The opinion
J-S49011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARTHUR BURTON SCHIRMER
Appellant No. 2644 EDA 2013
Appeal from the Judgment of Sentence March 18, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002107-2010
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 23, 2014
Appellant, Arthur Burton Shirmer, appeals from the judgment of
sentence entered on March 18, 2013, following his jury trial convictions for
first-degree murder and tampering with physical evidence.1 After careful
consideration, we affirm.
The esteemed trial court set forth the applicable factual and procedural
history of this case as follows:
[…] Appellant was a pastor whose second wife, Betty
Schirmer, appeared to have died in a car accident in [July,]
2008. Following [the suicide of one of Appellant’s
parishioners, Joseph Musante, which occurred on or about
October 29, 2008, more than three months after Betty’s
death], the car accident was investigated further. The
police came to believe that [] Appellant critically injured his
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1
18 Pa.C.S.A. §§ 2502(a) and 4910, respectively.
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wife and then staged a car crash to make her impending
death appear to be an accident. [] Appellant’s first wife,
Jewel, also pre-deceased him after purportedly falling down
the stairs in 1999.[fn] The circumstances of Jewel’s death
were admitted into evidence for limited purposes pursuant
to Pa.R.E. 404(b).
* * *
On November 15, 2010, the Commonwealth filed a
criminal information.
On May 20, 2011, [] Appellant filed an omnibus
motion [alleging, inter alia, that suppression was warranted
based upon purported omissions and misstatements in the
affidavits of probable cause attached to the search warrants
that were issued].
On January 30, 2012, [the trial court] held the first
omnibus hearing. On February 7, 2012, [the trial court]
held the second omnibus hearing.
On March 19, 2012, [] Appellant filed a brief in
support of his omnibus motion. On April 4, 2012, the
Commonwealth filed a brief in opposition.
On May 18, 2012, [the trial court] entered an opinion
and order denying [] Appellant’s omnibus motion.
On June 1, 2012, [] Appellant filed four separate
motions in limine challenging the admissibility of certain
evidence on the basis of relevance, unfair prejudice, and
improper character evidence.
On August 14, 2012, [] Appellant filed a brief in
support of his motions in limine. On August 24, 2012, the
Commonwealth filed a brief in opposition.
On November 16, 2012, [the trial court] entered an
opinion and order denying [] Appellant’s motions in limine.
On January 22, 2013, [following a ten-day trial,] the
jury found [A]ppellant guilty of murder in the first degree
and tampering with evidence.
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On March 18, 2013, [the trial court] sentenced []
Appellant to life in prison without the possibility of parole for
the first[-]degree murder conviction. [The trial court] also
sentenced [] Appellant to three (3) to twenty-four (24)
months in prison for the tampering with evidence
conviction. On March 28, 2013, [] Appellant filed
post-sentence motions. On April 22, 2013, [] Appellant filed
a supplemental post-sentence motion and a brief in support.
On May 3, 2013, the Commonwealth filed a brief in
opposition.
On August 23, 2013, [the trial court] denied []
Appellant’s post-sentence motions.
[fn] […] Appellant was not on trial for the murder of Jewel
Schirmer. That alleged homicide occurred in Lebanon
County and Lebanon County had charged but not yet
prosecuted [] Appellant at the time of the instant murder
trial.
Trial Court Opinion, 11/12/2013, at 1-3 (most footnotes and superfluous
capitalization omitted). This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
1. Should the Commonwealth be permitted to introduce
irrelevant and presumptively prejudicial evidence that a
defendant might have murdered his first wife ten years
earlier to try to prove that he had now murdered his
second wife, where the deaths were separated in time
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2
Appellant filed a notice of appeal on September 19, 2013. On September
20, 2013, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely. The trial court filed an opinion pursuant to Pa.R.A.P.
1925(a) on November 12, 2013, largely incorporating its prior opinions
dated May 18, 2012 (denying Appellant’s omnibus motion), November 16,
2012 (denying Appellant’s motions in limine), and August 23, 2013 (denying
Appellant’s post-sentence motions).
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and the circumstances surrounding the two deaths were
different?
2. Where a man committed suicide after learning that his
reverend was having an affair with that man’s wife, can
such evidence be admitted at the trial of that reverend
for an unrelated murder when the sole basis for its
admission is that the man’s suicide sparked an
investigation into the unrelated murder of the reverend’s
first and second wives?
3. Did the introduction of altered digital images of luminal
glowing on a garage floor where the images never
existed in real life and only tended to confuse and
mislead the jury violate Pa.R.E. 403 and Pa.R.E. 901 in
this close circumstantial evidence case?
4. Are a [d]efendant’s [c]onstitutional [r]ights violated
when he is denied the ability to present relevant
testimony from a witness on his own behalf where that
witness was the hair dresser who saw the alleged victim
hours before her death and she would have testified that
she cut the hair of the alleged victim who did not appear
in distress or upset, and that it seemed to be a usual day
for her?
5. Do misstatements and omissions of facts and undisclosed
sources of expert opinion render a search warrant invalid
where the statements are necessary to establish that a
crime occurred and the police officer includes the
statements despite having evidence suggesting
otherwise?
Appellant’s Brief at 5-6 (suggested answers omitted).
In his first issue presented, Appellant contends that the trial court
erred by allowing the Commonwealth to present evidence, pursuant to
Pa.R.E. 404(b), pertaining to the death of Appellant’s first wife, Jewel, in
1999. Id. at 16. He claims:
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The death of his first wife [, Jewel,] in 1999, had only been
ruled a homicide as of 2012. However, the circumstances
of [Jewel’s] death were very different from the
circumstances surrounding [, Betty’s,] death. The
Commonwealth maintained that the murder of [Jewel] was
admissible because it went to prove [Appellant’s] intent and
it also rebutted [Appellant’s] claim that [Betty] died in an
accidental motor vehicle crash. The [Commonwealth’s]
introduction of evidence [relating to Jewel’s] murder was
not relevant to intent and had little if any probative value in
rebutting the claim of accident; rather, it simply suggested
that [Appellant] had killed before and would do it again.
Id. at 16. Appellant argues this matter is factually distinguishable from our
Supreme Court’s decision in Commonwealth v. Boczkowski, 846 A.2d 75
(Pa. 2004). Appellant’s Brief at 16-27.
“On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited.” Commonwealth v. Aikens, 990 A.2d 1181,
1184 (Pa. Super. 2010) (citation omitted). “A trial court's decision will not
be reversed absent a clear abuse of discretion.” Id. “[An a]buse of
discretion is not merely an error of judgment, but [occurs only] where the
judgment is manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality, prejudice,
bias or ill will.” Id. at 1184-1185.
“Evidence is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. “Evidence that is not
relevant is not admissible.” Pa.R.E. 402. Further, even if evidence is
relevant, “[t]he court may exclude relevant evidence if its probative value is
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outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
With regard to Pa.R.E. 404:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal
propensity. Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of
mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the
trial court is obliged to balance the probative value of such
evidence against its prejudicial impact.
Aikens, 990 A.2d at 1185 (citation omitted).
In Boczkowski:
Independent trial evidence established that [Boczkowski’s]
former wife, Elaine Boczkowski, had been found dead in her
bathtub in Greensboro, North Carolina, on November 4,
1990. The factual circumstances of that death bore a
marked similarity to the circumstances surrounding
Maryann's [1994] death [in Ross Township, Pennsylvania]:
Elaine died in her bathtub, Maryann in a hot tub. Both
women were in their thirties and in good health.
[Boczkowski] reported to the North Carolina police that
Elaine had been drinking alcoholic beverages before
entering the bathtub; he told Ross Township police that
Maryann had been drinking prior to entering the hot tub.
[Boczkowski] told police in both jurisdictions that he and his
wife had a minor argument on the evening before the
death. In each case, police noticed that [Boczkowski] had
fresh scratch marks on his arms, hands and torso shortly
after his wife's death. The autopsies of both women
revealed that they had died from asphyxiation, not
drowning.
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Commonwealth v. Boczkowski, 846 A.2d 75, 82 (Pa. 2004).
The Boczkowski Court determined that evidence regarding Elaine’s
death was admissible in Maryann’s murder trial, because:
Given the remarkable similarity between the manner in
which both of [Boczkowski’s] wives were killed, evidence
concerning the circumstances of Elaine's death supported a
reasonable inference that Maryann's death was not
accidental, but rather, was a result of [Boczkowski’s]
deliberate act. We agree with the Superior Court that the
evidence was highly relevant and that its probative value
outweighed any potential for unfair prejudice. As to the last
point, we note that the trial court repeatedly and clearly
charged the jury that the evidence was admitted for the
limited purpose of excluding accident as the manner of
death, and could not be considered for any other purpose.
[Commonwealth v.] Spotz, 756 A.2d [1139,] 1153 [(Pa.
2000)](fact that trial court clearly instructed jury that it
could only consider other crimes evidence for relevant
limited purposes and not merely as evidence of appellant's
propensity to commit crimes weighed against claim of
error).
Boczkowski, 846 A.2d at 89.
We do not believe that the factual discrepancies between the murders
in the present case, and those which occurred in Boczkowski, were so
overwhelming as to preclude application of the rule followed by our Supreme
Court in that case. Here, the trial court determined that the deaths of Jewel
and Betty were substantially similar and that the probative value of evidence
pertaining to Jewel’s death outweighed its prejudicial effect. The trial court
concluded that “[t]he evidence of the similarities between the cause of death
in both cases – Jewel and Betty – could support a conclusion that Betty’s
death was not the result of an accident but was instead the intended
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consequence of [Appellant’s] behavior.” Trial Court Opinion, 11/16/2012, at
5. The trial court further noted:
Dr. Wayne Ross, a forensic pathologist reviewing the
records of both Jewel Schirmer and Betty Schirmer, found
that the damage to the scalp and skull showed remarkably
similar patterns on both women. Dr. Ross opined that the
evidence in both records was suggestive of staging. Both
women lived for a short time after their respective
“accidents” and died later at the hospital. [Appellant] was
allegedly devoid of emotion at both accident scenes. There
is some evidence of [Appellant] having extramarital affairs
in both cases. In both instances [Appellant] is the only
person known to have been with the victims prior to the
accidents. Thus, if there [were] foul play in the deaths of
the two women, [Appellant] would be the only logical
suspect as no others were present. [Appellant] argues that
Betty’s death was accidental. The Commonwealth must
prove that this is not true and that [Appellant] caused
Betty’s death. Evidence of a strikingly similar [prior] death
is relevant evidence for the Commonwealth that the
[present] death was not accidental, and was instead the
intended consequence of [Appellant’s] deliberate actions.
[…]
[The trial court then] consider[ed] and balance[d] the
competing interests at stake. The deaths of [Appellant’s]
two wives do bear many similarities[, h]owever, a
significant amount of time did elapse between the two
deaths. Additionally, the evidence of Jewel’s death [is]
extensive, and there is a definite concern that essentially a
trial within a trial will result. This carries a danger of
distracting or confusing the jury, a danger that [the trial
court] carefully considered. Nevertheless, [the trial court
found] that evidence of Jewel Schirmer’s death [was]
directly relevant, both as evidence of [Appellant’s] intent
and to rebut his claim that the death [of Betty] was
accidental. The comparison of head injuries – one resulting
from an alleged fall down the stairs, and the other from a
car accident – is far more probative than an analysis of the
head trauma experienced only by Betty Schirmer. While the
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evidence is certainly prejudicial, [the trial court did] not find
that the probative value [was] outweighed by the prejudice.
Id. at 5-6.
Upon review, we discern no abuse of discretion in admitting evidence
of the death of Appellant’s first wife, Jewel. Appellant claims his second
wife’s death was an accident. Pursuant to Pa.R.E. 404(b)(2), the
Commonwealth was permitted to rebut that defense with evidence of Jewel
Schmirer’s death to show an absence of an or accident. We reject
Appellant’s contention that this case is factually distinct from Boczkowski.
Here, Appellant claimed that both of his wives’ deaths were accidental. 3
Despite the fact that the alleged accidents appeared to be distinct, both
women had almost identical head wounds that suggested they had been
bludgeoned with a long cylindrical object such as a crowbar before the
staging of the alleged accidents. More specifically, Dr. Wayne Ross at trial
opined:
So the comparison is traumatic brain injury for both
individuals, Jewel Schirmer, Betty Schirmer, multiple
impacts to multiple sides of the head. Craniotomies are on
the left side of the head, lacerations times two on the right
side of the head. The lacerations look similar. The
lacerations have similar orientation, going up and down.
And the lacerations are compatible with impacts with a long
cylindrical object, a crowbar, or other things.
So, the comparison, what we call similarities, are
extremely similar. And as a forensic pathologist, when
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3
Appellant claimed that Jewel died as a result of a fall down a set of stairs.
He claimed that Betty died as a result of a motor vehicle accident.
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we’re drawing conclusions about reconstructing injuries and
accidents, we look at the pattern of injuries. We look at the
similarities. We look at the crime scene, and we try to piece
it all together so we are able to draw conclusions about the
cause of death, the manner of death, but also conclusions
about the scenes.
N.T., 1/15/2013, at 90-91. The similarities in the manner of both women’s
deaths were evidence of lack of an accident. Moreover, like in Boczkowski,
Appellant was the last person who was with the victims in both cases. The
trial court carefully weighed the probative value of the evidence with the
potential prejudice.
Additionally, the trial court issued cautionary instructions, immediately
after testimony pertaining to Jewel Schirmer’s death and during the official
jury charge prior to deliberations. N.T., 1/15/2013, at 100-102; N.T.,
1/22/2013, at 157-158. Those instructions specified that the jury was only
to consider evidence of Jewel’s death for the limited purpose of determining
the absence of an accident, as mandated by Rule 404. “The jury is
presumed to have followed the court's instructions.” Commonwealth v.
Akbar, 91 A.3d 227, 233-234 (Pa. Super. 2014). For all of the foregoing
reasons, Appellant’s first issue lacks merit.
In his second issue presented, Appellant claims the trial court erred by
permitting the Commonwealth to enter evidence at trial regarding the
suicide of Joseph Musante, one of Appellant’s parishioners.4 Appellant’s Brief
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4
Mr. Musante was the husband of Appellant’s administrative assistant. N.T.,
1/11/2013, at 120; N.T., 1/14/2013, at 115. Mr. Musante broke into
(Footnote Continued Next Page)
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at 28. Appellant asserts that “the suicide as presented merely tended to
establish that [Appellant] was a bad person and had contributed to the death
of Joseph Musante” and “merely a guise for introducing irrelevant prior acts
evidence in this case.” Id. at 31. Appellant contends that the trial court
agreed that evidence tending to show that Appellant caused the death of Mr.
Musante would pose substantial prejudice, but then permitted the admission
of five witnesses who testified about the suicide, “graphic photographic
evidence” including a photo of Mr. Mustante’s lifeless body seated behind
Appellant’s desk, a letter written by Mr. Musante’s sister to church officials
which “states that [Appellant] shares in responsibility for [Mr.] Mustante’s
death[.]” Id. at 33. Appellant argues “if police needed to describe why
the investigation was reinitiated four months after the death of [Appellant’s]
second wife, the Commonwealth could have done so with far less detail then
was admitted in this case.” Id. at 34.
The Commonwealth proffered evidence pertaining to Mr. Musante’s
suicide as an effort to explain to the jury why the investigation into the
death of Betty was reopened after its initial closure as an accident, and to
offer the jury a complete story on the factual background of the instant
offenses. Again, “[r]ulings on the admissibility of evidence are within the
_______________________
(Footnote Continued)
Appellant’s office at the church and committed suicide while sitting at
Appellant’s desk. N.T., 1/11/2013 at 47-56. Mr. Musante believed that his
wife and Appellant were having an affair. Id. at 120.
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discretion of the trial judge, and such rulings form no basis for a grant of
appellate relief absent an abuse of discretion.” Commonwealth v. Green,
76 A.3d 575, 583 (Pa. Super. 2013) (citation omitted). “While it is true that
evidence of prior crimes and bad acts is generally inadmissible if offered for
the sole purpose of demonstrating the defendant's bad character or criminal
propensity, the same evidence may be admissible […] where the acts were
part of a chain or sequence of events that formed the history of the case and
were part of its natural development.” Id. “The ban on prior bad acts
evidence, and the lion's share of associated exceptions … are set forth in
Pa.R.E. 404(b)[,] however, [t]he res gestae or ‘history of the case’
exception, however, does not spring from Pa.R.E. 404.” Id. Such exception
is described as a:
special circumstance, one where evidence of other crimes
[or prior acts] may be relevant and admissible ... where
such evidence was part of the chain or sequence of events
which became part of the history of the case and formed
part of the natural development of the facts. This special
circumstance, sometimes referred to as the “res gestae”
exception to the general proscription against evidence of
other crimes [or prior acts], is also known as the “complete
story” rationale, i.e., evidence of other [] acts is admissible
“to complete the story of the crime on trial by proving its
immediate context of happenings near in time and
place.”
Id. at 583-584 (internal citations omitted; emphasis in original).
Here, the trial court determined:
[E]vidence regarding the suicide of Joseph Musante and
the affair between his wife and [Appellant] was relevant. …
[The trial court] considered the evidence of the suicide
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carefully. The suicide was a critical event in triggering the
police investigation. In fact, due largely to [Appellant’s]
staging of the [car] accident [that Appellant claimed caused
Betty’s death], police did not initially conduct a thorough
investigation of the car accident. The break-in at the
church and suicide in [Appellant’s] office were the events
that caused police to take a second look at [the death of
Appellant’s] second wife, and ultimately triggered an
investigation into the death of his first wife as well. Without
evidence of the suicide, the Commonwealth’s case would
have been severely disadvantaged as the timeline would
have been confusing. An unexplained gap in the timeline
and investigative process would have had potential to
confuse and distract the jurors. The Commonwealth did not
indicate that [Appellant] caused the death of Joseph
Musante nor did they argue that [Appellant’s] “bad act” of
engaging in an [] affair with Mr. Musante’s wife meant that
[Appellant] was a bad person and thus guilty of murder.
The testimony regarding the suicide was instead
admitted to explain the course of events, particularly the
course of investigation. The suicide and testimony from
family members gave context for statements made by
[Appellant] to church authorities during an investigation by
church officials. [Appellant’s] statements to Bishop [Peggy]
Johnson that his wife’s seatbelt had “come undone” at the
moment of impact was used to explore the various different
stories [Appellant] provided regarding the actual mechanics
of the accident that he claimed caused [Betty’s] death.
Absent any testimony regarding the suicide and related
affair between [Appellant] and Mrs. Musante the trial would
have consisted of testimony that was illogical and
disconnected. Further, as [the trial court] stated in [its]
November 16[, 2012] opinion:
Additionally, evidence of the affair and suicide
are not highly prejudicial. The suicide is temporally
distinct from the alleged homicide. Evidence of it
serves as explanation for the resurgence of
investigation into Betty’s death. It is not likely to
confuse the jury and it is unlikely that the jury will
be distracted from the task at hand – determining
whether [Appellant] killed his wife – by evidence that
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Joseph [Musante] killed himself. There is no reason
to conclude that the jury would be so inflamed by
evidence of the suicide that they would determine
[Appellant’s] guilt on a basis other than the evidence
relating to the death of his wife.
Similarly, while evidence of the affair may
be prejudicial, this prejudice does not outweigh
its probative value. Without evidence of the
affair, the suicide is illogical, and without the
suicide, the timeline of the investigation would
appear completely baffling. Such a logical gap
would in fact be more likely to distract the jury from
their careful consideration of the evidence of guilt or
innocence than the evidence of the affair and suicide.
Without this evidence, there are clear logical gaps in
the Commonwealth’s “story.”
Trial Court Opinion, 8/23/2013, at 13-14 (emphasis added).
Here, the evidence of Mr. Musante’s suicide was close in time and
place to the criminal investigation surrounding Betty’s death and necessary
to complete the whole story as to why her death was deemed an accident
originally, but was subsequently reopened. The investigation was
complicated, made difficult by the fact that Betty’s death appeared staged,
and involved multiple authorities from both the church and police
departments. Throughout the investigation, Appellant gave conflicting
stories to church officials and the police that formed the basis for the natural
progression of the investigation. Thus, evidence of the suicide was clearly
relevant to complete the story regarding the charged offenses. Moreover,
the suicide was completely distinct from Appellant’s charged crimes and the
minimal likelihood of the jury convicting him on such evidence was
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outweighed by the probative value of evidence of the suicide. Furthermore,
upon independent review, the Commonwealth did not inappropriately argue
that Appellant caused Mr. Musante’s death or that causing someone to
commit suicide was consistent with the murder of Appellant’s second wife.
The evidence was tailored to the investigation and formed part of the chain
or sequence of events which became part of the history of the case. As
such, we discern no abuse of discretion or error of law by the trial court in
admitting evidence of Mr. Musante’s suicide.5 Thus, Appellant’s second issue
is meritless.
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5
We briefly address Appellant’s alternative assertion that the prejudice of
the cumulative evidence of Mr. Musante’s death outweighed its probative
value. Appellant claims that it was improper for the trial court to have
permitted the Commonwealth to admit into evidence a photo of Mr.
Mustante’s lifeless body seated behind Appellant’s desk, a letter written by
Mr. Musante’s sister to church officials, and the testimony of five witnesses.
Appellant’s Brief at 33.
Initially, we note that the photograph and the letter to church officials are
not contained in the certified record. The certified record consists of the
“original papers and exhibits filed in the lower court, the transcript of
proceedings, if any, and a certified copy of the docket entries prepared by
the clerk of the lower court.” Pa.R.A.P.1921. “Our law is unequivocal that
the responsibility rests upon the appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.” Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006). “[A]ny document which is not
part of the officially certified record is deemed non-existent—a deficiency
which cannot be remedied merely by including copies of the missing
documents in a brief or in the reproduced record.” Id. at 6. “Simply put, if
a document [or photograph] is not in the certified record, the Superior Court
may not consider it.” Id. at 7. Thus, due to the failure to include the
exhibits in the certified record, we are unable to review them and, therefore,
(Footnote Continued Next Page)
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In his third issue presented, Appellant claims that the trial court erred
by allowing “digitally altered images” depicting luminol testing 6 because the
admitted photographs7 were “fabricated” and made “the garage floor look
like it was covered in blood.” Appellant’s Brief at 35. More specifically, he
argues that “[t]hese digitally altered images were not fair and accurate
depictions of how the lumin[o]l looked on the garage floor, and the
alterations to the photographs were never noted by the State Police and
therefore the process and system used to create them could not even be
described at trial.” Id. at 36. Thus, he contends that “the introduction of
_______________________
(Footnote Continued)
may not consider whether evidence of the photograph and letter to church
officials in relation to Mr. Musante’s death was unduly prejudicial.
Regarding Appellant’s claim that the Commonwealth unnecessarily presented
five witnesses to testify about the suicide, we conclude that the trial court
did not abuse its discretion in permitting such testimony. Upon review, no
one witness was able to explain the affair and subsequent suicide in the
context of both the church and police investigations. As previously stated,
this was a complex matter made difficult by staging the death to look like an
accident. Based upon our standard of review, we conclude that the trial
court properly weighed the prejudicial nature of the aforementioned
evidence with its probative value and we discern no abuse of discretion in its
admission at trial.
6
Luminol is a chemical that illuminates when it contacts the iron component
of blood. Commonwealth v. Williams, 854 A.2d 440, 443 (Pa. 2004).
7
Again, the actual photographs of the luminol testing are not contained in
the certified record and we may not consider them. See Pa.R.A.P.1921;
Preston, 904 A.2d at 7. However, we are able to reach the merits of
Appellant’s argument based upon our review of the witness testimony
pertaining to luminol photography as presented at trial.
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those images only tended to confuse and mislead [the] jury[.]” Id. at 35-
36.
Our standard of review is as follows:
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. The requirement of
authentication or identification is codified at Pennsylvania
Rule of Evidence 901, 42 Pa.C.S.A.: “(a) General provision.
The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what its proponent claims.” Pa.R.E. 901(a). Testimony of a
witness with personal knowledge that a matter is what it is
claimed to be may be sufficient to authenticate or identify
the evidence. Pa.R.E. 901(b)(1).
Abuse of discretion is shown in the record where the court
does not apply the law in reaching judgment, or exercises
manifestly unreasonable judgment, or judgment that is the
result of partiality, prejudice, bias, or ill will.
Commonwealth v. Mitchell, 883 A.2d 1096, 1109-1110 (Pa. Super. 2005)
(internal citations omitted).
On the issue of the photographs depicting luminol testing, the trial
court herein determined:
At trial, the Commonwealth submitted various images of the
blood which luminesced in the garage of [] Appellant’s
parsonage. What [] Appellant pervasively phrases as
“computer generated images” are, in fact, the overlaid
photographs of the garage when it was lit and the garage
when it was dark. The photograph overlay process occurs
thus: A camera is placed in a certain position and takes a
photograph while the room’s lights are on; without moving
the camera, the photographer then takes another
photograph when the room’s lights are off. The photograph
of the luminescing blood is then overlaid onto the
photograph of the lit room. Luminol photography must be
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conducted in almost complete darkness in order to view the
luminescence. Considering the dark background of the
luminesced photograph, the photographs were combined
into a single image in order to show the location of the
blood in the garage. The blood’s location would, otherwise,
be very difficult for the jury to determine. Adobe Photoshop
was employed in order to combine the photographs.
Trial Court Opinion, 11/12/2013, at 5.
Upon review of the record, we conclude that Appellant is not entitled
to relief. The Commonwealth presented the testimony of Pennsylvania State
Police Trooper John Corrigan, who the trial court accepted as “an expert in
crime scene processing, evidence collection, enhancement techniques,
including the use of luminol.” N.T., 1/9/2013, at 70. Before admitting
photographs of the luminol testing, Trooper Corrigan identified them and
stated that the photographs fairly and accurately depicted the luminol
testing process. Id. at 94. “Luminol is an enhancement or a detection of
blood” that is “mostly used at crime scenes for blood that’s not visible to the
naked eye or from blood that’s already been cleaned up.” Id. at 95. Police
conduct testing in the dark, because they spray luminol onto an area of the
search and a chemical reaction creates a blue glow that indicates a reaction
to blood. Id. at 96. Trooper Corrigan applied luminol to Appellant’s garage
and took a photograph in complete darkness of areas that were luminescing.
Id. at 96-98. He then took a flash photograph from the identical location to
show the affected area in the light. Id. at 98-99. The photographs were
properly authenticated and accurately showed the garage in the light and
dark.
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Utilizing computer technology, Trooper Corrigan then overlaid the two
photographs to show the relationship between the glowing luminol and the
physical layout of the garage. Id. at 99-103. Trooper Corrigan testified
that he layers the photographs on top of one another because
if [he] show[ed] you a true luminol photograph you’re going
to see little blue specs, and you’re not going to see anything
else in relationship to those blue specs, so it’s not going to
be of any value. It could be in the middle of [his] living
room. It could be in the middle of your living room. You’re
not going to know where it’s taken.
Id. at 98-99. Based upon the foregoing, the trial court properly weighed the
probative value of the photographs with the potential prejudice. In fact,
showing the jury the original photographs, but not the single overlaid
photograph, would be potentially more confusing and misleading to them.
Thus, Appellant’s third issue lacks merit.
In his fourth issue presented, Appellant claims that the trial court
erred in precluding him from calling Jewel Schirmer’s hairdresser as a
witness at trial. Appellant’s Brief at 44. Appellant asserts that the
hairdresser was prepared to testify that Jewel had an early morning hair
appointment on the day of her death and there was nothing “out of the
ordinary that day.” Id. at 45. Appellant argues that the “appointment itself
was relevant because it would have made it less likely for [Jewel] to have
showered on the morning of her death.” Id. Appellant proffered this
testimony to refute Commonwealth witness, Dr. Wayne Ross’ opinion “that
he could not rule out forceful penetration of the rectal area of [Jewel].” Id.
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Thus, Appellant contends that the hairdresser’s testimony was offered to
provide the jury with the inference that “the presence of semen near
[Jewel’s] anus could be explained from sex occurring the night before that
remained near that portion of her body.” Id.
The trial court precluded the proffered testimony as irrelevant. Trial
Court Opinion, 11/12/2013, at 6. Citing Pa.R.E. 401, the trial court noted
that “Appellant was not on trial for the murder of Jewel” and the proffered
testimony that there was nothing unusual about Jewel’s behavior on the day
of the murder “had no tendency to make a material fact in the homicide of
Betty Schirmer more or less likely.” Id. at 6-7.
Based upon our standard of review regarding the admissibility of
evidence, we conclude that the trial court did not abuse its discretion by
precluding the proffered testimony. Appellant claims that the witness would
have testified that there was nothing unusual on the day of Jewel’s death.
The submitted evidence was entirely tangential to the death of Betty
Schirmer. Moreover, the inferences to be drawn were speculative, at best,
because the hairdresser did not have first-hand knowledge of Jewel’s sexual
activity or hygiene on the day in question. Accordingly, we agree that the
proffered testimony was irrelevant to the current matter and the trial court
properly precluded it from trial pursuant to Pa.R.E. 402. Accordingly,
Appellant’s fourth issue is without merit.
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Finally, Appellant argues that the search warrants obtained in this
case8 were based upon misstatements, omissions of fact, and unsupported
expert conclusions and, thus, the trial court erred by failing to suppress the
physical evidence recovered by police upon execution of those warrants.
Appellant’s Brief at 46-52. Appellant points to three specific statements, as
set forth in the affidavits of probable cause, which he believes contained
misstatements or omissions. First, Appellant contends that the affidavits
omitted certain circumstances related to the death of his first wife, Jewel.
Specifically, Appellant argues that the affiant “deliberately omitted from the
affidavit of probable cause certain circumstances surrounding the death of
[Jewel] that a reasonable person would want to know.” Id. at 50. Appellant
goes on to state that at the time the affidavits were signed, the affiant had
records from Lebanon County “where EMT’s stated that it appeared [Jewel]
had fallen straight back from the top of the stairs” and “information that
[Jewel]… died of a heart attack.” Id. Appellant further claims that the
affidavits omitted any reference to the findings of Dr. Isadore Mihalakis that
____________________________________________
8
There were seven search warrants issued in this case, all utilizing
substantially similar affidavits of probable cause. Trial Court Opinion,
5/18/2012, at 13. The warrants were issued for the parsonage and garage
at the United Methodist Church in Reeders, Pennsylvania, the 2007 PT
Cruiser involved in the motor vehicle crash, and Appellant’s residence.
Moreover, the warrants authorized the search and seizure of computers and
electronic devices found at the United Methodist Church and in the 2007 PT
Cruiser. Finally, police obtained a search warrant to draw Appellant’s blood
for DNA purposes. Id.
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Betty’s death may or may not be consistent with a motor vehicle accident, or
Dr. Mihalakis’ written report that concluded that Betty’s injuries were, in
fact, consistent with a motor vehicle accident. Id. at 50-51. Finally,
Appellant argues that because “it was not mentioned in the warrant [that the
affiant] had any training in blood splatter analysis” and the affidavit of
probable cause “does not state any source for [the affiant’s] conclusions that
a low speed accident could not cause the injuries suffered by [Appellant’s]
second wife, the conclusions he writes are themselves misstatements.” Id.
at 51.
Our standard of review in addressing a challenge to the denial of a
suppression motion is
limited to determining whether the suppression court's
factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of
the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court's
factual findings are supported by the record, we are bound
by these findings and may reverse only if the court's legal
conclusions are erroneous. Where, as here, the appeal of
the determination of the suppression court turns on
allegations of legal error, the suppression court's legal
conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly
applied the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Moreover, it is within the suppression court's sole province
as fact finder to pass on the credibility of witnesses and the
weight to be given their testimony.
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Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011) (internal
citations, quotations and brackets omitted).
“Search warrants must be supported by probable cause.”
Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (citation
omitted). “Probable cause exists where the facts and circumstances within
the affiant's knowledge and of which he has reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable
caution in the belief that a search should be conducted.” Id. In order to
secure a valid search warrant,
an affiant must provide a magistrate with information
sufficient to persuade a reasonable person that there is
probable cause for a search. The information must give the
magistrate the opportunity to know and weigh the facts and
to determine objectively whether there is a need to invade a
person's privacy to enforce the law.
In determining whether a search warrant is based upon
probable cause, [the United States Supreme Court has
stated]:
The Fourth Amendment's commands, like all
constitutional requirements, are practical and not
abstract. If the teachings of the Court's cases are to
be followed and the constitutional policy served,
affidavits for search warrants, such as the one
involved here, must be tested and interpreted by
magistrates and courts in a commonsense and
realistic fashion. They are normally drafted by the
nonlawyers in the midst and haste of a criminal
investigation. Technical requirements of elaborate
specificity once exacted under common law
pleadings have no proper place in this area. A
grudging or negative attitude by reviewing courts
toward warrants will tend to discourage police
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officers from submitting their evidence to a judicial
officer before acting.
Baker, 24 A.3d at 1017(citations and quotations omitted).
Regarding misstatements in affidavits of probable cause, since 1970
Pennsylvania courts have consistently found:
misstatements of fact will invalidate a search warrant and
require suppression of the fruits of the search only if the
misstatements of fact are deliberate and material.
While we have recognized that the veracity of facts
establishing probable cause recited in an affidavit
supporting a search warrant may be challenged and
examined, [our courts] have not suggested that every
inaccuracy will justify an exclusion of evidence obtained as a
result of the search. The question of whether a
misstatement was deliberately made is to be answered by
the lower court.
Id. at 1017 (emphasis in original). Moreover, this Court has concluded a
misstatement is immaterial “if an independent basis exists to support a
finding of probable cause.” Commonwealth v. Antoszyk, 985 A.2d 975,
982 (Pa. Super. 2009).
Where omissions are the basis for a challenge to an affidavit of
probable cause supporting a warrant, we apply the following test:
(1) whether the officer withheld a highly relevant fact within
his knowledge, where “any reasonable person would have
known that this was the kind of thing the judge would wish
to know”; and (2) whether the affidavit would have
provided probable cause if it had contained a disclosure of
the omitted information.
Commonwealth v. Taylor, 850 A.2d 684, 689 (Pa. Super. 2004).
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Here, based upon our standard of review, we discern no abuse of
discretion or error of law in denying suppression. The trial court set forth
the applicable legal principles, scrutinized the affidavits of probable cause at
issue, and thoughtfully examined the testimony of the investigating officers
and affiant to conclude that there were no material misstatements or
omissions. Trial Court Opinion, 5/18/2012, at 13-23. We agree.
With regard to Appellant’s first allegation of error that “it was a
misstatement to discuss the death of [Appellant’s] first wife without
mentioning a conclusion referenced in a Lebanon County [p]olice report that
indicated Jewel Schirmer suffered a myocardial infarction[,]” the trial court
determined:
Detective [James] Wagner and Trooper [William] Maynard
both made clear at the time of the omnibus hearing that
there were no medical records to sustain a conclusion that
Jewel died of a heart attack. [Trooper] Maynard and
[Detective] Wagner were clear that they did not rely on
information contained in the Lebanon County [p]olice
report; but rather based their information and conclusions
on the coroner’s report. They did not have medical
records in their possession at the time the warrants were
issued. The only clear misstatement in the affidavits
regarding Jewel’s death was the statement that her
manner of death was determined to be accidental. In
reality, the manner of death remained “undetermined” at
the time the affidavits were written and sworn to.
Once again, probable cause is present where “the facts
and circumstances within the affiant’s knowledge and of
which he has reasonable trustworthy information are
sufficient in themselves to warrant a man of reasonable
caution in the belief that a search should be conducted.”
Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972).
It is manifestly reasonable to rely on the coroner’s report
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which was received from Dr. Wayne Ross, rather than
another county’s police records. At the time the affidavits
were written, the only indication of a myocardial infarction
was contained in the Lebanon County police report. This
resulted from Chief Deputy Coroner Patty Garber indicating
to the police that Kidney One and Hershey Medical Center
had indicated to her that the heart was damaged.
However, Dr. Ross had never received records from Kidney
One or Hershey Medical Center to support that
determination.
An assertion in a police report that someone else had
heard from yet a third party that there was a problem with
the heart is unreliable information in comparison to the
coroner’s report. The affidavit merely characterized the
death of Jewel Schirmer as “suspicious.” The affidavit did
mischaracterize the status of her death by relating that the
manner of death was determined to be accidental.
Excising the statement that manner of death was
accidental strengthens the conclusion that the death of
[Jewel] was suspicious.
The omission of any mention of a myocardial infarction
with respect to Jewel’s heart was not a highly relevant
fact. However, even if this [were] a highly relevant fact,
probable cause would still exist with the disclosure of the
omitted information.
Id. at 22.
Regarding Appellant’s contention that the affiant omitted an expert
report prepared by Dr. Mihalakis,9 the trial court found credible the affiant’s
____________________________________________
9
Specifically, Appellant challenges the statement in the affidavit that “Betty
Schirmer’s body could not have slammed around inside the car from the
impact with the guardrail… Betty Schirmers [sic] injuries are consistent with
an assault or beating with a blunt force object or weapon.” Trial Court
Opinion, 5/18/2012, at 17. Appellant argues that this is a misstatement
because it does not reference Dr. Mihalakis’ written report that stated that
Betty’s injuries were consistent with an automobile accident in which the
victim was an unrestrained passenger.
(Footnote Continued Next Page)
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testimony that he did not review the report prior to applying for the search
warrants and that he had only been told that the injuries could have been
10
consistent with an automobile accident, but may have been inflicted prior.
Id. at 19. Moreover, even though Dr. Mihalakis’ written report was not
referenced in the affidavit, the trial court found that the omission of any
reference in the affidavit to Dr. Mihalakis’ report was not relevant as the
report contained numerous factual inaccuracies. Id. at 18. Finally, the trial
court concluded that the affidavit had sufficient independent bases to
establish probable cause that Betty’s injuries were inconsistent with the
vehicular accident, stating:
[T]he affidavit would still allege that there was no evidence
of braking or skid marks, and that the damage to the
vehicle was very minor. Examination of the blood evidence
indicated that the victim was bleeding prior to the accident.
[Appellant] gave contradictory statements to the deputy
coroner and to the police. The death of [Appellant’s] first
wife was suspicious.
Id. at 20.
_______________________
(Footnote Continued)
10
The affiant, James Wagner, a detective with the Pocono Township Police
department was investigating the case and working in conjunction with Tom
McAndrew, an officer with the Pennsylvania State Police. N.T., 1/30/2012,
at 62-68. Trooper McAndrew met with Dr. Mihalakis to examine the blood
evidence. Id. at 68. Trooper McAndrew relayed Dr. Mihalakis’ initial
findings to Detective Wagner, but Detective Wagner did not see Dr.
Mihalakis’ formal report until after the searches were conducted. Id. at 69.
At the time he submitted applications for the search warrants, Detective
Wagner testified that, “[a]ll [he] knew at that time was Trooper McAndrew
told [him] that the injury to Betty’s head was what [Dr. Mihalakis] would
expect to find or see in a [vehicular] crash.” Id. at 69.
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Finally, pertaining to Appellant’s claim that the affiant lacked expertise
in rendering a conclusion that a low speed accident could not cause the
injuries suffered by the victim, the trial court concluded: (1) the affiant
testified previously in the Commonwealth as an expert in blood spatter
analysis; (2) prior to applying for a search warrant, the affiant consulted
with another investigating officer who was qualified as an expert in “blood
stain analysis and crime scene processing[;]” and, (3) an expert from New
York concurred that the victim was bleeding prior to entering the car before
the search warrants were issued. Id. at 21. Accordingly, the trial court
found that “the conclusions of a township detective with training in the field
of blood stain analysis and a state trooper qualified as an expert in blood
stain analysis, together with the concurrence of another expert in the field is
enough to support the statement about the victim bleeding prior to the
accident.” Id. at 21-22.
We discern no abuse of discretion or error of law with respect to any of
the conclusions reached by the able trial court in denying Appellant’s motion
to suppress based on the affidavits of probable cause issued in support of
the search warrants. The affidavits of probable cause were accurate
reflections of the knowledge known to the affiant at the time of the
applications. There was no deliberate withholding of information and there
were no material misstatements in the affidavits of probable cause.
Moreover, there were sufficient independent bases within the affidavits of
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probable cause to support the issuance of search warrants in this case.
Accordingly, Appellant’s final issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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