J-A04007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                                 OF
                                                            PENNSYLVANIA
                             Appellee

                        v.

    JOHN E. TORRES

                             Appellant                      No. 1964 MDA 2016


      Appeal from the Judgment of Sentence imposed November 29, 2016
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0003515-2014


BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J:                                     FILED MAY 31, 2018

        Appellant, John E. Torres, appeals from the judgment of sentence

imposed on November 29, 2016 in the Court of Common Pleas of York County

following    Appellant’s     conviction   of   aggravated    assault,   18   Pa.C.S.A.

§ 2702(a)(1). Appellant challenges the sufficiency of the evidence as well as

evidentiary rulings, and claims a violation of due process. Following review,

we affirm.

        In its Rule 1925(a) opinion, the trial court provided the following factual

and procedural history:

             [Appellant] was charged with the following offenses: (1)
        Aggravated Assault; and (2) Criminal Attempt to Murder in the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A04007-18


       First Degree. The incident giving rise to these charges [was]
       alleged as follows.

              On April 29, 2014, the York Area Regional Police Department
       received a dispatch concerning an individual shot multiple [times]
       in the parking lot of 333 Brentwood [D]rive, an apartment
       complex where [Appellant] lived. [Appellant] called the police
       stating that he was an off-duty Baltimore Police Officer and had
       shot David Hohman (herein, “victim”). Upon the officers’ arrival,
       the officers observed the victim shot multiple times inside his
       silver Nissan Altima.

             [Appellant’s] vehicle was parked in the fire lane adjacent to
       the apartment complex with the victim’s vehicle positioned behind
       and up against it. The officers found fourteen (14) shell casings
       surrounding the victim’s vehicle and in the immediate area. The
       victim had been shot more than six (6) times. Upon further
       examination, it was determined that [Appellant’s] Glock service
       weapon had been emptied.

               The victim believed that [Appellant] and victim’s wife were
       having an affair[1] and had gone to [Appellant’s] home to confront
       [Appellant’s] wife. [Appellant] told police that he was fearful for
       his life when he saw the victim pull his car up behind his because
       [Appellant] had received a text message earlier in the day from a
       co-worker advising him that the victim was outside [Appellant’s]
       apartment complex. [Appellant] observed the victim’s car as he
       was leaving his apartment for work and immediately drew his
       firearm and began shooting at the victim. [Appellant] denied
       seeing the victim with a weapon, and no weapon was found on the
       victim’s person or in his car.[2]
____________________________________________


1 Appellant had previously worked as a security officer at a Baltimore grocery
store where both the victim and his wife were employed.

2 Appellant stated that the moment he saw Hohman make a move with his
hand, he began firing because he believed Hohman had a shotgun and was
“crazy.” Appellant’s belief was based on what he considered a murder-suicide
threat by Hohman against Hohman’s wife that occurred on February 3, almost
three months before Appellant shot Hohman. Hohman and his wife both
testified about that incident and stated that Hohman did not threaten her or
himself but the police were called, Hohman’s shotgun was confiscated, and



                                           -2-
J-A04007-18



              After the York Area Regional Police arrived on the scene, the
       victim was transported to York [H]ospital where he was treated
       for gunshot wounds to his upper arm and torso. Shortly after,
       [Appellant] was taken into custody and charged with the above
       listed offenses.

             On September 23, 2016, at the conclusion of the trial, a jury
       unanimously found [Appellant] guilty of Aggravated Assault. On
       November 29, 2016, [Appellant] was sentenced to a term of five
       (5) to ten (10) years’ incarceration.

Trial Court Opinion, 5/25/17, at 2-3.

       Appellant filed a timely notice of appeal. Appellant and the trial court

complied with Pa.R.A.P. 1925. Appellant now asks this Court to consider five

issues on appeal:

       Issue #1: The Commonwealth presented insufficient evidence to
       convict Appellant of Aggravated Assault. Even taking the evidence
       in the light most favorable to the verdict winner, the
       Commonwealth failed to rebut the defense testimony beyond
       reasonable [sic] that Appellant was free from fault in provoking or
       continuing the difficulty which resulted in the use of deadly force,
       (2) he reasonably believed he was in imminent danger of death or
       seriously bodily injury from the victim’s oncoming vehicle and that
       victim was armed with a shotgun, (3) there was necessity to use
       such force in order to save himself, and (4) he could not retreat
       with complete safety.

       Issue[] #2:       The trial court erred when it granted the
       Commonwealth’s motion in limine to limit certain aspects of the
       testimony of [Appellant’s] expert, Emmanuel Kapelsohn. The
       limited aspects of the testimony included, but are not limited to:
____________________________________________


Hohman voluntarily committed himself for three days. Although Hohman
received notice that he could pursue retrieval of the shotgun, he had not done
so. Appellant testified that Hohman’s wife said the gun had been returned to
Hohman. Hohman’s wife denied making that statement. See Notes of
Testimony, Trial, 9/20/16, at 236-38, 326-28, 575-85.


                                           -3-
J-A04007-18


     standard police training of approaching a perceived threat while
     continuing to fire a service weapon, “action v. reaction”
     demonstration, physical and perceptual changes during life-
     threatening events, and effects of police training and experience
     in dealing with individual with mental health issues, such as
     suicide attempts.    The trial court’s decision is based on a
     misreading of Commonwealth v. Light, 326 A.2d 288 (Pa.
     1974), which does not limit state of mind testimony solely to
     psychiatric testimony and does not hold that testimony about a
     defendant’s subjective state of mind is impermissible.

     Issue #3: The trial court erred in limiting aspects of defense
     expert, Emmanuel Kapelsohn’s testimony, regarding physical and
     perceptual changes during life-threatening events by narrowly
     reading Pa.R.E. 702 to require psychiatric testimony when the rule
     permits expert testimony by “knowledge, skill, experience,
     training, or education.” Mr. Kapelsohn had such a combination of
     qualifications as to permit him to testify regarding those aspects
     of his report the trial court deemed “psychiatric” in nature.

     Issue #4:        The trial court erred when it sustained the
     Commonwealth’s objection to the testimony of Joseph Key, the
     training supervisor of Baltimore City Police Department, when his
     testimony was relevant, was more probative than prejudicial, and
     assisted the jury in understanding the intricate and complex
     training Baltimore City Police Officers, such as Appellant, receive
     including but not limited to use of lethal force, perception of
     threats, understanding of action v. reaction, understanding of
     body-alarm reaction, reflexive nature of police training, and
     advancing, but not retreating, against perceived threats. This
     testimony was relevant to place the jury “in the shoes” of
     Appellant when he made the decision to draw his service pistol
     and fire it at the victim in an oncoming vehicle.

     Issue #5: The trial court’s limitations imposed on Appellant’s
     witnesses, both in excluding the testimony in its entirety of fact
     witness, Joseph Key and substantially limiting the testimony of
     expert, Emmanuel Kapelsohn, violated Appellant’s due process
     rights under the 6th and 14th Amendments to the U.S. Constitution
     and Article I, Section 9 of the Pennsylvania Constitution by
     interfering in Appellant’s ability to present his justification
     defense.




                                    -4-
J-A04007-18


Appellant’s Brief at 7-9 (footnote omitted) (emphasis in original) and

Appellant’s Amended Statement of Errors Complained Pursuant to Pa.R.A.P.

1925(b), 5/25/17, at 2-3 (unnumbered).3

       In his first issue, Appellant challenges the sufficiency of evidence, not in

terms of the evidence proving the elements of aggravated assault, but rather

in terms of the Commonwealth’s evidence rebutting Appellant’s claims of

justification or self-defense. In Commonwealth v. Smith, 97 A.3d 782 (Pa.

Super. 2014), we noted that this Court’s standard of review of a sufficiency of

evidence claim is

       whether viewing all the evidence admitted at trial in the light most
       favorable to the verdict winner, there is sufficient evidence to
       enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our judgment for the fact-finder. In
       addition, we note that the facts and circumstances established by
       the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
       drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
____________________________________________


3 Although it appears that Appellant inadvertently neglected to include Issue
#5 in his Statement of “Questions Involved,” we have included it here because
his Rule 1925(b) statement does list the issue, Appellant included it in both
his Table of Contents and Argument (see Appellant’s Brief at vi and 88-100),
and the Commonwealth does not suggest Appellant has waived the issue, as
evidenced by the fact the Commonwealth responded to the issue (see
Commonwealth’s Brief at 55-57). Therefore, we shall address Appellant’s fifth
issue despite the language of Pa.R.A.P. 2116(a) that directs that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”

                                           -5-
J-A04007-18


      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Id. at 790 (brackets omitted) (quoting Commonwealth v. Barnswell

Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005) (additional citation omitted)).

      Again, Appellant was charged with aggravated assault and attempted

first-degree murder. The jury acquitted him on the attempted murder charge

but found him guilty of aggravated assault. As explained in the Crimes Code,

“A person is guilty of aggravated assault if he [] attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the value

of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).

      In his brief, Appellant acknowledges that he “in essence had to concede

the crime[] by raising the justification.” Appellant’s Brief at 40. Therefore,

we shall focus, as does Appellant, on whether the Commonwealth established

sufficient evidence, beyond a reasonable doubt, to rebut Appellant’s

justification defense. With regard to the defense, Section 505 of the Crimes

Code provides, in relevant part:

      Use of force in self-protection

      (a) Use of force justifiable for protection of the person.—
      The use of force upon or toward another person is justifiable when
      the actor believes that such force is immediately necessary for the
      purpose of protecting himself against the use of unlawful force by
      such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.—

                                     -6-
J-A04007-18



     ***

     (2) The use of deadly force is not justifiable under this section
     unless the actor believes that such force is necessary to protect
     himself against death, serious bodily injury, kidnapping or sexual
     intercourse compelled by force or threat; nor is it justifiable if:

        (i) the actor, with the intent of causing death or serious
        bodily injury, provoked the use of force against himself in
        the same encounter; or

        (ii) the actor knows that he can avoid the necessity of using
        such force with complete safety by retreating[.]

     ***

     (2.3) An actor who is not engaged in a criminal activity, who is
     not in illegal possession of a firearm and who is attacked in any
     place where the actor would have a duty to retreat under
     paragraph (2)(ii) has no duty to retreat and has the right to stand
     his ground and use force, including deadly force, if:

        (i) the actor has a right to be in the place where he was
        attacked;

        (ii) the actor believes it is immediately necessary to do so
        to protect himself against death, serious bodily injury,
        kidnapping or sexual intercourse by force or threat; and

        (iii) the person against whom the force is used displays or
        otherwise uses:

           (A) a firearm or replica of a firearm as defined in 42
           Pa.C.S.A. § 9712 (relating to sentences for offenses
           committed with firearms); or

           (B) any other weapon readily or apparently capable of
           lethal use.

18 Pa.C.S.A. § 505(a)-(2).

     In Smith, this Court explained:


                                    -7-
J-A04007-18


     If the defendant properly raises “self-defense under Section 505
     of the Pennsylvania Crimes Code, the burden is on the
     Commonwealth to prove beyond a reasonable doubt that the
     defendant’s    act    was      not     justifiable self-defense.”
     Commonwealth v. McClendon, 874 A.2d 1223, 1229–30 (Pa.
     Super. 2005).

        The Commonwealth sustains this burden if it establishes at
        least one of the following: 1) the accused did not reasonably
        believe that he was in danger of death or serious bodily
        injury; or 2) the accused provoked or continued the use of
        force; or 3) the accused had a duty to retreat and the retreat
        was possible with complete safety.

     Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super.
     2008), appeal denied, 600 Pa. 743, 964 A.2d 894 (2009) (quoting
     McClendon, supra at 1230). The Commonwealth must establish
     only one of these three elements beyond a reasonable doubt to
     insulate its case from a self-defense challenge to the evidence.
     Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super.
     2000), appeal denied, 566 Pa. 657, 782 A.2d 542 (2001). The
     Commonwealth can negate a self-defense claim if it proves the
     defendant did not reasonably believe he was in imminent danger
     of death or great bodily injury and it was necessary to use deadly
     force to save himself from that danger. Commonwealth v.
     Sepulveda, 618 Pa. 262, 288–89, 55 A.3d 1108, 1124 (2012).

        The requirement of reasonable belief encompasses two
        aspects, one subjective and one objective.         First, the
        defendant must have acted out of an honest, bona fide belief
        that he was in imminent danger, which involves
        consideration of the defendant’s subjective state of mind.
        Second, the defendant’s belief that he needed to defend
        himself with deadly force, if it existed, must be reasonable
        in light of the facts as they appeared to the defendant, a
        consideration that involves an objective analysis.

     Commonwealth v. Mouzon, 617 Pa. 527, 551, 53 A.3d 738, 752
     (2012). As the Mouzon Court observed, the use of deadly force
     itself “cannot be viewed in isolation with [the victim] as the sole
     physical aggressor and [the defendant] acting in responsive self-
     defense. [T]his would be an incomplete and inaccurate view of
     the circumstances for self-defense purposes.” Id. at 549, 53 A.3d
     at 751. To claim self-defense, the defendant must be free from

                                    -8-
J-A04007-18


      fault in provoking or escalating the altercation that led to the
      offense, before the defendant can be excused from using deadly
      force. Id. (emphasis added). Likewise, the Commonwealth can
      negate a self-defense claim by proving the defendant “used more
      force than reasonably necessary to protect against death or
      serious bodily injury.” Commonwealth v. Truong, 36 A.3d 592,
      599 (Pa. Super. 2012) (en banc).

Id. at 787-88.

      At the conclusion of trial, the trial court instructed the jury on the

elements of aggravated assault and attempted murder, followed by

instructions on justification. N.T. Trial, 9/23/16, at 785-792. The jury then

conducted its deliberations and returned a guilty verdict on aggravated assault

only. As the trial court explained in its Rule 1925(a) opinion:

      At trial, [Appellant] admitted he used his Glock handgun to shoot
      at the victim repeatedly in order to “stop the threat.” The crux of
      his argument revolves around the theory of justifiable self-defense
      as [Appellant] testified that he believe David Hohman was there
      to kill him.

      Pennsylvania law has long required that when asserting a theory
      of self-defense, the defendant must show that he was: (1) free
      from fault in provoking or continuing the incident which results in
      the killing; (2) must have reasonably believed that he was in
      imminent danger of death of great bodily harm, and such force
      was necessary in order to save himself therefrom; and, (3) the
      defendant did not violate any duty to retreat or to avoid the
      danger. Commonwealth v. Samuel, 590 A.2d 1245, 1247-48
      (Pa. 1991), 18 Pa.C.S. § 505. Once raised, the Commonwealth
      bears the burden to disprove the defense beyond a reasonable
      doubt. Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.
      Super. [] 2008).

      In spite of [Appellant’s] belief, this court finds the Commonwealth
      presented sufficient evidence to disprove a theory of self-defense.
      Notably, evidence was established by the Commonwealth that
      [Appellant’s] belief was unreasonable and the force used


                                     -9-
J-A04007-18


      exceeded the force necessary to protect [Appellant] against
      serious bodily harm.

      The evidence offered at trial illustrated that the volume of shots
      fired and the intended aim of the shots inflicted on the victim were
      above and beyond self-defense. [Appellant] testified that he was
      aiming to kill Mr. Hohman. However, [Appellant] was not in
      danger of death or serious bodily injury at the hands of Mr.
      Hohman. Mr. Hohman was not armed and did not carry a weapon
      which could have killed of inflicted serious bodily injury to
      [Appellant] and Mr. Hohman was traveling at a slow rate of speed
      in his vehicle when [Appellant] opened fire. [Appellant] had prior
      knowledge that Mr. Hohman intended to confront [Appellant]
      and/or [Appellant’s] wife on the day of the alleged incident, and it
      was not established that the confrontation carried a risk of death
      or serious bodily injury to [Appellant] that [Appellant] would be
      justified in using deadly force upon seeing the victim’s vehicle.
      While [Appellant’s] belief may have been real to him, it was not
      reasonable and therefore the use of force used by [Appellant] was
      not justified. Accordingly, this court finds the Commonwealth
      presented sufficient evidence to establish beyond a reasonable
      doubt that [Appellant] did not act in self-defense when he shot
      David Hohman.

Trial Court Opinion, 6/22/17, at 17-18 (some capitalization omitted).        We

agree.    Viewing all the evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude there was sufficient evidence

to enable the jury to find every element of aggravated assault beyond a

reasonable doubt and to find that the Commonwealth disproved the

justification defense beyond a reasonable doubt.        Therefore, Appellant’s

sufficiency claim fails.

      Appellant’s second, third and fourth issues raise evidentiary challenges.

In Commonwealth v. Nypaver, 69 A.3d 708 (Pa. 2013), this Court

explained:


                                     - 10 -
J-A04007-18


      [O]ur standard of review regarding the trial court’s evidentiary
      rulings is deferential. Commonwealth v. Hernandez, 39 A.3d
      406 (Pa. Super. 2012). Accordingly,

         The admissibility of evidence is solely within the discretion
         of the trial court and will be reversed only if the trial court
         has abused its discretion. An abuse of discretion is not
         merely an error of judgment, but is rather the overriding or
         misapplication of the law, or the exercise of judgment that
         is manifestly unreasonable, or the result of bias, prejudice,
         ill-will or partiality, as shown by the evidence of record.

      Id. at 411 (quoting Commonwealth v. Herb, 852 A.2d 356, 363
      (Pa. Super. 2004)).

Id., 69 A.3d at 716.

      In his second issue, Appellant claims trial court error for limiting certain

aspects of testimony from Appellant’s expert, Emmanuel Kapelsohn, a

professional firearms and tactics instructor. Essentially, Appellant argues that

while Kapelsohn was permitted to testify as to shotgun timing testing,

capabilities of a shotgun vis-à-vis one’s ability to retreat, the examination of

the handgun, and the handgun’s rate of fire, the trial court improperly

precluded him from offering testimony regarding Appellant’s state of mind.

Appellant asserts that the trial court reached its conclusion based on a

misreading of Commonwealth v. Light, 326 A.2d 288 (Pa. 1974). Appellant

contends that Light “clearly states ‘psychiatric testimony should be admissible

as to . . . the subjective element of the defendant’s state of mind at the time

of the occurrence.’” Appellant’s Brief at 27 (quoting Light, 326 A.2d at 332).

      The trial court explained its limitation of Kapelsohn’s testimony, stating:




                                     - 11 -
J-A04007-18


      This court does not argue [Appellant’s] interpretation of Light,
      but does disagree with [Appellant’s] conclusion on why this court
      granted, in part, the Commonwealth’s [motion in limine]. This
      court did not limit Mr. Kapelsohn’s testimony because he was not
      a psychiatrist, but because he was not qualified as an expert to
      render an opinion on [Appellant’s] purposed psychological
      response to stress.

Trial Court Opinion, 6/22/17, at 6-7 (some capitalization omitted). The court

then considered the text of Pa.R.E. 702, relating to expert testimony, as well

as Kapelsohn’s education,        training,   background and    experience, and

concluded:

      Upon thorough review of Mr. Kapelsohn’s expert report, this court
      finds that he appears qualified to testify in the area of firearms
      and crime scene reconstruction involving firearms. However,
      there is no indication from Mr. Kapelsohn’s report that he
      possesses any knowledge, skill, experience, training, or education
      to afford him “specialized knowledge” on the subject of a trained
      police officer’s physiological response to a perceived stress of life-
      threatening event. As such, this court found that Mr. Kapelsohn
      was prohibited from being qualified as an expert witness regarding
      physical and perceptual changes during life-threatening events.
      Accordingly, we find [Appellant’s] claim holds no merit.

Id. at 9 (some capitalization omitted).

      We find no abuse of discretion in the trial court’s determination.

Appellant is not entitled to relief.

      Appellant’s third issue also challenges the trial court’s limitations on

testimony presented by Kapelsohn. Specifically, Appellant contends the trial

court erred in finding Kapelsohn was not qualified to testify as to physical and

perceptual changes during life-threatening events.




                                       - 12 -
J-A04007-18


      The trial court rejected Appellant’s assertions, repeating its conclusion

that Kapelsohn “did not possess the ‘specialized knowledge’ that would qualify

him to be able to offer testimony on such topics.”      Id. at 9.   The court

explained:

      This court did not limit Mr. Kapelsohn’s testimony because he was
      not a psychiatrist, or because we narrowly read and applied
      Pa.R.E. 702, but because Mr. Kapelsohn failed to present any
      training, education or experience that would qualify him as an
      expert to render an opinion regarding physical and perceptual
      changes during life-threatening events. This court found that such
      an opinion was well beyond the scope of Mr. Kapelsohn’s expertise
      as a firearms and crime scene reconstruction expert and thus
      granted, in part, the Commonwealth’s motion.

Id. at 10 (some capitalization omitted). As with the previous issue regarding

Kapelsohn’s qualifications, we find no abuse of discretion in the trial court’s

determination that “physical and perceptual changes” was beyond the scope

of Kapelsohn’s expertise as a firearms and crime scene reconstruction expert.

Appellant’s third issue fails.

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

sustaining the Commonwealth’s objection to the testimony of Joseph Key, a

retired training supervisor with the Baltimore City Police Department.

Appellant contents that Key, who was not identified as an expert witness for

the defense, would have offered testimony that was more probative than

prejudicial regarding the training provided to members of the Baltimore police

force, including the use of lethal force, perception of threats, understanding




                                    - 13 -
J-A04007-18


“action vs. reaction,” and the reflexive nature of advancing rather than

retreating.

      Before ruling on the admissibility of Key’s testimony, the trial court

conducted a closed hearing. Based on Key’s testimony in that proceeding, the

trial court determined that Key did not provide any training to Appellant and

was not employed by the police department when Appellant was trained.

Therefore, Key would have little or no knowledge of the training Appellant

actually received or whether Appellant received the training that Key intended

to describe. Trial Court Opinion, 6/22/17, at 11. The court noted:

      In hearing Mr. Key’s testimony during the closed hearing, this
      court was satisfied with, and renewed, its initial ruling to not allow
      Mr. Key to proceed. Mr. Key was first presented to this court and
      counsel as a fact witness to discuss the training that [Appellant]
      received through the Baltimore City Police Department, however,
      upon hearing his full testimony, this court found Mr. Key to be
      expressing an expert opinion.       Mr. Key failed to offer any
      testimony regarding personal knowledge of specific training
      [Appellant] underwent in preparation to become a police officer.
      As such, because Mr. Key was proposing expert opinions, but was
      not qualified to or offered by the defense to testify as an expert,
      this court sustained the Commonwealth’s objection to the
      testimony of Mr. Key and excluded the testimony in its entirety.

Id. at 12 (some capitalization omitted). As the Commonwealth observed:

      Mr. Key’s testimony would have been pure speculation as to what
      was taught to [Appellant] and, therefore, was inadmissible. More
      specifically, Mr. Key failed to offer any testimony regarding
      personal knowledge of specific training that [Appellant] underwent
      in preparation to become a police officer. Moreover, Mr. Key was
      presented as a fact witness. Mr. Key was not qualified as an
      expert to testify as a psychiatric expert regarding [Appellant’s]
      subjective state of mind. As he was not qualified as an expert,
      Mr. Key was improperly proposing expert opinions. As such the
      trial court properly sustained the Commonwealth’s objection and

                                     - 14 -
J-A04007-18


      precluded the jury from hearing Mr. Key’s testimony and there
      was no abuse of discretion.

Commonwealth’s Brief at 53-54.

      We find no abuse of discretion stemming from the trial court’s ruling.

Appellant’s fourth issue fails.

      In his fifth and final issue, Appellant asserts constitutional violations of

his due process rights resulting from the trial court’s limitations on Kapelsohn’s

testimony and preclusion of Key’s testimony, arguing that the court’s rulings

interfered with his ability to present his justification defense.    “A question

regarding whether a due process violation occurred is a question of law for

which the standard of review is de novo and the scope of review is plenary.”

Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (quoting

Commonwealth v. Smith, 131 A.3d 467, 472 (Pa. 2015) (additional citation

omitted)).

      As explained above, we have already determined that the trial court did

not abuse its discretion in limiting Kapelsohn’s testimony or in excluding Key’s

testimony. We agree with the Commonwealth’s suggestion that Appellant’s

due process argument “centers on what he believes to be errors of the trial

court” rather than violations of any constitutional rights.      Commonwealth

Brief’s at 57. As the Commonwealth notes:

      [Appellant] claims that his Constitutional rights were violated
      because the trial court made an evidentiary ruling that was
      contrary to his interests. This logic is flawed. One cannot jump
      to the conclusion that a Constitutional right to present a defense
      was infringed simply because the court’s decision was not to

                                      - 15 -
J-A04007-18


       [Appellant’s] liking. [Appellant] was able to present a defense
       based on admissible evidence at trial. [Appellant] is not entitled
       to present unqualified expert testimony.

       Furthermore, [Appellant] fails to meet the appropriate burden as
       set forth by the United States Supreme Court [in Holmes v.
       South Carolina, 547 U.S. 319, 324 (2006)].[4] More specifically,
       [Appellant] fails to discuss or demonstrate that Pa.R.E. 702
       infringes upon a weighty interest of [Appellant], that the rule is
       arbitrary, or that the rule is disproportionate to the purpose it is
       designed to serve. See Holmes, 547 U.S. at [324]. Thus,
       [Appellant] fails in his claim of unconstitutionality and his
       judgment of sentence should be affirmed.

Id. (some capitalization omitted) (emphasis in original).

       We agree. Appellant has not demonstrated that his due process rights

were violated because Pa.R.E. 702 unconstitutionally infringed upon his

interests. Rather, he has simply established that he disagrees with the trial

court’s application of Rule 702 to the testimony the trial court appropriately

limited or excluded. The trial court explained:

       Mr. Kapelsohn’s testimony regarding human physiological
       reactions while under stress was beyond the scope of his
       qualifications as an expert in the field of firearms and crime scene
       reconstruction     involving    firearms     and   was,    therefore,
       inadmissible. Mr. Key was offered to this court as a fact witness
       but his testimony was that of an expert. However, Mr. Key was
       not qualified by this court to render an expert opinion. As such,
       his testimony was, in its entirety, inadmissible. By excluding
       testimony that was inadmissible this court did not violate
       [Appellant]s due process rights under the 6th and 14th


____________________________________________


4 In Holmes, the United States Supreme Court explained that a defendant’s
right to present a complete defense “is abridged by evidence rules that
infring[e] upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve.” Id. at 324
(internal citations and quotations omitted).

                                          - 16 -
J-A04007-18


     Amendments to the U.S. Constitution and Article I, Section 9 of
     the Pennsylvania Constitution.

Trial Court Opinion, 6/22/17, at 13 (some capitalization omitted). Appellant’s

due process claim lacks merit.

     Finding no merit in Appellant’s contentions, we affirm Appellant’s

judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/31/18




                                    - 17 -
