J-A04037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GREGORIO ORROSTIETA : : Appellant : No. 1686 MDA 2016
Appeal from the Judgment of Sentence July 27, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001507-2015
BEFORE: STABILE, J., NICHOLS, J., and RANSOM*, J.
MEMORANDUM BY RANSOM, J.: FILED MAY 02, 2018
Appellant, Gregorio Orrostieta, appeals from the judgment of sentence
of twenty to forty years of incarceration, imposed July 27, 2016, following a
jury trial resulting in his conviction for murder of the third degree.1 We
affirm Appellant’s conviction, but we vacate the judgment of sentence and
remand for resentencing in compliance with 18 Pa.C.S. § 1106(c).
The following factual and procedural history is garnered from the
record. On January 25, 2015, Karli Hall, the decedent, fractured her orbital
bone while in her dormitory room at Millersville University (“Millersville”),
where she attended school. Notes of Testimony Trial (N.T. Trial) at 514-23,
____________________________________________
1 18 Pa.C.S. § 2502(c).
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A04037-18
1205, 1268-73, 1292-93. She had been drinking alcohol earlier in the
evening and did not recall how the injury occurred.
On Thursday, February 5, 2015, Appellant travelled to Millersville to
visit Hall, his girlfriend, and he stayed all weekend. Trial Court Opinion
(TCO), 12/7/16, at 6 (N.T. Trial at 440, 447-50, 460, 602-05). After
spending Saturday night drinking, they had an argument and returned to
Hall’s dormitory room.
At 5:22 a.m. on February 8, 2015, Appellant called 911 and said Hall
was unresponsive. Id. at 4 (citing Commonwealth Exs. 1-2; N.T. Trial at
305-07, 351-52). When police arrived to Hall’s dorm room, Appellant was
standing over Hall who had dried blood over her face and body. Appellant’s
sweatshirt was ripped half-way down, exposing red scratch marks on his
chest. He had scratch marks on his face, a cut on his forehead, and blood
on his hands and pants. Appellant smelled of alcohol, but he spoke clearly
and was responsive to questions.
An autopsy by Dr. Wayne Ross revealed that Hall had defensive
wounds, a skull fracture, internal bleeding, and thirty-nine different areas of
external trauma and that her chest was compressed back to the spine. Hall
“drowned in her own blood while being suffocated”; her cause of death was
strangulation and multiple traumatic injuries. The manner of her death was
homicide.
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Prior to Appellant’s trial, the defense revealed that it intended to
present the testimony of forensic toxicologist Gary L. Lage, Ph.D. According
to Appellant, Dr. Lage would testify about the correlation between alcohol
intoxication and violence, alcohol-induced amnesia, how alcohol distorts
perception, and the effects of combining alcohol and caffeine, and he would
provide a “retrograde extrapolation” of Appellant’s blood alcohol content
(“BAC”) at the time of the incident. Appellant further maintained that
Dr. Lage would also testify that Hall had BAC of 0.166% at the time of her
death and that people with a BAC between 0.1% and 0.2% experience
disorientation and the inability to control emotional and physical reactions to
stimuli.
Dr. Lage’s report included the following statements:
[Appellant] indicated that he slept on the floor and woke up at about 5:20 am and could not awaken Ms. Hall. . . . [Appellant] indicated that Ms. Hall attacked him with a pencil, striking him in the forehead. He said he backhanded her and she fell striking her head in a chair. After that, [Appellant] indicated he has no memory until finding Ms. Hall later that morning. It is unknown what [Appellant]’s blood alcohol level was in the early morning hours of February 8, 2015, but he was consuming alcohol at the same party as Ms. Hall, and he has indicated that he has a poor memory of the events that morning.
Dr. Lage’s Report, attached to Appellant’s Brief as App. “B”, at 4-5.
The Commonwealth filed a motion to preclude Dr. Lage’s testimony.
In Appellant’s response to the Commonwealth’s motion, he wrote: “High
doses of caffeine effects the individual who continues to drink because
caffeine diminishes the effects of the alcohol. That’s why intoxicated
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persons are given coffee to sober up. This is . . . common knowledge.”
Appellant’s Resp. to Commonwealth’s Multiple Mots. in Limine, 4/11/16, at
25.
The trial court held a hearing on the Commonwealth’s motion, during
which Appellant’s counsel conceded that Appellant’s BAC at the time of the
incident was unknown, that there was no accepted scientific methodology to
determine whether an individual was suffering from alcohol-induced
amnesia, and that the testimony would be used to bolster Appellant’s
credibility by suggesting that he could not recall the details of the killing
based on alcohol-induced amnesia. The trial court granted the
Commonwealth’s motion.
During Appellant’s jury trial in April 2016, multiple individuals testified
about arguments between Appellant and Hall in the eleven months before
the incident. Evidence from Facebook showed that Appellant had previously
physically assaulted Hall, giving her a black eye on one occasion and leaving
scratches on her neck from choking her. Throughout the duration of their
relationship, Appellant repeatedly asked whether Hall was cheating on him
and frequently accused Hall of infidelity.
Appellant offered the testimony of Dr. Peter Speth, who had been
retired from practice as a medical examiner for twenty-four years prior to
trial and whose New Jersey medical license had been suspended between
1998 and 2008. Dr. Speth opined that Hall probably died from a fall in her
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drunken state that precipitated positional asphyxia, as well as a severe
nosebleed caused by re-injury of her orbital bone. Dr. Ross rejected this
theory, because Hall’s orbital bone was healing, her septum and nose were
intact, and she did not suffer a nosebleed.
Throughout trial, defense counsel maintained that Appellant acted in
self-defense when, after an alcohol-fueled evening, he and Hall fought, and
Hall repeatedly stabbed him in the head with a pencil or pencils. See, e.g.,
N.T. Trial at 2292-93, 2297. Defense counsel’s theory continued that,
during the ensuing struggle, Appellant accidentally struck Hall on her
previously fractured orbital bone.
After testimony concluded, the trial court and counsel held a
conference to discuss the final jury charge. At the conference, defense
counsel provided the trial court with a 2007 version of Pennsylvania
Suggested Standard Criminal Jury Instruction 15.2501B, “Criminal Homicide
Finding Lesser Type,” which did not include “progression” language that the
jury should first consider first-degree murder, then third-degree murder,
then voluntary manslaughter, and then involuntary manslaughter.
During the charge itself, the trial court instructed the jury:
a killing may be voluntary manslaughter but never murder[, even when] a defendant kills in the heat of passion following serious provocation or when he kills under an unreasonable mistaken belief in justifying circumstances.
Accordingly, you can find malice and murder only if you are satisfied beyond a reasonable doubt that the defendant was not acting under a sudden and intense passion resulting from serious
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provocation by the victim or under an unreasonable belief that the circumstances were such that, if they existed, would have justified the killing.
A defendant acts under an intense passion if he acts under an emotion, such as anger, rage, sudden resentment or terror that is so strong that it renders him incapable of cool reflection. A defendant acts under a sudden passion if the time between the provocation and the killing is not long enough for the passion of a reasonable person to cool. A defendant’s passion results from serious provocation if it results from conduct or events that are sufficient to excite an intense passion in a reasonable person.
Thus, the existence of intense passion turns on the actual mental and emotional state of the defendant, while the existence of sudden passion and serious provocation turn on how a reasonable person confronted by the same provocation would react.
Remember, you can find malice and murder only if you are satisfied beyond a reasonable doubt the defendant was not acting under a sudden and intense passion resulting from serious provocation by the victim.
The law recognizes the cumulative impact of a series of related events can lead to sudden passion and amount to serious provocation. The test is whether a reasonable person confronted with the same series of events would become so impassioned that he or she would be incapable of cool reflection.
The reducing circumstances of a defendant acting under an unreasonable belief that the circumstances of the killing was justified applies where the defendant actually believed he was in immediate danger of death or serious bodily injury from Karlie Hall at the time he used deadly force, but his belief was unreasonable in light of the facts as they appeared to him at the time. . . . Note that the unreasonableness of the defendant’s belief is not an issue here. The question is whether the defendant actually believed such an immediate danger existed at the time he used deadly force, and to prove malice through this element, the Commonwealth must prove the defendant did not actually hold such a belief.
Id. at 2386-89.
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The trial court also gave the following instruction about finding lesser
types of criminal homicide than first-degree murder:
Now, I have defined the elements of the four types of criminal homicide that you might possibly find in this case. Beginning with the most serious, they are first degree murder, third degree murder, voluntary manslaughter, and involuntary manslaughter.
You have the right to bring a verdict finding the defendant not guilty or finding him guilty of one of these types of criminal homicide.
It may help you remember each type of criminal homicide if I review some highlights. Murder requires malice, manslaughter does not. First degree murder requires a specific intent to kill; third degree murder is any other murder. Voluntary manslaughter is basically an intentional killing for which malice is not proven because of passion and provocation or an unreasonable, mistaken belief in justifying circumstances. Involuntary manslaughter requires a reckless or grossly negligent killing.
To guide the deliberations, you may wish to consider each type of homicide in order, beginning with the most serious grade charged. For example, in this case you may wish to begin with the charge of first degree murder.
...
If . . . you find the Commonwealth has not proven all of the elements of first degree murder beyond a reasonable doubt, you must find the defendant not guilty of that charge and go on to consider the next most serious type of homicide charged in this case, that being third degree murder.
If you find the defendant guilty of that charge, you do not need to consider a verdict on any of the lesser degrees of homicide that I have defined for you, including voluntary or involuntary manslaughter.
If, however, you find the Commonwealth has not proven all of the elements of third degree murder beyond a reasonable doubt, you must find the defendant not guilty of that charge and then
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go on to consider the most – next most serious type of homicide, namely voluntary manslaughter.
If you find the defendant guilty of that charge, you do not consider involuntary manslaughter.
If, however, you find the Commonwealth has not proven all the elements of voluntary manslaughter beyond a reasonable doubt, you must then find the defendant not guilty of voluntary manslaughter and go on to consider the elements of involuntary manslaughter.
If you proceed with your deliberations in this manner, you must remember that at every stage you must consider all of the evidence presented in determining whether the elements of that offense have been proven beyond a reasonable doubt.
Id. at 2398-2401. After the trial court completed the jury instructions but
before the jury retired to deliberate, defense counsel requested a sidebar
and placed an objection to this “progression” language on the record, which
the trial court overruled. Id. at 2406.
Appellant was found guilty of third-degree murder. In June 2016, he
filed a post-trial motion seeking DNA analysis of blood found on a comforter,
rug, and blanket at the scene; Appellant’s motion was denied. In July 2016,
Appellant was sentenced to twenty to forty years’ imprisonment and
deferred the determination of restitution. Following a restitution hearing in
August 2016, Appellant was ordered to pay $14,936.71.
In August 2016, Appellant timely filed a post-sentence motion
requesting the court modify his sentence, grant a new trial, or grant a
motion of acquittal. In September 2016, the court denied Appellant’s post-
sentence motion.
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Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement.2 The trial court issued a responsive opinion.
Appellant presents the following questions for our review:
1. Where all parties agreed that alcohol played a huge part in this case, did the [trial c]ourt err in excluding the testimony of the defense toxicologist?
2. When the Commonwealth took the position at trial that there was little spilled blood from the victim on several bloody items at the scene, yet changed its position post-trial, was there prosecutorial misconduct where the amount of blood was a critical issue at trial?
3. Where the [trial c]ourt gave a progression charge to the jury which did not include the main theory of the defense, did the [c]ourt’s charge prejudice the defense and should the [c]ourt have granted a mistrial or provided some other curative measure?
Appellant’s Brief at 3.
Expert Testimony
Appellant contends that the trial court erred in excluding Dr. Lage’s
testimony. Appellant’s Brief at 19. Appellant argues that Dr. Lage would
have explained the effects of alcohol on violence and memory and the
“synergistic effects” of alcohol and caffeine.
Our standard of review for the challenges to the admission of expert
testimony is as follows:
The admission of expert testimony is a matter committed to the discretion of the trial court and will not be disturbed absent an abuse of that discretion. An abuse of discretion is not merely an ____________________________________________
2 Appellant abandoned a number of his arguments on appeal.
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error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.
Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations
and internal quotation marks omitted).
No Expertise Required
Pa.R.E. 702 permits expert testimony on subjects concerning
knowledge beyond that possessed by a layperson. As we have explained:
[“]It is the job of the trial court to ‘assess the expert’s testimony to determine whether the expert’s testimony reflects the application of expertise or strays into matters of common knowledge.’ ” Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013) (citations to quoted authorities omitted). ...
Admissible expert testimony that reflects the application of expertise requires more than simply having an expert offer a lay opinion. “Testimony does not become scientific knowledge merely because it was proffered by a scientist.” Likewise, expert testimony must be “based on more than mere personal belief,” and “must be supported by reference to facts, testimony or empirical data.”
Id. at 195 (citations to quoted authorities omitted). Accordingly, we have stated the following test to distinguish between admissible expert testimony and inadmissible lay testimony by an expert:
The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this: the proffered expert testimony must point to, rely on or cite some scientific authority—whether facts, empirical studies, or the expert’s own research—that the expert has applied to the facts at hand and which supports
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the expert’s ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert opinion reflects nothing more than mere personal belief.
Id. at 197.
Nobles, 150 A.3d at 114-15.
Here, Appellant’s challenge fails, because the effects of alcohol on
memory and as a cause of violence do not require expert testimony. This
information is not beyond the knowledge of a layperson. Additionally,
Appellant has admitted that the relationship between alcohol and caffeine
are common knowledge. Appellant’s Resp. to Commonwealth’s Multiple
Mots. in Limine, 4/11/16, at 25. Thus, we find that the trial court did not
abuse its discretion in assessing that Dr. Lage’s proposed testimony did not
reflect the application of expertise but, instead, strayed into matters of
common knowledge. Nobles, 150 A.3d at 113-15; TCO at 22.
Inclusion of Appellant’s Out-of-Court Statements in Dr. Lage’s Report
Assuming that Dr. Lage’s testimony went beyond common knowledge,
we consider whether Appellant would have been permitted to present
Dr. Lage’s testimony in support of his self-defense claim. Appellant
contends that, had Dr. Lage testified, he would have explained that, at the
time of her death, Hall tested positive for caffeine and had a BAC of 0.166%,
which was a level at which people become disoriented and unable to control
their emotional and physical reactions to stimuli. Appellant’s Brief at 20
(citing Dr. Lage’s Report, attached thereto as App. “B”, at 3-4, 7-8). The
allegation that Hall was irrational and out-of-control was intended to buoy
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defense counsel’s theory that Hall had violently attacked Appellant and that
he had accidentally killed her when he struck out in self-defense, hitting her
previously fractured orbital bone. Id. at 24. Appellant contends that the
trial court “wholly ignored” his argument that Dr. Lage’s testimony would not
only have explained Appellant’s behavior but also would have provided the
foundation for “how Ms. Hall acted.” Id. at 26.
In Commonwealth v. Towles, 106 A.3d 591, 604 (Pa. 2014), the
appellant argued that the trial court improperly excluded his expert’s report
and abused its discretion by refusing to permit his expert to testify about all
the facts on which he relied in rendering his report. The expert’s report
contained the non-testifying appellant’s narrative of events on the night of
murder and his self-reported alcohol and drug consumption. Id. at 605-06.
The Supreme Court of Pennsylvania held that the trial court properly
excluded the expert’s report and testimony:
The trial court did not abuse its discretion in finding appellant's self-serving statements were not of a type reasonably relied on by experts in toxicology. There is a distinction between an expert using basic facts provided by laymen to form an expert opinion, versus one who simply parrots out-of-court statements in court, thereby acting as a conduit for hearsay. In this case, there were no toxicology screens or tests performed on appellant. The expert’s report was simply appellant’s firsthand narrative of the events on the night of the murder and a detailed account of his drug and alcohol consumption that night. Had the expert been permitted to testify to the facts contained in his report, he would have been merely relaying testimony appellant would have given had he taken the stand. Pennsylvania’s Rules of Evidence do not provide a mechanism for a criminal defendant to decline to testify and to avoid the rules of evidence by using an expert witness to introduce his story into the record.
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Accordingly, it was proper for the trial court to exclude the report from the jury’s consideration and to prevent appellant’s statements from reaching the jury via the expert’s testimony.
Id. at 606.
Here, Appellant also contends that the trial court improperly excluded
his expert’s report and testimony. Similarly, Appellant did not testify, but
Dr. Lage’s report repeatedly included Appellant’s narrative of events – e.g.,
Appellant “indicated that he slept on the floor . . .”, Appellant “indicated
that . . .”, he “said he backhanded . . .”, Appellant “indicated he has no
memory . . .”, “and he has indicated that he has a poor memory . . .”
Dr. Lage’s Report, attached to Appellant’s Brief at App. “B”, at 4-5
(emphasis added) (quoted above). As in Towles, Appellant cannot use an
expert’s testimony and report to slip his story into the record via the
backdoor when he chose not to take the stand himself. 106 A.3d at 606.
Accordingly, just like in Towles, “it was proper for the trial court to exclude
the report from the jury’s consideration and to prevent [A]ppellant’s
statements from reaching the jury via the expert’s testimony.” Id.3 ____________________________________________
3 Assuming arguendo that Dr. Lage had been permitted to testify, his argument that Appellant was suffering from alcohol-induced amnesia would have been belied by Appellant’s own discussion with police. As the trial court summarized:
Appellant . . . initially claimed he could not recall details of what happened the night of the murder until he was confronted by police with details they obtained from witnesses. Appellant then remembered more details but blamed Hall for starting a fight. When asked why he didn’t say this earlier Appellant did not blame alcohol consumption but stated it was because he knew it (Footnote Continued Next Page)
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Prosecutorial Misconduct
In the “Argument” section of his brief, Appellant argues that “the
Commonwealth committed prosecutorial misconduct or a Brady violation.”4
Appellant’s Brief at 35. However, Appellant makes no reference to a Brady
violation in his statement of questions involved. Id. at 3. “No question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.” Pa.R.A.P. 2116(a). As Appellant’s statement of
questions involved does not state or suggest a Brady claim, he has failed to
preserve this challenge, and we will only address his claim of prosecutorial
misconduct.5
(Footnote Continued) _______________________
would not look good for him. Appellant initially claimed he did not hear the RA knock on the door after the altercation, before admitting he did hear the knock but did not answer because he was considering suicide. Appellant claimed that after the confrontation everything got quiet and he next remembered waking up at 5:00 a.m. However, evidence revealed that between 3:14 a.m. and 4:16 a.m., Appellant sat in the room next to Hall’s dead body and conducted a [G]oogle search for music, watched a YouTube video, and went to Hall’s Facebook page.
TCO at 21 n.19.
4 Brady v. Maryland, 373 U.S. 83, 86-89 (1963), held that a prosecution’s withholding of information or evidence that is favorable to a criminal defendant’s case violates the defendant’s due-process rights and that the prosecution has a duty to disclose such information or evidence. 5 Assuming, for argument’s sake, that Appellant had preserved a Brady challenge, we would agree with the trial court that no Brady violation (Footnote Continued Next Page)
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Here, Appellant appears to be arguing that the prosecution committed
misconduct by presenting a different argument to the trial court in response
to a post-trial motion than it did to the jury during trial. Appellant’s Brief at
35-37.
“Prosecutorial misconduct occurs where the unavoidable effect of the
prosecutor’s actions is to prejudice the jury, forming in their minds fixed bias
and hostility towards the accused so as to hinder an objective weighing of
the evidence and impede the rendering of a true verdict.” Commonwealth
v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015).
The prosecutor’s actions that Appellant is challenging occurred post-
trial. Thus, they could not have possibly prejudiced the jury, which was no
longer involved in the case. See Graham, 109 A.3d at 736. Hence,
Appellant’s claim of prosecutorial misconduct is meritless.
Jury Instruction
Finally, Appellant argues that the trial court --
erred in giving a progression charge when it instructed the jury as to how the various charges of homicide should be considered. (Footnote Continued) _______________________
occurred. See TCO at 13. The trial court opinion comprehensively discusses and properly disposes of that question. See id. at 19-20 (finding: Appellant claims a Brady violation occurred, because the Commonwealth may have known the blood at the scene came from Hall; however, “[i]n the present case, the Commonwealth did not suppress evidence regarding the source of blood because there was no DNA testing conducted to make such a determination”; and “Appellant was provided with equal access to the evidence so he could have uncovered the source of the blood with reasonable diligence”).
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. . . [G]iven the fact that the jury returned with a verdict in about one and one-half hours after a nine-day trial, it appears clear that the jury did not consider all the charges and particularly the defenses in the case, especially given how the progression is worded.
Appellant’s Brief at 49.
When reviewing the adequacy of a jury instruction, the Supreme Court
of Pennsylvania has instructed that “we must consider the charge in its
entirety to determine if it is fair and complete. The trial court has broad
discretion in phrasing the charge and the instruction will not be found in
error if, taken as a whole, it adequately and accurately set forth the
applicable law.” Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa.
2009) (citations omitted).
The trial court held that Appellant’s challenge to the “progression
charge” was waived, because he did not object to it during the charge
conference. TCO at 27. We disagree. At the charge conference, defense
counsel believed that the trial court was going to give the 2007 version of
the criminal homicide finding lesser type instruction, which did not contain
the “progression” language at issue; thus, defense counsel had no reason to
object at the charge conference. Additionally, according to Pa.R.Crim.P.
647(C): “No portions of the charge or admissions from the charge may be
assigned as error, unless specific objections are made thereto before the
jury retires to deliberate” (emphasis added). Here, defense counsel did
place its objection on the record before the jury retired to deliberate, N.T.
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Trial at 2406, and the objection was thus preserved. Pa.R.Crim.P. 647(C).
In its opinion, the trial court also asserted that the issue is waived “where
trial Counsel does not object when the misstatement could have been
corrected.” TCO at 28 (citing Commonwealth v. Brown, 134 A.2d 1097,
1108 (Pa. Super. 2016)). However, since the jury had not yet begun its
deliberations when defense counsel objected, the alleged misstatement
could have been corrected. Brown, 134 A.2d at 1108; N.T. Trial at 2406.
For these reasons, we find that Appellant did not waive his challenge to the
criminal homicide finding lesser type instruction and will consider the merits
of his claim.6
This Court has previously, repeatedly determined that, as a general
rule, progression charges are proper in homicide cases. Commonwealth v.
Loach, 618 A.2d 463, 464-66, 468-70 (Pa. Super. 1992) (en banc);
Commonwealth v. duPont, 730 A.2d 970, 985 (Pa. Super. 1999);
Commonwealth v. Sneeringer, 668 A.2d 1167, 1170 (Pa. Super. 1995);
Commonwealth v. Hart, 565 A.2d 1212, 1217 (Pa. Super. 1989).
For example, in Hart, this Court affirmed the following charge:
[I]f you find the Defendant guilty of murder of the first degree, it will not then be necessary to consider second degree, third degree or voluntary manslaughter. . . . If you find him guilty of ____________________________________________
6 “This Court is not bound by the rationale of the trial court, and we may affirm the trial court on any basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa. Super. 2013) (citing In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011)).
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first degree murder, it will not be necessary to consider any of the other charges.
If you find him not guilty of first degree but find him guilty of second degree, then the chairperson should write beside that charge guilty. It will not be necessary to consider third degree and manslaughter. . . .
You will only consider voluntary manslaughter if you are satisfied the Commonwealth has not proven the Defendant guilty of any degrees of murder.
Id. at 1214 (emphasis omitted) (citation to the record omitted). This Court
en banc re-considered such a progression charge in Loach and approved of
the following jury charge:
[I[f you find the Defendant guilty of murder of the first degree, you do not then go on to consider murder of the third degree or voluntary manslaughter. If, however, you find the Defendant not guilty of murder in the first degree, then you would go on to consider murder of the third degree. If you find him guilty of murder of the third degree, you don’t go on to consider voluntary manslaughter.
If you find him not guilty of murder in the third degree, then you would go on to consider voluntary manslaughter and make that determination, guilty or not guilty.
618 A.2d at 465 (citation to the record omitted).
The language quoted above from Hart and Loach is analogous to the
contested jury instruction in the current matter:
If . . . you find the Commonwealth has not proven all of the elements of first degree murder beyond a reasonable doubt, you must find the defendant not guilty of that charge and go on to consider the next most serious type of homicide charged in this case, that being third degree murder.
If you find the defendant guilty of that charge, you do not need to consider a verdict on any of the lesser degrees of homicide
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that I have defined for you, including voluntary or involuntary manslaughter.
If, however, you find the Commonwealth has not proven all of the elements of third degree murder beyond a reasonable doubt, you must find the defendant not guilty of that charge and then go on to consider the most – next most serious type of homicide, namely voluntary manslaughter.
If you find the defendant guilty of that charge, you do not consider involuntary manslaughter.
If, however, you find the Commonwealth has not proven all the elements of voluntary manslaughter beyond a reasonable doubt, you must then find the defendant not guilty of voluntary manslaughter and go on to consider the elements of involuntary manslaughter.
N.T. Trial at 2399-2400.7 As this Court has sanctioned similarly worded jury
instructions before, we normally would find no abuse of discretion by the
trial court in giving said instruction. See Daniels, 963 A.2d at 430; Loach,
618 A.2d at 464-66, 468-70; Hart, 565 A.2d at 1214, 1217.
7 Moreover, Appellant’s contention that, “when it gave this progression charge, the [trial c]ourt did not include involuntary manslaughter” is contradicted by these notes of testimony. N.T. Trial at 2400 (“If you find the defendant guilty of [voluntary manslaughter], you do not consider involuntary manslaughter. If, however, you find the Commonwealth has not proven all the elements of voluntary manslaughter beyond a reasonable doubt, you must then find the defendant not guilty of voluntary manslaughter and go on to consider the elements of involuntary manslaughter.” (emphasis added)). Furthermore, the trial court had defined involuntary manslaughter in detail earlier in the instructions. Id. at 2390-91 (including three elements of offense, definitions of “reckless or grossly negligent” conduct, and that all relevant facts and circumstances must be considered when determining if conduct is reckless or grossly negligent).
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However, this Court has also cautioned:
Whenever the trial judge gives a progression charge in a homicide case, he should accompany the charge with an instruction that makes clear to the jurors that they must take any evidence of “heat of passion” or “unreasonable belief” into account when initially determining whether the Commonwealth has established the malice element of murder beyond a reasonable doubt. Without proper instructions regarding malice, the jury might misinterpret the progression charge as mandating a conviction for murder despite the presence of mitigating evidence establishing “heat of passion” or “unreasonable belief”.
Id. at 1217–18 (footnote omitted).
Here, the trial court gave an instruction clarifying to the jury that it
must take any evidence of heat of passion or unreasonable belief into
account. N.T. Trial at 2386-89 (quoted above). As a thorough and accurate
instruction on heat of passion and unreasonable belief was given by the trial
court, the inclusion of the progression charge thus was permissible. See
Hart, 565 A.2d at 1217–18.
As for Appellant’s argument that the fact that the jury returned a
verdict after deliberating for only about ninety minutes indicated that the
jury “did not consider all the charges and particularly the defenses in the
case,” Appellant’s Brief at 49, we find no case law – and Appellant provides
none – where a verdict is reversed, because the duration of the jury
deliberations was too short. The question of the proper duration of jury
deliberations is one that rests within the sound discretion of the trial court,
whose decision will not be disturbed unless there is a showing that the court
abused its discretion or that the jury’s verdict was the product of coercion or
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fatigue, neither of which Appellant claims here. Pa.R.Crim.P. 648(A);
Commonwealth v. Greer, 951 A.2d 346 (Pa. 2008).
As for Appellant’s allegation that “the jury did not consider all the
charges and particularly the defenses in the case,” Appellant’s Brief at 49,
we acknowledge that, in “exercising our supervisory power, we direct our
trial judges to adopt and enforce procedures in all homicide cases which will
prevent the recording of a jury verdict of not guilty on lesser included
degrees of homicide when the jury returns a guilty verdict on a higher
degree.” Commonwealth v. Terry, 521 A.2d 398, 410 (Pa. 1987).
Pursuant to Terry, id., the trial court’s instruction that the jury need not
consider the lesser degrees of criminal homicide once it had determined that
Appellant was guilty of some form of criminal homicide was proper, N.T. Trial
at 2398-2401, because it prevented the possibility of the jury recording a
verdict of not guilty on either of the lesser degrees of homicide after it had
returned a guilty verdict on murder of the third degree.
Thus, after considering the jury instructions in their entirety, we
determine that they are fair and complete and accurately set forth the
applicable law. Daniels, 963 A.2d at 430 (Pa. 2009). For these reasons,
Appellant’s final challenge merits no relief.
Sentencing
“[I]t is well settled that this Court may address the legality of a
sentence sua sponte.” Commonwealth v. McCamey, 154 A.3d 352, 357
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(Pa. Super. 2017) (citing Commonwealth v. Infante, 63 A.3d 358, 363
(Pa. Super. 2013)). “When reviewing the legality of a sentence, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super. 2017).
Here, the trial court sought to impose restitution as part of Appellant’s
direct sentence, as evidenced by the court’s reliance on 18 Pa.C.S. § 1106.
See TCO at 32-34.8 As our Supreme Court has explained:
[R]estitution must properly be included in a sentence. Commonwealth v. Dinoia, 801 A.2d 1254, 1257 n.1 (Pa. Super. 2002); Commonwealth v. Torres, 579 A.2d 398, 401 (Pa. Super. 1990). Section 1106(c)(2) provides that “[a]t the time of sentencing the court shall specify the amount and method of restitution.” 18 Pa.C.S. § 1106(c)(2). Further, “[i]t shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered; ... based upon information solicited by the district attorney and received from the victim.” Id., [18 Pa.C.S.] § 1106(c)(4)(i). In Dinoia, the Superior Court held these requirements “provide[ ] the defendant with certainty as to his sentence, and at the same time allow[ ]for subsequent modification [pursuant to § 1106(c)], if necessary.” Dinoia, at 1257.
8 Restitution is authorized under both the Crimes Code and under the Sentencing Code. The Crimes Code, in 18 Pa.C.S. § 1106, controls restitution as a direct sentence. The Sentencing Code, in 42 Pa.C.S. § 9754, permits a sentence of probation and offers a non-exclusive list of permissible conditions of probation, including restitution.
Commonwealth v. Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004).
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Commonwealth v. Dietrich, 970 A.2d 1131, 1134 (Pa. 2009) (some
formatting added). Failure to comply with Section 1106(c)(2) results in an
illegal sentence. Commonwealth v. Mariani, 869 A.2d 484, 485-86 (Pa.
Super. 2005) (invalidating trial court’s order at the sentencing hearing which
failed to specify both the amount and method of restitution and postponed
determining same until after sentencing hearing); Commonwealth v.
Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004) (citing Commonwealth
v. Dinoia, 801 A.2d 1257, 1257 n.1 (Pa. Super. 2002)) (same);
Commonwealth v. Torres, 579 A.2d 398, 401 (Pa. Super. 1990) (same).
Rather than setting the amount and method of restitution at the time of
sentencing, the trial court ordered a subsequent hearing to determine the
amount of restitution due. As the trial court failed to comply with Section
1106(c)(2), Appellant’s sentence is illegal. Mariani, 869 A.2d at 486-87
(“[T]he illegality of one part invalidates the whole.”). When a disposition by
an appellate court alters the sentencing scheme, the entire sentence should
be vacated, and the matter remanded for resentencing. Deshong, 850 A.2d
at 714 (citing Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa.
1986); Commonwealth v. Farone, 808 A.2d 580 (Pa. Super. 2002)).
Accordingly, we vacate the judgment of sentence and remand for
resentencing in compliance with 18 Pa.C.S. § 1106(c).
Judgment vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/2/2018
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