# Com. v. Johnson, D. > Superior Court of Pennsylvania · July 12, 2018 URL: https://www.frixlaw.com/law-library/cases/4293674 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** July 12, 2018 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4293674 ## Opinion text J-S18007-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DAVID LEON JOHNSON Appellant No. 811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 Plaintiff, � Post-Sentence Motions-��. "' = '! �� � vs. :JC ;p,. ' rr, CJ -G Post-Trial Motions =r ;-- ....... vs. �c:� --·-, . :JC :n,. n c:::J -c ::> �-· � DAVID LEON JOHNSON: -'."")� . ' -'='" 0 .,,.._, .. , r-, Defendant. CG -.:, ,._ :::t:O -tC :x er. 0 - '. ...;.J 0 � 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: COPIES TO: O DEF. 0 C& F �EDA O SHERIFF O ATTY. 0 OTHER O PO �PD O JAIL O JUDGE 10 O CA Circulated 06/28/2018 03:01 PM IN THE COURT OF COl\fMON PLEAS OF CAMBRIA COUNTY, P�NNSYLVANIA CRIMIN AL DIVISION n � -ri J.."'n � COMMONWEALTH OF PENNSYLV ANlA, : No. 0864-2015 3:,- cJr,-, ::;; ;:] '- c:: '0r'1 Plaintiff, >:x: 'I ('.:) CJ'\. 'I 0 r>,., ::0 vs. CJ ,-n '70 ::0 -o zc :x ri c, DA YID LEON JOHNSON ��. . -. it? 0 ::0 c.;J Defendant. --0 l/) > � 0 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. r-:·· - 0 w -:r: 5:z:. ·-1---- COPIES TO: c::. o;.;. u� 0 O DH. 0 C&F � o t,-L) C) \.0 I C) ·�:.- •..cJ r.; -") _!::£: .- l. . .) .c::: c::, c--...1 Ll O PD O JAIL O JUDGE OCA Circulated 06/28/2018 03:01 PM IN THE COURT OF COMMON PLEAS OF CAMBRJA COUNTY, PENNSYtyANJA CRIMINAL DIVISION . ;= !.:o.i w +: c� COMMONWEALTH OF * ··,: PENNSYLVANIA, * ):,,. :J•.: ·' ' .. ·--(-:, - 3':i- -., r � DA YID LEON JOHNSON :, :-- wi7' rt ,, ;;.; ::::::,. c:J .. · � 1> -- I 0 (;� N ::c • * * • • .. ·O c:r, :z:O ' -u _,_., :it: rn APPEARANCES: --;C 0 :- en 0 FOR THE DEFENDANT: PA TRlClA C. MOORE, ESQUIRE MICHAEL A. FILIA, ESQUIRE ... ... ... ... ... ... 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. COP\ES TO: fS · DEF. 0 c & F �SCaDA O SHERIFF u ATTY. 0 OTHER ge rnenacker, lil I OPO : tJ PD i OJAIL O JUDGE -------:Pamela M. Bishop, RMR OCA Official Court Reporter ------ 4 7th Judidical District --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4293674. Public record. Not legal advice.