NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
RIMEAR CUSTIS Appellant No. 587 EDA 2019
Appeal from the Judgment of Sentence entered October 3, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0001602-2017
BEFORE: BOWES, J., STABILE, J., and COLINS, J.* MEMORANDUM BY STABILE, J.: FILED OCTOBER 07, 2020 Appellant, Rimear Custis, appeals from the judgment of sentence imposed in the Court of Common Pleas of Philadelphia County on October 3, 2018, following his convictions of third-degree murder and endangering the welfare of a child (EWOC).1 Both convictions stem from the death of two- year-old Zy’Air Worrell (Zy’Air), the son of Appellant’s on-again, off-again girlfriend, Andrea Worrell (Andrea). Appellant contends the trial court abused its discretion in admitting three photographs of Zy’Air’s lacerated liver, in denying a motion for mistrial, and in imposing an excessive sentence for
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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502(c) and 4304(a)(1), respectively.
Appellant’s EWOC conviction. Finding no abuse of discretion in the trial court’s rulings, we affirm.
Based on our review of the trial transcript, we provide the following summary of the testimony presented at Appellant’s April 2018 jury trial.2 At approximately 9:50 p.m. on the evening of November 29, 2016, Andrea left Zy’Air in the care of Appellant so she could help her friend, Starr Williams, find a place for Williams and her children to spend the night. Zy’Air was playing and eating when Andrea left. While Andrea was gone, Appellant called Andrea multiple times and sent text and Facebook messages, asking where she was, what was taking so long, and when would she be home.
When Andrea returned home at approximately 11:30 p.m., Zy’Air was in his bed but Andrea noticed his breathing was abnormal. She tried to awaken the child but was unable to do so. She asked Appellant what happened. He responded that he did not know.
Andrea called 9-1-1 and the police arrived before an ambulance. They transported Zy’Air to the hospital where he died hours later. An autopsy revealed contusions on the child’s chest and an abrasion over his right eye.
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2 In his Rule 1925(b) statement, Appellant raised a weight of the evidence claim that he has abandoned on appeal. However, in addressing the claim in its Rule 1925(a) opinion, the trial court provided an extensive review of the evidence, complete with citations to the record. Rule 1925(a) Opinion, 5/22/19, at 4-7. We hereby adopt that summary as our own and incorporate it herein as if fully set forth. In the event of further proceedings, the parties shall attach a copy of the trial court’s opinion to their filings.
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In addition, he suffered from a hemorrhage in his scalp, rib fractures, and multiple lacerations to his liver. Notes of Testimony (N.T.), Trial, 4/18/18, at 138-39. The medical examiner determined that the cause of death was blunt impact trauma to the torso. Id. at 162.
After being notified of Zy’Air’s death, the police returned to Andrea’s home where they found Appellant putting on clothes and gathering his belongings. When they asked his name, he identified himself as Aaron Moses. Appellant was subsequently arrested and charged with Zy’Air’s murder.
Both Andrea and Appellant were taken to the Special Victim’s Unit before being transferred to the Homicide Unit. When questioned in the Special Victim’s Unit, Andrea initially lied, identifying Appellant as Aaron Moses, and saying she had known him for only two weeks. After learning of Zy’Air’s injuries, she truthfully identified Appellant and acknowledged their history, which included an incident in July of 2016 when she threatened to end the relationship and he punched her in the lip and punched Zy’Air in the head and in the back. Andrea had called the police to report that incident but did not remain at the scene until police arrived. However, she did post photographs of the injuries on Facebook along with a warning about Appellant. She and Appellant later reconciled after he promised never to strike her or Zy’Air again.
As noted, Andrea initially lied to police—including saying she was with Zy’Air all day on November 29, 2016, but she subsequently changed her statement, explaining she left Zy’Air in Appellant’s care and returned to find
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him struggling to breathe. She was then charged with EWOC, hindering prosecution, and obstruction of justice. At trial, she testified consistently with the changed statement, and acknowledged her agreement to plead guilty and testify truthfully at trial in exchange for the prosecutor’s agreement not to recommend a sentence in excess of the standard range.
The prosecution presented witnesses who corroborated Andrea’s testimony. After the prosecution rested, Appellant testified on his own behalf. He claimed that he and Andrea began to argue after she returned from helping her friend find a place to stay, and that Andrea began beating Zy’Air, causing his injuries.
The jury found Appellant guilty of third-degree murder and EWOC but acquitted him on a first-degree murder charge. Sentencing was delayed pending preparation of post-sentence investigation report. On October 3, 2018, the trial court sentenced Appellant to 20 to 40 years for third-degree murder and imposed a consecutive sentence of two and a half to five years for EWOC. Following denial of post-sentence motions, Appellant filed this timely appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our consideration:
1. Did the trial court err in admitting the photos of [Zy’Air’s]
removed [liver]?
2. Did the trial court err in failing to grant a mistrial when Detective Crystal Williams referenced and alluded to Appellant’s criminal history?
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3. Did the trial court give Appellant an excessive sentence by giving him a consecutive sentence on the count of [EWOC]
which was outside the aggragated [sic] guidelines?
Appellant’s Brief at 3.
In his first issue, Appellant argues the trial court erred in admitting photos of Zy’Air’s removed liver. Although he asserts trial court error, Appellant correctly acknowledges that the decision to admit photographs of a murder victim is within the sound discretion of the trial court and that this Court will reverse only if the trial court abused its discretion. Appellant’s Brief at 1 (citing Commonwealth v. Funk, 29 A.3d 28, 33 (Pa. Super. 2011) (additional citation omitted)).
At issue are three photographs of Zy’Air’s removed liver, each showing a different plane of his liver where lacerations were noted upon autopsy. Appellant’s counsel argued that the photographs were gruesome and should not be shown to the jury. The trial court disagreed, stating:
Well, this is the key to the entire case. The cause of death was the laceration of the liver. So I’m certainly not going to tie the hands behind the medical examiner here by having him try to explain this without showing what he’s talking about. So I'm going to allow these photos to come in. This is not gruesome. Just so the record is clear, it's just an isolated picture of the liver. And so I don't see how anyone would consider that to be gruesome, in the sense that you look at that, it would cloud the jury's assessment of the guilt or innocence. You know, photos that are ordinarily deemed to be gruesome are the ones that show the body of the decedent in some horrific fashion, and this would not be included. It clearly has relevance, so I'm going to let [the prosecutor] show all three.
N.T., Trial, 4/18/18, at 128.
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In its Rule 1925(a) opinion, the trial court looked to our Supreme Court’s decision in Commonwealth v. Johnson, 42 A.3d 1017 (Pa. 2012), where the Court explained:
When considering the admissibility of photographs of a homicide victim, which by their very nature can be unpleasant, disturbing, and even brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury’s understanding of the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.
Rule 1925(a) Opinion, 5/22/19, at 13 (quoting Johnson, 42 A.3d at 1033-34, in turn quoting Commonwealth v. Pruitt, 951 A.2d 307, 327 (Pa. 2008) (additional citations omitted)).
As reflected in the excerpt from the trial transcript, the court properly conducted the two-step analysis, first finding the photographs were not gruesome and then determining they were relevant to assist the jury’s understanding of the injuries inflicted upon Zy’Air. Finding no abuse of discretion in that analysis and the admission of the photographs into evidence, we dismiss Appellant’s first claim for lack of merit.
In his second issue, Appellant asserts the trial court abused its discretion by denying Appellant’s motion for a mistrial relating to testimony of Detective Crystal Williams. As with Appellant’s first issue, we review the trial court’s
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ruling for an abuse of discretion. Commonwealth v. Manley, 985 A.2d 256, 267 (Pa. Super. 2009). “A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict.” Id. at 268 (citation omitted).
Detective Williams explained that she was assigned to the Homicide Unit and was charged with investigating Zy’Air’s death. When Detective Williams first encountered Appellant at the Homicide Unit, she believed his name was Aaron Moses. N.T., Trial, 4/18/18, at 81. During direct examination, the prosecutor asked Detective Williams how she determined Appellant’s actual name. She responded:
Well, I first, I received information about his name, and then we got him fingerprinted and photographed and we determined that . . . his actual name [was] Rimear Custis.
Id. at 82.
Defense counsel objected. The trial judge sustained the objection and instructed the jury “to disregard the last answer.” Id. Defense counsel advised he would “have a motion at a later time.” Id.
The court conducted a charging conference at the conclusion of Detective Williams’ testimony. During the conference, defense counsel requested “a mistrial based on the comment that Detective Williams made, wherein she was trying to ascertain a correct name for [Appellant].” Id. at
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114. The court acknowledged that the detective testified she “found out the identity, the correct name of [Appellant] through his fingerprints.” Id. at 114- 15. The court then asked the prosecutor if she was aware her question was going to elicit that answer. The prosecutor replied:
No. I expected that she was going to say that she learned the name from having reviewed [Andrea’s] statement. I did know that he was fingerprinted and photographed. I, certainly, don’t think that that response rises to the level of a mistrial being granted.
Id. at 115.
The trial court responded:
Well, listen, you know, you need to be careful, because there’s cases out there that say that if it gets before the jury that the defendant had a criminal record, that that can be grounds for a mistrial. Now, I don’t believe it is in this instance because it was a momentary reference. I don’t believe you acted in bad faith. I accept what you said. It, certainly, would have been better to have prepped the detective. . . .
A mistrial must be granted, it’s an extreme remedy—I’m reading from the Superior Court’s decision here[3]—that must be granted only when an incident is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial.
Id. at 115-16.
The court continued its analysis on the record and denied Appellant’s mistrial motion. Id. at 117. In its Rule 1925(a) opinion, the court explained its obligation to consider the nature of the reference to Appellant’s prior criminal behavior and whether the remark was intentionally elicited. Rule
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3 Manley, 985 A.2d at 266.
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1925(a) Opinion, 5/22/19, at 11. “A singular, passing reference to prior criminal activity is usually not sufficient to show that the trial court abused its discretion in denying the defendant’s motion for a mistrial.” Id. (quoting Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008)). Further, “[a] mistrial is not necessary where cautionary instructions are adequate to overcome prejudice.” Id. (quoting Commonwealth v. Spotz, 716 A.2d 580, 592-93 (Pa. 1998)).
Here, the trial court immediately instructed the jury to disregard Detective Williams’ answer. Further, the court was satisfied the prosecutor did not intentionally elicit the response. In addition, the court offered to deliver a curative instruction. Defense counsel declined. N.T., Trial, 4/18/18, at 117. The court concluded, “[B]ecause the court had already instructed the jury to disregard the offending comment, the momentary reference to [Appellant’s] criminal history, which appeared to have been unintentionally elicited, could not conceivably have prejudiced [Appellant] to the point that it deprived him of a fair trial. Accordingly, no relief is due.” Rule 1925(a) Opinion, 5/22/19, at 12 (some capitalization omitted). In an accompanying footnote, the court observed, “Moreover, [Appellant] admitted during his testimony that at the time of the murder, he was on probation and ‘on the run for simple possession’ and that is why he provided an alias to detectives.” Id. at 12 n.5 (citing N.T., Trial, 4/18/18, at 187-88).
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We find no abuse of discretion in the trial court’s reasoning or in its denial of Appellant’s motion for a mistrial. Appellant’s second issue fails for lack of merit.
In his third issue, Appellant argues the trial court abused its discretion in imposing a sentence of two and a half years for EWOC, consecutive to his sentence of 20 to 40 years for third-degree murder. As such, Appellant presents a challenge to the discretionary aspects of sentence.
This Court has explained:
[T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. . . . [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010) (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)). As this Court reiterated in Moury:
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s
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jurisdiction by satisfying a four-part test: . . . (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170 (internal citations and alterations omitted).
Appellant filed a timely notice of appeal, preserved the issue in his post-
sentence motion, and included a Rule 2119(f) statement in his brief. Therefore, we consider whether he has presented a substantial question for our view.
Appellant contends the trial court failed to articulate sufficient reasons for an upward deviation from the aggravated range of the guidelines when it imposed the sentence for EWOC.4 This Court has recognized that a failure to state sufficient reasons for a sentence on the record presents a substantial question. See, e.g., Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003) (citing Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999)). Therefore, we shall consider Appellant’s claim.
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4 In his Rule 2119(f) statement, Appellant also suggests the imposition of consecutive sentences resulted in a manifestly excessive sentence. Appellant’s Brief at 14. While a challenge to a trial court’s imposition of consecutive sentences does not ordinarily raise a substantial question, see Moury, 992 A.2d at 171, Appellant does not present any argument with respect to consecutive sentences. See Appellant’s Brief at 14-15. Therefore, we shall limit our discussion to Appellant’s contention that the court failed to state sufficient reasons for an upward deviation.
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Appellant argues the upward deviation in his EWOC sentence was inappropriate because the conviction was for a sole occurrence and the gravity of the offense was accounted for in the sentence imposed for third-degree murder. Appellant’s Brief at 15. “Further, the court below cited ‘the nature of the conduct that led to the endangerment’ without further explanation of the specifics.” Id. (citing N.T., Sentencing, 10/3/18, at 35).
The trial court countered that it considered the evidence presented at trial and the information presented at sentencing, including the pre-sentence investigation report, the Commonwealth’s sentencing memorandum, mitigating evidence presented on Appellant’s behalf, information related to Appellant’s prior record score, the statement from Appellant’s grandmother and the victim impact statement, the sentencing guidelines, Appellant’s rehabilitative needs, the need for protecting the public, and the gravity of the offence in relation to the impact on the victim and the community. Rule 1925(a) Opinion, 5/22/19, at 9 (citing N.T., Sentencing, 10/3/18, at 32-35). The court further explained:
While it is true that the EWOC sentence was an upward departure from the standard range of the guidelines and that the sentence was to run consecutively to [Appellant’s] murder sentence, the aggregate sentence was well-justified for the reasons explained by the court in detail during the sentencing hearing. Specifically, the court noted that here, the victim was two-years-old and particularly vulnerable. In addition, the court recalled that the evidence at trial established that [Appellant] inflicted considerable pain and suffering onto the victim. Finally, the court noted that the sentencing guidelines for EWOC did not contemplate the extensive nature of the endangerment in this case, as [Appellant]
severely and repeatedly beat the victim, causing his death, and
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the evidence at trial established that this was not the first time that [Appellant] had hit the victim. Accordingly, the court’s sentence was neither excessive, nor unreasonable.
Id. (citing N.T., Sentencing, 10/3/18, at 34-35) (some capitalization omitted).
We find no abuse of discretion in the trial court’s imposition of Appellant’s sentence for EWOC and reject Appellant’s assertion that the court failed to state sufficient reasons for an upward departure from the guidelines. Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/7/2020
Circulated 09/29/2020 01:25 PM