J-A01028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE R. SMITH,                            :
                                               :
                       Appellant               :   No. 3266 EDA 2018

           Appeal from the Judgment of Sentence Entered May 7, 2018
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0001819-2016


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 04, 2020

        Andre R. Smith (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of first-degree murder and possessing an

instrument of crime.1 Upon review, we affirm.

        The trial court recounted the evidence presented at trial as follows:

                The operative facts of the matter involve [Appellant]
        stabbing his former friend Grayling Chambliss in the chest and
        abdomen five (5) times with a butcher knife, procured from his
        girlfriend’s kitchen before he answered the front door, shortly
        after midnight on May 11, 2016, such that the knife penetrated
        the victim’s lung, heart, and aorta, reaching at one point to the
        victim’s vertebrae, and also tore out the victim’s small intestine,
        which caused the victim’s small intestine to protrude from his
        abdominal cavity. (Trial Transcript, 2/26/18, 55-56, 72-78, 94,
        110, 132, 208-09; Trial Transcript, 2/27/18, N.T. 253, 259-60,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2502(a) and 907(a).
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     276-77, 289, 307, 309, 311, 329-30; Trial Transcript, 2/28/18,
     N.T. 638, 646, 649, 655-56; Trial Transcript, 3/1/18, N.T, 837;
     2/26/18, Ex. C-5A; 2/27 /18, Ex. C-1 OR; 2/28/18, Ex. C-69).
     The victim died within minutes. (Trial Transcript, 2/28/18, N.T.
     651).

           The murder occurred while [Appellant] was experiencing the
     psychotropic effects of his voluntary ingestion of “wet”, i.e., PCP-
     laced marijuana, most likely earlier in the evening while he was at
     a bar drinking with his cousin. (Trial Transcript, 2/26/18, N.T. 64-
     66, 135-37; Trial Transcript, 2/27/18, N.T. 256-57, 266-71, 281,
     284-85, 303, 421, 429-30, 435-36, 438-51; Trial Transcript,
     2/28/18, N.T. 480; Trial Transcript, 3/1/18, N.T. 831).
     Immediately after stabbing Mr. Chambliss, [Appellant] ran into
     the bathroom of his girlfriend’s home, removed all of his own
     bloody clothes, ripped the toilet/toilet tank from the wall/floor,
     and jumped naked out of a second story window onto the
     pavement below, fracturing his own heel and ankle and sustaining
     various abrasions to his body in the process. (Trial Transcript,
     2/26/18, N.T. 57, 65-66, 95-96, 122, 159; Trial Transcript,
     2/27/18, N.T. 261-62, 380, 385-86, 389; Trial Transcript,
     2/28/18, N.T. 494-500, 615-16, 620, 622-24; Trial Transcript,
     3/1/18, N.T. 840-42; 2/27/18, Ex. C-10Q). In a police interview
     conducted a couple hours later at the hospital, which was played
     for the jury, [Appellant] told one Detective Raech, “So I know the
     only rea- and the only way for me to kill this man and like to stop
     him from fightin’ me I gotta stab him in his heart.” (2/28/18, Exs.
     C-43, C-43A at 26, C-43B at 17).

           [Appellant], who testified on his own behalf at trial,
     advanced the theory that due to his mental illness and voluntary
     intoxication on the night of the murder, he was unable to form the
     specific intent to kill and he claimed he acted in self-defense, on
     the basis that he was allegedly afraid of Mr. Chambliss, who,
     according to the defense, had a twenty-year old conviction for
     Simple Assault, two (2) arrests for Rape, and was known to
     [Appellant] to carry a gun. (Trial Transcript, 2/26/18, N.T. 50-
     51; Trial Transcript, 3/1/18, N.T. 828, 833-37, 871; Trial
     Transcript, 3/2/18, N.T. 917-919, 921, 947). The defense alleged
     that Mr. Chambliss had been calling [Appellant] repeatedly on his
     cell phone that evening and trying to contact him in person by
     knocking on [Appellant’s] girlfriend’s door, interrupting the
     [Appellant’s] family and prayer time, and was trying to forcibly
     enter [Appellant’s] girlfriend’s home, where [Appellant] was

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      staying, after being warned to go away. (Trial Transcript, 3/1/18,
      N. T. 833-37).       Mr. Chambliss’s persistence in contacting
      [Appellant] may have been occasioned by a drug debt that Mr.
      Chambliss wished to reimburse to [Appellant], who had previously
      supplied Mr. Chambliss with controlled substances.           (Trial
      Transcript, 3/1 /1 8, N.T. 827, 836-37).

            Despite his attorneys’ attempt to persuade the jury that
      [Appellant] could not have formed the specific intent to kill Mr.
      Chambliss due to his mental illness and voluntary drug
      intoxication, [Appellant] testified, notwithstanding the toxicology
      report, that he had not smoked PCP on the day of the murder and
      that he was not high on the drug at the time he committed the
      offense. (Trial Transcript, 3/1/18, N.T. 844, 849).

Trial Court Opinion, 3/27/19, at 2-3.

      After a six-day trial, the jury rendered guilty verdicts on March 2, 2018.

On May 7, 2018, the trial court sentenced Appellant to life imprisonment.

Appellant filed a timely post-sentence motion on May 16, 2018, which the trial

court denied on October 9, 2018. Appellant filed this timely appeal. Both the

trial court and Appellant have complied with Pennsylvania Rule of Appellate

Procedure 1925.

      Appellant presents four issues for our review:

      I. Was the finding of guilt on the charge of Murder of the First
      Degree pursuant to 18 Pa.C.S.A. §2502 (a) against the weight of
      the evidence?

      II. Did the trial court err in its November 3, 2017 order directing
      the defense, in the event defense expert, Dr. Gerald Cooke,
      testified, to disclose the raw data relied upon in making his expert
      report as well as Appellant’s responses to these tests?

      III. Did the trial court err in failing to sanction the Commonwealth,
      as requested by the defense, for disclosing an EMT report after
      the parties had picked a jury?

      IV. Did the trial court err in allowing video footage obtained from

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       police officer body cameras which depicted the decedent’s body?

Appellant’s Brief at 5.

       In his first issue, Appellant assails the weight of the evidence, arguing

that he was incapable of forming the specific intent to kill because the evidence

from the Commonwealth’s expert, Dr. Richard Cohn, established that

Appellant’s cognitive faculties were “significantly and measurably impaired”

by his consumption of PCP and marijuana. See Appellant’s Brief at 19-31.2

       Our Supreme Court recently summarized:

              To convict a defendant of first-degree murder, the
       Commonwealth must prove beyond a reasonable doubt that the
       defendant unlawfully killed another human being, the defendant
       acted with the specific intent to kill, and the killing was willful,
       deliberate, and premeditated. The specific intent to kill may be
       inferred from the defendant’s use of a weapon on a vital part of
       the victim’s body. . . Furthermore, the Commonwealth may
       sustain its burden by wholly circumstantial evidence and the jury
       is free to believe all, part, or none of the evidence.

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019) (citations omitted).

       Here, Appellant recites a litany of the evidence to support his contention

that the trial court improperly denied his motion for a new trial.             See

Appellant’s Brief at 21-30. Upon review, we disagree.

       We recognize:

       A motion for a new trial based on a claim that the verdict is against
       the weight of the evidence is addressed to the discretion of the
       trial court. Widmer, 744 A.2d at 751–52; [Commonwealth v.
____________________________________________


2 While the Commonwealth argues that Appellant’s claim as it pertains to his
intent is one of sufficiency and not weight—and is thus waived—we address
the weight claim given Appellant’s focus on the testimony and weight afforded
the testimony by the jury. See Appellant’s Brief at 21-30.

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J-A01028-20


     Brown, 648 A.2d 1177, 1189 (Pa.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. Widmer, 744 A.2d at 752. 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. at 320, 744 A.2d at 752 (citation omitted). It has often been
     stated that “a new trial should be awarded when the jury’s verdict
     is so contrary to the evidence as to shock one’s sense of justice
     and the award of a new trial is imperative so that right may be
     given another opportunity to prevail.” Brown, 648 A.2d at 1189.
     An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court:

             Appellate review of a weight claim is a review of the
             exercise of discretion, not of the underlying question
             of whether the verdict is against the weight of the
             evidence. Brown, 648 A.2d at 1189. Because the
             trial judge has had the opportunity to hear and see
             the evidence presented, an appellate court will give
             the gravest consideration to the findings and reasons
             advanced by the trial judge when reviewing a trial
             court’s determination that the verdict is against the
             weight of the evidence.             Commonwealth v.
             Farquharson, 354 A.2d 545 (Pa. 1976). One of the
             least assailable reasons for granting or denying a new
             trial is the lower court’s conviction that the verdict was
             or was not against the weight of the evidence and that
             a new trial should be granted in the interest of justice.

     Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

modified).

     In reviewing the trial court’s exercise of discretion in this case, we

discern no merit to Appellant’s argument. Citing both legal authority and the

record, the trial court provided a comprehensive explanation of why it denied


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J-A01028-20


relief. Most pertinently:

             There was, indisputably, plenty of evidence that [Appellant]
      ingested PCP-laced marijuana. Toxicologically significant amounts
      were found in his blood and Dr. Cohn did indeed opine that
      [Appellant], at the time of the murder, was laboring under the
      psychotropic effects of PCP and marijuana. However, the mere
      fact of intoxication is not a defense to First Degree Murder; rather,
      [Appellant] must prove that his cognitive abilities of deliberation
      and premeditation were so compromised by voluntary intoxication
      that he was unable to formulate the specific intent to kill.
      Commonwealth v. Bardo, 105 A.3d 678 (Pa. 2014) []. The
      mere evidence of the consumption of alcohol or drugs and an
      appearance of intoxication is not sufficient to support a conclusion
      that a defendant was overwhelmed or overpowered to the point
      of being incapable of forming the specific intent to kill. Obviously
      from [case law], it is apparent that one can still possess a specific
      intent to kill even if he or she is under the influence of an
      intoxicating substance; voluntary intoxication is not a per se
      defense, or mitigating factor, as the case may be, to First Degree
      Murder.

            In Commonwealth v. Cessna, the defendant shot his
      sleeping stepfather in the head while under the influence of LSD.
      Commonwealth v. Cessna, 537 A.2d 834 (Pa. Super. 1988).
      Despite the defendant’s recent use of LSD, the Superior Court
      determined that he still possessed the necessary faculties to be
      able to premeditate the deliberate death of his stepfather. Id. The
      Court noted that to negate the intent necessary for a conviction
      of Murder in the First Degree, a defendant must have been
      overwhelmed by a drug to the point of losing his faculties so as to
      be incapable of forming a specific intent to kill. [] The appellate
      Court stated that whether a defendant is so overpowered by the
      voluntary ingestion of an intoxicating substance is a question for
      the fact finder, who is free to believe any, all, or none of the
      testimony offered at trial. . . .


            In the matter sub judice, there is abundant evidence of
      record to support the jury’s conclusion that [Appellant] harbored
      a specific intent to kill Grayling Chambliss, notwithstanding his
      voluntary intoxication. First of all, in response to Mr. Chambliss’s
      persistent knocking on the front door of [Appellant’s] girlfriend’s
      home, [Appellant], who was in his night clothes and getting ready


                                      -6-
J-A01028-20


     for bed, came down the stairs and went to the kitchen to retrieve
     a butcher knife before answering the door.               This clearly
     demonstrates that [Appellant] was contemplating the use of
     deadly force and the likely result that Mr. Chambliss’s death might
     ensue therefrom. Premeditation does not require a significant
     passage of time. Secondly, [Appellant] stabbed Mr. Chambliss
     five (5) times, twice in Mr. Chambliss’s lung, once in his heart,
     once in the aorta, and once in the abdomen, ripping out Mr.
     Chambliss’s small intestine. [l]t is axiomatic that specific intent
     to kill may be inferred from the use of a deadly weapon on a vital
     part of the victim's body. More specifically, the use of a deadly
     weapon directed at a vital organ of another human being justifies
     a factual presumption that the actor intended death unless the
     testimony contains additional evidence that would demonstrate a
     contrary intent. The jury was lawfully able to infer, presume even,
     that by utilizing a butcher knife on vital parts of the victim’s body,
     [Appellant] did indeed harbor the specific intent to kill Mr.
     Chambliss. Further, when [Appellant] was interviewed by police
     at the hospital a few hours after this incident occurred, he told the
     officer, “So I know the only rea- and the only way for me to kill
     this man and like to stop him from fightin’ me I gotta stab him in
     his heart.” These words indicate that [Appellant] deliberately
     stabbed Mr. Chambliss in the chest to kill him.

            Certainly there is evidence that [Appellant] had been acting
     in an unusual manner prior to the murder. . . . However,
     immediately prior to the stabbing of Mr. Chambliss, [Appellant]
     was not in fact acting unusually. . . . [Appellant] went to a bar
     with his cousin, had a beer and played pool. Then he came home
     and ate dinner with his family. Subsequently, he decided that he
     wanted to pray [and t]here was testimony that he wept while he
     prayed that night. Subsequently, he appeared agitated because
     his prayers were repeatedly interrupted by Mr. Chambliss and he
     did at one point grab his girlfriend’s mother’s lamp and unplug it
     and then put it back down. However, [Appellant] did not threaten
     or take his agitation out on any person at that time but instead
     accompanied his girlfriend to their bedroom and got ready for bed,
     even to the point of lying down on the bed and watching the
     television show “Game of Thrones”. This is not bizarre behavior.
     It was only after committing murder, after stabbing Grayling
     Chambliss in numerous vital parts of his body with a deadly
     weapon, after he had developed and executed his plan to kill Mr.
     Chambliss, that [Appellant] began to exhibit truly bizarre
     behavior. . . . All of this occurred after [Appellant] killed Mr.

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      Chambliss, not before. Prior to killing Mr. Chambliss, [Appellant]
      enjoyed a nice evening with his family and even took time to pray
      because he was, in his own words, feeling “blessed”. Indeed, in
      his own testimony at trial, [Appellant] denied that he was high on
      PCP and marijuana at the time he committed this crime. Thus, a
      jury could reasonably have inferred that [Appellant’s] ingestion of
      PCP and marijuana did not so overwhelm his faculties, particularly
      as the evidence also described [Appellant] as a regular and
      longtime user of these substances, that he could not formulate
      the specific intent to kill.

      . . . [T]he weight of the evidence favors the jury’s conclusion that
      [Appellant] possessed the requisite mental faculties and
      sensibilities to formulate the specific intent to kill Mr. Chambliss
      and did indeed formulate and possess, as well as act upon, that
      intent.

Trial Court Opinion, 3/27/19, at 11-16 (citations to notes of testimony and

some case law omitted). Consistent with the foregoing, we find no merit in

Appellant’s first issue.

      In his next three issues, Appellant assails the trial court’s actions in (1)

directing the defense to disclose “raw data” relied upon by their mental health

expert, Dr. Cooke; (2) failing to sanction the Commonwealth “for disclosing

an EMT report after the parties had picked a jury”; and (3) allowing police

body camera footage depicting the decedent’s body. See Appellant’s Brief at

5.

      In response, the Commonwealth, inter alia, (1) cites Pennsylvania Rule

of Criminal Procedure 569 and Rule of Evidence 705 to support the disclosure

of the expert’s raw data; (2) states that it was unaware of and only received

the EMT report “during jury selection, but the jury had not been sworn,” after

which the trial court granted a curative continuance providing Appellant with

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three additional months to prepare for trial; and (3) argues that admission of

the video of the decedent’s body was not inflammatory where it “only showed

the victim’s wounds for a few seconds” with the purpose of showing the jury

where the murder occurred. See Commonwealth Brief at 8, 30-31, 45-48,

52-53.

      We review Appellant’s claims cognizant that “[a] trial court has broad

discretion to determine whether evidence is admissible,” and the court’s ruling

regarding the admission of evidence “will not be disturbed on appeal unless

that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.” Commonwealth

v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013).

      With respect to Appellant’s second issue, the record confirms that

Appellant had “plenty of time” to prepare for trial and “was not prejudiced” by

the court’s requirement that his expert, Dr. Cooke, disclose the data; further,

we agree with the trial court that “by placing his mental health in issue . . .

[Appellant] waived the psychotherapist-patient privilege.”         Trial Court

Opinion, 3/27/19, at 18, citing Commonwealth v. Santiago, 855 A.2d 682

(Pa. 2004) (defendant waived privilege by pursuing insanity defense). We

also agree with the Commonwealth that Appellant “fails to cite or offer any

support from the record that any of this information was actually used or how

it affected/prejudiced [Appellant].” Commonwealth Brief at 26.




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      In his third issue concerning the EMT report, Appellant emphasizes that

the trial court should have sanctioned the Commonwealth for providing the

report after jury selection. See Appellant’s Brief at 48. It is well-settled that

“[d]ecisions involving discovery matters are within the sound discretion of the

trial court and will not be overturned absent an abuse of that discretion.”

Commonwealth v. Smith, 955 A.2d 391, 394 (Pa. Super. 2008) (en banc).

Further, the trial court’s authority to sanction a party for a discovery violation

is derived from Pa.R.Crim.P. 573(E), which states:

      If at any time during the course of the proceedings it is brought
      to the attention of the court that a party has failed to comply with
      this rule[, which governs discovery matters,] the court may order
      such party to permit discovery or inspection, may grant a
      continuance, or may prohibit such party from introducing evidence
      not disclosed, other than testimony of the defendant, or it may
      enter such other order as it deems just under the circumstances.

Commonwealth v. Jordan, 125 A.3d 55, 65 (Pa. Super. 2015).

      Here,   the   Commonwealth       states,   “it   is   undisputed   that   the

Commonwealth was unaware of the existence of [Appellant’s] inculpatory

statements . . . until November.”      Commonwealth Brief at 52.         Appellant

concedes that “the prosecutor indicated that she did not possess or know of

the contents of this report before she received it at the end of the day on

November 9, 2017,” but argues that the trial court, in finding that “the

Commonwealth was not in control of the origin of the report,” caused prejudice

to Appellant by failing to “ban the information.” Id. Appellant maintains that




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the report “was clearly prejudicial to the defense strategy” that Appellant had

“sustained head injuries . . . when he encountered decedent.” Id. at 51.

      To the contrary, the trial court opined that in granting the parties’ joint

motion for a continuance, it “tailored the remedy to the scope of the injury.”

Trial Court Opinion, 3/27/19, at 26. The court concluded:

      To eliminate the Commonwealth’s ability to introduce evidence
      that calls into question the veracity of [Appellant’s] assertions at
      trial . . . would unfairly skew the evidence presented to the jury
      and hinder the ability of the fact finder to evaluate the truth of
      both parties’ theories. It would effectuate a grave injustice to the
      Commonwealth in great disproportion to the scope of its offense.

Id.

      We do not discern an abuse of discretion by the trial court. The record

before us is voluminous, and the EMT report (Exhibit 37) consists of two and

a half pages among more than 1,000 pages of exhibits—and more than 1,000

pages of transcripts. Even if the trial court had erred in admitting the report,

such error would be harmless where any prejudice is de minimis. It bears

repeating that “the harmless error doctrine, as adopted in Pennsylvania,

reflects the reality that the accused is entitled to a fair trial, not a perfect trial.”

Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014). Further:

      Harmless error exists if the record demonstrates either: (1) the
      error did not prejudice the defendant or the prejudice was de
      minimis; or (2) the erroneously admitted evidence was merely
      cumulative of other untainted evidence which was substantially
      similar to the erroneously admitted evidence; or (3) 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.

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Hairston, 84 A.3d at 671–72.

        Finally, in his fourth issue, Appellant asserts that the trial court

erroneously admitted the police body camera footage depicting the decedent’s

body.

               When the Commonwealth seeks to introduce photographs
        of a homicide victim into evidence, the trial court must engage in
        a two-part analysis. First, the trial court must examine whether
        the particular photograph is inflammatory. If the photograph is
        not inflammatory, it may be admitted if it is relevant and can serve
        to assist the jury in understanding the facts of the case. If the
        photograph is inflammatory, the trial court must determine
        whether the photograph is of such essential evidentiary value that
        its need clearly outweighs the likelihood of inflaming the minds
        and passions of the jurors.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (citations

omitted). Here, the trial court rejected Appellant’s contention that the video

was inflammatory.      The court expressly determined that the video footage

was not inflammatory where the decedent’s wounds “were not readily visible

in the footage,” but nonetheless gave the jury the cautionary instruction that

they were not to “allow the unpleasant nature of the footage stir their

emotions to the prejudice of the Defendant.” See, e.g., Trial Court Opinion,

3/27/19, at 32. We again find no abuse of discretion by the trial court, and

note that the record contains other evidence—including still photographs—

cumulative of the evidence in the body camera video.

        For the above reasons, Appellant’s claims do not merit relief.         We

therefore affirm the judgment of sentence.

        Judgment of sentence affirmed.

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     Judge Colins joins the memorandum.

     Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/20




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