Com. v. Gaines, L.

Superior Court of Pennsylvania

Com. v. Gaines, L.

Superior Court of Pennsylvania·Decided September 2, 2014·No. 1938 EDA 2013·Unpublished

Opinion

J.S26043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : LAWRENCE A. GAINES, : : Appellant : No. 1938 EDA 2013

Appeal from the Judgment of Sentence May 9, 2013 In the Court of Common Pleas of Northampton County Criminal Division No(s).: CP-48-CR-0003210-2012

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 02, 2014

Appellant, Lawrence A. Gaines, appeals from the judgment of sentence

entered in the Northampton County Court of Common Pleas following his

conviction for first-degree murder.1 Appellant challenges the sufficiency of

ness. We affirm.

The trial court summarized the facts of this case as follows:

During the trial, the Commonwealth presented evidence showing that in the late evening on July 2, 2013, or the

was at 613 Ferry Street in the City of Easton (the

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(a). J. S26043/14

drug house in which individuals would purchase and use drugs inside of the residence.

At approximately 12:30 or 1:00 a.m. on July 3, 2013, Williams smo

at the Property, other individuals, including [Appellant], were inside of the house. Williams was a friend of

at the door.

Later that morning, at approximately 5:50 a.m., Caroline Thompson picked up her son, William Thompson,

Route 22 and transported him in her vehicle to an area near a church on Walnut Street and Locust Street in the city of Easton, Pennsylvania. After exiting the vehicle, [Decedent] told Mrs. Thompson and her boyfriend, Ivan, who was also in the vehicle, that he would return home in twenty minutes. Mrs. Thompson was living in Easton, so it was possible for [Decedent] to walk home from the location near the church.

At approximately 6:00 a.m., Williams was sitting in the living room of the Property when someone began knocking at the back door. Upon initially hearing the knocking, Williams did not get up to answer the door because the

Williams earlier that he did not want anyone else in the

Williams eventually got up and went to the back door. Williams then observed that it was [Decedent] knocking on the door.

[Decedent] was waving a $20 bill in his hand and pleading with Williams to let him inside the Property. Williams told [Decedent] that Ben would not allow anyone else inside and, thus, he refused to let [Decedent] come into the Property. Williams, who had been talking to [Decedent] through the closed door, turned around and returned to the living room where he sat down and talked

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to [Appellant], who was wearing blue jeans and a black shirt. While they were talking, [Decedent] continued -boom banging on th

Williams and [Appellant] initially tried to ignore

point [Appellant] got up, indicated that he was tired of the banging on the door, and expressed concern that the continued knocking would cause a neighbor to call the police. [Appellant] then went to the door and began speaking to [Decedent] through the door without actually opening it.

At some point soon thereafter, the back door opened and [Appellant] and [Decedent] were continuing to converse, but the tone of the conversation was escalating. Williams could not hear the substance of the conversation,

began to get louder. Then, [Appellant] exited the house and closed the door behind him. At no point did [Decedent] go into the house.

Once [Appellant] exited from the house, Williams could still hear [Appellant] and [Decedent] conversing in escalating tones on the back porch. Williams then got up and began moving toward the back door to investigate and possibly resolve any conflict.

Williams exited from the house and walked along the alleyway near the back door of the Property. Williams could see [Appellant] and [Decedent] continuing to talk, and he attempted to intervene. While Williams was

hit. [Decedent] did not hit [Appellant] prior to being hit. [Decedent] then fell to the ground and [Appellant] got on top of [Decedent] and hit him a couple of times and also kicked him in the back of the head.

Williams was able to pull [Appellant] off of [Decedent], and [Decedent] got up and walked away down the street. Williams and [Appellant] remained in the street and they were talking about [Appellant] and [Decedent]. Williams

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Although Williams thought that the fight was over, he

[Decedent] ran at [Appellant] with the stick and hit him in the shoulder or back causing both [Appellant] and [Decedent] to fall to the ground. At the time, Williams did not believe that [Appellant] could see that [Decedent] was about to hit [Appellant] with the stick. As [Decedent] was coming down the street with the stick, Williams was afraid of being hit, but was not afraid of dying.

After the stick hit [Appellant], it broke in half and half of

[Appellant] began scuffling while they were on the ground, and [Appellant] was able to get up off the ground before [Decedent] did. [Appellant] then took a knife out of his back right pocket. [Appellant] said something similar to

stab [Decedent] with the knife while [Decedent] was still on the ground. The stabbing occurred in the same general area right in front of the house on the Property.

After seeing [Appellant] stab [Decedent], Williams

was able to get up and leave, and Williams saw a flow of blood running down the back of [D and [Appellant] also fled from the area, with Williams

[Appellant] went because they fled in opposite directions.

At approximately 6:00 a.m., Catherine Malitsis

County Prison. As they drove away from the prison and

ed at the stop sign, the individual asked her to call 911 and then he fell to the ground. This individual was bleeding profusely from his legs. Malitsis called 911 and then drove around the block and waited for the police to arrive.

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Officer Jamie Luise of the City of Easton Police Department received a call at approximately 6:15 a.m. to respond to an incident at the 600 block of Ferry Street. Although Officer Luise was at the police station at the time of the call, he arrived at the aforementioned location approximately one minute after the time of the call. As he approached the area in his vehicle, Officer Luise observed a black male face down in the roadway intersecting Ferry Street and South Union Street. He observed that there was a large amount of running down Ferry Street.

Because Officer Luise could tell that the individual was injured, he called for emergency medical services to assist the individual and for additional police units to secure the scene. Officer Luise and his partner attempted to aid the individual and locate the wounds. Officer Luise and his

underwear and noticed wounds in his buttocks and upper thigh region. At the time, the individual was unconscious, with a faint pulse, but otherwise unresponsive. Soon thereafter, members of the Easton Fire Department, who were also medics, arrived at the scene and tended to the victim. EMS workers arrived later with an ambulance, and the victim was placed in an ambulance.

On July 4, 2012, Detective Joe Alonzo of the City of Easton Police Department assisted in arresting [Appellant]. At the time, [Appellant] was wearing jeans and a black t- shirt. [Appellant] was also carrying a cell phone. Detective Alonzo did not notice that [Appellant] was injured and [Appellant] did not complain of any injuries.

observed that there appeared to be blood stains on his clothing. In particular, there appeared to be blood stains

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J.S26043/14

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

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : LAWRENCE A. GAINES, : : Appellant : No. 1938 EDA 2013

Appeal from the Judgment of Sentence May 9, 2013 In the Court of Common Pleas of Northampton County Criminal Division No(s).: CP-48-CR-0003210-2012

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 02, 2014

Appellant, Lawrence A. Gaines, appeals from the judgment of sentence

entered in the Northampton County Court of Common Pleas following his

conviction for first-degree murder.1 Appellant challenges the sufficiency of

ness. We affirm.

The trial court summarized the facts of this case as follows:

During the trial, the Commonwealth presented evidence showing that in the late evening on July 2, 2013, or the

was at 613 Ferry Street in the City of Easton (the

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(a). J. S26043/14

drug house in which individuals would purchase and use drugs inside of the residence.

At approximately 12:30 or 1:00 a.m. on July 3, 2013, Williams smo

at the Property, other individuals, including [Appellant], were inside of the house. Williams was a friend of

at the door.

Later that morning, at approximately 5:50 a.m., Caroline Thompson picked up her son, William Thompson,

Route 22 and transported him in her vehicle to an area near a church on Walnut Street and Locust Street in the city of Easton, Pennsylvania. After exiting the vehicle, [Decedent] told Mrs. Thompson and her boyfriend, Ivan, who was also in the vehicle, that he would return home in twenty minutes. Mrs. Thompson was living in Easton, so it was possible for [Decedent] to walk home from the location near the church.

At approximately 6:00 a.m., Williams was sitting in the living room of the Property when someone began knocking at the back door. Upon initially hearing the knocking, Williams did not get up to answer the door because the

Williams earlier that he did not want anyone else in the

Williams eventually got up and went to the back door. Williams then observed that it was [Decedent] knocking on the door.

[Decedent] was waving a $20 bill in his hand and pleading with Williams to let him inside the Property. Williams told [Decedent] that Ben would not allow anyone else inside and, thus, he refused to let [Decedent] come into the Property. Williams, who had been talking to [Decedent] through the closed door, turned around and returned to the living room where he sat down and talked

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to [Appellant], who was wearing blue jeans and a black shirt. While they were talking, [Decedent] continued -boom banging on th

Williams and [Appellant] initially tried to ignore

point [Appellant] got up, indicated that he was tired of the banging on the door, and expressed concern that the continued knocking would cause a neighbor to call the police. [Appellant] then went to the door and began speaking to [Decedent] through the door without actually opening it.

At some point soon thereafter, the back door opened and [Appellant] and [Decedent] were continuing to converse, but the tone of the conversation was escalating. Williams could not hear the substance of the conversation,

began to get louder. Then, [Appellant] exited the house and closed the door behind him. At no point did [Decedent] go into the house.

Once [Appellant] exited from the house, Williams could still hear [Appellant] and [Decedent] conversing in escalating tones on the back porch. Williams then got up and began moving toward the back door to investigate and possibly resolve any conflict.

Williams exited from the house and walked along the alleyway near the back door of the Property. Williams could see [Appellant] and [Decedent] continuing to talk, and he attempted to intervene. While Williams was

hit. [Decedent] did not hit [Appellant] prior to being hit. [Decedent] then fell to the ground and [Appellant] got on top of [Decedent] and hit him a couple of times and also kicked him in the back of the head.

Williams was able to pull [Appellant] off of [Decedent], and [Decedent] got up and walked away down the street. Williams and [Appellant] remained in the street and they were talking about [Appellant] and [Decedent]. Williams

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Although Williams thought that the fight was over, he

[Decedent] ran at [Appellant] with the stick and hit him in the shoulder or back causing both [Appellant] and [Decedent] to fall to the ground. At the time, Williams did not believe that [Appellant] could see that [Decedent] was about to hit [Appellant] with the stick. As [Decedent] was coming down the street with the stick, Williams was afraid of being hit, but was not afraid of dying.

After the stick hit [Appellant], it broke in half and half of

[Appellant] began scuffling while they were on the ground, and [Appellant] was able to get up off the ground before [Decedent] did. [Appellant] then took a knife out of his back right pocket. [Appellant] said something similar to

stab [Decedent] with the knife while [Decedent] was still on the ground. The stabbing occurred in the same general area right in front of the house on the Property.

After seeing [Appellant] stab [Decedent], Williams

was able to get up and leave, and Williams saw a flow of blood running down the back of [D and [Appellant] also fled from the area, with Williams

[Appellant] went because they fled in opposite directions.

At approximately 6:00 a.m., Catherine Malitsis

County Prison. As they drove away from the prison and

ed at the stop sign, the individual asked her to call 911 and then he fell to the ground. This individual was bleeding profusely from his legs. Malitsis called 911 and then drove around the block and waited for the police to arrive.

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Officer Jamie Luise of the City of Easton Police Department received a call at approximately 6:15 a.m. to respond to an incident at the 600 block of Ferry Street. Although Officer Luise was at the police station at the time of the call, he arrived at the aforementioned location approximately one minute after the time of the call. As he approached the area in his vehicle, Officer Luise observed a black male face down in the roadway intersecting Ferry Street and South Union Street. He observed that there was a large amount of running down Ferry Street.

Because Officer Luise could tell that the individual was injured, he called for emergency medical services to assist the individual and for additional police units to secure the scene. Officer Luise and his partner attempted to aid the individual and locate the wounds. Officer Luise and his

underwear and noticed wounds in his buttocks and upper thigh region. At the time, the individual was unconscious, with a faint pulse, but otherwise unresponsive. Soon thereafter, members of the Easton Fire Department, who were also medics, arrived at the scene and tended to the victim. EMS workers arrived later with an ambulance, and the victim was placed in an ambulance.

On July 4, 2012, Detective Joe Alonzo of the City of Easton Police Department assisted in arresting [Appellant]. At the time, [Appellant] was wearing jeans and a black t- shirt. [Appellant] was also carrying a cell phone. Detective Alonzo did not notice that [Appellant] was injured and [Appellant] did not complain of any injuries.

observed that there appeared to be blood stains on his clothing. In particular, there appeared to be blood stains

were barbecuing in the back yard of her residence located at Apartment 3 on 30 South 5th Street in Easton, which is near Ferry Street. While outside, Blair discovered a knife stuck in the wood on the side of a gate to the back yard.

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Upon hearing that Blair saw the knife, her husband and brother came over and opened the knife. They saw that there was blood on it, and they wrapped it in a tissue and brought it into their apartment. They thought it was a fishing knife and did not immediately contact the police about locating it. However, approximately two days after locating the knife, Blair contacted the police after learning about a stabbing up the street from where she lived. Because Blair, her husband, Brandon Perkins, and her brother, John Blair, touched the knife, they provided the police with DNA samples.

Trial Ct. Op., 10/25/13, at 4-10 (footnotes and citations to record omitted).

At trial, Daniel Reagan, an inspector with the City of Easton Police

Department and lead investigator, interviewed Appellant. He testified, inter

alia, as follows:

A: . . . I was up front with him, and I let him know his

of the story.

[Decedent]. They had an argument in the past. Basically, they were friends. And he was not there. Had nothing to do with the killing of him.

Q: Now, at any point during this interview, did you make any suggestions about the possibility of self-defense?

A: Yes, I did.

Q: Can you describe why you went down that road? Is that your belief? Is that your thought?

A: At that point in th But because he was going to great lengths to distance

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himself from what [sic] the witness information we had,

come in and say that.

So once I was realizing there, obviously, that was a significant contradiction of information we had. So either everyone else was lying or

themselves there in a case like this to say, well, maybe it was self-defense; otherwise, how was all this evidence and why the witnesses saying [sic] that you were there.

* * *

Q: Now, you had an opportunity to sit with [Appellant] and view him and interact with him.

A: I did.

Q: About how far away? Were you pretty close to [Appellant]?

A:Yeah. We were seated just at a table.

Q: And when did you interview him, what date?

A: I interviewed him on July 4, approximately 10:01 a.m., I believe it was.

Q: So it was about 24 hours or so after the death of [Decedent]?

A: Approximately.

Q: Did you notice if he had any injuries on him?

A: He did not have any injuries.

Q: Did he complain of any injuries to you?

A: Not of any injuries. He mentioned that he had kidney problems.

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mention any injuries.

Q: Now, this interview that you had with [Appellant], was it audio and video recorded?

A: It was.

N.T., 5/7/13, at 191-93, 194-95. The recording of the interview was

admitted into evidence without objection from the defense. Id. at 196.

At trial, Samuel Land, M.D., a board certified forensic pathologist

37, 39-40. Dr. Land testified regarding the autopsy he performed on

Decedent on July 3, 2012, at 10:30 a.m. Id. at 43. He stated:

A: [Decedent] had multiple areas of trauma. He had scrapes or abrasions to his head and face. He had multiple stab wounds to the right arm, right groin, right buttocks, and right thigh.

wounds; is that correct?

A: Yes.

Q: How did you identify them? Did you number them?

A: Well, I label the stab wounds with numbers but only for my convenience. . . .

right. It you can explain that photo.

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A: This is a photograph of stab wounds number one and two . . . .

Q: Now, if we can start with what you identified as stab wound number one. Can you describe the wound and your findings to the jury? . . .

A. . . . This was a penetrating stab wound to the right buttock. The wound went in to the right buttock, went through the skin, soft tissue, the muscle. It was about five to six inches in depth. The wound was what we call boat shaped. I was able to say the implement used, one sharp edge and one blunt edge. This wound caused bleeding throughout the wound pathway.

Q: Now, is this wound fatal?

A: Well, all penetrating sharp force trauma to the body is

threatening.

A: This is wound number two. Again, through [sic] closer to the lower part of the buttock near the thigh. This wound was also boat shaped. It also had one sharp edge and one blunt end.

The wound passed through the skin, the soft tissue, and the muscle of the right buttock. There was bleeding and tissue destruction throughout the wound pathway, and the depth of the wound was about five to six inches in depth.

A: . . . Wound number three is in the back of the right thigh. This wound was somewhat atypical in that it was not your typical boat shape. It has one sharp area and one blunt area, but it appears that the implement was twisted causing some further cutting as it was removed.

This wound went into the skin, went through the skin, the soft tissue, and the muscle of the right thigh. There was bleeding and tissue destruction along the entire

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wound pathway, and the depth of the wound is about three inches.

[Decedent] now lying on his back. . . . And in the right bicep region, there is a stab wound that goes through the skin, into the muscle of the right bicep.

The depth of the wound was about two inches in depth. There was bleeding along the wound pathway. This wound did have one sharp edge and one blunt edge.

is what you described as number five; is that correct?

Q: And if you could describe a little bit about this injury?

A: . . . This is the right thigh. This is the right groin.

The wound went through the soft tissue, through the skin, through the soft tissue, and the muscle of the right thigh. It also went through the femoral artery, which is the main artery that feeds the leg.

complete perforation, front and back, of the femoral artery. The implement went further into the muscle of the right thigh. This caused massive bleeding, exsanguination, bleeding out, both externally and into the soft tissues of the thigh and into the back, into the pelvis, and into the back.

Q: Now, you were talking about this artery. It is a vital part of our body or vital organ?

A: Yes, it is.

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Q: Can you describe to the jury what that means, being

A: A vital portion of the human body damaged, your life is in jeopardy.

Id. at 50, 51-52, 53, 54, 55-57.

Appellant did not testify in his defense or present any evidence. The

jury found Appellant guilty of first-degree murder. He was sentenced to a

mandatory period of life imprisonment without the possibility of parole.

Appellant filed post-sentence motions which were denied. This timely

appeal2 and contemporaneous Pa.R.A.P. 1925(b) statement of errors

complained of on appeal3 followed. The trial court filed a responsive opinion.

Appellant raises the following issues for our consideration:

1. Whether the [v]erdict was against the sufficiency of the evidence in that evidence does not support a conclusion that [Appellant] acted with malice or the specific intent to kill where [Appellant] had been attacked by a weapon-wielding man and used a knife to defend himself and no evidence would support an inference that he intentionally and deliberately sought to pierce the femoral artery such that the denial of the post-sentence motion in this regard was erroneous?

2 -sentence motions were denied on May 31, 2013. The thirtieth day thereafter was Sunday, June 30, 2013. See Pa.R.Crim.P. 720(A)(2)(a). His notice of appeal was filed on July 1, 2013 and was therefore timely. See 1 Pa.C.S. § 1908 (providing that when last day of any period of time referred to in any statute falls on Saturday, Sunday, or legal holiday, such day shall be omitted from computation). 3 We note that the court subsequently ordered Appellant to filed a Rule 1925(b) statement on July 3, 2013.

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2. Whether the exclusion of a defense witness who would have testified that the implement wielded by the decedent (a railing used as a club) would have warranted y or

the denial of the post-sentence motion in this regard was also erroneous.

First, Appellant argues that the evidence was insufficient to support a

conviction of first-degree murder, as it did not show he had the specific

intent to kill. While conceding that the use of a deadly weapon on a vital

part of the body can raise the inference of specific intent, Appellant avers

that he acted in self-defense. Appellant asserts:

In this case, [he] and [Decedent] had an altercation in which no weapon was produced or used. It was only after that first fight had ended that [Decedent] picked up a weapon (the baluster) and ran headlong at [him] striking him with the stick with such force and momentum that both were driven to the ground. [Appellant] stood his ground, as he was legally entitled to do, and defended himself by stabbing his attacker in the buttocks.

Id. suant

to 18 Pa.C.S. § 505(a) and (b)(2.3)(i)-(iii)(B), and defended himself by

stabbing his attacker. Id. We find no relief is due.

The standard of review for a challenge to the sufficiency of evidence is

de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d

1233, 1235 (Pa. 2007)

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the

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evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict. . . .

Id. at 1235-36 (citations and quotation marks omitted).

When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt. . . . In applying this standard, the reviewing court must bear in mind that: the Commonwealth may sustain its burden by means of wholly circumstantial evidence; the entire trial record should be evaluated and all evidence received considered, whether or

trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence. . . .

Id. at 1237 (punctuation and citations omitted).

The Pennsylvania Crimes Code defines first degree murder:

(a) Murder of the first degree. constitutes murder of the first degree when it is committed by an intentional killing.

18 Pa.C.S. § 2502(a).

Our Pennsylvania Supreme Court has stated:

In order to sustain a conviction for first-degree murder, the Commonwealth must demonstrate that a human being was unlawfully killed; the defendant was responsible for the killing; and the defendant acted with malice and a specific intent to kill, i.e., the killing was performed in an intentional, deliberate, and premeditated manner. Specific intent may be established through circumstantial evidence, such as the use of a deadly weapon on a vital part of the victi ....

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Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citations

omitted and emphasis added).

The defense of self-defense

the defendant] reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the [defendant] did not violate any

prove self-defense . . . before the defense is properly in

prop prove beyond a reasonable doubt that the defendant was not acting in self-

that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (citations and

footnote omitted).

After careful review of the record, including the trial testimony, the

and the opinion of the Honorable Edward G. Smith, we affirm

See Trial Ct. Op. at 12-21

(holding Commonwealth presented sufficient evidence to convict Appellant of

first-degree murder and to show that he did not act in self-defense where

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[Decedent] and then continuously punching and kicking him until Williams

while Decedent was vulnerable and lying on ground).

Lastly, Appellant contends the trial court erred in excluding a defense

witness who would have testified that the implement wielded by Decedent

a weapon

Appellant contends that he attempted to call Sergeant Timothy Hornbaker of

what would happen if the stick was used in an attempt to attack somebody

in the courtroom which would have demonstrated that this was a weapon

Id. at 13.

The trial court suggests that Appellant did not raise, prior to this

appeal, the issue of whether it erred in precluding Sergeant Hornbaker from

testifying that the stick was a weapon capable of lethal use. Trial Ct. Op. at

25. We agree with the trial court that Appellant did not seek to call

Sergeant Hornbaker to testify about whether the railing or baluster wielded

by Decedent was readily or apparently capable of lethal use. Although

Appellant sought to ask the Sergeant at trial whether he would allow

do in the event that happened, there was no offer of proof pertaining to the

rail used by Decedent.

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At trial, Appellant stated to the court that he wished to call Sergeant

Hornbaker to testify for the defense:

[Defense Counsel]: . . . I would have one witness I would like to call, it would be Sergeant Hornbaker of the -defense case. This is something the jury will have to wrestle with what force was necessary and what the circumstances were.

. . . The offer of proof would be initially to have him describe how many deputies are in the courtroom, what they carry on their utility belts, and what he would do if I picked up a stick and tried to attack somebody in the courtroom. . . .

N.T., 5/8/13, at 14 (emphasis added). The court denied the request to call

the witness because it would intrude upon the province of the jury. Id. at

Hornbacker as an expert witness:

[Defense counsel]: If I may just further make a record. I could be offering and try to qualify Sheriff Hornbaker as

not asking what he would do specifically. The question would be phrased, you would not hit somebody with a stick.

The use of hypotheticals is proper with experts. And if the facts should not be hypothetical, we could use the facts as they have been produced by the Commonwealth if we were outside at the time of this crime, you know, and just run through all of the facts that have been established, and then pose the question: Would you let that happen. I think that is appropriate.

- expert, are you going to let somebody hit you with a stick,

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[Defense Counsel]: But I think that is the argument. . .

.

Id. at 16. The court denied the request. Id. at 19.

ruling:

[Defense Counsel]: . . . If I just may make the record clear, I would not be eliciting testimony from Sheriff Hornbaker whether he thought [Appellant] acted reasonably. Because I believe that would invade the province of the jury.

I would be asking questions more along the lines of would he in this environment, the courtroom environment, permit anybody to strike another person with that stick.

And I would not be asking him does he think or speculate that what [Appellant] did was proper or reasonable. I believe that is for the jury.

The Court: What would the relevance of that testimony, except on the issue of the objective element, whether ble in light of the facts as they appeared to him?

[Defense Counsel]: I think it goes to the objective facts

appropriate to stop them, whether it was appropriate in this case, whether it ultimately meets part of the definition

the jury.

But I would like to argue with the facts of record that

should be given that opportunity.

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The Court: My prior ruling stands that goes to presenting expert testimony on whether you hit, that would not be a benefit to the jury and it could go directly towards that objective evidence whether it was reasonable.

irrelevant.

itness taking the stand and saying you cannot go around hitting people with a stick.

Id. at 74-77.

Opinion

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