J-A26036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
               v.                :
                                 :
                                 :
    MARIA I. SANUTTI-SPENCER     :
                                 :
                   Appellant     :             No. 782 MDA 2016

           Appeal from the Judgment of Sentence December 18, 2015
     In the Court of Common Pleas of Columbia County Criminal Division at
                        No(s): CP-19-CR-0000754-2014


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                          FILED JANUARY 11, 2018

       Appellant, Maria I. Sanutti-Spencer, appeals from the judgment of

sentence of life in prison without the possibility of parole followed by an

aggregate of two hundred fifty months (250) to six hundred ninety-six months

(696) of incarceration, imposed December 18, 2015, following a jury trial

resulting in her conviction for criminal homicide, criminal solicitation to commit

homicide, criminal conspiracy, burglary, receiving stolen property, criminal

solicitation to commit burglary, multiple counts of arson, criminal solicitation

to commit arson, criminal attempt to commit homicide, terroristic threats, and

multiple counts of perjury.1 We affirm.




____________________________________________


1 See respectively, 18 Pa.C.S. §§ 2501; 902(a); 903(a)(1); 3502(a)(2);
3925(a); 902(a); 3301(a)(1)(ii); 902(a); 901(a); 2706(a)(1); and 4902(a).
J-A26036-17



         The relevant facts and procedural history are as follows.     Appellant

married Frank Spencer (“the Victim”) in February 1997. Between 2006 and

2012, the Victim reported approximately twenty-five (25) to thirty-five (35)

domestic incidents to the Hemlock Township police department. See Notes

of Testimony (N.T.), 11/12/2015, at 145.         Police records confirm that the

Victim reported that Appellant had threatened to kill him on “numerous

occasions.” Id. Following one such occasion, which occurred in October 2006,

the Victim filed for divorce. See id. at 159.

         On May 15, 2007, the Victim reported that Appellant threatened that

her Father, Anthony Rocco Franklin (“her Father”), would kill him. Id. at 160.

Contemporaneous with this report, other testimony established that Appellant

sought help from a former coworker, Lee Mix, to secure an early parole for

her Father. N.T., 11/12/2015, at 61-62, 65.2 When Mix and Appellant were

coworkers in 2005, Appellant threatened to harm the Victim. See id. at 61-

64 (Lee Mix testified Appellant threatened to kill the Victim by injecting him

with insulin while he was asleep). Appellant also implied that her Father was

in the Mafia. Id. at 64. Mix informed Appellant that she could not help. Id.

at 65.

         In March 2009, her Father submitted a home plan to the parole board,

in which he proposed to live at a residence jointly owned by Appellant and the

Victim (“Fairview Drive Residence”). Id. at 87-88. Parole agent James Curry
____________________________________________


2At the time, Mix was equal employment opportunity director for the parole
board. N.T., 11/12/2015, at 65.

                                           -2-
J-A26036-17



conducted the pre-parole investigation.         Id. at 85-86. When Curry

investigated the proposed home plan, the Victim told Curry that he did not

want her Father living at the Fairview Drive Residence because Appellant and

the Victim were getting a divorce. Id. at 88. Her Father’s proposed home

plan was denied. See id.

      In September 2009, her Father’s home plan was resubmitted, proposing

again to live at the jointly owned residence. Appellant indicated to the parole

board investigator that she was divorced and the homeowner. Id. at 98-99,

104. Her Father’s home plan was approved. However, at the time, the divorce

was not final; Appellant and the Victim were subject to an interim divorce

order, giving each party the right to live at the Fairview Drive Residence when

it was their turn to have custody of the kids. N.T., 11/13/2015, at 52.

      Between January 2010 and September 2011, police responded to and/or

investigated approximately sixteen incidents specifically involving the Victim

and Appellant at the Fairview Drive Residence.       Id. at 52-53.    Appellant

threatened to burn down the Victim’s new house and threatened to burn down

the house of the Victim’s girlfriend, Julie Dent. Id. at 57-58; see also N.T.,

11/12/2015, at 167-168 (the Victim’s mother heard Appellant threaten to

burn down the house “50” times and say her Father was in the Mafia and

would have the Victim killed); id. at 105-106 (the Victim’s lawyer knew the

Victim lived in fear based on threats by Appellant to burn down his house and

of being killed by her Father). In January 2010, a fire occurred at the Victim’s




                                     -3-
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home. N.T., 11/12/2015, at 107. In August 2010, another fire burned the

house of the Victim’s girlfriend to the ground. See id.

      The evidence presented at trial suggested that the Victim lived in

absolute fear of Appellant and her Father. The Victim was very worried that

her Father was capable of killing him and that they were threatening to kill

him. N.T., 11/13/2015, at 146; N.T., 11/10/2015, at 188. The Victim “was

absolutely in fear to the point where he was changing his habits so he wouldn’t

be going to the bank on the same day.” N.T., 11/10/2015, at 187. Appellant

expressed anger and hostility toward the Victim following divorce hearings,

often concerning custody of their children.    Id. at 185.   According to one

witness, “on numerous occasions, [Appellant] would fly in the driveway and

get out and there would be a screaming match that would ensue.” Id. at 186.

      On June 8, 2012, a divorce decree was issued dissolving the marriage

and designating the Victim as homeowner of the Fairview Drive Residence.

N.T., 11/11/2015, at 43. A police officer helped the Victim compose a no-

trespassing letter to Appellant (dated 6/27/2012), telling Appellant to stay off

his property except when exchanging custody of their children in the driveway.

Id. at 44; see also N.T., 11/13/2015, at 61, 63.

      On June 30, 2012, news of the divorce appeared in the local paper. On

the evening of June 30, 2012, Appellant called the Victim’s cousin and warned

him that if the Victim’s mother moved into the Fairview Drive Residence,

Appellant would burn it to the ground; Appellant threatened that “that house




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will be her last…. And she can join [the Victim].” N.T., 11/11/2015, at 135.

The Victim’s cousin immediately reported Appellant’s threats to the police. Id.

      On July 3, 2012, the Victim’s body was discovered shot dead in the foyer

of the Fairview Drive Residence. N.T., 11/17/2015, 234-236, 237-238. The

evidence established that the Victim was shot from a distance as he was

entering the house and that no one heard from the Victim between July 1-2,

2012. The Victim was killed by two rapidly fatal gunshot wounds: one to the

head and one to the left arm.     Id.   The parties stipulated that the bullet

recovered from the Victim’s torso was from a .30 caliber class discharged rifle

and the bullet recovered from his head/neck was fired from a .38, .357 caliber,

or nine-millimeter class handgun. N.T., 11/12/2015, at 31. Blood splatter

was found on the interior of the front-door threshold, “indicative of the door

being opened when the bloodletting event occurred.” N.T., 11/11/2015, 23.

Officer Sergeant Brian J. Dropinski found two shell casings near a tree with a

Y shape in front of the house. N.T., 11/12/2015, at 36. Officer Droplinski

testified that the tree offered support for the firing position and was within

firing range of the front door. Id. at 38; see also id. at 59 (noting distance

between perch and house was 115 feet).

      Corporal David Andreuzzi found yellow, cleaning gloves at the scene,

one on the kitchen floor and one in the kitchen sink. N.T., 11/11/2015, 26,

29, 39.   A forensic expert testified that DNA samples recovered from the

gloves matched the DNA profile of Appellant. Id. at 157-58, 226.




                                     -5-
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       On July 23, 2014, a grand jury issued an indictment, finding probable

cause to believe that Appellant and her Father engaged in a series of crimes,

culminating in the Victim’s murder. On July 28, 2014, Appellant was arrested

and charged with twenty-six (26) crimes as described above.3 On October

30, 2014, Appellant filed a motion for writ of habeas corpus.          Following a

hearing, Appellant’s motion was denied. See Order, 1/5/2015. Appellant also

filed an omnibus pre-trial motion, including a motion to preclude hearsay

testimony.     See Def.’s Mot. (filed 3/9/2015).         Following a hearing, the

omnibus motion was denied, except the motion to preclude hearsay testimony

was denied without prejudice to Appellant’s ability to file motions in limine six

weeks before jury selection. See Order, 6/22/2015.

       In September 2015, the Commonwealth filed a motion to preclude

irrelevant evidence related to Appellant’s health as well as the Victim’s alleged

drug abuse and violent propensities.             Upon consideration of Appellant’s

response and following a hearing, the court issued a pre-trial order precluding

Appellant from introducing evidence of the Victim’s alleged drug abuse and

violent propensities. See Order, 11/3/2015. In addition, the court denied

Appellant’s motions in limine.

       Following a two-week jury trial, the jury returned a guilty verdict against

Appellant on all twenty-six counts on November 20, 2015. On December 18,

____________________________________________


3 Appellant’s Father fled to Argentina after testifying before the grand jury;
however, in April 2017, he was extradited back to Harrisburg to face criminal
prosecution.

                                           -6-
J-A26036-17



2015, Appellant was sentenced as described above. Appellant timely filed a

notice of appeal.   On February 3, 2016, the court issued a concise statement

order pursuant to Pa.R.A.P. 1925(b). On February 16, 2016, appellate counsel

entered his appearance and contemporaneously sought an extension of time

to file the 1925(b) statement.     The trial court granted the extension on

February 24, 2016.

      On March 18, 2016, this Court quashed the direct appeal due to

Appellant’s failure to file a docketing statement. See Order, 150 MDA 2016,

dated 3/18/2016; see also Pa.R.A.P. 3517.        On May 5, 2016, Appellant’s

appellate rights were reinstated nunc pro tunc. Thereafter, Appellant timely

filed a court-ordered 1925(b) statement. The trial court filed a responsive

opinion, noting that Appellant’s concise statement raised more than forty

allegations of error. See Trial Ct. 1925(a) Op. (TCO), 6/30/2016, 6-7. The

trial court reorganized these to facilitate its review, given the “the volume of

[Appellant’s] complaints and the vague and sometimes repetitive nature [of]

her not so [c]oncise [s]tatement[.]” Id. at 7.

      On appeal, Appellant raises the following issues:

      1. [Appellant] was precluded from presenting evidence of
         another’s motive, of the [Victim]’s abuse, and of her significant
         health issues that would have made it physically impossible to
         perform the acts required to commit the crime as alleged by
         the government. Did these exclusions violate her right to
         present a complete defense?

      2. By saying to the jury before the witness testified “I don’t think
         it necessarily rebuts anything,” did the trial court improperly
         invade[] the province of the jury by commenting of the weight


                                     -7-
J-A26036-17


        to give a defense witness’ testimony? Is this especially so when
        this witness was called to directly rebut the government’s
        theory of motive? Did these inappropriate comments violate
        [Appellant]’s right to a fair and impartial trial?

     3. A corporal was permitted to testify to his opinion, because of
        his experience as a police officer, that he believed that a certain
        set of yellow cleaning gloves found in the kitchen of the
        [Victim]’s house and later found to have [Appellant’s] DNA in
        them were used to move a body from outside to inside the
        house. Was he testifying as an expert or is that the type of
        knowledge and science so ordinary that “everyone knows it”?

     4. After a sequestration order was issued for all witnesses, was it
        permissible for the trial court to do absolutely nothing when
        two witnesses, who provided a bold, public admission of the
        murder made by [Appellant], were caught violating that order
        (with one admitting to it) in giving the other a “heads up” as to
        what he was going to be “quizzed” about by the defense?

     5. Was it error for the trial court to read, as a non-responsive
        answer to a jury question, the criminal information as a fact
        (not as an allegation) prefaced by “attention-getting words” of
        “in order to avoid any confusion about the charges in this case
        I am going to read the following to you” and then after the
        reading of the criminal information, the words “That is all I have
        to say on that issue. Again, I hope it [clarifies] the issues for
        you.”?

Appellant’s Br. at 5-7 (suggested answers omitted).

     First, Appellant contends that her due process rights were violated when

she was not permitted to present a complete defense due to evidentiary

rulings of the trial court. See Appellant’s Br. at 30-31. Appellant maintains

that the court erred in excluding the following: (A) evidence of Appellant’s

physical ailments to rebut the theory that she was physically capable of

shooting a rifle or dragging the Victim’s 200-pound body; (B) evidence of the

Victim’s domestic abuse to rebut the theory that the Victim was afraid of

                                     -8-
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Appellant; (C) evidence of the Victim’s drug use to suggest that others may

have had a motive to kill the Victim; and (D) proffered testimony of two

witnesses to establish that her Father had an independent motive against the

Victim based on the alleged domestic abuse. See id. at 30. In her reply brief,

Appellant concedes that the trial court’s rulings were based upon established

evidentiary rules. See Appellant’s Reply Br. at 1. However, she maintains

that the court applied the rules in a “mechanical” fashion that deprived her of

due process and the right to present a complete defense pursuant to the

guarantees of the Due Process Clause of the Fourteenth Amendment and the

Confrontation Clause of the Sixth Amendment.         See id. at 1-2; see also

Appellant's Br. at 34 (relying on Holmes v. South Carolina, 547 U.S. 319,

324-326 (2006)). Appellant maintains that the combination of adverse rulings

cumulatively had an impact on her ability to present a full and complete

defense, and constitutes the denial of a trial in accord with fundamental

standards of due process. Id. at 31-35 (relying on Holmes, 547 U.S. at 324-

25; Montana v. Egelhoff, 518 U.S. 37, 53 (1996); Chambers v.

Mississippi, 410 U.S. 284, 294 (1973)).

      Our standard of review is as follows:

         The admissibility of evidence is within the sound discretion of
      the trial court, and this Court will not reverse a trial court's
      decision concerning admissibility of evidence absent an abuse of
      the trial court's discretion. An abuse of discretion will not be found
      based on a mere error of judgment, but rather exists where the
      court has reached a conclusion which overrides or misapplies the
      law, or where the judgment exercised is manifestly unreasonable,
      or the result of partiality, prejudice, bias or ill-will.

                                      -9-
J-A26036-17



Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (internal citations

omitted). “A defendant has a fundamental right to present evidence provided

that the evidence is relevant and not subject to exclusion under one of our

established evidentiary rules.” Commonwealth v. McGowan, 635 A.2d 113,

115 (Pa. 1993) (citation omitted). “All relevant evidence is admissible, except

as otherwise provided by law.” Pa.R.E. 402. Relevant evidence “tends to

prove or disprove some material fact, or tends to make a fact at issue more

or less probable.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014)

(citing McGowan, 635 A.2d at 115); see also Pa.R.E. 401 (defining relevant

evidence)). The Supreme Court of the United States recognizes:

      [W]ell-established rules of evidence permit trial judges to exclude
      evidence if its probative value is outweighed by certain other
      factors such as unfair prejudice, confusion of the issues, or
      potential to mislead the jury. [T]he Constitution permits judges
      to exclude evidence that is repetitive ..., only marginally relevant
      or poses an undue risk of harassment, prejudice, [or] confusion
      of the issues.

Holmes, 547 U.S. at 326-37 (internal citations and quotation marks omitted).

      First, Appellant claims that the court erred in excluding evidence of her

severe diabetes and other health issues. See Appellant's Br. at 35. Appellant

contends that this evidence was relevant for the factfinder to determine that

she was physically incapable of shooting the Victim with a sniper rifle or

dragging his 200-pound body into the house. See id. at 35-38. Appellant

claims that such evidence would have rebutted the Commonwealth’s twelve

witnesses who testified that the Victim was afraid of her.

                                     - 10 -
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      In response, the Commonwealth maintains that it “has never argued

that [Appellant] fired the shot from the sniper’s nest or that she drug [sic]

[the Victim’s] body into the house by herself.”    See Commonwealth's Br. at

29. The Commonwealth’s theory of the case was that Appellant was engaged

in a conspiracy to commit the murder.         “It is well-established … that a

defendant who was not a principal actor in committing the crime, may

nevertheless be liable for the crime if [she] was an accomplice of a principal

actor.” Commonwealth v. Murphy, 884 A.2d 1228, 1234 (Pa. 2004) (citing

18 Pa.C.S. § 306).

      Here, the trial court found Appellant’s physical health irrelevant to rebut

the Commonwealth’s theory of the case that Appellant’s Father or another co-

conspirator fired the shot from a sniper’s nest. TCO at 14-15.      The    court

opined that the “purported evidence was loaded with the potential for unfair

prejudice having the tendency to elicit sympathy for [Appellant].” Id. at 15.

Further, the court found Appellant’s physical ailments “irrelevant to the issues

properly being tried before the jury and likely to unfairly prejudice the

Commonwealth.” Id.

      It was within the province of the trial judge to exclude Appellant’s health

issues on the basis of irrelevancy and unfair prejudice. See Holmes, 547

U.S. at 326-37; see also Pa.R.E. 403. We discern no abuse of discretion in

that regard.




                                     - 11 -
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      Next, Appellant challenges the preclusion of evidence of the Victim’s

alleged abuse and drug use.        As both constitute character evidence, we

address these two claims together. Under the Pennsylvania Rules of Evidence,

character evidence is governed by Rule 404, which provides:

      Rule 404. Character Evidence; Crimes or Other Acts

      (a) Character Evidence.

      (1) Prohibited Uses. Evidence of a person's character or character
      trait is not admissible to prove that on a particular occasion the
      person acted in accordance with the character or trait.

      (2) Exceptions for a Defendant or Victim in a Criminal Case. The
      following exceptions apply in a criminal case:

         (A) a defendant may offer evidence of the defendant's
         pertinent trait, and if the evidence is admitted, the
         prosecutor may offer evidence to rebut it;

         (B) subject to limitations imposed by statute a defendant
         may offer evidence of an alleged victim's pertinent trait,
         and if the evidence is admitted the prosecutor may:

            (i) offer evidence to rebut it; and

            (ii) offer evidence of the defendant's same trait; and

         (C) in a homicide case, the prosecutor may offer evidence
         of the alleged victim's trait of peacefulness to rebut evidence
         that the victim was the first aggressor.

Pa.R.E. 404 (emphasis added).         “[S]pecific instances of a victim's prior

conduct are admissible to show a victim's character trait only if the trait in

question is probative of an element of a crime or a defense.” Commonwealth

v. Minich, 4 A.3d 1063, 1071 (Pa. Super. 2010).           Under Rule 404(2)(B),

evidence of “the alleged victim’s pertinent trait” is “limited to a character trait

                                      - 12 -
J-A26036-17


of the victim that is relevant to the crime or defense at issue in the case.”

Minich, 4 A.3d at 1072. “[C]riminal defendants asserting self-defense may

introduce evidence of a victim's prior conduct tending to establish the victim's

violent propensities.”   Id.; see also Commonwealth v. Miller, 634 A.2d

614, 622 (Pa. Super. 1993) (where self-defense was properly at issue in the

case, then expert testimony regarding “battered woman syndrome” was

relevant to prove the defendant’s state of mind as it relates to an element of

a theory of self-defense).

      The trial court found that neither the Victim’s alleged abuse nor his drug

use were relevant to any crime or defense asserted in the case. TCO at 7.

The court determined that the evidence was unfairly prejudicial. See id. The

court notes that Appellant had ample opportunity to effectively cross-examine

witnesses and introduce some of the Victim’s abusive conduct. TCO at 9-10.

      As Appellant did not raise self-defense in this case, it was within the

court’s discretion to exclude evidence of the Victim’s bad character traits

because such evidence was not pertinent to any crime or defense being raised.

See Minich, supra. Moreover, the trial court concluded that the Victim’s drug

use “constituted nothing more than speculation.”           TCO at 13 (citing

Commonwealth v. Williams, 720 A.2d 678, 686 (Pa. 1998) (noting that it

was proper to exclude evidence that another person had a motive to kill

because the evidence was speculative)). Finally, the trial court found that the

probative value of the evidence did not outweigh the potential for unfair


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prejudice.    See Pa.R.E. 404(b)(2).     We discern no abuse of the court’s

discretion.

      Next, Appellant contends that the court erroneously precluded her from

presenting so-called “dad witnesses” to testify that her Father had an

independent motive to kill the victim based on his knowledge of abuse.

Appellant's Br. at 40, 46.   Defense counsel proffered that these witnesses

would have said that her Father had an independent motive to be upset with

the Victim because of the alleged domestic abuse by the Victim against

Appellant. She proposed testimony of a prison guard and inmate regarding

conversations that they had with her Father while he was in prison circa 2007,

2008, and 2009.      See N.T., 11/16/2015, at 223.         Appellant sought to

introduce this testimony under the coconspirator exception to the rule against

hearsay, see Pa.R.E. 803(25)(E), or alternatively, under the state-of-mind

exception, see Pa.R.E. 803(3). See Appellant's Br. at 44.

      The trial court opined that the proffered testimony was “pure hearsay”

and inadmissible. TCO at 16. We agree. “‘Hearsay’ means a statement that

(1) the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers in evidence to prove the truth of the matter asserted in

the statement.” Pa.R.E. 801. “Hearsay is not admissible except as provided

by these rules, by other rules prescribed by the Pennsylvania Supreme Court,

or by statute.” Pa.R.E. 802. The proffered statements are clearly hearsay




                                     - 14 -
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because they were out-of-court statements and were offered to prove that her

Father had an independent motive to kill the victim.

      Appellant’s argument is unpersuasive. In order for the coconspirator

exception to apply, “the existence of a conspiracy between the declarant and

the defendant must be demonstrated by a preponderance of the evidence; the

statements must be shown to have been made during the course of the

conspiracy; and they must have been made in furtherance of the common

design.”   Commonwealth v. Johnson, 838 A.2d 663, 674 (Pa. 2003)

(citation omitted).    Thus, first and foremost, in order for this exception to

apply, Appellant would be required to concede that she participated in a

conspiracy with her Father, and therefore, his statements would be

attributable to her.    There was no admission of conspiracy by Appellant.

Accordingly, the coconspirator exception is inapplicable.

      Although the defense concedes that the proffered evidence was hearsay,

Appellant maintains that it should have been permitted to afford Appellant her

right to present a defense. See Appellant's Br. at 40-41. At trial, Appellant

also argued that the statements should be admitted under the state of mind

exception, which provides an exception for:

      A statement of the declarant's then-existing state of mind (such
      as motive, intent or plan) or emotional, sensory, or physical
      condition (such as mental feeling, pain, or bodily health), but not
      including a statement of memory or belief to prove the fact
      remembered or believed unless it relates to the validity or terms
      of the declarant's will.

Pa.R.E. 803(3).   Appellant’s argument is without merit.

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       “An accused has a fundamental right to present evidence so long as the

evidence is relevant and not excluded by an established evidentiary rule.”

Commonwealth v. Ward, 605 A.2d 796, 797 (Pa. 1992) (citation omitted).

Our Rules are clear that hearsay is inadmissible unless a recognized exception

applies. See Pa.R.E. 802. Here, the trial court ruled that these statements

were hearsay and properly deemed inadmissible because they were irrelevant.

See TCO at 16-18.4       We agree.

       In her second issue, Appellant seeks a new trial based on the trial

judge’s prejudicial commentary during the testimony of defense witness Dale

Scott Jones. At issue is the following exchange:

       Q.   Mr. Jones, in the year 2008 and the year 2009, did you have
       a romantic relationship with [Appellant]?

       A.    I believe I had a wonderful relationship in both of those
       years, yes.

       Q.    And how often would you see [Appellant] during the course
       of those years within the terms of that romantic relationship?

       A. There’s really – occasionally, I was in the Philadelphia area,
       [Appellant] was working in that area from time to time at
       hospitals, she represented nurses there. So it was occasional
       dinners. [Appellant] was very involved with children and so she
       was not --

       D.A.: Your Honor, if I can interpose an objection and perhaps I
       should have asked for an offer of proof. I’m not sure what
       relevance this has to the underlying charges.



____________________________________________


4Here, the trial court does not specifically address whether the state of mind
exception applied to a statement of Appellant’s coconspirator.

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       Defense: It’s very relevant, Your Honor, because the
       Commonwealth has alleged that my client has suggested to
       individuals if she can’t have [the Victim], nobody can. This
       demonstrates that she’s dating other individuals that would rebut
       that idea.

       COURT:      I don’t think it necessarily rebuts anything.

       Defense:     I guess that’s for the panel, Your Honor, respectfully.

       COURT: Yes, it is for the panel, so I’ll allow the questioning to go
       on.

N.T., 11/18/2015, at 107-110 (emphasis added).5

       Appellant contends that the judge’s commentary (in bold above)

invaded the province of the jury by suggesting the proper weight to accord to

Mr. Jones’ testimony, thus violating Appellant’s right to a fair and impartial

trial. Appellant's Br. at 50 (relying on U.S. v. Olgin, 745 F.2d 263, 269 (3d

Cir. 1984) (considering the following factors in evaluating whether the court’s

comment required a new trial: “materiality of the comment, its emphatic

overbearing nature, the efficacy of any curative instruction, and the prejudicial

effect of the comment in light of the jury instruction as a whole.”)). Appellant

also complains that the court failed to issue a curative instruction to remedy




____________________________________________


5 According to Appellant, “this evidence would have, at the very least,
weakened the government’s motive and possibly could have destroyed it….
Although the testimony was ultimately allowed, [Appellant argues that it] was
condemned prior to its presentation by this authoritative pre-judgment from
the bench.” Appellant's Br. at 50-51 (citing in support Commonwealth v.
Nicholson, 454 A.2d 581 (Pa. Super. 1982)).

                                          - 17 -
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its prejudicial remark. See id. at 58; Appellant’s Reply Br. at 5. Appellant’s

argument is devoid of merit.

      Appellant failed to preserve this issue by making an objection. Further,

Appellant requested no curative instruction. Therefore, we find that the issue

is waived. No relief is due.

      Third, Appellant contends that the court erred in overruling her objection

to the Corporal’s testimony regarding the yellow, cleaning gloves recovered

from the scene of the murder.             According to Appellant, this testimony

constituted an unqualified, expert opinion and exceeded the scope of

layperson testimony under P.R.E. 701. See Appellant's Br. at 63-69; see also

Pa.R.E. 702. Further, Appellant claims that this admission was not harmless

error. Id. at 68 (citing in support Commonwealth v. Brennan, 696 A.2d

1201, 1203 (Pa. Super. 1997)).

      Pa.R.E. 701 allows “testimony by a lay witness in the form of an opinion,

where the opinion is (1) rationally based on the perception of the witness and

(2) helpful to the determination of a fact in issue.”          Commonwealth v.

Yedinak, 676 A.2d 1217, 1221 (Pa. Super. 1996).                  Police officers are

permitted to testify to what they observe during the course of an investigation

and   how    their   observations   led    to   their   conclusions.    See,   e.g.,

Commonwealth v. Berry, --- A.3d ---, 2017 PA Super 282, at *3 (filed Aug.

31, 2017).




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J-A26036-17


      As   an   initial   matter,   Appellant   mischaracterizes   the   Corporal’s

testimony. Appellant baldly asserts that the Corporal testified that Appellant

used the cleaning gloves “to drag the decedent’s body into the house.”

Appellant's Br. at 66. Upon close inspection, however, the certified record and

the contents of the trial transcript do not support Appellant’s assertion.



      D.A.: Did the fact that the victim had ended up in an unnatural
      position and your finding the blood, did that have any connection
      in your mind?

      Corporal: In my mind it does. When I see that these cleaning
      gloves are away from the victim in the kitchen, the thought
      obviously, were these gloves worn by anybody? Were they worn
      to drag the victim in? Because his body was, from what I am
      seeing was removed from the outside, because the initial blood
      letting event occurred outside the residence. He is now inside.
      Obviously, the bod[y] got inside somehow. So I believe he is
      pulled in. So I believe the gloves… [Objection]

Id. at 16-17. Notably, the Corporal did not testify at any point that Appellant

used the yellow, cleaning gloves to drag the body.

      Next, the Commonwealth asked the Corporal to explain several

photographs that he took of the crime scene.          He described photographs

showing how the Victim was positioned. See N.T., 11/11/2015, at 24. He

observed that the Victim’s arms were up with his legs pointed toward the

garage. Id. He also described areas of pooled blood near the body. Id. at

25. The Corporal described the photographs of the kitchen and stated his lay

opinion that things seemed out of place, with “stuff scattered about,” and “we

can see on the floor, there is a yellow cleaning glove which just doesn’t fit in

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with what I am seeing throughout the residence.” Id. at 26. Specifically, he

described where he found a yellow, cleaning glove on the floor of the kitchen.

Id. at 26. A second yellow glove was found in the sink. Id. at 39.

      Substantively, we agree with the trial court that the Corporal’s

testimony, explaining photographs that he took of the body and the gloves,

was rationally based on his perception.       See TCO at 42.   Combined with

forensic expert testimony confirming Appellant’s DNA on the gloves, the

Corporal’s testimony may have given rise to an inference that Appellant did

drag the Victim’s body into the house. However, the Corporal’s testimony was

based on his experience as a police officer and what he directly observed. The

testimony was helpful for the factfinder to interpret the evidence. This does

not exceed the scope of layperson testimony under Pa.R.E. 701. See Berry,

supra, at *4. Whether or not Appellant dragged the Victim’s body into the

house was a matter relating to weight and credibility properly reserved for the

jury as factfinder. See id. Accordingly, Appellant’s argument is without merit.

We discern no error or abuse of discretion.

      Fourth, Appellant contends that two prosecution witnesses, Derk Reed

and Brian Wawroski, violated the court’s sequestration order. Appellant claims

this was a serious violation intended to shape the witness’s testimony. See

Appellant's Br. at 73-74 (citing in support Commonwealth v. Smith, 346

A.2d 757, 760 (Pa. 1975)). Appellant maintains that she is entitled to a new




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trial because the violation influenced the jury and the outcome of the trial.

Id. at 75. We apply the following legal principles.

      The selection of a remedy for the violation of a sequestration order
      is within the sound discretion of the trial court. In exercising its
      discretion, the trial court should consider the seriousness of the
      violation, its impact on the testimony of the witness, and its
      probable impact on the outcome of the trial. We will disturb the
      trial court's exercise of its discretion only if there is no
      reasonable ground for the action taken.

Smith, 346 A.2d at 760 (internal citations omitted) (emphasis added); see

also Pa.R.E. 615.

      The trial court issued a sequestration order in this case.       See N.T.,

11/10/2015 at 27. On the sixth day of trial, the Commonwealth’s witness

Derk Reed testified about a conversation he had with Appellant while standing

in the end zone during a kids’ football game on September 7, 2012. N.T.,

11/17/2015, at 100, 107. Reed testified as follows:

      D.A.: Confine yourself to exactly what you said as you recall and
      how [Appellant] was responding.

      Reed: Well, she was mad. And, as I started pushing harder on
      the fires…. [t]hen she started back and she said ‘You know, your
      home will burn, too.’ And I am like ‘Are you kidding me?’ Then
      she said, you, know, ‘Bo will find you.’ I am looking at her and
      the thing she said to me was disturbing, for two parts. I will say
      the first part of what she said and I will explain the disturbing part
      when we were there. [Appellant] made the comment to me,
      nastiest, craziest voice you could ever hear, she looked at me and
      said “I am going to tell you right now, the last thing [the Victim]
      saw when he was laying on that ground looking up was me.”

      …

      And I was like in shock…


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J-A26036-17


Id. at 108-109.     On cross-examination, defense counsel questioned Reed

about the noise level at the game, suggesting that Reed misheard Appellant.

Id. at 118-119. Following cross-examination, the court adjourned for a lunch

recess.

      Immediately after lunch, the Commonwealth called Brian Wawroski who

testified as follows, in relevant part:

      Q. I want to turn your attention to September 7th of 2012. Do
      you recall where you were that evening?

      A.   Yeah, I believe we were talking about the football game, yep.

      Q.   Where were you, Sir?

      A. I was in the end zone where most of the parents and families
      that know each other, we gather in the end zone. It is quieter
      down there. You don’t have all the band and noise and what
      have you up in the stands. And it is a place that we, you know,
      talk.

N.T., 11/17/2015, at 130-131 (emphasis added).

      On cross-examination, defense counsel asked Wawroski if he met with

Mr. Reed during the lunch recess. Id. at 137. Wawroski admitted that he

walked across the street to Reed’s office and briefly discussed how Reed’s

testimony went, by asking him “how did it go.” Id. Reed told Wawroski that

he was quizzed by the defense on the layout of the field and whether it was

quiet in the end-zone. Id. at 138-139. Upon soliciting this testimony from

Wawroski, defense counsel moved to strike the testimony and for the court to

instruct “on the rules of sequestration that [the witness had] violated.” Id. at

140. The court overruled Appellant’s objection, finding that the subject of the


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J-A26036-17



testimony was what was said by Appellant at the football field in Wawroski’s

presence. Id.

      In its 1925(a) opinion, the trial court acknowledged that Wawroski’s

response on direct “was at least in part informed by what he discussed with

Mr. Reed prior to testifying” and indicated a violation of the court’s

sequestration order had occurred. TCO at 53. However, the court found “the

influence of Mr. Reed did not change [Wawroski’s] testimony in any material

way or prejudice [Appellant].” Id. at 53. Further, the court found any “impact

on the witness’s testimony was limited and it had no impact on the outcome

of the trial.” Id. at 54. The violation of the sequestration order “ultimately

had no material impact [on] the testimony of Mr. Wawroski[], and did not

deprive [Appellant] of a fair trial.” Id. at 55.

      Ultimately, the court decided not to take action based on the reasonable

ground that the violation had no material impact on the testimony and no

impact on the outcome of the trial.    We agree. Because Appellant has failed

to establish that Wawroski’s testimony influenced the outcome of the trial, no

relief is due. See Stevenson, supra. Accordingly, we decline to disturb the

trial court’s exercise of discretion. Smith, supra.

      Fifth, Appellant contends that the court erred in clarifying counts 1, 2,

6, and 14 on the criminal information sheet during jury deliberation.

Appellant's Br. at 76-84; see N.T., 11/20/2015. Appellant contends that the

court’s reinstruction of the jury was improper, that the “judge’s last word is

apt to be the decisive word.”       Appellant's Br. at 80 (citation omitted).

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J-A26036-17



Appellant contends that the court read the criminal information as fact, and

“removed from the jury their right to decide the facts and the verdict.” Id. at

82. Appellant relies on Commonwealth v. Archambault, 290 A.2d 72, 75

(Pa. 1972), which states:

      An expression by the judge that in his opinion the accused is guilty
      leaves an indelible imprint on the minds of the jury. The jury is
      undoubtedly going to attribute to the judge, because of his
      experience in criminal cases, special expertise in determining guilt
      or innocence…. The influence of the trial judge on the jury is
      necessarily and properly of great weight, … and jurors are ever
      watchful of the words that fall from him. Particularly in a criminal
      trial, the judge's last word is apt to be the decisive word.

Commonwealth v. Archambault, 290 A.2d 72, 75 (Pa. 1972) (internal

citations and quotation marks omitted). Appellant’s reliance is misplaced as

the trial judge never stated an opinion that Appellant was guilty.

      Our review of the record reveals that the jury deliberated for over five

hours and was sent home overnight.         The following day, the jury sent a

message to the judge seeking written or oral clarification about specific

counts. See N.T., 11/20/2015, at 2. Defense counsel indicated opposition to

re-reading the instruction for conspiracy or accomplice liability, which the jury

did not request. Id. at 5-6. The parties and court agreed to a re-reading of

the charges for the requested counts: first-degree murder, criminal solicitation

to commit murder, criminal solicitation to commit burglary, and terroristic

threats. See id. at 7-11. For each requested count, the court restated each

element that the jury must find to determine guilt. See id.



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J-A26036-17


      Following the re-reading of the four charges, the district attorney asked

to convene with defense counsel at the bench for a sidebar. Id. at 13. The

district attorney stated:

      D.A.: Your Honor, under the instruction for criminal homicide that
      you gave, clearly it is giving the [j]ury the impression that
      [Appellant] has to be present for criminal liability. As charged, we
      have charged her as a principal and/or accomplice. I know we
      have been down this road in the last day or so discussing this your
      honor, but giving the [j]ury half the tool, [sic] it is a charged
      element.

      COURT: Counsel, here is what I am willing to do and you are
      going to set the record on that request, I will read that one
      sentence and that is it. And I’m going to note [Appellant’s]
      strenuous objection to that.

Id. at 13.

      The court then instructed the jury as follows:

      COURT: Ladies and gentlemen of the Jury, in order to avoid any
      confusion about the charges in this case I am going to read the
      following to you:

              On or about July 1st 2012, the Defendant did intentionally
      cause the death of Frank Spencer at 20 Fairview Drive, Hemlock
      Township, Columbia County. The Defendant having acted as a
      principal or an accomplice in bringing about [the Victim’s] death
      by murder. That is all I have to say on that issue. Again, I hope
      it clarif[ies] the issues for you.

      Defense Counsel: Your Honor, I would ask, that that is simply the
      allegation.

      COURT: Excuse me, that is the allegation. Thank you, Counsel.
      You are absolutely right. That is only the allegation and as in the
      instruction I gave you before, charges are only allegations. They
      are not facts in this case unless you find from the evidence the
      facts that would support such an allegation to reach your
      conclusions. Thank you, Counsel. I appreciate that very much to


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J-A26036-17


      a clarify that for the Jury [sic]. Thank you. Would you pl[e]ase
      take the Jury out to convene their deliberations?

N.T., 11/19/2015, at 14. Thereafter, Appellant moved for a mistrial, claiming

that there was allegedly insurmountable prejudice resulting from re-reading

the allegations to the jury when the jury did not ask for that particular

information. Id. at 15-16. The court denied Appellant’s motion, noting that

the jury was given accurate and specific instructions that the charges were

allegations for the jury to decide. Id. at 15-17. Later that morning, the jury

returned a verdict of guilty on all counts.

      Here, Appellant argues that the court proceeded to read the allegations

from the criminal information sheet without specifying that they were merely

allegations. Appellant’s Reply Br. at 8. However, upon review of the record,

we note that Appellant requested a curative instruction immediately. In the

section quoted above, the trial court clearly clarified to the jury that it was

reading from the Commonwealth’s allegations.

      Appellant suggests that the judge’s words influenced the outcome of the

trial. Appellant's Br. at 83-84. However, as noted by the court, the “record

plainly indicates that the jury was instructed adequately and in accordance

with the law.” TCO at 47. Further, the court reminded the jury that it was

their duty to “find from the evidence the facts that would support such an

allegation to reach [its] conclusions.” See N.T. at 14. Accordingly, we discern

no error. No relief is due.




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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




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