J-S31007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSEPH CEDENO,

                            Appellant                  No. 1770 MDA 2014


               Appeal from the Judgment of Sentence May 15, 2014
               In the Court of Common Pleas of Lackawanna County
                Criminal Division at No(s): CP-35-CR-0002409-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.:                              FILED JULY 10, 2015

          Appellant, Joseph Cedeno, appeals from the judgment of sentence of

life imprisonment and a consecutive term of 20-40 years’ incarceration,

following his conviction for first and third degree murder.          After careful

review, we conclude that Appellant’s multiple claims do not entitle him to

relief.    However, we vacate Appellant’s sentence for third degree murder,

because we hold the crimes of first and third degree murder always merge

for   sentencing     purposes   when    those   offenses   involve   an   individual

defendant’s killing of the same person.

          On September 23, 2012, after drinking together all day, Appellant and

the victim arrived at the home of Louise Lambides, Appellant’s mother, on

Hospital Street in Carbondale, Pennsylvania. The victim was a family friend
J-S31007-15



who had also been friends with Appellant’s then-deceased sibling, James

Spinelli.

      One of Appellant’s surviving brothers, Jonathon Sandoval, arrived at

the home after Appellant and the victim were already there. He overheard

Appellant repeatedly asking Lambides, “should I do it?” Initially, Sandoval

did not know what Appellant was talking about until Appellant asked to have

a word with him in private.     Sandoval took Appellant into his room and

asked him what he wanted.       Appellant then asked Sandoval if Appellant

should kill the victim. When Sandoval asked Appellant why he would want

to do such a thing, Appellant told him that that he believed that the victim

might have had something to do with James Spinelli’s death. Appellant also

told Sandoval that he planned to kill the victim by “carv[ing] him up real

nice and slit[ting] his throat from ear to ear.”     N.T., 5/14/14, at 106.

Sandoval begged Appellant not to do anything, told Appellant that he had no

proof that the victim was involved in James Spinelli’s death, and made

Appellant promise him that he would not harm the victim.

      Eventually, Appellant and the victim left, purportedly so that Appellant

could escort the victim to his home. Appellant later returned alone and told

his mother that he had killed the victim. He took a knife out of his pocket,

washed it in the sink, and put it into a drawer in the kitchen. Appellant also

told Michael Spinelli, another of his brothers, that he had just ‘caught a

body,’ i.e., that he had killed someone. Sandoval heard Appellant say that

he had done it for their deceased brother, James Spinelli.

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         Police found the victim’s body in a nearby parking lot. The victim died

as a result of numerous stab wounds to his torso. Police recovered the knife

that Appellant placed in the kitchen drawer, and subsequently discovered

that it still had traces of the victim’s DNA on it.    Additionally, tears in the

victim’s fleece pull-over were consistent with having been caused by the

knife.     Dr. Ross, who performed the victim’s autopsy, testified that the

victim’s wounds were consistent with having been caused by that knife or

something similar.

         Jacob Huff, an inmate at the Lackawanna County Jail at the same time

as Appellant following Appellant’s arrest, testified that Appellant admitted to

him that he had stabbed the victim to death.          Huff’s testimony regarding

Appellant’s admissions revealed details of the incident that were consistent

with the details provided by the Commonwealth’s other witnesses.

         Following a trial held on May 13-15, 2014, the jury found Appellant

guilty of both first and third degree murder.      The trial court subsequently

sentenced Appellant to a mandatory term of life imprisonment for first

degree murder and to a consecutive term of 20-40 years’ incarceration for

third degree murder. Appellant filed post-trial motions, which were denied

by the trial court on September 30, 2014. Appellant filed a timely notice of

appeal on October 16, 2014.        He filed a court-ordered Pa.R.A.P. 1925(b)




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statement on October 29, 2014.             The trial court issued its Rule 1925(a)

opinion on December 2, 2014.1

       Appellant now presents the following questions for our review:

       A. Whether the Commonwealth presented sufficient evidence
       establishing that [] Appellant is guilty beyond a reasonable doubt
       of first degree the murder and third degree murder of Dennis
       Doherty?

       B. Whether the verdict was against the weight of the evidence?

       C. Whether the lower court erred in denying [] Appellant’s pre-
       trial motion to produce the testimony of Dr. Matthew Berger, a
       psychiatric expert whom the lower court appointed in this matter
       to conduct an independent psychiatric evaluation of Appellant?

       D. Whether the lower court erred in denying [] Appellant’s
       request to submit evidence as to his blood alcohol level at the
       time of his incriminating statement to his family members?

       E. Whether the lower court erred in allowing the Commonwealth
       to redirect Dr. Gary Ross?

Appellant’s Brief, at 4.

                                      Sufficiency

       Appellant’s first claim concerns the sufficiency of the evidence

supporting his conviction. Specifically, Appellant believes that the evidence

did not support his identity as the victim’s assailant—a common element to

each of his homicide convictions.              Our standard of review of sufficiency

claims is well-settled:


____________________________________________


1
 The trial court’s Rule 1925(a) opinion incorporated its September 30, 2014
memorandum opinion addressing Appellant’s post-sentence motion claims.



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             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. 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. 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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant “submits that the record is completely void of any physical

evidence linking him to the murder of Dennis Doherty.” Appellant’s Brief, at

16.   Appellant’s claim is unsustainable in both fact and law.     The police

discovered the victim’s DNA on a knife that was seen in Appellant’s

possession immediately after the homicide occurred; therefore, there was, in

fact, physical evidence tying Appellant to the murder of the victim.

      In any event, evidence of guilt is not insufficient merely due to the

absence of physical evidence.    “It is well established in Pennsylvania that

circumstantial evidence alone may be sufficient to determine commission of

a crime and convict the accused of it.” Commonwealth v. Cox, 333 A.2d

917, 918 (Pa. 1975); see also Commonwealth v. Wentzel, 61 A.2d 309,

312 (Pa. 1948) (“Circumstantial evidence is, in the abstract, nearly, though

perhaps not altogether, as strong as positive evidence; in the concrete, it

may be infinitely stronger.”) (quoting Commonwealth v. Harman, 4 Pa.



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269, 271 (1846)). Thus, even if there were a lack of physical evidence in

this case, Appellant’s sufficiency claim lacks any legal foundation, as the

absence of physical evidence cannot, by itself, render alternative forms of

evidence insufficient to sustain a conviction.

      To the extent that Appellant presents inconsistencies between the

testimony of the Commonwealth’s witnesses and other evidence as a

challenge to the sufficiency of the evidence, we note that such arguments go

to the weight, and not the sufficiency, of the evidence. “A mere conflict in

the testimony does not render the evidence insufficient … because it is

within the province of the fact finder to determine the weight to be given to

the testimony and to believe all, part, or none of the              evidence.”

Commonwealth v. Mechalski, 707 A.2d 528, 530-31 (Pa. Super. 1998)

(internal citations omitted). For these reasons, we conclude that Appellant’s

sufficiency claim lacks merit.

                                    Weight

      Next, Appellant challenges the trial court’s denial of his claim that the

verdict was against the weight of the evidence.         Specifically, Appellant

contends that the weight of the evidence “pointed to someone other than

him as Doherty’s attacker.” Appellant’s Brief, at 28.

         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.

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        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. 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.

        This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered.         In
     describing the limits of a trial court's discretion, we have
     explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where
        the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

     The trial court determined that the verdict was not against the weight

of the evidence. To the contrary, the trial court found that “the amount of

evidence implicating [Appellant] is so overwhelming that the failure to

convict would shock any reasonable person’s sense of justice.” Trial Court

Opinion (TCO), 9/30/14, at 7. We agree.




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       Appellant asserts that the absence of certain evidence supports his

weight-of-the-evidence claim, an argument that is as illogical as it is

unconvincing, as it purposefully overlooks the ample evidence supporting his

conviction.    Appellant foreshadowed his crime by asking his brother if he

should kill the victim just before the killing occurred. Appellant returned to

his mother’s home shortly after departing with the victim, and immediately

admitted to his mother that he killed the victim. DNA samples taken from

the knife that Appellant cleaned and put away in his mother’s kitchen while

admitting to killing the victim revealed the presence of the victim’s DNA.

These facts overwhelming outweigh minor inconsistencies in an eyewitness’s

testimony regarding the murderer’s description.2 Accordingly, the trial court

clearly did not abuse its discretion in denying Appellant’s post-sentence

weight-of-the-evidence motion.           Thus, Appellant’s weight-of-the-evidence

claim is meritless.
____________________________________________


2
   Georgia Strackbein, who witnessed the killing from her home, told police
that the perpetrator was about 5 feet, 9 inches tall, and wore a dark hoodie.
She did not observe the assailant using a knife. Appellant is 6 feet, 2 inches
tall, and the jacket purportedly worn by him that evening was not hooded.
However, the specific details of Strackbein’s testimony were questionable in
light of her vantage point. Strackbein claimed to have observed the killing
from a distance of 70 feet; however, other evidence revealed that her home
was at least 75 yards away from the scene of the crime. Given that her
observations were made in the evening and from such a considerable
distance, a five inch discrepancy between her description and Appellant’s
height appears trivial, as does her description of the assailant’s clothing. It
also explains her failure to observe a knife, and the evidence clearly
established that the victim was stabbed to death.




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                               Psychiatric Testimony

       Next, Appellant claims that the trial court erred when it denied his pre-

trial motion to produce the testimony of a psychiatrist, Dr. Matthew Berger.3

Appellant contends that Dr. Berger would have testified that Appellant

suffers from schizoaffective disorder with psychotic features, a mental illness

that can cause hallucinations. Appellant contends that he was suffering an

acute manifestation of this disorder, complicated by his intoxication, when

he stated to his family members that he had killed the victim.           Appellant

believes that this evidence was relevant to demonstrate that Appellant was

“not in the proper frame of mind to be able to make a knowing, voluntary,

and intelligent confession.” Appellant’s Brief, at 30. He argues that “[t]he

purpose of this testimony would be to provide the jury with evidence as to

Appellant’s state of mind at the time he made the statements so that the

jury   could determine        what    weight, if any, to   give   to   the   alleged

confessions[.]” Id.

       We apply the following standard in our review of claims that a trial

court erred in the admission or exclusion of evidence:

       The admission of evidence is solely within the province of the
       trial court, and a decision thereto will not be disturbed absent a
       showing of an abuse of discretion. “An abuse of discretion is not
       merely an error of judgment, but if in reaching a conclusion the
       law is overridden or misapplied, or the judgment exercised is
____________________________________________


3
  Appellant similarly challenges the trial court’s granting                  of   the
Commonwealth’s motion to preclude Dr. Berger’s testimony.



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      manifestly unreasonable, or the result of partiality, prejudice,
      bias[,] or ill-will discretion ... is abused.”

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations omitted).

      The trial court provides important context for this claim as follows:

            The defense team had two psychiatric experts examine
      [Appellant] in anticipation of raising various defenses in the
      case. After the evaluations were completed, at a January 10,
      2014 status conference, [Appellant]’s attorneys indicated that
      [Appellant] would not raise the defense of voluntary intoxication.
      On January 24, 2014, [Appellant] filed a notice of expert
      evidence of mental condition, and attached a report by Dr.
      Matthew Berger. He indicated that the testimony was necessary
      to show his state of mind when he made the inculpatory
      statements to his family members.        On May 8, 2014, the
      Commonwealth filed a motion in limine to preclude the
      testimony of Dr. Berger. Prior to trial, the court granted this
      motion and [Appellant] filed a motion for reconsideration. On
      the morning of trial, argument was heard on the motion for
      reconsideration and the motion was denied.

TCO, at 8-9.

      In refusing to permit his testimony at trial, the trial court determined

that Dr. Berger’s report “did not discuss whether [Appellant’s diagnoses of

schizoaffective disorder and substance abuse] prevented [Appellant] from

forming specific intent, or whether it affected the statements he made to his

family members on the night of the murder.” TCO, at 9. Therefore, as Dr.

Berger did not address an insanity or guilty but mentally ill defense, or

otherwise offer facts that could negate the specific intent element of first




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degree murder, the trial court precluded his testimony based on several

authorities,4 which collectively set forth the following standards of law:

              A diminished capacity defense does not exculpate the
       defendant from criminal liability entirely, but instead negates the
       element of specific intent.      For a defendant who proves a
       diminished capacity defense, first-degree murder is mitigated to
       third-degree murder.         To establish a diminished capacity
       defense, a defendant must prove that his cognitive abilities of
       deliberation and premeditation were so compromised, by mental
       defect or voluntary intoxication, that he was unable to formulate
       the specific intent to kill. The mere fact of intoxication does not
       give rise to a diminished capacity defense. Evidence that the
       defendant lacked the ability to control his or her actions or acted
       impulsively is irrelevant to specific intent to kill, and thus is not
       admissible to support a diminished capacity defense.
       Furthermore, diagnosis with a personality disorder does not
       suffice to establish diminished capacity.

Hutchinson, 25 A.3d at 312 (quotation marks and citations omitted).

       Appellant does not challenge the trial court’s rejection of Dr. Berger’s

testimony based upon a theory that it could have provided a diminished

capacity defense to negate the specific intent element of first-degree

murder.     Instead, Appellant claims an alternative basis for admitting Dr.

Berger’s testimony: that it was relevant to the question of whether



____________________________________________


4
  In its opinion, the trial court cites the following authorities in support of its
ruling: Commonwealth v. King, 57 A.3d 607 (Pa. 2012); Commonwealth
v. Vandivner, 962 A.2d 1170 (Pa. 2009); Commonwealth v. Sheppard,
648 A.2d 563 (Pa. Super. 1994); and Commonwealth v. Faulkner, 595
A.2d 28 (Pa. 1991). The principles of law set forth in those authorities are
aptly summarized by Commonwealth v. Hutchinson, 25 A.3d 277 (Pa.
2011).



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Appellant’s “confession” to family members was knowing, voluntary, and

intelligent, citing Commonwealth v. Jones, 327 A.2d 10 (Pa. 1974).

        In Jones, the defendant purportedly participated in a violent assault

and robbery at a subway station in downtown Philadelphia that led to the

death of the victim. Jones was arrested less than two hours later, after he

was caught snatching a purse from a different victim.      The next morning,

Jones signed a nine page confession in which he admitted to beating and

robbing the first victim and then throwing him onto the subway tracks.

Jones unsuccessfully contested the voluntariness of his confession in a

suppression motion. However, “[a]t trial, [Jones] renewed his attack on the

confession by offering the testimony of a psychiatrist concerning his … sub-

normal mental capacity and lack of verbal facility, and his consequent

inability to have given the confession which the Commonwealth attributed to

him.”    Id. at 12.   The trial court refused to allow that evidence.    Our

Supreme Court granted Jones a new trial based on that refusal, holding that

“psychiatric testimony concerning a defendant's mental capacity and

condition at the time of giving an alleged confession is admissible on the

issue of his ability to give the confession.” Id. at 13.

        Appellant maintains that Jones is binding in this matter.   The trial

court rejected this argument, finding significant factual differences upon

which to distinguish this case from Jones.        For instance, in Jones, the

defendant’s counsel




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      indicated that the purpose of the offer of proof was an attempt
      to ‘minimize the impact of the defendant's confession.’ The gist
      of the psychiatrist's testimony, he said, would be that, in light of
      the defendant's mental capacity, his I.Q. and lack of verbal
      facility, defendant would have been incapable of giving a
      statement of the length and continuity of the one allegedly given
      by the defendant to the police. Counsel indicated that the
      psychiatrist would testify that in his opinion the interrogating
      detective had interjected questions which were not reflected in
      the statement.      He further stated that the purpose of the
      psychiatrist's testimony would be to show that the defendant
      had an I.Q. of 71 and was a mild mental defective, and that
      ‘these points would be important to the jury's evaluation of the
      defendant's statement.’

Id. at 12.

      Here, however, Appellant’s statement was neither made to police, nor

did it occur in a potentially coercive setting.   Another crucial difference is

that Appellant’s inculpatory statements to family members were relatively

simple and uncomplicated. As the trial court recognized:

      Here [Appellant] made admissions to his mother and two of his
      brothers that he was going to murder the victim and that he had
      murdered the victim. Unlike the nine-page written confessions
      in Jones, these statements were more in the nature of excited
      utterances. [Appellant] does not assert that he was incapable of
      making the utterances, but rather than the jury should have
      heard psychiatric testimony as to his “state of mind” when he
      made them. However, Dr. Berger’s report does not discuss the
      effect that [Appellant]’s drug and alcohol use or schizoaffective
      disorder had on his ability to make statements about what he
      had done. Thus, Jones does not apply here, and Dr. Berger’s
      psychiatric testimony was properly excluded.

TCO, at 11.

      We agree with the trial court’s analysis.    Additionally, Appellant has

not offered, and our own research has not uncovered, any case law that

explicitly or implicitly extends Jones’ holding beyond the factual context of a

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formal confession where the confessor’s capacity to author an extensive

written confession is plausibly at issue.       Here, Appellant’s inculpatory

statements were spontaneous, self-originating, unadorned, and not made to

police in an inherently coercive setting. Accordingly, we conclude that trial

court did not abuse its discretion when it refused to admit Dr. Berger’s

testimony for the purpose of providing state-of-mind context to Appellant’s

inculpatory statements.

                          Blood-Alcohol Content

      Next, Appellant claims the trial court erred when it denied his request

to present evidence of his blood-alcohol level at the time he made the

incriminating statements to his family members. Appellant admits that he

did not seek to admit this evidence in order to negate specific intent as part

of a voluntary intoxication defense.         Instead, as with the precluded

testimony of Dr. Berger, Appellant intended to offer evidence of his

intoxication in order to demonstrate his state of mind when he made the at-

issue inculpatory statements.

      The trial court determined that “[b]ecause [Appellant] decided not to

raise a voluntary intoxication defense, the court precluded expert testimony

concerning his blood alcohol level.”         TCO, at 12.    Additionally, the

Commonwealth contends that any error in the preclusion of expert testimony

concerning Appellant’s degree of intoxication was harmless.      Because we

agree that any resulting error was harmless, we need not consider whether

the trial court’s decision was erroneous.

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       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 [or precluded]
       evidence was merely cumulative of other untainted evidence
       which was substantially similar to the erroneously admitted [or
       precluded] 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.

Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997).

       Here, there was “a great deal of testimony at trial from eye witnesses

concerning the amount of alcohol consumed by [Appellant] on the night of

the murder, and his level of intoxication.”             TCO, at 12.   For instance,

Appellant’s mother testified that Appellant and the victim were drinking beer

and vodka before the killing,           N.T., 5/13/14, at 170; that they “were

drinking all day[,]” id. at 179, and that between them, Appellant and the

victim consumed a considerable portion of a half-gallon bottle of vodka, id.

at 180.5     She also testified that Appellant appeared intoxicated, slurred his

words and bumped into things as he walked through her home. Id. at 182.

       Michael Spinelli also observed Appellant drinking on the night of the

killing.   Id. at 148.      He stated that Appellant was speaking loudly that

evening, a typical behavior for Appellant when intoxicated. Id. at 151-52.

Spinelli also testified that Appellant was “say[ing] things that he normally

[would] say if he was drinking.”          Id. at 156.    Spinelli also agreed during
____________________________________________


5
  The bottle of vodka was half-full when the two arrived, and nearly empty
at the time of the killing. Appellant’s mother stated that she was unsure
how much the pair had consumed before arriving at her home.



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cross-examination that, when drinking, Appellant “makes statements that

don’t make much sense.” Id. at 157. Jonathan Sandoval also testified that

Appellant was intoxicated. N.T., 5/14/14, at 114.

      During closing argument, defense counsel focused extensively on

Appellant’s level of intoxication and erratic behavior.        In addition to the

aforementioned testimony, he suggested to the jury that they could infer

Appellant’s level or degree of intoxication at the time he made his

inculpatory statements to his family from the victim’s blood alcohol

concentration that evening—a staggering .42. The trial court overruled the

Commonwealth’s objection to this suggestion, explaining, “The testimony

was that they were drinking together. So it is fair argument.” Id. at 210.

Additionally, the trial court instructed the jury that, “Evidence regarding

[Appellant’s] drinking can be used by you when evaluating [his] statements

made to any individuals on the night of the alleged crime.” N.T., 5/15/14, at

22.   Thus, we agree with the trial court that the “jury was aware of

[Appellant]’s high level of intoxication on the night of the murder, and [that]

the court instructed them that they could consider it when determining his

state of mind in admitting the murder to his family members.” Id.

      As such, we concur with the Commonwealth that the preclusion of

evidence of Appellant’s specific blood alcohol level was “merely cumulative”

of the other evidence produced at trial.         Hawkins, supra. Appellant was

permitted to cross-examine the Commonwealth’s witnesses in order to

extract   substantial   evidence   of   his   intoxication   when   he   made   the

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inculpatory statements to those witnesses.       See Soda v. Baird, 600 A.2d

1274, 1277 (Pa. Super. 1991) (“The exclusion of evidence is not grounds for

the granting of a new trial if evidence of the same fact or facts was

introduced by the party applying for a new trial.       There is no basis for a

reversal, and a new trial, if the excluded evidence was cumulative in

nature.”) (citation omitted). Accordingly, we conclude that even if the trial

court erroneously excluded evidence of Appellant’s blood-alcohol content at

the time he made his incriminating statements, such error was harmless.

                            Re-direct of Dr. Ross

      Finally, Appellant asserts that the trial court erred when it permitted

the Commonwealth to question Dr. Gary Ross on re-direct.             Dr. Ross, a

forensic pathologist, testified regarding the autopsy and toxicology report.

He spoke to both the cause and mechanism of the victim’s death.           During

direct examination, Dr. Ross was questioned about the knife that Appellant

pulled out of his pocket and placed in his mother’s kitchen drawer.            He

stated, over Appellant’s overruled objection that it went beyond the scope of

his report, that “[a] knife just like this could have caused all the injuries that

this decedent had sustained.”      N.T., 5/14/14, at 162.     Appellant’s claim,

however, does not arise directly from his objection to this testimony.

      During cross-examination, defense counsel questioned whether Dr.

Ross could testify with any degree of certainty whether that specific knife

had been used to kill the victim, as opposed to a similar knife, and Dr. Ross

stated that he could not from the information that he had at that moment.

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Id. at 171.     During re-direct, the Commonwealth asked Dr. Ross, “If you

had information that the decedent’s DNA was on that knife, what would your

opinion be?” Defense counsel objected, essentially arguing that the question

went beyond the scope of his cross-examination of Dr. Ross.                          The

Commonwealth responded that Appellant had opened the door to that line of

inquiry. The trial court agreed, and overruled the objection. Dr. Ross then

stated that if he knew that the decedent’s DNA was found on the knife, he

“would be very comfortable in saying that this knife is the knife that killed

[the vicitm].” Id. at 172-73.

      Appellant    argues   that    the    trial    court   erred   by   permitted   the

Commonwealth’s solicitation of Dr. Ross’s opinion regarding a fact not

contained in his report. We disagree. Initially, we note that Appellant fails

to provide citation(s) to any authority that would suggest that the

Commonwealth’s question on re-direct was improper. In any event, we view

the Commonwealth’s question on re-direct to be a natural and fair response

to the focus of Appellant’s questions during cross-examination. By focusing

the jury’s attention on Dr. Ross’s inability to identify the knife as the actual

or specific cause of the victim’s stab wounds, it was fair response for the

Commonwealth to highlight what facts, if any, would bridge the gap between

the actual and the definite.       Moreover, the question did not involve mere

speculation that would mislead the jury—DNA samples taken from the blood

found on the knife in question were, in fact, positively matched to the victim

in this case.   N.T., 5/14/14, at 91-93.           Accordingly, we conclude that the

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trial court did not err when it permitted the Commonwealth to pursue its line

of questioning during the re-direct examination of Dr. Ross.

                         Merger/Illegal Sentence

     Having addressed each of Appellant’s claims, we now turn to an

obvious error that is apparent from the record. Specifically, Appellant was

illegally sentenced when the court issued consecutive sentences for first and

third degree murder.     There is no dispute in this case that Appellant’s

convictions for these crimes were based on his killing of one victim: Dennis

Doherty. Appellant was not charged with killing separate individuals, nor did

the Commonwealth present evidence of multiple homicides. Therefore, his

convictions for first and third degree murder should have merged for

sentencing purposes, rendering his current sentence illegal.

     “A challenge to the legality of the sentence may be raised as a
     matter of right, is non-waivable, and may be entertained so long
     as the reviewing court has jurisdiction.” Commonwealth v.
     Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc).
     The phrase ‘illegal sentence’ is a term of art in Pennsylvania
     Courts that is applied to three narrow categories of cases. Id. at
     21. Those categories are: “(1) claims that the sentence fell
     ‘outside of the legal parameters prescribed by the applicable
     statute’; (2) claims involving merger/double jeopardy; and (3)
     claims implicating the rule in Apprendi v. New Jersey, 530
     U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).

Moreover, “[t]he issue [of merger] is a pure question of law, allowing for

plenary review.”   Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa.

Super. 2012).



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       Despite Appellant’s failure to raise this claim below or in his appellate

brief, the issue of whether the trial court failed to merge Appellant’s

sentences for first and third degree murder cannot be waived, and this Court

may address it sua sponte.       Munday.      The merger statute dictates as

follows:

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the
       other offense. Where crimes merge for sentencing purposes, the
       court may sentence the defendant only on the higher graded
       offense.

42 Pa.C.S. § 9765.

       Here, it is beyond question that Appellant’s convictions for first and

third degree murder arise from the same criminal act—the killing of Dennis

Doherty. One may be assaulted multiple times, or be the victim of multiple

thefts; but once completed, a killing can never be repeated against the same

victim (although multiple persons may be held legally culpable for a single

killing).   Thus, we have no reservation in concluding that Appellant’s

sentences for first and third degree murder “arise from a single criminal act.”

Id.

       We must next determine whether “all of the statutory elements of one

offense are included in the statutory elements of the other offense.”       Id.

First-degree murder occurs when “(1) a human being was unlawfully killed;

(2) the defendant was responsible for the killing; and (3) the defendant

acted with malice and a specific intent to kill.” Commonwealth v. Martin,


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101 A.3d 706, 718 (Pa. 2014). For purposes of this analysis, these elements

can be rearranged as such: a defendant is guilty of first-degree murder if he

(1) unlawfully kills another human being; (2) with malice aforethought; and

(3) with the specific intent to kill.

        Recently, our Supreme Court approved of the following definition of

third-degree murder: “[T]o convict a defendant of the offense of third[

]degree murder, the Commonwealth need only prove that the defendant

killed another person with malice aforethought.”              Commonwealth v.

Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (quoting Commonwealth v.

Santos, 876 A.2d 360, 363 (Pa. 2005)), cert. denied sub nom. Best v.

Pennsylvania, 134 S.Ct. 2314 (2014).             Again, rearranging this definition

for our analysis, a defendant is guilty of third degree murder if he (1)

unlawfully kills another human being; (2) with malice aforethought.

        As is clear from these rearranged (but substantively unaltered)

definitions, “all of the statutory elements of” third degree murder “are

included in the statutory elements of” first degree murder.          42 Pa.C.S. §

9765.      Furthermore, as discussed supra, we have determined that

Appellant’s first and third degree murder convictions both arose from the

same criminal act.         Thus, Appellant’s first and third degree murder

convictions must merge for sentencing purposes. Indeed, these offenses will

always merge for sentencing purposes when they both pertain to an

individual defendant’s killing of single person.




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      Consequently, we hereby vacate Appellant’s sentence for third degree

murder. Because the Commonwealth never sought imposition of the death

penalty in this case, the only possible sentence for Appellant’s first degree

murder conviction is life imprisonment without the possibly of parole, a

sentence already imposed and left untouched by this decision.     Thus, it is

unnecessary to remand for re-sentencing, and Appellant is not entitled to

any other form of relief.

      Judgement of sentence affirmed in part, vacated in part. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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