J-S57043-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
MICHAEL J. STEPHANIC, JR.,                :
                                          :
                 Appellant                :     No. 327 WDA 2016

          Appeal from the Judgment of Sentence October 21, 2015
                in the Court of Common Pleas of Elk County
            Criminal Division at No(s): CP-24-CR-0000388-2013

BEFORE:      FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 07, 2016

      Michael J. Stephanic, Jr. (Appellant) appeals from his judgment of

sentence of life imprisonment following his conviction of first-degree murder.

We affirm.

      In the early hours of September 3, 2013, after a day of arguments

(including one for which police were summoned) and alcohol consumption,

Appellant shot and killed his paramour, June Talmadge, at Eastern Sintered

Alloys, their mutual place of employment.      After hearing from numerous

witnesses, including Appellant, and being instructed on murder of the first

and third degrees, voluntary manslaughter, and voluntary intoxication, a

jury found Appellant guilty of first-degree murder on August 6, 2015.

Appellant subsequently was sentenced to life imprisonment.




*Retired Senior Judge assigned to the Superior Court.
J-S57043-16


      By order filed on October 30, 2015, Appellant’s privately-retained

counsel was permitted to withdraw, and a public defender was appointed.

Following the denial of timely-filed post-sentence motions, Appellant timely

filed a notice of appeal.   Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents one issue on appeal: whether the trial court erred

in denying Appellant’s pre-trial request “for the appointment of, and court

authorization from county funds for the payment of, an expert neuro-

pharmacologist to conduct relation back evaluations of the potential blood

alcohol concentrations of [Appellant] at the time of shooting the victim” and

to offer “expert evidence at trial as to [Appellant’s] level of intoxication and

its effects upon [Appellant’s] behaviors and cognitive reasoning at relevant

times” in order to assert his defense of voluntary intoxication. Appellant’s

Brief at 4.

            It is well-established that indigent defendants have a right
      to access the same resources as non-indigent defendants in
      criminal proceedings. The state has an affirmative duty to
      furnish indigent defendants the same protections accorded those
      financially able to obtain them.         Procedural due process
      guarantees that a defendant has the right to present competent
      evidence in his defense, and the state must ensure that an
      indigent defendant has fair opportunity to present his defense.

Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016)

      However, “the Commonwealth is not obligated to pay for the services

of an expert simply because a defendant requests one. There must be some



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showing as to the content and relevancy of the proposed expert testimony

before such a request will be granted.” Commonwealth v. Curnutte, 871

A.2d 839, 842 (Pa. Super. 2005) (citations omitted).

      Factors the trial court should consider in making a case-by-case

evaluation of a request for an appointed expert include the probable costs of

the expert’s services,   “present or past salary and wages, other types of

income within the preceding year, other contributions for household support,

property owned, available assets, debts and obligations, and persons

dependent for support.”        Commonwealth v. Cannon, 954 A.2d 1222,

1226-27 (Pa. Super. 2008) (some internal quotation marks and citations

omitted).

      “Appointment of expert witnesses and the provision of public funds to

hire them to assist in the defense against criminal charges are decisions

within the trial court’s sound discretion and will not be reversed absent an

abuse thereof.”   Commonwealth v. Wholaver, 989 A.2d 883, 894 (Pa.

2010).

      In his pretrial motion, Appellant sought the appointment of a private

investigator, a forensic psychologist, and a neuropharmacologist. Omnibus

Pretrial Motion, 1/29/2014, at ¶¶ 29-49.      Regarding the neuropharma-

cologist, Appellant averred:

            42. That [Appellant] was consuming copious amounts of
      alcohol in the hours leading up to [the shooting].



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            43. That numerous witnesses described an odor of
      alcoholic beverage emanating from [Appellant’s] breath and
      person.

             44. That numerous witnesses described [Appellant] to be
      potentially intoxicated and to behaving in an irrational and
      illogical state.

            45. That [Appellant] is believed to have been severely
      intoxicated during the events in question[].

            46. That intoxication sufficient to deprive an individual of
      the specific intent to kill is a viable defense in a first[-]degree
      homicide case.

            47. That [Appellant] wishes to retain the services of a
      neuropharmacologist to conduct relation[-]back evaluations of
      the potential blood alcohol concentration and to proffer expert
      evidence as to his level of intoxication and its effects on his
      behavior and cognitive reasoning.

Id. at ¶¶ 42-47.

      The trial court held a hearing on Appellant’s pretrial motions, at which

Appellant testified to his lack of assets and income and to his family’s paying

the $10,000 retainer for his private counsel; Appellant did not indicate

whether he had debts or other obligations, or whether he had other sources

of money for contributing to his expenses.        N.T., 4/3/2014, at 37-43.

Following Appellant’s testimony, counsel stated as follows:

            So far as the request for appointments here, Your Honor,
      there’s a number of circumstances, events that led up to what
      Your Honor heard as far as what took place at Eastern Sintered
      Metals. There was a relationship between these parties, [a]
      somewhat volatile one. There [were] domestic incidents earlier
      in the day that resulted in the police response from the very
      same police department [that arrested Appellant after the
      shooting]. There were witnesses who undoubtedly saw these


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      individuals out and about during the course of the day,
      particularly the number of local drinking establishments.

            I need an investigator to speak with these various
      witnesses. There are individuals who made 911 reports relative
      to this domestic incident. I need an investigator to speak to
      them. …

                                     ***

             Insofar as the neuropharmacology expert, Your Honor, in
      this instance we have evidence of [Appellant] and the victim to
      some extent consuming copious amounts of alcohol. And Your
      Honor well knows, voluntary intoxication can be a defense as to
      first-degree murder. I would like to have some type of relation-
      back testimony here based upon large amounts of alcohol that
      were consumed by [Appellant] to try to ascertain whether or not
      that could provide us with a potential defense. And as Your
      Honor’s well heard, he lacks the resources to do so.

Id. at 48-50.

      The trial court initially denied all of Appellant’s appointment requests,

but, after Appellant moved for reconsideration, it allotted $2,500 for the

appointment of a private investigator.       The court offered the following

explanation for its decision to continue to reject Appellant’s other requests:

            During the portion of the April 3, 2014 hearing on
      [Appellant’s] omnibus pretrial motions when [Appellant’s]
      motions for appointment were considered, [Appellant] initially
      did not intend to present any evidence in support of his
      appointment motions. It was only after prompting by the [c]ourt
      that the testimony of [Appellant] was offered regarding his
      assets and general financial condition but tellingly, there was no
      evidence presented as to the nature, scope or anticipated
      expense as to why a psychiatrist or neuropharmacologist may be
      needed other than the bald assertion that there might be some
      need to have [Appellant] evaluated even though [he] presented
      no prior psychiatric or psychological history. Additionally, while
      defense counsel promoted that alcohol may have been involved


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     with the alleged criminal acts, including homicide, there was no
     competent evidence which developed this position. The basis for
     the retention of a psychiatric or neuropharmacological expert to
     be paid from the public coffers when [Appellant] has retained
     private counsel was not established by a showing of the
     relevancy and content of the proposed experts sought to be
     hired. Instead, it was acknowledged that defense counsel had
     been privately retained and that the payment of any necessary
     experts may have to be ultimately borne by [Appellant]. The
     requisite evidentiary nexus warranting the payment of public
     funds to retain expert witnesses has not been presented.

Order, 7/14/14, at 1-2 (pages unnumbered).

     In arguing on appeal the evidence showing the need for an expert

neuropharmacologist, Appellant largely discusses the testimony that was

ultimately offered at trial, not the evidence that was before the trial court

when it denied Appellant’s request.   See Appellant’s Brief at 18-22 (citing

the trial testimony of numerous witnesses, including Appellant, and that a

breath test taken at 7:00 am estimated Appellant’s blood alcohol content to

be .128). In addressing Appellants reliance on the trial evidence, the trial

court responded as follows:

           At no time prior to trial, however, was the relevance and
     content of the proposed neuropharmacologist evaluation
     developed. No evidence of any breath test or blood test result
     was referred to let alone introduced into evidence prior to trial
     and moreover the pretrial evidence relating to [Appellant’s]
     having consumed alcohol was tenuous at best. There was no
     evidence introduced at the time of the omnibus hearing
     supporting [Appellant’s] motion for the appointment of a
     neuropharmacologist.     Instead, the attorney for [Appellant]
     baldly argued that there was evidence of [Appellant] and the
     victim consuming copious amounts of alcohol to an undefined
     extent as demonstrated in … the transcript of the preliminary
     hearing held before the Honorable Mark S. Jacob of Magisterial


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     District 59-3-03 on November 15, 2013. A review of that
     transcript, however, does not support [Appellant’s] position.
     Robert Nissel, a supervisor at Eastern Sintered Alloys, testified
     that when he spoke to the victim on September 2, 2013, the
     victim had indicated that she and [Appellant] “had a little scuffle,
     he was drinking.”      Jim Rocha, a security guard at Eastern
     Sintered Alloys, testified that when he observed [Appellant] on
     the evening of September 2, 2013, between 9:45 p.m. or 10:00
     p.m., [Appellant] did not appear intoxicated. St. Marys Police
     Officer Peter Largey testified that when he questioned
     [Appellant] on September 3, 2013, about a wrecked white van
     found in the woods across the road from Eastern Sintered Alloys
     earlier that night, [Appellant] relayed that he had been at his
     residence “since the police were there earlier in the night
     because he had been drinking.” Officer Largey also testified on
     cross examination that he smelled alcohol on [Appellant], but did
     not recall observing any bottles or cans of beer at [Appellant’s]
     residence while there to question [him] about the van in the
     woods.

           In short, the evidence fell far short of indicating that
     [Appellant] had consumed “copious amounts of alcohol,” and in
     the absence thereof, entirely failed to suggest or establish how
     an expert witness would be necessary or even helpful in
     establishing any defense based on consumption of alcohol. The
     United States Supreme Court “has not held that a State must
     purchase for the indigent defendant all the assistance that his
     wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S.
     600[] (1974),” but instead has “focused on identifying the ‘basic
     tools of an adequate defense or appeal,’ Britt v. North
     Carolina, 404 U.S. 226[] (1971), and we have required that
     such tools be provided to those defendants who cannot afford to
     pay for them.” Ake v. Oklahoma, 470 U.S. 68 (1985).

           It is again noteworthy that in the year between the denial
     of [Appellant’s] request for the appointments of a forensic
     psychologist and neuropharmacologist, no further requests were
     made even though an allowance was granted for a private
     investigator to assist in uncovering information which may have
     been of some assistance to [Appellant]. If relevant information
     was available to develop additional evidence about [Appellant’s]
     … having imbibed alcoholic beverages prior to the murder, there
     was ample opportunity to do so.            Instead, the generic,


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      nonspecific bases for the requests of [Appellant] were not
      developed. Additionally, there was no indication as of April 2014
      that the funds paid to retain [trial counsel] were not at least in
      part able to be expended on defense costs such as expert
      reports nor was there any evidence that no additional funds were
      provided to [Appellant’s] private counsel by him, his family or
      any other third party after April 3, 2014, the date of hearing on
      [his] omnibus pretrial motions. While [Appellant] was initially
      determined to be indigent and has again been found to be
      indigent, during the proceedings which are material to his post-
      sentence motions, [Appellant] was represented by a private
      attorney who received a retainer sufficient to enter his
      appearance on [Appellant’s] behalf, which in turn led to the
      withdrawal of [his] public defender….

             Not only did the Court have to pry some evidentiary
      presentation from [Appellant’s] counsel at the April 3, 2014
      hearing to support the barren contention that some experts
      might be needed to develop defenses, but the [c]ourt also
      afforded [Appellant] the ability to hire an investigator to delve
      into issues relating to [his] … intake of alcohol during September
      2 and 3, 2013. Despite the passage of more than one year, no
      information was forthcoming nor were the requests for funds to
      retain any experts reasserted. There was also no reference
      during trial that [Appellant] was thwarted in any way from
      promoting a defense even tangentially related to … the amount
      of alcohol he may have imbibed.

            In short, [Appellant] was afforded the means to advance
      and present an adequate defense and the appointment of a
      forensic psychologist or neuropharmacologist was not developed
      or demonstrated to be necessary to assure [Appellant’s] rights.

Trial Court Opinion, 2/24/2016, at 5-7 (some citations omitted).

      Upon review, the trial court’s factual assertions are supported by the

record. Further, from the above discussion it is clear to this Court that the

trial court thoroughly considered the applicable law and made no error in its

application.   Appellant was not entitled to appointment of at the county’s



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expense   a    neuropharmacologist    simply   because    he   requested   one.

Curnutte, 871 A.2d at 842. Rather, he had the burden to show that such

an expert was necessary for him to present an adequate defense, how much

retaining the expert would cost, and that he was unable to pay for that

necessary expert. Konias, 136 A.3d at 1019; Cannon, 954 A.2d at 1227

(“Cannon failed to introduce any evidence as to the cost of retaining an

expert to conduct an evaluation and to testify on his behalf. This is a critical

element of proof in a claim of indigency.”).       The trial court found that

Appellant established none of these prerequisites.

      For the above-quoted reasons offered by the trial court, we hold that

the court did not abuse its discretion in denying Appellant’s request for the

appointment of a neuropharmacologist based upon the record before it at

the time of Appellant’s request.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/7/2016


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