J-S37001-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW TIRADO,
Appellant
No. 3088 EDA 2010
Appeal from the Judgment of Sentence of June 23, 2010,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No. CP-51-CR-0007276-2009
BEFORE: GANTMAN, MUNDY and COLVILLE*, JJ.
MEMORANDUM BY COLVILLE, J.:
FILED JULY 12, 2013
This case is a direct appeal from the judgment of sentence imposed on
Appellant after he was convicted of, inter alia, second-degree murder and
robbery. Appellant raises several issues. We affirm Appellant’s convictions,
vacate his robbery sentence and affirm his judgment of sentence in all other
respects.
Trial
testimony
from
Commonwealth
witness
Steven
Hanssens
revealed the following facts. On the date of the incident giving rise to this
case, the decedent and Hanssens traveled in a car driven by the decedent to
a certain location in order for the decedent and/or both men to buy drugs.
As Hanssens and the decedent sat parked in the decedent’s vehicle,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S37001-13
Appellant and an individual named Geo entered the back of the car.
The
decedent drove to a nearby alley and stopped. Geo handed the decedent a
pill bottle, apparently containing Xanax, and the decedent gave the bottle to
Hanssens. As the decedent handed money to either Geo or Appellant, both
Geo and Appellant pointed guns at the decedent.
Either Geo or Appellant
told the decedent to give them everything. The decedent struggled to hold
onto the money, and a shot was fired. The shot hit the decedent and he was
thereby killed.
Testimony from Hanssens would also indicate that, during the incident,
Geo held a silver revolver and Appellant held a black gun that was not a
revolver and that had a clip. Appellant would later tell police that he had a
black, semi-automatic, 9 mm handgun during the shooting and that Geo
fired the shot. Expert testimony indicated the bullet that hit the decedent
was consistent with having been fired from a .357/.38 caliber revolver.
Appellant was arrested.
convicted
of
second-degree
He proceeded to a jury trial and was
murder,
robbery,
conspiracy,
violation, and possessing an instrument of crime.
a
firearms
The court sentenced
Appellant. He later filed this appeal.
Appellant first argues the court violated his right to a public trial by
excluding two persons from the courtroom while the court made its initial
remarks to the venire.
Appellant’s brief does not identify either individual
for us, but the voir dire transcript indicates one of them was his mother.
There is no indication in the record as to the identity of the second person.
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The individuals were excluded because the court anticipated difficulty fitting
the entire venire and spectators in the courtroom. The court also expressed
its concern that it could not have spectators talking to members of the
venire during jury selection.
Although the voir dire transcript is not entirely clear, it appears the
court spoke directly to the individuals in question, telling them they would be
allowed to return to the courtroom and watch if the court staff had space for
them once the venire was in the room. The court also directed a member of
its staff to permit the individuals to return if he could fit them in the room.
While the two individuals were outside the room, the court addressed
the venire by making numerous opening remarks about the trial (e.g., the
charges, the burden of proof) and about the voir dire process itself.
Additionally, the court asked the potential jurors if any of them knew anyone
involved in the case, had hardships or could not return a fair verdict. Also,
the court inquired as to whether anyone close to any juror had been a
homicide victim or accused of homicide. The court excused seven potential
jurors based on their answers to those inquiries.
At that point, the court stated that Appellant’s mother could return to
the courtroom.
The court did not mention any other person. Appellant’s
counsel replied that he looked for the mother and could not locate her.
Thereafter, the court proceeded with the remainder of jury selection.
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The right to a public trial serves two purposes: (1) to ensure the
defendant is not subject to a star-chamber proceeding and (2) to assure the
public that fair standards are observed. Commonwealth v. Berrigan, 501
A.2d 226, 232 (Pa. 1985).
While there is a right to a public trial, a trial
court may, in its discretion, impose reasonable limitations on the openness
of a trial if those limitations serve the fair administration of justice. Id. For
purposes of the public-trial right, the jury voir dire process is part of the
trial. Id.
In Berrigan, the court found, inter alia, that there was no error in the
trial court’s decision to clear the courtroom of spectators to permit a fortyperson venire to be seated for questioning where the courtroom was not
large enough to accommodate the spectators and the potential jurors. Id.
at 233. In reaching this conclusion, the Supreme Court opined that the trial
court’s action was reasonable and in the interest of the fair administration of
justice. Id.
In the present case, the court had two members of the public, only
one of whom is identifiable to us, leave the courtroom in anticipation of
ensuring the room could accommodate all sixty members of the venire.
After some preliminary remarks and several questions, the court dismissed
seven members of the panel. With those members dismissed, the court was
prepared to allow Appellant’s mother to return. The fact that Appellant’s
mother could not be found by Appellant’s counsel does not translate into
error by the trial court, particularly because it seems the court made clear to
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her, prior to the time she was briefly excluded, that she would soon be
permitted to return.
We acknowledge the court did not specifically state that the second
person could return but, given that Appellant has not even identified that
person for us, Appellant has not persuaded us that we should find error by
the trial court in excluding that person, whoever it might have been.
We also note the following. While the record is not clear to us whether
excluding the two persons was absolutely essential to fitting all members of
the venire in the courtroom, the record does support a finding that the court
had a reasonable belief that doing so was necessary. Appellant’s brief does
nothing to convince us that there was not a need for additional space.
Rather, the brief argues a lack of space can never be a legitimate reason to
exclude anyone from voir dire. We disagree.
We find nothing abusive in the court’s decision. Rather, it appears to
us the court’s actions were reasonable and in the interest of fairly
administering justice given the court’s concerns about space in the
courtroom.
We are unconvinced that any member of the public was
prevented from observing the jury voir dire aside from the initial, temporary
exclusion of the two persons we have already referenced. Additionally, the
fact that a transcript of the voir dire proceedings was prepared and is in the
record helps to serve the purpose of assuring the public that fair standards
were observed during jury selection.
A.3d 291, 334 (Pa. 2011).
See Commonwealth v. Briggs, 12
There is no indication in the record, and
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Appellant does not claim, that he was in any way subject to a voir dire
process that could be described as a star-chamber proceeding. Appellant’s
claim lacks merit.
In his second issue, Appellant contends the court denied him his
confrontation-clause rights by allowing Dr. Sam Gulino to offer certain
opinion testimony as an expert in forensic pathology on behalf of the
Commonwealth.1 More fully, Appellant argues that, although Gulino testified
he formed an independent opinion in agreement with various findings in the
decedent’s autopsy and/or toxicology reports, it was improper for the court
to permit him to offer any opinion because he did not perform either the
autopsy or the testing.2
Medical experts may offer opinions based on reports and other records
prepared by third parties if those reports and records are of the kind
customarily relied upon by experts in forming opinions. Commonwealth v.
____________________________________________
1
The only expert opinion about which Appellant’s brief attempts to offer any
serious discussion is the opinion regarding the cause and manner of death.
Though not made clear in Appellant’s brief, we see that Gulino’s opinion
testimony indicated the cause of death was a gunshot and the manner of
death was homicide. The brief arguably makes a limited suggestion that
Gulino offered an opinion about the presence of Oxycodone in the decedent’s
system, but does not devote any significant analysis concerning the import
or propriety of that opinion.
2
It appears the doctor who conducted the autopsy was absent from trial
because he had retired. It is not clear why the lab technician was not
present.
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Vandivner, 962 A.2d 1170, 1179-80 (Pa. 2009); Pa.R.E. 703. This Court
will not disturb a trial court’s decision to admit evidence unless the court
abused its discretion. Vandivner, 962 A.2d at 1181. An abuse of discretion
is not merely an error in judgment but, rather, involves a decision based on
bias, ill will, manifest unreasonableness, misapplication of law, partiality, or
prejudice. Commonwealth v. Kane, 10 A.3d 327, 333 (Pa. Super. 2010).
It is an appellant’s burden to persuade us the court abused its discretion.
Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
Gulino’s testimony and opinion(s) were based on the aforesaid reports
as well as photographs, notes and other information in what he referred to
as the decedent’s case file. Appellant offers no argument that the records
relied upon by Gulino were not the kind customarily relied upon by experts
in formulating opinions in the field of forensic pathology. As such, he has
not demonstrated Gulino’s testimony and opinion(s) were inadmissible.
Therefore, he has not convinced us the trial court acted with bias, ill will,
manifest unreasonableness, misapplication of law, partiality, or prejudice in
admitting Gulino’s testimony. Appellant’s claim does not warrant relief.
Third, Appellant maintains it was error for the court to let Steven
Hanssens testify about the consequences he suffered as a result of
eventually admitting to police and/or others that he was present with the
decedent during the attempted drug purchase.
Appellant contends this
testimony about the impact on Hanssens’ life was irrelevant.
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On the date of the shooting, Hanssens told police he was not in the
vehicle with the decedent during the incident but, rather, was in a nearby
pizza shop.
He further claimed he saw two people running from the car.
Several days later, Hanssens gave another statement to police. Therein, he
indicated he had lied to them about not being in the car during the incident.
As we described supra, Hanssens’ trial testimony provided a number of
details and, in that testimony, he acknowledged he was in the vehicle during
the attempted drug purchase and shooting.
Hanssens also testified, on
direct examination, that he had originally told police he was not in the
decedent’s vehicle because he (Hanssens) did not want his family to disown
him for being involved in a drug deal and because he did not want to
disparage the decedent.
On cross examination, Appellant impeached Hanssens by pointing out
that he had originally given false information to police.
In response,
Hanssens admitted his initial statement to police was untrue. He also
responded to Appellant’s questioning by saying:
That [information] was false but it was because the same thing I
said before. I didn’t want—I mean, my friend was just killed. I
didn’t want to make his family or my family—I pretty much
wanted to exclude both of us from that situation.
N.T., 06/22/10, at 98.
On redirect examination, the court allowed the Commonwealth, over
Appellant’s objection, to examine Hanssens about what happened to him as
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a result of admitting he was in the drug deal where the decedent was killed.
Hanssens answered that he had anxiety, had to attend counseling and had
been disowned by his family.
As noted supra, Appellant maintains the
court’s decision to admit Hanssens’ testimony on this topic was improper
because the testimony was not relevant.
We have already indicated that decisions regarding the admission of
evidence are within the discretion of the trial court, and we will not disturb
such decisions absent an abuse of discretion. Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007).
Evidence is relevant if it has any
tendency to make more or less probable any fact that is of consequence to
the action being tried. Pa.R.E. 401. The credibility of a witness is a relevant
consideration in the determination of an action. Commonwealth v. Rouse,
782 A.2d 1041, 1045 (Pa. Super. 2001); Pa.R.E. 607.
The
trial
court
found
that
Hanssens’
credibility
was
relevant,
particularly in light of Appellant having impeached him with regard to his
inconsistent statements. The reason Hanssens offered on direct and cross
examination for having lied to police was, at least in part, his fear that his
family would disown him if they knew the truth about his actions.
Accordingly, Hanssens’ testimony that his family did, in fact, disown him
after he admitted his presence in the car tended to show that his fear of
being disowned had been a fear sincerely and legitimately held.
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disowned thus helped to corroborate his claim as to why he gave an initially
false statement. Accordingly, by showing the sincerity and legitimacy of his
fear that motivated his initial lie, the Commonwealth arguably rehabilitated
Hanssens in the jury’s eyes. That rehabilitation, in turn, likely made it more
probable that the jury would believe his testimony regarding Appellant’s
involvement in the robbery, murder and other offenses.
In light of these facts, we are unconvinced the court abused its
discretion by admitting the aforesaid testimony from Hanssens. Appellant’s
claim fails.
Next, Appellant argues the court erred by denying his request for a
jury instruction on third-degree murder. A jury instruction on an offense is
warranted only if the evidence supports the instruction. Commonwealth v.
Browdie, 671 A.2d 668, 674 (Pa. 1996).
An appellant must support the
appellate arguments by demonstrating the facts in support thereof.
Wrecks, 931 A.2d at 722; Hardy, 918 A.2d at 771.
Appellant’s brief makes the general claim that the trial testimony could
have supported a guilty verdict for third-degree murder because the
evidence was such that jury could have concluded Appellant possessed
malice but not the specific intent to kill the decedent.
However, the brief
does not provide citations to any facts of record in support of this claim.
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Accordingly, the brief does not convince us the case facts warranted a jury
instruction on third-degree murder. Therefore, Appellant is not entitled to
relief.
Lastly, Appellant claims his robbery sentence is illegal.
The court
sentenced Appellant to life in prison for second-degree murder and to a
concurrent term of five years’ imprisonment for robbery.
The court also
imposed several other concurrent prison terms for conspiracy, the firearms
violation and possessing an instrument of crime.
The robbery was the underlying felony for Appellant’s second-degree
murder conviction.
See 18 Pa.C.S.A. §
therefore
with
merged
murder
for
2502(b), (d).
sentencing
The robbery
purposes.
See
Commonwealth v. Tarver, 426 A.2d 569, (Pa. 1981); 42 Pa.C.S.A.
§ 9765.
It was illegal for the court to impose a separate penalty for the
underlying felony.
42 Pa.C.S.A. § 9765.
As between the robbery and
murder convictions, the court should have imposed a sentence for only the
murder count. Id. Thus, we vacate Appellant’s sentence for robbery.
In light of the fact that the sentencing court elected to impose all
prison terms concurrent to Appellant’s mandatory life sentence, vacating his
concurrent robbery penalty does not upset the court’s overall sentencing
scheme.
Because our decision does not upset that scheme, we will not
remand for resentencing. Commonwealth v. Thur, 906 A.2d 552, 569-70
(Pa. Super. 2006).
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Convictions affirmed.
Sentence for robbery vacated.
Judgment of
sentence affirmed in all other respects. Jurisdiction relinquished.
Judge Mundy concurs in the result.
Judgment Entered.
Prothonotary
Date: 7/12/2013
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