Com. v. Watts, B.

J-S38038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BLAIR ANTHONY WATTS :

:

Appellant : No. 601 EDA 2024

Appeal from the Judgment of Sentence Entered December 13, 2023

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0001698-2023

BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 9, 2024

Appellant, Blair Anthony Watts, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas on December 13,

2023, following a murder trial for the death of the victim, Jennifer Brown. After

a careful review, we affirm.

The relevant facts and procedural history, aptly summarized by the trial

court, are as follows:

On January 4, 2023, N.M. Jennifer Brown’s son, arrived at

school wearing the same clothes as the day before and he had not

taken his medication that kept his behavior under control, which

was very out of the ordinary. (NT. Trial by Jury, V. I, 12/6/23, pp.

65-66, 70, 80, 81). Attempts were made by Brian Aikens, an

emotional support teacher at the Springford School District, to

contact the victim, but he never received a response. Id. 71, 76.

Mr. Aikens was concerned by this and he made sure that the bus

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S38038-24

driver brought N.M. back to school if his mother was not there at

the bus stop at drop off. Id. at 77.

Also on that date, Anita Pallitto, the victim’s mother, became

worried about her daughter because she was unable to get in

touch with her and she knew the school had been also trying to

reach her. Id. at 85. She contacted Appellant, because N.M. was

with him the night before. Id. Around 3:00 pm., she started to

panic and asked Appellant to go to her daughter’s house and try

to get inside. Id. at 87-88. Soon after, Ms. Pallitto received a call

from the bus company because her daughter was not at the bus

stop to receive N.M., and they could not release him to Appellant

who was waiting there for N.M. Id. at 89. She arranged for a

neighbor who was an approved person to do so. Id. Ms. Pallitto

testified that she knew her daughter was in business with

Appellant and that she had given him money. Id. at 90.

Timothy McMenamin, N.M.’s bus driver, testified that on

January 3rd, the victim was at the bus stop with her son in the

morning, but she was not there for pick up, which never happened

before. Id. at 95, 97. Rather, Appellant was there at pick up and

got N.M. off the bus on that day. Id. at 97-98. On January 4th,

Mr. McMenamin testified that Appellant was with N.M. at the bus

stop that morning. Id. At the end of the school day, the bus driver

was instructed not to let N.M. off the bus unless it was to an

approved person, which Appellant was not. Id. at 103-104.

Around 4:30 p.m. on January 4, 2023, Corporal Fitz Duffy

of the Limerick Police Department responded to a well-being check

at 1408 Stratford Court, the victim’s residence (N.T., Trial by Jury,

V. 2, 12/7/23, p. 98). There was no response from inside the

house. Id. at 99-100. Appellant was present at the scene, and he

told the officer about an open window. Id. at 100. The officer went

inside to search the house. Id. at 104. Appellant also told Corporal

Duffy that the victim was a drug addict that used Percocets and

needles. Id. at 102.

Patrol Sergeant Brian Tyler of the Limerick Township Police

Department was also present at the well-being check at the

victim’s residence. Id. at 18, 109, 110. Appellant was there and

speaking with other officers. Id. at 111. In an effort to create a

timeline, Sergeant Tyler who assisted in the search of the victim’s

home, observed that there was a message on the victim’s

computer from January 3rd at 2:43 p.m. that went unanswered

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and a reminder on the screen was not dismissed dated January

4th at 9:30 a.m. Id. at 115. Appellant told Officer Michelle Riley

of the Limerick Township Police Department that he last saw the

victim on January 3rd around 2:30 when he left her residence. Id.

at 133. Appellant explained to the officer his business relationship

with the victim, that she had invested $46,000 and owed him an

additional $5,000. Id. at 134.

On January 5, 2023, Detective Mark Minzola of the

Montgomery County Detective Bureau – Homicide Unit was asked

to assist with the investigation by Limerick Township Police

Department. Id. at 17, 18. In the course of the investigation,

video surveillance was gathered. Id. at 19. Detective Minzola also

obtained text messages from Appellant’s phone from September

2022 through November 2022. Id. at 25. These messages

revealed that over that period of time, the victim and Appellant

were in constant communication. Id. at 27-46. They frequently

arranged for N.M. to sleep at Appellant’s house and to hang out

with Appellant and his family. Id. During the various times that

N.M. was with Appellant and his family, the victim consistently

checked in with Appellant. Id. N.M. never slept over Appellant’s

house on a school night. Id. On the night of January 3rd, which

was a school night, there were no text messages between

Appellant and the victim. Id. at 46-47.

Tyerra Taylor, Appellant’s wife, testified that Appellant had a

restaurant business called Birdie’s Kitchen, but that it closed in

August of 2022. Id. at 53. Ms. Taylor knew the victim through

Appellant, and knew that she was becoming Appellant’s business

partner. Id. at 53- 54. Appellant was trying to open a new Birdie’s

restaurant with the victim. Id. at 55, 57. On January 2nd, Ms.

Taylor had dinner at the victim’s house, and she heard her talking

about the restaurant, that she was excited for it to open. Id. at

56-57, 58. Appellant also indicated that he was excited for the

restaurant to open. Id. at 57.

On January 6, 2023, Officer Brian Quipple, along with his

K9, Patton who were certified as a cadaver dog team, was

contacted and asked to assist in the investigation of a missing

person and he responded to Limerick Township Police Department.

Id. at 183-184, 188. Officer Quipple and Patton, in relevant part,

searched the victim’s residence, and Patton gave indications of

decomposition in the living room and kitchen. Id. at 191. On

January 8, 2023, he responded to a garage at 122 Mill Road in

Oaks where he and Patton searched a red Jeep Cherokee, which

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Appellant was known to drive. Id. at 22, 196. Patton gave

indications of decomposition to the driver’s side rear door and

floorboard. Id. at 196-197.

On January 6, 2023, Detective Jack Wittenberger of the

Montgomery County Detective Bureau, took a voluntary statement

from Appellant. Id. at 207-208. At the end of the statement,

Appellant consented to the search of his cell phone and consented

to a DNA swab. (N.T., Trial by Jury, V. 3, 12/11/23, p. 16).

Detective Terrance Lewis of the Montgomery County

Detective Bureau – Forensic Services Unit processed Appellant’s

vehicle on January 8, 2023. Id. at 142, 143-144. There was red-

colored dirt on the driver’s side floor and on the rear and cargo

area of the vehicle. Id. at 145-146. He took samples of this dirt.

Id. at 148. The detective also recovered dirt samples from the

shallow grave where the victim’s body was located. Id. at 149.

On January 16, 2023, Tyler Shane, an employee at ATM

Pump, located at North 5th Avenue, Royersford, was at work and

outside the emergency exit of the building, he noticed some

pallets arranged next to the building and some clumps of dirt on

top of the grass, which caused concern since he had not seen that

before. Id. at 110. At the direction of his supervisor he took

pictures on January 17, 2023, as he approached the pallet he

could see there was fabric, like a tarp, underneath. Id. at 111. He

took a photograph. Id. at 1123.

On January 18, 2023, Lieutenant Edward Schikel of the

Montgomery County Detective Bureau – Forensic Services Unit,

responded to ATM Pump warehouse, and he observed the

mounded dirt pile, which was the location of the burial site. Id. at

117, 121. The victim was removed from the shallow grave. Id. at

123, 127, 128.

Dr. Ian Saginor, a member of the FBI, was qualified as an

expert in geology. Id. at 153, 160. He compared the red-colored

dirt samples, and concluded that dirt from the vehicle cargo area

“cannot be differentiated from one of the soils recovered from the

grave site... by color, texture, and composition.[”] Id. at 169,

178-179.

Dr. Ian Hood who was accepted as an expert in forensic

pathology, conducted the autopsy. (N.T., Trial by Jury, V. 4,

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12/11/23, p. 20). Based on his clinical findings, the fact the victim

was recovered from a shallow grave, the lack of significant

toxicology findings, there were no external injuries, and minimal

injury upon his internal examination that were not lethal, and

signs of hypoxia, he ruled her death as homicide by unspecified

means – asphyxia not excluded. Id. at 23-26, 33-34. He included

“asphyxia not excluded” because it is the most common way to

kill someone and not leave a mark. Id. at 33. For instance, if the

victim had some kind of padding over her head or neck and was

being knelt on, that would cause death and still have a perfectly

pristine body. Id. It was written as “not excluded” because he

couldn’t say for sure she died this way, but it is a mechanism of

death that would lead to minimal findings. Id. at 34. Dr. Hood

rendered this opinion to a reasonable degree of scientific certainty.

Id. at 39.

At trial, the Commonwealth also presented evidence that

Appellant had been trying to secure a lease for his new restaurant

from Walter Zaremba around August or September of 2022. Id.

at 112, 114. On December 28, 2022, Mr. Zaremba notified

Appellant that he no longer wanted to lease the building to him.

Id. at 128. Appellant became persistent trying to convince Mr.

Zaremba to reconsider. Id. at 133. At one point Appellant became

agitated and upset. Id. at 133-134. Appellant attempted to lease

another location for his restaurant and contacted Michael Gola. Id.

at 137. Appellant filled out a rental application, and on January 4,

2023, he contacted Mr. Gola about the status of that application.

Id. at 141-144.

Meghan Gorman, a forensic accountant for the FBI, was

accepted as an expert in forensic accounting. Id. at 145, 148. She

reviewed the bank records for the victim and for Appellant. Id. at

149. She also reviewed CashApp and Zelle transactions. Id. In

total, there were seven transactions between the victim and

Appellant: August 29, 2022, the victim transferred money to

Appellant via Zelle; August 30, 2022 the victim transferred $3500

to Appellant via a cashier’s check; September 15, 2022, the victim

wrote a personal check to Appellant; October 20, 2022, the victim

transferred $2,600 via Zelle; December 2, 2022, the victim gave

Appellant a cashier’s check for $6,000; January 3, 2023, $8,000

was transferred to Appellant via Zelle; and on January 4, 2022,

$9,00[0] was transferred to Appellant via CashApp. Id. at 152-

158. Ms. Gorman testified that before many of these transactions,

Appellant had very little money in his account or a negative

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balance, and after the money was transferred to his accounts he

either took cash withdrawals or the transactions from his accounts

show[ing] that this money was used mainly on personal expenses,

and nothing indicative of establishing a business. Id. at 158, 160-

171.

Detective Minzola testified as to victim’s cell phone and

Google records. Id. at 184-185. The victim’s Google email account

contained a contract dated August 28, 2022, between her an

Appellant setting up their business relationship. Id. at 185-187.

Also the detective testified as to the text messages between the

victim and Appellant in the time period of October 3, 2022 through

January 3, 2023, and noted that there were over 4900 text

messages during that time. Id. at 191. In these messages

Appellant purportedly kept the victim up to date on the progress

of the new restaurant. For instance Appellant discussed the color

scheme for the new restaurant and various equipment he was

trying to secure. Id. at 201, 208. On September 6, 2022,

according to Appellant’s texts he was going to be picking up the

keys to the restaurant the following week. Id. at 209. On

September 8th, Appellant represented that had acquired a new

convection oven. Id. at 210. The flooring was being finished. Id.

He even told the victim he was meeting to set up an event for the

restaurant. Id. On September 13, 2022, Appellant’s text

represented that he was at the paint store and the kitchen was

gutted. Id. at 212. On September 18th, Appellant obtained a

stove and fryer. Id. at 213. Appellant even told the victim he was

planning the menu for the restaurant, ordering business cards,

and they discussed the restaurant website. Id. at 215-216. Over

time, Appellant asked the victim for more money for the

restaurant; and the victim transferred more money to Appellant’s

account. Id. at 201, 202, 205, 209, 210, 211. By the end of

October, Appellant continued to ask the victim for additional funds,

to get the restaurant ready. Id. at 219. By mid-November,

Appellant told the victim that he needed a hood for the kitchen

but that he couldn’t afford it and asked the victim for more money

in return for a larger ownership percentage of the business. Id. at

225-226. On November 21, 2022, Appellant indicated that he was

getting the restaurant together for opening. Id. at 225. On

December 16th, the victim told Appellant that they needed to get

together to talk about timeline and financials. Id. at 227. By

December 27th, Appellant told her that he is headed to the

restaurant, and on January 2nd, he told her he will have the

restaurant open by the end of the month. Id. at 228-229. The

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detective noted that none of the texts mentioned that Appellant

lost the lease on the restaurant location, or that he was looking

for another location. Id. at 233-234.

On January 3rd, there were messages between the victim

and Appellant at 9:40 a.m., 11:38 [a].m., 2:12 p.m., and at 2:18

p.m. she asked if he is coming by. Id. at 230-231. From 2:18 until

4:35 p.m., there are no messages, when at 4:35 p.m., a message

from the victim’s phone say[s], “Now we are 50/50 I can’t wait,”

alleg[edly] referring to a new partnership agreement. Id. at 231.

After 2:34 p.m., there was no more outgoing activity from the

victim’s phone, other than Appellant’s use of her phone. Id. at

235.

Detective Minzola also obtained surveillance video, and in

pertinent part, that depicted a vehicle of interest in the area of

ATM Pump where the victim was found in the shallow grave. Id.

at 250-253.

Agent Jeffrey Guagliardo, Special Agent with the FBI in

Philadelphia assigned to the Violent Crimes Task Force, was

qualified as an expert in historical cell site and location record

analysis. (N.T., Trial by Jury, V. 3, 12/8/23, p. 75, 85, 86).

Significantly, he testified as to the locations of the victim’s and

Appellant’s cell phone records and Google location records on

January 3rd and January 4th. (N.T., Trial by Jury, V. 5, 12/12/23,

p. 8). This evidence provided a timeline for the jury to consider.

Agent Guagliardo’s testimony showed that Appellant’s cell phone

was at the victim’s residence around 2:18 p.m. along with the

victim’s cell phone, the victim was last seen alive on surveillance

at her local Wawa around 2:54 p.m., and that her cell phone

returned to her residence 3:21 p.m. Id. at 14-18. Thereafter cell

phone analysis and Google location data revealed that Appellant’s

cell phone was at the victim’s residence between 3:21 p.m. until

4:11 p.m. on January 3, 2023. At 4:11 p.m., the victim’s cell

phone travelled to the bus stop; where the victim never arrived to

get her son from the bus. However, surveillance video showed the

vehicle of interest in that vicinity. Id. at 19. This indicated that

sometime between 3:21 p.m. and 4:11 p.m., the victim was no

longer in possession of her cell phone. Additionally, the agent

testified that there were several failed CashApp transactions

during the time the evidence showed Appellant was in possession

of the victim’s phone, in which there were attempts to transfer

$9,000 from the victim’s account to Birdie’s Kitchen. Id. at 19-21.

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Later, the victim’s cell phone traveled to the area of TKO Pest

Control, and surveillance during that time showed the vehicle of

interest in that area. Id. at 24. At 4:23 p.m., the $9,000 CashApp

transaction was successful. Id. at 24-25. Another CashApp

transaction was attempted a few minutes later but was

unsuccessful. Id. at 26. The victim’s cell phone traveled back to

the immediate area of her residence, and was there from 4:32

p.m. until 4:42 p.m. Id. at 27. There was a Zelle transaction from

the victim’s account to a phone number associated with Appellant.

Id. at 28. Around 6:48 p.m., the victim’s cell phone and

Appellant’s cell phones were in the area of his residence. Id. at

34-35. Appellant’s cell phone was back in the area of the victim’s

residence around 6:55 p.m. Id. at 36. The victim’s cell phone

remained in her residence overnight, while Appellant’s did not. On

January 4, 2023, around 6:36 a.m., Appellant’s cell phone was

back in the area of the victim’s residence, along with the victim’s

phone. Id. at 43-44. The last Google location record for the

victim’s phone was around 6:51 a.m., and between 6:48 and 6:57

a.m. the victim’s cell phone and Appellant’s cell phone traveled to

the area of a Wawa near Appellant’s residence. Id. at 43-45. This

is consistent with testimony that the last ping of the victim’s cell

phone was within 400 meters of that Wawa location, and the

testimony with the electronics K9 that indicated her phone was at

that location although ultimately not recovered. Id. at 46-47.

Image surveillance from that time period show the vehicle of

interest approaching the Wawa. Id. at 47. On January 5, 2023,

Appellant’s cell phones went to the area of the burial site between

8:27 p.m. to 8:40 p.m. Id. at 52, 55. Between the times of 8:25

p.m. to 8:27 p.m., Appellant’s cell phone records indicate being in

the area of North 5th Avenue and Main Street, and this is

consistent with video surveillance of the vehicle of interest

traveling from Main Street to North 5th Avenue. Id. at 52-54.

At the conclusion of the trial, a jury found Appellant guilty

of first-degree murder and he was sentenced to a life term of

imprisonment on December 13, 2023. A timely post-sentence

motion was filed on December 26, 2023, and denied on January

8, 2024. A timely notice of appeal was filed on February 8, 2024.

Tr. Ct. Op. at 1-14.

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Appellant filed his 1925(b) statement on February 29, 2024. The trial

court filed its opinion pursuant to 1925(a) on March 14, 2024. This appeal

follows.

Appellant raises four issues for our review:

1. Was the Commonwealth’s evidence, through its forensic

pathology expert—even when accepted as true—insufficient as a

matter of law in that it failed to present sufficient proof beyond a

reasonable doubt of each and every element required for first

degree murder—i.e., an intentional killing that is defined as one

caused “by means of poison, or by lying in wait, or by any other

kind of willful, deliberate and premeditated killing?”

2. Did the Commonwealth present an improper closing argument

statement by telling the jury that malice—as a basis for a finding

of guilt on a murder charge—in the instant case can be based on

this defendant’s alleged conduct subsequent to the alleged

murder?

3. Did the trial court commit reversible error by allowing the

Commonwealth to display to the jury a bloody and/or gory

autopsy photograph that was not only irrelevant but also was

inflammatory without the required substantial evidentiary value?

4. Did the trial court commit reversible error by not striking the

Commonwealth’s expert geology witness’ entire testimony when

that witness refused to testify, as required, that his testimony was

to a reasonable degree of scientific certainty?

Appellant’s Br. at 4-5.

Appellant frames his first issue as a challenge to the sufficiency of the

evidence. However, Appellant’s claim is really a weight of the evidence claim

as his argument in support of his sufficiency claim challenges the reliability

and credibility of expert witness, Dr. Hood’s testimony. Appellant’s Br. at 15.

Specifically, he suggests that the jury put too much weight on the doctor’s

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testimony, and he challenges the terminology that Dr. Hood used in his report

and his testimony. Appellant’s Br. at 11-13. Given the doctor’s use of

“speculative” language, Appellant argues the expert opinion is not reliable.

Appellant’s Br. at 12.

Appellate review of the sufficiency of the evidence does not include an

assessment of the credibility of testimony. Commonwealth v. Smyser, 195

A.3d 912, 916 (Pa. Super. 2018). Rather, credibility determinations are made

by the finder of fact, and challenges to credibility go to the weight, not the

sufficiency of the evidence. Id.; see also Commonwealth v. Melvin, 103

A.3d 1, 43 (Pa. Super. 2014) (explaining that challenges to the credibility of a

witness’s testimony go to the weight of the evidence and not its sufficiency).

Here, Appellant challenges the credibility and reliability of Dr. Hood’s

testimony; thus, it is a weight claim.

A challenge to the weight of the evidence must be preserved orally or in

writing prior to sentencing or in a post-sentence motion. Pa.R.Crim.P. 607(A).

Here, although Appellant’s appellate brief frames the issue as a sufficiency

challenge, Appellant did file a timely post-sentence motion raising a weight of

the evidence claim that is substantively similar to his appellate sufficiency

claim. Additionally, the trial court addressed this issue as a weight of the

evidence claim in its 1925(a) opinion. Accordingly, as our review is not

hindered, we will address Appellant’s first issue under the weight of the

evidence framework.

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To begin, we recognize that,

An appellate court’s standard of review when presented with a

weight of the evidence claim is distinct from the standard of review

applied by the trial court. Appellate review of a weight claim is a

review of the exercise of discretion, not of the underlying question

of whether the verdict is against the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and

quotation omitted). In order for an appellant to prevail on a challenge to the

weight of the evidence, “the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the court.”

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (citation

omitted). The weight of the evidence is exclusively for the finder of fact who

is free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses. Commonwealth v. Simmons, 662 A.2d 621,

630 (Pa. 1995). The function of the fact finder is to pass on the credibility of

witnesses and determine the weight to be accorded to a particular piece of

evidence. Id.

Here, Appellant contends that Dr. Hood’s testimony was unreliable for

several reasons. First, Dr. Hood testified that “there were no immediate or

obvious causes of death” and ruled the death attributable to homicide.

Appellant argues that Dr. Hood’s use of the phrase “attributable to homicide”

is distinct from “caused by homicide,” requiring the jury to engage in speculate

and conjecture. Appellant’s Br. at 12. Next, Appellant argues that the expert

testified the death was caused by “unspecified means” and thus the expert did

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not know and could not know the cause of death. Appellant’s Br. at 13. Finally,

Appellant argues that the expert testified that compression by asphyxia was

“a mechanism” that caused the death, but not “the mechanism.” Appellant’s

Br. at 13 (emphasis added). Appellant claims this language caused the jury to

engage in speculation and conjecture. Id.

Appellant argues that his claim that the jury relied on speculation based

on the expert’s “uncertain” language is proven by the fact that the jury

requested to see a copy of the medical examiner’s report during deliberations.

Appellant’s Br. at 17. Although the trial court properly did not provide the jury

the report, a re-reading of the pertinent portion of his testimony was granted

to refresh their recollection. Approximately fifteen minutes after the re-

reading, the jury reached its unanimous verdict of guilty of first-degree

murder. Id. Appellant believes the jury was confused about the medical

evidence’s application to his charges. Appellant’s Br. at 20.

Pennsylvania Rule of Evidence 702 governs expert testimony and states

that:

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

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

opinion or otherwise if:

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

knowledge is beyond that possessed by the average layperson;

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

knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue; and

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

field.

Pa.R.E. 702. The comment to this rule states that when a qualified expert

testifies, the weight of his testimony is for the trier of fact to determine.

Pa.R.E. 702 cmt.

In this case, it is undisputed that Dr. Hood was a qualified expert as a

forensic medical examiner.

Expert testimony is incompetent if it lacks an adequate basis in

fact. While an expert’s opinion need not be based on absolute

certainty, an opinion based on mere possibilities is not competent

evidence. This means that expert testimony cannot be based

solely upon conjecture or surmise. Rather, an expert’s

assumptions must be based upon such facts as the jury would be

warranted in finding from the evidence.

Commonwealth v. Ward, 188 A.3d 1301, 1311 (Pa. Super. 2018). “Experts

are not required to use ‘magic words’ and [] appellate courts must look to the

substance of the expert’s testimony to ensure the opinions were not based on

mere speculation but instead had a reasonable degree of medical certainty.”

Commonwealth v. Fitzpatrick, 316 A.3d 987, 1006 (Pa. Super. 2024)

(citing Commonwealth v. Spotz, 756 A.2d 1139 (Pa. 2000)).

In this case, Dr. Hood determined that the victim’s death was caused by

“homicide by unspecified means - asphyxia not excluded.” N.T., 12/11/23, at

34. The victim did not have obvious injuries, and the doctor did not see an

immediate or obvious cause of death. During the autopsy, he discovered three

hemorrhagic rib fractures on the victim’s left side. Because there was not an

overlying bruise, Dr. Hood testified that it was “more likely the ribs were

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cracked because the chest was being compressed.” N.T., 12/11/23, at 24. Dr.

Hood also found hemorrhages on the victim’s sternocleidomastoid muscle,

which is found in the neck, and on the end of her tongue. The doctor explained

that tongue hemorrhages can occur if someone seizes as they die, which often

occurs if the death is caused by hypoxia, or a lack of oxygen to the brain. N.T.,

12/11/23, at 22-25.

Dr. Hood further explained that in cases where a person in good health

with no other reason to be dead is found in a shallow grave, and there are no

significant toxicological findings, the death is commonly classified as homicide

by unspecified means. The doctor testified that his reason for the “asphyxia

not excluded” notation was because asphyxia is the most common way to kill

someone without leaving a mark. N.T., 12/11/23, at 33-34. Dr. Hood spent

several minutes explaining to the jury the process of compressional asphyxia.

N.T., 12/11/23, at 34-35. He concluded that the evidence was consistent with

the victim being killed in a compressional asphyxia fashion. Id. at 36.

Regarding the expert testimony, the trial court opined:

His opinion, which was held to a reasonable degree of

scientific certainty, was that given the circumstances: the victim’s

body was found in a shallow grave, there were no external

injuries, she had three fractured ribs, there was superficial

hemorrhaging of the neck muscle, hemorrhaging of her tongue

which indicated hypoxia, the victim was otherwise a healthy

woman, the lack of a lethal injury, and the lack of a toxicology

explanation for her death, that this was a homicide by unspecified

means - asphyxia not excluded. He thoroughly explained why he

designated this as a homicide by unspecified means and why

asphyxia was not excluded. It was “unspecified” because there

was no obvious lethal injury and “asphyxia not excluded” because

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in his expert opinion a compression asphyxia would account for

the lack of obvious lethal injury, the hemorrhaging of the tongue

that indicated hypoxia, and the other clinical findings of note. This

was his expert opinion, and he comprehensively explained the

underpinnings of his opinion. Defense counsel tried to undermine

Dr. Hood’s credibility by focusing on terminology that Dr. Hood

used in his report and in his testimony. Isolating this terminology

counsel thought would cast doubt on the expert opinion in the

mind of the jury. Dr. Hood explained on cross-examination the

meaning behind the terminology. Counsel focused on these terms

in isolation, in an attempt to disavow Dr. Hood’s expert opinion as

a whole. However, despite counsel’s attempt to diminish his

findings, Dr. Hood reiterated that his opinion [was] based on his

clinical findings and his expert knowledge as a forensic examiner.

Dr. Hood was qualified as an expert and was permitted pursuant

to Pa.R.E. 702 to “testify in the form of an opinion...” Additionally,

once a witness has qualified to testify as an expert, “the weight to

be given such testimony is for the trier of fact to determine.”

Pa.R.E. 702 cmt. Ultimately, the jury credited the expert testimony

as a whole, his findings, and explanations for these findings and

found defense counsel’s attempt to discredit that testimony

unsuccessful.

Tr. Ct. Op. at 24-25.

We agree. Dr. Hood’s testimony was based in a reasonable degree of

medical certainty and was not speculative, and the jury was free to determine

the weight to give the expert’s testimony. In addition to the expert testimony,

the jury heard evidence of, inter alia, the nature of Appellant’s relationship

and correspondences with the victim, the cellphone data showing Appellant in

the victim’s home around her time of death, cellphone data showing the

victim’s and Appellant’s phones together the day after her murder, and the

multiple attempts to transfer money from her phone to his restaurant.

Accordingly, the verdict was not against the weight of the evidence.

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Additionally, there is nothing in the record indicating that the jury was

confused or was “unable to reach a verdict of first degree murder” as Appellant

states in his 1925(b) statement. The court had instructed the jury that if they

could not agree on first-degree murder, not to mark the verdict sheet as to

first-degree murder and then proceed to deliberation on third-degree murder.

N.T., 12/12/23, at 80-81. When the jury announced it had reached a verdict,

the court clerk misspoke and asked the jury for its verdict on third-degree

murder. The court clerk, who should have begun by asking the jury’s verdict

on first-degree murder, took the verdict anew starting properly with the jury’s

decision on first-degree murder. The jury foreperson then stated that they jury

found Appellant guilty of first-degree murder. We are unpersuaded by

Appellant’s contention that the court clerk’s mistake in saying “third” instead

of “first” proves that the jury was confused about the evidence. N.T.,

12/13/23, at 7-8.

Appellant’s second issue challenges the trial court’s denial of his request

for a curative instruction after the Commonwealth’s closing statement.

Appellant’s Br. at 22. Specifically, Appellant argues that the Commonwealth

erroneously told the jury that a finding of “malice” can be based on the

Appellant’s alleged conduct subsequent to the victim’s death. Id. Both the trial

court and the Commonwealth assert that Appellant did not preserve the

challenge to the trial court’s refusal to provide a curative instruction. See Tr.

Ct. Op. at 31; See Appellee’s Br. at 22.

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To preserve a challenge to the adequacy or omission of a particular jury

instruction, the defendant must make a specific and timely objection to the

instruction at trial before the jury deliberates. See Commonwealth v.

Smith, 206 A.3d 551, 564 (Pa. Super. 2019); see also Pa.R.Crim.P. 647(C)

(“No portions of the charge nor omissions from the charge may be assigned

as error, unless specific objections are made thereto before the jury retires to

deliberate.”). More specifically, this Court has held that the lack of a

contemporaneous objection constitutes a waiver of any challenge to the

prosecutor’s closing remarks. Commonwealth v. Powell, 956 A.2d 406, 423

(Pa. 2008) (providing that the “absence of a contemporaneous objection below

constitutes a waiver of appellant’s current claim respecting the prosecutor’s

closing argument”); Commonwealth v. Butts, 434 A.2d 1216, 1219 (Pa.

1981) (providing that the failure to object during or after summation

constitutes a waiver of prosecutorial misconduct claim).

Here, following the Commonwealth’s closing statement, the court read

the jury instructions, the jury retired to deliberate, and the alternate jurors

were dismissed. N.T., 12/13/23, at 189-94. Defense counsel then requested a

curative instruction regarding the prosecutor’s discussion of malice, which the

court denied. Id. at 195.

We find that Appellant failed to preserve this issue for appellate review

because his counsel did not assert any objection, let alone a contemporaneous

objection, to the prosecutor’s above-referenced remarks.

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Appellant argues that requesting a cautionary instruction “immediately

after” jury instructions, before the jury finished deliberating, was timely.

Appellant’s Br. at 24. However, there was no objection at all by defense

counsel. The mere submission and subsequent denial of a jury instruction will

not suffice to preserve an issue, absent a specific objection or exception to

the trial court’s ruling respecting the points. Commonwealth v. Pressley,

887 A.2d 220, 225 (Pa. 2005). Accordingly, this issue is waived. 1

Appellant’s third issue is that the trial court erred in admitting three

autopsy photographs. Specifically, Appellant claims that the purported

probative value of the photographs was outweighed by the danger of unfair

prejudice. Appellant’s Br. at 25. The trial court determined in part that since

the cause of death was in dispute, the photographs were necessary for Dr.

Hood to explain his expert opinion to the jury. Tr. Ct. Op. at 32.

The admissibility of evidence lies “within the sound discretion of the trial

court, and a reviewing court will not reverse the trial court’s decision absent

____________________________________________

1 Even if we were not to find this issue waived, it is meritless because the

prosecutor’s remark was not improper. The Commonwealth told the jury that

in considering if “malice” was shown, the jury must consider all of the evidence

including the conduct of the actors involved. N.T., 12/12/23, at 154-55. The

Commonwealth went on to discuss Appellant’s conduct following the victim’s

death. Id. at 154-88. Appellant submits that “malice” pertains to an accused’s

state of mind at the time of the killing, not after. Appellant’s Br. at 22.

However, “malice is inferred from the totality of the circumstances, not just

the circumstances occurring before and during the [murder]. Actions of the

accused that occur before, during, and after are admissible as evidence to

show malice.” Commonwealth v. Gonzalez, 858 A.2d 1219, 1223 (Pa.

Super. 2004).

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a clear abuse of discretion.” Commonwealth v. Young, 989 A.2d 920, 924

(Pa. Super. 2010) (citations omitted).

When the Commonwealth seeks to introduce photographs of a

homicide victim into evidence, the trial court must engage in a

two-part analysis. First, the trial court must examine whether the

particular photograph is inflammatory. Commonwealth v.

Murray, . . . 623 Pa. 506, 83 A.3d 137, 156 (Pa. 2013). If the

photograph is not inflammatory, it may be admitted if it is relevant

and can serve to assist the jury in understanding the facts of the

case. Id. If the photograph is inflammatory, the trial court must

determine whether the photograph is of such essential evidentiary

value that its need clearly outweighs the likelihood of inflaming

the minds and passions of the jurors. Id.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).

Prior to Dr. Hood’s testimony, defense counsel raised an objection to the

admission of three photographs. N.T., 12/11/23, at 7-8. The photographs were

in color and showed the interior of the victim’s chest, rib area, and the victim’s

tongue. Arguments by the Commonwealth and defense counsel were placed

on the record. Id. at 8-9. The court ultimately decided to admit the

photographs providing the following reasons:

I do find that the probative value does far exceed the

prejudicial impact, that it’s necessary.

In many of these cases the cause and manner of death is

not in dispute. That’s not true here, so the expert pathologist will

need to explain his opinion, and the photographs will be displayed

briefly to allow him to do that, and the district attorney will orient

him first by showing him he photograph, and the photographs will

be up on the screen no more than ten seconds per photograph.

N.T., 12/11/23, at 8.

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The record further discloses that the trial court issued a cautionary

instruction to the jury prior to the photographs being admitted. The trial court

instructed the jury that there will be some unpleasant testimony from the

forensic pathologist and that photographs will be shown during that testimony

for about ten seconds in order to aid the witness and explaining his opinion.

N.T., 12/11/23, at 8-10. The court cautioned the jury not to let any unpleasant

testimony—such as the photographs—stir up emotions, and reminded the jury

that the verdict must be based on rational and fair considerations of all the

evidence. N.T., 12/11/23, at 10-11. Two of the photographs were admitted at

trial during Dr. Hood’s testimony, and he explained what each photograph

depicted prior to them being briefly published to the jury. N.T., 12/11/23, at

29.

Relevantly, the trial court notes the following:

In this case at issue was the cause of death, which was

complicated as there was a lack of obvious lethal injuries

externally or internally. Dr. Hood had determined that this was a

“homicide by unspecified mean – asphyxia not excluded.” It was

important for the jury to visually see the fractures to the ribs and

the minimal injuries surrounding them and the minimal injuries to

the superficial neck muscles. In fact, these photographs were just

as important for what they did not show as to the injuries that

were shown. These were key clinical findings that guided Dr.

Hood’s ultimate determination, and the photographs aided him in

explaining his expert opinion. These photographs were extremely

relevant and the probative value outweighed any prejudicial

effect.

Tr. Ct. Op. at 35 (emphasis added).

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We agree. Our review of the photographs discloses that they are not

inflammatory and would not shock the sensibility of the viewer, given the

nature of the expert’s testimony and the clinical significance of the injuries,

and given that the photos were only shown for a few seconds. Significantly,

the photos were of evidentiary value to explain Dr. Hood’s testimony regarding

the non-obvious nature of the injuries sustained by the victim. In particular,

the photos had evidentiary value to explain Dr. Hood’s testimony and his

conclusion in the autopsy report. See generally Woodard, 129 A.3d at 494.

Accordingly, we discern no abuse of the trial court’s discretion in admitting the

photographs.

Appellant’s fourth issue challenges the testimony of FBI Geologist Dr.

Saginor, the Commonwealth’s expert geology witness. Specifically, Appellant

argues that the testimony should have been stricken from the record because

he claims the opinion was not expressed with reasonable certainty. Appellant’s

Br. at 26.

Before we address this claim, we must first determine whether Appellant

preserved it for our review. In order to preserve an evidentiary challenge for

appellate review, a defendant must make a timely and specific objection to

the evidentiary ruling. See Commonwealth v. Thoeun Tha, 64 A.3d 704,

713 (Pa. Super. 2013) (holding that an appellant’s failure to raise a

contemporaneous objection to evidence at trial waives that claim on appeal);

see also Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008)

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(holding that in order to preserve an issue for appellate review, a party must

make timely and specific objection to ensure that the trial court has an

opportunity to correct the alleged error); Pa.R.E. 103(a) (providing that an

“[e]rror may not be predicated upon a ruling that admits or excludes evidence

unless . . . a timely objection . . . appears of record”); Pa.R.A.P. 302(a)

(providing that “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal”).

Here, Appellant states in his brief that Dr. Saginor’s “entire testimony

should have been stricken as requested.” Appellant’s Br. at 26 (emphasis

added). Appellant does not indicate when or how the “request” was made for

Dr. Saginor’s testimony to be stricken, and he provides no citation to the

record to show that this issue had been raised in the trial court.

Our review of the record shows that defense counsel at no time objected

to Dr. Saginor’s testimony. On cross examination, defense counsel asked Dr.

Saginor to clarify if his opinion was to a degree of scientific certainty, but still

did not make any objections. N.T., 12/8/23, at 182. Accordingly, because there

was no objection to this expert’s testimony, this issue on appeal is waived.

Judgment of sentence affirmed.

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Date: 12/9/2024

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