Com. v. Rohrbach, R.

J-S07031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT L. ROHRBACH :

:

Appellant : No. 1500 MDA 2018

Appeal from the Judgment of Sentence Entered May 8, 2018

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0004178-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 27, 2019

Robert L. Rohrbach (Rohrbach) appeals from the judgment of sentence

of 16 to 40 years’ incarceration imposed following his conviction for third-

degree homicide. On appeal, Rohrbach raises issues as to evidentiary rulings

and the weight of the evidence. We affirm.

The trial court’s Pa.R.A.P. 1925(a) opinion summarized the basic facts

as follows:

On the evening of December 18, 2015, the Defendant, Robert

Rohrbach, was at home with his girlfriend and victim, Deni[e]se

McAvoy. At some point that evening, they went upstairs to the

bedroom and an argument ensued, which was heard by the next

door neighbor. Ms. McAvoy lay down in the spare bedroom while

the Defendant went to bed in the master bedroom.

In the afternoon of December 19, 2015, the Defendant contacted

his estranged mother and asked her to come over to his house

because something horrible had happened. The mother came and

he eventually told her that his girlfriend, Ms. McAvoy, was dead.

His mother called the police and told them that the Defendant told

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* Retired Senior Judge assigned to the Superior Court.

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her he had killed Ms. McAvoy. When the first police officer arrived

and encountered the Defendant for the first time, the Defendant

said, “I did it. I have mental problems. I killed her.” More officers

arrived and they found Ms. McAvoy's body in bed in the spare

bedroom. The officers also found two handwritten notes from the

Defendant. One said: “Call Police. Suicide. Downstairs

bathroom. Upstairs middle bedroom." The other had a short

explanation of the Defendant and Ms. McAvoy’s tumultuous

relationship and a short will. At the end it stated, “God forgive

me.” The officers also found a makeshift noose in the downstairs

bathroom.

An autopsy of Ms. McAvoy’s body was performed by Dr. Supriya

Kur[u]villa. She determined after her examination that the

manner of death should be classified as a homicide.

Trial Court Opinion, 10/30/18, at 2-3.

There was no dispute that Rohrbach was the only other person present

when Ms. McAvoy died. Because the underlying issue was the cause of her

death, a more detailed factual review is needed to analyze these claims.

I.

A.

Supriya Kuruvilla, M.D., performed the autopsy and opined that the

manner of death was homicide. Dr. Kuruvilla testified that Ms. McAvoy died

from “complications arising from blunt force injury to the abdomen.” N.T. Vol.

I, 4/5-12/18, at 206. The initial blow or blows were “to the abdominal wall

which resulted in laceration of the pancreas,” id., which in turn caused a

hemorrhage. Those injuries led to the colon leaking fecal matter into the

abdominal area, causing a fatal infection. Id. at 212. Dr. Kuruvilla stated

that the injury would not result in immediate death and estimated that the

inflammation and complications occurred over a period ranging from “several

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hours to a couple of days.” Id. As to the initial damage to the pancreas, she

explained that “less than .2 percent of injuries” in blunt force trauma cases

are to the pancreas, as the organ is well-protected since it sits towards the

back of the body. Id. at 209. The doctor testified that the force required to

cause injury to that organ is substantial and “usually requires a very focused

and hard force in the middle of the abdomen which would then crush the

pancreas against the spine and then produce injury.” Id. Dr. Kuruvilla stated

that a fall down the stairs1 or other type of fall would not cause pancreatic

lacerations “unless there’s a fall onto an object that would explain that kind of

impact.” Id. at 211. Additionally, Ms. McAvoy exhibited several injuries to

her face that were in various states of healing.

Samuel Land, M.D., a forensic pathologist, who the Commonwealth had

retained to review Dr. Kuruvilla’s findings, testified on behalf of Rohrbach.

While he agreed that blunt force trauma caused injury to the pancreas and

ruptured the colon, Dr. Land declined to rule the manner of death as a

homicide or accidental. Instead, he concluded it was undetermined. Dr. Land

stated that a fall down the stairs would be an atypical cause of such injuries,

____________________________________________

1 Rohrbach ultimately testified on his behalf. He and other defense witnesses

stated that Ms. McAvoy was frequently intoxicated and often fell when she was

drunk. He testified that Ms. McAvoy injured herself from a fall, complained of

feeling ill, and went to bed. Rohrbach said he checked on her several times

over the course of the next day and asked her to go to the hospital, which she

refused. When he woke up on December 19, he found her dead. Rohrbach

testified that he wrote the suicide note and did not immediately call the police

because he wanted to join Ms. McAvoy in heaven.

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“but had there been something on the steps, something heavy, let’s take a

barbell and this woman had fallen onto the barbell, that would be a possibility.”

Id. at 353. Dr. Land testified that he reviewed all the police reports, including

the notes written by Rohrbach, which did not change his opinion.

B.

To strengthen the case that Ms. McAvoy’s death was not an accident,

much of the Commonwealth’s evidence concerned the parties’ relationship.

Ms. McAvoy had been engaged to a man who developed cancer and died on

May 15, 2014. Tara Shinn, Ms. McAvoy’s work manager, testified that Ms.

McAvoy and Rohrbach began dating about two weeks later. Shortly

thereafter, Ms. McAvoy began coming to work smelling of alcohol and

occasionally with bruises on her face. The two spoke in private and Ms.

McAvoy indicated that Rohrbach was responsible for the injuries. Ms. McAvoy

stopped coming to work as of July 11, 2014, and was officially terminated on

August 12, 2014.2

Mrs. Shinn shared her concerns with Pamela Rodriguez, a fellow co-

worker. Mrs. Rodriguez was friends with Ms. McAvoy and noticed that the

abuse had escalated after Ms. McAvoy and Rohrbach moved in together, which

she said happened sometime in the fall. On at least three occasions, Ms.

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2 Mrs. Shinn explained the reason for the one-month gap as, “I was hoping

that, you know, she had that time to get herself together and that she would

come back to work and continue doing the job that she did do prior to the

passing of Tracy [her fiancé].” N.T. Vol. I, 4/5-12/18, at 320.

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McAvoy showed Mrs. Rodriguez injuries and asked her to take photographs as

proof. Mrs. Rodriguez took photos on November 7, November 20 and

December 4, 2014. Ms. McAvoy told Mrs. Rodriguez to keep the evidence in

case something happened to her.

On December 9, 2014, Ms. McAvoy called Mrs. Rodriguez crying and

requesting Percocet that Mr. Rodriguez had due to a back injury. Mrs.

Rodriguez left work and went to Ms. McAvoy’s home and observed severe

injuries. “The whole left side of her face and her shoulder were black, like not

black and blue, but black. Like her face was so swollen she was

unrecognizable.” Id. at 292. Knowing that Ms. McAvoy had an outstanding

warrant for unspecified alcohol charges, Mrs. Rodriguez reported her to the

police to force Ms. McAvoy’s removal from the home.

After Ms. McAvoy was released from jail, their socialization significantly

decreased. However, on May 10, 2015, Ms. McAvoy showed up at the

Rodriguez home nearly naked, bleeding and bruised. Mr. Rodriguez testified

that he called his wife, who left work to come home. The two decided to call

the police. The officer took no action as Ms. McAvoy did not want to pursue

charges.

C.

On appeal, with respect to evidence of prior abuse, Rohrbach challenges

only the testimony of Mr. Rodriguez, Mrs. Rodriguez and Mrs. Shinn. However,

the Commonwealth presented three additional witnesses, and in pre-trial

litigation, Rohrbach asserted that all of this testimony must be excluded.

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While Rohrbach has abandoned any challenge as to these other witnesses,

those additional facts are relevant to the Commonwealth’s theory of why the

foregoing evidence was admissible. We briefly set forth those facts.

Wilson Serrano-Aponte lived next door to Ms. McAvoy and Rohrbach.

Their homes shared a wall and on December 18, 2015, the day before Ms.

McAvoy died, he heard “screaming between a man and a lady . . . [the] lady

screaming like stop, stop, please stop.” Id. at 13. The screams started at

approximately 10:30 p.m. and went on for five to fifteen minutes. Id. at 15.

Another neighbor, Wendy Bobst, lived close to Rohrbach’s house and

would see Ms. McAvoy walking around the neighborhood. They would chat a

couple times per week. Ms. Bobst noticed bruising and cuts on multiple

occasions; on one of these, Ms. McAvoy’s eyes were almost swollen shut and

her face was bruised. Eventually, Ms. McAvoy asked Ms. Bobst to write down

a list of names and numbers. Ms. Bobst did so and Ms. McAvoy instructed her

to contact those persons if anything ever happened to her. Those names

included Pamela Rodriguez and Tara Shinn.

Finally, Erinn Fortson, an employee of Laurel House, a domestic violence

agency that provided shelter and counseling, testified that on November 23,

2015, Ms. McAvoy called to inquire about shelter. The two spoke and Ms.

McAvoy stated she would call back but never did.

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Rohrbach was convicted of third-degree homicide3 and aggravated

assault following a jury trial. His post-sentence motions were denied and he

raises six issues on appeal.

II.

Rohrbach’s first issue challenges the admission of the hand-written note

recovered from his home. The note stated:

I'm sorry for everything that happened. Deniese and I were

alcoholics. We fought about it all the time. I couldn't leave or

kick her out because I love her and she didn't have anywhere to

go. She got drunk Thursday morning and I got upset. We argued

and later I got drunk. She told me I flipped out and beat her.

This has happened before. I am truly sorry to her family. I see

no alternative but death for me. I would like all my assets, if any,

to go to my daughter . . . .

Cremate me / no service

God forgive me

Commonwealth’s Exhibit 12 (Reproduced at N.T. Vol. II, 4/5-12/18, at 658)

(names omitted).

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3 The Commonwealth originally charged generic criminal homicide at count

two of the information. While the opening and closing statements and jury

instructions are not transcribed, both the transcript and the order recording

the verdict state that the jury was not asked to consider count two. See

Order, 4/12/18, at 2 (“Count 2 of the Information, Criminal Homicide, was not

presented to the jury.”).

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Rohrbach challenges the admission of this note on hearsay grounds.4

His argument has five subparts, only two of which are developed in any

meaningful fashion.5

A.

First, Rohrbach argues that “the reason hearsay is generally

inadmissible as evidence is that the competency and veracity of the person

making the statement, in this case Ms. McAvoy, are not subject to

examination and this lack of ability to examine the source of the statements

renders the statements themselves untrustworthy and unreliable.”

Rohrbach’s brief at 17-18. That statement of the law is accurate but irrelevant

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4 “An appellate court’s standard of review of a trial court’s evidentiary rulings,

including rulings on the admission of hearsay . . . is abuse of discretion.”

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014). Where the

admissibility turns on a question of law, our standard of review is de novo.

Id.

5 Specifically, his claim reads:

The trial court erred in denying Appellant Rohrbach’s motion in

limine seeking to exclude the admission of the handwritten

statements found in Appellant Rohrbach’s residence where the

notes themselves: (a) were hearsay without exception pursuant

to the Pennsylvania Rules of Evidence 801; (b) were not admission

of guilt to the crimes charged; (c) alluded to allegations of past

physical altercations between Appellant Rohrbach and the victim

that did not establish a nexus to the crimes charged; (d) lacked

any indicia of reliability; and, (e) were taken out of context and

carried a prejudicial effect that outweighed any possible probative

value.

Rohrbach’s brief at 6.

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as applied to the note because Ms. McAvoy is not the declarant: Rohrbach is,

as the writing is his own. The attempt to make Ms. McAvoy the declarant

apparently relates to Rohrbach’s reference, “She told me I flipped out and

beat her.” According to Rohrbach, the Commonwealth was introducing that

out-of-court statement.

The trial court explained that it admitted the notes as a party admission.

Trial Court Opinion, 10/30/18, at 4. This ruling was proper as it is well-settled

that statements made by a defendant are an exception to the hearsay rule.

“[A] defendant’s out-of-court statements fall within the party admission

exception to the hearsay rule.” Commonwealth v. Laich, 777 A.2d 1057,

1060 (Pa. 2001). The note reflects Rohrbach’s own words and thought

processes and was, therefore, admissible on that basis. See Commonwealth

v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005) (defendant’s handwritten

note admissible as party admission).

To the extent Rohrbach presented a challenge to the statements made

by Ms. McAvoy, i.e., that the writing contains hearsay within hearsay, we

disagree that the statements of Ms. McAvoy constituted hearsay. The hearsay

rule prohibits the admission of statements for their truth. The note had

evidentiary significance regardless of whether it was actually true that

Rohrbach beat Ms. McAvoy. The jury could draw significance from the mere

fact that Rohrbach believed that the statement was true. In effect, he

adopted the statements made by Ms. McAvoy. That behavior is probative of

consciousness of guilt and was relevant to his mental state.

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B.

Next, Rohrbach avers that even if the note falls within the hearsay

exception, it is not automatically admissible. He contends that “[m]erely

satisfying an exception to the hearsay exclusion is not enough to get past a

constitutional challenge based upon the Confrontation Clause. Sufficient

‘indicia of reliability’ are also required.” Rohrbach’s brief at 18. Rohrbach

avers that the note is unreliable because it is unclear from its face whether he

actually remembered striking Ms. McAvoy.

The “indicia of reliability” language comes from Ohio v. Roberts, 448

U.S. 56 (1980), which formerly governed the resolution of challenges to

hearsay on Confrontation Clause grounds. “According to our description of

that right in Roberts . . . [the Clause] does not bar admission of an

unavailable witness’s statement against a criminal defendant if the statement

bears adequate indicia of reliability.” Crawford v. Washington, 541 U.S.

36, 40 (2004) (quotation marks and citation omitted). But in Crawford, the

United States Supreme Court abrogated Roberts, noting that its test was

simultaneously too broad and too narrow.

Roberts conditions the admissibility of all hearsay evidence on

whether it falls under a “firmly rooted hearsay exception” or bears

“particularized guarantees of trustworthiness.” 448 U.S., at 66,

100 S.Ct. 2531. This test departs from the historical principles

identified above in two respects. First, it is too broad: It applies

the same mode of analysis whether or not the hearsay consists of

ex parte testimony. This often results in close constitutional

scrutiny in cases that are far removed from the core concerns of

the Clause. At the same time, however, the test is too narrow:

It admits statements that do consist of ex parte testimony upon a

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mere finding of reliability. This malleable standard often fails to

protect against paradigmatic confrontation violations.

Id. at 60.

Here, Rohrbach cites cases predating Crawford, which held that a

Confrontation Clause issue arises when the Commonwealth seeks to introduce

testimonial statements. Rohrbach sets forth no argument as to how the

statement by Ms. McAvoy accusing him of beating her which he included in

his note qualifies as testimonial.6 We, therefore, reject his constitutional

challenge.

III.

Rohrbach’s second claim concerns the testimony of Mr. and Mrs.

Rodriguez and Mrs. Shinn, which the Commonwealth sought to introduce in

its notice of intent to introduce evidence pursuant to Pa.R.E. 404(b)(2).7

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6 There is no precise definition of “testimonial statements,” but the essence is

that the declarant is acting as a “witness” providing the equivalent of sworn

testimony. “It is the testimonial character of the statement that separates it

from other hearsay that, while subject to traditional limitations upon hearsay

evidence, is not subject to the Confrontation Clause.” Davis v. Washington,

547 U.S. 813, 821 (2006).

7 Rule 404(b) prohibits the use of other acts evidence to show that a person

acted in conformity with those acts. Rule 404(b)(2), which is non-exhaustive,

permits the introduction of that evidence for purposes of proving “motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” The evidence is admissible “only if the probative

value of the evidence outweighs its potential for unfair prejudice.” When

reviewing the decision to admit such evidence, our standard of review is as

follows:

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Rohrbach filed a motion in response and the trial court held an extensive

hearing on the matter, followed by post-hearing briefs from both parties.

Rohrbach’s argument has three subparts.8

A.

Rohrbach first asserts that the prior acts were insufficiently similar to

the acts that resulted in Ms. McAvoy’s death. We agree but the introduction

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[q]uestions regarding the admission of evidence are left to the

sound discretion of the trial court, and we, as an appellate court,

will not disturb the trial court’s rulings regarding the admissibility

of evidence absent an abuse of that discretion. An abuse of

discretion is not merely an error of judgment; rather, discretion is

abused when the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by the evidence or the record

....

Commonwealth v. Windslowe, 158 A.3d 698, 712–13 (Pa. Super. 2017)

(citation omitted).

8 The full text of his challenge states:

The trial court erred in denying Appellant Rohrbach’s motion in

limine seeking to exclude the testimony of Tara Shinn, Pamela

Rodriguez, and Miguel Rodriguez which was offered to establish

an alleged history to domestic abuse of the victim at the hands of

Appellant Rohrbach where such testimony: (a) was not so similar

to the incidents described by the Criminal Complaint filed in this

matter as to overcome the requirements of Pennsylvania Rules of

Evidence Rule 404(b); (b) only served to cast Appellant Rohrbach

in a bad light and prejudice the fact-finder such that its prejudicial

effect outweighed it probative value; and, (c) concerned prior

alleged assaults were all too remote in time and did not bear any

resemblance to the charged crime.

Rohrbach’s brief at 6.

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of this evidence did not rely on that theory. Our Supreme Court recently

summarized the principles when dealing with “similar acts” evidence in

Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017) (OAJC):

This Court has long recognized an exception to the general

inadmissibility of other crimes evidence where there is a striking

similarity—or logical connection—between the proffered prior bad

acts and the underlying charged crime. As early as 1872, in

Shaffner v. Commonwealth, 72 Pa. 60 (1872), the Court

described the importance of such a connection as follows:

It is a general rule that a distinct crime, unconnected

with that laid in the indictment, cannot be given in

evidence against a prisoner. It is not proper to raise

a presumption of guilt, on the ground, that having

committed one crime, the depravity it exhibits makes

it likely he would commit another. ... To make one

criminal act evidence of another, a connection

between them must have existed in the mind of the

actor, linking them together for some purpose he

intended to accomplish; or it must be necessary to

identify the person of the actor, by a connection which

shows that he who committed the one must have done

the other.

Id. at 65.

In further explaining the logical connection standard, this Court

has noted “ ‘much more is demanded than the mere repeated

commission of crimes of the same class, such as repeated

burglaries or thefts. The device used must be so unusual or

distinctive as to be like a signature.’ ”

Id. at 1125–26 (some citations omitted).

Rohrbach is correct that the history of prior abuse is not similar to the

acts resulting in the victim’s death and would fail the foregoing test. But in

Hicks, the prior acts evidence concerned the defendant’s attacks on other

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women. Here, the Commonwealth introduced evidence of the prior acts

against the same person to establish (1) an escalation of violence as part of

a sequence of events, and/or (2) the absence of mistake (i.e., that the death

was not accidental). Thus, the “similarity” exception to Pa.R.E. 404(b) was

not at issue. Instead, the Commonwealth maintained that the evidence was

admissible for the separate reason that it was part of the history between the

parties. Hence, Rohrbach’s argument has no merit.

B.

Nor is there merit in Rohrbach’s remaining two contentions that (1) the

evidence was too remote in time and (2) its probative value did not outweigh

its potential for unfair prejudice. Rohrbach relies on Commonwealth v.

Green, 76 A.3d 575 (Pa. Super. 2013). Green was convicted of murdering

his girlfriend by a gunshot to the head. The Commonwealth called a witness

who testified that two to three months before the shooting, she and the victim

were preparing to go out when Green entered, pointed a gun at the victim,

and said “where the F are you going[?]” Id. at 583 (quoting trial transcript).

The trial court justified admitting the evidence as relevant to the chain of

events. Rohrbach quotes our disagreement with that rationale:

In the instant case, the res gestae exception is not applicable to

admit evidence of the gun-pointing incident. The delay in time

between the incident and the shooting, which was at least two

months, is by itself strongly suggestive that the exception does

not apply. Nevertheless, there is no specific timeframe that

dictates the applicability of the exception. However, it is also clear

that the gun-pointing incident was in no way part of the same

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transaction or sequence of events that constituted the crime for

which Appellant was being tried.

Id. at 584 (emphasis in original).9

Rohrbach emphasizes that Green deemed a two-month delay between

the prior act and the murder too remote while here, the challenged testimony

discussed events occurring much more than two months before the victim’s

death. But as Green also observed, there is no specific timeframe that

governs the res gestae exception and Rohrbach’s invocation of a per se rule

fails.

More importantly, the event analyzed in Green was a one-off incident

that had little relation to the ultimate murder. In contrast, we have recognized

the probative value of prior instances of abuse between a victim and assailant.

In Commonwealth v. Jackson, 900 A.2d 936 (Pa. Super. 2006), Jackson

and the victim had two children together and a long romantic relationship.

During a fight, Jackson grabbed a cord and strangled the victim until she died.

The Commonwealth introduced evidence that Jackson violated numerous

Protection From Abuse (PFA) orders, plus testimony from several police

officers that a pattern of abuse existed. Jackson, like Rohrbach, admitted to

the police that he killed the victim and also claimed that it was an accident.

Jackson argued that admission of this evidence was improper under Rule

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9Green held that the evidence was admissible as probative of motive and

absence of mistake.

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404(b). We held that the evidence was admissible under the res gestae

exception and that its probative value outweighed its prejudicial effect:

Specifically, Appellant contends that evidence relating to the

parties’ history of domestic abuse and prior PFA orders was

improper since Appellant readily admitted he killed the victim and

the only reason the Commonwealth offered the evidence was to

prove Appellant’s propensity for criminal behavior. We find no

merit to this claim.

It is axiomatic that evidence of prior crimes is not

admissible for the sole purpose of demonstrating a

criminal defendant’s propensity to commit crimes.

This rule is not without exception, however. . . . .

[Commonwealth v. Melendez–Rodriguez, 856

A.2d 1278, 1283 (Pa. Super. 2004)].

Here, the evidence established that, since 1993, police officers

responded to the parties’ residence for numerous incidents where

Appellant had beaten the victim, several times in violation of an

existing PFA order. The evidence suggests that the abuse by

Appellant of the victim continued to escalate until

Appellant ultimately murdered the victim. The challenged

evidence shows the chain or sequence of events which formed the

history of the case, is part of the natural development of the case,

and demonstrates Appellant’s motive, malice, intent, and ill-will

toward the victim. Therefore, the trial court did not err in

permitting the evidence to be introduced at trial.

Id. at 940–41 (emphasis added).

Here, we likewise find no abuse of discretion for the reasons expressed

in Jackson. The evidence in this case suggests a long pattern of abuse by

Rohrbach. Significantly, the victim specifically asked Ms. Bobst to maintain a

list of witnesses in case something happened to her. She also called a

domestic violence agency to inquire about shelter. While Rohrbach apparently

concedes that the trial court did not err in admitting that testimony, Ms. Bobst

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was instructed to speak to Mrs. Rodriguez and Mrs. Shinn. All of these events

are tied together to some degree and form a history of the case.

Finally, this pattern of abusive behavior was highly relevant to undercut

the argument that the injuries leading to death were accidental. We find no

abuse of discretion in admitting the evidence.

IV.

Rohrbach’s third, fourth and fifth claims all raise challenges to the

weight of the evidence, with one challenge each as to Mr. Rodriguez, Mrs.

Rodriguez and Mrs. Shinn. Rohrbach addresses all three together as do we.10

Rohrbach’s weight arguments as to these three witnesses relitigates his

Pa.R.E. 404(b) claim. Rohrbach’s brief at 25-31 (discussing Pa.R.E. 404 with

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10In Commonwealth v. Roberts, 133 A.3d 759 (Pa. Super. 2016), we

explained the applicable standard of review as follows:

A motion for a new trial based on a claim that the verdict is against

the weight of the evidence is addressed to the discretion of the

trial court. A new trial should not be granted because of a mere

conflict in the testimony or because the judge on the same facts

would have arrived at a different conclusion. Rather, the role of

the trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them

or to give them equal weight with all the facts is to deny justice.

In order for an appellant to prevail on a challenge to the weight of

the evidence, the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the court.

Id. at 769-70 (citations and quotation marks omitted). Additionally, we only

review the trial court’s discretion in ruling on the claim, not the actual weight

claim itself. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

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no reference to weight of the evidence). He fails to address how “certain facts

[were] so clearly of greater weight than to ignore them or to give them equal

weight” denies justice.

The one aspect that actually implicates the weight of the evidence

relates to the May 10, 2015 incident where Mr. and Mrs. Rodriguez testified

that they called the police after Ms. McAvoy arrived at their home bleeding

and nearly naked. On cross-examination, counsel asked, “Would you be

surprised to learn that in the report, Officer Lower indicates there were no

visible marks on Deniese McAvoy that day?” N.T. Vol. I, 4/5-12/18, at 300.

Both witnesses said yes. Rohrbach suggests this “testimony” deserves greater

weight, presumably because a police officer would not fail to document the

injuries.

However, Rohrbach fails to develop how the testimony of this one

incident undercuts all the other instances of abuse, especially when actual

photographs depicting said abuse were introduced. Furthermore, the claim

that “Officer Lower reported seeing no bruises on Ms. McAvoy” is not accurate,

as Officer Lower did not testify. There may or may not be reasons that the

police report failed to describe any abuse that only the officer could explain.

But in any event, the jury was entitled to resolve actual conflicts in the

testimony. Surely it can be entrusted to resolve theoretical ones. No relief is

due.

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V.

The final claim attacks the weight of the evidence with respect to Dr.

Kuruvilla’s expert testimony regarding the manner of death. We find no abuse

of discretion. The trial court cogently disposed of this issue in its opinion as

follows:

Lastly, the Defendant argues that Dr. Kur[u]villa's testimony was

against the weight of the evidence because she testified that any

number of means could have caused the death of Ms. McAvoy. He

further argues that this renders her testimony uncertain and that

the verdict issued in reliance of her testimony was not valid.

In her testimony at trial, Dr. Kur[u]villa was forthright and firm in

her conclusion that Ms. McAvoy died as a result of acute peritonitis

due to transverse colon perforation and pancreatic laceration due

to blunt force trauma of the abdomen. She determined that the

manner of death was a homicide. She stated that the most

common way to acquire that kind of injury was through an impact

applied with great force. Some examples she gave of the type of

force included a car accident, a punch, or a kick. Although a car

accident was an example of how one might incur injuries such as

those suffered by Ms. McAvoy, there was no evidence introduced

that established that Ms. McAvoy had been in a car accident. Dr.

Kur[u]villa also listed several other injuries that Ms. McAvoy had

at the time of her death. These included lacerations on her face,

bruises on her head, an injury to her neck indicative of manual

strangulation, and fractured ribs. Because of the types of injuries

that Ms. McAvoy suffered, Dr. Kur[u]villa was able to rule out

possible scenarios for receiving the injuries such as a fall down the

stairs or an accidental fall into an object. She also determined

that the injuries could not have occurred from alcoholism,

peritonitis, or a fecaloma. Dr. Kur[u]villa was confident that her

ultimate determination of a homicide was correct, saying at trial:

DR KUR[U]VILLA: My contention in calling it a

homicide was that there was no alternate explanation

that was offered to me to explain how this lady

developed the pancreatic laceration and the

transverse colon perforation or if she had, for

example, been in a car crash very recently or if she

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had reported very heavy object falling on her or if she

had - or there was a report of her falling onto, say, a

large blunt object to produce that kind of impact, then

I would have called it an accident or if - even if there

was any plausible doubt about some incident that

raised doubt in my head, I might have called it

undetermined. But in this case, none of those

explanations were forthcoming.

Although Dr. Kur[u]villa could not say with certainty what moment

the injuries occurred or what the actual force was, she was certain

that the injuries that resulted in Ms. McAvoy's death must have

been caused by the actions of another. Dr. Kur[u]villa's testimony

was consistent with the conclusion that the Defendant caused the

death of Ms. McAvoy and is not against the weight of the evidence.

Trial Court Opinion, 10/30/18, at 10-11.

We fully agree with this analysis and add only that Rohrbach’s brief

claims that the Commonwealth failed to rule out an accident as the

explanation for the injury and death:

In the instant case, Mr. Rohrbach contends that in light of the trial

testimony that Ms. McAvoy was prone to self-injury while drunk,

that Dr. Kuruvilla's testimony regarding the cause of Ms. McAvoy's

injury was weak and uncertain, and that Dr. Land's testimony

established that Ms. McAvoy's injuries most certainly could have

been received from a fall down a flight of stairs, the jury could not

have concluded beyond a reasonable doubt that any action on his

part caused the fatal injury. The verdict raises the question; upon

what proof does the jury's conclusion rest? What evidence

demonstrates beyond a reasonable doubt either of the competing

propositions; the one suggesting that Ms. McAvoy's injuries were

caused by Mr. Rohrbach or the one suggesting that Ms. McAvoy

was, yet again, falling down drunk and injured herself? The

answer, of course, is neither.

Rohrbach’s brief at 36.

By questioning the validity of the verdict, Rohrbach is challenging the

sufficiency of the evidence. Such arguments are improper in the weight

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context. See Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super.

2011) (“A motion for new trial on grounds that the verdict is contrary to the

weight of the evidence concedes that there is sufficient evidence to sustain

the verdict but contends, nevertheless, that the verdict is against the weight

of the evidence.”) (quotation marks and citation omitted). The only real

weight argument is that Dr. Land disagreed with Dr. Kuruvilla’s conclusions.

Obviously, it cannot be that the existence of competing expert opinions

precludes a verdict. This challenge fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/27/2019

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