Com. v. Higinbotham, R.

• Court: Superior Court of Pennsylvania
• Decided: June 15, 2022
• Docket: 878 WDA 2021
• Status: Unpublished

Opinion

J-S11008-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD HIGINBOTHAM : : Appellant : No. 878 WDA 2021

Appeal from the Judgment of Sentence Entered November 28, 2011 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001323-2009

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: June 15, 2022

Ronald Higinbotham appeals, nunc pro tunc, from the judgment of

sentence imposed following his conviction for third-degree murder1 after

running over his wife with his car. Higinbotham raises several issues on

appeal, which he organizes into three broader categories: (1) evidentiary

challenges, (2) ineffective assistance of counsel claims, and (3) a cumulative

prejudice claim. Because we conclude that Higinbotham’s evidentiary

challenges and cumulative prejudice claims merit no relief, and we are unable

to review his ineffective assistance claims, we affirm his judgment of sentence.

1 See 18 Pa.C.S.A. § 2505(c). J-S11008-22

Succinctly,2 Higinbotham and his wife, Carmen, attended a party on the

evening of June 20, 2009, during which Higinbotham consumed a significant

amount of alcohol. While driving home on Route 40, Higinbotham ran over

Carmen with his vehicle, a Hyundai Tiburon with low rider panels along both

sides. Higinbotham continued his drive home before calling 911.

Throughout the pre-trial proceedings and during trial, the primary

factual dispute concerned how Carmen came to be on the road and how she

was run over. According to Higinbotham, the couple began arguing during the

car ride, and Carmen repeatedly punched him in the face before jumping out

of the moving vehicle. Higinbotham believed Carmen had been sucked

beneath his car after she jumped.

By contrast, the Commonwealth’s theory of the case was that Carmen

was sitting or lying on the road, likely following an argument, and Higinbotham

intentionally ran over Carmen with his vehicle. The Commonwealth relied, in

part, on testing performed by Pennsylvania State Police Trooper John Weaver,

an expert in accident reconstruction. See N.T., Omnibus Pretrial Proceeding,

3/29/10, at 31 (wherein defense counsel acknowledged Trooper Weaver’s

qualifications as to accident reconstruction but noted concerns about the

testing methodology). An inspection revealed blood spatter on the driver’s

side of the front of the vehicle, biological evidence including Carmen’s hair and

2 For a detailed recitation of the factual history, see Trial Court Opinion, 2/23/12, at 2-6.

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blood on the vehicle’s undercarriage, a broken light beneath the vehicle, and

a fiberglass component from the back driver’s side of the vehicle was broken

and missing. See id. at 38-39, 58. Trooper Weaver conducted several tests

using a crash dummy, whereby the dummy was pushed out of Higinbotham’s

vehicle while traveling at approximately 55 miles per hour. See id. at 40-68.

Trooper Weaver opined that based on the evidence and damage to the car,

Carmen “was struck with the front of the vehicle and completely run over with

her body rolling underneath of the vehicle as it traveled over top of her.” Id.

at 68.

On November 12, 2009, Higinbotham filed an omnibus pre-trial motion

including, inter alia, a motion to suppress any evidence concerning the tests

performed on Higinbotham’s vehicle using a crash dummy. After a hearing,

the trial court denied Higinbotham’s omnibus pre-trial motion. Notably, the

trial court concluded that Higinbotham’s challenge to the crash dummy test

evidence was premature and stated it would be better able to assess the

admissibility at trial if Higinbotham presented a Frye3 motion.

Following a jury trial, Higinbotham was convicted of third-degree

murder. On November 28, 2011, the trial court sentenced Higinbotham to a

term of 20 to 40 years in prison, with credit for time served. On direct appeal,

3 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). “Under Frye, novel scientific evidence must be generally accepted in the relevant scientific community before it will be admitted.” Commonwealth v. Bonnett, 239 A.3d 1096, 1101 n.4 (Pa. Super. 2020); see also Pa.R.E. 702.

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this Court affirmed Higinbotham’s judgment of sentence, concluding there was

sufficient evidence to sustain his conviction, and finding his remaining claims

waived. See Commonwealth v. Higinbotham, 55 A.3d 139, 32 WDA 2012

(Pa. Super. filed July 17, 2012) (unpublished memorandum). The

Pennsylvania Supreme Court denied allowance of appeal.

On August 29, 2013, Higinbotham filed a pro se petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”) alleging ineffective

assistance of counsel. Following several years, a multitude of pro se filings,

and several changes of counsel, Higinbotham retained current counsel, who

filed an amended PCRA petition on his behalf on July 2, 2019. After a hearing,

the PCRA court determined Higinbotham had effectively been denied his right

to a direct appeal due to counsel’s shortcomings. Accordingly, on July 12,

2021, the PCRA court reinstated Higinbotham’s direct appeal rights, nunc pro

tunc. Higinbotham filed a nunc pro tunc appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.4

Higinbotham’s first two claims raise evidentiary challenges. We review

a challenge to the admissibility of evidence, including the introduction of

expert testimony, for an abuse of discretion:

[o]n appeals challenging an evidentiary ruling of the trial court, our standard of review is limited. A trial court’s decision will not be reversed absent a clear abuse of discretion. Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or

4 The Commonwealth did not file an appellate brief in this matter.

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where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Conte, 198 A.3d 1169, 1180 (Pa. Super. 2018) (citation

omitted; brackets in original); see also Commonwealth v. Safka, 95 A.3d

304, 307 (Pa. Super. 2014) (reiterating that admissibility of expert scientific

testimony will be reviewed for an abuse of the trial court’s discretion).

In his first claim, Higinbotham argues the trial court abused its discretion

under Frye by permitting Trooper Weaver to testify about the results of the

crash dummy test. See Appellant’s Brief at 18.5 He subdivides his first claim

into two sub-issues. We conclude Higinbotham failed to preserve these claims

for appellate review.

Higinbotham first claims the conditions of the crash dummy test did not

reflect Higinbotham’s description of the accident. See id. at 39. In particular,

Higinbotham challenges the following test conditions: (1) the Hyundai’s

speed; (2) the weight, mass, acceleration and wind resistance of the dummy

5 Higinbotham’s first issue explicitly challenges the validity and relevance of Trooper Weaver’s experiments. See Appellant’s Brief at 2. While Higinbotham includes challenges to Trooper Weaver’s status as an expert in his argument, we note that this issue is distinct from Higinbotham’s claim that the trial court misapplied Frye in permitting Trooper Weaver’s testimony. See Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1045-46 (Pa. 2003) (“Whether a witness is qualified to render opinions and whether his testimony passes the Frye test are two distinct inquiries that must be raised and developed separately by the parties, and ruled upon separately by the trial courts.”). Therefore, to the extent that Higinbotham desired to raise a separate challenge to the trial court’s decision that Trooper Weaver qualified as an expert, that claim is waived due to Higinbotham’s failure to include it in his statement of questions involved. See Pa.R.A.P. 2116(a).

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versus Carmen; (3) the horizontal ejection force when throwing the dummy

out the passenger door, rather than a person exiting; and (4) tying open the

front passenger door. See id. at 39-45.

In his second sub-issue, Higinbotham contends the trial court erred in

allowing Trooper Weaver to testify about his experiment because the

experiment was novel and did not use a method generally accepted in the

relevant scientific community. He highlights concerns about Trooper Weaver’s

lack of concern regarding important variables like the speed of the Hyundai

and Carmen’s weight. Higinbotham characterizes Trooper Weaver’s

methodology as “novel” because Trooper Weaver had never performed a

similar test and “the dummy test was so poorly conceived and premised on

erroneous assumptions regarding the laws of physics it didn’t and couldn’t

measure what [Trooper] Weaver claimed it measured.” Id. at 47. According

to Higinbotham, he was prejudiced by the admission of the crash dummy tests

because it likely impacted the jury’s credibility determination. See id. at 49-

50.

We note that Higinbotham frames the trial court ruling as a denial of a

motion to suppress. See id. at 18. Yet, it is more accurately a motion in limine

to exclude Trooper Weaver’s testimony based upon Frye. See Pa.R.E. 103,

Comment (“Motions in limine permit the trial court to make rulings on

evidence prior to trial or at trial but before the evidence is offered.”); see also

Commonwealth v. Cohen, 605 A.2d 1212, 1215 (Pa. 1992) (observing that

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the primary purpose of suppression of otherwise admissible evidence is to

discourage unconstitutional police procedures).

Generally, a defendant must object contemporaneously to testimony in

order to preserve the issue for appellate review. See Commonwealth v.

Parker, 847 A.2d 745, 749-50 (Pa. Super. 2004). However, there is an

alternate method for preserving a challenge to testimony: the motion in

limine. If the defendant obtains a definitive denial of his motion in limine on

the record, he does not need to raise a contemporaneous objection to the

testimony at trial. See Pa.R.E. 103(b).

Here, Higinbotham raised these sub-issues in his omnibus pre-trial

motion to suppress. See Omnibus Pre-Trial Motion, 11/12/09, at 5

(unnumbered). During the pre-trial hearing, the Commonwealth elicited

testimony about Trooper Weaver’s qualifications, and defense counsel had the

opportunity to cross-examine Trooper Weaver on the issue. See N.T.,

Omnibus Pre-Trial Proceedings, 3/29/10, at 40-48. Defense counsel cited

Frye and asserted Trooper Weaver could not “give an opinion as to the test

that he had never conducted in the past….” Id. at 48. However, defense

counsel did not object on the basis that the methodology was novel in the field

of accident reconstruction. Additionally, defense counsel had the opportunity

to cross-examine Trooper Weaver concerning the method used and whether

variables such as the weight of the dummy or the speed of the vehicle would

affect his conclusion. See id. at 45-50.

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At the conclusion of the pre-trial hearing, the trial court directed the

parties to file briefs on their respective positions. In his brief in support of his

omnibus pre-trial motion, Higinbotham challenged Trooper Weaver’s opinion

based on Pa.R.E. 702 and argued that “Trooper Weaver is not an expert in the

field of physics and the results of his ‘test dummy’ experiment should not be

presented to the jury.” Brief in Support of Defendant’s Omnibus Pre-Trial

Motion, 4/20/10, at 5-6 (unnumbered). Higinbotham appeared to challenge

Trooper Weaver’s qualifications, but he did not specifically challenge the

experiment as novel or allege Trooper Weaver used existing scientific methods

in a novel way.

In its opinion and order on Higinbotham’s omnibus pre-trial motion, the

trial court only briefly addressed Higinbotham’s Frye challenge, concluding it

was “premature.” Opinion and Order, 6/15/10, at 7. The court then stated,

“The trial judge will be in a much better position to assess the admissibility of

this evidence, if a Frye motion is presented to him/her at the time of trial.”

Id. at 7-8.

Based upon the foregoing, we conclude Higinbotham did not preserve

his Frye challenge for appellate review by renewing his objection in the

absence of a definitive ruling on the matter by the trial court. See Pa.R.E.

103(b). Higinbotham’s first issue on appeal merits no relief.

In his second claim, Higinbotham asserts the trial court abused its

discretion by refusing to allow one of his sons, Kyle, to testify about a separate

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incident in which Carmen exited a moving vehicle during an argument. See

Appellant’s Brief at 52. Higinbotham avers that Kyle’s testimony would be

admissible under Pa.R.E. 404 to establish motive. See id. at 53. Rule 404(b)

prohibits the introduction of “[e]vidence of any other crime, wrong, or act …

to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.” Pa.R.E. 404(b)(1). Such

evidence may be admissible to prove, inter alia, motive, intent or common

scheme, “if the probative value of the evidence outweighs its potential for

unfair prejudice.” Pa.R.E. 404(b)(2). Higinbotham contends this testimony

would have added credibility to his explanation of the events. See id. at 56.

Initially, we note that while Higinbotham cites to Pa.R.E. 404, he fails to

set forth the pertinent language or provide meaningful argument for this

claim. See Pa.R.A.P. 2119(a) (providing that the argument shall include “such

discussion and citation of authorities as are deemed pertinent.”). Instead,

Higinbotham baldly states Kyle’s testimony was admissible under the motive

exception to Pa.R.E. 404. Additionally, Higinbotham avers the testimony could

be used for impeachment purposes, and the exclusion of this evidence denied

him of his right to a complete defense; however, Higinbotham similarly fails

to develop these assertions. Accordingly, this claim is waived. See

Commonwealth v. McMullen, 745 A.2d 683, 689 (Pa. Super. 2000) (stating

that “[w]hen the appellant fails to adequately develop his argument,

meaningful appellate review is not possible.”) (citation omitted).

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Moreover, our review of the portion of the notes of testimony cited by

both Higinbotham and the trial court on this issue reveals that the parties only

specifically discussed Rule 406; defense counsel did not refer to Rule 404 or

Higinbotham’s right to present a complete defense.6 The trial court’s

consideration of this claim is limited to a discussion of Pa.R.E. 406, concerning

a person’s habit or routine practice. See Trial Court Opinion, 9/24/21, at 7.

Therefore, it appears from the record that the trial court was unable to address

this claim in the first instance; for this reason as well, this issue is waived.

See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and

cannot be raised for the first time on appeal.”).7

6 We decline to scour the voluminous record in this case for additional reference to Rule 404 and the right to present a complete defense in relation to Kyle’s proposed testimony. See Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018).

7 Even if Higinbotham had adequately addressed this claim, we would conclude that it lacks merit. In support of his claim, Higinbotham relies on Commonwealth v. Powell, wherein our Supreme Court concluded the trial court did not err in admitting the testimony of the 6-year-old victim’s mother over a Rule 404(b) objection. 956 A.2d 406, 418 (Pa. 2008). The Powell case is readily distinguishable from the facts at hand. In Powell, the victim’s mother provided testimony concerning her history of abuse with appellant, her sometimes-paramour who took custody of the victim. See id. at 410-11, 418. The Court upheld the introduction of this testimony for the purpose of “establishing the family environment” and to demonstrate that appellant had isolated the victim from his mother. See id. at 419-20. Here, in contrast to Powell, Kyle’s testimony concerned a single incident that occurred several years prior to the incident at issue in this case; accordingly, we would find no error in the trial court’s conclusion that the testimony would not establish a motive, intent, or common scheme. See Trial Court Opinion, 9/24/21, at 7 (unnumbered).

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Higinbotham’s next three claims challenge the effectiveness of trial

counsel. Higinbotham asserts trial counsel was ineffective for failing to object

to (1) opinion testimony provided by Trooper Weaver regarding the manner

in which Carmen ended up on the ground; (2) testimony by Dr. Bruce Wright,

the Commonwealth’s psychiatrist,8 concerning Higinbotham’s competency

interview, on the basis that Higinbotham was not afforded the opportunity to

consult with trial counsel; and (3) the opinion proffered by Dr. Wright

concerning Higinbotham’s ability to form specific intent, on the basis that his

opinion was not based on Higinbotham’s statements during the competency

interview. See Appellant’s Brief at 57-86.

Generally, a claim of ineffective assistance of trial counsel may only be

raised on collateral review. See Commonwealth v. Grant, 813 A.2d 726,

738 (Pa. 2002). However, while reaffirming this general rule, our Supreme

Court has created two limited exceptions, which are within the trial court’s

discretion:

First, we appreciate that there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims. …

8 Higinbotham sought to establish a diminished capacity defense and a diminished capacity through involuntary intoxication defense at trial, and he retained a psychologist to conduct a mental status evaluation. See Notice of Defense of Mental Infirmity, 9/3/10; see also N.T., Jury Trial, 11/14-15/11, at 846. The trial court then permitted Dr. Wright to examine Higinbotham as the Commonwealth’s expert. See Order, 9/28/10.

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Second, with respect to other cases and claims…, where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post- verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant’s knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (footnotes

omitted).

Here, the trial court concluded Higinbotham’s claims are not apparent

from the record and so meritorious that immediate consideration is warranted.

See Trial Court Opinion, 9/24/21, at 6-7 (unnumbered); see also id. at 6

(unnumbered) (noting that Higinbotham failed to obtain the record from the

PCRA hearing). Further, Higinbotham makes no argument concerning the

second Holmes exception, nor has he explicitly waived further PCRA review.

See Holmes, 79 A.3d at 564; see also Commonwealth v. Britt, 83 A.3d

198, 204 (Pa. Super. 2013) (declining to address ineffectiveness claims on

direct appeal where the facts did not invoke the Holmes exceptions, and the

appellant did not waive his rights to PCRA review). Accordingly, we cannot

review Higinbotham’s ineffectiveness claims on direct appeal.

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In his final claim, Higinbotham contends he was prejudiced by the trial

court’s and trial counsel’s errors,9 and the cumulative impact of these errors

rendered his trial fundamentally unfair. See Appellant’s Brief at 86-87.

An appellant who raises a cumulative prejudice claim must provide

factual and legal support for his argument:

Where a claimant has failed to prove prejudice as a result of any individual errors, he cannot prevail on a cumulative effect claim unless he demonstrates how the particular cumulation requires a different analysis. Although cumulative prejudice from individual claims may be properly assessed in the aggregate when the individual claims have failed due to lack of prejudice, nothing in our precedent relieves an appellant who claims cumulative prejudice from setting forth a specific, reasoned, and legally and factually supported argument for the claim. A bald averment of cumulative prejudice does not constitute a claim.

Commonwealth v. Hutchinson, 25 A.3d 277, 351-52 (Pa. 2011) (citations

and quotation marks omitted).

Here, Higinbotham provides no argument to demonstrate how this

particular accumulation requires a finding of prejudice. See id. Instead,

Higinbotham incorporates by reference his previous arguments, see

Appellant’s Brief at 86, and fleetingly restates his belief that he suffered

prejudice. This bald assertion does not entitle Higinbotham to relief under a

9 Because we have determined that we cannot review Higinbotham’s ineffective assistance of counsel claims on direct appeal, we similarly cannot review the portion of his cumulative error argument based on his ineffectiveness claims.

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cumulative prejudice analysis. Accordingly, we affirm Higinbotham’s judgment

of sentence.

Judgment of sentence affirmed.

Judge Sullivan joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/15/2022

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