Commonwealth v. Osellanie

597 A.2d 130, 408 Pa. Super. 472, 1991 Pa. Super. LEXIS 2992
CourtSuperior Court of Pennsylvania
DecidedSeptember 25, 1991
StatusPublished
Cited by32 cases

This text of 597 A.2d 130 (Commonwealth v. Osellanie) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Osellanie, 597 A.2d 130, 408 Pa. Super. 472, 1991 Pa. Super. LEXIS 2992 (Pa. Ct. App. 1991).

Opinions

JOHNSON, Judge:

Frank Osellanie appeals from the judgment of sentence entered in the Court of Common Pleas of Lackawanna County following his conviction for second-degree murder, third-degree murder, voluntary and involuntary manslaughter, kidnapping, rape and involuntary deviate sexual intercourse. See 18 Pa.C.S. §§ 2502(b), 2502(c), 2503, 2504, 2901, [475]*4753121, 3123. Osellanie’s convictions stem from the abduction, torture, rape and murder of a nine year old girl on May 14, 1989.

Following Osellanie’s jury trial, post-verdict motions were filed and denied by the Honorable Carlon M. O’Malley. Judge O’Malley sentenced Osellanie to a term of life imprisonment for the second-degree murder conviction and to consecutive terms of not less than twenty years’ nor more than forty years’ imprisonment for the kidnapping and rape convictions. Judge O’Malley found that the offenses of third-degree murder, involuntary and voluntary manslaughter, and involuntary deviate sexual intercourse merged with the second-degree murder conviction for sentencing purposes.

This timely appeal was then filed. On February 1, 1991, subsequent to Osellanie’s filing the appeal presently before us, Judge O’Malley granted Osellanie’s petition to proceed in forma pauperis. We note, however, that Osellanie continues to be represented by private counsel.

Osellanie raises three issues for our review:

1) Did the closing argument of the prosecutor contain several prejudicial and improper remarks referring to the facts not in evidence and inflammatory in nature thereby denying the Defendant, Frank Osellanie, a fair trial?
2) Did the Honorable Court err in allowing the Jury to view several photographs depicting decedent’s charred body?
3) Did the Honorable Court err in not changing venue or in the alternative not granting a change of venire?

Osellanie has failed to supply us with a complete record for our review. Pa.R.A.P. 1921. Specifically, he has failed to provide us with a transcript of his trial proceedings. Pa.R.A.P. 1911. Although Osellanie is before this court in forma pauperis it is nonetheless the appellant’s responsibility to order the transcript required and ascertain its presence in the record prior to certification for appeal. Pa.R.A.P. 1911, 1921, 1922. Commonwealth v. Lowry, 385 [476]*476Pa.Super. 236, 560 A.2d 781 (1989); Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), allocatur denied, 518 Pa. 656, 544 A.2d 1342 (1988). Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). We are limited to considering only those facts which have been duly certified in the record on appeal. Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988), citing Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); Barner v. Barner, 364 Pa.Super. 1, 9, 527 A.2d 122, 126 (1987).

Inquiries as to the whereabouts of the trial transcript by this court have proved unavailing. Moreover, we are compelled to remind defense counsel that it is not the responsibility of this court to obtain a copy of the trial transcript for the purposes of reviewing the client’s claims. See Commonwealth v. Buehl, 403 Pa.Super. 143, 588 A.2d 522 (1991). We direct counsel to Pennsylvania Rule of Appellate Procedure 1923, which provides that a statement by the appellant may be submitted to this court in the absence of a transcript. Without a trial transcript or a statement in lieu of a transcript, we are unable to conduct a proper review and analysis of Osellanie’s first issue, which alleges improper remarks by the prosecutor in his closing. Therefore, we must conclude that this issue has been waived for the purpose of appellate review. Commonwealth v. Lowry, supra.

In addressing Osellanie’s second claim we note that we are again thwarted in our efforts because Osellanie has failed to provide us with the photographic exhibits to which he objects. Pa.R.A.P.1921. However, as Judge O’Malley has described the photographs at issue, we shall address this claim of trial court error, relying upon his written depiction. Judge O’Malley has described the pictures of the victim’s body as “partially clothed” and “charred.” Trial Court Opinion at 4. Osellanie describes the photographs as “gruesome” and “mortifying” but notes only that the photographs showed the victim “unclothed and stretched out on the Coroner’s table. The body was severe[477]*477ly burned and disfigured.” Appellant’s brief at 35. Admission of photographs depicting the corpse of a homicide victim or the scene of the crime lies within the sound discretion of the trial court whose decision will not be disturbed absent an abuse of discretion. Commonwealth v. Edwards, 521 Pa. 134, 151, 555 A.2d 818, 827 (1989). If the trial court finds that the photograph is not inflammatory it may be admitted if it is relevant to the facts of the case. Id. Even a gruesome or inflammatory photograph is admissible if its probative value outweighs its prejudicial effect on the jury. Id.

In Edwards, the trial court admitted thirteen photographs of the victim’s body. The photographs depicted the beaten face of the victim, the strangulation area of the victim’s neck, wounds on the victim’s hands and fingers, bite marks on the victim’s legs, and explicit photographs of the victim’s chest and abdomen related to the sexual nature of the attack. Id. On appeal, our supreme court concluded that “[t]he photographs admitted were not inflammatory and were relevant in aiding the jury to understand the events of the crime charged.” Id.

The description of the photographs by both the trial court and by Osellanie certainly do not rise to to the level of explicitness which the supreme court found acceptable in Edwards. Furthermore, Judge O’Malley permitted the photographs into evidence to substantiate the coroner’s testimony as to the cause of the victim’s death either by trauma to her head or by burning and inhalation. As such, admission of the photographs in question was not an abuse of the trial court's discretion. Edwards, supra.

Osellanie next contends that the trial court erred in denying his request for a change of venue or venire due to the pre-trial publicity surrounding the victim’s disappearance and death. It is axiomatic that the grant or denial of a change of venue rests within the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Tedford, 523 Pa. [478]*478305, 323, 567 A.2d 610, 618 (1989). In Tedford, we acknowledged that there are instances when pre-trial publicity is so great that prejudice of a jury is presumed.

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Bluebook (online)
597 A.2d 130, 408 Pa. Super. 472, 1991 Pa. Super. LEXIS 2992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-osellanie-pasuperct-1991.