J-S55011-17

                                  2017 PA Super 282



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KEITH LAMONT BERRY,                        :
                                               :
                      Appellant                :   No. 193 MDA 2017

           Appeal from the Judgment of Sentence December 19, 2016
            In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0000595-2015

BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

OPINION BY DUBOW, J.:                                  FILED AUGUST 31, 2017

        Appellant, Keith Lamont Berry, appeals from the Judgment of

Sentence entered by the Northumberland County Court of Common Pleas

following his convictions after a jury trial of Robbery, Theft by Unlawful

Taking, Receiving Stolen Property, and two counts of Simple Assault. 1 After

careful review, we affirm.

        The underlying facts, as gleaned from the certified record, are as

follows. On May 5, 2015, the victim, Mary McGinley, reported an assault to

police. Mt. Carmel Borough Police Officer Matthew Dillman responded to the

reported assault at the home of the victim’s aunt at 131 West Third Street in

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. § 3701; 18 Pa.C.S. § 3921; 18 Pa.C.S. § 3925; and 18 Pa.C.S.
§ 2701, respectively.
J-S55011-17



Mount Carmel, Pennsylvania. Upon arriving at that location, Officer Dillman

encountered the victim, who stated that Appellant had punched her in the

face inside Appellant’s residence at 24 East Second Street, also in Mount

Carmel.   The victim also reported that Appellant had taken her cell phone

when she tried to call police for help.    Officer Dillman observed fresh and

dried blood on the victim’s shirt and chest area, an open wound across the

bridge of the victim’s nose, a swollen bump on the side of the victim’s

forehead, and the victim’s twisted nose.       Officer Dillman called for an

ambulance.

      Approximately 30 minutes after responding to the home of the victim’s

aunt, Officer Dillman traveled to Appellant’s residence. When he knocked on

the door, there was no answer. Later that evening, Officer Dillman returned

to Appellant’s home with Corporal David Donkochik and several other

officers. Appellant’s wife, Anna Marie Soto, answered the door. When the

officers explained that they were looking for Appellant, Soto claimed that she

did not know Appellant’s location.     During their conversation with Soto,

Corporal Donkochik and Officer Dillman observed droplets, which appeared

to be blood, on the tile floor next to a mop and bucket eight feet inside the

front door in the same location where the victim stated that Appellant had

punched her in the face. The officers photographed the blood droplets and

left Appellant’s home.

      Shortly thereafter, the officers learned of Appellant’s whereabouts and

responded to 50 North Maple Street in Mount Carmel. The officers entered

                                     -2-
J-S55011-17



the apartment and discovered Appellant hiding in the bathroom with Soto.

Appellant was crouching in the shower with the shower curtain closed.

Police arrested Appellant and charged him with the above offenses.

       On October 26, 2016, the day before trial, Appellant filed and litigated

a Motion in Limine seeking to preclude “[a]ny reference, at any stage of the

trial, to the substance being found on the floor of [Appellant’s] apartment,

as ‘blood.’”    Appellant’s Motion in Limine, filed 10/26/16, at 1.   The trial

court denied Appellant’s Motion in Limine.       Appellant proceeded to a jury

trial on October 27, 2016, at which the victim, Corporal Donkochik, Officer

Dillman, and Emergency Medical Technician Michael Amarose testified. The

trial court permitted Corporal Donkochik and Officer Dillman to testify about

observing droplets of blood near a mop and bucket in Appellant’s home

during their conversation with Soto on the date of the incident.      The jury

convicted Appellant of each of the above charges.

       On December 19, 2016, the trial court imposed a term of 9 to 22

months’ incarceration.

       Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court2 complied with Pa.R.A.P. 1925.

       Appellant presents one issue for our review:



____________________________________________


2
 On April 3, 2017, the trial court filed a “Statement In Lieu of Formal
Opinion.”



                                           -3-
J-S55011-17


      Whether the lower court abused its discretion in denial of
      Appellant’s Motion in Limine?

Appellant’s Brief at 5.

      In his sole claim, Appellant avers that the trial court erred in admitting

testimony from Corporal Donkochik and Officer Dillman stating that the

substance they observed “was indeed blood, despite the absence of tests

conducted on the substance.” Appellant’s Brief at 12. Although Appellant

acknowledges that “a lay witness is competent to testify that a stain or

stains appeared to him to be blood[,] Appellant avers that the testimony

“was not stated as an opinion or on the belief the substance may be blood,

but rather a definitive statement that the substance was in fact blood.” Id.

(acknowledging Commonwealth v. Williams, 410 A.2d 880, 885 (Pa.

Super. 1979), which rejected a similar claim and held that lay witnesses may

testify that a stain appeared to be blood).

      The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (citation and quotation omitted).          “Accordingly, a ruling

admitting 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) (citations and internal quotations omitted).




                                     -4-
J-S55011-17


     Relevance    is   the   threshold     for   admissibility   of     evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                   Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence

§ 401.06 et seq., § 403.06 et seq. (2017 ed. LexisNexis Matthew Bender).

     Pennsylvania Rule of Evidence 701 addresses the admission of opinion

testimony by lay witnesses and provides:

     If a witness is not testifying as an expert, testimony in the form
     of an opinion is limited to one that is:

        (a) rationally based on the witness’s perception;

        (b) helpful to clearly understanding the             witness’s
        testimony or to determining a fact in issue; and

        (c) not based on scientific, technical, or other specialized
        knowledge within the scope of Rule 702.

Pa.R.E. 701.

     Generally, lay witnesses may express personal opinions related to their

observations on a range of subject areas based on their personal

                                   -5-
J-S55011-17


experiences that are helpful to the factfinder.       See Commonwealth v.

Davies, 811 A.2d 600, 602 n.1 (Pa. Super. 2002) (citation omitted); see

also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence §

701.05 et seq. (2017 ed. LexisNexis Matthew Bender).                 Pursuant to

Pennsylvania Rule of Evidence 104(a), the trial court exercises its discretion

to determine whether such a lay opinion is helpful to the factfinder, which is

the touchstone of its admissibility.   See Pa.R.E. 104(a); Lewis v. Mellor,

393 A.2d 941, 948-49 (Pa. Super. 1978) (en banc) (describing this

procedure   under   the   Federal   Rules    and   adopting   this   approach   in

Pennsylvania).

      “A lay witness may testify that a certain substance appeared to be

blood without having to subject the substance to chemical analysis.”

Commonwealth v. Glover, 401 A.2d 779, 782 (Pa. Super. 1979) (citation

omitted). This Court has addressed the admission of testimony from a lay

witness that a given substance appeared to be blood on several occasions.

Pennsylvania courts have consistently permitted such testimony. See also

Commonwealth v. Williams, 410 A.2d 880, 887 (Pa. Super. 1979)

(holding that “[a] lay witness is competent to testify that a stain or stains

appeared to him to be blood[,]” and citing McLain v. Commonwealth, 99

Pa. 86 (1881)); Commonwealth v. Schroth, 388 A.2d 1034, 1038 (Pa.

1978) (reiterating the same general rule and concluding it was not error to

show jury a crime scene diagram that indicated a “blood stain” given the


                                       -6-
J-S55011-17


accompanying testimony by the person who created the diagram and the

curative instructions).

      As an initial matter, Appellant mischaracterizes the record in his

argument. Appellant baldly asserts that the testimony “was not stated as an

opinion or on the belief the substance may be blood, but rather a definitive

statement that the substance was in fact blood.”         Id. at 12.    Although

Appellant refers to specific pages of the trial transcript in his brief argument,

Appellant does not include any direct quotations of the objectionable

testimony about which he complains on appeal. See Appellant’s Brief at 10-

12. Appellant’s argument, which is based on the contents of the statements

as well as the implications and inferences from the statements, has telling

omissions, which is ultimately fatal to Appellant's argument on appeal.

      Upon closer inspection, the certified record and the contents of the

trial transcript do not support Appellant’s various averments. Our review of

the certified record and the trial transcript demonstrates that Corporal

Donkochik and Officer Dillman consistently referred to the droplets in the

context of their observations about how the droplets appeared to be blood.

See, e.g., N.T. Trial, 10/27/16, at 75 (“some of the droplets that I had

spoke[n] to you about, which we made the determination appeared to be

blood.”).

      Substantively, we agree with the trial court that the testimony from

Corporal Donkochik and Officer Dillman was not outside the scope of Pa.R.E.


                                      -7-
J-S55011-17


701.   See Trial Court Opinion, 4/3/17, at 1-3.       Corporal Donkochik and

Officer Dillman gave permissible lay opinion testimony regarding their

observations of the blood droplets while inside Appellant’s home during their

conversation with Soto. The trial court’s determination is consistent with the

holding in Glover, supra at 782.

       Additionally, Corporal Donkochik testified about his 24 years of

experience as a police officer and his relevant crime scene training.         N.T.

Trial, 10/27/16, at 75.   Notably, Officer Dillman testified that he directly

observed the victim covered in blood, including blood on the victim’s

clothing, which did not elicit any objection from Appellant.    See id. at 92.

Under Pennsylvania Rules of Evidence 701 and 702, this testimony from

Officer Dillman, to which Appellant did not object, was substantively no

different from the testimony about the droplets of blood on the tile floor.

       The jury was well aware of Appellant’s theory and its obligation to

determine whether the droplets were blood, the victim’s blood, or some

other substance as part of its fact-finding duty.         The Commonwealth

produced Officer Dillman’s photographs of the blood droplets for the jury to

independently review.      See Commonwealth’s Exhibit C-8.            Appellant

emphasized and referred to the substance as “alleged blood droplets”

throughout trial.   N.T. Trial, 10/27/16, at 77, 94.     Appellant extensively

cross-examined Corporal Donkochik and Officer Dillman on this issue, and

both Corporal Donkochik and Officer Dillman testified that they did not test


                                     -8-
J-S55011-17


the substance because they knew the identities of both the victim and

Appellant and they did not need to connect Appellant to the crime scene

given these particular circumstances.

      Moreover, the trial court provided several relevant jury instructions at

trial regarding the Commonwealth’s burden, the jury’s duty to determine the

weight and credibility of the evidence presented, as well as the jury’s

responsibility to judge the “truthfulness and accuracy of each witness’

testimony and decide whether to believe all or part or none of that

testimony.” Id. at 111, 118, 120-21. The trial court emphasized that the

jury is the sole judge of the credibility of the witnesses using their common

sense and “everyday practical knowledge of life” and should give the

evidence and testimony “whatever credibility and weight you think it

deserves.” Id. at 121-22.

      Our conclusion today is consistent with more than a century of

Pennsylvania case law addressing objections to lay opinion testimony

regarding untested substances that appear to the observer to be blood, as

well as the considerable discretion afforded to trial courts. Whether or not

the droplets were the victim’s blood, or blood at all, were matters relating to

the weight and credibility of that evidence properly reserved for the jury as

fact-finder.

      We discern no abuse of discretion or error of law in the trial court’s

determination that Corporal Donkochik and Officer Dillman testified as to


                                     -9-
J-S55011-17


matters within their personal knowledge and experience with respect to the

blood droplets. Thus, Appellant is entitled to no relief.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




                                     - 10 -
