Com. v. Johnson, D.

J-S18007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

DAVID LEON JOHNSON

Appellant No. 811 WDA 2017

Appeal from the Judgment of Sentence Entered March 16, 2017

In the Court of Common Pleas of Cambria County

Criminal Division at No: CP-11-CR-0000864-2015

BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JULY 12, 2018

Appellant, David Leon Johnson, appeals from the March 16, 2017

judgment of sentence imposing life in prison without the possibility of parole

for first-degree murder, abuses of a corpse, and related offenses.1 We affirm.

The trial court summarized the pertinent facts and procedural history:

On March 31, 2015, Richland Township Detective Thomas

Keirn (“Detective Keirn”) was summoned by the watch

commander to the township building in the pre-dawn hours. The

watch commander reported that an individual, later identified as

[Appellant], had come to the station and indicated that he had

killed his girlfriend inside their residence at 110 Parkside Drive in

Richland Township. Detective Keirn then interviewed Johnson

about the events of the prior day and evening. Johnson indicated

that he had started smoking crack cocaine around 3:00 p.m. on

March 30, 2015. When [the victim, Allison Vaughn], arrived home

after being out with friends at a local restaurant, [Appellant]

demanded she provide him with her ATM PIN number [sic] so that

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a) and 5510.

J-S18007-18

he could secure more money to by crack cocaine. [Appellant] told

Detective Keirn that he did not want to stab her, he just wanted

to scare her into providing him with the PIN number [sic]. He also

said that he had been thinking of doing this and had brought duct

tape and the knife near him so he would be prepared prior to her

arriving at the home.

After trying to secure Vaughn with duct tape so that she

would not alert authorities while he procured money from the ATM

for crack cocaine, a struggle ensued. During the struggle

[Appellant] told Detective Keirn, that he stabbed the victim twice,

‘Like maybe in the side of her neck like in the back--.” Afterward,

[Appellant] got money out of the ATM using Vaughn’s card and

PIN. He then went to downtown Johnstown and purchased more

crack cocaine. [Appellant] then returned home, used the crack,

drank some wine and took a shower according to his statement to

Detective Keirn.

Johnson was charged by criminal information with; inter

alia, criminal homicide of Vaughn on June 9, 2015. On July 10,

2015, the Commonwealth filed its notice of aggravating

circumstances indicating its intent to seek the death penalty in

this matter.

[…]

[Both parties waived the right to a jury trial.]

Thereafter and on what was nearing the eve of trial,

[Appellant] made it known that he would like to have new counsel

appointed to represent him in this matter. This court asked that

the President Judge of Cambria County, Norman A. Krumenacker,

III, hear this motion by [Appellant] so that this court would in no

way be tainted by the evidence that may be presented. After

hearing on March 2, 2017, Judge Krumenacker denied

[Appellant’s] motion for new counsel.

The guilt phase of the trial commenced on March 9, 2017.

Closing statements were delivered on March 15, 2017 and the

verdict rendered by the court on that same day. Notably, the

court found [Appellant] guilty of the first-degree homicide and

abuse of a corpse charge[s]. At what was to be the beginning of

the penalty phase, the Commonwealth elected to withdraw its

remaining aggravated circumstance and proceed to sentencing

without seeking the death penalty.

-2-

J-S18007-18

Trial Court Opinion, 5/4/17, at 2-5 (record citations omitted).

Appellant filed timely post-sentence motions, which the trial court

denied on May 4, 2017. Appellant filed this timely appeal on May 30, 2017.

He raises four assertions of error:

1. Whether the trial court erred when it found that the

evidence presented by the Commonwealth was sufficient as a

matter of law to establish Appellant’s guilty beyond a reasonable

doubt to the charge of murder in the first degree, in that the

Commonwealth did not present sufficient evidence against

[Appellant] to establish every element of the charge?

2. Whether the trial court erred when it found that the verdict

was not against the weight of the evidence presented at trial when

the verdict directly contradicts Appellant’s stated intent that was

not to harm the victim, but to rob and immobilize the victim?

3. Whether the trial court erred in overruling Appellant’s

objection to the Commonwealth’s pathologist, Ashley Zezulak,

being determine [sic] as an expert in the field of pathology and

forensic pathology despite the fact that she has not been board

certified and had minimal experience at the time of the

investigation of this case?

4. Whether the trial court erred when it denied Appellant’s

petition for dismissal and replacement of counsel when Appellant

had good cause to make the request based on irreconcilable

difference between himself and counsel?

Appellant’s Brief at 2.

-3-

J-S18007-18

With his first two issues, Appellant challenges the weight 2 and

sufficiency3 of the evidence in support of his first-degree murder4 conviction.

He argues, based on his statement that he only wanted the victim’s ATM PIN,

that the Commonwealth failed to prove premeditation or specific intent to kill.

Appellant ignores the fact that the record—including Appellant’s own

statement to police—establishes that Appellant stabbed the victim in the neck.

Use of a deadly weapon on a vital body part is sufficient to prove specific intent

to kill. Commonwealth v. Padilla, 80 A.3d 1238 (Pa. 2013), cert. denied,

134 S. Ct. 2725 (2014). We reject Appellant’s weight and sufficiency

arguments on the basis of the trial court’s March 4, 2017 opinion.

Next, Appellant argues that the trial court erred in admitting the expert

testimony Ashley Zezulak because she was underqualified. Rule 702 of the

Pennsylvania Rules of Evidence permits expert opinion testimony from a

witness whose “scientific, technical, or other specialized knowledge is beyond

that possessed by the average layperson.” Pa.R.E. 702(a). Admission of

expert testimony rests within the discretion of the trial court.

Commonwealth v. Serge, 837 A2d 1255, 1260 (Pa. Super. 2003),

____________________________________________

2 The well-settled standard of review for this issue is set forth in

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000).

3 The well-settled standard of review is set forth in Commonwealth v.

Doughty, 126 A.3d 951, 958 (Pa. 2015).

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

committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a).

-4-

J-S18007-18

affirmed, 896 A.2d 1170 (Pa. 2006), cert. denied, 549 U.S. 920 (2006).

“The standard for qualification of an expert is a liberal one.” Id. Further, “[a]

witness does not need formal education on the subject matter of the

testimony, and may be qualified to render an expert opinion based on training

and experience.” Id. The Commonwealth produced evidence of Zezulak’s

experience performing autopsies for Forensic DX, working in the Allegheny

County Medical Examiner’s Office, and her extensive educational background.

We reject Appellant’s argument based on the trial court’s July 6, 2017 opinion.

Finally, Appellant argues that the trial court erred in denying his pretrial

motion for substitution of appointed counsel. As noted above, the trial court

referred this motion to Cambria County President Judge Norman A.

Krumenacker. Rule 122(C) of the Pennsylvania Rules of Criminal Procedure

provides: “A motion for change of counsel by a defendant for whom counsel

has been appointed shall not be granted except for substantial reasons.”

Pa.R.Crim.P. 122(C). “To satisfy this standard, a defendant must demonstrate

that he has an irreconcilable difference with counsel that precludes counsel

from representing him.” Commonwealth v. Keaton, 45 A.3d 1050, 1070

(2012). “The decision of whether to appoint new counsel lies within the sound

discretion of the trial court.” Id.

At the March 2, 2017 hearing, Judge Krumenacker examined Appellant’s

attorneys at length and found no irreconcilable differences and that they could

represent Appellant effectively. Rather, Appellant, apparently upset that

-5-

J-S18007-18

counsel recommended a guilty plea,5 “was disappointed with their honest

evaluation of his case and the chances of being successful at trial based upon

their review of the evidence, including his confession.” Trial Court Opinion,

7/31/17, at 4. Appellant acknowledged that the attorneys were doing a good

job. Id. The record supports the trial court’s recitation of the pertinent facts,

and we discern no abuse of discretion in the decision to deny Appellant’s

motion for substituted counsel, especially after the substantial amount of trial

preparation counsel had already completed. We reject Appellant’s argument

based on the July 31, 2017 trial court opinion.

In summary, we have found each of Appellant’s assertions of error to

be without merit. We therefore affirm the judgment of sentence, and we direct

that the trial court opinions of May 4, July 6, and July 31, 2017 be filed along

with this memorandum.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/12/2018

____________________________________________

5 The prosecution did not take part in the hearing in order to avoid

compromising Appellant’s attorney-client privilege.

-6-

J-S18007-18

-7-

Circulated 06/28/2018 03:01 PM

L" THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA, No. 0864-2015

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OPINION -

Kiniry, J., ± May, 2017. This matter comes before the Court as a result of

Defendant David Leon Johnson ("Johnson") filing Post-Sentence Motions. For the· reasons set

forth below, the Court DEN I ES Johnson's Motions.

Johnson raises three issues in his Post Sentence Motions. First, he argues that the Court

should grant a Judgment of Acquittal based on his contention that the Commonwealth failed to

produce sufficient evidence to justify the Court's guilty verdict as to the charge of first degree

homicide. Second, in the alternative, Johnson asks the Court to vacate his sentence and order a

new trial based on his argument that the verdict of guilty as to first degree homicide was against

the weight of the evidence. Finally, Johnson argues that the Court erred in not granting his

motion to sever Count 22 of the Criminal Infofnation, Abuse of a Corpse. Johnson argues that

evidence of this offense served as a non-statutory aggravating circumstance and was unduly

prejudicial. -

The Commonwealth argues that sufficient evidence was presented to the Court that

Johnson was guilty of first degree homicide where Johnson stabbed the victim, Allison Vaughn

C'Vaughn") in the neck with a knife three times and choked her. Additionally, the

Commonwealth argues that the weigh I of the evidence did support the verdict of guilty as 10 first

degree homicide where the Court, as the trier-of-fact, was free 10 believe or disbelieve the words

of Johnson's confession when taken together with the other evidence. Finally, the

Commonwealth counters that the Coun, in considering the evidence relating to homicide, could

separate or even disregard the facts related to the Abuse of Corpse charge in its deliberations.

Before discussing these issues, we will detail the factual and procedural background of thiscase

in so far as it relates to the legal issues raised by Johnson.

FACTUALANDPROCEDURALBACKGROU��

On March 31, 2015, Richland Township Detective Thomas Keim ("Detective Keirn")

was summoned by the watch commander to the township building in the pre-dawn hours. Trial

Transcript, 3/ I 0/17, p. 72, 11. I 0- 19. The watch commander reponed that an individual, later

identified as Johnson, had come to the station and indicated that he had killed his girlfriend

inside their residence at 110 Parkside Drive in Richland Township. T. T., 3/10/17, p. 72, 11. I 1-

14, 19. Detective Keim then interviewed Johnson about the events of the prior day and evening.

Johnson indicated that he had started smoking crack cocaine around 3:00 P.M. on March 30,

2015. T.T., 3/ 10/ 17, p. 92, 11.12-13. When Vaughn arrived home after being out with friends al

a local restaurant, Johnson demanded she provide him with her ATM PIN number so that he

could secure more money 10 buy crack cocaine. Id. p. 97. Johnson told Detective Keim that he

did not want to stab her, he just wanted 10 scare her into providing him with the PIN number. Id.

p. 97, II. 10-16. He also said that he had been thinking of doing this and had brought duct tape

and the knife near him so he would be prepared prior to her arriving at the home. Id. p. 98, II.

D-25 ..

2

After trying to secure Vaughn with duct tape so that she would not alert authorities while

he procured money from the ATM for crack cocaine, a struggle ensued. Id. p. 101. During the

struggle Johnson told Detective Keim, that he stabbed Vaughn twice, "Like maybe in the side of

her neck like in the back-." Id. p. IO I, II. 20-25. Afterward, Johnson got money out of the

ATM using Vaughn's card and PIN. Id. p. 103, II. 5-14. He then went to downtown Johnstown

and purchased more crack cocaine. Id. p. 103, II. 15-25. Johnson then returned home, used the

crack, drank some wine and took a shower according to his statement to Detective Keim. Id. p. ·

7,11.5-15.

Johnson was charged by Criminal Information with; inter alia, criminal homicide of

Vaughn on June 9, 2015.1 On July I 0, 2015 the Commonwealth filed its Notice of Aggravating

Circumstances indicating its intent to seek the death penalty in this matter. On the same date

Johnson filed an Omnibus Pre-Trial Motion and Request for Bill of Particulars. A pre-trial

conference was held on July 10, 2015. On July 14, 2015, the Court filed a case management

Order in this case and set Pre-trial conferences for August 7, 2015, September 18, 2015, October

23, 2015, December 4, 2015, January 22, 2016 and March 4, 2016. The Court continued to

schedule pre-trial conferences throughout 2016, holding one approximately every month to two

months. On July 8, 2016, Johnson filed a Motion to Quash certain counts of the information an

additional Omnibus Motion and a Motion to Quash Aggravating Circumstances. On August 5,

2016, the Defendant filed a Motion to Waive Jury Trial and Proceed by Trial by Judge. On

August I 0, 2016, the Court denied the Motions to Quash the Aggravating Circumstances and

Motion to Quash certain counts oft he information. Other issues, including the Waiver of a Jury

1

The charge of Involuntary Deviate Sexual intercourse was later filed by the Commonwealth but dismissed by Magisterial

District Judge John W. Barron at the preliminary hearing on August 2.:\, 2015.

3

trial were left undecided as the Commonwealth was determining whether it desired to waive its

right to a jury trial.

Pre-trial starus conferences continued to occur. frequently in this matter through the

aurumn and early winter of 2016. On November I 6, 2016, the Court granted a defense request

for continuance of the matter to February 2, 2017 with a starus conference being set for January·

5, 2017. During this period of time, proposals regarding juror questionnaires and voir dire were

discussed and motions practice regarding the same occurred. On February 22, 2016, the

Commonwealth decided tha� it would in fact waive its right to a jury trial and proceed to trial by

court in both the guilty and penalty phases of what was, at the time, an· anticipated capital

homicide trial. On this same date, after very extensive colloquy by the Court, the Defendant

waived his right to a trial by jury in both phases of the trial.

Thereafter and on what was nearing the eve of trial, Johnson made it known that he

would like to have new counsel appointed to represent him in this matter. This Court asked that ·

the President Judge of Cambria County, Norman A. Krumenacker, III, hear this Motion by

Johnson so that this Court would in no way be tainted by the evidence that may be presented.

After hearing on March 2, 2017, Judge Krumenacker denied Johnson's Motion for New Counsel.

The guilt phase of the trial commenced on March 9, 2017. Closingstatements were

delivered on March 15, 2017 and the verdict rendered by the Court on that same day. Notably,

the Court found the Defendant guilty of the first degree homicide and abuse of a corpse. We shall

not list here the remainder of the verdict as Johnson's Post-Sentence Motions revolve around the

verdict of first degree homicide and a pre-trial matter involving the failure of the Court to sever

abuse of corpse charge. At what was to be the beginning of the penalty phase, the

4

Commonwealth elected to withdraw its remaining aggravated circumstance and to proceed to

sentencing without seeking the death penalty.

Accordingly, on March 16, 2017 Johnson was sentenced toserve the remainder of his

natural life incarcerated in a state correctional institution without the possibility of parole.

DISCUSSION

I. THE COMMONWEALTH PRESENTED SUFFIClENT EVIDENCE TO

SUPPORT THE COURT'S VERDICT OF GUfL TY OF FIRST DEGREE

HOMICIDE.

The Pennsylvania Superior Court's standard of review for a challenge to sufficiency of

the evidence is as follows:

Our standard when reviewing the sufficiency of the evidence is whether

the evidence at trial, and all reasonable inferences derived therefrom,

when viewed in the light most favorable 10 the Commonwealth as verdict

winner, are sufficient to establish all elements of the offense beyond a

reasonable doubt. We may not weigh the evidence or substitute our

judgment for that of the fact-finder. Additionally, the evidence at trial

need not preclude every possibility of innocence, and the fact-finder is free

to resolve any doubts regarding a defendant's guilt unless the evidence is

so weak and inconclusive that as a matter of law no probability of fact

may be drawn from the combined circumstances.

Commonwealth v. Patterson, 940 A.2d 493, 500 (Pa. Super. 2007). In order lo sustain a

conviction for first-degree murder, the Commonwealth must prove, beyond a reasonable doubt,

that a human being was unlawfully killed, that the accused was responsible for the killing, and

that the accused acted with a specific intent to kill. 18 Pa. C.S. § 2502(a), (d). An intentional

killing is a "[k]illing by means of poison, or by lying in wait, or by any other kind of willful,

deliberate and premeditated killing." 18 Pa.C.S, § 2502(d).

5

The Pennsylvania Supreme Court has held that the period of time that premeditation is

formed, "may be very brief; in fact the design lo kill can be formulated in a fraction of a second.

Commonwealth v. Rivera, 983 A.2d 12 I I, I 220 (Pa. 2009). The Court in Rivera described

premeditation and deliberation as "a conscious purpose to bring about death." Id. The

Pennsylvania Supreme Court has also indicatedthat it is appropriate for a fact-finder to infer that

the use of deadly weapon on a vital part of a victim 's body can demonstrate malice and a specific

intent to kill. See Commonwealth v. Padilla, 80 A.3d 1238 (Pa. 2013). In Commonwealth v.

Green, our Supreme Court explained that "Since one's state of mind is subjective, the specific

intent to kill may be inferred from the perpetrator's conduct, including the intentional use of a

deadly weapon in a vital part of the body of another human being." Commonwealth v. Green,

426 A.2d 6 I 4, 606-6 I 7 (Pa. I 98 I).

Johnson argues that in his confession that was heard by the Court he demonstrated by his

own words his intent was merely to frighten Vaughn. Her death, he maintains, resulted only

after the two struggled and that the whole event was chaotic and out of control. The case

presented at trial, according to Johnson, supported a verdict of second degree homicide, but not

first degree homicide because of the lack of any premeditation/specific intent to kill.

We believe rhar the Commonwealth has met its burden by its evidence that demonstrated

that Johnson stabbed Vaughn three times in the neck, a vital part of her body. Assuming only for

argument's sake, that the specific intent to kill her did not exist after the first blow was struck we

are satisfied that it was present at some point between the first and third strike. The forensic

evidence in this case demonstrated that the knife was plunged with such force that two knives

broke during the attack on Vaughn. The contention that it was a chaotic event may have some

6

veracity, but the chaos was controlled by Johnson with violent and deadly force. We also wish

to stress that at no point did the victim have any control over the events of that evening but rather

it was Johnson who laid out the duct tape and prepared the knife. His intent may very well have

been to frighten her before the attack began, but once it started, we are satisfied beyond a

reasonable doubt that the specific intent to kill existed.

II. THE COURT'S VERDICT \VAS NOT AGAINST THE WEIGHT OF THE

EVIDENCE.

"A verdict is not contrary to the weight of the evidence because of a conflict in testimony

or because the reviewing court on the same facts might have arrived at a different conclusion

than the factfinder." Commonwealth v. Tham, 830 A.2d 519, 528 (Pa. 2003) (citation omitted).

"One of the least assai I able reasons for granting or denying a new trial is the lower court's

determination that the verdict was or was not against the weight of the evidence and that new

process was or was not dictated by the interests of justice." Commonwealth v. Brown, 648 A.2d

1177, 1189-90 (Pa. 1994). Thus, only where the facts and inferences disclose a palpable

abuse of discretion will the denial of a motion for a new trial based on the weight of the evidence

be upset on appeal. Commonwealth v. Houser, 18 A.3d 1128, 1133-34 (Pa. 2011)

In this case, because of the nature of the trial, we are faced with the proposition of

determining whether the Court's own verdict was against the weight of the evidence. Put

simply, our task is to determine whether the verdict of guilty of first degree homicide was vnot

dictated by the interests of justice." Without exhaustively reviewing the entire record of the trial

that spanned a period of days, we will delineate our rationale for declining to award a new trial in

this case.

7

As was indicated by both sides in their summations, this case was not a "whodunit."

Johnson at no stage of the trial attempted to say that it was not he who caused the death of

Vaughn. His confession, given hours after the life of Vaughn was taken, demonstrated that he.

was as a number of Commonwealth witnesses stated, "cool, calm and collected." As fact-finder,

the Court found his confession t� be credible in some ways: most notably that he killed Vaughn

by stabbing her three times in the neck. His confession was corroborated by the physical and

. forensic evidence presented at trial. The dispute in this case hinged on the degree of criminal

homicide that was appropriate. As fact finder, the Court believed the Commonwealth's evidence

that Johnson struck three blows with two different knives into a vital part of Vaughn's body, her

neck. For this reason, we found the Commonwealth's fact and forensic evidence to be credible

that he had formed the specific intent to kill her. The Court believed that at some point during the

attack Johnson's actions demonstrated the conscious purpose to end Vaughn's life. We have no

reason to doubt that Johnson regrets those actions nor. that he may have regretted them on the·

evening of Vaughn's murder. His regret does not however make the Court's verdict against the

interests of justice. For these reasons, we decline to award Johnson a new trial.

III.THE COURT DID NOT ERR IN FAILING TO GRAi'\'T JOHNSON'S MOTION

TO SEVER THE COUNT OF AaUSE OF A CORPSE AS IN RENDERING OUR

VERDICT ON THE OTHER CHARGES; WE DID NOT CONSIDER THE FACT

THAT JOHNSON COi\·IMlTTED A POST-MORTEM SEXUAL ACT WITH

VAUGHN.

Johnson's final issue is that the Court's denial of his motion to sever the charge of Abuse

of a Corpse from the remainder of the charges was in error. His claim is that hearing the charge

in conjunction with the others operated as a non-statutory aggravating circumstance and that it

was unduly prejudicial.

8

Because the Commonwealth did not ultimately seek the death penalty and no penalty

phase occurred in this case, the argument that the charge of abuse of a-corpse served as a non-

statutory aggravating circumstance is moot. Having determined that this portion of Johnson's

argument has no merit, we tum to the issue of whether or not the evidence of Johnson's post-

mortem sexual contact with Vaughn was unduly prejudicial.

"It has long been held that trial judges, sitting as fact finders, are presumed to ignore

prejudicial evidence in reaching a verdict." Commonwealth v. Irwin, 579 A.2d 955, 958 (Pa.

Super. 1990) (citation omitted). "When the question of prejudice has arisen in the context of

non-jury criminal trials, our courts have considered whether a judicial fact-finder is more capable

of disregarding prejudicial evidence than a lay jury." Commonwealth v. Council, 421 A.2d 623,

625 (Pa. 1980). "We have generally adhered to the prevailing view that judicial fact-finders are

capable of disregarding most prejudicial evidence." &

In reaching its verdict on first degree homicide and the remainder of the charges the

Court did not consider the events that occurred to Vaughn post-mortem. Our rationale for our

finding of first degree homicide is contained above. The Court unequivocally states that at no

- time during our deliberations as to the other charges did we consider the fact that Johnson

admitted to post-mortem contact with Vaughn in arriving at our verdict. Thus, even assuming

for argument's sake that the evidence was unduly prejudicial and merited separate trials (which

the Court does not concede), the Court gave it no weight in arriving at its verdict on the other

counts and therefore, this issue is without merit.

AS A RESULT OF THE ABOVE DISCUSSION, THE COURT ENTERS THE

FOLLO\\'ING ORDER:

9

IN THE COURT OF COMMON PLEAS OF CAi\-lBRIA COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA, No. 0864-2015

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AND NOW, this day of May, 2017, it is hereby ORDERED,

DIRECTED and DECREED, that Johnson's Post Sentence Motions are DENIED.

BY THE COURT:

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1925 (b) OPINION

KlNJRY, J.La_July 2017. For purposes of this opinion, we draw the Honorable Superior

Court's attention to the Court's Opinion and Order of May 4, 2017 for purposes of the first two

issues raised by Johnson in his Concise Statement of Matters Complained of on Appeal filed on

June 21, 2017. We shall rely on our rationale therein for the first two issues raised by Johnson

(challeoges to the weight and sufficiency of evidence). We also adopt the factual and procedural

history of our Opinion of May 4, 2017 and incorporate it into this op inion. For purposes of the

fourth and final issue, the Honorable President Judge Nonnan A . Krumenacker, m shall issue an

opinion in conjunction with the instant opinion and we hereby incorporate the same herein.

Below we shall address Johnson's third issue and will summarize the facts of record necessary to

do so.'

I

Prior 10 the non-jury trial in this case, trial counsel forJohnson indicated to this Court that Johnson wanted to

address the Court relative to issues he was having with trial counsel. In order to preserve this Court's ability to sit as

fact-finder in the scheduled nae-jury trial, we asked thar President Judge K.rumenacker hear any issues pre-trial

relative to potential problems Johnson had with bis trial counsel. We thought it prudent to avoid presiding over such

a proceeding on the eve of tria 1.

1

Procedural and Factual History Related to Johnson's Third Issue

In his third issue, Johnson claims the Court erred in overruling the objection at trial to the

admission of Ashley Zezulak as an expert in the field of pathology and forensic pathology.

Johnson argues that she was not board certified and lacked significant experience at the time of

the investigation of this case. Dr. Zezulak testified on March 10, 2017 during the

Commonwealth's case-in-chief. She indicated that she was at the time of trial and the time of

investigation employed by ForensicDx in Somerset County, Pennsylvania as a forensic

pathologist. Trial Transcript, 3/l 0/17, p. 6, 11. 18-25, p. 7, l. 1. Her primary job duties at

ForensicDX consisted of performing autopsies and writing reports related to them. T.T.,

3/10/17, p, 7, II. 4-5. Prior to working for ForensicDX. Dr. Zezulak worked in the Allegheny

County Medical Examiner's Office in Pittsburgh. T.T.. 3/10/17, p. 7, ll. 11-12. She detailed her

extensive educational background, including advanced degrees, that Jed her to her current

position. T.T., 3/10/l 7, pp.8-10, Commonwealth's Ex. 100. She also indicated that she has

performed close to one thousand autopsies in her career with approximately a quarter being

criminal homicides. T.T., 3/10117, p. 10, II. 10-l6.

Analysis

"Pennsylvania Rule of Evidence 702 allows for the admission of expert testimony where

scientific, technical, or other specialized knowledge beyond that possessed by a layperson will

assist the trier of fact to understand the evidence or to determine a fact in issue." Commonwealth

v. Chmiel, 30 A.3d 1111, 1140 (Pa. 201 I). Summarizing the law regarding the admission ofa

witness as an expert, the Superior Court h� held:

2

The standard for qualification of an expert witness is a liberal one. The test

to be applied when qualifying an expert witness is whether the witness has

any reasonable pretension to specialized knowledge on the subject under

investigation. If he does, he may testify and the weight to be given to such

testimony is for the trier of fact to determine. A witness does not need

formal education on the subject matter of the testimony, and may be

qualified to render an expert opinion based on training and experience .

. Commonwealth v. Serge, 83 7 A.2d 1255, 1259 (Pa.Super. 2002) ( citations omitted). "The

qualification of an expert witness is a matter within the sound discretion of the trial court and

will not be reversed absent an abuse of discretion." Commonwealth v. Puksar, 740 A.2d 219,

226 (Pa. 1999) (citation omitted).

As well established case law bears out; there is no magic formula in Pennsylvania for

expert qualification and admission. The Court could find no case that stood for the proposition

that a board certification is required for a doctor to testify on matters relating to forensic

pathology. Rather, the challenge to Dr. Zezulak's qualifications by Attorney Moore represented

a tactic whereby she could sow doubts about the weight of the testimony in the mind of the fact

finder, which was in this case, the Court. We are not persuaded, however, that it was error for

the Court to admit her asan expert. We continue to find upon reflection and review of the

record that the witness meets the standard borne out in the case law. We respectfully ask the

Honorable Superior Court to affirm this decision.

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DA YID LEON JOHNSON, * Opinion Pursuant to Rule of

* Appellate Procedure l 925(a)(])

Defendant. *

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Opinion Pursuant to Rule of App�llate

Procedure 192?{a)(l)

Krumenacker, P.J.: David Leon Johnson (Johnson) appeals from his conviction and

sentence related to the murder of his live-in girlfriend, Allison Nicole Vaughn (Vaughn), on

March 30, 2015. On March 15, 2017, following a five day bench trial before the Honorable

Patrick T Kiniry (Kiniry), Johnson was convicted of first degree homicide, abuse of a_corpse,

and other charges relative to Vaughn's death.' On March 16, 2017, the Commonwealth

withdrew the death penalty and Judge Kiniry sentenced Johnson to life imprisonment without

the possibility of parole. Johnson filed Post-sentence Motions on March 27, 2017, and Judge

Kiniry denied those motions by Opinion and Order entered May 4, 2017.

Johnson filed a timely Notice of Appeal and complied with Judge Kiniry's order to

file a Concise Statement of Errors Complained of on Appeal pursuant to Pennsylvania Rule of

Appellate Procedure l 925(b). Johnson raises four allegations of error in his Concise

I

The procedural and factual history is detailed in Judge Kinirys May 4, 2017, Opinion and the Court relies on

that summary.

Statement, the first three of which are directed at matters occurring before Judge Kiniry who

has authored a Rule 1925(a) opinion addressing those allegations which was filed July 6,

2017. This Opinion will address Johnson's remaining allegation of error in which he contends

that the Court erred in denying his oral Petition for Dismissal and Replacement of Counsel.

For the following reasons the appeal should be dismissed.

DISCUSSION

On February 22, 2017, the Commonwealth waived its right to have ajury trial and that

same date, following an extensive colloquy, Johnson also consented to a bench trial to be held

before Judge Kiniry. Shortly thereafter and approaching the trial date, Johnson made it known

that he wished to have new counsel appointed to him for trial. Given that the matter was

scheduled for a bench trial, Judge Kiniry determined that Johnson's request should be heard

by another judge to avoid his being exposed to information normally protected by attorney-

client privilege and to avoid exposure to defense strategy.

On March 2, 2017, this jurist conducted a hearing on Johnson's oral motion. The

Commonwealth did not participate in the hearing other than to offer argument as to the legal

standard Johnson had to meet and then agreed it was best if they absented themselves from

the courtroom to avoid exposure to any attorney-client privileged information or trial strategy.

N .T. 3/2/17 pp. 3-4. Following the testimony the Court concluded that while there was a

difference of opinion between Johnson and his public defenders, Patricia Moore (Moore) and

Michael Filia (Filia), those differences did not rise to the level of irreconcilable differences or

impede counsels' performance such that Johnson would be deprived of effective assistance of

counsel. Sealed N.T. 3/2/17 pp.6-12. Accordingly, the motion was denied by Order entered

-Page 2 of 6-

that same date. In his fourth allegation of error Johnson alleges this decision was in error as he

had established the existence of irreconcilable differences with counsel.

It is well settled that"[ w]hile an indigent is entitled to free counsel, he is not entitled

to free counsel of his own choosing." Common wealth v. Cook, 5 97 Pa. 5 72, 610-1 l, 952

A.2d 594, 617 (2008); Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497, 507 n. 3

( 1978). The procedure by which an indigent defendant may seek to have counsel replaced is

governed by Rule of Criminal Procedure l22(C) which, in pertinent part, provides "[a] motion

for change of counsel by a defendant for whom counsel has been appointed shall not be

granted except for substantial reasons." Pa.R.Crim.P 122(C).

To satisfy this standard, a defendant must demonstrate he has an irreconcilable

difference with counsel that precludes counsel from effectively representing him.

Commonwealth v. Spatz, 562 Pa. 498, 756 A.2d 1139, 1150 (2000) (citing Commonwealth v.

Tyler, 468 Pa. 193, 360 A.2d 617, 619 ( 1976)). A defendant's mere difference of opinion,

desire to pursue a different strategy, or dislike of counsel is insufficient to meet this high

burden. See, Commonwealth v. Wright, 599 Pa. 270, 297, 961 A.2d 119, 134 (2008). The

decision whether to appoint new counsel lies within the trial court's sound discretion. Id.

(citing Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462, 465 (1975)). In determining

whether a request to change counsel should be granted, the trial court must weigh and balance

a defendant's right to the. counsel of his choice against the public's need for the efficient and

effective administration of criminal justice. Commonwealth v. Brewington, 740 A.2d 247,

257 (Pa. Super. 1999); Commonwealth v. Warden, 335 Pa. Super. 315, 484 A.2d 151, 152

(1984).

Moore testified that she and co-counsel had: been on the case since 2015; conducted

two preliminary hearings; been successful in having charges of involuntary deviant sexual

-Page 3 of 6-

intercourse dismissed at the magistrate level during the second preliminary hearing during

which the Commonwealth sought to add new charges; met with Johnson every Friday to

discuss the case and answer any questions or concerns he had; had multiple conferences with

Judge Kiniry and the Commonwealth; the majority of these conferences were followed by an

on the record proceeding in which Judge Kiniry updated Johnson on the status of the case;

that all expert reports were prepared and ready for trial; and that the defense was prepared for

trial. N.T. 3/2/17 pp. 4-6. Johnson testified that: he met regularly with counsel, usually

weekly, at which time they kept him updated on the case and answered any concerns he had;

he met with counsel after each court conference or hearing; Moore had explained the possible

ad vantages of a plea based upon the risk of trial, particularly in light of his confession to

police; Moore explained his appeal rights and possible success based on statistics; and he

agreed counsel was doing a good job and worked well with him. Sealed N. T. 3/2/ l 7 pp. 2- 7.

Johnson indicated that his concerns were: he felt a guilty plea offer had been misrepresented

to him as having a recommended sentence of 40 to 80 years when in court the Commonwealth

indicated the sentence was 40 to 100 years; he felt counsel was disappointed that he would not

accept the plea since it removed the risk of facing the death penalty; that he didn't like Moore

telling him he was not showing remorse by going to trial when he was very sorry for the

murder; and that he didn't like Moore telling him the evidence suggested he knew what he

was doing at the time of the murder. kl

Based upon Johnson's testimony the Court explained to him that it appeared he did not

have irreconcilable differences with counsel but rather was disappointed with their honest

. evaluation of his case and the chances of being successful at trial based upon their review of

the evidence, including his confession. Sealed N.T. 3/2/17 pp. 7-12.This determination was

proper since Johnson's own testimony revealed he thought counsel was doing a good job in

-Page 4 of 6-

their representation and revealed no real disagreement between him and counsel. Instead it

revealed only a disappointment that counsel felt that, based upon their evaluation of the case,

a plea was Johnson's best chance to avoid the death penalty when Johnson believed he had a

better chance at trial. A review of the record reveals that Judge Kiniry would go on the record

following each status conference, explain to Johnson what was discussed, ask Johnson if

counsel was communicating with him, determine if counsel was answering his questions and

concerns, asked if he had any concerns, and if he was satisfied with their representation. See,

N.T. 12/30/15, 4/14/16, 7/5/16, 8/8/16, 11/16/16, l/5/17, 1/13117, 211117, 3/7/17. 2

At every opportunity Johnson indicated his satisfaction with counsel, including at the

March 2nd hearing on his motion, and at no time in the proceedings before Judge Kiniry did

Johnson indicate any dissatisfaction with counsel. Based upon the testimony at the March 2nd

hearing Johnson failed to establish irreconcilable difference? with counsel, but established

only that he disagreed with their conclusions regarding his chances at trial and their honest

appraisal of his case. This disagreement was insufficient to establish that counsel would not

be able to effectively represent Johnson at trial in light of Moore's statement that the defense

was ready and prepared for trial and the Court did not err in denying Johnson's motion. See,

Commonwealth v. Keaton, 615 Pa. 675, 45 A.3d 1050 (2012) (trial court was justified in

denying capital murder defendant's motion for change of court-appointed counsel when after

hearing defendant's reasons for wanting different counsel and hearing counsel's side of the

issue court concluded although defendant and trial counsel obviously disliked working

together, there was no reason counsel was incapable of zealously representing defendant);

Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594 (2008) (appointment of independent

2

At the I /5/ 17, I /13/17, and 3/7/17 proceedings Judge Kiniry updated Johnson but did not inquire into his

satisfaction with counsel.

-Page 5 of 6-

counsel for defendant was not required, in absence of a level of hostility between defendant

and appointed counsel that would amount to the denial of effective assistance of counsel);

Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119 (2008) (trial court acted within its

discretion in denying capital defendant's request for change in appointed counsel based on his

allegation of a breakdown in communication; defendant's claim was not credible because

many meetings involved court appearances or were otherwise documented, and trial court

found that communication problems stemmed from defendant's lack of cooperation and

refusal to follow counsel's advice); Commonwealth v. Floyd, 937 A.2d 494 (Pa. Super. 2007)

(defendant was not entitled to change in trial counsel, though defendant disagreed with

attorney's trial strategy; trial court, after conducting extensive inquiry into defendant's

complaints determined that perceived deficits did not rise to level of irreconcilable

differences); Commonwealth v. Knapp, 374 Pa. Super. 160, 542 A.2d 546 (1988) (defendant,

who did not allege that irreconcilable differences existed between self and counsel, but merely

claimed that relationship between defendant and counsel was "strained," was not entitled to

removal of trial counsel and appointment of new counsel).

As there is no merit to Johnson's allegation of error, this appeal should be dismissed

as to Johnson's fourth allegation of error.

Respectfully submitted,

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-Page 6 of 6-

IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA

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FOR THE COMMONWEAL TH: JOSEPH R. GREEN ESQUJRE J> en 0

FOR THE DEFENDANT: PA TRlClA C. MOORE, ESQUIRE

MICHAEL A. FILIA, ESQUIRE

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ORDER

AND NOW, March 2"d, 2017, it is hereby ORDERED and DIRECTED that the

Defendant's Petition For Dismissal and Replacement of Counsel is denied in that the Court

feels the facts do not support that there is an irreconcilable difference-between the

Defendant and Counsel. The Court has balanced the Defendant's right to Counsel and his

choice of Counse I in consideration of the file, the Attorneys' representations and the

necessary effort that has been done to prepare for trial, which it clearly has been conducted

in the best interest of the Defendant.

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