty never reported

this phone call to law enforcement.

Other than calling into question the lack of disclosure to the police and Mr.

Lafferty's friendship with the Appellant's parents [R.R. #45, T., p. 170-171), there was

no other direct avenue for the Commonwealth to impeach Mr. Lafferty's credibility as

a witness, other than to introduce his prior crimen falsi convictions. The defense

presented other witnesses (Diillion Bryan and Tina Paullin) to support the Appellant's

version of the events. Mr. Bryan testified to the events surrounding the shooting in

the parking lot in support of the Appellant's self-defense claim. The direct

33

impeachment evidence for Mr. Lafferty was critical for the Commonwealth in meeting

its burden of refuting the Appellant's self-defense claim.

(5) the existence of alternative means of attacking the witness' credibility.-

This has been addressed above.

Therefore, at trial, we concluded that the probative value of the evidence of Mr.

Lafferty's prior crimen falsi convictions substantially outweighed it potential prejudicial

effect, and permitted the Commonwealth to impeach him thereby.

We would also note that in our closing instructions, we provided the jury the

Suggested Standard Instruction 4.08D-Impeachment — Prior Conviction (Witness

Only), as follows:

You also heard evidence that Ken Lafferty, awitness called by

the defense, had been convicted of prior crimes of crimen talsi.

The only purpose for which you may consider evidence of

these prior convictions is in deciding whether or not to believe

all or part of the testimony of Mr. Lafferty. In doing so, you may

consider the type of crimes committed, how long ago they were

committed and how it may affect the likelihood that Mr. Lafferty

testified truthfully in this case.

[R.R. #46, 1/31/20, T., pp. 176-177].

As aresult of the foregoing, we submit that this alleged error lacks merit.

34

6. Denial of Motion for Court-

Appointed Medical Expert.

7. Denial of Motion for Court-Appointed Firearms and Ballistics, Force

Science, Self-Defense and Shootinq Scene Reconstruction Expert.

S. Denial of Motion for Court-Appointed Investigator.

We submit that there is overlap relative to these alleged errors, therefore, they

will be addressed collectively below. We also addressed these issues pre-trial in our

Opinions and Orders entered April 29, 20'19 [R.R. #11] & July 9, 2019 [R.R. #15],

which we incorporate herein.

Applicable Law:

"There is no constitutional mandate, either federal or state, that experts be

appointed at public expense to assist in the preparation of a defense whenever

requested by one accused of acrime." Commonwealth v. Gelormo, 327 Pa. Super.

219, 229, 475 A.2d 765, 770 (Pa. Super.1984). "Under the law of Pennsylvania ... the

appointment of an expert witness or an investigator to assist in the preparation of a

defense is vested in the sound discretion of the trial court." Id, at 769. "[T]he trial

court will not be found to have abused its discretion in the absence of aclear showing

as to the content, relevancy and materiality of the testimony of the potential

witnesses." Commonwealth v. Bell, 706 A.2d 855, 862 (Pa. Super. 1998).

35

Discussion:

We initially addressed the Appellant's motion for experts in our Opinion and

Order of April 29, 2019 after hearing held April 2, 2019, wherein we denied the

Appellant's motion without prejudice to the filing of amore detailed motion identifying

the name and professional address of the proposed expert; the specific field of

expertise; the fee schedule and retainer being sought by such expert for review of all

relevant records and issuance of an expert report; and the anticipated time and fees

required if the expert would be needed to testify at trial. We also denied the

Appellant's motion for appointment of an investigator without prejudice to file a

supplemental motion providing more detailed information similar to the above [R.R.,

#11, 4/29/19 Opinion, pp. 17-18].

The Appellant filed a Supplemental Omnibus Pretrial Motion, which included a

Motion for Appointment of a Medical Expert, Firearm and Ballistics, Force Science,

Self-Defense and Shooting Scene Reconstruction Expert as well as a Motion for

Appointment of Investigator. We held a hearing on June 18, 2019 to address the

various pre-trial motions.

36

During the hearing, Attorney Anastasi identified Mr. Mickey McComb as a

firearms and ballistics expert. His curriculum vitae and fee schedule was admitted into

the record. [R. R. #41, 6/18/19 T., p. 5].

The Appellant also testified during our June 18, 2019 hearing. The Appellant

testified as to his financial situation. He acknowledged that he hired Attorney Anastasi

in her private capacity and that she was paid a $15,000 retainer. [R.R. #41, 6/18/19

T., pp. 6-9].

During the June 18, 2019 hearing, we requested Attorney Anastasi to place on

the record why she believed that the defense needed its own court-appointed forensic

pathologist. The following was her response:

BY THE COURT: Okay, Attorney Anastasi, what Iwould

like you to do, if you could, if you could supplement the

record and tell me why you believe that you need --I

understand that Mr. Stiver and as far as his financial

circumstances, but if you could establish for the record

please why you believe that the defense needs the Court

to appoint these particular experts in some detail.

Attorney Anastasi: Okay. Your Honor, for the medical

expert first, the forensic pathologist, the Commonwealth

is their essential theory of the case is that Mr. Hoover

was shot while attempting to turn and run away. Ihave

spoken to the pathologist that we would like as an expert

and that is even where the shot went into, that is sheer

speculation. That just because the head may have been

turned one way or another, they cannot pinpoint it is

because of oh Isaw agun and Iam going to turn to run.

More than oh there was afly on me and so Iturned my

head. He was still shot in the front in the neck. His own,

37

Mr. Hoover's own, friend that was in the vehicle had

never said that he was turning his [head] or turned his

body to run away. So we would need the forensic

pathologist to --him really more than anyone else to

rebut the Commonwealth's pathologist saying that where

he was shot in the neck that to make the connection and

the correlation that that meant that he was turning his

head because he saw a gun and he was retreating with

his deadly weapon.

BY THE COURT: Attorney Anastasi, let me ask you this.

If the Court did not grant your request to appoint the

medical expert, would that in any way preclude you from

making those same arguments or raising those same

issues in cross-examination of the Commonwealth's

expert and/or in closing arguments to the jury?

ATTORNEY ANASTASI: Which we would do

alternatively. 1don't know --Ihaven't spoken to the

Commonwealth's pathologist, but if we don't get the

expert we would be crossing him on that.

BY THE COURT: Iguess what Ireally want to ensure is

that if the Court denies your request for acourt-appointed

medical expert, what prejudice do you believe that you

would have, Mr. Stiver would have relative to his defense

at the time of trial?

ATTORNEY ANASTASI: Well, if their expert is getting up

and saying that the decedent was retreating at the time

that he was being shot, we believe that us not having the

expert we are at a disadvantage of not having another

pair of eyes look at this to say that just because --the

head turns, the neck doesn't. Just because the head

was turned one way to make the correlation it is because

he saw a gun and he was going to turn to run. That is

why we would be at the disadvantage by not having our

own expert say that that is sheer speculation that you can

just because of where he was shot. Imean Mr. Stiver is

sitting in avehicle with his arm out the window shooting.

You know, it is not going to be aperfect shot.

BY THE COURT: And you have had the opportunity to

review the Commonwealth's pathologist expert report?

ATTORNEY ANASTASI: Mh-hm.

BY THE COURT: Yes?

ATTORNEY ANASTASI: Yes.

BY THE COURT: Okay, and does the Commonwealth

pathologist make any indication in his report as to

whether --Imean is there any dispute that Mr. Stiver

was sitting in his vehicle at the time [the decedent] was

shot?

ATTORNEY ANASTASI: No, I don't believe that the

Commonwealth has any dispute about that.

BY THE COURT: Okay.

ATTORNEY ANASTASI: The pathologist does say in his

report of greatest significance is where he was shot with

what was exposed the other side would have had to be

turned, but to make the leap that is because of him

seeing agun.

BY THE COURT: Do you expect your expert to dispute

the location of where the bullet entered the victim?

ATTORNEY ANASTASI: Ido not.

BY THE COURT: The arguments then that you are

making do you believe as Mr. Stiver's attorney you could

make those same arguments to the jury again, to the jury

cross-examination --Iam sorry --to the expert in cross-

examination to the jury at the time of closing argument?

ATTORNEY ANASTASI: Icould, Judge, but Imean I

am stuck with the witnesses answer and, if he says he

was the head was turned because he saw agun and he

was running. Imean however ludicrous that would

sound to make, I'm still stuck with his answer.

BY THE COURT: If the Court allows that answer.

ATTORNEY ANASTASI: Right, which we would —-

39

BY THE COURT: Object to.

ATTORNEY ANASTASI: Yes, but there would be a

motion in limine too that whole questioning.

BY THE COURT: Okay, Attorney Anastasi, anything

else you want to place on the record relative to the

forensic pathologist expert?

ATTORNEY ANASTASI: Your Honor, Iwould just say

that he would be the expert that we would of greatest

importance Iguess in this case.

[R.R. #41, 6/18/19 T., pp. 16-20].

We then asked Attorney Anastasi to establish the need for a court-appointed

firearms and ballistics expert. The following exchange took place:

BY THE COURT: Okay, and then Attorney Anastasi

turning to the firearms and ballistic expert. If you could

establish on the record the defense need for that

particular expert?

ATTORNEY ANASTASI: Your Honor, this case really

does come down to use of force and deadly force that if it

was justified and things about the weapon, and that is

why [we] would be seeking the expert that we are looking

for of course does the reconstruction, but he also looks

into self-defense for science. Ireally don't think this

would be much of aballistic case, but definitely the use of

force with what is at issue in this case is why we would

be asking for that.

BY THE COURT: And do you anticipate that being the

primary defense [,] self-defense in this case?

ATTORNEY ANASTASI: Yes, Judge, yes.

BY THE COURT: Okay, Attorney Anastasi, anything else

that you want to add to the record relative to the firearms

ballistic expert [force] science experts?

40

ATTORNEY ANASTASI: No, Your Honor.

We then heard from District Attorney Weeks, who stated:

ATTORNEY WEEKS: Judge, dealing with the first of the

issue of the pathologist, Iwould like to read the cause of

death cited to [by] the forensic pathologist in the report

provided by the Commonwealth to Attorney Anastasi.

"Mr. Hoover was struck by a single shotgun wound which

injured structures within the face, neck and upper region

of the right chest. Of greatest significance is complete

transection of the right carotid artery and perforation of the

right subclavian artery with copious associated

hemorrhage. Alignment of the various wound tracks and

abrasion margins place and muzzle of the weapon on the

[decedent's] left side and the decedent's head turned to

the left." Isee nowhere any of the items [that] Attorney

Anastasi raise as abasis for procuring an expert report in

the field of the forensic pathologist as to the cause and

manner of death. The Commonwealth's theory of the case

relative to the position of Mr. Hoover depends, Your

Honor, on the positon of the defendant's car, the position

which Isubmit and Ihave shared this with Attorney

Anastasi Ican extrapolate through where the shotgun

shell pellets were found or recovered from items in the

parking lot, particularly, a signpost from the defendant's

statement, and other individual statements as to where

the defendant was when he [fired] the fatal shot. Nowhere

does this forensic pathologist say that Mr. Hoover was

going forward or going backward or turning around. He

would not be able to say that. Now what he can be asked

by both parties are hypothetical questions which Iwould

fully intend to ask him and Attorney Anastasi can cross-

examine him on that. But essentially, the way Isee it,

your Honor, is Attorney Anastasi is asking for roughly

$10,000 of taxpayer money to have a report that says

exactly what this report says. That he was shot on the left

side of his neck. Idon't believe that there is any way to

dispute that. The issue for trial and for the jury is could

Mr. Hoover been shot on the left side of his neck with his

head turned to the left if he was advancing on Mr. Stiver.

That is of no moment for the forensic pathologist. That is

a combination of the pathological report in the autopsy,

41

the reconstruction of the scene, where evidence was

found at the scene, and where the shooter places himself

at the same. All of those factors together are going to

paint that picture not the cause and manner death. So if

there is no dispute to the cause and manner of death, I

don't see any basis for this expert certainly not an expert

that would be funded entirely by tax dollars to the tune of

what looks like might be up around $10,000. Moving to

the use of force expert, your Honor, Iwould first argue that

this use of force expert appears that Ihave only had a

moment to look at his C.V., but he appears to be aforce

expert like most use of force experts. A person who trains

police and other law-enforcement on when to use deadly

force and [when] not to use deadly force, and what kind of

force to use and what kind of situation. All of that is out

the window in this case because the defendant is not a

law-enforcement officer who is acting within his or her

capacity as alaw enforcement officer when he took David

Hoover's life. Simply put, Your Honor, most of the

background that use of force expert has in the instruction

and training that they have given and received don't apply

to his case. Even more pressing, Iwould submit, is that

this petition to hire use of force expert Ibelieve is not yet

ripe. We have not yet got to the stage of pretrial motions,

but I would submit that we will where the Court determines

whether this defendant has at his utility self-defense or the

Castle Doctrine. Isubmit, he clearly does not and will not

be afforded the Castle Doctrine and the jury should not be

instructed that it is even an option for them to consider.

This defendant was in commission of multiple crimes. He

was in unlawful possession of a firearm he used to take

Mr. Hoover's life. He had controlled substances within his

vehicle. He had just committed a sale of controlled

substances hours earlier to the decedent and was

involved in stealing two hundred dollars from the decedent

with the promise [of] the sale of cocaine when he and his

co-conspirator had no intention of selling cocaine. For all

of those factors, Your Honor, there is no way that this

defendant could avail himself of the Castle Doctrine.

believe the Commonwealth versus Cannavo C A N N A

V O and Ihave acite here for the Court, 199 A.3rd 1282

and it was decided on December 3rd, 2018. In that Court it

was a felon not to possess who shot someone and

attempted to use the Castle Doctrine to say hey Idid not

42

have the duty to retreat in my own home because of the

Castle Doctrine. The Court ruled that he could not use it

because he was aperson not to use afirearm. Icite that

for two reasons. One, that individual is in unlawful

possession of a firearm. Mr. Stiver was in unlawful

possession of his firearm under the circumstances of his

case and by his own admission. Two, and more

importantly, that case is clear that it is the Court's decision

as to whether the Doctrine can be applied or considered

by the jury not something that has to be given to the jury

for them to decide legally if it applies. So the

Commonwealth's argument in this case will be that Mr.

Stiver cannot receive the Castle Doctrine instruction

because he was in commission of in fact a multitude of

crimes prior to and during his slaying of Mr. Hoover. As

far as justification goes, Ibelieve my review of the law

anyone can raise justification for the crime of first-degree

murder. Ido not believe that Mr. Stiver can raise the

crime of justification for third-degree murder or any of the

lesser degrees of homicide or aggravated assault whether

it be serious bodily injury or bodily injury with a deadly

weapon. Iwould cite for the Court Ibelieve it is 18 P.S.

5036. It is justification generally choice of evils.

Essentially what it says is when the actor here that would

be Mr. Stiver was reckless or negligent in bringing about

the situation requiring a choice of harm or evils or

appraising the necessary --necessity, excuse me, for his

conduct, the justification afforded by this section is

unavailable in a prosecution for any offense from which

recklessness or negligence as the case may be suffices to

establish culpability. Reckless conduct is an element of

third-degree murder and certainly an element of both

aggravated assaults. So in this case, the Commonwealth

will be arguing that not only can this defendant not avail

himself [of] the Castle Doctrine which if he could would

mean that he did not have a duty to retreat. And the

Commonwealth believes that it can and will establish that

he had aduty to retreat from someone who is on foot with

a baseball bat when he was in a car that was not

encumbered by anything else in a parking lot that was

open. But secondarily, that this defendant cannot say for

the crimes of third-degree murder the lesser murderers or

aggravated assault any degree that he was justified or

that it was a shooting in self-defense because he was

43

most certainly engaged in reckless and negligent conduct

that brought about this situation. It was him and his co-

conspirator that sold drugs. It was him and his co-

conspirator that said that they would get two hundred

dollars['] worth of cocaine for David Hoover after they took

his money. It was him and his co-conspirator that fled

throughout the city without seeking any intervention by

law-enforcement. And it was this defendant but by his own

admission returned to his home to retrieve a shotgun

which he loaded and placed in his car. So, Your Honor,

for those reasons Idon't believe it would be appropriate to

appoint a use of force expert. One, because the [force]

signs that dealt with by the expert seems to be law-

enforcement use of force. Two, because when everything

comes down to it at least the Commonwealth's [argument]

is going to be pretrial that Mr. Stiver [can't] avail himself of

those defenses. Thank you, Your Honor.

[R.R. #41, 6/18/19 T., pp. 20-26].

After oral argument, we entered an Opinion and Order dated July 9, 2019 [R.R.

#15] which we incorporate and re-state below.

Motion for Appointment of Medical Expert:

Applicable Law:

The decision of whether to appoint an expert witness to assist

in preparation of the defense is within the sound discretion of the trial

court. Commonwealth v. Curnette, 871 A.2d 839 (Pa. Super. 2005).

Indigent defendants have a right to access the same resources as

non-indigent defendants in criminal proceedings, and state cannot

discriminate against defendants on basis of their indigency.

44

Commonwealth v. Franklin, 823 A.2d 906, 909 (Pa. Super. 2003).

State has an affirmative duty to furnish indigent defendants the same

protections accorded to those financially able to obtain them.

Commonwealth v. Sweeney, 533 A.2d 473, 480 (Pa. Super. 1987).

Procedural due process guarantees that the defendant has a right to

present competent evidence in his defense, and state must ensure

that indigent defendant has afair opportunity to present his defense.

Ake v. Oklahoma, 470 U.S. 68, 76, 105 S.Ct. 1087, 84 L.Ed.2d 53

(1985).

It is true that the Commonwealth is not obligated to pay for the

services of an expert simply because a defendant requests one.

Commonwealth v. Carter, 643 A.2d 61, 73 (Pa. 1994). There must

be some showing as to the content and relevancy of the proposed

expert testimony before such a request will be granted.

Commonwealth v. Bell, 706 A.2d 855, 862 (Pa. Super. 1998).

The Appellant seeks that the court appoint a medical expert,

more specifically, an expert in forensic pathology, and has identified

Dr. Michael W. Johnson of Allentown, PA as the potential defense

45

expert. At the time of our hearing, Dr. Johnson's Curriculum Vitae

and Fee Schedule, which were attached to the Supplemental

i

Omnibus Pretrial Motion, were incorporated into the record. [R.R. #41,

6/18119 Hearing Transcript, p. 5]. According to his fee schedule, Dr.

Johnson is seeking aretainer of $750.00 and will charge $375.00 per

hour.

The Appellant testified during our June 18, 2019 hearing. He

has been incarcerated in the Blair County Prison since July, 2018.

[R. R. #41, 6/18/19 T., p. 11]. At the present time, he testified that he

has no sources of income nor any money in his jail account. He

testified that he has no bank accounts of any nature [R.R. #41,

6/18/19 T., p. 7], nor any financial holdings such as a certificates of

deposit, stocks, bonds, etc. [R.R. #41, 6/18/19 T., p. 15]. He has no

interest in any real estate. [R.R. #41, 6/18/19 T., p. 14]. He does not

receive any government subsidies. [R.R. #41, 6/18119 T., p. 7]. He

was last employed in mid-2017 in a part-time landscaping job,

wherein he indicates that he was paid $9.00 per hour. The Appellant

testified that he held that job for approximately 3months until he was

the victim of adog bite [R.R. #41, 6/18/19 T., pp. 10-11] and suffered

serious injuries. [R.R. #41, 6/18/19 T., pp. 7-8]. He indicated that he

filed acivil lawsuit, but has not received any financial settlement. [R.R.

#41, 6/18/19 T., pp. 8& 15]. It is his understanding that such lawsuit

has been dismissed. [R.R. #41, 6/18/19 T., pp. 14-15].

The Appellant owns two vehicles, a 2012 Ford Fusion, which

he said has an approximate value of $10,000 and is paid for. That

vehicle is currently in the possession of the Altoona Police

Department. He also owns a 2001 Chevrolet Silverado, which he

claims has no value since the engine "blew up". [R.R. #41, 6/18/19 T.,

pp. 12-14].

The Appellant has hired Attorney Kristen Anastasi as private

counsel. Pursuant to his fee agreement, $15,000 was paid to his legal

counsel. It is his understanding that such retainer will cover all

aspects of legal representation relative to this case. [R.R. #41,

6/18/19 T., pp. 8-10]. Mr. Stiver testified that the retainer was actually

paid by his father. What was interesting relative to the Appellant's

testimony in this regard is that he was not sure of the spelling of his

47

father's first name, nor whether his father is currently retired [R.R.

#41, 6/18/19 T., pp. 11-12], thus calling into the question the

Appellant's credibility relative to his alleged indigency and the true

source of the payment of the retainer to private counsel.

During our June 18, 2019 hearing, Attorney Anastasi

acknowledged that the defense is not questioning the cause nor

manner of death, nor are they questioning the location of the bullet

entry into the victim's body. [R.R. #41, 6/18/19 T., p. 19]. Defense

counsel expressed a concern as to whether the Commonwealth's

medical expert may opine that the victim was retreating at the time the

Appellant shot him and/or that the victim's head was turned in a

particular direction. [R.R. #41, 6/18/19 T., pp. 16-18].

At the time of hearing, Attorney Weeks read into the record the

conclusion of the Commonwealth's pathologist as to the cause and

manner of death. [R.R. #41, 6/18/19 T., p. 21]. The Commonwealth's

forensic pathologist stated in his report: "Mr. Hoover was struck by a

single shotgun wound which injured structures within the face, neck

and upper region of the right chest. Of greatest significance is

48

complete transection of the right carotid artery and perforation of the

right subclavian artery with copious associated hemorrhage.

Alignment of the various wound tracks and abrasion margins place

[the] muzzle of the weapon on the decedent's left side and the

decedent's head turned to the left." [R.R. #41, 6118/19 T., p. 21].

There is no indication by the Commonwealth's expert in his report as

to whether the victim was going forward, turning around, etc. [R.R.

#41, 6/18/19 T., pp. 21-22). Attorney Weeks also noted that the theory

of the Commonwealth's case relative to the position of the victim

depends, at least in part, on the position of the Appellant's car. There

were shotgun shells found in the parking lot area around the

Appellant's car. [R.R. #41, 6/18/19 T., pp. 2122].

Therefore, with there being no challenge to the cause and

manner of death opined by the Commonwealth's medical expert, we

find that the Defendant has not established a need for this court to

appoint a defense medical expert. His motion with respect thereto is

denied and dismissed. (emphasis in original).

[R.R. #15, Opinion and Order dated July 9, 2419, pp. 3-7].

49

Motion for Appointment of Firearm & Ballistics, Force Science,

Self-

Defense & Shooting Scene Reconstruction Expert:

Attorney Anastasi indicated that at the time of trial, the

Appellant will assert that he was acting in self-defense and/or that his

actions were justified. [R.R. #41, 6/18/19 T., p. 20]. Thus, they desire

the court to appoint an expert witness to support this defense. The

potential defense expert is seeking a non-[refundable] retainer of

$1,500. Per his fee schedule, he will charge $150 per hour, but $200

per hour to prepare awritten report. His court appearance fee is $450

for three hours. [R.R. #41, 6/18119 Defendant's Exhibit 2, T., p. 5;

R.R. #14]. The Commonwealth objects, noting that the prior

experience of the Appellant's potential expert, Mickey McComb,

based upon his Curriculum Vitae [R.R. #41, 6/18/19 Defendant's

Exhibit 1, T., p. 5; R.R. #14], is training police and other law

enforcement officers on when to use deadly force and the appropriate

level of such force dependent upon the circumstances. The

Commonwealth asserts that such prior training/experience would not

be relevant to this case. [R. R. #41, 6/18/19 T., pp. 22-23]. Further,

the Commonwealth asserts that the "Castle Doctrine" is not applicable

50

under the factual scenario involved in this case. [R.R. #41, 6/18/19

T., pp. 23-24].

The Defendant has raised the probability that at the time of

trial, he will raise the defense of self-defense/justification and/or the

"Castle Doctrine".

"Self-defense" is codified under 18 Pa. C.S. §505(a),

which reads as follows:

(a) Use of force justifiable for protection of the

person. The use of force upon or toward another

person is justifiable when the actor believes that such

force is immediately necessary for the purpose of

protecting himself against the use of unlawful force by

such other person on the present occasion.

§505(b) sets forth a number of limitations on the use of self-

defense. At the time of trial, before self-defense may be at issue,

there must be some evidence from whatever source to justify afinding

of self-defense. Commonwealth v. Bailey, 471 A.2d 551, 553 (Pa.

Super. 1984). A jury charge on self-defense must be given upon

request where the jury would have a possible basis for finding self-

defense. If there is evidence presented that could support aclaim of

self-defense, it is up to the fact-finder to pass upon its credibility and,

51

therefore, it is improper for atrial court to exclude such consideration

by refusing acharge thereon. Id. (internal citations omitted).

The defense of "justification" is codified in 18 Pa. C.S. §503, which

reads as follows:

(a) General rule. - Conduct which the actor believes to be

necessary to avoid aharm or evil to himself or to another is justifiable if:

(1) the harm or evil sought to be avoided by such conduct is

greater than that sought to be prevented by the law defining the

offense charged;

(2) neither this title nor other law defining the offense provides

exceptions or defenses dealing with the specific situation

involved; and

(3) a legislative purpose to exclude the justification claimed

does not otherwise plainly appear.

(b) Choice of evils. -Where the actor was reckless or negligent

in bringing about the situation requiring achoice of harms or evils or in

appraising the necessity for his conduct, the justification afforded by this

section is unavailable in a prosecution for any offense for which

recklessness or negligence, as the case may be, suffices to establish

culpability.

52

The case of Commonwealth v McClendon, 874 A.2d 1223 (Pa.

Super. 2005) provides us further guidance on the principles of self-

defense and justification. In McClendon, the defendant was convicted

of aggravated assault, violations of the Uniform Firearms Act, and

possession of instrument of crime. On appeal, the Pennsylvania

Superior Court affirmed. During the trial, the defendant argued that he

acted in self-defense. The McClendon court stated that where an

accused raises the defense of self-defense, the burden is on the

Commonwealth to prove beyond a reasonable doubt that the accused's

act was not justifiable self-defense, and the Commonwealth sustains

this burden if it establishes at least one of the following: (1) the accused

did not reasonably believe that he was in danger of death or serious

bodily injury or; (2) the accused provoked or continued the use of force

or; (3) the accused had a duty to retreat and the retreat was possible

with complete safety. Id. at 1229-1230. When the accused raises the

defense of self-defense, it is within the province of the jury to determine

whether the accused's belief that he was in danger of death or serious

53

bodily injury was reasonable, whether he was free of provocation, and

whether he had no duty to retreat. Id. (internal citation omitted).

Further, the McClendon court held that the self-

defense/justification instruction stating that the justification rule will not

apply if the defendant was negligent or reckless in bringing about the

situation requiring achoice of harms or evils was proper; the instruction

informed the jury that a defendant's recklessly bringing about the

difficulty which raised the necessity of his self-defense conduct would

defeat his defense of justification. Id. at 1233. The self

defense/justification instruction which permitted the jury to negate self-

defense if it found that the defendant recklessly brought about or

caused his rivals to fire their guns at defendant was a case-specific

instruction and was tantamount to the standard self-defense charge's

prohibition against provocation or continuation of the difficulty, and thus,

the instruction was adequate. Id.

Turning to the "castle doctrine", such doctrine is subject to a

similar, initial standard by which courts must assess the appropriateness

of aself-defense instruction, namely, that avalid claim of self-defense, or

54

the castle doctrine, must be made out as a matter of law, and this

determination must be made by the trial judge. The "castle doctrine' is an

evidentiary means by which a defendant may attempt to prove

justification by self-defense. Commonwealth v. Cannovo, 199 A.3d

1282, 1287 (Pa. Super. 2018). (internal citations omitted).

Potentially at issue in the case before us are the following

subsections of 18 Pa. C.S. §505:

(b) Limitations on justifying for use of force

(2.1) Except as otherwise provided in paragraph

(2.2), an actor is presumed to have areasonable

belief that deadly force is immediately necessary

to protect himself against death, serious bodily

injury, kidnapping or sexual intercourse

compelled by force or threat if both of the

following conditions exist:

(i) The person against whom the force is used

is in the process of unlawfully and forcefully

entering, or has unlawfully and forcefully entered

and is present within, a dwelling, residence or

occupied vehicle; or the person against whom

the force is used is or is attempting to unlawfully

and forcefully remove another against that

other's will from the dwelling, residence or

occupied vehicle.

55

(ii) The actor knows or has reason to

believe that the unlawful and forceful entry

or act is occurring or has occurred.

(2.2) The presumption set forth in paragraph (2.1)

does not apply if:

(iii) the actor is engaged in acriminal activity or

is using the dwelling, residence or occupied

vehicle to further acriminal activity; or

18 Pa. C.S. §505(b)(2.1), (2.2).

Therefore, we have set forth the principles of self-

defense/justification and the castle doctrine above. Our ruling herein

denying the Defendant's request for a court-appointed expert witness in

no way precludes the Defendant from asserting aself defense/justification

defense at the time of trial. Thus, we find no prejudice to him.

As to whether we actually charge the jury on self

defense/justification and/or the castle doctrine, we will defer any

decision relative thereto until after admission of the evidence during

trial and prior to closing arguments. (emphasis in original).

56

Our "final" pre-trial ruling was set forth in our January 13, 2020 Order [R.R. #30],

wherein we held, pertinent to this particular issue:

5. The Defendant's request for a Medical Expert, a Firearms

Expert and its own CGA Expert is denied. Relative to a CGA

expert, the Defendant has been provided the opportunity to

submit evidence deemed favorable to his defense to the CGA

expert, Officer Gibson, to re-create a CGA, at the

Commonwealth's expense.

As to a Medical Expert and Firearms Expert, all discovery in this

matter was provided by the Commonwealth to Attorney Anastasi

by November 19, 2018. The Commonwealth's pathologist report

and autopsy report have been in Attorney Anastasi's possession

for greater than one (1) year. We do not agree with the

Defendant's assertion that the Commonwealth's CGA somehow

constitutes "new evidence". The Commonwealth's CGA was

created based upon documentation provided in discovery (e.g.,

witness statements; the Defendant's statements; photographs;

the pathology report; etc.).

The jury selection and jury trial dates were established in our

Order of September 19, 2019. The Defendant's renewed request

for these expert witnesses is untimely. Attorney Anastasi asserts,

in her Petition, that "[b]ecause of the Commonwealth's

submission of their CGA imminent to trial the undersigned must

neglect general trial preparation time to adequately prepare the

CGA ... leaving the undersigned in the untenable position of

having to prepare the case at the same time as trying it."

[Petition for Continuance, ¶8]. The record does not support that

assertion. Attorney Anastasi has been involved in this case from

its inception, being originally hired as private counsel. We have

held several status conferences and pre-trial hearings. She has

been in possession of the Commonwealth's discovery for over

one (1) year. She has been aware of the trial dates for over three

(3) months. The information that the Commonwealth provided the

CGA expert to create the church parking lot animation derived

from evidentiary material exchanged in discovery. Likewise, the

evidentiary material that the defense would like to utilize in the

creation of its version of the CGA has been in the possession of

57

Attorney Anastasi for more than one (1) year. During our prior

status conferences and pre-trial hearings, Attorney Anastasi has

demonstrated that she is very familiar with the evidentiary

material exchanged in discovery. Thus, we have no doubt that

she can (and already has) identify evidentiary material that she

believes is favorable to the defense and provide same to Officer

Gibson.

Finally, we believe it is critical to quote from our prior Opinion

and Order dated July 9, 2019 (which we incorporate herein),

when we addressed the Defendant's initial request to appoint a

Medical Expert, more specifically, an expert in forensic

pathology, in the person of Dr. Michael W. Johnson of Allentown,

PA:

During our June 18, 2019 hearing, Attorney Anastasi

acknowledged that the defense is not questioning the

cause nor manner of death, nor are they questioning

the location of the bullet entry into the victim's body.

IT., p. 19]. Defense counsel expressed aconcern as

to whether the Commonwealth's medical expert may

opine that the victim was retreating at the time the

Defendant shot him and/or that the victim's head was

turned in aparticular direction. IT., pp. 16-18].

At the time of hearing, Attorney Weeks read into the

record the conclusion of the Commonwealth's

pathologist as to the cause and manner of death. IT.,

p. 21]. The Commonwealth's forensic pathologist

stated in his report: "Mr. Hoover was struck by a

single shotgun wound which injured structures within

the face, neck and upper region of the right chest. Of

greatest significance is complete transection of the

right carotid artery and perforation of the right

subclavian artery with copious associated

hemorrhage. Alignment of the various wound tracks

and abrasion margins place [the] muzzle of the

weapon on the decedent's left side and the

decedent's head turned to the left." IT., p. 211. There

is no indication by the Commonwealth's expert in his

report as to whether the victim was going forward,

turning around, etc. IT., pp. 21-22). Attorney Weeks

also noted that the theory of the Commonwealth's

case relative to the position of the victim depends, at

58

least in part, on the position of the Defendant's car.

There were shotgun shells found in the parking lot

area around the Defendant's car. [T., pp. 21-22].

Therefore, with there being no challenge to the cause

and manner of death opined by the Commonwealth's

medical expert, we find that that the Defendant has

not established a need for this court to appoint a

defense medical expert. His motion with respect

thereto is denied and dismissed.

[July 9, 2019 Opinion and Order, pp. 6-7]

[R. R. #30, Order of 1/13/20, pp. 3-7].

Ultimately, we did not charge the jury on the Castle Doctrine, but permitted the

Appellant to present his self-defense theory to the jury, which they rejected.

In summary fashion, we did not find that the Appellant ever established aneed

for the court to appoint the expert witnesses and investigator he sought. The

defense never established with any specificity the content, relevancy and materiality

of any proposed expert's proffered testimony. The defense did not dispute the cause

and manner of death of the victim. Upon his arrest, the Appellant provided a

statement to police admitting that he shot and killed David Hoover in the Bethany

Lutheran Church parking lot. His claim was that he acted in self-defense. His self-

defense theory was presented to the jury and rejected.

59

Finally, relative to the appointment of an investigator, the defense was

provided all discovery well in advance of trial. The defense has not set forth any

potential witness that they were unable to meet with or contact due to a lack of an

investigator, nor how they were prejudiced thereby.

We submit that each of these alleged errors lack merit.

9. Introduction of Computer-Generated Animation.

The Commonwealth put the Court and defense on notice in the early stages of

pre-trial proceedings of its intent to utilize computer-generated animation (CGA) in its

case-in-chief. We conducted hearing on January 6, 2020 and then entered an

Opinion and Order dated January 7, 2020 initially denying the Commonwealth's

request. [R.R. #27]. The Commonwealth filed aMotion to Reconsider on January 8,

2020. We scheduled further hearing on the motion and, thereafter, issued an Opinion

and Order dated January 9, 2020, wherein we granted the Commonwealth's Motion to

Reconsider, allowing presentation of the CGA during trial. [R.R. #28]. In our Order

with Opinion entered January 9, 2020, we stated the following:

AND NOW, this 9th day of January, 2020, after oral argument

held this date, it is hereby ORDERED, DIRECTED and

DECREED that the Commonwealth's Motion to Reconsider is

granted. Therefore, the Commonwealth shall be permitted

to present the computer generated animation (CGA) prepared

by Officer Jeremy Gibson during its case-in-chief. During the

trial and prior to the presentation of the CGA, and once again

60

during our closing charge to the jury, we will provide a

cautionary instruction to the jury, consistent with what was set

forth in the case of Commonwealth v. Serge, 896 A.2d

1170, 1186-1187 (Pa. 2006).

In our prior Opinion and Order entered January 7, 2020, we

specifically found that the Commonwealth met the first two

prongs set forth in Serge, supra., i.e., that the CGA was

properly authenticated through the testimony of Officer

Gibson; and that it was relevant, as it clearly, concisely and

accurately depicts the Commonwealth's theory of the case.

We are satisfied that the CGA will aid the jury in the

comprehension of the collective testimonies of the witnesses

without use of extraneous graphics or information. See

Serge, 896 A.2d at 1182.

What this court found problematic was the third prong, i.e.,

whether its probative value was outweighed by its prejudice.

In entering our Opinion and Order dated January 7, 2020, we

found that this third prong was not satisfied by the

Commonwealth. Such concern was based upon the

economic disparity between the Commonwealth and the

Defendant, as well as a prior request by the Defendant to

receive court funds to procure a shooting scene

reconstruction expert. In its Motion to Reconsider, and as set

forth during our hearing, the Commonwealth pointed out that

the Defendant's original pretrial motion requested two (2)

experts, including a "firearm, ballistics, force science, self-

defense and shooting scene reconstruction expert". Later, the

Defendant, in a supplemental pretrial motion, specifically

identified Emanuel Kapelsohn to be the court-appointed

expert in the field of Firearm and Ballistics, Force Science,

Deadly Force, Self-Defense Use of Force and Shooting

Scene Reconstruction. This expert was proffered as an

expert in the operation and use of firearms. As the

Commonwealth acknowledged, Mr. Kapelsohn is eminently

qualified in these areas, based upon review of his Curriculum

Vitae. There was, however, no proffer of this expert's

qualifications or experience relative to crime scene re-

creation, reconstruction, re-enactment, or more specifically

(as it pertains to our case), crime scene animation. Upon

review of Mr. Kapelsohn's C.V., we agree with the

Commonwealth that this expert is not qualified to produce a

CGA or other animation of the crime scene. Further, at no

61

time, either in writing or during any prior court proceedings,

did the defense ever request that an expert be appointed to

undertake aCGA until the January 6, 2020 hearing, and only

after the Commonwealth's presentation of its own CGA

through our evidentiary hearing.

Therefore, and importantly for our decision hereunder, the

Commonwealth has raised a substantial question as to the

validity of the basis for our original decision.

The Commonwealth has asserted that the CGA is a vital

piece of demonstrative evidence and that without same, it will

be handicapped from effectively presenting its case to the

jury. The Commonwealth states that the positions and

movements of both parties during the shooting constantly

changed and that there is no reasonable way for the

Commonwealth to accurately demonstrate the fluidity of the

Defendant and the decedent's positions based upon verbal

descriptions alone. Further, the positions of the Defendant

and decedent are instrumental in meeting the

Commonwealth's burden to dispute an anticipated self-

defense claim. The Commonwealth claims that the CGA is

its "best evidence" to demonstrate the trajectory of the

gunshot (the victim was struck from the right with his head

turned to the left), the distance of the gunshot (10 to 25 feet),

and the location of the decedent when he was struck

(Evidence marker 5) to support its theory of the case, i.e., that

the Defendant was not acting in self-defense and had two

clear paths to retreat.

During our hearing held this date, the Commonwealth

presented two possible remedies to address the court's

concern. We find each to be fair and equitable. The first is

that the Commonwealth's expert, Officer Gibson, is willing to

create a CGA based upon the Defendant's theory as to what

occurred in the church parking lot on the date in question, so

long as the information provided is based upon matters

exchanged in discovery (e.g., the Defendant's statements,

witness statements, photographs, pathology report, etc.). It is

our understanding that the measurements taken within the

church parking lot, where the shooting occurred, are not

disputed. The Commonwealth acknowledged that two

potential areas where the defense could seek a recreation of

the CGA is the angle of the trajectory of the shot, as well as

62

the position of the Defendant. Therefore, if the Defendant

desires Officer Gibson to recreate a CGA based upon the

defense theory as to what occurred in the church parking lot,

Attorney Anastasi shall make immediate and direct contact

with Officer Gibson to provide the information to be utilized in

the creation of the CGA for potential use by the Defendant, so

long as such information is factually possible based upon the

discovery exchanged to date. Attorney Anastasi shall contact

Officer Gibson and provide such pertinent information no later

than close of business WOO p.m.) on Friday, January 10,

2020. The parties shall fully cooperate in the identification

and production of such information/documentation to Officer

Gibson. Officer Gibson shall then recreate such CGA as

soon as possible thereafter. The admission of the

Defendant's CGA shall be subject to the same scrutiny we

employed relative to the Commonwealth's CGA, i.e.,

satisfying the three prong test set forth in Serge, supra.

In so ruling, we are satisfied that the remedy offered by the

Commonwealth provides the defense an opportunity to have

a"fair and equitable playing field".

As the Serge court opined: "The law does not, and should

not, prohibit proficient professional employment of new

technology in the courtroom. This is after all, the twenty-first

century. As such, we must turn to the traditional factors

considered in determining if a particular CGA is admissible."

896 A.2d at 1178.

In consideration of the above, we do not want to create a

precedent that in every case where the Commonwealth

desires to present a CGA to the jury, that all a defendant

needs to assert is economic disparity and force the trial court

to decide between one of two options, either precluding the

Commonwealth from use of a CGA, or utilizing significant

court funds to appoint the defendant his/her own expert.

A defendant does not have an absolute right to a court

appointed [expert]. [See, e.g., Commonwealth v, Bardo, 709

A.2d 871 (Pa. 1998)]. The Serge court also stated:

"Similarly, there can be no obligation to provide the defendant

the finances necessary to create a CGA of his or her own".

876 A.2d at 1185. The Commonwealth's offer, in effect,

63

presents an opportunity for the Defendant to create his own

CGA in this case.

The Defendant's request for a CGA to be created to include

the high speed chase that allegedly occurred prior to the

shooting in the church parking lot is denied. The CGA will be

limited to the events that occurred in the church parking lot.

[R. R. #28].

During our jury trial, the Commonwealth utilized the CGA during its case-in-

chief when it called Mark Adams to testify. Mr. Adams was with the decedent, David

Hoover, on the date of the subject incident. During Mr. Adams' testimony, the CGA

was utilized as demonstrative evidence to aid the witness in his explanation to the jury

as to the identification of his white vehicle and the blue Ford Fusion in which the

Appellant and Mr. Bryan were occupants; the movement of those vehicles both

immediately prior to and after the shooting, and the movement and position of David

Hoover leading up to the point of shooting. [R.R. #47, 9/28/20 T., pp. 76-80].

Before allowing the Commonwealth to show the CGA to the jury, we gave the

following cautionary instruction:

BY THE COURT: Okay. You may be seated.

Members of the jury, you're going to hear a reference

with Mr. Adams' testimony to computer-generated

animation, often referred to as CGA. The parties in a

case are permitted to use photographs, drawings and

other exhibits to illustrate apoint that they are attempting

to make in a case. This is what we refer to as

demonstrative evidence. We refer to this type of

evidence as demonstrative evidence as opposed to

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substantive evidence since it is offered merely to

demonstrate or illustrate a point rather than as actual

proof of that point. With the advent of the digital age,

computers are now used to produce this type of

demonstrative evidence. At a pre-trial hearing several

weeks ago, the Commonwealth presented the testimony

of Officer Jeremy Gibson of the State College Police

Department. We determined Officer Gibson --we found

Officer Gibson to be an expert witness in computer-

generated animation. He testified during this hearing that

the computer-generated animation, which will now be

shown to you is afair and accurate illustration as to how

this shooting allegedly occurred per the Commonwealth's

theory. Officer Gibson described how he produced the

three-dimensional drawings with computer software to

depict those opinions and, thereafter, transform them

onto this DVD to produce moving images, which will be

played for you. What you are about to be shown is

commonly referred to as a computer-generated exhibit.

There are two types of computer-generated exhibits. The

first is what we call a simulation and the second is what

we refer to as an animation. In a simulation, data is

entered into a computer which is pre-programmed to

perform certain calculations by applying, for example, the

laws of physics, mathematical formulas and other

scientific principles in order for the computer itself to draw

conclusions and to attempt to re-create an incident. The

end product of a simulation represents the computer

program's conclusion of what happened and the results

of the computer simulation serve as the basis for the

testifying expert's opinion of what happened. In contrast,

an animation is simply a graphic depiction or illustration

that an expert has prepared based upon the information

or data provided to him with his computations and

analysis. With an animation, the computer does not

perform any scientific calculations or develop any

opinions as is the case with the simulation. An

animation consists of computer-generated drawings,

which are assembled frame by frame and when viewed

sequentially produce the image of motion, thus, an

animation is merely a graphic depiction or illustration or

recreation which an expert witness has already devised

through the information and data provided to him with his

own calculations and analysis. Please understand that

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what you're about to view is an animation not a

simulation. This computer-generated animation is a

demonstrative exhibit, not substantive evidence and it is

being offered solely as an illustration of the

Commonwealth's version of events as recreated by

Officer Gibson. You should not confuse art with reality

and should not view the animation as a definitive

recreation of the actual incident. The series of pictures

which have been drawn by the computer and transferred

onto the tape for our review are no different from a

witness sketching aseries of drawings on paper and then

fanning those pages to portray moving images of his or

opinion. Remember, the demonstrative animation is only

as good as the underlying testimony, data, assumptions

and opinions that serve as the basis for its images and

the computer maxim, garbage in-garbage out applies

equally to computer animations. Like all other evidence

in this case, you may accept it or reject it, that is, the

computer-generated animation in whole or in part. I

caution you again that the animation may only be

considered for demonstrative purposes only. Always

bear in mind that the Commonwealth must still meet its

burden of proving all the elements of the offenses

charged beyond areasonable doubt. Thank you.

[R.R. #47, 1/28/24 T., pp. 73-76].

We gave an abbreviated version of the same instruction prior to utilization of

the CGA by Commonwealth expert witness, Dr. Kevin Whaley, as set forth below:

BY THE COURT: Members of the jury, you may recall

that Iread you cautionary instruction yesterday about

the computer-generated animation, often referred to as

aCGA. Ijust want to remind you again that a computer-

generated animation is offered to you solely as

demonstrative evidence and not substantive evidence,

and like all of the other evidence in this case, you may

accept it or reject it in whole or in part. Icaution you

again that the animation may only be considered for

demonstrative purposes only and please keep in mind

that the Commonwealth must still meet its burden of

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proving all the elements of the offenses charged beyond

areasonable doubt. Thank you.

[R.R. #54, 1/29/20 T., pp. 148-149].

Dr. Whaley utilized the CGA to assist the jurors in understanding his testimony

regarding the range of the shot, the position of the decedent including where he was

standing when he was shot, and the trajectory or path of the shotgun blast as it hit the

decedent.

[R.R.#54, 1/29/20 T., pp. 161-163; 164-166].

Finally, during our closing instructions, we gave the complete cautionary

instruction as set forth above. [R.R. #46, 1/3'1/20 T., pp. 177-178]. Thus, we are

satisfied that the Commonwealth satisfied the three prongs set forth in Serge, supra.

and that the CGA's presentation to the jury during trial greatly assisted the jury in

understanding the events surrounding the incident on July 26, 2018. Such

demonstrative evidence also helped the jury assess whether Appellant's self-defense

claim was valid.

Based upon the foregoing, we submit this alleged error lacks merit.

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10. Denial of Evidence of Mental Health Condition.

Applicable Law:

In general, the competency of awitness to testify is presumed, and the burden

of demonstrating incompetency of the witness falls on the party objecting to that

witness's competency. Commonwealth v. Short, 278 Pa. Super. 581, 586, 420 A.2d

694, 696 (Pa. Super. 1980); Commonwealth v. Anderson, 381 Pa. Super. 1, 7, 552

A.2d 1064, 1067 (Pa. Super. 1988). "The competency of a witness to testify is a

matter within the sound discretion of the trial judge, whose decision will not be

reversed absent a clear abuse of discretion." Commonwealth v. Trudell, 371 Pa.

Super. 353, 359, 538 A.2d 53, 56 (Pa. Super. 1988), citing Commonwealth v. Short,

278 Pa. Super. 581, 420 A.2d 694, 696 (Pa. Super.1980) and Commonwealth v.

Chuck, 227 Pa. Super. 612, 323 A.2d 123 (Pa. Super. 1974).

The breadth of discretion of the court in determining whether a witness is

competent is wide as the trial judge has the opportunity to personally observe and

evaluate the demeanor and sincerity of the witness. Commonwealth v. Trudell,

supra., citing Commonwealth v. Mangello, 250 Pa. Super. 202, 206, 378 A.2d 897,

899 (Pa. Super. 1977). When the witness is a sane adult, the court need not even

68

conduct inquiry into competency unless it has some doubt concerning the witness's

competency after having observed the witness. Id. citing Commonwealth v. Fulton,

318 Pa. Super., 470, 465 A.2d 650 (Pa. Super. 1983); Commonwealth v. Anderson,

supra, at 1067.

Discussion:

This allegation of error concerns Commonwealth witness, Robert Poullos, who

was a jailhouse informant who had a conversation with the Appellant in the

committing area of the Blair County Prison.'

During our June 18, 2019 pre-trial hearing, it was acknowledged that at one

point, Mr. Poullos was on suicide watch within the prison and eventually transferred to

Torrence State Hospital. No further details were ever developed of record. It is

conceded by the defense that as of the time of our pre-trial hearing, Mr. Poullos was

competent to testify. [R.R.#41, 6/18/19, T., pp. 35-36].

The Appellant never further developed the record as it pertained to the relevant

time frame when Mr. Poullos was under suicide watch or transitioned to Torrence

State Hospital, as compared to when he had his conversation with the Appellant in

the committing area of the Blair County Prison.

i1Vlr. Poullos' testimony is set forth in detail on pp. 9192 of this Rule 125(a) Opinion below.

69

We were able to observe Mr. Poullos' demeanor during his testimony. There

was no question in our mind that Mr. Poullos was fully competent to testify. Ultimately,

Mr. Poullos' statement to police, wherein he provided information based upon his

conversation with the Appellant, including the location of the expended shotgun shell

hidden in the middle of the woods at the Appellant's father's home, was verified by

police investigation.

We submit this alleged error lacks merit.

11. Introduction of Inflammatory Autopsy Photographs,

Applicable Law:

The admission of evidence is within the sound discretion of the trial court and

will not be reversed absent an abuse of that discretion. Commonwealth v.

Alderman, 811 A.2d 592, 595 (Pa. Super. 2002).

In determining whether evidence should be admitted, the trial court must weigh

the relevance and probative value of the evidence against the prejudicial impact of

that evidence. Evidence is "relevant" if it logically tends to establish amaterial fact in

the case or tends to support a reasonable inference regarding the material fact. Id.

citing Commonwealth v. Reid, 811 A.2d 530, 550 {2002}.

70

The question of admissibility of photographs of a corpse in a homicide case is

a matter within the discretion of the trial judge, and only an abuse of that discretion

will constitute error. When trial judge is confronted with gruesome or potentially

inflammatory photographs, the test for determining their admissibility is whether or not

photographs are of such essential evidentiary value that their need clearly outweighs

the likelihood of inflaming the minds and passions of the jurors. Commonwealth v.

Schroth, 388 A.2d 1034, 1036 (Pa. 1978).

A photograph which is not deemed to be inflammatory may be admitted so

long as it has relevance and can assist the jury's understanding of the facts of the

case before it. Where a photograph possesses gruesome or inflammatory qualities

likely to inflame the passions of the viewer, the court must apply the "essential

evidentiary value" balancing test. The rationale for the additional requirement of the

"essential evidentiary value" balancing test where the exhibit possesses inflammatory

potential is that afair trial demands exclusion of this possible source of prejudice even

though the evidence is otherwise relevant and competent, unless, that evidence is

essential to proof of the prosecution's case. Id., at 1036-1037.

71

A photograph will not be excluded merely because of its horrid or gruesome

qualities, but rather, the more inflammatory the photograph, the greater the essential

evidentiary value which must be demonstrated for it to be admitted. A photograph of

a corpse is not per se potentially inflammatory for purposes of determining its

admissibility. Id., at 1037.

Admission of photographs is largely within discretion of the trial judge, and the

fact that a photograph may be inflammatory or gruesome in itself is not sufficient to

exclude it; but if such photograph is admitted, the trial judge should warn the jury not

to allow its shocking nature to inflame their emotions or affect or influence their

verdict. Commonwealth v. Robinson, 249 A.2d 536, 538 (Pa. 1969).

The admission of photographs by the trial judge or lower court will not be

reversed except for palpable abuse of discretion. Id.

Discussion:

We conducted a separate hearing on November 6, 2019 in the presence of

counsel and the Appellant to review the autopsy photographs. We incorporate the

transcript from said hearing in its entirety. [R.R. #20]. During the hearing, Attorney

Weeks confirmed that the Commonwealth had met with Attorney Anastasi to review

the photographs. The Commonwealth, on its own accord, eliminated from

72

consideration for use at trial over 100 photos from the autopsy itself. [R.R. #20,

1116/19 T., p. 2]. The Commonwealth presented the autopsy photographs for which

there was no objection and then the photographs for which there was an objection.

During the November 6, 2019 hearing, the Commonwealth agreed to crop

and/or grayscale several autopsy photographs that were called into question. [R.R.

#20, 11/6/19, T., pp. 3, 6, 12, 13-14, 15-16, 28 & 30].

We made certain rulings on the admissibility of the autopsy photographs on the

record during our November 6, 2019 hearing, which we incorporate herein. We also

took certain photographs under advisement and then entered a subsequent Opinion

and Order on November 20, 2019, which we incorporate herein in its entirety. [R.R.

#18].

We would also note that before the autopsy photos were shown to the jury, we

provided the following cautionary instruction:

BY THE COURT: Members of the jury, before we show you the

autopsy photographs, Ijust want to instruct you as follows:

Members of the jury, Ijust want to caution you at this time you

are going to be shown certain autopsy photographs of the

victim, David Hoover. Some of you may be troubled by these

photos. It may invoke some emotion within you. It is very

important, however, that you do not allow the autopsy

photographs in any way to inflame your emotions or influence

your verdict. It is important that you keep in mind that emotion

and/or sympathy are not to be part of your assessment of the

evidence nor ultimately your deliberations and have nothing to

do with the duty that you are obligated to carry out. That duty is

73

to weigh all of the evidence fairly and impartially in fulfilling your

role as the true finders of fact. Thank you.

[R.R. #54, 1/29/20 T., pp. 147-148].

Therefore, we submit that the court and counsel engaged in extensive efforts

to lessen the gruesome nature of any autopsy photographs prior to trial. Further, we

are satisfied that the autopsy photographs admitted into evidence were relevant and

probative of the issues at hand and outweighed any prejudicial effect. The autopsy

photographs were utilized by the Commonwealth's forensic pathologist expert, Dr.

Kevin Whaley, to aid the jury in their understanding of the decedent's injuries and

cause and manner of death. [R.R. #54, 1/29120 T., pp. 147-157].

Finally, we provided the jury the cautionary instruction, as set forth above, so

as to ensure that their emotions would not be inflamed, nor would the photographs

affect or influence their verdict. As a result of the foregoing, we submit that this

alleged error lacks merit.

12. Denial of Motion to Suppress.

Contained within the Appellant's Omnibus Pretrial Motion for Relief filed April 1,

2019, was a Motion to Suppress [R.R. #8, p. 11, ¶¶47-53]. The Commonwealth filed

an Answer to the Appellant's Pretrial Motion for Relief on June 17, 2019. [R.R. #13].

74

We entered an Opinion and Order dated July 9, 2019 [R.R. #15] (which we

incorporate and re-state herein) that addressed, inter alia, the Appellant's suppression

motion as set forth below:

Applicable Law:

Where amotion to suppress has been filed, the burden is on the Commonwealth

to establish by a preponderance of the evidence that the challenged evidence is

admissible. Commonwealth v. Smith, 784 A.2d 182, 186 (Pa. Super. 2001) citing

Commonwealth v. James, 486 A.2d 376 (Pa. 1985).

Miranda warnings are required whenever a person in custody is interrogated

by law enforcement. A person is in custody whenever, "he is physically deprived of

his freedom in any significant way or is placed in asituation in which he reasonably

believes that his freedom of action or movement is restricted by such interrogation."

Commonwealth v. Chacko, 459 A.2d 311, 314 (Pa. 1983). Further, whenever a

defendant is in custody for any reason, he must be issued his rights prior to any

interrogation. ld,

The Commonwealth bears the burden of establishing whether a defendant

voluntarily and knowingly waived his right to counsel. Commonwealth v.

Meachum, 711 A.2d 1029, 1032 (Pa. Super. 1998). A waiver must be explicit in

75

order to be effective. Id. Such explicit waiver may be an oral, written or physical

manifestation. Id.

In order to determine the voluntariness of a waiver, it must be determined

whether, "the waiver was the result of an intentional choice that was not subjected

to undue governmental pressure. Commonwealth v. Ellis, 700 A.2d 948, 955 (Pa.

Super. 1997). To determine whether the waiver was knowing and intelligent, we

focus on, "whether the defendant was aware of the nature of the choice that he

made in relinquishing his Miranda rights." Id. A waiver may be knowing and

intelligent even though the person accused was medicated or under the effect of

medication where there is no evidence of any impairment of cognitive functions. Id

Before using a defendant's statement against him, the Commonwealth must

establish by apreponderance of the evidence that the statement was given freely and

voluntarily. Commonwealth v. Nester, 709 A.2d 879 (Pa. 1998). When adefendant

is informed of his rights, and he understands them and still makes a voluntary and

knowing statement, the statement is admissible. Commonwealth v. Baker, 614 A.2d

663 (Pa. 1992).

76

In order to determine the voluntariness of a confession and the validity of the

waiver of the right to remain silent, it is necessary to consider the totality of the

circumstances. Commonwealth v. Perez, 845 A.2d 779 (Pa. 2004); and

Commonwealth v. Baez, 720 A.2d 711 (Pa. 1998).

When assessing voluntariness pursuant to the totality of the circumstances, a

court should look at the following factors: the duration and means of the interrogation;

the physical and psychological state of the accused; the conditions attendant to the

detention; the attitude of the interrogator; and any and all other factors that could

drain a person's ability to withstand suggestion and coercion. Commonwealth v.

Edmiston, 634 A.2d 1078 (Pa. 1993).

Miranda warnings are not required where there is no custodial interrogation. A

person is in "custody" for purposes of acustodial interrogation, when he is physically

deprived of his freedom in any significant way, or is placed in asituation in which he

reasonably believes that his freedom of action or movement is restricted by the

interrogation. Commonwealth v. Nester, 709 A.2d 879 (Pa. 1998).

77

In addition, the courts have indicated that in evaluating the voluntariness of a

confession, the Supreme Court will give great weight to the fact that adefendant was

fully apprised of and expressly waived his Miranda rights, including the right to

counsel and the right to remain silent, before any substantive questioning began and

well before any alleged inducement to confess. Commonwealth v. Templin, 795

A.2d 959 (Pa. 2002).

Discussion:

During our June 18, 2019 hearing, Detective Sergeant Terry Merritts testified.

We found his testimony to be credible in all respects. As a result, we found that the

Appellant was in custody at the time he provided a statement to Detective Sergeant

Merritts within the intake area of the Altoona Police Department station. We further

found that the Appellant was provided his Miranda warnings, which the Appellant

acknowledged and that he voluntarily signed arights waiver form. The Appellant then

provided a statement for which there is both an audio and visual recording. At no

time did the Appellant ever request an attorney, nor did he ever indicate that he

wanted to cease cooperating and stop providing answers. [R.R. #41, 6/18/19 T., pp.

45--47]. There is no evidence that the Appellant was subject to undue influence,

pressure or coercion of any manner whatsoever. [R.R. #41, 6/18/19 T., pp. 47-48].

78

During his questioning, the Defendant responded to the questions in an appropriate

manner. [R.R. #41, 6118/19 T., p. 52]. He exhibited no signs of being under the

influence of any drugs, alcohol or medication. [R.R. #41, 6/18/19 T., p. 57].

Detective Sergeant Merritts had interviewed the Appellant on aprior occasion,

wherein a juvenile came forward and reported that he had been sexually assaulted.

The juvenile identified the Appellant as a witness to the prior sexual assault.

Detective Sergeant Merritts interviewed the Appellant as a potential witness. [R.R.

#41, 6/18/

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