VOL. 164
j u ly 2 2 , 2 0 1 6
NO. 15
PITTSBURGH LEGAL JOURNAL
OPINIONS
a l l e g h e n y c o u n t y c o u rt o f c o m m o n p l e a s
Commonwealth of Pennsylvania v. Gisele Paris, Mariani, J. ............................................................................................................................Page 193
Criminal Appeal—Evidence—Sufficiency—Sentencing (Discretionary Aspects)—Theft—Cruelty to Animals—Jury Instruction—
Mistake of Fact—Malice
Defendant receives sentence of 3-6 months in jail and 2 years’ probation for taking a neighbor’s dog and having it euthanized.
Commonwealth of Pennsylvania v. Keith Lamont Drain, Cashman, A.J. ........................................................................................................Page 200
Criminal Appeal—Homicide (3rd Degree)—Hearsay—Sufficiency—VUFA—After Discovered Evidence—Speedy Trial—
Excited Utterance—Death of a Witness—Plain View
Defendant convicted of third degree homicide 10 years after shooting the paraplegic victim; could not have been charged with homicide
while the victim was still alive.
Commonwealth of Pennsylvania v. Leon Walls, McDaniel, J. ..........................................................................................................................Page 204
Criminal Appeal—Sufficiency—Weight of the Evidence—Homicide (Attempted)—Aggravated Assault—Insanity—
Guilty but Mentally Ill—Competing Experts
Schizophrenic defendant is found to be guilty but mentally ill on some charges, and insane on others that occurred on same day.
PLJ
OPINION SELECTION POLICY
The Pittsburgh Legal Journal Opinions are
published fortnightly by the
Allegheny County Bar Association
400 Koppers Building
Pittsburgh, Pennsylvania 15219
412-261-6255
www.acba.org
©Allegheny County Bar Association 2016
Circulation 5,990
PLJ EDITORIAL STAFF
Opinions selected for publication are based upon
precedential value or clarification of the law. Opinions are
selected by the Opinion Editor and/or committees in a
specific practice area. An opinion may also be published
upon the specific request of a judge.
Opinions deemed appropriate for publication are not
disqualified because of the identity, profession or community
status of the litigant. All opinions submitted to the Pittsburgh
Legal Journal (PLJ) are printed as they are received and will
only be disqualified or altered by Order of Court, except it is
the express policy of the Pittsburgh Legal Journal (PLJ) not
to publish the names of juveniles in cases involving sexual or
physical abuse and names of sexual assault victims.
Hal D. Coffey, Esq. ..................Editor-in-Chief and Chairman
Brian Estadt ......................................................................Editor
David A. Blaner ..........................................Supervising Editor
Jennifer A. Pulice, Esq. ..............................Consulting Editor
Sharon Antill ................................................Typesetter/Layout
OPINIONS
section EditorS
Civil Litigation: Craig L. Fishman
Criminal Litigation: Victoria Vidt
Family Division: Reid Roberts
Probate and Trust: Mark Reardon
Real Property: Ken Yarsky
Civil litigation opinions committee
Christopher Channel
Cecelia Dickson
Joseph Froetschel
John Gisleson
Erin Hamilton
Austin Henry
William Labovitz
Scott Leah
Criminal litigation opinions committee
Jesse Chen
Marc Daffner
Sharon Dougherty
Mark Fiorilli
Deputy D.A. Dan Fitzsimmons
William Kaczynski
Anne Marie Mancuso
Patrick Nightingale
James Paulick
Melissa Shenkel
Dan Spanovich
Victoria Vidt
family law opinions committee
Reid B. Roberts, Chair
Mark Alberts
Christine Gale
Mark Greenblatt
Margaret P. Joy
Patricia G. Miller
Sally R. Miller
Sophia P. Paul
David S. Pollock
Sharon M. Profeta
Hilary A. Spatz
Mike Steger
William L. Steiner
The Pittsburgh Legal Journal provides the ACBA
members with timely, precedent-setting, full text opinions,
from various divisions of the Court of Common Pleas. These
opinions can be viewed in a searchable format on the ACBA
website, www.acba.org.
j u ly 2 2 , 2 0 1 6
pa g e 1 9 3
Commonwealth of Pennsylvania v.
Gisele Paris
Criminal Appeal—Evidence—Sufficiency—Sentencing (Discretionary Aspects)—Theft—Cruelty to Animals—
Jury Instruction—Mistake of Fact—Malice
Defendant receives sentence of 3-6 months in jail and 2 years’ probation for taking a neighbor’s dog and having it euthanized.
No. CC 201405727. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Mariani, J.—January 20, 2016.
OPINION
This is a direct appeal in which the defendant appeals the Judgment of Sentence of February 27, 2015 that became final when
this Court denied post-sentencing motions on March 5, 2015. After a jury trial, the defendant was found guilty of theft by unlawful
taking, receiving stolen property and cruelty to animals. Relative to the conviction for cruelty to animals, this Court sentenced the
defendant to a term of imprisonment of not less than three months nor more than six months followed by 18 months’ probation.
Relative to the theft conviction, this Court sentenced the defendant to a term of probation of 24 months, concurrent to the term of
probation imposed at the cruelty to animals count. The receiving stolen property conviction merged with the theft conviction. This
timely appeal followed in which the defendant alleges numerous allegations of errors in the trial court.
The credible facts adduced at trial established that the following events transpired between November, 2013 and February,
2014:
Mark Boehler testified that he was the owner of a Siberian husky named Thor. Mr. Boehler resided at 48 Liester Street in the
North Side section of the City of Pittsburgh. Mr. Boehler’s residence was approximately one-half mile from the defendant’s
residence. Mr. Boehler testified that he got Thor sometime around July, 2010. Thor was primarily an outside dog that was kept in
a fenced-in yard. Thor had his own dog house on the property. Mr. Boehler testified that sometime in 2013, Thor underwent
surgery for a tumor on his neck. Thor recovered from the surgery and lived a normal life. Mr. Boehler testified that he loved Thor
and provided all required care for Thor. He explained, however, that within the year prior to the trial, he had developed health
issues and was diagnosed with cancer. Throughout 2013, he underwent chemotherapy and other treatment. This medical treatment
resulted in his being hospitalized often during 2013. Due to this treatment, Mr. Boehler often asked Regina McCauley and her son
to care for Thor. Because Mr. Boehler’s physical condition continued to deteriorate, in November, 2013, Mr. Boehler made
arrangements for Ms. McCauley to take permanent custody of Thor in December, 2013. Mr. Boehler testified that over the years
that he owned Thor, he spent over $200 to take care of Thor.
Mr. Boehler further testified that he went to Thanksgiving dinner with his family on November 28, 2013. When he left his
residence, Thor was in the yard. When he returned home, he was not greeted by Thor. Thor usually greeted Mr. Boehler at the
fence when he returned home. Mr. Boehler assumed that Thor was in the dog house and did not come out. Mr. Boehler had brought
leftovers from the Thanksgiving dinner to give to Thor to eat and Mr. Boehler was surprised that Thor did not come to him.
Mr. Boehler testified that he woke up on November 29, 2013 and noticed that Thor was not in his yard. Considering the events of
the night before, Mr. Boehler believed Thor had been taken the night before. Mr. Boehler testified that he was concerned about
Thor and he put an ad in a local newspaper that Thor had been lost. He made calls to his local veterinarian’s office at Penn Animal
Hospital to alert the staff that Thor was missing and to be on the lookout for him.
Mr. Boehler testified that he called the police on November 29th. He also testified that he looked around his property the next
morning and noticed that someone had cut the fence that surrounded the property. Mr. Boehler testified that he did not recognize
the defendant and he never authorized the defendant to take possession of or euthanize Thor.
Regina McCauley testified that she was a neighbor of Mr. Boehler on the North Side section of the City of Pittsburgh.
Ms. McCauley testified Mr. Boehler and her son were friends. She had gotten to know Mr. Boehler because Mr. Boehler had asked
her son and her to care for Thor while Mr. Boehler received treatment for cancer during 2013. She had taken Thor to the veterinarian’s office for treatment of growths on his eyelid and back in the spring of 2013 and she and her son took daily care of Thor
at Mr. Boehler’s residence while Mr. Boehler underwent cancer treatment. She made sure Thor had food and water and she took
him to the veterinarian for treatment of a tumor in the spring of 2013. Ms. McCauley paid for the veterinarian’s services.
Ms. McCauley testified that Thor was well cared for and enjoyed being outside. Ms. McCauley testified that, due to Mr. Boehler’s
medical condition, she and Mr. Boehler agreed that she would take permanent custody of Thor. On the day before she was
supposed to take Thor, however, Thor had disappeared. She was deeply concerned about Thor and took steps, with Mr. Boehler, to
find Thor.
Robert Fredley, a Humane Police Officer at the Animal Friends Shelter, responded to 48 Liester Street for a complaint of
animal cruelty toward a dog. The complaint was made on November 26, 2013 and it was received from a telephone number
registered to the defendant. The name “Susan Elliott” was used by the complainant. The complaint alleged that the dog (Thor)
was matted, freezing and the dog’s drinking water was frozen. The complainant advised that a good home was available for the
dog, if needed. Officer Fredley responded to 48 Liester Street but he did not observe any violations. Mr. Boehler was not home
when Officer Fredley arrived at the residence but Mr. Boehler returned home while Officer Fredley was at the residence to
investigate the complaint. Officer Fredley observed Thor near a dog shelter and a full bowl of water was near the doghouse.
The air temperatures ranged from 33 degrees to 24 degrees.
Peter Bechtold, a City of Pittsburgh Police Officer, testified that on November 29, 2013, he received a call to respond to
48 Liester Street for a stolen dog. When Officer Bechtold arrived at the residence, Mr. Boehler advised that his dog was
missing and Mr. Boehler explained the events of the preceding evening. Officer Bechtold looked around the property and
noticed the fence surrounding the property was pushed in near the front of the house. There were footprints in the snow
near that area.
City of Pittsburgh Police Officer Ryan Deloplaine also responded to Mr. Boehler’s residence on November 29, 2013 to take a
supplemental report. Officer Deloplaine looked around the property and he noticed that the fence had been cut near the rear of
the property. There were footprints in the snow near the area where the fence had been cut.
Cynthia Scrivnor testified that she was a veterinarian technician at Animal Rescue League in November and December of 2013.
On November 29, 2013, the defendant brought a husky into that facility. The defendant indicated to Ms. Scrivnor that the husky
was a “stray.” The defendant was asked if she would want to reclaim the husky if it had to be euthanized for medical or behavioral
pa g e 1 9 4
volume 164
no. 15
reasons. The defendant completed a form that indicated that she did not want to reclaim the dog. The dog was examined by a
veterinarian at the Animal Rescue League. Upon examination, it was concluded that the dog would be euthanized pursuant to
Animal Rescue League protocol because of its age and because it suffered from a perianal tumor and it had trouble walking on its
rear legs.
A few days after she dropped the husky off at the Animal Rescue League, the defendant contacted the Animal Rescue League
and informed someone at the Animal Rescue League that she would reclaim the dog if he were to be euthanized at the Animal
Rescue League. On December 11, 2013, the defendant picked the dog up from the Animal Rescue League.
On January 10, 2014, the defendant brought the husky, which she had named Sergei, to the Penn Animal Hospital. Carol
Gettings, the secretary at the facility, testified that the defendant presented a rabies tag for the husky and asked if any information about the husky could be gleaned from the tag. Ms. Gettings took the tag and, using records maintained at the facility,
determined that the dog’s name was Thor and that it was registered to Regina McCauley. Ms. Gettings advised that the tag was
from a dog that had been reported to them as being stolen. Ms. Gettings advised the defendant that Mr. Boehler had called
Penn Animal Hospital and reported that his dog, Thor, had been stolen. According to Ms. Gettings, Mr. Boehler and Ms.
McCauley had been calling Penn Animal hospital repeatedly since the dog was missing. In response, the defendant became
angry and started pacing and flailing her arms. The defendant advised Ms. Gettings that she did know where the dog came
from. The defendant told Ms. Gettings that she adopted the dog from Animal Rescue League and that the dog had been in poor
health and his condition had been deplorable. Ms. Gettings provided the defendant with a note containing Ms. McCauley’s
name, address and telephone number. The defendant told Ms. Gettings that the Animal Rescue League did not want the dog.
At some point during the exchange, Dr. Cohn, a veterinarian at Penn Animal Hospital, heard the commotion and escorted the
defendant and the husky into an examination room. Dr. Cohn performed an examination of the husky. Dr. Cohn’s examination
notes reflected that the defendant obtained the husky as a stray and had the husky for six weeks. The notes also reflected that
the husky was suffering from a perianal tumor. Dr. Cohn provided the defendant with an itemization of costs associated with
his fees to remove the tumor and have the dog neutered. The total cost of service was $608.30. The defendant left the animal
hospital on that day and never returned.
Allison Stadelman testified that she was working as a receptionist at Penn Animal Hospital in January, 2014. The defendant
came to the hospital with the husky. Ms. Stadelman also testified that Carol Gettings was working at the hospital on that date as
well. Upon being asked how she came into possession of the husky, the defendant told Ms. Stadelman three different stories about
how she obtained the husky. According to Ms. Stadelman, Ms. Gettings immediately suspected that the husky was “Thor”. After
Ms. Getting told the defendant about Ms. McCauley and Mr. Boehler and provided contact information for Ms. McCauley, the
defendant demanded that the employees at Penn Animal Hospital not divulge the defendant’s identity to anyone and she became
combative, as described by Ms. Gettings. Ms. Stadelman’s testimony was consistent with Ms. Getting’s testimony.
Dr. Brandon Cohn testified that he was a veterinarian at the Penn Animal Hospital. He testified that he began treating a Siberian
husky named “Thor” during 2013. In April, 2003, Dr. Cohn treated Thor for growths on his eyelid, his back and a perianal tumor.
He also has slightly enlarged testicle. At that time, a decision was made to perform surgery on the growths on the eyelid and back,
because these issues were more pressing. In July, 2013, the surgeries were successfully performed. Two weeks later, Dr. Cohn
removed the sutures associated with those surgeries. At some point in 2013, Dr. Cohn became aware that Mr. Boehler was going to
transfer custody of Thor to Ms. McCauley. Dr. Cohn, Mr. Boehler and Ms. McCauley decided that they were going to schedule
surgery for Thor to have the remaining issues addressed at a later date. The surgery, however, never occurred.
Dr. Cohn testified that the defendant presented at the animal hospital on January 9, 2014 and that she brought a Siberian
husky with her. He essentially recounted the testimony of Ms. Gettings and Ms. Stadelman. Dr. Cohn examined the husky and
determined that the husky was not neutered and had a perianal tumor. He indicated that he could correct the dog’s medical
problems and he provided the defendant with an estimate for his services, $608.30. The defendant advised that she could not
afford the fees.
After the incident on January 9, 2013, Dr. Cohn met with another veterinarian at the hospital, Dr. Staud, and informed him of
his interaction with the defendant and his suspicions that the defendant unlawfully possessed Thor. Dr. Staud notified Kathy
Hecker, a Humane Society Police Officer for Animal Friends. Officer Hecker testified that she received a phone call from Dr. Staud
concerning a husky they believed had been stolen from one of his clients. Dr. Staud provided Officer Hecker with the defendant’s
contact information. Officer Hecker began an investigation and placed a telephone call to the phone number attributed to the
defendant. The defendant did not answer the phone. Officer Hecker left a message asking the defendant to call her about an
incident she was investigating. The defendant never returned the call. Officer Hecker then cross-referenced the defendant’s
telephone number with the database at Animal Friends. Officer Hecker learned that the telephone number was associated with a
name of Susan Elliott residing on Liester Street. A person identified as Susan Elliott had made a complaint to Animal Friends on
November 26, 2013 that a dog was being neglected. Officer Hecker later made a second call to the defendant. This time Officer
Hecker left a message advising that Officer Hecker believed the husky she had was stolen and that the defendant should contact
Officer Hecker immediately. Again, the defendant did not respond to this call.
Because Ms. McCauley was identified as the owner of Thor at Penn Animal Hospital, Officer Hecker contacted Ms. McCauley
on January 10, 2014. Ms. McCauley informed Officer Hecker that she was caring for a dog that belonged to her son’s best friend.
Ms. McCauley provided Officer Hecker with Mr. Boehler’s phone number. Officer Hecker was unable to speak with Mr. Boehler
because he was in the hospital. Officer Hecker also spoke with Ms. Gettings, Ms. Stadelman and Dr. Cohn. After speaking with
these witnesses, Officer Hecker went to the defendant’s residence on January 22, 2014.
Upon arriving at defendant’s residence on January 22, 2014, Officer Hecker knocked on the door and announced her presence.
She identified herself as a Humane Officer. Nobody answered the door so Officer Hecker was about to prepare a written notice to
affix to the door advising of her attempts to speak with the defendant. As she walked to her vehicle, she observed a black and white
cocker spaniel walk toward the front of the house. Concerned that the dog was left outside in frigid temperatures, Officer Hecker
walked toward the dog. She followed the dog to the rear of the residence and Officer Hecker encountered the defendant standing
in the doorway of the back door of the residence. A husky was lying down next to the defendant. Officer Hecker identified herself
to the defendant and advised that she was there about “the husky”. Officer Hecker asked the defendant why the defendant did not
return Officer Hecker’s phone calls. The defendant advised that she did not have a telephone. The defendant then told Officer
Hecker that Officer Hecker had no business being there. Officer Hecker advised the defendant that the husky had been reported
stolen and there was going to be a criminal investigation. The defendant responded by telling Officer Hecker that she adopted the
j u ly 2 2 , 2 0 1 6
pa g e 1 9 5
husky from the Animal Rescue League.
While at defendant’s residence, Officer Hecker noticed that the husky had not been neutered. Because of her awareness of
the Animal Rescue League’s policy not to allow for the adoption of dogs that aren’t neutered, she suspected the defendant was
not being truthful as to how she obtained the husky. Officer Hecker then asked the defendant to present her with adoption
papers. The defendant handed her a stack of papers. There were no adoption papers in the stack but there were papers from
Penn Animal Hospital and there were papers addressed to a Susan Elliott. After Officer Hecker reviewed the papers for a very
short time, the defendant grabbed the papers from her and told Officer Hecker that “it’s none of your business” and that she
“didn’t know anything about the dog.” Officer Hecker advised the defendant that she should return the dog to its owner and
that the owner wanted the dog back. The defendant told Officer Hecker that she had no idea how awful the dog’s life had been
and that she rescued the dog from being euthanized. In response to a question from Officer Hecker, the defendant indicated
that the mailman told the defendant that the dog had an awful life. The defendant then blamed Officer Hecker for the situation for allowing the husky to be mistreated. The defendant then took an aggressive step toward Officer Hecker and became
very angry. Fearing that the situation could become physical, Officer Hecker terminated her interaction with the defendant
and left the scene.
After her interaction with the defendant, Officer Hecker contacted Officer Christine Luffey from the City of Pittsburgh Bureau
of Police. On February 13, 2014, Officer Luffey and Officer Hecker went to the defendant’s residence and asked to see the husky.
The officers advised the defendant that they were there to retrieve the stolen husky and return it to its owner. The defendant
informed the officers that the husky was not there because he was at the veterinarian’s office “getting something taken off his ass”.
The defendant would not disclose the identity of the veterinarian. She was belligerent and hostile. The defendant told the officer
to “get your hands off my door”. Both officers then left the defendant’s residence.
Officer Luffey testified that she was assigned to this case. She had met with Officer Hecker and on February 13, 2014 she,
along with two other police officers and Officer Hecker, went to the defendant’s residence to seize the husky. When they encountered the defendant at the residence, the defendant accused the City of Pittsburgh Police of having a vendetta against her. The
defendant advised that the husky was not at the residence but was at the veterinarian’s office having something taken off its
“ass.” She would not disclose the identity of the veterinarian. She told the officers to get their hands off her door. The officers
left the scene.
Officer Luffey prepared a criminal complaint and an arrest warrant for the defendant. Officer Luffey, Officer Hecker and three
other police officers went to the defendant’s residence to execute the arrest warrant. When they arrived at the residence, the defendant was not present. A neighbor advised Officer Hecker that the defendant saw the law enforcement vehicles and began walking
away from her residence. Officer Hecker relayed that information to Officer Luffey who then began pursuing the defendant on
foot. Officer Luffey began running after the defendant. Another officer advised the defendant that they had a warrant for her arrest
and yelled for the defendant to stop. The defendant did not stop. Officer Luffey continued to run after the defendant. Officer Luffey
eventually reached the defendant and grabbed the defendant’s right arm. Officer Luffey advised the defendant that she was under
arrest. Officer Luffey was able to get a handcuff on the defendant’s right wrist. The defendant then threw herself to the ground
and Officer Luffey fell on top of her. The defendant was combative and began violently fighting with Officer Luffey. The defendant
was flailing her arms violently and was kicking Officer Luffey. Officer Luffey was surprised at the defendant’s strength and began
fearing for her safety. Officer Luffey maintained a strong hold on the handcuffs. Officer Ross soon responded to the scene of the
arrest. The defendant started screaming for help and yelled for someone to call 911. The defendant kicked Officer Ross but Officer
Ross eventually helped subdue the defendant and the other handcuff was successfully placed it on the defendant’s left wrist. The
defendant was taken into custody but she continued to scream. She would not willingly enter the police vehicle and she had to be
carried into it by police officers.
Kari Kramer, a neighbor of the defendant, testified that she had observed the defendant walking the husky during January and
February of 2014. When asked by Ms. Kramer if she got a new dog, the defendant responded by telling Ms. Kramer that she was
watching the dog for a sick friend who was in hospice care.
Dr. Jamie Griffin testified that she is a veterinarian who performed in-home euthanasia of pets. Dr. Griffin was contacted by the defendant in December, 2013 to euthanize a cat at the defendant’s residence. Dr. Griffin went to the defendant’s
residence and euthanized a cat. Dr. Griffin testified that it is her custom to ask a client if the client wants Dr. Griffin to
contact the euthanized animal’s veterinarian about the death of the animal. When Dr. Griffin asked the defendant if she wanted Dr.
Griffin to contact the cat’s veterinarian, the defendant responded affirmatively. Dr. Griffin was contacted again by the defendant in February, 2014 to come to the defendant’s house to euthanize the husky. Dr. Griffin testified that the defendant told
Dr. Griffin that the husky had cancer. The husky did not, however, appear to be in need of medical attention. The defendant
signed a required form indicating that she was the owner of the husky. Dr. Griffin then euthanized the husky. Dr. Griffin asked
the defendant if she should notify the husky’s veterinarian and, unlike her response concerning the cat, the defendant replied
that the veterinarian should not be notified of the husky’s death. The cost of Dr. Griffin’s service was $250.00 which the
defendant paid.
The defendant also presented a number of witnesses. Deborah Smithson testified that she was a neighbor of the defendant. She
testified that she believed she had seen Thor walking on the street, unsupervised, approximately three times prior to the time the
defendant had taken custody of Thor.
Joseph Valori testified that he was a neighbor of Mr. Boehler. He testified that there were times where he would supply Thor
with food and water because he didn’t see anyone providing food and water to Thor. He also testified that he noticed that Thor
walked with a limp. He testified that he never knew Thor to escape from the yard.
The defendant testified on her own behalf. She testified that she had lived at her current residence for five years. She explained
that she would walk her dog, a cocker spaniel mix named “Mike”, and she would routinely walk past Mr. Boehler’s residence. She
became familiar with Thor and described Thor as very friendly. Thor would come to the fence and greet Mike and her. Over time,
she testified that she noticed that the condition of the dog began to deteriorate. She admitted that in November, 2013, she
telephoned the Humane Society to voice her concerns about the condition of Thor. She further claimed that on November 28, 2013
or November 29, 2013, she encountered the dog near a vacant building in the neighborhood. She took the husky home, fed it and
groomed it. She testified that she did not notice a collar on the dog until the day after she found it because the collar was imbedded in the dog’s neck. After a period of weeks, fearing she could not take care of the husky’s medical needs, she took the husky to
the Animal Rescue League and left it here. After a short period of time, she was advised that the husky was going to be euthanized.
pa g e 1 9 6
volume 164
no. 15
She reclaimed the dog, claiming she made a clerical mistake on the form she executed at the Animal Rescue League.
The defendant testified that she suspected that the husky may have been the husky she encountered on her walks but she
wasn’t certain. She testified that a few days after she found the husky, she took another walk and she found a rabies tag near the
cemetery in her neighborhood. She testified that she didn’t know it was a tag from the husky. She testified, however, that she went
to Penn Animal Hospital with the rabies tag. Her testimony, however, differed from the version supplied by Dr. Cohn, Ms. Gettings
and Ms. Stadelman. The defendant testified that Dr. Cohn believed the husky was in poor health. She testified that she was
mistreated by the staff. She admitted that she was advised that the husky was owned by Regina McCauley. She admitted that she
raised her voice and that she asked the staff at Penn Animal Hospital to keep her identity confidential. She admitted that Dr. Cohn
informed her that he was familiar with the husky.
The defendant admitted that Officer Hecker, during her first interaction with the defendant, advised the defendant that Officer
Heckler believed she stole Thor. The defendant testified that she told Officer Hecker that she found the husky. The defendant
claimed that Officer Hecker did not show any concern for the husky. She admitted that she originally provided papers to Officer
Hecker concerning the husky but she quickly grabbed them back. She also admitted that Officer Hecker told her that she had to
return the husky to its rightful owner. The defendant admitted that she contacted Dr. Griffin on February 10, 2014 and had Thor
euthanized.
The defendant testified that she did not comply with Officer Luffey during her arrest on February 13, 2014 because Officer
Luffey grabbed her other dog. The defendant admitted that she lied to the police officers on the day of her arrest when she told
them that the husky was at the veterinarian’s office.
At the conclusion of the trial, the defendant was convicted as set forth above.
Defendant’s first claim of error relates to this Court’s rulings concerning the admission of evidence of the defendant’s conduct
at the time of her arrest. “The admissibility of evidence is solely within the discretion of the trial court and will be reversed only
if the trial court has abused its discretion.” Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa.Super. 2002), appeal denied, 573
Pa. 663, 573 Pa. 663, 820 A.2d 703 (2003). As a result, rulings regarding the admissibility of evidence will not be disturbed for an
abuse of discretion “unless that ruling reflects ‘manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support as to be clearly erroneous.’” Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006).
It is axiomatic that evidence that is not relevant is not admissible. Pa.R.E. 402; Commonwealth v. Robinson, 554 Pa. 293, 304305, 721 A.2d 344, 350 (1998) (“The threshold inquiry with admission of evidence is whether the evidence is relevant.”).
Relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401. See also Commonwealth
v. Edwards, 588 Pa. 151, 181, 903 A.2d 1139, 1156 (2006) (evidence is relevant if it logically tends to establish a material fact in
the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a
material fact).
In Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004), the Superior Court explained that “[r]elevant evidence may
nevertheless be excluded ‘if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’” See also
Commonwealth v. Dejesus, 584 Pa. 29, 880 A.2d 608, 614-615 (Pa. Super. 2005).
As set forth in Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super.2007) quoting Broaster, 863 A.2d at 592,
Because all relevant Commonwealth evidence is meant to prejudice a defendant, [however] exclusion is limited to
evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal
propositions relevant to the case. As this Court has noted, a trial court is not required to sanitize the trial to eliminate
all unpleasant facts from the jury’s consideration where those facts form part of the history and natural development
of the events and offenses with which [a] defendant is charged.
Importantly, the erroneous admission of evidence does not necessarily entitle a defendant to relief if the error is harmless. As set
forth in Commonwealth v. Williams, 554 Pa. 1, 19, 720 A.2d 679, 687-688 (1998) (citing Commonwealth v. Story, 476 Pa. 391, 383
A.2d 155, 162 (Pa. 1978)):
Harmless error is established where either the error did not prejudice the defendant; or the erroneously admitted
evidence was merely cumulative of other untainted evidence; or where the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict.
Defendant argues that the Court erred in admitting into evidence the defendant’s combative behavior at the time she was arrested.
As noted above, the jury was presented with evidence that the defendant attempted to walk away from her residence as the police
officers arrived to arrest her. After she was encountered by Officer Luffey, the defendant refused to comply with Officer Luffey’s
orders and fell to the ground. While on the ground, she repeatedly flailed her arms and kicked Officer Luffey. She also kicked
Officer Ross. The defendant continued to scream and yell for someone to call 911.
Defendant’s main claim is that evidence was not probative of whether she stole, unlawfully retained or maliciously killed a dog.
This Court admitted this evidence because it determined that the evidence was, indeed, relevant. The evidence of the defendant’s
conduct during her arrest was relevant because a large part of the Commonwealth’s case in chief involved evidence that the defendant was repeatedly resistant to law enforcement directives. She was evasive when interacting with law enforcement officers. The
defendant had been told on multiple occasions by law enforcement officers to return Thor to Mr. Boehler. She refused. She lied to
law enforcement officers when she told them Thor was getting medical treatment. She lied to conceal the fact that Thor was, in
fact, dead. Her conduct during the arrest was consistent with her repeated pattern of disregarding lawful authority and this Court
believes that her conduct at the time of her arrest had a tendency to establish such a pattern to be more probable than it would be
without the evidence.1
Defendant next claims that this Court erred in not instructing the jury concerning defendant’s ignorance or mistake of fact.
“[I]n reviewing a challenge to the trial court’s refusal to give a specific jury instruction, it is the function of this
[C]ourt to determine whether the record supports the trial court’s decision.” In examining the propriety of the instructions a trial court presents to a jury, our [standard] of review is to determine whether the trial court committed a clear
j u ly 2 2 , 2 0 1 6
pa g e 1 9 7
abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than
clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge
said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by
that refusal.
Commonwealth v. Brown, 911 A.2d 576, 582-583 (Pa. Super. 2006), appeal denied, 591 Pa. 722, 920 A.2d 830 (2007) (citing
Commonwealth v. Thomas, 904 A.2d 964 (Pa. Super. 2006)).
There is no duty on a trial judge to charge a jury upon law which has no applicability to the presented facts. Commonwealth v.
McClain, 587 A.2d 798, 803 (Pa. Super. 1991), appeal denied, 528 Pa. 636, 598 A.2d 993 (1991). The instructions must adequately,
accurately and clearly present the law to the jury and must be sufficient to guide the jury in its deliberations. Commonwealth v.
Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996).
As set forth in Commonwealth vs. Scott, 73 A.3d 599, 602-603 (Pa.Super. 2013), citing Commonwealth v. Hamilton, 766 A.2d 874,
878-79 (Pa.Super. 2001)), the Superior Court has held that, under certain circumstances, a mistake of fact can disprove a required
element of criminal intent:
It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances, negate the
element of criminal intent. 18 Pa.C.S.A. §304 (providing, inter alia, that ignorance or mistake as to a matter of fact, for
which there is a reasonable explanation or excuse, is a defense if “the ignorance or mistake negatives the intent,
knowledge, recklessness, or negligence required to establish a material element of the offense”); Commonwealth v.
Compel, 236 Pa. Super. 404, 344 A.2d 701 (Pa. Super. 1975); Commonwealth v. Bollinger, 197 Pa. Super. 492, 179 A.2d
253, 255 (Pa. Super. 1962). “It is not necessary that the facts be as the actor believed them to be; it is only necessary
that he have ‘a bona fide and reasonable belief in the existence of facts which, if they did exist, would render an act
innocent.’ Commonwealth v. Lefever, 151 Pa. Super. 351, 30 A.2d 364, 365 (Pa. Super. 1943). See generally, Morissette
v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952).” Compel, supra, at 702-03. When evidence of a
mistake of fact is introduced, the Commonwealth retains the burden of proving the necessary criminal intent beyond
a reasonable doubt. Commonwealth v. Cottam, 420 Pa. Super. 311, 616 A.2d 988, 1000-01 (Pa. Super. 1992). In other
words, the Commonwealth must prove either the absence of a bona fide, reasonable mistake, or that the mistake
alleged would not have negated the intent necessary to prove the crime charged.
This Court properly refused to instruct the jury on ignorance or mistake of fact. The defendant claims that such an instruction was proper because the evidence of the defendant’s mistake concerning the health of Thor should have been presented to
the jury. As noted above, the ignorance or mistake must be reasonable and must negate the intent, knowledge, recklessness, or
negligence required to establish a material element of the offense. Under the facts of this case as presented at trial, any ignorance or mistake of fact allegedly attributable to the defendant was simply not reasonable. The undisputed testimony at trial
established that the defendant was aware that Thor’s health was not poor. She was aware that Thor was examined by Dr. Cohn
and could have been successfully treated for his health issues for $608.30. She did not want to pay that amount. After her
discussions with the staff at Penn Animal Hospital, she was aware that Thor had a history of treatment at Penn Animal Hospital
and that Thor was not a stray animal. She admitted that she was aware that Thor’s owner was looking for Thor and wanted Thor
to be returned to him. She ignored repeated requests to return Thor to his owner. The defendant suspected that the husky she
had in her possession was the husky that resided at Mr. Boehler’s residence. She also intentionally lied about Thor’s death and
asked Dr. Griffin not to disclose the death to the very veterinarian who told her that Thor could be successfully treated. Based
on these facts, the defendant could not demonstrate the preliminary threshold that any mistake or ignorance on the part of the
defendant was reasonable.2
The defendant next claims that “the evidence was insufficient as a matter of law as to the charge of Theft (18 Pa.C.S.A. 3921(a))
and Receiving Stolen Property (18 Pa.C.S.A. 3925(a)) as charged by the Commonwealth” and that “[t]he verdict of the jury was
against the weight of the evidence as to Theft (18 Pa.C.SA. 3921(a)). Germane to this case, general claims of insufficiency of
evidence or weight of evidence that do not articulate the specific elements that an appellant deems weren’t established at trial are
too vague and result in a waiver of the issues raised on appeal. See Commonwealth v. Williams, 959 A.2d 1252, 1257-1258; (Pa.
Super. 2008). Pennsylvania courts have explained that “a Concise Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no Concise Statement at all.” Commonwealth v. Dowling, 778 A.2d 683 686
(Pa. Super. 2001); see also Commonwealth v. Seibert, 799 A.2d 54 (Pa. Super. 2002). In such circumstances, the vague issues raised
on appeal are deemed waived. Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006). As set forth in Commonwealth v. Reeves,
907 A.2d 1, 2-3 (Pa. Super. 2006):
There is a common sense obligation to give the trial court notice as to what the trial court should address in its Rule
1925(a) opinion. While there is a middle ground that counsel must travel to avoid having a Rule 1925(b) statement so
vague that the trial judge cannot ascertain what issues should be discussed in the Rule 1925(a) opinion or so verbose
and lengthy that it frustrates the ability of the trial judge to hone in on the issues actually being presented to the
appellate court, see Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place on
counsel. It only requires using a little common sense.
In Williams, the Superior Court was evaluating a 1925(b) statement that posed the following question:
Was there not insufficient evidence to sustain the charges of Murder, Robbery, VUFA no license, and VUFA on the
streets. [sic] Thus, denying petitioner due process of law?
The Superior Court held that this statement was too vague and, therefore, the issue of sufficiency was waived on appeal:
Similarly, Appellant herein failed to articulate the specific elements of any crime which he deems the evidence
presented at trial failed to sufficiently establish. Though the Commonwealth did not object to Appellant’s defective
1925(b) statement on this issue, the trial court indicated in its Opinion that Appellant’s failure to list any reasons he
pa g e 1 9 8
volume 164
no. 15
believes that the evidence was insufficient to sustain the charges created a situation in which this is issue is too
ambiguous to be effectively reviewed by the trial court and should be dismissed. Trial Court Opinion, filed June 26,
2007, at 7. As such, in light of Flores, supra, we find Appellant has waived this issue.
Williams, 959 A.2d at 1257-1258; see also Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super. 2007)(a 1925(b) statement
stating that “[t]he evidence presented was insufficient to prove beyond a reasonable doubt that the appellant committed the abovecaptioned offenses” and that “the testimony of Sondra Coble, Julienne Briggs, and Atlas Simpson was insufficient to prove beyond
a reasonable doubt that the appellant committed the above-captioned offenses” did not properly preserve a sufficiency of the
evidence claim for appellate review.); Reeves, 907 A.2d at 3 (a Rule 1925(b) statement that stated, “[t]he evidence was insufficient
to support the verdict on the charge of securing execution of documents by deception” was insufficient and the issue was, therefore, waived.); Seibert, 799 A.2d 54 (Appellant’s weight of the evidence issue waived for having filed a vague 1925(b) statement
claiming only that “the verdict of the jury was against the weight of the credible evidence as to all of the charges.”)
In this case, the defendant’s bald allegations concerning sufficiency and weight of the evidence do not provide any guidance as
to which elements were lacking proof and how the weight of the evidence did not support the verdict rendered in this case. These
allegations are too vague and, pursuant to the authority set forth above, this Court believes these insufficiency and weight of
evidence issues are waived for appellate review.
Defendant next claims that this Court erred by not clearly answering a question from the jury concerning the malice required
to convict the defendant of animal cruelty. In this case, the jury posed the following question to the Court:
As to the charge of animal cruelty, does malicious apply to the animal, a killing, or the people involved?
Defendant requested that the Court advise the jury that malice applied to the killing of Thor. The Commonwealth requested that
the Court just re-read the initial charge. The Court opted to advise the jury to rely on the original jury charge (which was given to
the jury orally and in writing) which stated
First, that the defendant killed any dog belonging to another. Second, that the defendant did so willfully and
maliciously.
Specific definitions of willful conduct and malicious conduct were also given to the jury. In this Court’s view, the original jury
instruction aptly provided the jury with correct statement of the law. It is clear from this instruction that the defendant could only
be convicted if the killing of Thor was done with malice. There was no legal error in this instruction.
Defendant next claims that this Court imposed an excessive sentence because the sentence was in the aggravated range of the
sentencing guidelines. Defendant argues that she was not a danger to the community. She was nearly 58 years-old, had no prior
record of similar conduct and Thor was not in the best of health. Contrary to defendant’s argument, this Court’s sentence was
proper. A sentencing judge is given a great deal of discretion in the determination of a sentence, and that sentence will not be
disturbed on appeal unless the sentencing court manifestly abused its discretion. Commonwealth v. Boyer, 856 A2d 149, 153 (Pa.
Super. 2004), citing Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001) appeal denied, 568 Pa. 695, 796 A.2d 979 (2002);
42 Pa.C.S.A. §9721. An abuse of discretion is not a mere error of judgment; it involves bias, partiality, prejudice, ill-will, or manifest unreasonableness. See Commonwealth v. Flores, 921 A.2d 517, 525 (Pa.Super. 2007), citing Commonwealth v. Busanet, 817 A.2d
1060, 1076 (Pa. 2002).
In Commonwealth v. Fiascki, 886 A.2d 261, 263-264 (Pa.Super. 2005), the Superior Court noted that the following framework
governs merit review of the aspects of defendant’s sentence:
The appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s
sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence, even though within
the guidelines, is “clearly unreasonable”; or (3) that the sentence, if outside the guidelines, is “unreasonable.” In any
one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with
instructions. 42 Pa.C.S.A. § 9781(c). In determining whether a particular sentence is clearly unreasonable or unreasonable, the appellate court must consider the defendant’s background and characteristics as well as the particular
circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the presentence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the findings upon
which the trial court based its sentence.
See also Commonwealth v. Dodge 859 A.2d 771, 778 (Pa. Super. 2004).
Furthermore, the “[s]entencing court has broad discretion in choosing the range of permissible confinements which best suits
a particular defendant and the circumstances surrounding his crime.” Boyer, supra, quoting Commonwealth v. Moore, 617 A.2d 8,
12 (1992). Discretion is limited, however, by 42 Pa.C.S.A. §9721(b), which provides that a sentencing court must formulate a
sentence individualized to that particular case and that particular defendant. Section 9721(b) provides: “[t]he court shall follow
the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the
gravity of the offense, as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the
defendant . . . . “ Boyer, supra at 153, citing 42 Pa.C.S.A. §9721(b). Furthermore,
In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the
character of the defendant. The trial court should refer to the defendant’s prior criminal record, age, personal
characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a presentence
investigative report, it will be presumed that he or she was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating statutory factors.
Boyer, supra at 154, citing Commonwealth v. Burns, 765 A.2d 1144, 1150-1151 (Pa.Super. 2000) (citations omitted).
Moreover, “the sentencing court must state its reasons for the sentence on the record.” Boyer, supra at 154, citing 42 Pa.C.S.A.
§ 9721(b). The sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the presentence report; thus properly considering and weighing all relevant
factors. Boyer, supra, citing Burns, supra, citing Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996). When a judge
imposes a sentence that deviates from the sentencing guideline range, “[a] sentencing judge must state of record the factual basis
j u ly 2 2 , 2 0 1 6
pa g e 1 9 9
and specific reasons which compelled him or her to deviate from the guideline ranges. When evaluating a claim of this type, it is
necessary to remember that the sentencing guidelines are advisory only.” Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002),
appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005), citing Commonwealth v. Eby, 784 A.2d 204 (Pa.Super. 2001).
The record in this case supports the sentence imposed by this Court. This Court carefully considered the defendant’s conduct
in this case and was guided by the Presentence Report prepared in this case. Various witnesses testified at sentencing. This Court
considered that Thor’s condition was treatable and the defendant intentionally made the decision to forgo medical treatment. The
defendant was aware that the Thor’s owner was looking for him and wanted him back. She spurned repeated requests from others
to return Thor to his owner and persisted in illegal conduct in not returning Thor. She lied to many people about how she came into
possession of Thor. She was obstructive and dishonest with law enforcement officers and the staff at Penn Animal Hospital.
The defendant sent a letter to this Court after her conviction and prior to sentencing. In her letter, she extolled Thor’s health
and exuberance under her care. She acknowledged that Dr. Staub had “worked up a quotation for the surgery of $600.00.” She also
reported that Dr. Staub’s “tone changed when a clerk insisted that a woman named Regina McCauley be notified.”
Despite all of this knowledge, the defendant then had Thor killed by misrepresenting that she was the owner of Thor. The defendant showed no remorse for her actions. She never accepted responsibility for her actions and, instead, seemed to place blame on
Mr. Boehler and law enforcement/humane society officials. This Court believed these facts place this case into the aggravated
range of the sentencing guidelines and the sentence imposed by this Court was proper.
Defendant next claims that this Court erred in denying her request to reduce the grading of defendant’s theft conviction from
a misdemeanor of the first degree to a misdemeanor of the second degree. Under Pennsylvania law,
(b) Other grades.--Theft not within subsection (a) or (a.1) of this section, constitutes a misdemeanor of the first degree,
except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second
degree;
18 Pa.C.S.A. 3903
Defendant claims that the theft offense should have been graded as a misdemeanor of the second degree because the total value
of Thor was less than $200. However, this Court denied the defendant’s motion because Mr. Boehler testified that he had spent
more than $200 for Thor’s care over the years. This Court also believed that additional value may be reasonably inferred based on
Thor’s status as a pet/companion. Mr. Boehler testified that he loved Thor and this Court attributed value to Thor on that basis.
These facts warrant the theft offense to be graded as a misdemeanor of the first degree.
Defendant next challenges the sufficiency of evidence relative to the theft and receiving stolen property convictions because
the Commonwealth did not prove that the defendant stole property or retained property of another with a value in excess of $200.3
The standard of review for sufficiency of the evidence claims is well settled:
the standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proof [of]
proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover,
in applying the above test, the entire record must be evaluated and all the evidence actually received must be
considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003). In addition, “[a]ny 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. Cassidy, 668 A.2d 1143, 1144 (Pa.Super. 1995).
As set forth above, the Commonwealth did present testimony of Mr. Boehler that he spent over $200 on the care of Thor.
Similarly, as set forth above, though it was not necessary to arrive at a value above $200, this Court attributed a value to the love
and affection Mr. Boehler had for Thor. The evidence was sufficient to convict of theft as a misdemeanor of the first degree.
Defendant finally claims that this Court erred by limiting defense counsel from cross-examining Officer Hecker about the
report she prepared relative to the instant investigation. This Court has reviewed the trial record and cannot determine any point
where it even arguably improperly limited defense counsel’s cross-examination of Officer Hecker. Accordingly, this claim should
be rejected.
For the foregoing reasons, the Judgment of Sentence should be affirmed.
BY THE COURT:
/s/Mariani, J.
Date: January 20, 2016
1
Assuming, but certainly not conceding, that admission of this evidence was error, such error would be harmless. As set forth in
the trial court record, the evidence of the defendant’s guilt in this case was overwhelming and her conduct at the time of her arrest
would not have changed the verdict.
2
This Court presumes that this claim of error only applies to the conviction for animal cruelty. There are no elements of theft by
unlawful taking or receiving stolen property that would be negated by the defendant’s mistaken belief as to the health of Thor.
3
This claim closely mirrors defendant prior claim that this Court refused to grant his motion to reduce the theft charge to a
misdemeanor of the second degree. This Court also believes that defendant’s claims in paragraphs 7 and 9 raise the same claims
concerning the grading of the theft offenses and both of those claims addressed together.
pa g e 2 0 0
volume 164
no. 15
Commonwealth of Pennsylvania v.
Keith Lamont Drain
Criminal Appeal—Homicide (3rd Degree)—Hearsay—Sufficiency—VUFA—After Discovered Evidence—Speedy Trial—
Excited Utterance—Death of a Witness—Plain View
Defendant convicted of third degree homicide 10 years after shooting the paraplegic victim; could not have been charged with
homicide while the victim was still alive.
No. CC 200915145. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Cashman, A.J.—January 25, 2016.
OPINION
In October of 2009, the appellant, Keith Drain, a/k/a Muhamit Mohammed, (hereinafter referred to as “Drain”), was charged
with the crimes of criminal homicide, possession of a firearm while unlicensed and person not to possess a firearm. The third
charge was severed and given a new criminal information number. In addition to these charges, at another criminal complaint,
Drain was charged with possession of instruments of escape and possession of instruments of a crime. On October 7, 2014, Drain
proceeded with a jury trial on the charges of criminal homicide and possession of a firearm without a license. On October 10, 2014,
the jury found Drain guilty of third degree murder and the charge of possession of a firearm without a license. Drain waived his
right to a presentence report and proceeded to sentencing on that date and was sentenced to a period of incarceration of not less
than twenty nor more than forty years on his conviction for third-degree murder and a consecutive sentence of three and one-half
to seven years for his conviction of possession of a firearm without a license. Following the imposition of sentence, the
Commonwealth moved to dismiss all of the remaining charges that had been filed against Drain.
Drain did not file post-sentence motions but, rather, filed a direct appeal to the Superior Court. Drain was directed pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) to file a concise statement of matters complained of on appeal and in light of
the torturous history of this case, he was granted numerous continuances to file that statement. The statement was finally filed on
September 15, 2015. In addition to filing that statement, Drain also filed a post-sentence motion pursuant to Pennsylvania Rule of
Criminal Procedure 720(c) for a new trial on the basis of after-discovered evidence.1
In his statement of matters complained of on appeal, Drain has raised seven claims of error. Initially, Drain maintains that this
Court erred in denying his motion to dismiss the prosecution on the basis that he had been denied his right to a speedy trial. Drain
further alleges that the unnecessary delay in bringing him to trial prejudiced him by virtue of the fact that he could not locate
potential alibi witnesses and that the witnesses memories may have been hampered by the unusual length of time it took the
Commonwealth to prosecute Drain for these crimes. Drain next maintains that this Court erred in failing to sustain a hearsay
objection made to testimony concerning statements that the victim made to the police. Drain also maintains that this Court erred
in failing to suppress the gun that was found in the vehicle that Drain was driving but which he did not own. Drain has also
suggested that this Court erred in allowing the admission of certain photographs showing the sores on the victim’s body as being
too prejudicial and thereby outweighing their probative value. Drain has also suggested that the evidence was insufficient to
support the verdicts in this case and that the verdicts were against the weight of the evidence. Drain’s final claim of error is that
the prosecutor intentionally misled the Court with respect to discovery matters concerning information that may have been
contained on certain computers.
On January 12, 1999, the victim, Alonzo Thompkins, (hereinafter referred to as “Thompkins”), was standing on Rowan Street
in the Homewood Section of the City of Pittsburgh. A late-model, white Chevrolet pulled up to the spot where Thompkins was
standing and the driver got out of the vehicle, pulled a revolver, and began firing shots at Thompkins. One of the shots fired at
Thompkins struck him in the spine and rendered him a paraplegic. While he was lying on the sidewalk, Drain walked up to him
and fired one shot at his head and then went back to his car and drove off toward Wilkinsburg.
Within minutes after the shots were fired, the Pittsburgh Police responded and they found Thompkins lying on the sidewalk
unable to move. The police asked Thompkins if he knew who shot him and he said that “Banger had did it.” He told them that
Banger had driven the white Chevrolet, got out, fired several shots at him and once he was on the ground, pointed the gun at his
head and fired one more shot at him before getting back into the car and fleeing from the scene. He described Banger as being in
all black clothing and he believed that Banger was heading back to a gym on Penn Avenue in Wilkinsburg.
Thompkins was transferred to Presbyterian University Hospital for emergency surgery. Immediately before the surgery, the
police were able to recover Thompkin’s hat and noted that there was a bullet hole in that hat. The police were able to speak with
Thompkin again prior to his surgery and he told them that he did know the shooter as being named Banger and he believed his
last name to be Muhammad but he couldn’t remember his first name. Finally, he also stated that he believed that Banger was
wearing a black fur coat at the time of the shooting. The police put out a BOLO (be on the lookout) call for a late-model white
Chevrolet and within nine minutes of that call, the police spotted a late-model white Chevrolet being driven along Penn Avenue.
The police followed that Chevrolet until it reached Weightmaster’s Gym on Penn Avenue in Wilkinsburg and noticed that it
pulled over in front of that gym. The driver of that car was Drain. The police approached that vehicle and noticed that Drain
was attempting to slide over the front seat to exit from the passenger side of the vehicle. Since the original call was a call of
shots fired, the police were concerned that Drain had a gun and when they looked at the front passenger foot well, they noticed
a revolver on the floor. They also observed a black fur coat laying across the back seat. Shortly after they took Drain into
custody, the owner of the gym came out and met with the police and told them that he had given Drain his vehicle since Drain
told him that he had to do something.
Drain’s initial claim of error is that he was denied his right to a fair trial and a speedy trial under the Sixth and Fourteenth
Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. As part of this contention, Drain maintains that he was prejudiced by virtue of the loss of an alibi witness, the loss of memory and availability of
other witnesses who could no longer be found. The occurrence that gave rise to Thompkins’ death occurred in January of 1999;
however, Thompkins did not die from the wounds that he suffered in January of 1999 until March 10, 2009, more than ten years
later. The Commonwealth could not have charged Drain with the charge of criminal homicide since it had no victim until
March 10, 2009.
Drain has suggested that since the Commonwealth did not file all of the criminal charges at the same time, that the filing of the
charge of criminal homicide ten years after the shooting constituted an undue delay which prejudiced Drain. In Commonwealth v.
j u ly 2 2 , 2 0 1 6
pa g e 2 0 1
Simms, 500 A.2d 801, 803-804 (Pa. Super. 1985), the Pennsylvania Superior Court rejected this type of logic to recognize that
criminal homicide charges could not be filed until the victim was deceased.
Appellant argues that Commonwealth v. Earp, 476 Pa. 369, 374, 382 A.2d 1215, 1217 (1978), where a plurality of this
Court held that “the 180 day speedy trial period set forth by Rule 1100 begins to run on all charges arising out of a criminal transaction upon the initiation of criminal proceedings charging the defendant with any offense arising out of that
transaction,” requires that the 180 day period for trial on the homicide charge commence with the date the aggravated
assault charge was filed. Although in the instant case the criminal homicide charge arose from the same “criminal transaction” as the aggravated assault charge which it supplanted, the homicide charge could not have been filed at the time
of the first complaint. At that time, there had been no homicide, because the victim of the aggravated assault had not
yet died. See 42 Pa.C.S.A. § 5552(d) (offense not committed until every element has occurred). Thus, the present case is
not one in which the first complaint failed to charge a particular offense that was charged in a subsequent complaint,
and where the subsequently charged offense was one that was completed and chargeable at the time the first complaint
was filed.
The Earp decision has been narrowly interpreted by this Court, and has been limited in its application to the factual
context presented in that case. Commonwealth v. Horner, 497 Pa. at 572, 442 A.2d at 685, n. 9; Commonwealth v.
Genovese, 493 Pa. at 70, 425 A.2d at 370, n. 11; Commonwealth v. Johnson, 487 Pa. 197, 204, 409 A.2d 308, 311, n. 3 (1979).
In Earp, a defendant was initially charged with murder, conspiracy, and several lesser offenses arising from a single
criminal episode. At a preliminary hearing, the murder and conspiracy charges were dismissed, but the defendant
continued to be held on the lesser charges. The murder and conspiracy charges were later refiled. In a plurality decision,
this Court held that trial on the murder and conspiracy charges was to begin within 180 days of the filing of the initial
complaint, rather than within 180 days of the refiling of the charges. In Earp, however, unlike the present case, the offense
of homicide was completed and chargeable at the time the first complaint was filed.
None of the cases cited by appellant involve the situation where, as here, events beyond the control of the prosecution
have operated to change the nature of the offense for which a defendant is to be tried.
Since criminal charges could not have been filed until the victim died, there was no undue delay caused by the Commonwealth
and, accordingly, the Commonwealth could not be held responsible for the fact that Drain now maintains that he can no longer
locate exculpatory witnesses.
Drain next maintains this Court erred when it allowed the Commonwealth to introduce the hearsay statements made by Drain
to the police when they were investigating the shooting in 1999. This Court allowed the statements that Thompkins made to the
police at the time of the shooting into evidence as a result of the fact that the statements were excited utterances. Excited utterances are an exception to the hearsay rule and the rationale for allowing such statements lies within the special reliability that is
furnished when excitement suspends the declarant’s ability for reflection and fabrication. Commonwealth v. Blackwell, 343 Pa.
Super. 201, 494 A.2d 426 (1985). In order to qualify as an excited utterance, the statements must be made as a result of a startling
event. A shooting has been determined to be a startling or exciting event. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268 (2006).
Time is a crucial factor in making the determination as to whether or not the statement was in fact an excited utterance. When the
statement is made in conjunction with the startling event or within a brief period thereafter, said statements will qualify as
excited utterances. The fact that the statements are made in response to police questioning does not mean that it cannot be an
excited utterance. In Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 495-496 (2009), the Court determined that statements
made in response to police questioning could in fact be excited utterances.
The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed
on appeal only upon a showing that the trial court committed an abuse of discretion. Commonwealth v. Malloy, 579
Pa. 425, 856 A.2d 767, 775 (2004); Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550 (2002). “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.” Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136 (2007) (citation omitted). Having set
forth the applicable standards of review, we will now address Appellant’s various complaints with respect to the
admission of this evidence.
First we consider Appellant’s argument regarding Marlee’s statements to her mother. Appellant complains that
Ms. Goodeliunas’s testimony concerning incidents she did not witness but which Marlee described to her constituted
inadmissible hearsay and thus was inadmissible. Appellant’s claim lacks merit because it is clear that Marlee’s
comments to her mother concerning the causes of her injuries were properly admitted under the “excited utterance”
exception to the hearsay rule. Pa.R.E. 803(2). A statement made under the following circumstances is considered an
excited utterance:
[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion
caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed,
and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so
near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from
his reflective faculties…. Thus, it must be shown first, that [the declarant] had witnessed an event sufficiently
startling and so close in point of time as to render her reflective *113 thought processes inoperable and, second, that
her declarations were a spontaneous reaction to that startling event.
Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704, 712 (1992) (quoting Commonwealth v. Green, 487 Pa. 322, 409 A.2d
371, 373–74 (1979))
This Court has determined that a hearsay remark is admissible under the excited utterance exception even if it was the
product of questioning. See Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576, 580 (1973); Commonwealth v. Edwards,
431 Pa. 44, 244 A.2d 683, 685 (1968). Moreover, in determining whether a remark fits within this exception, a court must
pa g e 2 0 2
volume 164
no. 15
conduct a fact-specific inquiry and ascertain whether the remark was sufficiently contemporaneous to the startling event
to be considered spontaneous. Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 95–96 (2004). See also
Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, 1159 (1982), cert. denied, Penn v. Pennsylvania, 456 U.S. 980, 102
S.Ct. 2251, 72 L.Ed.2d 857 (1982) (holding that child’s statement was admissible under excited utterance exception even
though statement was not made immediately after incident and was the product of questioning).
Thompkins’ statements made to the police as to the identity of the individual who shot him were excited utterances in light
of the fact that they were made moments after he was shot. One of the shots rendered him a paraplegic and another shot that
was fired after he was on the ground was intended to kill him. It is obvious that these were startling events and that even though
statements were made in response to police questions, they were in fact excited utterances.
In an attempt to bootstrap his argument that Thompkins’ statements were not excited utterances, Drain maintains that since
Thompkins provided the police with a false name, that the remainder of his statements could not be reliable. Thompkins’ mother
testified that Thompkins often used the other name in his normal business affairs and it would not be unusual for him to refer to
himself as a different first name. Even excepting the fact that Thompkins did not provide his real name to the police, does not
diminish the facts that the statements made by Thompkins to the police were, in fact, excited utterances.
Drain next maintains that this Court erred when it denied his suppression motion with respect to the gun that was found in the
car that Drain was driving. Drain maintains that the police officer gave inconsistent testimony with respect to the location of the
gun and that their testimony about the owner of the car giving them consent to search the car was hearsay since the owner did not
testify at the time of trial. In reviewing the testimony in this matter, it is clear that all of the officers testified that they saw in plain
view a gun located in the front passenger foot well. The officers also testified that when they were approaching the vehicle, Drain
was attempting to get out of the car by coming out of the front passenger side. Since they were responding to a call about a shooting, they were on the alert to see if in fact Drain had any weapons. All of the officers testified as to the location of the firearm
although one officer did testify that the firearm was partially under the front passenger seat while the other officers testified that
it was totally visible on the floor. There was no need to suppress this weapon since the weapon was discovered by the police
officers in plain view, nor was there any need to obtain the consent of the owner of the vehicle to search for the weapon because
the weapon had already been discovered.
Drain next maintains that this Court erred when it did not sustain his objection of the introduction of numerous photographs of
the sores on Thompkins’ body as being unduly prejudicial, thereby outweighing their probative value. The standard for reviewing
the admission of photographs has been set forth in Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307, 327-328 (2008), wherein the
Supreme Court acknowledged that it was an abuse of discretion standard that one must consider the claim that photographic
evidence was improperly admitted.
We review a challenge to the trial court’s admission of photographs under the standard of abuse of discretion.
Commonwealth v. Solano, 588 Pa. 716, 906 A.2d 1180, 1191 (2006), cert. denied, --- U.S. ----, 127 S.Ct. 2247, 167 L.Ed.2d
1096 (2007). When considering the admissibility of photographs of a homicide victim, which by their very nature can be
unpleasant, disturbing, and even brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if it has
relevance and can assist the jury’s understanding of the facts. 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.
Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 531 (2003) (citation omitted).
As we have repeatedly recognized, photographic images of a homicide victim are often relevant to the intent element
of the crime of first-degree murder. Solano, supra at 1191; Tharp, supra at 531. Indeed, in some cases, the condition of
the victim’s body may be the only evidence of the defendant’s intent. Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d
547, 550 (1982). In McCutchen, we affirmed a trial court’s admission of photographs of a murder victim that illustrated
the brutality of the beating and sexual assault he sustained, in order to allow an inference of the defendant’s intent to
kill. We stated that the depiction of the victim’s deep and gaping injuries “was essential as evidence of intent beyond
mere infliction of bodily injury.” Id. at 549. As made clear in McCutchen, we will not sanction a sanitizing of the
evidence that deprives the Commonwealth of the opportunity to prove intent to kill beyond a reasonable doubt. See id.;
Tharp, supra at 531.
[25] [26] The fact that a medical examiner or other comparable expert witness has conveyed to the jury, in appropriate
clinical language, the nature of the victim’s injuries and the cause of death does not render photographic evidence
merely duplicative. See McCutchen, supra at 550. The meaning of words, particularly the clinical words employed by
a pathologist, can be properly and usefully illustrated and explained to a lay jury via photographic images. In determining the intent of the defendant in a criminal homicide case, the fact-finder “must be aided to every extent possible.” Id. at 549.
Although the possibility of inflaming the passions of the jury is not to be lightly dismissed, a trial judge can minimize
this danger with an appropriate instruction, warning the jury members not to be swayed emotionally by the disturbing
images, but to view them only for their evidentiary value. Solano, supra at 1192; McCutchen, supra at 548 n. 4.
The unique facts of this case mandated that the jury understand the mechanism and cause of death since the shooting occurred
in 1999 and Thompkins’ death did not occur until more than ten years later. Dr. Shakir, who performed the autopsy, detailed the
manner and cause of death and explained to the jury how Thompkins’ paralysis caused him to suffer other injuries such as the
bedsores, which ultimately led to the sepsis that caused the diseases of his other organs that ultimately resulted in his death. The
photographs, prior to being admitted, were subject to a cautionary instruction in which this Court advised the jury that they were
given to them for the purpose of having them understand the mechanics of Thompkins’ death. There is little if anything
prejudicial about these photographs since they demonstrated only that Thompkins suffered from bedsores as a result of the fact
that he was a paraplegic.
Drain’s next two claims of error are that the evidence was insufficient to sustain the verdicts rendered in this case and that the
j u ly 2 2 , 2 0 1 6
pa g e 2 0 3
verdicts were against the weight of the evidence. In Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000), the
Pennsylvania Supreme Court set forth the standards to be employed when reviewing these two claims:
Appellant’s remaining claim of error is that the Superior Court misstated the standard of review for a weight of the
evidence claim. The standard of review refers to how the reviewing court examines the question presented. Morrison, 646
A.2d at 570. Appellant asserts that the Superior Court improperly interjected sufficiency of the evidence principles into
its analysis and thus adjudicated the trial court’s exercise of discretion by an incorrect measure.
In order to address this claim we find it necessary to delineate the distinctions between a claim challenging the
sufficiency of the evidence and a claim that challenges the weight of the evidence. The distinction between these two
challenges is critical. A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the
double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the
Pennsylvania Constitution, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Commonwealth v. Vogel,
501 Pa. 314, 461 A.2d 604 (1983), whereas a claim challenging the weight of the evidence if granted would permit a
second trial. Id.
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993). Where the evidence
offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws
of nature, then the evidence is insufficient as a matter of law. Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975).
When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630 (1991).
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict. Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Thus,
the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. Tibbs, 457 U.S.
at 38 n. 11, 102 S.Ct. 2211.FN3 An allegation that the verdict is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994). A new trial should not be
granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a
different conclusion. Thompson, supra. A trial judge must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to
determine that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.” Id.
FN3. In Tibbs, the United States Supreme Court found the following explanation of the critical distinction between a
weight and sufficiency review noteworthy:
When a motion for new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues
are far different.... The [trial] court need not view the evidence in the light most favorable to the verdict; it may weigh
the evidence and in so doing evaluate for itself the credibility of the witnesses. If the court concludes that, despite the
abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the
verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and
submit the issues for determination by another jury.
Tibbs 457 U.S. at 38 n. 11, 102 S.Ct. 2211 quoting United States v. Lincoln, 630 F.2d 1313 (Cir. 8th 1980).
In examining the evidence in the light most favorable to the Commonwealth, and all of the reasonable inferences drawn there
from, it is clear that the evidence was more than sufficient to establish Drain’s guilt for the shooting and ultimately the death
of Thompkins. The police arrived on the scene of the shooting moments after it occurred and heard Thompkins identify the
individual who shot him as someone who he knew as Banger and also was known to him by the name of Mohammed. Thompkins
gave the police a physical description of the individual who shot him and also maintained that he was wearing dark clothing and
that he drove away from the scene in a late model, white Chevrolet and he was headed towards Wilkinsburg. The police observed
this late model, white Chevrolet as it approached the boxing gym in Wilkinsburg and saw a driver bring the car to stop and attempt
to get out of the car, exiting from the front passenger seat. On the floor well on the passenger side of the car was the firearm that
was used in the shooting of Thompkins. Drain was dressed in dark clothing and the police also found a dark coat laying across the
back seat. The Commonwealth was not required to present fingerprint evidence or DNA evidence since the evidence that it did
present, that being the identification of the shooter by the victim, was more than sufficient if believed by the jury, to establish all
of the elements of the offenses charged.
With respect to the claim that the verdict was against the weight of the evidence, Drain acknowledged that the evidence is
sufficient to sustain the verdicts but requires that the Trial Court review the evidence to determine that, notwithstanding all of the
facts in the case, that certain facts are clearly of a greater weight and that to ignore them and give them equal weight with the
other facts would be to deny justice and shock one’s conscience. In employing this standard, it is clear that there are no facts that
are so important that require one to reverse Drain’s convictions and grant him a new trial. The evidence presented by the
Commonwealth as noted previously, was more than sufficient to establish Drain’s guilt and the fact that there is no evidence that
Drain knew the victim or had a motive is irrelevant. As noted in the charge, motive is not an element of any of the offenses that
Drain had been charged. The Commonwealth was required to prove that Drain was the individual who shot and ultimately killed
Thompkins and Drain has acknowledged that the Commonwealth, in fact, presented such evidence to support his convictions.
Drain has failed to demonstrate that there were any facts that were of greater importance that would mandate a reversal of
his conviction. More importantly, this claim of error was waived when Drain did not raise it in post-sentence motions. In
Commonwealth v. Walsh, 2012 PA Super 9, 36 A.3d 613, 622 (2012), the Court noted the mandatory requirement of Pa.R.
Crim.P. 607:
pa g e 2 0 4
volume 164
no. 15
We turn to Appellant’s final claim of error, that the verdict is against the weight of the evidence. We find this claim
waived because Appellant failed to raise it properly at the conclusion of trial or in a post-sentence motion.
This Court has held that “a determination of criminal contempt is a criminal conviction, conferring on the contemnor all
the negative characteristics of being a convicted criminal.” Diamond v. Diamond, 715 A.2d 1190, 1195 (Pa.Super.1998).
Such determinations are immediately appealable under both Pa.R.A.P. 313, if the determination is made prior to the
resolution of the underlying action, or, under Pa.R.A.P. 341, where, as here, the criminal contempt verdict is issued
contemporaneously with the PFA court’s final order. See id. Thus, the Rules of Criminal Procedure governing post-trial
practice are applicable here. Under Pa.R.Crim.P. 607(a), a claim that the verdict was against the weight of the evidence
must be raised with the trial judge in a motion for a new trial: 1) orally, on the record, at any time before sentencing;
2) by written motion at any time before sentencing; 3) or in a post-sentence motion. See Pa.R.Crim.P. 607(a). Appellant
did not raise a weight claim at the conclusion of trial or in his post-sentence motion. On March 2, 2011, Appellant filed
a motion for a new trial which addressed only the issue of Craft’s subpoena. The motion did not raise a weight of the
evidence claim. As such, his claim is waived. Commonwealth v. Priest, 18 A.3d 1235 (Pa.Super.2011) (concluding that
appellant’s claim that the verdict was against the weight of the evidence was waived because it was not presented to
the trial court in a post-sentence motion).
The final issue presently raised by Drain has nothing to do with this case. Drain has suggested that there was prosecutorial
misconduct in this case in that the District Attorney lied to the Court about discovery issues, including the failure to preserve
exculpatory information including computers and hard drives recovered from the victim’s husband’s home and office containing
information about David Groot’s internet girlfriend and printouts of the phone records of Todd Porterfield. A review of the record
shows that there was no evidence presented with respect to computers, there were no individuals by the names of Groot or
Porterfield who were part of this particular proceeding. It is obvious that this claim of error is unrelated to Drain’s case and,
accordingly, has no merit.
BY THE COURT:
/s/Cashman, A.J.
Dated: January 25, 2016
1
(C) After-Discovered Evidence. A post-sentence motion for a new trial on the ground of after-discovered evidence must be filed
in writing promptly after such discovery.
Commonwealth of Pennsylvania v.
Leon Walls
Criminal Appeal—Sufficiency—Weight of the Evidence—Homicide (Attempted)—Aggravated Assault—Insanity—
Guilty but Mentally Ill—Competing Experts
Schizophrenic defendant is found to be guilty but mentally ill on some charges, and insane on others that occurred on same day.
No. CC 201407810. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
McDaniel, J.—January 20, 2016.
OPINION
The Defendant has appealed from the judgment of sentence entered on August 13, 2015. However, a review of the record reveals
that the Defendant has failed to present any meritorious issues on appeal and, therefore, the judgment of sentence should be
affirmed.
The Defendant was charged with numerous offenses1 in relation to an incident that occurred at the Target store in the East
Liberty section of the City of Pittsburgh. Following a jury trial held before this Court from June 2-4, 2015, the Defendant was found
Guilty but Mentally Ill of some charges, Not Guilty by Reason of Insanity of some charges and Not Guilty of some charges, as
detailed in Appendix 1. He then appeared before this Court on August 4, 2015 for a Motion for Court-Ordered Involuntary
Treatment, and later on August 13, 2015 for sentencing. At that hearing, the Defendant was sentenced to two (2) concurrent terms
of imprisonment of 10 to 20 years. Timely Post-Sentence Motions were filed and were denied on August 27, 2015. This timely
appeal followed.
On appeal, the Defendant raises a number of claims related to the Guilty but Mentally Ill verdicts and resulting sentencing.
After careful review, all of his claims are meritless.
Briefly, the evidence presented at trial established that at approximately 5:30 p.m. on March 25, 2013, Jobe Wright, Mike
Turner, Roland Smith and Tyrique Walker were standing on Highland Avenue near the intersection of East Liberty Boulevard
when the Defendant approached the men. He went up to Jobe Wright, yelled “he robbed me,” stabbed Wright in the arm and ran
away. Roland Smith and Tyrique Walker chased the Defendant on foot, wile Michael Turner and Jobe Wright followed by car.
Roland Smith followed the Defendant into Target and then ran back out to get the others. Michael Turner and Jobe Wright also ran
into Target, and Wright chased the Defendant through the store with a baseball bat. At that point, the Defendant grabbed 16-yearold Allison Meadows around the neck, who had been standing in the checkout line with her mother and her nephew’s mother,
Chelsey Stokes, and held her at knifepoint. The Defendant screamed “I’m going to stab her” repeatedly and wouldn’t let her go.
Eventually, a man identified as Josea Davis jumped over a cash register onto the Defendant’s back. The Defendant then stabbed
Allison twice, once in her back and once in her arm. A struggle ensued with all the Smith, Turner and Wright jumping on the
Defendant. Chelsey managed to pull Allison away from the Defendant and the men restrained the Defendant until the police
arrived. Allison was transported to Children’s Hospital, where she underwent emergency surgery to repair a punctured lung and
to reconstruct the muscle in her arm, which had been sliced to the bone.
j u ly 2 2 , 2 0 1 6
pa g e 2 0 5
1. Sufficiency of the Evidence to Sustain Guilty but Mentally Ill Verdict
Initially, the Defendant argues that the evidence was insufficient to sustain the verdicts of guilty but mentally ill because
“the Commonwealth failed to prove Mr. Walls possessed the required intent to commit any crime, as he suffered from severe
mental illness and associated delusions at the time of the stabbing.” This claim is meritless.
The finding of “guilty but mentally ill” is controlled by Section 314 of our Crimes Code which states, in relevant part:
§314. Guilty but mentally ill
(a). General rule. - A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure
may be found “guilty but mentally ill” at trial if the trier of finds, beyond a reasonable doubt, that the person is guilty
of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of
the commission of the offense.
(c). Definitions. - For the purposes of this section and 42 Pa.C.S. §9727 (relating to disposition of persons found guilty
but mentally ill):
(1). “Mentally ill.” One who as a result of mental disease or defect, lacks substantial capacity either to appreciate
the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
(2). “Legal insanity.” At the time for he commission of the act, the defendant was laboring under such a defect
of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it,
that he did not know what he was doing was wrong.
(d). Common law M’Naghten’s Rule preserved. - Nothing in this section shall be deemed to repeal or otherwise
abrogate the common law defense of insanity (M’Naghten’s Rule) in effect in this Commonwealth on the effective
date of this section.
18 Pa.C.S.A. §314.
A careful reading of this issue seems to indicate that Defendant has incorrectly placed the burden of proof regarding the
Defendant’s mental illness on the Commonwealth. The Defendant appears to be likening the insanity defense to a suppression
motion, wherein the Commonwealth bears the burden of establishing that the evidence was obtained legally. Rather, once a
defendant has raised an insanity defense, he has the burden to establish his mental illness by a preponderance of the evidence;
the burden does not shift to the Commonwealth to prove that the defendant is not mentally ill. As our Supreme Court has held,
“the burden is upon the defendant to prove by a preponderance of the evidence that at the time of the commission of the offense,
he was laboring under such a defect of reason from a disease of the mind, as not to know the nature and quality of the act, or
the alternative that he did not know what he was doing wrong. Commonwealth v. Sohmer, 546 A.2d 601, 604 (Pa. 1988). The
“guilty but mentally ill convictions do not extinguish the requisite mens rea to impose criminal liability.” Commonwealth v.
Rabold, 920 A.2d 857 (Pa.Super. 2007). The evidence presented by the Commonwealth was sufficient to establish the Defendant’s
commission of the crimes and the Defendant bore no burden to establish the Defendant’s sanity at the time of commission. This
claim must fail.
2. Weight of the Evidence re: Guilty but Mentally Ill Verdicts
Next, the Defendant argues that the verdicts of Guilty but Mentally Ill were against the weight of the evidence. Again, this claim
is meritless.
It is well-established that the “scope of review for [a weight of the evidence] claim is very narrow. The determination of whether
to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and [the
appellate court] will not disturb that decision absent an abuse of discretion. Where issues of credibility and weight are concerned,
it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight
to be accorded conflicting evidence is exclusively for the fact-finder, whose findings will not be disturbed on appeal if they are
supported by the record. A claim that the evidence presented at trial was contradictory and unable to support the verdict requires
the grant of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice.” Commonwealth v.
Knox, 50 A.3d 732, 737-8 (Pa.Super. 2012).
Moreover, “when the challenge to the weight of the evidence is predicated on the credibility of trial testimony, [appellate]
review of the trial court’s decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to
make any verdict based thereon pure conjecture, those types of claims are not cognizable on appellate review.” Commonwealth v.
Bowen, 55 A.3d 1254, 1262 (Pa.Super. 2012).
“Where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question
of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.” Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012). “A motion for
new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain
the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Moreno, 14 A.3d
133, 136 (Pa.Super. 2011).
As noted above, at trial, the Defendant presented the expert testimony of forensic psychiatrist Dr. Abhishek Jain. Dr. Jain
testified that he interviewed the Defendant on two (2) occasions and reviewed his medical records from this pretrial confinement
as well as another incarceration in New Jersey from December 2007 through May, 2008 and the surveillance video from Target.
He diagnosed the Defendant with schizophrenia with borderline intellectual functioning and a history of substance abuse. (Trial
Transcript, p. 181).
In his testimony, Dr. Jain distinguished the stabbing of Mr. Wright on the street from the stabbing of Allison Meadows in the
Target store and opined on his mental state at the different points in time:
Q. (Mr. Capone): Doctor, you mentioned a lot, but I was to come back and break it down just a little bit. Why - in your
opinion why did Mr. Walls stab Jobe - or what was his mental state, what was he thinking when he stabbed Mr. Jobe
Wright?
pa g e 2 0 6
volume 164
no. 15
A. (Dr. Jain): So the first stabbing, Mr. Wright, I don’t know exactly what he was thinking at that moment. He does not
remember it even happening, and it is not clear. We can’t read Mr. Walls’ mind exactly what was happening. However,
based on the amount of delusions, the amount of hallucinations, the amount of paranoia he had even before, and then
actually evidence afterwards that he is screaming, saying that he is being robbed, to me the act of stabbing Mr. Wright
in his mind was self-defense. He thought he was being harmed. He thought people were trying to attack him. So his
act of stabbing Mr. Wright was some form of self-defense.
Q. Okay. next Mr. Walls ran from a location outside of Target into Target.
A. Yes.
Q. Why, in your opinion, or what was he thinking at the time when he was running?
A. After he stabbed Mr. Wright - again I don’t know exactly what he was thinking. He doesn’t remember these events.
But based on his behavior, he stabbed Mr. Wright, again he is in a delusional mind throughout this whole time from
what we can tell from all the records. Then he runs away and he makes comments such as he is being robbed, he is
telling people to leave him alone and he is asking to have the police or cops called. So to me that was evidence that
he was trying to get out of harm’s way. He ran away from Mr. Wright because he thought he was being harmed.
Q. Next Mr. Walls is in the Target store and he’s coming out of the bathroom having changed clothes. Why did he do
that, in your opinion?
A. To me, the general time when he was in the Target store, after he stabbed Mr. Wright, ran away and ran to the
Target, he was behaving in a very self-protective type of manner, trying to run away from the three individuals or four
individuals who were chasing him, people who were trying to corner him now. Also - so he ran into the Target. There
was a mention he was trying to change his clothes at one point, then he ran up and down the aisles at another point
and then he grabbed Ms. Meadows, Ms. Allison Meadows, as a shield. So all these behaviors to me were consistent
with him acting in a self-protective manner while he was in Target. He was trying to get away from these individuals
who were chasing him. Now they are chasing him in reality, but the backdrop is he had a severe mental illness and
severe belief that he was also being harmed by people. So he had now people in actuality chasing him as well. So he
is acting in a self-protective manner to get away from them.
Q. So you are talking about delusionally acting in a self-protective manner. Do you have an opinion as to whether or
not Mr. Walls viewed what he was doing was wrong?
A. Within the context of his delusional belief that he was being harmed, it is my opinion that he most likely was acting in a manner that he did not think was wrong. He was acting in a manner that was more self-protective, that was
more self-defensive. So in his mind, in his delusional belief, he actually believed that he was trying to defend himself
and do the best for self-protection…
Q. Do you believe he knew what he was doing was wrong?
A. In my opinion, based on all of this information, it is my opinion with a reasonable degree of medical certainty that
he did not know what he was doing was wrong.
Q. What was the cause of his not knowing what he was doing was wrong? What is the reason you believe that?
A. The reason was that he was laboring under such a defective reason from a severe mental illness, schizophrenia,
that he was behaving based on the delusions and hallucinations and he was acting in a self-protective manner.
He did not know that what he was doing was wrong because he was laboring under such a severe illness of
his mind.
(T.T. p. 205-209).
In rebuttal, the Commonwealth presented the expert testimony of psychiatrist Dr. Bruce Wright. Dr. Wright agreed with
Dr. Jain’s diagnosis of schizophrenia, but opined that the Defendant lacked the substantial capacity to know what he was doing
was wrong:
Q. (Mr. Robinowitz): And after reviewing all of the materials and speaking to Leon Walls, did you come to any
conclusions as to whether he suffered from any type of mental illness?
A. (Dr. Wright): It is my opinion he does suffer from a very severe mental illness. My diagnosis was schizophrenia,
similar to the diagnosis that Dr. Jain gave him. That was my primary diagnosis. There were other diagnoses as well,
including substance abuse disorders.
Q. Were you able to - let me back up. Can you explain to the jury what the elements of the insanity defense are, the
two parts to it?
A. Well, there’s really three parts. First, you have to have a severe psychiatric illness, a disease of the mind, that
affects your ability to reason. Then the two prongs are because of that psychiatric illness you either don’t know what
you are doing, do not know what you are doing, or you do not know what you are doing is wrong. So because of the
psychiatric illness you don’t know what you are doing or you don’t know it is wrong.
Q. And did you reach any conclusions as to whether [the] defendant knew what he was doing on March 25, 2013?
A. It is my opinion that he knew what he was doing at the time of the offense. That opinion was shared by Dr. Jain.
We agree in that respect that he knew the nature and quality of his acts at the time.
Q. And what about the second part of it, the alternative, whether or not he knew his actions were wrong? Were you
able to reach any conclusions on that?
j u ly 2 2 , 2 0 1 6
pa g e 2 0 7
A. I was not - I am not able to say with a reasonable degree of certainty that he knew his actions were wrong.
It is my opinion that he lacked substantial capacity to understand the wrongfulness of his actions and to
conform his behavior to the requirements of the law. So lacking substantial capacity is very different than knowing
what you are doing is wrong. Knowing is absolute. You either know or you don’t know what you are doing. It is
my opinion because of the psychiatric illness he lacked substantial capacity to know that what he was doing
was wrong.
(T.T. p. 259-261).
Our Superior Court previously addressed this issue in Commonwealth v. Rabold, 920 A.2d 857 (Pa.Super. 2007). In Rabold, the
defendant was found Guilty but Mentally Ill on charges of Attempted Homicide, Aggravated Assault and Possession of an
Instrument of Crime. The defendant’s expert testified that he “did not appreciate that what he was doing was wrong at the time
due to mental illness” and, as such “was legally insane at the time of the attack.” Commonwealth v. Rabold, 920 A.2d 857, 860
(Pa.Super, 2007). In rebuttal, the Commonwealth presented the testimony of a psychiatrist who opined that the defendant did
suffer from a psychotic disorder but that at the time of the attacks, he “lacked substantial capacity to conform his conduct to the
requirements of the law.” Id. The Superior Court found that “the jury was free to resolve the conflict in the expert testimony in the
Commonwealth’s favor” and held that in such a situation the verdict of guilty but mentally ill is not against the weight of the
evidence. Id. at 860, 861.
Clearly, this case presents the “battle of the experts” scenario identical to that which occurred in the Rabold case. Here,
Dr. Jain testified that the Defendant did not know what he was doing was wrong - the legal definition of insanity - and Dr. Wright
testified that the Defendant lacked the substantial capacity to know what he was doing was wrong - the legal definition of mentally
ill. The jury weighed the testimony of both experts and determined that the Defendant was appropriately classified as “guilty but
mentally ill” for his actions inside the Target store. This conclusion was supported by the expert testimony. That the Defendant
and his counsel are unhappy with the jury’s verdict is not a sufficient basis for a finding that the verdicts were against the weight
of the evidence. The jury was well within its discretion in crediting the testimony of Dr. Wright in this regard and the verdict was
not shocking to the conscience in this regard. This claim must fail.
3. Constitutionality of Sentencing
Next, the Defendant avers both that 42 Pa.C.S.A. §9727 is unconstitutional, as is the imposition of mandatory minimum
sentences due to the “guilty but mentally ill” verdicts. He avers that in this situation, incarceration constitutes “cruel and unusual
punishment.” This claim is meritless.
Sentencing of defendants found guilty but mentally ill is controlled by 42 Pa.C.S.A. §9727 which states, in relevant part:
§9727. Disposition of persons found guilty but mentally ill
(a). Imposition of sentence. - A defendant found guilty but mentally ill or whose plea of guilty but mentally ill is accepted
under the provisions of 18 Pa.C.S. §313 (relating to guilty but mentally ill) may have any sentence imposed on him which
may lawfully be imposed on any defendant convicted of the same offense. Before imposing sentence, the court shall hear
testimony and make a finding on the issue of whether the defendant at the time of sentencing is severely mentally
disabled and in need of treatment pursuant to the provisions of the act of July 9, 1976 (P.L. 817, No. 143), known as the
“Mental Health Procedures Act.”
(b). Treatment. (1). And offender who is severely mentally disabled and in need of treatment at the time of sentencing shall, consistent with available resources, be provided such treatment as is psychiatrically or psychologically indicated for his
mental illness. Treatment may be provided by the Bureau of Correction, by the county or by the Department of Public
Welfare in accordance with the “Mental Health Procedures Act.”
42 Pa.C.S.A. §9727.
In interpreting Section 9727, our courts have repeatedly held that “a defendant found to be guilty but mentally ill is entitled to
no reduction in sentence.” Commonwealth v. Santiago, 855 A.2d 682, 701 (Pa. 2004). See also Commonwealth v. Michael, 507 A.2d
1263, 1265 (Pa.Super. 1986). Insofar as mandatory minimum sentences have been upheld repeatedly, this Court acted appropriately
in imposing them. This aspect of the Defendant’s claim must fail.
As to the Defendant’s claim that Section 9727 itself is unconstitutional and his sentence amounts to cruel and unusual punishment, reference is made to Commonwealth v. Yasipour, 957 A.2d 734 (Pa.Super. 2008). In Yasipour, the defendant was found guilty
but mentally ill of third-degree murder and other charges. He was sentenced to a term of imprisonment of 20 to 40 years and
subsequently appealed that sentence, claiming that it was unconstitutional for a mentally ill defendant to be subject to the same
criminal liability as a defendant who is not mentally ill. Our Superior Court engaged in an extensive review of the constitutionality
of the sentencing scheme and the function of judicial review in the legislative process as well as cases form other jurisdictions and
concluded that the defendant’s “claim that the imposition of his sentence, following his conviction of guilty but mentally ill, exposes
him to cruel and unusual punishment lacks merit.” Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa.Super. 2008). Insofar as our
courts have already determined that the imposition of sentence upon a criminal defendant found guilty but mentally ill does not
constitute cruel and unusual punishment, this claim must fail.
Accordingly, for the above reasons of fact and law, the judgment of sentence entered on August 13, 2015 must be affirmed.
BY THE COURT:
/s/McDaniel, J.
Date: January 20, 2016
1
Due to the numerous charges, this Court has created a chart showing the charges, their disposition and resulting sentence, which
it has attached to this Opinion as Appendix 1.
pa g e 2 0 8
volume 164
no. 15
APPENDIX 1
Crime
Victim
Criminal Attempt
Allison Meadows
Section
(18 Pa.C.S.A.)
901(a)
Disposition
Sentence
Guilty but Mentally Ill
10-20 years
Criminal Attempt
Jobe Wright
901(a)
Not Guilty by
Reason of Insanity
n/a
Criminal Attempt
Tyrique Walker
901(a)
Not Guilty
n/a
Aggravated Assault
- Serious Bodily Injury
Allison Meadows
2702(a)(1)
Guilty but Mentally Ill
NFP
Aggravated Assault
- Serious Bodily Injury
Jobe Wright
2702(a)(1)
Guilty but Mentally Ill
10-20 years
concurrent
Aggravated Assault
- Serious Bodily Injury
Tyrique Walker
2702(a)(1)
Not Guilty
n/a
Aggravated Assault
- Serious Bodily Injury
Michael Turner
2702(a)(1)
Not Guilty
n/a
Aggravated Assault
- Serious Bodily Injury
Roland Smith
2702(a)(1)
Not Guilty
n/a
Unlawful Restraint
Allison Meadows
902(a)
Guilty but Mentally Ill
NFP
False Imprisonment
Allison Meadows
903(a)
Guilty but Mentally Ill
NFP
Terroristic Threats
Allison Meadows
2706(a)(1)
Guilty but Mentally Ill
NFP
Terroristic Threats
Michael Turner
2706(a)(1)
Guilty but Mentally Ill
NFP
907(a)
Guilty but Mentally Ill
NFP
Possession of an
Instrument of Crime
with Criminal Intent
Recklessly Endangering
Another Person
Allison Meadows
2705
Guilty but Mentally Ill
NFP
Recklessly Endangering
Another Person
Jobe Wright
2705
Not Guilty by
Reason of Insanity
n/a
Recklessly Endangering
Another Person
Roland Smith
2705
Not Guilty
n/a
Recklessly Endangering
Another Person
Tyrique Walker
2705
Not Guilty
n/a
Simple Assault
Hosea Davis
2701(a)(1)
Motion for Judgment of
Acquittal Granted
n/a
5104
Not Guilty
Resisting Arrest