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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOHN MINCH

                            Appellant                  No. 1626 WDA 2014


           Appeal from the Judgment of Sentence February 13, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008111-2009


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED OCTOBER 12, 2016

        John Minch appeals from the judgment of sentence entered on

February 13, 2014, in the Court of Common Pleas of Allegheny County.

After careful review, we affirm.

        On November 15, 2013, Minch was convicted of murdering his ex-wife,

Melissa Groot.     At the time of her murder, on May 6, 1999, Melissa was

living with her second husband, David Groot, and their baby, Gavin, in

Bethel Park, Pennsylvania.        Minch’s daughter with Melissa, Caitlan, was in

the custody of Melissa’s parents, Mary and Frank Michael.

        On the morning of Melissa’s murder, Melissa called her father, Frank

Michael, to tell him that she received a hang-up phone call.        Melissa had

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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plans to have lunch with Frank and Caitlan later that day.     Frank tried to

reassure Melissa that someone may have dialed a wrong number and that

she should lock her doors.

       Detective Terry Hediger testified that the Groot residence received a

call at 8:32 a.m. from a pay phone on South Park Road, a couple of blocks

away from the Groot home.        Detective Hediger also testified that Officer

Frank Marks and his partner located surveillance footage from a security

camera positioned outside a bank on South Park Road, right next door to the

gas station where the call was made to the Groot residence. The footage

recovered from the bank’s security camera revealed a vehicle that matched

the physical description of the 1970 Chevrolet Blazer that Minch was seen

driving on the morning of Melissa’s murder. During Officer Marks’ interview

with Minch, Minch was unable to provide a witness to verify his whereabouts

on the morning of May 6, 1999.

       David Groot, Melissa’s husband, left for work at around 8:20 a.m. on

the morning of May 6. David was working temporarily as an IT professional

at Centimark in Southpointe, Canonsburg.        Mr. John Anthony Bowman,

David’s supervisor at the temporary agency, hand-delivered David his check

sometime between 8:30 a.m. and 9:00 a.m. Mr. Todd Porterfield, David’s

supervisor at Centimark, testified that he saw David sometime after 9:00

a.m.

       Frank picked Caitlan up from preschool at around 11:30 a.m. or 11:45

a.m. and drove to Melissa’s house. Frank rang Melissa’s doorbell a couple of

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times but there was no answer. Frank took Caitlan out to lunch and went

home.   David also tried to call Melissa around 9:30 a.m. to get a phone

number he left at the house. When Melissa did not answer the phone, David

tried calling Melissa several more times throughout the day.

     David left work at around 4:00 p.m. and upon arriving home, he

discovered Melissa lying in the bathtub with her nightgown on, pale, not

moving, with blue lips, and a pool of blood on the bathmat.          Dr. Karl

Williams testified that an autopsy revealed that Melissa’s carotid artery was

completely severed, with two major incised sharp edge wounds across her

windpipe and cutting across the larynx. The autopsy also revealed a long,

deep wound to Melissa’s abdomen and liver, completely severing her aorta.

Either the wound to the neck or the wound to the abdomen would have

caused Melissa’s death.     There were also numerous defensive wounds

located primarily on Melissa’s left hand. The manner of death was ruled a

homicide.

     Detective Hediger testified that he interviewed Minch on May 18, 1999,

at the homicide office in the City of Pittsburgh. Minch stated to Detective

Hediger that he did not know where Melissa and his daughter Caitlan were

living, and that he had never been to Melissa’s house.         Minch provided

Detective Hediger with paperwork indicating that Melissa requested her

home address be removed from court documents.

     The Commonwealth also presented forensic evidence linking Minch to

the murder of Melissa Groot. Pamela Woods microscopically examined hairs

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recovered from Melissa’s hands and nightgown in June 2007.         One of the

hairs recovered from the victim’s hand had a root that Woods believed was

suitable for nuclear DNA testing.     Woods sent the fourteen unknown

questioned hairs, including the hair from the victim’s hand, for additional

testing to Dr. Terri Melton at Mitotyping Technologies.      Dr. Melton, the

Commonwealth’s expert, testified that the laboratory performed “…DNA

extraction, PCR amplification and DNA sequencing on each of those 14

unknown questioned hairs.” N.T. Trial, 11/12/13, at 678.

     There was not enough nuclear DNA, however, to extract from the hair

and form a profile. The mitochondrial DNA testing revealed that one hair in

the victim’s hand could have come from the victim, one hair in the victim’s

hand could have come from Minch, eight hairs from the nightgown could

have come from David Groot, and four hairs from the nightgown were

unsourced.    Minch and his maternal relatives could not be excluded as

possible contributors of the hair found on Melissa’s hand.      At trial, “[t]he

Commonwealth’s expert testified that, statistically, the mitochondrial DNA

profile that was determined to be Mr. Minch’s or that of his maternal

relatives would be expected in one-third of one percent of all North

Americans of any race.” N.T. Trial, 11/12/13, at 686.

     The     Commonwealth    also   presented   evidence   of    the   strained

relationship between Minch and Melissa Groot.    Detective Hediger testified

that when he questioned Minch, he asked if Minch had ever been violent with

Melissa. Minch responded that he had never hit her. The Commonwealth

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presented the trial court with medical records, subsequently admitted into

evidence, that Melissa Groot sought medical treatment in 1996 for a swollen

nose because Minch hit her.       Bryan Schrecengost, a case worker with

Children Youth Services (CYS), testified that CYS first became involved with

Minch after allegations were made that Minch abused Caitlan when she was

three or four years old.     Schrecengost also testified that, “I remember

specifically one incident when [Minch] was very agitated and he told me that

he was going to kill [Melissa].” N.T. Trial, 11/8/13 at 523.

      Richard Lauffer, Charles Volk, and Sean Ball, inmates incarcerated with

Minch while Minch was awaiting trial, testified that Minch admitted to killing

Melissa Groot. Richard Lauffer testified that he met Minch in prison and they

spoke extensively about their charges. According to Lauffer, Minch said that

“[He] killed her, and [he’s] going to get away with it.” N.T. Trial, 11/13/13,

at 935. Charles Volk testified that “[Minch] told me that he used a knife;

that it came from the kitchen counter. He told me she was – he left her in

the bathtub. He has confessed over and over and over again.” Id. at 947.

Sean Ball, also a fellow inmate, testified that Minch told him he killed Melissa

with a knife from the kitchen.

      On March 31, 2009, Minch was charged with one count of first-degree

murder and one count of burglary.      18 Pa.C.S.A. § 2501(a); 18 Pa.C.S.A.

3502(a)(1). On November 15, 2013, a jury found Minch guilty of both first-

degree murder and burglary. On February 13, 2014, the court sentenced

Minch to life in prison for the murder conviction, and to a concurrent term of

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3 to 6 years’ incarceration for the burglary conviction.      Minch filed post-

sentence motions, which were denied.

        Minch filed a notice of appeal on October 3, 2014 and a concise

statement of errors complained of on appeal on February 19, 2015.           On

September 21, 2015, the Honorable Phillip A. Ignelzi filed a Pa.R.A.P. 1925

opinion.

        On appeal, Minch challenges the sufficiency and weight of the evidence

presented at trial:

             1.     Whether the Appellant’s First-Degree Murder
             and Residential Burglary convictions [should] be
             vacated with prejudice due to the Commonwealth’s
             failure to present sufficient evidence of these crimes?

             2.   Whether the trial court abused its discretion
             when it denied Appellant’s post-trial motion seeking
             a new trial owing to his convictions for First-Degree
             Murder and for Residential Burglary being against
             the weight of the evidence?

Appellant’s Brief, at 3.

        When reviewing whether evidence is sufficient to support a conviction

beyond a reasonable doubt, we review the evidence received at trial in the

light   most    favorable   to   the   Commonwealth,     as   verdict   winner.

Commonwealth v. Brown, 52 A.3d 1139, 1164 (Pa. 2012). The ultimate

question of evidentiary sufficiency centers around whether any “rational trier

of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id.




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      To prove first-degree murder, the Commonwealth must prove that the

appellant acted with malice and a specific intent to kill, that a human being

was unlawfully killed, that the defendant committed the killing, and the

killing was deliberate and premeditated. Commonwealth v. Chamberlain,

30 A.3d 381, 394 (Pa. 2011); 18 Pa.C.S.A. § 2502(a).            Circumstantial

evidence alone is sufficient to prove any or all of the elements of a criminal

homicide.     Id.   Furthermore, “the facts and circumstances need not be

absolutely incompatible with defendants’ innocence, but the question of any

doubt is for the jury unless the evidence [is] so weak and inconclusive that

as a matter of law no probability of fact can be drawn from the combined

circumstances.”     Commonwealth v. Sullivan, 371 A.2d 468, 478 (Pa.

1977) (citations omitted); Commonwealth v. Libonati, 31 A.2d 95, 97

(Pa. 1943).

      Minch contends that the Commonwealth failed to present sufficient

evidence to sustain his convictions for both first-degree murder and

residential burglary, violating the due process clauses of Article I § 9 of the

Pennsylvania Constitution and the Fourteenth Amendment of the United

States Constitution.    Specifically, Minch argues that the Commonwealth

“failed to prove beyond a reasonable doubt the element of identity” with

respect to the first-degree murder conviction.      Appellant’s Brief, at 19.

Additionally, Minch argues that the evidence presented was insufficient to

support his conviction for residential burglary because “the Commonwealth’s

proof was deficient in three ways—first, on the element of identity again;

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second on the element of contemporaneous criminal intent; and third, on

the element of unauthorized entry.”1 Id.

       The Commonwealth presented sufficient evidence to sustain Minch’s

conviction    for   both   first-degree        murder   and   burglary.   Firstly,   the

mitochondrial DNA testing of one of the hairs found on Melissa’s hands could

not exclude Minch as the hair’s source. In addition to the forensic evidence,

the Commonwealth presented footage recovered from a bank surveillance

camera that places Minch’s 1970 Chevrolet Blazer near Melissa’s home and

near the payphone where a hang-up phone call was placed to the Groot

residence on the morning of the murder. The Commonwealth also presented

the testimony of three inmates incarcerated with Minch while he was

awaiting trial, and each inmate testified that Minch confessed to killing

Melissa.     Additionally, the Commonwealth presented evidence of the

contentious relationship between Melissa and Minch, including Minch’s past

physical abuse of Melissa.

       We are satisfied that based on the significant circumstantial evidence

presented at trial, a rational trier of fact could have found the essential

elements of both first-degree murder and burglary beyond a reasonable


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1
  A person commits the offense of burglary if, with the intent to commit a
crime therein, the person: (1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is present.
18 Pa.C.S.A. § 3502(a)(1).



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doubt.   The Commonwealth presented substantial circumstantial evidence

concerning Minch’s identity and criminal intent. This Court has held on more

than one occasion that circumstantial evidence may be sufficient to sustain

the Commonwealth’s burden of proof and that a positive identification of the

assailant is not required. See Commonwealth v. Whiteacre, 878 A.2d 96

(Pa. Super. 2005); Commonwealth v. Robertson, 874 A.2d 1200 (Pa.

Super. 2005).   Therefore, we find that the Commonwealth’s evidence was

sufficient to sustain Minch’s conviction for both first-degree murder and

burglary.

      Minch also challenges the weight of the Commonwealth’s evidence.

Appellate courts in Pennsylvania review a weight of evidence claim for an

abuse of discretion.

            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.    Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court's determination
            that the verdict is against the weight of the
            evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)                  (citing
Commonwealth v. Widmer, 744 A.2d 754, 753 (Pa. 2000)).


            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 is abused

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            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.


Clay, 64 A.3d at 1055; Widmer, 744 A.2d at 322 (quoting Coker v. S.M.
Flickinger Co., 65 A.2d 1181, 1184-85 (Pa. 1993)).

            The factfinder is free to believe all, part, or none of
            the evidence and to determine the credibility of the
            witnesses. The trial court will award a new trial only
            when the jury's verdict is so contrary to the evidence
            as to shock one's sense of justice. In determining
            whether this standard has been met, appellate
            review is limited to whether the trial judge's
            discretion was properly exercised, and relief will only
            be granted where the facts and inferences of record
            disclose a palpable abuse of discretion.

Commonwealth v. Smith, 985             A.2d 886, 897       (Pa. 2009) (citing

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008)).

      Minch argues that the trial court abused its discretion when it denied

his post-sentence motion seeking a new trial on the ground that his

convictions were against the weight of the evidence.      Appellant’s Brief, at

52.   We cannot conclude that the trial court abused its discretion when

denying Minch’s post-sentence motion.        Although Minch maintains “certain

facts are so clearly of greater weight that to ignore them or to give them

equal weight with all the facts is to deny justice,” he fails to identify which

facts support his argument. See Thompson, 493 A.2d at 673.

      We agree with the Commonwealth’s assertion that Minch has failed to

explain how the court abused its discretion or demonstrate that the



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Commonwealth’s evidence was so fundamentally inconsistent, unreliable, or

tenuous that it shocks one’s sense of justice. Smith, supra. The trial court

properly concluded “it was within the province of the jury to accept or reject

the expert’s testimony as probative of Minch’s guilt, to assess the value of

the photographs and phone records presented, and to determine the

credibility of the witnesses.” Trial Court Opinion, 9/21/15, at 49. Therefore,

because the verdict rendered based on the evidence presented did not shock

the trial court’s sense of justice, we find no abuse of discretion.     Clay,

supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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