J-S37021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MICHAEL ANTHONY MARTIN,

                        Appellant                  No. 1371 WDA 2015


           Appeal from the Judgment of Sentence May 22, 2015
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0003982-2013


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 22, 2016

      Appellant, Michael Anthony Martin, appeals from the judgment of

sentence entered following his conviction of first degree murder. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

                             FACTUAL HISTORY

             The charges in this case arose from the stabbing death of
      Earl Weygandt, whose body was located on August 7, 2013 in a
      Jeep Grand Cherokee parked on the berm of Pennsylvania Route
      31 in Donegal Township, Westmoreland County.                The
      Pennsylvania State Police discovered Mr. Weygandt’s body after
      they received a report that the vehicle was on fire and that
      someone appeared to be inside. The evidence presented at trial
      established that on August 7, 2013, State police arrived at the
      scene, and a preliminary investigation was conducted. After
      identifying the victim, the police were dispatched to 3 Daily
      Avenue in Charleroi, the residence of Mr. Weygandt’s wife. Their
      daughter, Jeannie Lynn Martin and her husband, [Appellant],
      lived in the basement in Mrs. Weygandt’s home. Mr. Weygandt
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     lived alone in a camper that was parked at the Roaring Run
     Resort. Upon arrival, Pennsylvania State Police Trooper Isaac
     Lanham began questioning Mr. Weygandt’s wife, his
     stepdaughter, and [Appellant]. (Trial Transcript “TT” 1/5/15-
     1/9/15; 1/12/15 295). At trial, Trooper Lanham testified that
     [Appellant] relayed to him that on August 7, 2013, he was doing
     an electrical job in Uniontown and that he had arrived at the
     residential job site at approximately 1:00 p.m. with a man by
     the name of Mike Russo.         (TT 302-303).     [Appellant] told
     Trooper Lanham that he and Mr. Russo worked there until about
     8:00 pm. (TT 304). Trooper Lanham testified that [Appellant]
     related that due to his driver’s license being suspended, he and
     Mr. Russo took the long way home. (TT 305). [Appellant]
     described his route as having driven through the City of
     Uniontown, accessing State Route 40, then driving eastbound on
     Route 40 to Ohio Pyle, which took him to State Route 31. (Id.)
     Trooper Lanham testified that [Appellant] indicated that he made
     it to Mount Pleasant but reported that his car broke down.
     [Appellant] then told Trooper Lanham that he called Mr.
     Weygandt at 9:25 p.m. to ask for a ride or a jump. (TT 306.)
     [Appellant] said that while he was waiting for Mr. Weygandt,
     someone came and picked Mr. Russo up and took him to
     Monessen. Additionally, [Appellant] told Trooper Lanham that
     eventually his friend, Jeff Ritenour, came and jumped his car
     battery and he drove back to Charleroi. (TT 305-307).

           State police later interviewed Mr. Russo and Mr. Ritenour
     about the incident. Initially, both Mr. Russo and Mr. Ritenour
     confirmed [Appellant’s] account. Later in the day, State Police
     questioned Mr. Russo and Mr. Ritenour a second time; during
     the second interview, [b]oth Russo and Ritenour indicated that
     [Appellant] came to them and asked them to cover for him. Mr.
     Ritenour testified that he initially lied to the police and said that
     [Appellant] was at his home on the night of the incident, but
     when they questioned him a second time, he told them that
     [Appellant] did not stay at his house. (TT 419-422).

            After acquiring this information, the state police
     questioned [Appellant] a second time; however, [Appellant]
     maintained his story. (TT 620). Trooper Lanham then asked
     [Appellant] if he would come to the state police barracks in
     Greensburg for further questioning, and he complied. (TT 625).
     At trial, evidence was introduced in the form of an audio visual
     recording of a statement that [Appellant] gave to the police in

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     which he confessed to stabbing Mr. Weygandt. (TT 610, 629).
     [Appellant] argued that he was acting in self-defense. The
     record revealed that Mr. Weygandt was stabbed a total of nine
     times. Matthew Zevoteck, the security guard at Roaring Run
     where Mr. Weygandt lived testified to a prior incident on August
     5, 2013. Mr. Zevoteck testified that Mr. Weygandt called the
     security guard to report that someone was banging on his door
     and windows. Mr. Zevoteck drove up to Mr. Weygandt’s lot and
     found [Appellant] sitting at the picnic table on Mr. Weygandt’s
     trailer lot saying that his car had broken down. (TT 225-247).

            Glenn Bard, the Chief Technical Officer of PATCtech
     testified that he reviewed three sets of cell phone records that
     had been obtained by investigators during the investigation. (TT
     529). Mr. Bard testified that he reviewed the pinging of Mr.
     Weygandt’s and [Appellant’s] cell phones and was able to
     determine communication between the two cell phones and the
     locations of each cell phone during the incident. (TT 529-554).
     [Appellant] elected not to testify at trial.

                         PROCEDURAL HISTORY

           On or about August 8, 2013, [Appellant] was arrested and
     charged with Criminal Homicide and Murder of the First Degree.
     After the preliminary hearing, the First Degree Murder Charge
     was held for court, and the Criminal Homicide charge was
     amended to Murder of the Third Degree.         [Appellant] was
     charged as follows:

          1. Count One: Murder of the First Degree, in
          violation of 18 Pa.C.S.A. § 2502(a).

          2. Count Two: Murder of the Third Degree, in
          violation of 18 Pa.C.S.A. § 2502(c), 1st degree
          felony.

            On January 5, 2015, [Appellant] proceeded to a jury trial
     before this [h]onorable [c]ourt. During trial, [Appellant] was
     represented by Attorney Brian Aston.      Testimony began on
     January 5, 2015 and lasted until January 9, 2015. On January
     12, 2015, the jury returned a verdict of guilty of murder of the
     first degree. On March 26, 2015, [Appellant] was sentenced at
     Counts One and Two to a mandatory sentence of life in prison
     without the possibility of parole at a State Correctional

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      Institution. On March 27, 2015, [Appellant] timely filed Post-
      Sentence Motions. On March 31, 2015, Mr. Aston withdrew as
      counsel, and on the same date, this Court appointed Attorney
      Tim Andrews to represent [Appellant]. On May 22, 2015, this
      Court entered an order amending the sentence dated March 26,
      2015 to reflect that [Appellant] was convicted [and sentenced]
      on Count One alone. One June 23, 2015, [Appellant] filed
      Amended Post-Sentence Motions.        A hearing on the Post-
      Sentence Motions was held on August 18, 2015, and all Post-
      Sentence Motions were denied. On August 31, 2015, [Appellant]
      filed a timely Notice of Appeal to the Superior Court. On
      September 14, 2015, this Court received the docketing
      statement from the Superior Court accepting the appeal.

Trial Court Opinion, 11/3/15, at 1-4. Both Appellant and the trial court have

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

      Appellant raises the following issues for our review:

      I. DID THE TRIAL COURT ERR IN PERMITTING THE
      INTRODUCTION OF MULTIPLE AUTOPSY PHOTOGRAPHS WHEN
      THEY WHERE [sic] OF LITTLE TO NO PROBITIVE [sic] VALUE
      GIVEN THE ADMISSION OF THE DEFENDANT AND THE OTHER
      EVIDENCE?

      II. DID THE TRIAL COURT ABUSE IT’S [sic] DISCRETION IN
      DETERMINING THAT THE VERDICT OF THE JURY WAS NOT
      AGAINST THE WEIGHT OF THE EVIDENCE IN THAT THE JURY
      FAILED TO GIVE ANY WEIGHT TO SIGNIFICANT EVIDENCE OF
      SELF-DEFENSE?

Appellant’s Brief at 4.

      Appellant first argues that he is entitled to a new trial because the trial

court erred in admitting certain photographs into evidence. Appellant’s Brief

at 9-13.    Specifically, Appellant contends that the photographs of the

victim’s autopsy were inflammatory and graphic and would have so inflamed




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the minds of the jurors that they would not be impartial with regard to

Appellant’s claim of self-defense.

      Before addressing the merits of Appellant’s claim, we must determine

whether Appellant properly has preserved the issue for our consideration. It

is well settled in Pennsylvania that a party must make a timely and specific

objection at trial in order to preserve an issue for appellate review.

Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo, 641 A.2d 1176,

1185 (Pa. Super. 1994) (citation omitted) (“In order to preserve an issue for

review, a party must make a timely and specific objection at trial”). Failure

to do so results in waiver of that issue on appeal. See Pa.R.A.P. 302(a).

      With respect to preserving challenges to the admission or exclusion of

evidence, Pa.R.E. 103 addresses rulings on evidence and requires a

contemporaneous objection in order to preserve a claim of error in the

admission of evidence and provides, in relevant part, as follows:

      (a) Preserving a Claim of Error. A party may claim error in a
      ruling to admit or exclude evidence only:

      (1) if the ruling admits evidence, a party, on the record:

            (A) makes a timely objection, motion to strike, or
            motion in limine; and

            (B) states the specific ground, unless it was apparent
            from the context. . . .

Pa.R.E. 103(a).   However, Pa.R.E. 103 further provides that once the trial

court enters a definitive ruling on the record, either before or during trial,




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“a party need not renew an objection or offer of proof to preserve a claim of

error for appeal.” Pa.R.E. 103(b).

     Our review of the certified record reflects that the Commonwealth

called Trooper Richard Nuttall of the Pennsylvania State Police to testify

regarding his responsibility of attending the autopsy of the victim performed

by Doctor Cyril Wecht.         N.T., 1/5-12/15, at 472-493.     Trooper Nuttall

testified that part of his purpose in attending the autopsy was to take

photographs as it was performed. Id. at 473. Before the Commonwealth

even began questioning the trooper about the photographs or attempted to

introduce the photographs into evidence, defense counsel requested to

approach the court, and a sidebar was conducted.           Id. at 475.   At the

sidebar,   defense   counsel    argued   that   the   photographs,   marked   as

Commonwealth Exhibits 39 through 49, were overly graphic and that it

would be prejudicial and inflammatory to introduce them into evidence. Id.

at 475-476.   After the trial court dismissed the jurors, Appellant’s counsel

made the following argument to the trial court:

     Your Honor, I do concede that there is a jury instruction wherein
     the jury can infer intent to kill whenever a deadly weapon is
     utilized on a deadly part of the body. I don’t believe that it’s
     necessary to show them graphic photos of an injury that was
     inflicted by a knife when you can say he was stabbed in the
     chest that pierced his heart, he was stabbed in the side of the
     neck and his trachea was severed. I mean, the jury understands
     those are vital parts of the body. This is about whether or not
     it’s absolutely necessary to show the jury this evidence or
     whether it’s overly inflammatory. And I believe that there’s less
     inflammatory ways for the Commonwealth to be allowed to make
     their argument.

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Id. at 479-480.

      The trial court then took a brief recess to review the photographs in

question.   Id. at 480.   The proceedings then reconvened in the judge’s

chambers, and the trial judge specifically went through each of the

photographs in question and discussed his determination regarding their

admissibility. Id. at 480-486. Indeed, the trial court reconvened with the

following comment:

      I’ve reviewed the pictures, and I do agree with [the District
      Attorney] that the jury is entitled to see the pictures. However,
      it doesn’t make sense to show them duplicates of the pictures.
      So I’m going to limit the photographs, and I’m going to need
      your help to tell me what some of these pictures of the vital
      organs are exactly because I think they’re duplications.

Id. at 480-481.    Subsequently, the trial judge and the District Attorney

reviewed each photograph on the record, and the trial court specifically

excluded Commonwealth Exhibits 39, 40, 46, and 47. Id. at 481-486. The

trial court permitted the remaining photographs to be shown to the jury. At

no time did Appellant’s counsel make any objection regarding the trial

court’s evidentiary determination with regard to particular photographs.

      Thereafter, the proceedings reconvened in the courtroom before the

jury, at which time Trooper Nuttall was presented with Commonwealth

Exhibits 38, 41, 42, 43, 44, 45, 48, and 49. Id. at 488. Specifically, the

following transpired:

      [District Attorney]: Do [the photographs] show the injuries to
      [the victim] as well as the damage that was done to his clothing?

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       [Trooper Nuttall]: That is correct.

       [District Attorney]: And are they fair and accurate depictions of
       his physical injuries as well as his clothing?

       [Trooper Nuttall]: Yes.

              [DISTRICT ATTORNEY]: Your Honor, I’d move to
              admit those exhibits.

              THE COURT: [Defense counsel]?

              [DEFENSE COUNSEL]: No objections.

              THE COURT: They are admitted.

Id. at 488-489 (emphasis added).

       We conclude that, although he lodged an anticipatory objection prior to

the Commonwealth presenting the photographic exhibits to the witness,

Appellant’s counsel failed to make a timely and specific objection to the

photographs at the time that they were actually moved for admission.

Accordingly, while it might have been prudent for defense counsel to make

an anticipatory objection before the evidence was admitted, we are left to

conclude that his statement of “No objections” when prompted by the trial

court resulted in waiver of this issue for appellate review.1



____________________________________________


1
  We further note that after Appellant was afforded some relief, i.e., through
the exclusion of certain photographs and the fact that the trial court directed
the victim’s face be covered in particular photographs, Appellant still failed
to raise an objection.



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     Furthermore, even if this issue had not been waived, we would

conclude that it lacks merit. As   a    panel   of   this   Court   observed   in

Commonwealth v. Hetzel, 822 A.2d 747, 765 (Pa. Super. 2003), “[t]he

viewing of photographic evidence in a murder case is, by its nature, a

gruesome task.”    In Commonwealth v. Robinson, 864 A.2d 460 (Pa.

2004), our Supreme Court aptly summarized the law to be applied in these

circumstances as follows:

           It has been a steadfast principle of our jurisprudence that
     pictures of the victim are not per se inadmissible. In relation to
     admissibility of these photographs, we have promulgated the
     following test:

           [A] court must determine whether the photograph is
           inflammatory. If not, it may be admitted if it has
           relevance and can assist the jury’s understanding of
           the facts. If the photograph is inflammatory, the
           trial court must decide whether or not the
           photographs are of such essential evidentiary value
           that their need clearly outweighs the likelihood of
           inflaming the minds and passions of the jurors. If an
           inflammatory photograph is merely cumulative of
           other evidence, it will not be deemed admissible.

     “The admissibility of photos of the corpse in a homicide case is a
     matter within the discretion of the trial court, and only an abuse
     of discretion will constitute reversible error.”      As we also
     explained . . . :

           A criminal homicide trial is, by its very nature,
           unpleasant, and the photographic images of the
           injuries inflicted are merely consonant with the
           brutality of the subject of inquiry. To permit the
           disturbing nature of the images of the victim to rule
           the question of admissibility would result in exclusion
           of all photographs of the homicide victim, and would
           defeat one of the essential functions of a criminal
           trial, inquiry into the intent of the actor. There is no

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            need to so overextend an attempt to sanitize the
            evidence of the condition of the body as to deprive
            the Commonwealth of opportunities of proof in
            support of the onerous burden of proof beyond a
            reasonable doubt.      Further, the condition of the
            victim’s body provides evidence of the assailant’s
            intent, and, even where the body’s condition can be
            described through testimony from a medical
            examiner, such testimony does not obviate the
            admissibility of photographs.

Robinson, 864 A.2d at 501-502 (citations omitted).

       The trial court addressed this issue as follows, which we adopt as our

own:

              During a sidebar, the Commonwealth moved to admit
       twelve autopsy photographs of Earl Weygandt. [Appellant’s]
       counsel objected to the admissibility arguing that the
       photographs were “overly graphic” and “overly prejudicial and
       inflammatory.”      (TT 475-476).        The trial court carefully
       considered the photographs and took great lengths in limiting
       and minimizing any prejudicial effect to [Appellant]. Exhibits 39,
       40, …, 46, and 47 were excluded due to duplication or their
       inflammatory nature. Exhibits 38, 41, [42,] 43, 44, 45, 48, and
       49 were admitted with the limitation that the Commonwealth
       was required to redact the decedent’s face in the photographs.
       This was done to, both, preserve the dignity of the victim and to
       reduce prejudice to [Appellant]. (TT 473-436). The remaining
       photographs or portions of photographs clearly demonstrated
       essential evidentiary value. Namely, Trooper Richard Nuttall
       testified that he took the photographs at the autopsy, and he
       described the injuries that the decedent sustained. (TT 488-
       492). The forensic pathologist, Dr. Cyril Wecht, also testified
       relative to the exhibits. Dr. Wecht testified to the procedure of
       how an autopsy is conducted. (TT 582-583.) Additionally, Dr.
       Wecht used some of the photographs to more specifically explain
       the nature of the victim’s injuries to the jury. (TT 586-604).
       These photographs were properly admitted, and [Appellant] is
       not entitled to a new trial on this basis.




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Trial Court Opinion, 11/3/15, at 6. Thus, on the basis of the analysis stated

above and our review of the photographs, which we have not found to be

inflammatory, we conclude that Appellant’s claim lacks merit.

      In his second issue, Appellant argues that the trial court erred in

failing to grant his motion for a new trial based on the weight of the

evidence. Appellant’s Brief at 14-15. Specifically, Appellant contends that

the verdict reflects that the jury ignored evidence that he was acting in self-

defense at the time of the murder.

      In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

             A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. Commonwealth v. Widmer, 560
      Pa.    308,    319,    744    A.2d   745,     751-[7]52    (2000);
      Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
      1189 (1994). A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Widmer, 560
      A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial
      judge is to determine that ‘notwithstanding all the facts, certain
      facts are so clearly of greater weight that to ignore them or to
      give them equal weight with all the facts is to deny justice.’” Id.
      at 320, 744 A.2d at 752 (citation omitted). It has often been
      stated that “a new trial should be awarded when the jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice and the award of a new trial is imperative so that right
      may be given another opportunity to prevail.” Brown, 538 Pa.
      at 435, 648 A.2d at 1189.

            An appellate court’s standard of review when presented
      with a weight of the evidence claim is distinct from the standard
      of review applied by the trial court:

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          Appellate review of a weight claim is a review of the
          exercise of discretion, not of the underlying question
          of whether the verdict is against the weight of the
          evidence. Brown, 648 A.2d at 1189. Because the
          trial judge has had the opportunity to hear and see
          the evidence presented, an appellate court will give
          the gravest consideration to the findings and reasons
          advanced by the trial judge when reviewing a trial
          court’s determination that the verdict is against the
          weight of the evidence.          Commonwealth v.
          Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
          One of the least assailable reasons for granting or
          denying a new trial is the lower court’s conviction
          that the verdict was or was not against the weight of
          the evidence and that a new trial should be granted
          in the interest of justice.

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            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.

     Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
     [11]85 (1993)).



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Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      The jury, sitting as the finder of fact, chose to believe the evidence

presented by the Commonwealth and to disregard the evidence of self-

defense presented by Appellant, as was its right.        The trial court aptly

explained:

             Based upon this Court’s review of the entire record, this
      Court does not find that the jury’s verdict is so contrary to the
      evidence as to shock this Court’s sense of justice. The jury was
      certainly capable of determining whether to believe all, part, or
      none of the evidence with respect to whether the Commonwealth
      met its burden and to determine the credibility of each witness.
      In the present case, this Court finds that all of the evidence that
      the jurors had available them was overwhelmingly in support of
      the verdict rendered. Through the duration of the trial, the
      jurors considered the following testimony: Trooper Lanham who
      testified that [Appellant] drove entirely out of the way to get
      back home on August 7, 2013; the testimony from Trooper
      Lanham and Mr. Ritenour who testified that [Appellant] asked
      Mr. Russo and Mr. Ritenour to lie for him; [Appellant’s] recorded
      confession; Mr. Bard’s testimony regarding cell phone pinging;
      and Mr. Zevoteck’s testimony that showed that [Appellant]
      attempted to lure Mr. Weygandt out on a prior occasion. It is
      the opinion of this Court that all of these relevant facts clearly
      support the jury’s finding that [Appellant] acted willfully,
      deliberately and with premeditation in bringing about the death
      of Mr. Weygandt. Accordingly, it is the opinion of this Court that
      the jury’s verdict was not against the weight of the evidence and
      that the verdict should stand.

Trial Court Opinion, 11/3/15, at 7. Thus, we decline Appellant’s invitation to

assume the role of fact finder and reweigh the evidence.       Accordingly, we




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conclude that the trial court did not abuse its discretion in determining that

Appellant’s weight of the evidence claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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