J-A18032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHNATHAN BLAIR MAINES : : Appellant : No. 894 WDA 2021
Appeal from the Judgment of Sentence Entered March 25, 2019 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000345-2018
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: November 15, 2022
Jonathan Blair Maines was convicted and sentenced for one count each
of third-degree murder and recklessly endangering another person (“REAP”),
and two counts each of aggravated assault and simple assault.1 Maines
appealed and challenges the sufficiency and weight of the evidence. He also
challenges the admission of evidence and the denial of his motion for a new
trial. We affirm.
The Commonwealth presented evidence of the following at trial. Ashley
Storm testified that on March 20, 2018, she lived at a residence with Maines,
Rick Weatherholtz, Jesse Breeden, and Keith Pinter. N.T., Trial, 1/28/19, at
54, 57-58. At the time, Storm and Maines were romantically involved. Id. at
58. She testified that the night before, they all were ingesting ____________________________________________
118 Pa.C.S.A. §§ 2502(c), 2705, 2702(a)(1), 2702(a)(4), 2701(a)(1), and 2701(a)(4), respectively. J-A18032-22
methamphetamine and marijuana, along with the victim, Joshua Sahm. Id.
at 59, 60. She testified that Weatherholtz and Breeden left the house that
morning. Id. at 66. Pinter remained downstairs while she, Maines, and the
victim were in her bedroom. Id. at 67. Storm left to go to the bathroom and
Maines followed her to the bathroom and asked what she was doing. Id. at
70. After telling him that she needed to use the bathroom, Maines left the
bathroom. Id.
While Storm was in the bathroom she heard someone in the bedroom
say, “So you’re going to kill me, huh?” Id. at 70, 71. When she left the
bathroom, she saw Maines holding a knife. Id. at 73. Maines ran out of the
bedroom, towards her, and said, “Go, go, baby, we got to go.” Id. She testified
that Maines pushed her downstairs and “[h]e was jumping around, flailing his
hands.” Id. at 74. She asked Maines what he did, and he replied that “he
didn’t know.” Id. While downstairs they encountered Pinter. All three ran
outside, and Pinter said that he was leaving since Storm intended to call 911.
Id. at 75. She testified that she intended to call 911 because the victim had
been stabbed. Id. Storm and Maines eventually ran back into the house. Id.
at 77. Storm testified that when she entered the house, she saw “a lot of
blood” in the hallway upstairs and the victim lying in a puddle of blood at the
bottom of the steps. Id. at 78, 79.
She also testified that Maines asked her “if [the victim] was dead” and
she replied that it looked like it. Id. at 78. Maines washed his hands and
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changed his clothes. Id. at 80. Before he changed, he was wearing camouflage
pants. He hid those clothes “downstairs, on the back stairs.” Id. at 79, 80.
Storm also said that the day before, someone gave her a “double bladed
knife.” Id. at 81, 186. Storm stated that Maines had the knife the night before
and “was just throwing it down and trying to get it to stick into the floor.” Id.
at 187. When she saw the victim on the floor, she noticed what she believed
to be her knife in the victim’s shoulder blade. Id. at 180. However, Storm’s
knife was recovered at the bottom of the stairwell. Id. at 103, 104. She asked
Maines if that was her knife and he said, “Actually there was two.” Id. at 81.
Storm testified that she asked Maines for his phone, but he told her that he
did not have it. He then told her to hide his phone if she found it and left the
house. Storm went back to her bedroom to look for the phone. Id. at 82. In
her room, she noticed “a lot of blood” in the chair where the victim had been
sitting before she left to use the bathroom. Id. at 82, 184. She testified that
Maines’ phone “ended up lighting up in a puddle of blood[.]” Id. She used the
phone to call 911. Id. at 83.
Pinter testified that on the morning of the incident, he was sleeping
downstairs and was suddenly awakened by a “garbled scream.” N.T., Trial,
1/29/19, at 108. He testified that it sounded “like their air, was like, being
choked off, kind of like a weak scream.” Id. He heard the screaming coming
from upstairs and heard, “Kill me, will you.” Id. at 109. He thought that it was
his imagination but then he heard the screaming again and a scuffle. Id. at
110. He again heard, “Kill me, will you.” Id. Pinter walked towards the
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staircase and saw Maines backing out of Storm’s bedroom. Id. He then saw
the victim come out of the bedroom while leaning against the wall. Id. at 111.
At this point, Storm exited the bathroom and she and Maines ran downstairs.
Id. at 111, 112. The three of them exited the house and Pinter saw blood
spatter on Maines’ camouflage pants. Id. at 114. Storm and Maines told Pinter
that the victim had a knife sticking out of him. Id. at 113. Pinter left the
residence and went to a friend’s house. Id. at 115.
Dr. Harry Nachlas Kamerow performed an autopsy of the victim. Id. at
7. He testified that the victim had a stab wound in his back and two stab
wounds to his neck. Id. at 16, 17. At the time of the autopsy, a knife was still
in the victim’s back. Id. at 16. Dr. Kamerow determined that the knife was
inserted with such force that it broke the victim’s ribs. Id. at 22. Dr. Kamerow
testified that the lacerations in the victim’s neck were consistent with the knife
removed from his body. Id. at 32, 33.
During Dr. Kamerow’s testimony, defense counsel objected to the
admission of a photo taken during the autopsy. Id. at 31. He argued that it
was prejudicial and that the jury did not need to see the photograph. Id. He
suggested that it would be enough for Dr. Kamerow to testify about the
victim’s injuries. Id. The court overruled the objection. Id. at 32. Dr. Kamerow
proceeded to describe the victim’s injuries using the photograph. He testified
that the victim’s cause of death was a result of the stab wounds to his neck
and back and that the manner of death was a homicide. Id. at 42.
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Joseph Kukosky of the Pennsylvania State Police testified as a forensic
DNA expert. Id. at 71. He testified that Maines’ DNA was found on the
camouflage pants and the blood stain on the pants contained the victim’s DNA.
Id. at 91, 92. He also testified that two other unknown DNA profiles were
recovered from the waistband, zipper pull, and button of Maines’ pants. Id. at
100.
The Commonwealth also presented testimony from Gregory Collins, a
warden at the Clearfield County Jail. N.T., Trial, 1/30/19, at 4. Collins
explained that Maines was currently an inmate at the jail. Id. at 6. Counsel
did not object to this testimony. Id. Collins testified about the contents of
recorded phone calls from Maines. Id. at 7-10. Before the Commonwealth
played the first call for the jury, counsel objected. Id. at 7-8. He argued that
the recording identified Maines as an inmate and that it would be prejudicial.
Id. at 8. The court overruled the objection.
After a four-day trial, the jury returned guilty verdicts for the above-
referenced offenses. The trial court sentenced Maines to 20 to 40 years’
incarceration. Maines filed a post-sentence motion, and the court held a
hearing.2 Maines challenged the sufficiency and weight of the evidence. He
also raised issues with the court’s admission of the autopsy photograph and
the prison phone calls. The court denied the motion. See Order, filed 9/10/19.
____________________________________________
2 The court granted Maines an extension to file his post-sentence motion.
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On August 27, 2019, Maines filed a post-sentence motion for a new trial
pursuant to Rule 720(C) of the Pennsylvania Rules of Criminal Procedure. He
alleged that eight days beforehand, on August 19, he had received
“information from a known witness, not previously known by [Maines].” Post
Sentence Motion for New Trial, filed 8/27/19, at ¶ 9. The witness, Catherine
Anderson, claimed that after Pinter left the scene of the crime, he went to her
house. She alleged that Pinter had blood on his shirt and pants and that she
told Pinter that he could not stay at the house. Id. at ¶ 10(a)-(c). Anderson
also claimed that she spoke with Storm who told her that she and Pinter were
in the bedroom when the victim was stabbed and that they both had knives
in their hands. Id. at ¶ 10(e)(i)-(iv). Storm allegedly told Anderson that an
argument ensued, and the victim was stabbed. Id. at ¶ 10(e)(v). Anderson
also claimed that Maines was not involved in the stabbing. Id. at ¶ 10(e)(vi).
At a hearing on the motion,3 defense counsel explained that even though
he had served Anderson with a subpoena the day before, she had failed to
appear at the hearing. Counsel stated that he had received a message from
her that “she was having difficulty getting transportation.” N.T., Post Sentence
Motion 720(C), 7/6/21, at 3.4 Counsel noted his efforts to track her down
included contacting “ten different people, probably visited I don’t know how ____________________________________________
3 The hearing was scheduled for September 24, 2019. For unknown reasons, the hearing was continued multiple times until July 6, 2021.
4Before the hearing, Maines filed a direct appeal with this Court. However, upon his request, we remanded the case to allow the court to dispose of the Rule 720(C) motion.
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many different residences throughout the southern part of the county.” Id. at
5.
Based on Anderson’s failure to appear, counsel requested a continuance.
The court denied the request noting that “there is no guarantee that your
witness will show up at that time.” Id. at 4. It also stated that the case had
been scheduled “for a considerable period of time[,]” considering the motion
was filed two years prior. Id. at 8, 9. Maines filed a motion for reconsideration
alleging that Anderson had failed to appear at the hearing due to “various
difficulties,” including “the passing of her grandmother within the past week,
her son being life-flighted for a head injury from an accident with a hammer
just two (2) days prior to said hearing, and lack of transportation.” Motion for
Reconsideration, filed 7/7/21, at ¶ 13. Counsel maintained that Anderson
remained willing to testify. Id. at ¶ 14. The court denied the motion and this
timely appeal followed.
Maines raises the following issues before this Court:
I. Whether sufficient evidence was presented at trial to support convictions for murder of the third degree, aggravated assault, simple assault and recklessly endangering another person.
a. Whether sufficient evidence was presented at trial to support a conviction for murder of the third degree.
b. Whether sufficient evidence was presented at trial to support a conviction for aggravated assault.
c. Whether sufficient evidence was presented at trial to support a conviction for simple assault.
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d. Whether sufficient evidence was presented at trial to support a conviction for recklessly endangering another person.
II. Whether [Maines’] convictions for murder of the third degree, aggravated assault, simple assault and recklessly endangering another person were against the weight of the evidence.
III. Whether the lower court erred by allowing the Commonwealth to, over defense counsel’s objection, admit into evidence and publish to the jury an inflammatory photograph from the victim’s autopsy.
IV. Whether the lower court erred by allowing the Commonwealth to present inflammatory evidence of [Maines’] incarceration.
V. Whether the lower court erred by denying [Maines’] request for a continuance and in turn denying [Maines’] post sentence motion pursuant to P.R.Crim.P. 720(c).
Maines’ Br. at 6-7 (answers of trial court omitted).
Sufficiency of the Evidence
Maines’ first issue addresses the sufficiency of the evidence for each of
his convictions. When presented with a challenge to the sufficiency of the
evidence we must determine whether the evidence when viewed in the light
most favorable to the Commonwealth, with “all reasonable inferences drawn
therefrom,” demonstrates that the Commonwealth has proven each element
of the crime beyond a reasonable doubt. Commonwealth v. Murray, 83 A.3d
137, 150-51 (Pa. 2013). “The Commonwealth may sustain its burden of
proving every element beyond a reasonable doubt by means of wholly
circumstantial evidence.” Commonwealth v. Wanner, 158 A.3d 714, 718
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(Pa.Super. 2017) (citation omitted). “Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances.” Commonwealth v. Gause, 164 A.3d 532, 540
(Pa.Super. 2017) (citations omitted). We now address each conviction
separately.
Third-Degree Murder
Maines argues that the evidence was too weak and inconclusive to prove
that it was he who killed the victim and that the killing was with malice. He
claims that even considering the standard of review, “no eye-witnesses
observed [Maines] in the same room with the victim at the time of the alleged
stabbing.” Maines’ Br. at 30. He also maintains that despite evidence of blood
splatter throughout Storm’s bedroom and the stairwell, there was only “a little
blood splatter on one pant-leg of [Maines’] camouflage pants.” Id. at 32. He
contends that even considering the Commonwealth’s evidence, the scuffling
between the victim and Maines “would have surely caused the aggressor’s
hands, arms, and shirt to come into contact with the victim’s blood.” Id. He
further emphasizes that Kukosky testified that Maines’ DNA was not found on
the handle of the murder weapon and that three unidentified DNA profiles
were found on the zipper of Maines’ pants. He argues that this evidence shows
“that someone other than [Maines] had been wearing the pants, and could
have been wearing the pants at the time of the incident.” Id. at 34.
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The Commonwealth presents sufficient evidence of third-degree murder
where it proves “the killing of an individual with malice.” Commonwealth v.
Jones, 271 A.3d 452, 458 (Pa.Super. 2021) (citation omitted). “Malice
includes not only particular ill will toward the victim, but also wickedness of
disposition, hardness of heart, wantonness, and cruelty, recklessness of
consequences, and conscious disregard by the defendant of an unjustified and
extremely high risk that his actions may cause serious bodily harm.” Id. Malice
is inferred “from the use of a deadly weapon on a vital part of the body.”
Commonwealth v. Seibert, 622 A.2d 361, 364 (Pa.Super. 1993); see also
Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008) (noting neck is
a vital part of the body).
Here, the trial court determined that the evidence sufficiently
established the crime of third-degree murder. It explained:
Multiple witnesses testified that they saw [Maines] and the victim near each other around the time of the stabbing. They also testified that they saw no one else in the house at that time other than the victim, [Maines], Ms. Storm, and Mr. Pinter. Both Ms. Storm and Mr. Pinter said they heard [Maines] say they needed to go. Ms. Storm testified that [Maines] asked her to lie and say he was not at the scene and hide his cell phone if she found it. DNA evidence was also presented, which showed that a pair of pants [Maines] was wearing at the time of the incident had both his DNA and blood from the victim. Those are the same pair of pants Ms. Storm testified that she saw [Maines] change out of and hide before he ran from the scene. The doctor testified that the victim died from stab wounds caused by a knife that the witnesses saw [Maines] playing with earlier that day and the prior night.
Opinion and Order, filed 2/5/20, at 5. We agree with the court.
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Viewing the evidence in the light most favorable to the Commonwealth
as verdict-winner, the evidence was sufficient to sustain third-degree murder.
Though no one saw Maines stab the victim, the evidence established that
Maines was last seen in Storm’s bedroom with the victim. Both Storm and
Pinter testified to hearing the victim yelling out something about “kill me, will
you” or “so you’re going to kill me huh.” The evidence also showed that Maines
washed his hands and changed his clothes before leaving the residence,
establishing a consciousness of guilt. Additionally, the victim’s blood was
found on Maines’ pants and Maines was seen the night before with one of the
knives used to stab the victim. Additionally, as noted above, the use of a
deadly weapon on a vital part of the body may provide an inference of a
defendant’s malice. Here, the Commonwealth presented evidence that the
victim was stabbed twice in his neck, a vital part of his body. Furthermore,
Dr. Kamerow testified that the victim was stabbed with such force that the
knife broke the victim’s ribs.
Maines’ suggestions of how the evidence could have been interpreted
ignore our standard of review for sufficiency challenges, i.e., viewing the
evidence in the light most favorable to the Commonwealth, not to Maines.
Therefore, we are unpersuaded by his speculative claims that someone else
could have been wearing his pants or that more blood should have been on
his person and/or his clothes based on the testimony of the Commonwealth’s
witnesses. The evidence was sufficient.
Aggravated Assault and Simple Assault
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As it relates to the crime of aggravated assault, Maines alleges that the
Commonwealth failed to present sufficient evidence that he caused serious
bodily injury to the victim. He also argues that the Commonwealth did not
present sufficient evidence that he caused bodily injury to the victim to
support the crime of simple assault.
The Crimes Code defines aggravated assault in relevant part as:
A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]
18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury includes “[b]odily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301 (“Serious bodily injury”). A person
may be convicted of simple assault where the evidence shows that the
individual attempted to cause or intentionally, knowingly, or recklessly caused
bodily injury to another. 18 Pa.C.S.A. § 2701(a)(1). Bodily injury is the
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301
(“Bodily Injury”).
While the Commonwealth did not present direct evidence that Maines
stabbed the victim with two knives, the Commonwealth presented
circumstantial evidence of such. See Wanner, 158 A.3d at 718. The evidence
established that the victim was stabbed three times with two separate knives,
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once in the back and twice in the neck. Maines had one of these knives the
night before the murder and was also seen running from the bedroom with a
knife in his hand. This evidence sufficiently established that Maines caused
bodily injury. It was also sufficient to establish the lesser-included offense of
simple assault, which requires bodily injury. See Commonwealth v. Walls,
950 A.2d 1028, 1032 (Pa.Super. 2008) (finding sufficient evidence of
aggravated assault where defendant stabbed victim multiple times with a
screwdriver in the back, torso, neck, and head).
Recklessly Endangering Another Person
To prove REAP, the Commonwealth must show that the defendant “(1)
possessed ‘a mens rea [of] recklessness,’ (2) committed a wrongful deed or
guilty act (‘actus reus’), and (3) created by such wrongful deed the danger of
death or serious bodily injury to another person.” Commonwealth v. Emler,
903 A.2d 1273, 1278 (Pa.Super. 2006) (citation omitted). Recklessness is
defined as “a conscious disregard of a known risk of death or great bodily
harm to another person.” Id. (citation omitted). REAP “requires the creation
of danger, so the Commonwealth must prove the existence of an actual
present ability to inflict harm to another.” Commonwealth v. Shaw, 203
A.3d 281, 284 (Pa.Super. 2019).
Maines argues that the Commonwealth did not present sufficient
evidence of his mens rea. He claims the prosecution failed to show that he
“recklessly did something that placed or may have placed the victim in danger
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of death or serious bodily injury.” Maines’ Br. at 36. This argument is
meritless.
Like his arguments for his other offenses, Maines relies heavily on the
fact that no one saw him stab the victim. However, as noted above, the
Commonwealth may meet its burden by wholly circumstantial evidence. The
circumstantial evidence here, viewed in the light most favorable to the
Commonwealth, was sufficient to sustain the verdict of REAP. There was ample
testimony and other evidence, as recited above, that Maines stabbed the
victim in his neck and back. This raised a strong inference of a conscious
disregard of an obvious risk of great bodily harm to or death of the victim.
That was enough to prove mens rea beyond a reasonable doubt. No relief is
due.
Weight of the Evidence
Maines’ next issue challenges the weight of the evidence for all his
convictions. He maintains that due to the lack of DNA evidence, lack of
significant blood spatter found on his pants or his person, and lack of
credibility of the Commonwealth’s witnesses, the verdict here shocks the
conscience. Maines notes that Storm changed her story multiple times,
admitted to being high the night before and the morning of the incident, and
owned one of the knives used to stab the victim. He also points out that Pinter
testified that he also was high the morning of the incident and that his
testimony was inconsistent with Storm’s testimony. He notes the testimony of
Breeden who testified that he had knives sticking to his bedroom walls and
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ceiling. He also argues that the video surveillance shows a person who is not
Maines and that he was not with Storm and Pinter as the witnesses testified.
Our standard of review for a challenge to the weight of the evidence is
well settled:
A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury's verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
Here, the trial court determined that “looking at the record as a whole,
the jury’s verdict is not so shocking as to cause a miscarriage of justice.”
Opinion and Order (“February Order”), filed 2/5/20, at 8 (unpaginated).
Even if the jury had given more weight to one witness or another, it is not contradictory to the verdict. Not only did the Commonwealth present multiple witnesses that placed [Maines] near the victim at the time of the stabbing, there was also DNA evidence of both the victim’s and [Maines’] DNA on the same clothes [Maines] was wearing at the time of the incident. [Maines] also argues that because they presented a witness who stated [Maines] was not wearing shoes later in the evening, it should disprove all other
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testimony that [Maines] was in the video. However, it is not unreasonable for the jury to draw reasonable inferences since that particular witness was not present at the scene or time of the incident.
Id. at 8-9 (unpaginated). The court incorporated this reasoning for each
conviction challenged by Maines. See id. at 9.
We see no basis to disturb the trial court’s finding. Despite other
inconsistencies in their testimony, both Pinter and Storm testified that Maines
was near the victim before the stabbing. As factfinder, the jury was tasked
with the responsibility of reconciling inconsistencies and assessing the
credibility of witnesses and evidence. We cannot, on this record, say the trial
court abused its discretion in rejecting his weight claim. No relief is due.
Admission of Evidence
Next Maines alleges that the trial court erred by publishing a photograph
from the victim’s autopsy. He alleges that the photograph was inflammatory
because it “inflamed the minds of the jurors and sought undue emotional
appeal.” Maines’ Br. at 52. He argues that even if it was reasonable for the
photograph to be shown to Dr. Kamerow, publishing the photograph to the
jury was a step too far because it lacked probative value and was highly
inflammatory. He further argues that because the court failed to give a
cautionary instruction, it left the potential for the jury’s minds to be inflamed.
We review a challenge to the admission of evidence for an abuse of
discretion. In this Commonwealth, a two-step process is employed for trial
courts when considering the admission of photographs of homicide victims,
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“which by their very nature can be unpleasant, disturbing, and even brutal[.]”
Commonwealth v. Johnson, 42 A.3d 1017, 1033 (Pa. 2012) (citation
omitted). First, the “court must determine whether the photograph is
inflammatory.” Id. (citation omitted). Second, if the photograph is not
inflammatory, the court must determine its relevance and whether it would
“assist the jury’s understanding of the facts.” Id. at 1034 (citation omitted).
“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.”
Id. (citation omitted). Where a witness can testify about the victim’s injuries
without photographs, “a witness’s ability to testify as to the condition of the
body does not render photographs per se inadmissible.” Id.; see
Commonwealth v. Rush, 646 A.2d 557, 560 (Pa. 1994) (“[E]ven where the
body’s condition can be described through testimony from a medical
examiner, such testimony does not obviate the admissibility of photographs”).
Here, the court determined that the photograph was not inflammatory
because it “did not show the victim’s face, and it was a cleaned up picture of
the wounds.” February Order, at 10. The court found that even if the picture
could be considered inflammatory, it had extreme evidentiary value. It also
concluded that because the Commonwealth alleged that Maines stabbed the
victim, the jury needed to determine whether Maines caused the victim’s
death. The court stated that without the photograph, “there was no way a jury
could have considered the charge of criminal homicide.” Id. at 11.
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The trial court permissibly published to the jury the photograph of the
victim. The photograph was necessary to aid Dr. Kamerow in his testimony of
the nature and extent of the victim’s injuries, which was relevant to show
Maines’ intent. See Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa. 2008)
(stating “photographic images of a homicide victim are often relevant to the
intent element of the crime of first-degree murder”). Importantly, Maines was
on trial for first-degree murder (although the jury ultimately found him guilty
of third-degree murder), such that the photo was relevant to intent. Thus, the
photograph was not merely cumulative of Dr. Kamerow’s prior testimony.
Furthermore, even if Dr. Kamerow could have testified to the victim’s injuries
without the photographs, this did not make the photographs per se
inadmissible. Having reviewed the photograph, it is as the court described and
was not inflammatory. The photograph only displayed the victim’s neck and
the injuries to his neck. While the victim’s head is visible in the photograph,
his face was covered with a towel.
Maines also argues that the court erred by admitting two audio
recordings of Maines’ telephone conversations while incarcerated. He argues
that the recordings were inflammatory because they “prejudicially drew
attention to [Maines’] incarceration.” Maines’ Br. at 60. He alleges that any
probative value from the recordings was outweighed by the prejudice of
“casting [Maines] as a prison inmate.” Id.
“[G]enerally no reference may be made at trial in a criminal case to a
defendant’s arrest or incarceration for a previous crime[.]” Commonwealth
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v. Johnson, 838 A.2d 663, 680 (Pa. 2003) (emphasis added). However,
“there is no rule in Pennsylvania which prohibits reference to a defendant’s
incarceration awaiting trial or arrest for the crimes charged.” Id. Our courts
have admonished “constant reminder[s]” of the defendant’s incarcerated
status such as the defendant’s prison attire since it could “affect a juror’s
judgment.” See Estelle v. Williams, 425 U.S. 501, 504-05 (1976);
Johnson, 838 A.2d at 680-81 (concluding that witness’s passing reference to
incarcerated status of defendant did not rise to the level of constant reminder
of incarcerated status).
Here, the court determined that the reference to Maines’ incarceration
was brief and was not prejudicial. We discern no error in this conclusion.
Maines’ incarcerated status was a passing reference and not of the nature of
a “constant reminder” of which our Courts have disapproved. Additionally,
before the prison calls were played for the jury, Maines’ incarcerated status
had been mentioned to the jury, without any objection from counsel. See
N.T., Trial, 1/30/19, at 6. Moreover, the mention of Maines’ incarceration was
based on crimes for which he was on trial, and therefore the reference was
not prohibited. See Johnson, 838 A.2d at 681.
Denial of Continuance
Maines also alleges that the trial court erred in denying his motion for a
continuance. He maintains that the court abused its discretion since he served
a subpoena on the witness who failed to appear. He notes that the witness
failed to appear at the hearing due to transportation issues. He also maintains
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that because it appeared that the witness remained willing to testify and the
nature of her testimony, the court should have granted the continuance
request.
It is within the court’s discretion to grant or deny a continuance request.
See Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012);
Pa.R.Crim.P. 106(A). Here, the court explained that it denied the motion for a
continuance because there was no guarantee that the witness would show
“even if the request for a continuance was granted.” Opinion and Order
(“September Order”), filed 9/2/21, at 7. It referenced the many efforts that
counsel made to reach the witness and determined that “[i]f Anderson was
willing to cooperate with [Maines], as counsel asserted, she could have made
her whereabouts known to counsel, instead of requiring him to track her down
through numerous people all over the county.” Id.
We discern no abuse of discretion. Despite counsel’s efforts to locate
Anderson and his eventual success in serving a subpoena on her, she failed to
appear at the hearing. As the court concluded, counsel could not make any
guarantees that the witness would appear if the case were continued.
Additionally, at the time of the hearing, more than two years had passed from
the initial filing of the motion. The court did not abuse its discretion in denying
the request.
After-Discovered Evidence
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Maines also claims that the trial court erred by denying his Rule 720(C)
motion. He alleges that the after-discovered evidence was probative and not
offered simply to challenge the credibility of the Commonwealth’s witnesses.
We review the court’s denial of a post-sentence motion for a new trial
for an abuse of discretion. See Commonwealth v. Brooker, 103 A.3d 325,
332 (Pa.Super. 2014). Rule 720 provides that a defendant may file a post-
sentence motion “for a new trial on the ground of after-discovered
evidence[.]” Pa.R.Crim.P. 720(C). Before the motion may be granted the
defendant must show the evidence: “1) has been discovered after the trial
and could not have been obtained at, or prior to, the conclusion of the trial by
the exercise of reasonable diligence; 2) is not merely corroborative or
cumulative; 3) will not be used solely for impeaching credibility of a witness;
[and] 4) is of such nature and character that a different verdict will likely result
if a new trial is granted.” Commonwealth v. Brosnick, 607 A.2d 725, 727
(Pa. 1992) (citation omitted). “[T]he proposed new evidence must be
producible and admissible.” Id. (citation omitted).
The trial court determined that Anderson’s testimony would be mere
impeachment evidence and would not be likely to result in a different verdict.
The statements made by [the witness] are intended to undermine the credibility of Storm and Pinter and provide a new theory of the events. Even more, the jury would not be required to believe the testimony of [the witness] over Storm and Pinter. Likewise, [the witness’s] testimony does not negate the additional forensic evidence or the testimony of other numerous witnesses presented by the Commonwealth. Therefore, [Maines] cannot establish that
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the evidence is more than impeachment evidence, nor can he establish that it would likely result in a different verdict.
September Order, at 7. The court did not abuse its discretion.
Here, the proffered testimony of the witness directly contradicts the
testimony of Storm and Pinter who testified that Maines was last seen in the
room alone with the victim. Anderson claims that Storm told her that she,
Pinter, and the victim were in the room together and that Maines was not
involved. The witness also suggested that Pinter arrived at her home with
bloody clothes and that she turned him away. While this evidence does not
directly impeach Pinter’s testimony, it does impeach his testimony that he was
not in the room when the victim was stabbed. Thus, as the court concluded,
Maines “cannot establish that the evidence is more than impeachment
evidence, nor can he establish that it would likely result in a different verdict.”
Id.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/15/2022
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