Com. v. Selenski, H.

J-S47008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HUGO M. SELENSKI,

Appellant No. 904 MDA 2015

Appeal from the Judgment of Sentence March 27, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0002700-2006

BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016

Hugo M. Selenski (“Appellant”) appeals the judgment of sentence

imposed after a jury convicted him of first degree murder, conspiracy,

solicitation, robbery, and theft. We affirm.

A prior panel of this Court summarized the background of this case:

The Commonwealth submitted affidavits of probable cause

to the trial court in conjunction with disposition of pre-trial

motions, which summarized the Commonwealth’s proffered

evidence as to the homicides. The affidavits were executed on

May 19, 2006, by detectives from the Luzerne County District

Attorney's Office, as well as by law enforcement officers from the

Pennsylvania State Police.

According to the affidavits, homicide victim Michael

Kerkowski, Jr., a licensed pharmacist and owner of a pharmacy,

was arrested in April 2001 and subsequently convicted of selling

controlled substances illegally. He failed to appear at his

sentencing hearing on May 14, 2002, and it was presumed that

he had absconded. On May 6, 2002, Gerry Kerkowski, Michael’s

mother, reported that Michael and Tammy Fassett were both

missing. In December 2002, Michael Kerkowski, Sr., reported an

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assault and robbery of his residence. He stated that his son,

Michael, had entrusted $60,000 to him in April 2001, and the

money was placed in an unused vent in the basement. Only he

and Michael knew of the money and its location. During Michael’s

trial for illegal sale of narcotics, he introduced [Appellant] to

Kerkowski, Sr., as his best friend, and advised his father to trust

[Appellant]. Kerkowski, Sr. also related that in July 2002, he met

with [Appellant], who said that he had spoken with Michael

subsequent to May 3, 2002, and that Michael had not fled, but

needed $30,000 to aid in his legal defense. [Appellant] also

indicated that he knew about the $60,000 hidden in the

basement, prompting Kerkowski, Sr. to give [Appellant] the

requested $30,000.

According to Kerkowski, Sr., in June or July 2002, [Paul]

Weakley, using the alias of “Eric,” approached him and asked for

$10,000 in order to repair a computer so he could keep in

contact with Kerkowski, Jr., but Kerkowski, Sr., refused to

tender the money unless he could speak with his son.

Kerkowski, Sr., then contacted [Appellant] who told him not to

give money to “Eric.” In August 2002, [Appellant] again

contacted Kerkowski, Sr., who gave him an additional $30,000.

Kerkowski, Sr., asked if he could speak to Michael, to which

[Appellant] responded he would see what he could do. In

September or October 2002, [Appellant] again met with

Kerkowski, Sr., and asked for more money. Kerkowski, Sr.,

refused to provide any further funds until he could talk to

Michael. At that time, [Appellant] produced a pistol, demanded

money and fired the weapon, whereupon Kerkowski, Sr., gave

[Appellant] $40,000.

Beginning in June 2003, Weakley provided statements to

District Attorney detectives implicating [Appellant] as well as

himself in the homicides of Kerkowski, Jr. and Fassett. Weakley

denied being present at the homicides, but stated that he helped

[Appellant] rebury the bodies on or about May 6, 2002, in the

grounds at 479 Mt. Olivet Road, Kingston Township, which was

in the process of being conveyed to [Appellant] and Tina Strom,

[Appellant’s] girlfriend.

On June 5, 2003, a search warrant was served at the

Mount Olivet property. Weakley accompanied the authorities to

the property and pointed out the burial site.3 As a result,

Kerkowski, Jr.’s and Fassett’s remains were discovered, along

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with flex ties and duct tape. An autopsy report found the cause

of death as strangulation, and the manner of death as homicide.4

3

Weakley had also accompanied the authorities to

the field behind Dallas High School, where the bodies

had first been purportedly buried by [Appellant] and

another person. Weakley could not locate the

purported burial site. Subsequent investigations by

local and federal forensic experts could not locate a

burial site in the field behind the Dallas High school.

4

A person named “Reese” provided information

about a meeting between [Appellant] and Kerkowski

Sr[.], where Kerkowski, Sr., refused to give

[Appellant] money because he did not know if his

son was alive. Another person, named “Samson,”

advised that in April or May 2003, [Appellant] offered

him $20,000 if he would help [Appellant] “dispose”

of a pharmacist who had been arrested for selling

oxyco[n]tin. Earnest Culp, who had rented a trailer

on the Mt. Olivet Road property prior to [Appellant’s]

purchase, told investigators that he encountered

[Appellant] and Weakley on the property near a

freshly dug area, and that [Appellant] said he

wanted to place a gasoline tank in the area.

Investigators further discovered that Weakley had

purchased digging tools from a hardware store on May 4, 2002.

Weakley also purchased a cell phone and was in constant

communication with [Appellant] from May 3, 2002, through May

5, 2002, about 36 total calls. Contrary to Weakley’s statements,

investigators also discovered that Weakley did not work on May

3, 2002.

Commonwealth v. Selenski, 972 A.2d 1182, 1184–1185 (Pa. Super.

2009) (one footnote omitted).

Following a joint county and state criminal investigation into the

deaths of Michael Kerkowski, Jr. and Tammy Fassett, the Commonwealth

charged Appellant on May 19, 2006, with two counts each of homicide,

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conspiracy (homicide), solicitation, robbery, conspiracy (robbery), and one

count of theft. After years of preliminary proceedings, appeals, changes of

counsel and jurists, discovery, and extensions, Appellant proceeded to a jury

trial in January of 2015, which resulted in guilty verdicts on all but two of the

counts.1 Certified Record Docket Entry 423. Following a penalty hearing on

February 17, 2015, the jury returned verdicts of life imprisonment on the

dual first-degree-murder convictions. Certified Record Docket Entry 425.

The trial court sentenced Appellant on March 27, 2015, to consecutive

terms of life imprisonment without possibility of parole, followed by fifty-six

to 120 years of incarceration. Certified Record Docket Entry 545. Appellant

filed a post-sentence motion on April 6, 2015, regarding restitution.

Certified Record Docket Entry 549. The trial court scheduled a hearing for

April 29, 2015, where Appellant’s post-sentence motion was resolved by

stipulation. Certified Record Docket Entry 554. This appeal followed.

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following questions for our consideration:

I. Whether [Appellant’s] right to counsel of choice, pursuant

to the Sixth Amendment of the United States Constitution

and Article I, Section 9 of the Pennsylvania Constitution,

was violated and a new trial should be granted because

the trial court granted the Commonwealth’s motion to

disqualify [Appellant’s] chosen counsel for a purported

conflict that he waived?

____________________________________________

1

The jury acquitted Appellant of solicitation to commit homicide and

conspiracy to commit robbery. Certified Record Docket Entry 423.

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II. Whether a new trial is warranted because the

Commonwealth failed to disclose material and vital

impeachment evidence regarding Christina Strom, namely

that the Commonwealth had agreed to advocate for her at

her delayed federal sentencing hearing and that a motion

to reduce her sentencing exposure based upon her

cooperation had been filed back in 2007?

III. Whether a new trial is warranted because the trial court

failed to provide after the introduction of alleged co-

conspirator Paul Weakley an appropriate and timely

cautionary instruction that his guilty plea to the homicide

charges and the Goosay charges could not be used as any

evidence against [Appellant]?

IV. Whether the trial court committed reversible error when it

granted the Commonwealth’s motion in limine to introduce

at trial the former preliminary hearing testimony of an

unavailable witness, Ernest Culp, as it violated

[Appellant’s] right to confrontation under both the

Pennsylvania and United States Constitutions?

V. Whether the trial court committed reversible error when it

permitted the Commonwealth’s forensic pathologist to

offer expert testimony regarding alleged blunt force

trauma on the body of Michael Kerkowski that was based

upon hearsay facts supplied by chief prosecution witness

Paul Weakley where such statements are not the type

reasonably relied upon by experts in the same field?

VI. Whether the trial court committed reversible error when it

denied a defense request for a mistrial after key

prosecution witness Christina Strom testified that

[Appellant] went to the police station to “talk about a

robbery” after the Commonwealth was specifically

admonished from [sic] introducing said testimony?

VII. Whether the trial court committed reversible error by

permitting a sitting Common Pleas Court judge to testify

on behalf of the Commonwealth because such testimony

was irrelevant and highly prejudicial as it gave the

appearance of using the prestige of his office to advance

the credibility of and bolster the Commonwealth’s case?

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Appellant’s Brief at 4–5.

Appellant first challenges the trial court order granting the

Commonwealth’s motion to disqualify lead defense counsel Shelley Centini,

Esq. and defense investigator James Sulima. Appellant’s Brief at 19. The

Commonwealth’s motion averred, in relevant part, as follows:

2. The Commonwealth became aware of the matters

which related to the attached criminal charges and referred

same to the Office of the Attorney General due to the conflict

with prosecuting the criminal homicide at bar.

3. Subsequently, the Court was made aware of a

pending grand jury investigation directly related to the instant

case.

4. On January 27, 2014, as a result of that referral and

following the grand jury investigation, the Office of Attorney

General filed criminal charges directly related to the instant

criminal homicide trial against defendant’s counsel, Shelley L.

CENTINI, Esquire, for criminal acts allegedly committed during

her participation in the instant case. A copy of said charges and

supporting affidavit are attached hereto, made a part hereof and

labeled Exhibit “A.”

5. Further, on January 27, 2014, as a result of the referral

by the Office of the District Attorney and following the grand jury

investigation, the Office of Attorney General filed criminal

charges directly related to the instant criminal homicide trial

against defendant’s investigator, James F. SULIMA, for criminal

acts allegedly committed during his participation in the instant

case. A copy of said charges and supporting affidavit are

attached hereto, made a part hereof and labeled Exhibit “B.”

6. Further, on January 27, 2014, as a result of the

referral by the Office of the District Attorney and following the

grand jury investigation, the Office of Attorney General filed

criminal charges directly related to the instant criminal homicide

trial against defendant, Hugo M. SELENSKI, for criminal acts

allegedly committed during the pendency of his homicide case.

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A copy of said charges and supporting affidavit are attached

hereto, made a part hereof and labeled Exhibit “C.”

7. Further, on January 27, 2014, as a result of the

referral by the Office of the District Attorney and following the

grand jury investigation, the Office of Attorney General filed

criminal charges alleging, inter alia, that defendant’s counsel,

Shelley L. CENTINI, Esquire, and investigator, James F. SULIMA,

conspired with double-homicide defendant, Hugo M. SELENSKI,

to commit criminal acts as set forth in the attached affidavits

during the pendency of this homicide case.[2]

8. It is the desire and intent of the Commonwealth to use

the information set forth in the attached affidavits in its case-in-

chief against defendant, Hugo M. SELENSKI, for homicide, as

said information is relevant and directly related to the charges in

the above-captioned matter and further related to evidence of

his consciousness of guilt.

9. Additionally, as a result of the facts set forth in the

affidavits, it is apparent that Attorney CENTINI and Mr. SULIMA

have now made themselves witnesses in the Commonwealth’s

case as to the foregoing.

* * *

11. The Commonwealth respectfully submits that CENTINI

can no longer represent defendant in the instant matter.

12. Similarly, the Commonwealth respectfully submits

that SULIMA should not be permitted to continue as defendant’s

investigator.

____________________________________________

2

As a result of the grand jury investigation, the Attorney General charged

Attorney Centini, Investigator Sulima, and Appellant with intimidation of

witnesses, conspiracy (witness intimidation), theft by deception, conspiracy

(theft by deception), perjury, conspiracy (perjury), solicitation (perjury),

obstructing administration of law, conspiracy (obstruction), tampering with

evidence, and conspiracy (tampering with evidence). Motion of the

Commonwealth to Remove Defense Counsel and Investigator, 1/27/14, at

Exhibits A, B, and C.

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Motion of the Commonwealth to Remove Defense Counsel and Investigator,

1/27/14, at 1–3.

In support of its motion, the Commonwealth submitted the grand

jury’s findings of fact, which, in relevant part, provide as follows:

On January 6, 2012, the Luzerne County Court of Common

Pleas appointed Centini to represent [Appellant] relating to

charges that include criminal homicide and solicitation to commit

criminal homicide. Despite her ethical obligations, the Grand

Jury finds that Centini was actively engaged in unethical and

criminal conduct throughout her representation of [Appellant].

Centini engaged in that conduct for improper purposes, including

suborning perjury, obstructing or impairing the administration of

justice, and intimidating witnesses. Centini met with at least

five witnesses while continually blurring her role as [Appellant’s]

advocate with interests potentially adverse to those of the

witness. Centini met with witnesses and solicited information or

statements from them while they were represented by counsel.

Centini provided witnesses with letters from [Appellant] for the

purpose of intimidation and directed the witnesses to commit

perjury. On at least one occasion, Centini provided a witness

with money and, on another occasion, expressed to a witness

that [Appellant] was angry with the witness for prior statements

to police. The Grand Jury finds that these letters were drafted

by [Appellant] and presented by Centini and Sulima for the

specific purpose of intimidation, soliciting perjury, and

obstructing justice. Centini testified that these incriminating

letters were simply “lost” following this meeting. The Grand Jury

finds that the statements of Centini were not truthful and were

made for the purpose of keeping this body from discovering the

full facts of this matter. It is the finding of this Grand Jury that

the letters were hidden or destroyed to avoid prosecution for the

commission of criminal acts.

* * *

James Sulima was a Pittston police officer until 2007.

Since 2007, Sulima has operated as a private detective and

formed JS investigation and Consulting. The Grand Jury finds

that Sulima aided in the furtherance of a criminal conspiracy

with Centini and [Appellant] to obstruct or impair the

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administration of justice and to intimidate witnesses. Sulima

continued his criminal conduct before the Grand Jury. It is the

finding of this body that Sulima lied under oath.

Motion of the Commonwealth to Remove Defense Counsel and Investigator,

1/27/14, at Exhibits A, B, and C. Following a hearing on February 20,

2014, the trial court granted the Commonwealth’s motion and removed

Attorney Centini and Investigator Sulima. Certified Record Docket Entry

382.

On appeal, Appellant argues that his constitutional right to counsel

was violated by the removal of Attorney Centini, with whom he had

“developed a strong attorney-client relationship” over the course of two

years. Appellant’s Brief at 21. The Commonwealth counters that Appellant

has a right to counsel, but not “to taxpayer-funded counsel of choice[.]”

Commonwealth’s Brief at 5.

It is axiomatic that a criminal defendant has an absolute right to

counsel under the Fifth Amendment of the Constitution of the United States

and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth

v. Moore, 633 A.2d 1119, 1125 (Pa. 1993); Commonwealth v. Tyler, 360

A.2d 617, 619 (Pa. 1975). “While an accused is constitutionally guaranteed

the right to the assistance of counsel that right gives to a defendant only the

right to choose, at his or her own cost, any attorney desired. Where, as

here, an accused is indigent, the right involves counsel, but not free counsel

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of choice.” Commonwealth v. Abu–Jamal, 720 A.2d 79, 109 (Pa. 1998).

(citing Commonwealth v. Segers, 331 A.2d 462, 465 (Pa. 1975)).

Upon review of the appellate briefs, the certified record, and the

applicable law, we conclude that Appellant’s first issue does not entitle him

to relief. Contrary to Appellant’s assertion, the removal of appointed counsel

under the circumstances presented herein did not violate Appellant’s

constitutional right to the assistance of counsel. In support of our

conclusion, we adopt as our own the thorough and well-reasoned analysis of

the trial court. Trial Court Opinion, 9/24/15, at 8–28.

Next, Appellant argues that a new trial is warranted because the

Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by failing

to disclose impeachment evidence regarding Appellant’s former girlfriend

and Commonwealth witness, Tina Strom. Appellant’s Brief at 28. According

to Appellant, the Commonwealth did not disclose that Ms. Strom would

benefit from a downward departure at sentencing in her federal case if she

cooperated with the Commonwealth in Appellant’s case. Id. at 33.

Appellant further complains that the Commonwealth “failed to disclose its

tacit understanding that the Commonwealth would advocate for Ms. Strom

at her federal sentencing hearing.” Id. at 36. In response, the

Commonwealth asserts that “[a]ny benefit Ms. Strom received was as a

result of her cooperation which was known by defense.” Commonwealth’s

Brief at 12.

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In Brady, the United States Supreme Court held that a

defendant’s due process rights are violated when the prosecution

withholds favorable, material evidence from the defense. To

prove a Brady violation, the defendant bears the burden of

demonstrating that: “(1) the prosecutor has suppressed

evidence; (2) the evidence, whether exculpatory or impeaching,

is helpful to the defendant, and (3) the suppression prejudiced

the defendant.” Commonwealth v. Koehler, 614 Pa. 159, 36

A.3d 121, 133 (2012) (citation omitted). Therefore, even if the

first two prongs have been established, a defendant must

establish that he was prejudiced by the failure to disclose. See

Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997).

To establish prejudice, the defendant must prove that “there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” Id. (citation omitted).

Commonwealth v. Pugh, 101 A.3d 820, 825 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015).

Upon review of the appellate briefs, the certified record, and the

applicable law, we conclude that Appellant’s second issue does not warrant

relief. Contrary to Appellant’s assertion, the record reveals that the

Commonwealth did not commit a Brady violation.3 In support of our

conclusion, we adopt as our own the thorough and well-reasoned analysis of

the trial court. Trial Court Opinion, 9/24/15, at 29–36.

____________________________________________

3

Even if the Commonwealth failed to disclose impeachment evidence, we

observe that Ms. Strom testified about her federal indictment and guilty plea

and defense counsel thoroughly cross-examined her regarding the terms of

her plea agreement and her expectation of a benefit at her federal

sentencing. N.T., 1/21/15, at 713–718, 841–843, 894, 910–912, 920, 932,

944. Therefore, Appellant could not establish “there was a reasonable

probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Pugh, 101 A.3d at 825

(citation omitted).

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In his third issue, Appellant challenges the trial court’s failure to give a

cautionary instruction to the jury following the testimony of co-conspirator

and Commonwealth witness Paul Weakley. Appellant’s Brief at 38.

Appellant complains that the jury was “allowed improperly to infer that

because his co-conspirator pled guilty” to a robbery in Monroe County,

Appellant “must also be guilty” of the robbery charges he faced. Id. at 42.

The Commonwealth contends that Appellant failed to preserve this issue for

appeal. Commonwealth’s Brief at 12. According to the Commonwealth,

“defense asked about an instruction, but never objected to the insufficiency

of the same. . . . In fact, the instruction was given immediately following

the testimony of Weakley as requested by defense.” Id. at 15–16.

We reiterate: “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

Specifically, a party’s failure to object to a curative instruction as inadequate

waives a challenge to the instruction on appeal. Commonwealth v.

Powell, 956 A.2d 406, 421–422 (Pa. 2008).

Our review of the record confirms that defense counsel discussed an

instruction regarding the jury’s use of Mr. Weakley’s testimony and the trial

court agreed to consider whatever language defense counsel drafted. N.T.,

6/21/15, at 993–995. Defense counsel did not object to Mr. Weakley’s

testimony about his federal and state criminal proceedings or his relationship

with Appellant. Id. at 1008–1012, 1023–1025, 1034–1035, 1042, 1045,

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1048–1051. At a sidebar during Mr. Weakley’s testimony, the trial court and

counsel again discussed the topic of a cautionary instruction concerning the

limited use of Mr. Weakley’s testimony. Id. at 1333–1335. Immediately

after Mr. Weakley’s testimony, the trial court gave the cautionary instruction

specifically advising the jury on the limited use of the co-conspirator’s

testimony. Id. at 1346–1348. Appellant did not challenge the adequacy of

the cautionary instruction or object to the trial court’s jury charge. Id. at

1346–1348, 2813–2881. Thus, we conclude that Appellant has waived this

issue. Pa.R.A.P. 302(a).

Appellant’s fourth issue stems from the trial court’s ruling less than

one month before trial on the Commonwealth’s motion in limine. Appellant’s

Brief at 44. The trial court allowed the Commonwealth to introduce the

2006 preliminary hearing testimony of a deceased witness, Ernest Culp.4

Appellant presents four bases on which admission of the challenged evidence

violated his Sixth Amendment right to confront witnesses: 1) the trial court

“placed undue reliance on an irrelevant past ruling by Judge Muroski in 2007

permitting the introduction of Michael Kerkowski, Sr.’s preliminary hearing

testimony at trial,” id. at 49; 2) “the rules governing a preliminary hearing

in Pennsylvania are grossly inadequate to offer a fair prior opportunity for

cross-examination,” id.; 3) Appellant “had different counsel at trial and at

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4

Mr. Culp died on September 13, 2014. Motion in Limine, 12/11/14, at

Exhibit 2 (Certificate of death for Ernest Culp).

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the preliminary hearing in 2006” which “the Pennsylvania Supreme Court

found . . . to be a significant factor in determining whether a defendant’s

confrontation rights have been satisfied,” id. at 50 (citing Commonwealth

v. Wholaver, 989 A.2d 883, 904 (Pa. 2010)); and 4) Appellant “was not

furnished with Mr. Culp’s criminal history nor any prior statements at the

time of the preliminary hearing,” id.

After responding to each of Appellant’s first three assertions, the

Commonwealth submits, “[T]he trial court correctly applied the standard in

finding that Mr. Culp was unavailable and that [Appellant] had a full and fair

opportunity to cross-examine him at the preliminary hearing.”

Commonwealth’s Brief at 22. As for Appellant’s fourth assertion, the

Commonwealth responds that Mr. Culp did not have a criminal history and

that “all reports relevant to Mr. Culp’s testimony were in possession of

defense at the preliminary hearing. Furthermore, . . . current counsel has

not specified any fact in particular now in his possession, but not given at

the preliminary hearing, that precluded a full and fair cross-examination.”

Id.

“Under both the Pennsylvania and United States Constitutions, a

criminal defendant has a right to confront and cross-examine the witnesses

against him.” Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa.

2003); U.S. Const. Amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right ... to be confronted with the witnesses against him[.]”);

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Pa. Const. art. I, § 9 (“In all criminal prosecutions the accused hath a right

... to be confronted with the witnesses against him[.]”). “It is well-

established, however, that the introduction of an unavailable witness’s prior

recorded testimony from a preliminary hearing is admissible at trial and will

not offend the right of confrontation, provided the defendant had counsel

and a full opportunity to cross-examine that witness at the hearing.”

McCrae, 832 A.2d at 1035. A defendant asserting a lack of a full and fair

opportunity for cross examination must establish that he or she was

deprived of “vital impeachment evidence.” Commonwealth v. Cruz–

Centeno, 668 A.2d 536, 543 (Pa. Super. 1995). “Vital impeachment

evidence” includes prior inconsistent statements of the witness or the

witness’ criminal record. Id. at 543.

Having examined Judge Muroski’s analysis of the applicable law5 and

Ernest Culp’s preliminary hearing testimony, the trial court conducted the

following analysis in disposing of the Commonwealth’s motion in limine:

In summary fashion, Mr. Culp indicated at the time of the

preliminary hearing he was 57 years of age and engaged in the

landscaping business. In May of 2002 Mr. Culp resided at Box

485 Mt. Olivet Road, Wyoming, Kingston Township. During early

May, Mr. Culp allegedly observed an individual walking around

479 Mt. Olivet Road—an adjacent property. Mr. Culp was shown

photographs identified as Commonwealth Exhibits 3 through 7

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5

Certified Record Docket Entry 108 (Judge Muroski Order and Opinion,

5/17/07, at 11–17); Certified Record Docket Entry 198 (Judge Muroski Order

and Memorandum, 7/21/10, at 6–11).

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and discussed during the course of his preliminary hearing

testimony.

Mr. Culp stated that he saw [Appellant], who he had been

introduced to a few weeks earlier and another individual, he later

came to know as Paul Weakley. The witness stated that he

observed [Appellant] holding a shovel and further observed the

ground turned over as though someone had been “digging”.

Mr. Culp further recounted alleged statements attributed to

[Appellant]. The first alleged statement occurred on the date

the aforementioned observations were made and the second

approximately four to six weeks later.

As previously indicated, counsel for both [Appellant] and

defendant Weakley conducted cross-examination of Mr. Culp.

Both lawyers posed numerous questions regarding Mr. Culp’s

direct testimony.

We have examined Mr. Culp’s testimony within the

analytical framework set forth in Judge Muroski’s previously

discussed opinions and conclude this testimony is admissible at

trial.

Mr. Culp’s testimony was given under oath and subject to,

in our judgment, meaningful cross-examination. Although some

objections interposed by the Commonwealth were sustained by

the district judge, defense counsel was not significantly limited in

the scope or nature of the cross-examination during Mr. Culp’s

testimony. It is also apparent, based upon this Court’s present

understanding of the Commonwealth’s case, that Mr. Culp’s

testimony is of significant importance. Although this testimony

is important it is certainly not the sole source of incriminating

evidence against [Appellant]. It should also be noted that Mr.

Culp has no history of crimen falsi offenses; pending criminal

charges or any agreement regarding pending criminal charges.

Although not essential to our determination, we are

satisfied that the Commonwealth established through Detective

Capitano’s testimony, that [Appellant’s] then counsel, Attorney

Pike, was in possession of reports of interviews with Mr. Culp

during the preliminary hearing conducted on June 14, 2006.

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We have examined the admitted exhibits, including the

April 27, 2010 report prepared by Detective Capitano, and

discern no vital impeachment evidence as that term is

understood in our jurisprudence.9

9

The term “vital” impeachment evidence is discussed

at page 12 of Judge Muroski’s July 21, 2010 opinion

and we have employed that definition presently.

Trial Court Memorandum, 1/5/15, at 2–4 (footnotes omitted).6

Our review of the record confirms that Appellant was represented by

counsel at the 2006 preliminary hearing and that no essential, critical, and

indispensable information related to Mr. Culp existed. N.T., 6/14/06, at 2.

Thus, we conclude that counsel had a full and fair opportunity to cross-

examine Mr. Culp. Consequently, Appellant is not entitled to relief on this

issue.

Next, Appellant challenges the expert testimony of the

Commonwealth’s forensic pathologist, Dr. Michael Baden, who conducted the

autopsies on the victims. Appellant’s Brief at 53. Appellant argues that Dr.

Baden’s expert medical opinion regarding evidence of blunt force trauma

consistent with the use of a rolling pin on Michael Kerkowski, Jr.’s body was

improperly based on hearsay facts supplied by Mr. Weakley. Id. at 54.

According to Appellant, “[H]earsay statements of cooperating co-

conspirators is not the type of evidence customarily relied upon by forensic

____________________________________________

6

Judge Muroski wrote, “This term connotes essential, critical, and

indispensable information.” Certified Record Docket Entry 198 (Judge

Muroski Order and Memorandum, 7/21/10, at 12).

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pathologists in rendering a medical opinion.” Id. at 55. Additionally,

Appellant argues that Dr. Baden’s testimony caused prejudice in that it

bolstered Mr. Weakley’s testimony. Id.

In response, the Commonwealth relies on Pennsylvania Rule of

Evidence (“Pa.R.E.”) 703. Commonwealth’s Brief at 24. Pa.R.E. 703

provides: “An expert may base an opinion on facts or data in the case that

the expert has been made aware of or personally observed.” According to

the Commonwealth, Dr. Baden personally observed the bruising on Michael

Kerkowski, Jr.’s body, opined to a reasonable degree of medical certainty

that such injuries were caused by blunt force trauma, and indicated that

such trauma was consistent with blows from a rolling pin; therefore, his

testimony was properly admitted. Commonwealth’s Brief at 24.

Upon review of the appellate briefs, the certified record, and the

applicable law, we conclude that Appellant’s fifth issue does not warrant

relief. Contrary to Appellant’s assertion, Dr. Baden’s expert testimony was

not based on hearsay facts but on his personal observations and the record

testimony of Mr. Weakley. Moreover, Dr. Baden testified to a reasonable

degree of medical certainty. In support of our conclusion, we adopt as our

own the thorough and well-reasoned analysis of the trial court. Trial Court

Opinion, 9/24/15, at 45–53.

In his sixth issue, Appellant complains that the trial court erred in

denying his motion for a mistrial. Appellant’s Brief at 56. The genesis for

- 18 -

J-S47008-16

this claim was the Commonwealth’s effort “to elicit testimony from

[Appellant’s] then-girlfriend and key prosecution witness, Christina Strom,

regarding an incident when [Appellant] purportedly went to a police station

in January 2003 to discuss a robbery.” Id. at 56–57. Appellant recounts

that, despite defense objections—which the trial court sustained—and

curative instructions, Ms. Strom testified about the robbery of Michael

Kerkowski, Jr., suggesting that Appellant was involved in it with Mr.

Weakley. Because Appellant was on trial for robbery, he concludes, “[t]he

effect of this entire sequence of testimony was highly prejudicial and denied

[Appellant] of a fair trial. A mistrial was the only recourse.” Id. at 59.

The Commonwealth first responds that Appellant’s statements to Ms.

Strom about a robbery were admissible as voluntary extrajudicial

statements. Commonwealth’s Brief at 25 (citing Commonwealth v.

Simmons, 662 A.2d 621 (Pa. 1995)). Additionally, the Commonwealth

contends that the trial court’s curative instructions—to which defense

counsel did not object—“cured any defect and a mistrial was therefore

unwarranted.” Id. Lastly, the Commonwealth suggests, “in light of the

seven (7) weeks of testimony, it is impossible for the jury to reasonably infer

the meaning of this scrap of testimony.” Id. at 27.

We review the denial of a motion for mistrial according to the following

standards:

In criminal trials, declaration of a mistrial serves to

eliminate the negative effect wrought upon a defendant when

- 19 -

J-S47008-16

prejudicial elements are injected into the case or otherwise

discovered at trial. By nullifying the tainted process of the former

trial and allowing a new trial to convene, declaration of a mistrial

serves not only the defendant’s interest but, equally important,

the public’s interest in fair trials designed to end in just

judgments. Accordingly, the trial court is vested with discretion

to grant a mistrial whenever the alleged prejudicial event may

reasonably be said to deprive the defendant of a fair and

impartial trial. In making its determination, the court must

discern whether misconduct or prejudicial error actually

occurred, and if so, . . . assess the degree of any resulting

prejudice. Our review of the resulting order is constrained to

determining whether the court abused its discretion. Judicial

discretion requires action in conformity with the law on facts and

circumstances before the trial court after hearing and

consideration. Consequently, the court abuses its discretion if, in

resolving the issue for decision, it misapplies the law or exercises

its discretion in a manner lacking reason.

Commonwealth v. Jaynes, 135 A.3d 606, 614–615 (Pa. Super. 2016)

(quoting Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa. Super. 2008)

(citations and quotation marks omitted)). A mistrial “is not necessary where

cautionary instructions are adequate to overcome prejudice.”

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011).

Additionally, it is well settled that the jury is presumed to follow the trial

court’s instructions. Commonwealth v. Travaglia, 28 A.3d 868, 882 (Pa.

2011).

Upon review of the appellate briefs, the certified record, and the

applicable law, we conclude that Appellant’s sixth issue does not warrant

relief. Ms. Strom’s testimony referred to Appellant’s statements. Even if the

jury could infer that Appellant was implicating himself in a robbery, the trial

court advised the jury to disregard the testimony. We presume the jury

- 20 -

J-S47008-16

followed the trial court’s instructions, and Appellant does not otherwise

attempt to offer any evidence establishing that the jury failed to do so in the

instant case. Travaglia, 28 A.3d at 882. In support of our conclusion, we

adopt as our own the thorough and well-reasoned analysis of the trial court.

Trial Court Opinion, 9/24/15, at 53–57.

In Appellant’s final issue, he complains that the trial court erred in

permitting the Honorable Brendan Vanston to testify. Appellant’s Brief at

60. Judge Vanston presided over Michael Kerkowski, Jr.’s drug distribution

trial and subsequent plea proceedings in Wyoming County. Judge Vanston

testified to noticing (1) Appellant was in the courtroom during Michael

Kerkowski, Jr.’s guilty plea, (2) Appellant “glared” at Judge Vanston, which

caused him “some concern,” and (3) Appellant and Michael Kerkowski, Jr.

left the courthouse and behaved in a manner he found “unusual.” Id. at 61.

According to Appellant, Judge Vanston’s testimony served “no legitimate

purpose” other than to “throw the weight of the judge’s position, authority

and weight of his judicial office on the Commonwealth’s side of the scales.”

Id. at 62, 63–64 (citing Commonwealth v. Connelly, 269 A.2d 390 (Pa.

Super. 1970)).

Initially, the Commonwealth criticizes Appellant’s reliance on

Connelly:

Defense submitted two sentences dissected from the [Connelly]

opinion without context. The case actually involves a judge who

presided over [the] defendant’s prior conviction. That judge was

called to the witness stand in [the] defendant’s trial on

- 21 -

J-S47008-16

subsequent charges under the guise of identifying that defendant

as the same person who had entered a plea of guilty before him

to the indictment.

Commonwealth’s Brief at 28 (internal citations omitted). It then defends

Judge Vanston testifying as a fact witness:

He was the only witness who observed the unusual celebratory

behavior of [Appellant] and his victim following the victim having

been found guilty of four or five offenses at trial and then later

pleading guilty to another four or five offenses. He was the only

person in the courtroom besides [Appellant], Mr. Kerkowski,

obviously deceased at the time of the trial at bar and Mr.

Kerkowski’s counsel.

Id. at 29 (internal citations omitted). Lastly, the Commonwealth explains

the connection between the victim’s proceedings before Judge Vanston and

(a) the defense theory that the money Appellant received from Michael

Kerkowski, Sr. “was payment for legal services” and (b) Appellant’s extortion

of money from Michael Kerkowski, Jr.’s parents, “leaving them to believe

that their son had fled after his guilty plea, but before his sentencing in

Wyoming County, and [Appellant] was assisting him.” Id. at 30 (internal

citations omitted).

Generally:

relevant evidence, i.e., evidence that logically tends to establish

a material fact in the case, tends to make a fact at issue more or

less probable, or supports a reasonable inference or presumption

regarding a material fact, is admissible. However, relevant

evidence may be excluded if its probative value is outweighed by

the likelihood of unfair prejudice. Admission of evidence rests

within the sound discretion of the trial court, which must balance

evidentiary value against the potential dangers of unfairly

prejudicing the accused, inflaming the passions of the jury, or

confusing the jury.

- 22 -

J-S47008-16

Commonwealth v. Wilson, ___ A.3d ___, 2016 PA Super 144, at *5 (Pa.

Super. 2016) (quoting Commonwealth v. Jordan, 65 A.3d 318, 324–325

(Pa. 2013) (internal citations, quotation marks, and brackets omitted)). A

trial court’s ruling regarding the admission of evidence will not be disturbed

on appeal unless that ruling reflects manifest unreasonableness or partiality,

prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Id. (citation omitted).

Upon review of the appellate briefs, the certified record, and the

applicable law, we conclude that Appellant’s seventh issue does not warrant

relief. We discern no abuse of the trial court’s discretion in permitting Judge

Vanson to testify as a fact witness under the unique circumstances of this

case. In support of our conclusion, we adopt as our own the thorough and

well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at

60–67.

Because Appellant’s issues are waived or lack merit, we conclude that

he is not entitled to relief. Therefore, we affirm the judgment of sentence

for the murders of Michael Kerkowski, Jr. and Tammy Fassett.7

____________________________________________

7

The parties are directed to attach a copy of the trial court’s September 24,

2015 opinion in the event of further proceedings in this matter.

- 23 -

J-S47008-16

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2016

- 24 -

Circulated 07/19/2016 04:03 PM

:'f

COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

OF LUZERNE COUTNY

v.

-CRIMINAL-LAW

HUGO MARCUS SELENSKI,

Defendant

: NO: 2700 OF 2006

·OPINION

·····--·--····-··-·-·-----------pReeEDl::JR:r\t-HIS!fOR-Y---------·---·--·-·-·----

On August 3, 2012, more than three years prior to the drafting of this

opinion, we stated "To describe the procedural history in the instant matter

as unique and protracted is indeed an understatement." On that date a

memorandum was issued which addressed eighteen issues raised in

defendant's supplemental omnibus motion.1

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Michael J. Kerkowski and Tammy L. Fassett was filed on March 16, 2006. (.f)

A criminal information was subsequently issued on July 2 7, 2006 setting

forth ten offenses including two counts of criminal homicide; one count

1

This memorandum consists of 64 pages. If one wishes to examine a detailed outline of the

procedural history to that point It is set forth In pages 6 through 15 which discuss Pa.R. Crim. P. 600.

Addltlonal procedural history Is extensively set forth by Honorable Chester B. Muroskl in memoranda

Issued on May 17, 2007 and July, 21 2010 disposing of a multitude or pretrial Issues.

1

alleging the defendant conspired to kill Mr. Kerkowski and Ms. Fassett with

Paul Weakley; one count alleging the defendant solicited Rodney Samson to

kill Mr. Kerkowski; two counts of robbery relating to Mr. Kerkowski and

Ms. Fassett; two counts alleging the defendant conspired with Paul Weakley

and did in fact commit the offense of robbery against Mr. Kerkowski and

Ms. Fassett and finally, a single count of theft regarding Mr. Kerkowski.

We also note the information referenced the Crimes Code section providing

_ _ _ _ for_acc.omplic.eJiabilicy.~--------·-- ----------------·-····· · ----·------·-- . ·-··--·-··---- . ·-

These offenses were alleged to have been committed between March,

2002 and May 31, 2002 at 647 Pritchard's Road, Hunlock Township, the

residence of Mr. Kerkowski.

Subsequent to a jury trial commencing on January 21, 2015 and

concluding on February 11, 2015 the defendant was found guilty of all

counts except count five, solicitation of Rodney Samson to commit homicide

and count nine, robbery of Ms. Fassett.

A penalty hearing was convened on February 17, 2015 and the following

day the jury returned verdicts of life imprisonment. (Penalty Phase

Transcript N.T. 343).

2

The definition and llablllty of accomplice Is set forth at 18 P .S.A,§306 (b)(3),(c),(b).

2

Formal sentencing was conducted on March 27, 2015. The trial judge

determined the aforementioned life sentences would run consecutive to and

not concurrent with one another. Additionally, the defendant was sentenced

to an aggregate term of a minimum of 56 years to a maximum of 120 years

consecutive to and not concurrent with the life sentences. During the

sentencing proceeding an issue arose regarding the costs and expenses

sought by the Commonwealth and a hearing was scheduled for and

---···· ----------GonduGted-on-April-2-9-,--l0-1--S-at-which-time--the-Commonwealth--and-defonse----- -------------·

stipulated to an amount of$140,000.00.

A notice of appeal was filed on May 21, 2015 and an order issued

pursuant to Pa.R.A.P. 1925 (b) on May 22, 2015 .. On June 4, 2015 this court

granted appellant's request for an extension of time within which to file a

concise statement. A subsequent request by appellant was granted on June

25, 2015. Appellant's concise statement was thereafter received on July 17,

2015. The Commonwealth's request for an extension of time in which to

respond was granted on August 10, 2015. The Commonwealth's response

was received on August 14, 2015.

Additional procedural history and relevant dates will be· referenced

during discussion of the issues raised.

3

I

. I

I

All appellate law and authority referenced in ow· subsequent analysis is

discussed without specific quotation or further reference to the authority

utilized unless otherwise noted.

ISSUES PRESENTED

The following is a summary of the statement of errors complained of on

appeal, submitted on July 17, 2015. We also note, appended to the concise

statement as exhibit "A" is twenty-one pages of a sixty-three page transcript

·····---·--··---·-----------

---·--······----------

of the sentencing proceeding for Christina M. Strom which occurred on June

5, 2015 before the Honorable Thomas I. Vanask:ie in the United States

District Court for the Middle District of Pennsylvania.

1. The Defendant's right to counsel of choice, pursuant to the

Sixth Amendment of the United States Constitution and Article

I section 9 of the Pennsylvania Constitution, was violated and a

new trial awarded because the trial court granted the

Commonwealth's motion to disqualify Attorney Centini from

her "long-standing representation" of the defendant for a

purported conflict that he waived.

2. The Defendant's right to counsel of choice, pursuant to the

Sixth Amendment of the United States Constitution and Article

4

I, section 9 of the Pennsylvania Constitution, was violated and

the defendant awarded a new trial because the trial court

granted the Commonwealth's motion to disqualify Attorney

Centini when that motion was "baseless and unnecessary" and

its "grounds were concocted" by the Commonwealth to create a

conflict and deprive the defendant of chosen counsel.

3. A new trial should be awarded because the Commonwealth

failed to disclose "material and vital impeachment evidence of a --- ----·-· . -··---··

key witness" Tina Strom pursuant to Brady v. Maryland, 373

U$; 83(1963) and Giglio v. United States, 405 U.S. 150(1972)

and its progeny. Specifically, appellate counsel asserts, the

Commonwealth failed to disclose an agreement to advocate for

Ms. Strom at her federal sentencing hearing and that a motion

to reduce her sentencing exposure. based upon her cooperation

had been filed in 2007.

4. A new trial is warranted because the trial court failed to provide

an appropriate cautionary instruction after the introduction of

alleged co-conspirator Paul Weakley' s testimony that his guilty

plea to both the current homicide and Goosey charges could not

be used as any evidence against Mr. Selenski, The failure to

5

provide this instruction impermissibly infringed upon the

defendant's right to a fair trial under the "United States and

Pennsylvania Constitutions".

5. The trial court committed reversible error when it granted the

Commonwealth's motion in limine to introduce the former

testimony during trial of an unavallable witness, Ernest Culp, as

it violated the defendant's right to confrontation under both the

-------- ----···---·-----

"Pennsylvania and United States Constitutions".

6. The trial court committed reversible error when it permitted the

Commonwealth to elicit testimony regarding a firearm used in

the "Goosay" case. The introduction of the alleged use of the

gun "fell outside of the Superior Court's holding in

Commonwealth v Selenski, 972 A.2d 1182(Pa. Super. 2009)."

7. The trial court committed reversible error when it permitted the

Commonwealth's expert forensic pathologist, Dr. Michael

Baden, to offer testimony regarding alleged blunt force trauma

on the bodyof Michael Kerkowski (allegedly caused by a

rolling pin), where the opinion was made eight years after the

original autopsy and where this opinion originated in his expert

6

report of August 26, 2011, which was not rendered to a

reasonable degree of medical certainty.

8. The trial court committed reversible error when it permitted Dr.

Michael Baden to offer expert testimony regarding alleged

blunt force trauma on the body of Michael Kerkowski that was

I

based upon the hearsay facts supplied by prosecution witness i.

Paul Weakley, where such statements are not the type I

I

-- --·-·"·-----------.-,=------c- .

reasonably relied on by experts fiilli-e-sam-e

fiela:-- - --1

9. The trial court committed reversible error when it denied a

defense request for a mistrial after prosecution witness Tina

Strom testified Hugo Selenski went to the police station in

January 2003 to "talk about a robbery" after the

Commonwealth was specifically admonished from introducing

said testimony.

10.The trial court committed reversible error by failing to provide

a consciousness of innocence instruction where the trial

evidence supported such an instruction,

11. The trial court committed reversible error by permitting a

common pleas judge, the Honorable Brendan J. Vanston, to

7

testify as a Commonwealth witness because such testimony was

irrelevant and highly prejudicial as it gave the appearance of

using the prestige of his office to advance the credibility and

bolster the Commonwealth's case.

12.A new trial should be awarded because the Commonwealth

failed to disclose its "tacit agreement" with a key witness Paul

Weakley, which can reasonable be inferred by his conduct in

·----·-· ··--·-·---------·----- ..,---------- ----- ---···-···-----··--

reversing his refusal to testify at the eleventh hour.

The issues raised will be addressed seriatim and combined where

appropriate based upon conceptual and substantive overlap.

REMOVAL OF DEFENSE COUNSEL

On January 6, 2012 Shelley L. Centini, Esquire was appointed by the

Court of Common Pleas as counsel for Hugo M. Selenski."

3

As can be readily discerned from a review of the previously referenced procedural history outlined

In this court's memorandum of August 3, 2012 (pages 5 through 15), throughout the course of these

proceedings this defendant has been represented by numerous lawyers, all at public expense, and

this case has been presided over by five different Common Pleas Judges. It Is also noteworthy that on

June 29, 2011 the defendant submitted a prose request to represent himself before then presiding

. Judge William Amesbury. On September 1, 2011 Judge Joseph Van Jura conducted a hearing after

which Selenskl's request to proceed prose was granted. Ther~after{ on November 8, 2011 the

,',,

defendant presented a petition prepared by standby counsel David V. Lampman, Esquire to appoint

"substitute counsel",

8

On July 19, 2013, a date of a scheduled pretrial conference in the

instant matter, counsel requested to meet in camera. The transcript of

this meeting reflects the presence of the following: District Attorney

Stefanie Salavantis, Assistant District Attorneys Samuel Sanguledolce

and Jarrett Ferentino, Defense Counsel-E.J. Rymsza, Hugo Selenski,

Detective Daniel Yursha, and Al Flora, Esquire who advised the court he

was appearing as private counsel on behalf of defendant's co-counsel

--··---···--· · -·--Shelley-Gentini,Esquire. -----·· ·--··-··-·· · -· --·· -···-··--·--·-·----···· ·· -··-·-· -··-··

The matter initially discussed was a motion filed by the

Commonwealth seeking reciprocal discovery of material allegedly in the

possession of Attorney Centini.

Attorney Flora acknowledged he was present for a limited purpose,

as private counsel for Attorney Centini. (July 19, 201_3 N.T.8). Attorney

Flora further related " .. .Ihave filed a Motion to Quash the subpoena

relative to Attorney Centini' s appearance before the state wide

investigating grand jury on Tuesday". {Id. N.T.9).

The context of further discussion involved whether the

Commonwealth's discovery request should remain sealed and therefore

not public. The cowi concurred that the request would be sealed.

9

The trial judge next posed a question to first assistant district

attorney Sangudolce regarding his "knowledge as to a grand jury

investigation that has caused us to gather here in chambers". (Id. N.T.

14). The first assistant represented the following:

As a result of information that was brought to the

Commonwealth by the Commonwealth's witness-witnesses in

this case and the observation of a potential conflict with the

prosecution of this case and that information, the District

Attotrney' s Office referred that investigation to the Attorney

. . --- ·-··------Gen·eral~s-Office.. , · --·-·-----·------- ·----·····------- ---·····-···········-·····

· The salient points of that investigation were that the allegation

that Miss Centini; who is Defense counsel's attorney, [sic], passed

letters written by this Defendant, handwritten by this Defendant, to

our witnesses which contained statements designed to intimidate

the witnesses, have them change their testimony or withhold

testimony. And there were further statements made about Miss

Centini's and Mr. Sulima's involvement in that. Once that was

referred to the Attorney General's Office, I had very little contact

until I received a grandjwy subpoena to attend and testify at a l

grand jury proceeding. I

I

I learned within the last few days that Miss Centini had also

been subpoenaed. I have spoken to Mr. Flora, that he had been

retained to represent her with respect to this grand jury

investigation. As a result of that, we drafted the reciprocal

discovery motion being that in addition to whatever the Attorney

General is investigating, I believe the Commonwealth has a right

to review those documents. They're evidence in this case as well.

So, that's what brings us here today, Your Honor.

( Id. N.T. 15, 16).

10

Attorney Sangudolce further represented the Luzerne County

District Attorney's Office initially referred the described investigation to

the Pennsylvania Attorney General "many months ago". (Id. N.T. 16).

Attorney Rymsza acknowledged that co-counsel was "at a

minimum" a potential witness before the grand jury, potentially a witness

against Mr. Selenski and/or potentially a target in the grand jury

_ investigation. Attorney Rymsza expressed an obvious concern, that

·--------, ...... --------- -· ----·-----·------·-··----- ·-------·-----------·-- ·------------· -· --------~-

given Attorney Centini's assumed unavailability "I cannot try this case

alone." (IdN.T. 17, 18).

Attorney Rymsza subsequently inquired whether, although

Attorney Centini may have a conflict, "[I]t is my understanding that at

this juncture, they are not asking for her to be removed from this case".

The first assistant responded "At this point, we don'thave enough

knowledge to know if there is a conflict or not It has been suggested by

co-counsel, and I know the court maybe doesn't want to address this at

this time, to appoint another lawyer in the event that this occurs, but- -"

( Id. N.)'. 22). The trial judge interjected "[A]ny request along those

lines would be premature. (Id.N. T. 22).

11

The pretrial conference was reconvened in the courtroom at which

time the first assistant stated his awareness of a grand jury investigation

being conducted by the Attorney General which "touches this case".

(N.T. 2)

Attorney Rymsza requested a continuance, which was granted.

On January 27, 2014 the Commonwealth filed a "Motion of the

··-··-----Commonwealth_to_RemoYeDefense Counsel and Investig=ato~r_an.;._c.d;.__ ·-· ··---------

Appoint New Counsel and Investigator". A hearing on this motion was

scheduled for and conducted on February 10, 2014. On that date the

defendant was represented by Attorney Rymsza. Attorney Centini was

· not present, however, Attorney Flora who was, stated "I represent

Attorney Centini on this matter". (February 10, 2014 N.T. 4).

The trial judge initially observed that attached and incorporated

into the Commonwealth's motion was a copy of the "criminal charges

filed by the Pennsylvania Attorney General following Grand Jury

investigation against Attorney Shelley Centini; Investigator James

Sulima; and Defendant herein, Hugo Selenski, which the Commonwealth

contends relate directly to this criminal homicide trial for criminalacts

12

allegedly committed during the pendency of this homicide case". (Id.

N.T. 2).

The trial judge further references paragraphs eight and nine of this

motion, in which the Commonwealth represents its intent to use the

information contained in the affidavits in their case in chief, as both '

i

direct evidence and evidence of Mr. Selenski's consciousness of guilt.

Additionally, the trial judge referenced the Commonwealth's assertion

I

-··-······ .... -·--···-------------

that Attorney Centini and Mr. Sulima have now made themselves

witnesses in the Commonwealth's case.

Attorney Rymsza represented Mr. Selenski was opposed to the

disqualification of Attorney Centini. (Id. N.T.3).

Assistant district attorney Ferentino asserted that the facts and

circumstances surrounding exchanges with five identified

Commonwealth witnesses will be relevant to the Commonwealth's case

in chief. Specifically, Attorney Ferentino, referencing the grand jury

affidavit, argued potential Commonwealth witnesses were given letters

. 'by Attorney Centini, allegedly written by the defendant, and then

·'. . -retui:ned to Attorney Centini. The prosecution further argued the charges

filed by the Office of Attorney General on January 27, 2014 created an

13

"inescapable" conflict of interest. Mr. Ferentino further asserted that

Attorney Centini' s position with regard to the conflict should be placed

of record, observing that as a co-defendant of Mr. Selenski Attorney

Centini had a potential conflict of interest that goes to her "unfettered

representation" of Mr. Selenski. (Id.N.T.9).

i

!I

Mr. Ferentino also observed the referenced charges included a ,.

I

count of theft wherein the County of Luzerne was a victim. The alleged

···--··-···------------ -- ·-----···-·-·· -·-· - I

theft related to the payment of significant counsel fees to Attorney

Centini during her representation in the capital prosecution against

Selensk.i.

It should be noted that Attorney Centini did not appear during this

hearing. In response to a question posed by the trial judge regarding

whether Attorney Flora was present as private counsel to Attorney

Centini, Mr. Flora responded "That is correct, Your Honor''. (Id. N .T.

12).

Attorney Flora argued the court should deny the disqualification

motion since the Commonwealth failed to meet its burden. In this regard

Attorney Flora suggested "The presentment, really all that is, is a lot of

conclusions. But what you don't have before you is the specific evidence

14

that they are looking to utilize and why they believe that Attorney Centini

would be a necessary witness. And by a necessary witness, that no one

else, no one else other than her cari provide that information. That's

what they haven't given you". (Id. N.T. 15).

Attorney Flora further argued that the defendant had a right to

i

waive a potential conflict (Id.N.T. 16, 20).

!

t

___The trial judge thereafter stated ''The_~a! o~ this court is to ensure

fairness, a fair trial for all; for the defendant and for the Commonwealth".

The court further noted reviewing and incorporating the affidavits

attached to the previously referenced charges. The trial judge

additionally observed that Attorney Centini is "certainly cloaked with the

... , ·I:

presumption of innocence", however, based upon the Commonwealth's

representations, Attorney Centini would be called as a witness during its

case in chief while at the same time serving as an advocate for a

defendant in a capital case. The court further observed that defense

counsel's alleged criminal acts related to her alleged conduct during her

representation. The record reflects the conclusion that "Commonwealth

witnesses called in this homicide case will likely inform the jury of

counsel's alleged actions which C.Qµ14 compromise legal representation

and jeopardize a fair trial to Mr. Selenski in this homicide case. In that

15

event, the defendant could be denied conflict-free representation." (Id.

N.T. 22). The trial judge determined the referenced scenario created a

"serious conflict of interest".

Thereafter, the court inquired of the defense whether Mr. Selenski

would seek to waive a conflict. The Commonwealth argued the conflict

I

I

was "inescapable" and of such magnitude it could not be waived. i

(Id.N.T. 24). I

i

e,·-------·---- I

j

The defendant indicated a willingness to waive the conflict and the

court thereafter conducted a colloquy in this regard. (Id.N.T. 25 through

31).

At the conclusion of the purported waiver the trial judge stated

" ... I am very concerned for the sanctity, of the proceedings, and I want to

protect the rights of all parties involved. I refuse to accept the waiver of

conflict. Attorney Centini will be removed from this case. The court

acknowledges that [Attorney Centini is] preswned innocent of the

charges which have been filed against [her]." (Id. N.T. 31).

I

Parenthetically, we note Bernard J. Brown, Esquire was appointed

to represent Mr. Selenski on April 17r2014.

I

I

16

I

I

l

j

I

i

Appellate counsel presently argues that the court erred in granting

the Commonwealth's motion to disqualify Attorney Centini in violation

of the defendant's right to "chosen counsel" for what is described as a

"purported conflict'' that the defendant "waived".

It is further asserted the Commonwealth's disqualification was

"baseless and unnecessary and its grounds were concocted by the

Comnionwealth to create a conflict and deprive Mr. Selenski ofhis

-··-···-·-----------------------------------------······-·····---·-

counsel of choice".

In response the Commonwealth acknowledges that although a

criminal defendant has an absolute right to counsel, he does not have an

. absolute right to counsel of his choice. The Commonwealth further

observes that counsel in the instant matter was appointed utilizing public

funds and an indigent defendant possesses no constitutional right to

counsel of his choice.4

The Commonwealth also asserts, during the relevant time period,

Attorney Centini was indicted for conspiring with Mr. Selenski to

4

The Constitutional right to counsel Is not absolute. Commonwealth y. Kelly. 5 A.3d 370 (Pa. Super.

2010). This opinion contains an excellent discussion outlining the parameters of the right to counsel iI

generally and those of court appointed counsel at public expense. The trial court there determined

that a criminal defendant unwilling to cooperate vJith three counsel, all of whom were assigned at

public expense, forfeited his right to counsel.

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intimidate witnesses in the form of paying one rent, as well as "engaging

in acts to influence other witnesses to alter their prior statements to

police".

The criminal complaints filed on January 27, 2014 by the Attorney

General, as a result of an investigation conducted by the Thirty-Sixth

Statewide Investigating Grand Jury, charged Attorney Centini, Mr. Sulima

and Hugo Selenski with identical offenses. The affidavit summarizing the

results of the investigation consists of thirteen pages.' To obtain a full

understanding of the alleged conduct resulting in Attorney Centini' s

disqualification in the instant matter we commend any reader of this opinion

to review the entire thirteen page affidavit. A succinct summary of the

allegations is set forth on pages three and four:

On January 6, 2012, the Luzerne County Court of Common

Pleas appointed Centini to represent Selenski relating to charges

that include criminal homicide and solicitation to commit criminal

homicide. Despite her ethical obligations, the Grand Jury finds

that Centini was actively engaged in unethical and criminal

5

Attorney Centini was charged with two counts oflntimidatlon of witnesses; conspiring With Hugo

Selenskl to intimidate witnesses; theft In excess of fifty thousand dollars for legal services performed

during her representation of the defendant In the Instant prosecution; conspiring with Hugo Selenski

and James Sulima to commit theft ; conspiring with Hugo Selenskl and James Sulima to commit

perjury; sollcitatlon of five prospective Commonwealth witnesses to commit perjury In the trial which

Is the subject of this appeal; obstruction; conspiring with Hugo Selenskl and James Sulima to commit

obstruction; tampering with or fabricating physical evidence by destroying the letter which was the

subject of the grand Jury Investigation and conspiring with Hugo ~l~nskl and James Sulima In the

destruction of the aforementioned letter.

18

. .

conduct throughout her representation of Selenski. Centini

engaged in that conduct for improper purposes, including

suborning perjury, obstructing or impairing the administration of

justice, and intimidating witnesses. Centini met with at least five

witnesses while continually blurring her role as Selsenski's

advocate with interests potentially adverse to those of the witness.

Centini met with witnesses and solicited information or statements

from them while they were represented by counsel. Centini

provided witnesses with letters from Selenski for the purpose of

intimidation and directed the witnesses to commit perjury. On at

least one occasion, Centini provided a witness with money and, on _

another occasion, expressed to a witness that Selenski was angry

with the witness for prior statements to police. Toe Grand Jury

finds that these letters were drafted by Selenski and presented by

. .... ···-----ee-nt'Jni·-and-Sulima-for-the-specificpurpose-of intimidation;--·-·-·-------·- -·-----··-··-·

soliciting perjury, and obstructing justice. Centini testified that

these incriminating letters were simply "lost" following this

meeting. The Grand Jury finds that the statements of Centini were

not truthful and were made for the purpose of keeping this body

from discovering the full facts of this matter. It is the finding of

this Grand Jury that the letters were hidden or destroyed to avoid

prosecution for the commission of criminal acts.

Centini' s criminal conduct indicates that Centini' s model of

legal practice is synonymous with unethical and criminal conduct.

Attorney Centini' s actions indicate an absolute disregard for the

rule oflaw and reflect a win-at-any-cost mentality unbecoming an

officer of the court. In this manner, Centini' s philosophy is

consistent with the conduct and beliefs of her client, Selenski.

Selenski possesses absolute contempt for the rule of law and seeks

to escape justice. Selenski and Centini worked in concert to see

the prosecution of Selenski undermined through whatever means

necessary, including: conspiring to impede justice; intimidation of

witnesses; solicitation of perjury; and obstruction or perversion of

the administration of justice. Centini and Selenski' s disdain for the

administration of justice continued as they perjured themselves

before the Grand Jury.

This Grand Jury rejects any assertion by Centini and her co-

conspirator that this blatantly criminal and unethical conduct is

justifiable as zealous defense work. The litigation of criminal

matters occurs under the rule of law and within the rules which

19

govern any attorney's professional conduct Any assertion that

Centini' s criminal conduct was merely the practice of law is

rebutted by evidence that she abdicated her oath and became a co-

conspirator in undermining the very laws she swore to uphold.

In considering the disqualification motion, and in preparation of

this opinion, we have reviewed a law review article authored by

Professor Ann Bowen Polin entitled "Conflicts of Interest in Criminal

Cases: Should the Prosecution Have a Duty to Disclose T", 4 7 Am.

Crim.L.Rev. 1185 (Summer 2010). This extensively footnoted ninety-

eight page discourse examines the issue of conflicts of interest arising

from representation of defendants in criminal cases. A myriad of issues

in this context are explored, however, we found particularly salient

sections V entitled "Defense Counsel Facing or Under Investigation for

Criminal Charges" and VI entitled "Raising the Conflict: The

Prosecutor's Duty".

We find the following insights, rationale, sentiments and

observations particularly poignant. They are summarized and set forth

without specific quotation or reference other than already indicated.

Professor Bowen Polin suggests the existence of a serious conflict

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when defense counsel is fighting for her own interest against the hostile

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force of the criminal justice system, while, at the same time, representing

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a defendant. An attorney accused of criminal conduct risks livelihood,

reputation and potentially liberty.

If counsel is accused of criminal conduct by prosecution witnesses

but is actually innocent, counsel may not be able to effectively closely

examine the issue on cross-examination since counsel is placed in the

role of witness for herself as well as advocate for the defendant.

The article recognizes when counsel is actually accused of criminal

---- --activity-closely.related.to.the.defendant's alleged illegal.conduct, a . . . . . - -------· .

particularly intense conflict arises and the resultant harm to the defendant

·i_s likely to be so severe that counsel should not be permitted to represent

· the defendant. Indeed, if counsel is suspected of the same criminal

conduct with which the defendant is charged, the impact on counsel's

performance is likely to be pervasive and profound, given counsel's

strong self-interest in avoiding criminal liability.

The following observation is particularly apropos to the matter sub

judice:

In some instances, counsel's alleged wrong doing comes to light

when the prosecution interviews its witnesses in preparation for the

defendant's trial, and the witnesses inculpate counsel as well as the

defendant. If a witness' likely testimony will inform the jury in the

defendant's trial of counsel's illegal conduct, counsel's role in the case is

compromised. That disclosure will prejudice the jury against counsel

and, possibly, the defendant, thus undermining the fairness of the

proceeding. The public's interest in the actual and apparent integrity of

21

the proceeding as well as the defendant's right to conflict-free

representation come into play. In such a case, the court should be

reluctant to permit counsel to continue in the case.

(footnotes omitted).

The article strenuously suggests that early intervention in these

types of cases is not only often feasible but will serve to best protect the

defendant and the fairness of the process. If the prosecution discloses the

existence of the investigation and requests the court to remove

defendant's counsel from the case a trial court need not be concerned

about the implications of public disclosure and may explore the nature

and implications of the alleged conduct. Professor Boweri Polin suggests

if an investigation is ongoing but not yet public disclosing that defense

counsel is a target may compromise the investigation or potentially

endanger witnesses. In this context the prosecution may protect the

defendant as well as the government's interest by communicating with

the trial court ex parte. 6

In discussing raising a conflict of interest in the first instance the

article indicates the primary burden rests on defense counsel to identify

and address potential conflicts of interest, referencing authority contained

6

A variation of which was pursued by the Attorney GeneraI during these proceed lngs, (See: July 19,

2013 N.T. 20).

22

in footnote 216. This authority includes the model rules of professional

conduct, Rule 1. 7.

In reviewing this article we have considered and been informed by

three opinions issued by the United States Court of Appeals for the

Eleventh, Third and Second Circuits.

InUnited States v. Hobson, 672 F .2d 825 ( 11th. Cir.1982) the

court considered affidavits outlining testimony of two government

- -- - ---witnesses-which-portrayed-the ·defendant's1tttomey ashaving engagea·1n-··-- . ---- -· · ·

thoroughly improper and unethical conduct which, the court noted,

would impugn severely the attorneys integrity and credibility in the eyes

of the jury. Although the defendant indicated a willingness to waive any

ethical issues in order to have the benefit of continued representation the

Eleventh Circuit concluded "The defendant is not free to waive the

problem presented here, however, because the ethical violation involves

public perception of the lawyer and the legal system rather than some

difficulty in the attorneys effective representation of [the defendant]. Id.

F.2d.at 829. The Eleventh Circuit thereafter affirmed the order of the

district court disqualifying the defendant's attorney.

In Government of Virgin Islands v. Zepp, 748 F .2d 125 (3rd

Cir.1984) the Third Circuit considered the Sixth Amendment guarantee

23

of the right to counsel's undivided loyalty. The appellant there

contended that she was denied effective assistance of counsel because

trial counsel had an actual conflict of interest due to his potential criminal

liability for the same charges on which appellant was tried and the fact

that he was a witness for the prosecution. In reversing Zepp' s conviction

the Third Circuit concluded that an actual conflict of interest existed

which required withdrawal by trial counsel or disqualification by the

- --~Qurt.__ - ..... -- ...

In arriving at this determination the opinion reviews decisional law

holding that prejudice is presumed when counsel is burdened by an actual

conflict of interest. In rejecting the governments position that no actual

conflict existed because Zepp's trial attorney was never the subject of

formal charges and faced no potential liability the opinion explains that

trial counsel's interest and the defendant's interest diverged with respect

to a material factual or legal issue or to a course of action in two respects.

First, trial counsel could have been indicted for the same charges in

which he represented the defendant and second, trial counsel was a

witness for the prosecution. With regard to potential criminal liability of

defense counsel the opinion instructs that when defense counsel has

independent personal information regarding the facts underlying his

24

client's charges and faces potential liability for those charges, he or she

has an actual conflict of interest. Id. F.2d at 136.

Finally, in United States v. Fulton, 5 F.3d 605 (2nd Cir. 1993) the

Second Circuit explained and concluded that an actual conflict of interest

exists when a defense attorney engages in wrongful conduct related to the

charge for which his or her client is on trial. The court there considered

allegations by a government witness that defense counsel had engaged in

· ----heroin-trafficking-which-related-to-the-charge-for-whtclrthe defenrum:t---··--·-·--···

was on trial. This, the opinion instructs, creates an actual conflict of

interest and counsel's continued representation of a defendant in this

context results in a per se violation of the Sixth Amendment.

Judge Walker, author of the opinion, further explains that while a

defendant may generally waive his Sixth Amendment right to an

unconflicted attorney, the essential aim of the Sixth Amendment is to

guarantee an effective advocate for each criminal defendant rather than to

ensure that a defendant will inexorably be represented by the lawyer who

he prefers, citing Wheat v. United States, 486 U.S. 153, 159 (1988).

The Fulton opinion further instructs when a lawyer's conflict,

actual or potential, may result in inadequate representation of a defendant

or jeopardize the court's institutional interest in, *~ rendition of a just I

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25 !

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verdict, a trial judge has discretion to disqualify an attorney or decline a

proffer of waiver. Id. 5 F.3d at 612. The Court additionally observes

where a government witness implicates defense counsel in a related

crime, the resulting conflict so permeates the defense that no meaningful

waiver can be obtained. In such a case, the court assumes that counsel's

fear of, and desire to avoid, criminal charges or even the reputational

damage from an unfounded but ostensibly plausible accusation, will

----- ---affect-virtually-eve1~-aspect-ofhis or-her representation of the defendant-.------ --------- -·

Id. 5 F.3d at 613.

It was certainly not this court's desire or inclination to simply

remove Attorney Centini from her representation of the defendant in the

instant matter. However, it was immediately apparent, given the

extraordinary nature of the allegations, that serious consideration of her'

disqualification was required.

Indeed, the spectre of delay in this repeatedly delayed trial was

troubling. The potential of yet another lawyer, in a line of lawyers, to

represent this defendant would clearly portend additional delay and the

expenditure of considerable_ resources.

Removal was, the obvious, necessary and only appropriate action

based upon the aforementioned allegations. The alleged criminal conduct

26

of Attorney Centini was inextricably linked to her continued

representation in this capital case. Moreover, the alleged conduct

transformed her role as an advocate to a lawyer intent upon unethically

shaping the course of a trial in an attempt to alter its outcome. A failure

to remove defense counsel charged with this conduct would be, in our

judgment, fundamentally unfair.

Counsel stood charged with attempting to change or alter the

-- ----.testimonr-of-Commonwealth.witnesses.tc.secure an unwarranted------- -···· ···--· ---- -- - -

advantage for her client, a defendant accused of capital crimes. The

verdict in this and any trial should be the result of zealous advocacy,

admissible evidence and applicable law and not that of a defense lawyer

and investigator meeting, at their request, with Commonwealth witnesses

at a bar during which they provide a "letter" from the defendant, which

even the most feeble minded would recognize as intimidation or threat.

Defense counsel's alleged participation in this conduct is the

antithesis of ethical and vigorous advocacy. It deprives the District

Attorney and therefore the citizens of this Commonwealth of a fair and

impartial trial and cannot be tolerated or condoned. Furthermore, there is

absolutely no evidence in the record before this court which would

permit a conclusion that the Commonwealth's motion to disqualify

27

Attorney Centini was "baseless and unnecessary" and simply

"concocted" by the Commonwealth to create a conflict of interest.

Absent from the record is any assertion, based upon testimony, evidence

or representations by Attorney Centini herself that the alleged conduct .

was concocted or false or even that she wished to continue in her

capacity as counsel for Mr. Selenski.

One should not confuse Ms. Centini' s right against self

-·· · ---incrimination--with-her-obligation;-bothethical-and-as-appointed-counsel--- ···--·----···-·

utilizing public funds, to represent this accused capital murderer. Query

how representation could be accomplished when Ms. Centini was not

present. Moreover, counsel actually appeared "on her behalf' and

specifically stated he was not representing Hugo Selenski. Can it be

seriously argued this judicial rabbit hole scenario suggests the absence of

a conflict.

Even a Sophist would not assert that a lawyer allegedly bent on

corrupting a trial, yet alone one where a defendant stands accused of the

most heinous of crimes, should remain in that capacity because the

defendant, her alleged co-conspirator, wants her to do so.

Simply stated, defense counsel's removal from this case was

precipitated by her alleged conduct ~d that of her client, Hugo Selenski.

28

IMPEACH1\1ENT

Appellate counsel next asserts the Commonwealth failed to

disclose "material and vital impeachment evidence" of a key

Commonwealth witness, Christina Strom. Specifically, it is argued the

Commonwealth failed to disclose that it had agreed to advocate for Ms.

Strom at her federal sentencing hearing and that a motion to reduce her

. . . _ ... -sentencing-exposure, ..based. upon.her.cooperation, ..had been previouslr-------·-····· --··-·· . . .

been filed in 2007. In support of this argument counsel attaches the

previously referenced excerpt from Ms. Strom's hearing before Judge

Vanaskie.

The Commonwealth responds that the charges pursued against Ms.

Strom were brought by the United States Attorney and that the

Commonwealth's efforts on her behalf=consisted of relating her

cooperation to the federal judge presiding over her case which was

indeed related to the defense".

The Commonwealth further asserts that Ms. Strom's indictment,

guilty plea agreement and proffer letter were placed of record as exhibit

76, 77 and 113 respectively. The Commonwealth additionally asserts the

29

trial transcript in the instant matter reflects that Ms. Strom's proffer

requires her to testify at trial and cooperate with the government.

Christina Strom's testimony appears in the trial transcript at pages

707 through 952. Initially, we shall review the law applicable to the

Commonwealth's obligation under Brady v. Macyland, 83 S.Ct. 1194

(1963) and its progeny regarding evidence of an impeaching nature.

In Commonwealth v. quniel, 30 A.3d 11 ll(Pa. 2011) the

· -·-------Supreme-€ourt-examined precedent considering the· due . process-- -- · · · · · · ·

requirement that a jury be informed of any promise or understanding that

the government would extend leniency in exchange for a witness's

testimony. Chmiel explains that the understanding between the

prosecution and its testifying witness need not be in the form of a signed

contract or completed ironclad agreement in order to qualify as Brady

material. Impeachment evidence which goes to the credibility of a

primary witness against the accused is critical evidence and is material to

the case whether that evidence is merely a promise or an understanding

between the prosecution and the witness.

Id. 30 A.3d at 1131.

We will review Ms. Strom's testimony as it relates to the issue

raised.

30

During direct examination the first assistant district attorney asked

Ms. Strom whether she "ended up with some federal charges." In

response the witness indicated she was charged with perjury, for lying at

a grand jury hearing and also for money laundering. ( Trial Transcript

N.T. 713). In further explaining the nature of the charges Ms. Strom

stated she lied about "where the money came from." She indicated she

advised the grand jury that the sums about which she was questioned

· --· -· --were-saved-Father-than-eoming-from the defendant-Hugo-Selenski. (Jd;------- · ·----·· · ·

N.T. 713 through 715).

The prosecutor showed the witness Commonwealth's exhibit# 76,

which was identified as the money laundering offense contained in the

federal indictment.

The- witness further identified Commonwealth's exhibit# 77 as a

copy of the plea agreement in the federal prosecution. Ms. Strom

affirmed that the referenced plea agreement required her truthful

testimony in the state proceeding for the murders of Mr. Kerkowski and

Ms. Fassett. The witness specifically stated that the plea agreement

mandated "cooperation with the government". (Id. N.T. 716).

31

The prosecutor additionally questioned the witness regarding

Commonwealth's exhibit# 113 which was referenced as a "proffer

letter".

Ms. Strom next acknowledged she had not been sentenced with

regard to the federal charges and in explaining "Why not?" she responded

"I have to cooperate and testify at all the hearings. (Id. N.T. 717).

During cross-examination Ms. Strom was asked about her

. .... . . +testimony-beforethegrandjuryr She was-specifically-questioned-about---------- . -·. . · · ·

Commonwealth's exhibit# 76 and further acknowledged that although

she took an oath to tell the truth before the grand jury she, in fact, did not,

resulting in the perjury charge. (Id. N.T. 842, 843).

· Defense counsel posed additional questions regarding the fact that

Ms. Strom had not yet been sentenced in federal court and that she was

present testifying on behalf of the Commonwealth. (Id.N. T. 843).

During subsequent cross-examination this witness further

acknowledged lying to the grand jury regarding money kept in a wine

jar.(ld. N. T. 894).

Defense counsel returned to the theme of lying under oath at page

911 of the transcript and posed the question whether it was true that as

part of her plea agreement Ms. Strom had to cooperate and testify in the

32

trial of Hugo Selenski. The witness acknowledged the agreement

required her to cooperate and testify "no matter what". (Id.N. T. 911 ).

Ms. Strom further acknowledged that is to her benefit. Defense counsel

specifically asked "And isn't it true that you will get consideration for

testimony-for your testimony?" to which the witness responded "Yes".

(Id.N.T. 912). The previous question was followed up with a question

regarding whether Ms. Strom would receive "substantial assistance" for

· ·-·· -her-cooperation-resulting-in areducedsentenceto which she-responded: · · ·------ . -- -··

"Yes, I assume". (Id. N.T. 912).

After additional cross-examination defense counsel again asked the

witness whether her plea agreement requires that she cooperate with the

Commonwealth and testify against the defendant in the instant matter to

which she responded "Yes, itis". (Id. N.T. 920).

At the conclusion of cross-examination the witness was asked,

over the course of the last thirteen years how many times have you met

with law enforcement or police officers to which she responded "I don't

have an exact amount. The trial was supposed to happen many, many

times, and I've been in with them. I couldn't honestly say an answer, but

I've been with them quite often". (Id. N.T. 932). As a follow up defense

33

counsel reiterated that this was part of her plea agreement to which Ms.

Strom responded "It's part ofmy plea agreement, yes". (Id. N.T. 932).

We have reviewed the portion of Ms. Strom's sentencing

transcript, previously referenced in this opinion, within the framework of

the Commonwealth's obligation to provide impeaclunent evidence and

discern no Brady violation.

The transcript, in relevant part, contains testimony elicited by

·----· -Assistant-United-States-Attorney-WilliamSpencer.Houser from.Luzerne.Lc-c.L. .

County Assistant District Attorney Jarrett F erentino which outlines the

nature and extent of Ms. Strom's participation and cooperation in the

prosecution of Hugo Selenski. The AUSA's questions were

supplemented by those posed by counsel for Ms. Strom, Joseph A.

O'Brien, Esquire.

At various points during the proceeding Attorney F erentino

described Ms, Strom's testimony as ''vital", "extremely significant" and

"compelling''.

In response to a question by defense counsel Attorney Ferentino

stated he found everything Ms. Strom related to the state prosecutors to

be. "credible" and "documented evidence".

34

At pages 14 and 15 of the sentencing transcript Attorney Ferentino

indicates, in part, "And I had assured her and Sam Sangudolce had

assured her that we would sit here and note her participation and explain

to you, Your Honor, just how significant her testimony was and who she

was for our case". Attorney Ferentino further related "I wouldn't be here

if Tina Strom did not do what she promised us to do and in a fashion that

helped us secure a conviction against Hugo Selenski".

· · -·· · ·-----In-order-to··establisb-a-Brady·violation; the-defendant hrurtlu'!·---------------·---·- - · · ·

burden of demonstrating that ( 1) the prosecutor has suppressed evidence;

.(2) the evidence, whether exculpatory or impeaching, is helpful to the

defendant, and (3) the suppression prejudiced the defendant. Prejudice is

demonstrated where the evidence suppressed is material to guilt or

innocence. Further, favorable evidence is material, and constitutional

error results from it's suppression by the government, if there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence

in the outcome. Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa.

2012)( Citations omitted). i

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When the testimony of Attorney Ferentino during Tina Strom's

sentencing proceeding is juxtaposed with the cited portions of trial

transcript and applicable law it does not suggest or require the conclusion

that the Commonwealth withheld or suppressed impeaching evidence.

PAUL WEAKLEY; CAUTIONARY INS1RUCTION

Appellant asserts a new trial is warranted because the court failed

--- --to-provide-an-appropriate--cautionary--instructionafter the testimony· of. · · · · · · -·· · · · ·- ·- - -

Paul Weakley, an alleged co-conspirator ofSelenski, that Weakley's

guilty plea to the homicide charges involving Mr. Kerkowski and Ms.

Fassett, as well as the Goosay charges, could not be used as evidence

against Mr. Selenski.

During the course of an in chambers meeting to consider an offer of

proof regarding Paul Weakley defense counsel stated '~I think at some point,

there's going to need to be some sort of, umm cautionary instruction provided

that, umm, the fact that Mr. Weakley has plead guilty cannot in any way be

inferred as guilt towards Mr. Selenski". (Id. N.T. 994). Thereafter, prior to the

conclusion of Mr. Weakley' s testimony the trial judge advised all counsel that

he would give a cautionary charge concerning how Mr. Weakley and Mr.

Selenski allegedly met while incarcerated. Parenthetically, it should be noted

36

that this issue was previously discussed and ruled upon. Additionally, the trial

judge indicated he would give a cautionary charge regarding the "Goosay

incident" in accordance with Superior Court's opinion permitting the

introduction of the robbery there committed. 7 Defense counsel. again requested

what was termed a "limiting instruction" regarding Mr. Weakley's guilty plea

to the murders and Goosay robbery. After a brief discussion concerning the

two previously mentioned cautionary instructions the record reflects Attorney

will be given at the appropriate time. I will give it''. hnrnediately thereafter the

first assistant district attorney indicates he has no objection to the requested

instruction. (Id. N.T. 1334, 1335).

Subsequently, during the charging conference the trial judge

reiterated "Mr. Rymsza I referred to the guilt by association charge,

which we discussed earlier. That will be given as presented by you". (Id.

N.T. 2700). On the very next page of the transcript the judge again states

he will charge the jury regarding guilt by association requested by

Attorney Rymsza. An examination of the jury instructions reveals the

court did just that.

7

These Instructions were subsequently given and are reflected at pages 1346, 1347 and 1348 of the

trial transcript.

37

Jurors, you have heard testimony regarding Paul Weakley's

guilty plea in connection with the murders of Michael Kerkowski

and Tammy Fassett. I am specifically instructing you that Mr.

Weakley's guilty plea cannot be considered as evidence against

Mr. Selenski. Mr. Selenski has a right to have his guilt or

innocence determined by the evidence presented against him, not

by what has happened with regard to the criminal prosecution of

Mr. Weakley. You are prohibited from inferring guilt by

association. You may only consider Mr. Weakley' s testimony

pursuant to the rules I have and will give you through the

conclusion of my charge.

(N.T. 2820).

--· Appellant:.s-asserted-error-is belied by an-examination-of the--------------·--·-------····- ·

record.

ERNEST CULP

Appellant argues the trial court committed reversible error in

permitting the Commonwealth to introduce the preliminary hearing

testimony at trial of Ernest Culp, an unavailable witness, in violation of

the defendant's right to confrontation under both the "Pennsylvania and

United States Constitutions".

On January 5, 2015, in response to the Commonwealth's motion in

limine, this court issued an order and memorandum permitting the

Commonwealth to utilize the preliminary hearing testimony of Ernest

(Ernie) Culp. This memorandum is appended hereto as court's

attachment # 1 and incorporated by reference, Although clearly set forth

38

in the memorandum, we direct the readers attention to footnotes 4 and 5.

These footnotes reference prior opinions issued in this case on May 17,

2007 and July 21, 2010 by then presiding Judge Chester B. Muroski.

These opinions, at the pages designated in the aforementioned footnotes,

extensively discuss the analytical framework employed in this context.

GOOSAYROBBERY

.... . Appellant's.connsel . argues_the.triaLc.ourt.committed_reversible . ------·--··-- .

error when it permitted the Commonwealthto elicit testimony regarding

a firearm used in what has become commonly referenced as the

"Goosay" case. It is suggested this ruling ran afoul of the majority panel

opinion issued by Superior Court on February 17, 2009. Conunonw~lth

v. Weakley, 972 A.2d 1182 (Pa. Super. 2009).8 The relevant facts and

procedural posture there considered are set forth at pages 1185 through

1187 of the opinion. Superior Court quotes extensively from the trial

court opinion which summarized the circumstances of the Goosay

robbery. In pertinent part these circumstances include:

8

Fitzgerald, J., flied a dissenting opinion. The cases against Weakley and Selenskl were consolidated

by Superior Court sua sponte as the Commonwealth appealed from the trial court's granting

defendants' motions In limlne to exclude "other crlm.es"evldence relating to the subsequent Goosay

robbery.

39

- One of the men displayed a firearm and ordered Goosay to the

floor.

- The man with the firearm remained behind while the other man

left in Goosay' s car.

Weakley's DNA was found on one of the dishcloths located in

the car, Goosay identified Weakley early on and, on August 27,

2003,

- Weakley admitted to the robbery and stated that Selenski was

involved in and planned the robbery.

Weakley indicated that Selenski held Goosay at gunpoint using

a BB-type handgun while Weakley secured Goosay with

handcuffs and put duct tape over his eyes and mouth.

- The sneaker print allegedly matches a sneaker ofSelenski's

found at Mt. Olivet Road, and a BB-type pistol found in a

---------·----------vehicltn:>p~rated-by Selenski "dutilliftneJune 2U03 search ofMt

Olivet Road was consistent with the weapon described by

Goosay,

- A black BB-type pistol was found in a vehicle operated by

Selenski.

As indicated, the trial court initially excluded evidence from the

· Goosay robbery in the underlying homicide prosecutions of Mr. I

1-

Kerkowski and Ms. Fassett. Superior Court observed that the essential l

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thrust of the Commonwealth's argument on appeal is that the trial court II

erred in granting the defense motion in limine because "evidence of the . I

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Goosay robbery was admissible due to the great number of similarities II

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between the crimes."(Emphasis supplied), (Id. at 1187).

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Superior Court next identified the twelve purported similarities set i

I

. i

forth by the Commonwealth at pages 1187 and 1188 of the opinion. For I

40

our present purposes, without fully setting forth these similarities, we

note none include a gun or weapon.

In reviewing the purported similarities, through the analytical lens

of applicable law, Superior Court concluded that evidence of the Goosay

robbery would be admissible at the subsequent murder trials.

Interestingly, in conducting this analysis Superior Court observed:

In comparing the methods and circumstances of separate crimes, a

,---court-must-necessarily-look-for.

. similar-ities-in-a-number-of-factor-s,----·-·--·--· ..

including.{I) the manner in which the crimes were committed; (2)

weapons used;(3) ostensible purpose of the crime; (4) location;

and (5) type of victims.

(Id. at 1189),( emphasis added).

Furthermore, in rejecting the argument that the other crimes

evidence was more prejudicial than probative Superior Court

commented:

To be sure, the [Goosay robbery] involves an intense episode very

much in the nature of the charged crime-as it must to have

probative value. When viewed either on it's own facts or in the

context of a charged crime alleging death by strangulation and

multiple macabre burials, however, the "other crimes" evidence as

to the methods of selecting, ambushing, restraining, and robbing a

victim - who managed to survive in relatively good health -

cannot be presumed to rouse the jury to overmastering hostility.

(Id. at 1191).

During trial Samuel Goosay was called by the Commonwealth and

'i I

testified regarding the facts and circumstances of the aforementioned

41

robbery. This testimony appears at pages 2307 through 2382 of the trial

transcript. 9

Mr. Goosay outlined for the jury what occurred on August 27,

2003 as he was sitting at his kitchen table eating dinner at approximately

6:00 p.m .. Two men burst through the door one of whom, subsequently

identified as Hugo Selenski, had a gun which was pointed at Mr. Goosay

as he was pushed to the floor and his life threatened. (N.T. 2311 through

- - - -23-1-3~;--Mr::-Ooosay-identified-Commonwealth~s exhibit·#-I-8-5-as-the-gun----· --- -- -- - - · - -

brandished and used by Mr. Selenski.

Mr. Goosay additionally described his ability to push previously

applied duct tape off one eye and observe the gun on his bedroom dresser

while Mr. Selenski was on his knees. Mr. Goosay stood up grabbed the

gun and put it to Selenski' s head after which a struggle ensued and Mr.

Goosay was struck several times in the arms, face, legs and chest.

(N.T.2329 through 2332). During the struggle Selenski was able to

secure control of the gun.

Subsequently, Mr. Goosay related that the phone rang at his

residence. Selenski placed the phone in a manner in which he could hear

9

At the conclusion of Mr. Goosay's testimony the court gave an appropriate cautionary instruction

regarding the jury's consideration of the events which occurred on January 27, 2003. (N.T. 2383,

2384).

42

what was being said. The alarm company was calling and advised Mr.

Goosay that the alarm was going off at his jewelry store and that the

police had been dispatched. At that point Selenski " ... hit me in the back

of the head with a gun- - that gun you showed me before and took off out

the front door''. (Id. N.T. 2338).

During the testimony of Paul Weakley the Commonwealth posed

multiple questions concerning, and elicited information regarding, the

· · . ···-··--Goosay-robbery.-(N.-T-.--1-l89-through-l212).-At.page_l.1.9.7_ofthe . . -· . . .

transcript Attorney Rymsza interposes an objection regarding Weakley

testifying about the gun used in the Goosay robbery indicating "The

Superior Court Opinion didn't reference anything about the use of a

guri". A discussion then ensues between the defense, commonwealth and

the trial judge examining this issue, after which the court overruled the

defense objection regarding mention of the gun. (N.T. 1198 through

1207).

Initially, we observe that the previously referenced Superior Court

Opinion at no time identifies and discusses the admissibility or

inadmissibility of specific evidence regarding the Goosay robbery.

Rather, in the context of considering the admissibility of other crimes

evidence, the court concludes that evidence of the robbery is admissible

43

because of the number of identified similarities in the offenses

considered.

Evidence of the Goosay case could have indeed become what

Judge Muroski described as "a mini - trial" within the murder

. prosecutions. JO

Succintly stated, the previously referenced testimony is evidence

of the robbery committed by Selenski and Weakley against Mr. Goosay.

·· · ··----·--It-may-also-be-considered-an-rulditional.similarity__be_tween the two

offenses. An additional similarity cannot make the Superior Court's

holding less compelling. Indeed, just the opposite, a gun possessed and

used by Selenski during the course of the Goosay robbery makes the

rationale and holding of the Superior Court more compelling.

The Superior Court was unequivocally aware that a gun was used

I

(

during the Goosay robbery, given its aforementioned references to Judge I

Muroski' s trial court opinion.

I

We can discern no reason to prohibit testimony regarding the gun I

j

and Selenski's possession ofit. This would require the Commonwealth I

II

to present an edited version of the robbery, "evidence" of which was

i

I

deemed admissible by Superior Court, that would inaccurately portray

I

10

Trial Ct. Op at 19-20; 972 A.2d at 1187. i

44

events as they occurred. Selenski's conduct throughout the course of the

Goosay robbery was deemed relevant and admissible. We found and

reiterate, there is no legal or factual reason to remove from the jury's

consideration a substantial portion of Selenski's conduct during the

Goosay robbery. If this court sustained the objection interposed by

defense counsel the jury would have been left with a stilted and

substantially inaccurate picture of what occurred, a result which was

_ .unnecessary.and.unwarranted.l' . . .. . _ _ . _ .

DR. lvlICHAEL BADEN

Appellant posits two allegations of "reversible error" regarding the

testimony of Dr. Michael Baden, a forensic pathologist retained by the

Commonwealth in this matter. Initially, counsel asserts Dr. Baden's

. expert testimony regarding alleged blunt force trauma on the body of

Michael Kerkowski, caused by a rolling pin, was not rendered to a

reasonable degree of medical certainty. Secondly, it is asserted Dr.

Baden's expert testimony regarding the aforementioned blunt force

trauma on the body of Michael Kerkowski was based upon hearsay facts

"supplied by chief prosecution witness Paul Weakley, where such

11

On May 7, 2014 we precluded the Commonwealth from referring to the actual verdict rendered In

the Goosay case by the Monroe County jury. (May 7, 2014 Transcript N.T. 7 through 9).

45

statements are not the type reasonably relied upon by experts in the same

field, in violation of Pa.R.E. 703".

An offer regarding Dr. Baden's testimony appears at pages 2039

through 2055 of the trial transcript. The Commonwealth related, in part,

that Dr. Baden would discuss areas of blunt force trauma observed on the

body of Michael Kerkowski, particularly above his right knee, and the

back and top of his head which, it was asserted, corroborates the

testimony of Paul Weakley. (Id. N.T. 2042). The prosecution further

suggested this corroborates the testimony of Paul Weakley, "which Dr.

Baden is familiar with Mr. Weakley' s statement. It's referenced in his

report. Umm, he's going to testify that the rolling pin that he's been

shown could have caused the impacts that are in the - - the head and on

the knees of Michael Kerkowski".

Defense counsel objected, arguing the expert's report does not

express an opinion with a reasonable degree of professional certainty "so

we would ask to preclude his testimony and the - - the report, itself'. (Id.

N.T. 2043). Counsel further objected to Dr. Baden " ... using the

statements of Paul Weakley in reliance ofhis opinion from April 19,

2010 in his memo, umm, in that it's based on hearsay. Umm, I realize

Mr. Weakley's testified, but I still think, nevertheless, it's hearsay". (Id.

46

N.T. 2044). Defense counsel thereafter refers to what is described as the

third report authored by Dr. Baden on October 26, 2011 which, it is

represented, talks about hemorrhages on Mr. Kerkowski's body, that

were consistent with having been caused by blows from a rolling pin.

Counsel suggests that this opinion has not been made or rendered to a

reasonable degree of professional certainty. (Id. N.T. 2045).

f

Defense counsel further objected to Dr. Baden's use of the phrase

-------·-·-··--·-----------·-·-·-·--·----·--·- ------·-~-····-·-·-----·- -·-

I

"consistent with". (Id N.T. 2049).12

The argument regarding these issues goes back and forth at

pages2043 through 2055 of the trial transcript, during which defense

counsel acknowledges having three reports authored by Dr. Baden. The

dates represented are June 8, 2003, April 19, 2010 and October 26, 2011.

Thereafter, at page 2128 of the trial transcript the trial judge denies

the defense objections regarding Dr. Baden's testimony. The court

references two opinions, Commonwealth v. Baez, 720 A.2d 711 (Pa. . I

II iI

1999) and Commonwealth v. Spell, 28 A.3d 1274(Pa. 2011), in support i I

! \

of its conclusion. Baez, in particular, instructs that an expert is not . I. I!

! I

I I

I !

12

For Pennsylvania cases approving of the phrase "consistent with" in the context of expert I !

testimony, see Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007), Commonwealth y. I Il

Minerd, 753 A.2d 225(Pa. 2000).

II

47 '

I

11

required to use or employ any magic words, such as to or with a

reasonable degree of medical certainty, when expressing an opinion.

Rather a court will look to the substance of the actual testimony in

examining its appropriateness.

Dr. Baden was called by the Commonwealth and initially outlined

his extensive education, experience and expertise. (Id. N.T. 2139 through

2148). Dr. Baden has received board certification in anatomic, clinical

·----~-·-- .. ·-·-·-""""'"' - ,, .. , .. .

and forensic pathology and was permitted to testify as an expert in these

fields. (Id.N.T. 2147, 2148).

Dr. Baden was shown and identified Commonwealth's exhibits

232, 233, 234 and 236. They are respectively the autopsy report

regarding Tammy Lynn Fassett of January 8, 2003; the autopsy report of

Michael Kerkowski of June 8, 2003; correspondence dated April 19,

2010 directed to Det. Lt. R. Gary Capitano and correspondence dated

October 26, 2011 directed to assistant district attorney Michael Melnick.

Dr. Baden subsequently testified, in great detail, about the cause

and manner of death of both Mr. Kerkowski and Ms. Fassett, which

included an explanation of the mechanics of the strangulation process.

48

At page 2214 of the transcript Dr. Baden, in response to a question

posed by the Commonwealth, indicated he "reviewed. a multi-paged

statement of Mr. Weakley". Dr. Baden indicated the autopsy findings

were consistent with the statement. (Id. N.T. 2215).

Thereafter, at page 2218, Dr. Baden reiterated that the statement he

reviewed was consistent with the findings he expressed to the jury. The

witness specifically stated the placement of multiple ligatures on Mr.

------ -~ ··#"•' -·--···-· -. ----·--·--·-----·· •..• - ·-------·------

Kerkowski was consistent with Mr. Weakley's statement.

Defense counsel requested a sidebar during which the

Commonwealth outlined additional questions it wished to pose regarding

Mr. Weakley's testimony concerning his observation of Mr. Kerkowski's

face turning blue. Argument regarding this issue appears at pages 2221

through 2223 of the trial transcript, at the conciusion of which the trial

court precludedany additional reference to Mr. Weakley's statement. (Id.

N.T. 2223).

Dr. Baden was subsequently questioned regarding what was

identified as a kitchen roller (Commonwealth exhibit #53) and expressed

an opinion that this was the type of instrument which could cause the

49 ·

blunt force injuries about which Dr. Baden was previously questioned.

(Id. N.T. 2233, 2234).

At the conclusion of direct testimony Dr. Baden stated that all of

the opinions expressed were given to a reasonable degree of medical

certainty in the field of forensic pathology. (Id. N.T. 2236).

During cross-examination Dr. Baden was repeatedly questioned

. ·--··· ·-· regardin_R_the_initial a.u..topsy_reports.and-the..subsequent-correspondence-----·-··

.· .

which discussed bruising as a result of blunt force trauma. (Id. N.T. 2250 ·

through 2262). The witness acknowledged the initial autopsy reports

contained no reference or discussion regarding the bruising or blunt force

trauma.

Upon further cross-examination Dr. Baden was asked about a

meeting which occurred on October 25, 2011 at his office in Manhattan.

The witness indicated he was provided with a twenty page statement

represented to be from Mr. Weakley. (Id. N.T. 2263). The statement was

described as handwritten and the witness stated "I believe Mr. Weakley

gave information to a person who wrote this down". (Id. N.T. 2266,

2267). No further questions were posed regarding the statement.

50

An examination of the transcript reflects that at no time was Dr.

Baden asked to identify or recount any portion of the statement nor did

he articulate the words purportedly contained in the statement during his

testimony. More importantly, as reflected in the contextual summary,

Paul Weakley testified during the course of this trial prior to Dr. Baden.

Initially, we observe that the opinion of a medical expert rendered

to the requisite degree of certainty is itself evidence. Commonwealth v.

•••••·• ••·'" "' ••••••~•••••• --·--• 00000•••• •••-•-•--·•·,0,,0000 .. _ 0••-•, •• • ••• 00, 0" 0 0 .. --•••-•• ~-'"000----·----·--"~-·-•••••• MO

Martin, 101 A.3d 706, 729 (Pa. 2014).13

It cannot be overemphasized that Dr. Baden was not permitted to

act as a conduit to relate inadmissible hearsay information. As indicated,

no specific statements reviewed by Dr. Baden and attributed to Paul

Weakley were communicated to the jury. That Dr. Baden's opinions

regarding pre-death blunt force trauma inflicted by an object consistent

with the aforementioned rolling pin, corroborated the testimony of Mr.

Weakley in significant respects, does not establish en·or .14

13

For a discussion regarding the scope of an expert report in criminal cases where the court

considered expressed opinions not included or different from those contained in the report; See

Commonwealth v. Roles, 116 A.3d 122 (Pa. Super. 2015); Commonwealth v. Stith. 644 A.2d 193 (Pa.

Super. 1994).

14

We concur with the court's observations In Galloway v. Mlssissippj, 122 So. 3d 614 {Miss. 2013)

that a forensic pathologist may testify as to what produced a victim's injuries and what trauma such

an Injury would produce. A forensic pathologist may also testify about wounds, suffering, and the

51

!

lI

That Dr. Baden was provided a statement from Mr. Weakley, \

which he reviewed, is similarly not problematic given both his

I I

acknowledgement of same and more importantly Weakley' s testimony

ii

under oath during trial.1s We reiterate, Dr. Baden did not act as a conduit

from which flowed hearsay testimony of a non testifying witness. The

I

Commonwealth simply did not employ Dr. Baden as a vehicle to

introduce the testimony of Mr. Weakley as substantive evidence of the

. · --·-·---defendant.!.s-gui-lt.--Any-suggestion-to1:he-contrruyis·belted-bytlie recora:---_-·--··:··· .

No authority with which this court is aware would preclude the

Commonwealth from contacting a forensic pathologist, after the

performance of an autopsy and the issuance of a report, to pose additional

questions regarding what the prosecution deems relevant and necessary

in preparing its case.16 These contacts and inquiries were not only

acknowledged by the witness but Dr. Baden's written opinions in this

means of infliction of an Injury since It falls within his area of expertise. Furthermore, a forensic

pathologist may testify as to whether a particular instrument or weapon In evidence was consistent

with particular Injuries to a victim.

15

The Pennsylvania Supreme Court has long held that expert opinion testimony Is proper if the facts

upon which It Is based are of record. Commonwealth v. Rounds, 542 A.2d 977 (Pa. 1988).

16

Indeed, one may question the fundamental competence of a pr"s~cutor who did not do so.

52

regard were provided to the defense well in advance of trial. Indeed,

defense counsel does not suggest otherwise.17

MISTRIAL REQUEST

Here appellant states the trial court committed reversible error in

denying a defense request for mistrial after "key prosecution witness Tina

Strom testified that Mr. Selenski went to the police station in January

2003 to "talk.about a robbery' after the Commonwealth __was.sp.ecifically-------·-----·····.

"admonished from introducing said testimony".

In response the Commonwealth asserts that the trial court, after

denying the.motion for mistrial, gave a cautionary instruction to the jury.

Additionally, the Commonwealth argues the statement in question was an

admission by the defendant to Ms. Strom.

During the testimony of Ms. Strom the first assistant requested a

sidebar during which he advised the court of his intent to ask the witness

about an incident in January of 2003 "where she observes the defendant

doing cocaine and then, for some reason, wants to go speak with police.

She tells him that she thinks that's a crazy idea, and he wants to go and

17

rt Is slgnlllcant to note that as a result of defense counsel's request, this court appointed and

authorized the expenditure of public funds for the forensic pathologist Identified by the defense to

assist the defendant In any manner deemed appropriate.

53

talk about a robbery. He's acting high and very nervous. It's being

offered in line with her previous testimony to show his behavior after he

had done it and how its erratic." (N.T. 760). The court sustained an

objection to the proposed testimony.

After a recess the Commonwealth continued with its questioning of

Ms. Strom. Referencing January of2003 the Commonwealth asked

whether Ms. Strom went with the defendant to the Dallas Police Station

to which the witness replied yes. Ms. Strom was asked how it came

about that Mr. Selenski wanted her to accompany him to the Dallas

Police Department and she responded "Umm, he just said, You want to

go with me? I want to go to the Dallas Police Department and talk to the

police". (Id. N. T.766).

Counsel then inquired "Did you ask him why?" and Ms. Strom

replied "I asked him why, and he said he had information about a

robbery". (Id. N.T. 766).

Defense counsel interposed an objection and requested a sidebar.

The transcript reflects a lengthy discussion regarding the objection after

which the court stated "A reference to robbery would be prejudicial in

this context. I will sustain the objection as to robbery", (Id. N.T. 777).

54

A discussion continued about other aspects of Ms. Strom's testimony

after which the court overruled an additional objection by the defense but

reiterated the witness may not use the word robbery. (Id. N.T. 780).

After continued discussion defense counsel made a motion for a

mistrial. (Id. N.T. 783). The trial judge denied the motion and indicated

he would provide a cautionary instruction. (Id. N.T. 784).

Thereafter, the record reflects the following_instmc.tion..gi:v_en-to-the---····-· ·

jury:

You are to disregard the last response that was given from this

witness. Do not allow it to be considered in any of your

deliberations. Whenever I sustain an objection or order evidence

stricken from the record, you must completely disregard that

evidence when deciding this case, understood? The last response

is stricken.

(Id. N.T. 786).

In Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011)

Justice Baer, author of the opinion, instructs it is well-settled that the

review of a trial court's denial of a motion for a mistrial is limited to

determining whether the trial court abused its discretion. In this regard,

an abuse of discretion is not merely an error of judgment, but if in

reaching a conclusion the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

55

prejudice, bias or ill-will discretion is abused. A trial court may grant a

mistrial only where the incident upon which the motion is based is of ·

such a nature that its unavoidable effect is to deprive the defendant of a

fair trial by preventing the jury from weighing and rendering a true

verdict. A mistrial is not necessary where cautionary instructions are

18

adequate to overcome prejudice.

Additionally, as the Superior Court observed in Commonwealth v.

Padilla,_.221.A ..-2dJ_L89,J.1.q_4=9.5.(:ea ... Super. 2007-)-a-mere-passing··· ··· ··- ···---------···· ·· · · ·

reference to prior criminal activity will not necessarily require reversal

unless the record illustrates definitively that prejudice results. Prejudice I

I

I

I

results where the testimony conveys to the jury, either expressly or by

reasonable implication, the fact of a distinct criminal offense. Padilla's I

I

I

holding was reiterated in Commonwealth v. Hudson, 955 A.2d 103l(Pa.

I

Super. 2008) where the court observed.that the mere passing reference to

prior criminal activity is insufficient to establish improper prejudice by

itself. Furthermore, the trial court may cure the improper prejudice with

an appropriate cautionary instruction to the jury. The instruction must be

clear and specific, and must instruct thejury to disregard the improper

evidence.

18

see also, Commonwealth v. Johnson. 107 A.3d 52, 77 (Pa. 2014).

56

l

'

After examining the transcript we conclude that the statement I !

I

I

uttered by Ms. Strom purportedly made by Mr. Selenski about a robbery

is both innocuous and vague. It does not directly or necessarily by

inference suggest that Hugo Selenski is going to the Dallas Township

Police Department to implicate himself in a robbery. It is also apparent {

these words were uttered by Mr. Selenski. It was the defendant who

requested that Ms. Strom accompany him to the Dallas Township Police

............. _Ilepartment-on-the-day-in-question:--. :··-··----·--·-·-------- - . ..

I I

\

Even assuming the reference could be construed as criminal

activity on the part of Mr. Selenski the record reflects the response was

immediately objected to and, subsequent to a sidebar conference, the

court gave the above referenced cautionary instruction. ·

We conclude the defendant was not prejudiced by Ms. Strom's

response and, assuming prejudice, the direct, concise and specific

instruction given by the trial judge cured the prejudice.

CONSCIOUSNESS OF INNOCENCE INSTRUCTION i

Appellant's counsel argues the trial court committed reversible

II

error by failing to provide a "consciousness of innocence instruction" !

I

I

57

I

I

I

where the trial evidence supported such an instruction referencing the

t

\

\

trial transcript at pages 2694 to 2699.

I

An examination of the transcript reflects the court conducting an in

chambers charging conference during which defense counsel requested I j

\

the aforementioned charge. The only evidence referenced by counsel !

\

was " ... I believe that- - umm- -Mr. Selenski offered to help dig, umm, i

when they were executing the search warrant, as well as, I believe he

voluntarijy_wmt_to...the-police .umm----1-think-it-was-Shickshinny. ~ wliicn- . ·

tended to show that he cooperated with the police". (N.T. 2697). The trial

judge thereafter denied the defense request. (Id. N.T. 2699).

In Commonwealth v. Thomas. 54 A.3d 332 (Pa. 2012) the

Pennsylvania Supreme Court affirmed the first degree murder conviction

I

and death sentence of Dante Thomas concluding, in part, that a requested

consciousness of innocence instruction was not warranted.

The opinion reflects the appellant there argued the trial court erred

I

by failing to give this instruction although appellant provided no legal

I

authority or support for such a charge. Appellant argued it was a Il

I

i

"corollary" to the consciousness of guilt instruction given by the court. I

!

As factual support for the appropriateness of the instruction the appellant I

58

cited his post-arrest cooperation with the police including a statement he

gave in custody in which he denied the killing.

The Thomas court reviewed decisions from other jurisdictions

;

rejecting a similar instruction.19 These jurisdictions include Connecticut, I

l

I

I

Massachusetts, California and Arizona. Our Court indicated it was I

I

I

persuaded by the reasoning of the decisions in our sister states, as well as i

r-

!

our own Superior Cou11, and declined to hold that a consciousness of

. . ...... i.nno.cenc_e_j.ur.y-instruction-would-have-been·propedn··th1ffiffitteftliere-·- -

considered. The Court further indicated the matter is properly one of

argument to the jury. (Id. at 343).

At footnote four, the Thomas opinion noted whether a

consciousness of innocence instruction might ~ be appropriate under

the factual circumstances of a particular case is left to the sound

discretion of'the trial courts.

If indeed the instruction is ever appropriate, it was certainly not

presently.

19

The opinion referenced a decision by the Pennsylvania Superior Court In Commonwealth v.

Hanford, 937 A.2d 1094, 1097·98(Pa. Super. 2007) where Superior Court determined the claim was

merltless.

59

HONORABLE BRENDAN J. V ANSTON

· Appellant's counsel asserts the trial court erred in permitting a

sitting common pleas court judge to testify in the instant matter because

the "testimony was irrelevant and highly prejudicial as it gave the

appearance of using the prestige of his office to advance the credibility of

and bolster the Commonwealth's case".

In response the Commonwealth observes appellant has failed to

. cite.any.autbority-for-the-proposition·thata-witn-es-ssnoulcll5eprecluaed-----------··--·-· · ·

from testifying simply because the witness is a judge. "This position is

not supported by the Rules of Evidence or any presidential case in

.Pennsylvania". The Commonwealth additionally argues the testimony of

Judge Vanston was "directly relevant" since he observed the defendant I

i

i·

!

glaring at him throughout the proceeding which was the subject of his i

l

testimony and f

This text is long and has been trimmed here. Open the source document for the complete record.