J-A18005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ALLEN WADE                                :
                                           :
                    Appellant              :   No. 1669 WDA 2016

            Appeal from the Judgment of Sentence May 26, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0004799-2014


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 27, 2019

      Allen Wade appeals from the judgment of sentence of two consecutive

life-without-the-possibility-of-parole   sentences   imposed   following   his

conviction of two counts of murder in the first degree and related charges.

We affirm.

      The trial court provided a thorough summary of the facts underlying this

appeal:

            In February 2014, sisters Sarah and Susan Wolfe resided
      together at 701 Chislett Street in the East Liberty section of the
      City of Pittsburgh. Appellant resided next door at 703 Chislett
      Street with his girlfriend, LaShawn Rue.

           On February 7, 2014, at approximately 1:00 P.M., Matthew
      Buchholz, Sarah’s boyfriend, received a Facebook message from
      Garrett Sparks, a physician who worked with Sarah at UPMC.
      Sparks asked Buchholz to check on Sarah because she was late
      for work that morning and nobody had heard from her. At
      approximately the same time, Pittsburgh Police Officer Frank
      Walker received a “well check” request for Susan from her co-
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     worker because Susan also had not yet arrived at work that
     morning.
           Buchholz immediately drove to the Wolfe residence, and
     knocked on the door but did not receive a response. Officer
     Walker arrived shortly thereafter and spoke with Buchholz.
     Buchholz and Officer Walker surveyed the perimeter of the home
     and noticed that Sarah’s vehicle, a lime green Ford Fiesta, was not
     parked on the street. Buchholz left to retrieve a spare key to the
     Wolfe residence from his nearby residence and returned within ten
     minutes to open the door for Officer Walker.

           Officer Walker and Buchholz entered the residence together.
     The alarm had been disarmed, and the two proceeded further into
     the residence to look for Sarah and Susan. Buchholz called out
     for Sarah, but there was no response. He noticed that the
     basement door, which was usually only cracked open, was wide
     open. He looked through the doorway and observed a pair of bare
     legs on the floor of the basement. He immediately pulled back
     and called for Officer Walker. Buchholz then noticed that the
     entryway table was broken, and that blood, which was later
     matched to Susan, was spattered on the walls in the entryway.
     He ran outside onto the porch and collapsed. He remained seated
     on the porch until he was taken to police headquarters for
     questioning.

            Officer Walker proceeded to the basement door. He looked
     down into the basement and observed Susan face down, nude,
     with an apparent gunshot wound to the back of her head. A short
     distance away, he observed Sarah with a blanket over her face
     and blood coming out from underneath the blanket and her left
     arm was “up in the air.” Officer Walker called for a medic, backup
     officers, supervisors, and ordered Buchholz to remain on the
     porch. Backup officers arrived and secured the scene. Several
     homicide detectives, the mobile crime unit, and the medical
     examiner arrived shortly thereafter and began processing the
     scene.

           Susan was lying face-down in the basement, nude, on top
     of a pile of clothing, and was pronounced dead on scene. Upon
     autopsy the cause of death was determined to be a penetrating
     gunshot wound to the head. Susan suffered skull fractures and
     hemorrhages as a result of the gunshot wound. Susan also
     suffered blunt force trauma to the head, multiple lacerations of
     the skull, and seven full thickness lacerations (a laceration where

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     the bone is exposed) to the back hemisphere of her head. The
     full thickness lacerations indicated that she was struck with a hard
     blunt instrument. She additionally suffered blunt force trauma to
     the trunk, and abrasive injuries and faint contusions on her back
     and chest, as well as abraded contusions on her face. There was
     vomit on the ground beneath her face, and feces exiting her
     rectum. Toilet paper was attached to the feces. The presence of
     vomit indicated that she was alive at some point while she was in
     the basement. A spent .38/.357 bullet was recovered from
     between the two cerebral hemispheres near the front of the brain
     during her autopsy. The bullet was damaged, but the crime lab
     was able to identify its rifling characteristics as six lands and
     grooves and a right hand twist.

            Sarah also was lying on the floor of the basement, with a
     comforter over her head, and she was also pronounced dead on
     scene. Upon autopsy the cause of death was determined to be a
     penetrating gunshot wound to the head. Sarah suffered multiple
     contusions and abrasions on the face and neck due to some form
     of blunt force trauma. She also suffered numerous contusions and
     abrasion on all four extremities, consistent with being dragged
     down the basement steps. Sarah’s clothes exhibited bleach marks
     and a purple sticky, slippery liquid was found on her purse and
     her pants. The basement smelled of bleach, and there was fabric
     softener/detergent, consistent with the liquid on the purse, on the
     steps heading to the basement. During autopsy, a spent .38/.357
     caliber bullet was recovered from inside her right eye socket. The
     bullet was heavily damaged, but had a rifling classification of six
     lands and grooves with a right hand twist, and could have been
     discharged from the same firearm that discharged the bullet
     recovered during Susan’s autopsy.

            No car keys, cell phones, or bank cards were found near the
     sisters or in Susan’s purse which was found near the bodies. A
     search warrant was obtained for the bank records of the two
     sisters. The search revealed that an individual attempted to use
     both of their debit cards at the East Liberty Citizens’ Bank branch
     ATM early that morning. Specifically, the following transactions
     were attempted or completed: (1) at 12:44 A.M. a withdrawal
     was denied using Sarah’s card; (2) at 12:45 A.M. a withdrawal
     was denied using Sarah’s card; (3) at 12:46 A.M. a withdrawal
     was successfully made using Sarah’s card; (4) at 12:52 A.M., a
     withdrawal was denied using Sarah’s card; and (5) at 12:53 A.M.
     a withdrawal was denied using Susan’s card.

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            A “BOLO” was issued for Sarah’s Ford Fiesta, and in the early
     morning hours of February 8th the vehicle was located in the
     business district of East Liberty on South Witfield Street. This
     location was approximately three blocks from the ATM machine
     where the withdrawals were attempted or completed. The vehicle
     was secured and subsequently towed for processing.

           Uniformed Police Officer Gregory McGee started his shift on
     February 8, 2014, at 7:00 a.m. Officer McGee, after finishing up
     some initial calls, went to Whitfield Street where the Wolfe vehicle
     was found. Officer McGee walked on Whitfield Street away from
     that area toward Station Street and soon discovered what he
     described as a “pattern” of discarded clothing, including a winter
     black knit hat and a pair of grey sweatpants. The black knit hat
     was laying just off the sidewalk on top of snow and leaves in a pile
     of mulch. The sweatpants were discovered approximately sixty
     feet ahead and were “arranged” on the sidewalk, as if the person
     who had worn them had been standing up and just pulled their
     pants down and stepped out of them like a “fireman’s pants.” The
     sweatpants looked as though they had not been disturbed and had
     been there for only a short period of time. Officer McGee also
     observed a University of Pittsburgh Medical Center (UPMC)
     business card approximately one foot away from the sweatpants.
     The card was that of Cameron Mager, who was a social worker at
     UPMC. The number “4991” was handwritten on the back. Officer
     McGee advised his supervisor as to what he had found and was
     directed to call the homicide detectives who met him at the scene
     shortly thereafter. After the detectives arrived, Officer McGee
     continued to canvass the area and observed some black knit
     items, later identified as a balled up pair of socks, in a garbage
     can in the rear of the Midas Muffler Shop further on Whitfield
     Street.

           The mobile crime unit arrived, documented and collected
     the items discovered on Whitfield Street: the sweatpants, the
     business card, the knit hat, and the socks found in the garbage
     can outside the Midas Muffler Shop. All items were submitted to
     the crime lab for testing. Additionally, the vehicle was inventoried
     after being towed, and several items were tested for DNA and/or
     fingerprints. In total, over 100 items of evidence were collected
     form the Wolfe residence, Sarah’s vehicle, Whitfield Street, and
     the bodies of Susan and Sarah Wolfe. All of the items were
     submitted for forensic testing.

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            The items from Whitfield Street were submitted for DNA
     testing.9 The crime lab found that: (1) the waistband of the
     sweatpants contained a mixture of at least three persons, of which
     Appellant and Rue, Appellant’s girlfriend, could not be excluded as
     possible contributors; (2) a possible bloodstain on the sweatpants
     contained a mixture of two individuals, with Appellant as the major
     contributor; and, (3) the sock contained a mixture of at least three
     persons, from which Appellant could not be excluded. The
     probability of selecting another person in the African-American
     population with the same DNA profile as Appellant is 1 in 3.95
     quintillion.


     9Appellant had provided a DNA sample at an earlier date, on an
     unrelated case, and his DNA profile was stored in the CODIS
     System.


            During the autopsy, red/brown staining was found on the
     leading edge of three of Susan’s right hand fingernails. These
     were clipped and submitted to the Allegheny County Crime Lab.
     The crime lab determined that the fingernails contained a mixture
     of at least three individuals, and that Appellant, Rue, and Susan
     could not be excluded. Due to restrictions in the county crime lab
     math models regarding determining major and minor contributors
     in mixtures of this small size, the crime lab sent the data to Dr.
     Mark Perlin of Cybergenetics for additional testing using
     probabilistic genotyping (TrueAllele). Using TrueAllele, it was
     determined that the DNA found on Susan’s fingernails matched
     Appellant, and that it was 6.06 trillion times more probable than
     a coincidental match to an unrelated African American individual.

              The UPMC business card found on Whitfield Street next to
     the sweatpants was identified by Cameron Mager as a business
     card that he gave to his clients in his capacity as a social worker
     at UPMC. He provided one such card to Susan Wolfe on an initial
     meeting in September 2013. He never met with Appellant. The
     number “4991” found on the back of the business card was not
     written by Mager or the crime lab. The number “4991” was the
     last four digits of the Wolfes’ childhood family telephone number
     in the state of Iowa where the sisters grew up and their parents
     still lived.


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           Police canvassed the East Liberty area for surveillance
     videos to tract the whereabouts of the individual who had
     abandoned Sarah’s vehicle and the person who had attempted to
     use the sisters’ debit cards. They sought videos from several area
     businesses, and recovered videos from Citizen Bank, Target,
     Carnegie Library, Monet Capital at Walnut and Highland, Midas
     Muffler Shop, and the Sunoco Gas/Convenience Store at East
     Liberty Boulevard and Highland Avenue.

            A compilation of the videos was played at trial, which
     spanned the timeframe of February 7, 2014 at 12:32 a.m. to
     approximately 1:12 a.m., [and] showed Appellant dressed in a red
     jacket, grey sweatpants, and white shoes. The videos further
     established that Appellant drove Sarah’s Lime Green Ford Fiesta
     past the Carnegie Library around 12:32 a.m. and parked the
     vehicle on Whitfield Street. He exited Sarah’s vehicle and walked
     toward Centre Avenue. Appellant then walked through the East
     Liberty area, made a left onto Penn Avenue, and walked past a
     Citizen’s Bank ATM and Target Store. Appellant then crossed Penn
     Avenue toward Centre Avenue and made a left onto Kirkwood
     Street. Minutes later he crossed back over Penn Avenue and
     walked toward the area he had originally come from eventually
     stopping at the Citizens’ Bank where he attempted to make a
     withdrawal from the ATM there. While at the ATM, he held two
     PNC Bank ATM cards in front of the ATM camera and attempted to
     cover his face with the light-colored shirt he was wearing. At the
     ATM he used the sisters’ PNC Bank ATM cards ultimately getting
     $600 from the machine using Sarah’s ATM card. After successfully
     making the ATM withdrawal, Appellant walked across Penn Circle
     toward Whitfield Street near where he had parked Sarah’s vehicle
     earlier. Appellant thereafter discarded the grey sweatpants he
     was wearing outside of the Midas Muffler Shop on Whitefield Street
     and continued walking toward Highland Avenue.

           Additionally, Appellant was observed in one of the videos
     emptying his pockets and throwing something into the trash can
     at the front entrance of the Sunoco store on Highland Avenue
     before entering. The police conducted a garbage pull on the
     dumpsters at the Sunoco store on February 13, 2014, and located
     six bags there were from the outside of the Sunoco store. In one
     of the bags, they found an “Iowa Prison Industries” pen. Iowa
     Prison Industries does not conduct business in Pittsburgh. Susan
     and Sarah’s sister, Mary Wolfe, who was an elected member of
     the Iowa General Assembly, worked with Iowa Prison Industries.

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     As part of this relationship, Mary received pens from Iowa Prison
     Industries during facility tours that she would keep at her home
     office in Iowa. Prior to moving to Pittsburgh, Susan worked in the
     reception area of her sister’s home office and often used those
     pens.

            Still photographs of Appellant were created from the Sunoco
     video and distributed to uniform and patrol officers. On February
     19, 2014, Pittsburgh Police Officer Wade Sarver was on patrol in
     the area, attempting to locate the individual from the Sunoco store
     video. He observed fellow Officer John Svitek talking to Appellant
     on his porch at 703 Chislett Street, and immediately recognized
     Appellant as the individual in the Sunoco video. Officer Svitek
     concluded his brief conversation with Appellant, left Appellant’s
     porch, and spoke with Sarver in the street. Officer Svitek had
     been in the area talking to the Appellant because he believed he
     fit the description of the actor based upon a picture he had been
     given earlier in the investigation by Zone Five command staff. The
     two officers conferred about their perception that Appellant
     matched the actor in the Sunoco video, and they returned to 703
     Chislett to maintain contact with Appellant as well as contact their
     superior and homicide detectives. Appellant answered the door
     and invited the officers inside. Sarver contacted the homicide
     office to actually conduct an interview with Appellant, and he
     waited with Appellant until they arrived, approximately fifteen
     minutes later.

            Homicide Detectives interviewed Appellant at his home and
     showed him the Sunoco still photo. Upon viewing the photo,
     Appellant replied, “that sure looks like me.” Appellant was
     subsequently transported to the homicide office and formally
     interviewed there. When asked if he had ever been inside 701
     Chislett Street, Appellant told detectives that he had never been
     in that residence. Without any mention of DNA or semen,
     Appellant gratuitously remarked that they would never find his
     DNA or semen inside the house. Appellant also told the detectives
     that he previously owned a .380 caliber firearm, but he had since
     sold it.

           In investigating Appellant’s statement that he had never
     been in the Wolfe residence before, the detectives discovered that
     Susan and Sarah had been the victims of a burglary on December
     30, 2013, wherein two televisions and two cable boxes were
     stolen. In that incident the means of entry was toward the back

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      of the house, on the same side as Appellant’s residence, through
      a small ground level window that had been pried out, a maneuver
      that would have taken a lot of time and tools. The sisters had
      reported the burglary to authorities, and the police advised the
      sisters to get a security system. The following day, Officer
      Yolanda Roberts visited the home and collected a knit hat from
      the kitchen counter, which the sisters told police did not belong to
      them. The hat had not been subject to further testing at that
      juncture but was retained in the police evidence room.

            That knit hat was submitted to the crime lab for DNA testing
      as part of the homicide investigation. The crime lab determined
      that Sarah and Susan were excluded, but could not draw any
      conclusions regarding Appellant’s DNA profile. The crime lab
      recommended that the data be sent to Dr. Perlin for probabilistic
      genotyping. Using TrueAllele, it was determined that Susan and
      Sarah were excluded, and Appellant’s DNA matched the DNA
      found on the hat, with a finding that it was 65.3 thousand times
      more probable than a coincidence.

Trial Court Opinion, 5/9/18, at 9-21 (citations and footnotes omitted).

      Appellant was arrested and charged with three counts of theft by

unlawful taking, two counts each of criminal homicide and robbery, and one

count each of burglary, access device fraud, and person not to possess a

firearm. The Commonwealth served notice of its intention to seek the death

penalty and filed a notice of its intention to present Pa.R.E. 404(b) evidence.

Specifically, the Commonwealth sought introduction of evidence that the

victims’ home had been burglarized five weeks before the murders, and that

a knit hat recovered during the investigation of that incident contained DNA

that matched Appellant’s profile. Following a hearing, the trial court granted

the motion. Additionally, the court granted a defense motion to sever the

person not to possess a firearm charge.


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      On May 2, 2016, Appellant proceeded to a jury trial on all remaining

charges. Prior to the close of trial, all three of the receiving stolen property

charges were withdrawn. On May 23, 2016, Appellant was found guilty of two

counts of first-degree murder and all remaining charges.           After the jury

hopelessly deadlocked on the death penalty, the trial court imposed a

sentence of life without the possibility of parole for each murder conviction

and consecutive ten-to-twenty year terms of imprisonment for each robbery

and burglary conviction. Appellant timely filed a post-sentence motion, which

was denied. Appellant timely appealed, and both Appellant and the trial court

complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      I.     Did the trial court abuse its discretion when permitting the
             Commonwealth to introduce evidence of a hat that had been
             found at the victims’ home subsequent to a burglary over a
             month prior to the instant offenses in that the evidence was
             not relevant, more prejudicial than probative, and
             inadmissible under both the propensity evidence exception
             and the hearsay rule?

      II.    Did the trial court abuse its discretion when it permitted
             evidence prejudicial to the defense (specifically, PowerPoint
             slides used by Dr. Lorenz during his expert testimony
             regarding DNA testing and analysis) to go out with the jury
             during its deliberations?

      III.   Did the trial court abuse its discretion when it failed to grant
             a mistrial after the Commonwealth elicited testimony from
             a witness, Matthew Buchholz, about a polygraph
             examination related to the double murder?

Appellant’s brief at 9.




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     In his first claim, Appellant argues that the trial court erred when it

admitted a black knit hat recovered after the December 2013 burglary of the

victims’ residence, since it was (1) irrelevant, (2) more prejudicial than

probative, and (3) inadmissible hearsay. Id. at 20. We consider Appellant’s

challenge to the admission of the hat mindful of our standard of review:

     The admissibility of evidence is a matter addressed to the sound
     discretion of the trial court and . . . an appellate court may only
     reverse upon a showing that the trial court abused its discretion.
     As abuse of discretion is not a mere error in judgment but, rather,
     involves    bias,    ill  will,  partiality,   prejudice   manifest
     unreasonableness, or misapplication of law.

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (internal

citations and quotation marks omitted). Additionally, we note that we may

affirm the trial court’s ruling on any basis supported by the record.

Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017).

     By way of background, the victims reported a burglary at their home on

December 30, 2013, five weeks before they were murdered. N.T. Jury Trial –

Volume III, 5/9/16, at 1197. On that occasion, there were signs of forced

entry through a low bathroom window in the side of the house and two

televisions and cable boxes were missing. Id. at 1198. On December 31,

2013, a member of the mobile crime unit responded to the victims’ home in

order to photograph and gather evidence. Id. at 1210. While the officer was

in the residence, Susan pointed out a hat on the kitchen counter that did not

belong to anyone in the home. Id. at 1215. The officer recovered the hat

and placed it into an evidence locker. Id.

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      Two weeks after the murders, a detective interviewed Appellant and

twice asked him if he had ever been inside the victims’ home, either while

they lived there or before. N.T. Jury Trial – Volume Five, 5/13/16, at 2034,

2036. Both times, Appellant denied having ever been inside the home. Id.

Additionally, he volunteered that the police would never find his DNA or semen

inside the house. Id. at 2036. However, at trial, Dr. Mark Perlin testified that

a comparison through probabilistic genotyping showed a DNA match between

the hat recovered during the burglary and Appellant was 65.3 thousand times

more probable than coincidence. N.T. Jury Trial – Volume Four, 5/12/16, at

1804-05. Notably, the victims were excluded as contributors to the hat.

      First, Appellant alleges that the hat was not relevant. Relevant evidence

is admissible if it “tends to establish a material fact, makes a fact at issue

more or less probable, or supports a reasonable inference regarding a material

fact.” Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) citing

to Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). The trial

court found that the evidence was relevant, since it tended to establish that

Appellant had been inside the sisters’ residence previously.        Trial Court

Opinion, 5/9/18, at 24. We agree. The existence of this evidence, placing

Appellant inside the victims’ house, directly contradicted Appellant’s two

statements to police. Thus, the record supports the trial court’s conclusion

that the hat was relevant.




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      Next, Appellant attacks the admission of the hat, and testimony

surrounding its admission, as improper propensity evidence. He contends that

it connected him to a prior burglary although it failed to show that he was in

the victims’ home, since the hat could have been brought inside the home by

one of the sisters. Appellant’s brief at 27.

      Under Pa.R.E. 404(b):

      (1) Evidence of other crimes, wrongs, or acts is not admissible to
      prove the character of a person in order to show action in
      conformity therewith.

      (2) Evidence of other crimes, wrongs, or acts may be admitted for
      other purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity or absence of mistake or
      accident.

      (3) Evidence of other crimes, wrongs, or acts proffered under
      subsection (b)(2) of this rule may be admitted in a criminal case
      only upon a showing that the probative value of the evidence
      outweighs its potential for prejudice.

Notably, if evidence is being offered under one of the exceptions, it is only

admissible if the probative value outweighs the danger of unfair prejudice to

the defendant. Pa.R.E. 404(b)(3).

      By introducing the hat into evidence, the Commonwealth connected

Appellant to the prior burglary at the victims’ residence. When reviewed in

light of Pa.R.E. 404(b), this evidence presented by the Commonwealth

constituted evidence of other crimes committed by Appellant. However, the

Commonwealth posits that the evidence falls within a rebuttal exception,

recognized by our Supreme Court in Commonwealth v. Saxton, 532 A.2d


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352, 357 (Pa. 1987), and reiterated by us in Commonwealth v. Matthews,

783 A.2d 338, 341 (Pa.Super. 2001), which rendered evidence of this type

admissible for a limited purpose. Commonwealth’s brief at 33. We agree.

        Under the precedent established by these cases, the Commonwealth

may introduce evidence of a defendant’s prior crime in order to rebut

statements made by a defendant which created improper or false inferences

favorable to him. Matthews, supra at 341. That is precisely what happened

here.    Appellant’s DNA, present on an article of clothing found inside the

residence six weeks prior to the murders, rebutted Appellant’s self-serving

statements that he had never been in the home, falling squarely within this

well-established exception.

        Further, Appellant has failed to persuade us that the probative value

was outweighed by the evidence’s prejudicial impact.       The Commonwealth

limited its usage of the evidence to permissible grounds:        to show that

Appellant had been in the house before. Further, despite three offers by the

trial court to provide a cautionary instruction, Appellant repeatedly declined

the court’s offer. N.T. Jury Trial - Volume One, 5/3/16, at 405; N.T. Jury Trial

– Volume Three, 5/9/16, at 1218; N.T. Jury Trial – Volume Six, 5/18/16, at

2348. Accordingly, we discern no basis to disturb the trial court’s overruling

of Appellant’s objection to the admission of the hat and all testimony

surrounding it into evidence on this basis.




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         Finally, Appellant attacks the admission of Susan’s identification of the

hat as not belonging to her or her sister, as inadmissible hearsay that does

not fit an enumerated exception. Appellant’s brief at 36. The trial court and

the Commonwealth respond that this statement does not constitute hearsay

because it was not admitted to prove Appellant committed a burglary, but to

explain the detective’s course of conduct. Trial Court Opinion, 5/9/18, at 25;

Commonwealth’s brief at 45. Specifically, the statement was offered to show

why the detective collected the hat as part of her investigation into the

commission of the burglary. Id. We agree.

         Hearsay is “an out of court statement offered for the truth of the matter

asserted and is inadmissible unless it falls within an exception to the hearsay

rule.”     Commonwealth v. Manivannan, 186 A.3d 472, 480 (Pa.Super.

2018); Pa.R.E. 801(c). However, it is well-established that an out-of-court

statement offered, not for its truth, but to explain the witness’s course of

conduct, is not hearsay. Commonwealth v. Johnson, 42 A.3d 1017, 1035

(Pa. 2012).

         Appellant relies on Commonwealth v. Dent, 837 A.2d 571 (Pa.Super.

2003), to argue that, despite the long standing precedent that course of

conduct testimony is not hearsay, the statement was still hearsay as admitted

because it was introduced under the pretext of the course of the detective’s

investigation in order to connect him to the burglary. We disagree.




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       In Dent, the sole issue was the identity of a shoplifter. The appellant

maintained that she was not in the store at the relevant time.             The

Commonwealth introduced the testimony of an officer who identified Appellant

from surveillance footage. In an attempt to strengthen the weak identification

evidence, the Commonwealth sought to utilize an identification made by

appellant’s sister on-scene to that same police officer, as course of conduct

evidence. We found that since the officer had not seen Appellant and the

surveillance footage was unavailable at trial, the entire case hinged upon the

sister’s identification. We expressed concern that the identification evidence

had been presented in the form of an “oblique narrative” relating to the course

of police investigations, and concluded that this aspect of the officer’s

testimony was inadmissible hearsay that should have been excluded. Id. at

580.

       However, Dent is factually distinguishable. Susan’s statement did not

identify Appellant as the owner of the hat, nor did the detective’s testimony

prove that Appellant had been in the house at the time of the burglary. Here,

the statement was plainly not an “oblique narrative”, since it was used solely

to explain the reason why the detective collected the hat.      This was pure

course of conduct testimony. Accordingly, we find that the trial court did not

err when it found that the detective’s statement did not constitute hearsay on

this basis.




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      Appellant’s second issue is an attack on the trial court’s decision to allow

the jury to have access during deliberations to Dr. Lorenz’s PowerPoint slides.

Appellant’s brief at 49-51. The decision as to whether an exhibit should be

allowed to go out with the jury during deliberations is within the sound

discretion of the trial judge, and such choice will not be overturned absent an

abuse of discretion.    Commonwealth v. Dupre, 866 A.2d 1089, 1102

(Pa.Super. 2005); Pa.R.Crim.P. 646(A).          Specifically, Pa.R.Crim.P. 646

provides as follows:

      (A) Upon retiring, the jury may take with it such exhibits as the
      trial judge deems proper, except as provided in the paragraph (B).

      (B) During deliberations, the jury shall not be permitted to have:

            (1) a transcript of any trial testimony;

            (2) a copy of any written or otherwise recorded
            confession by the defendant;

            (3) a copy of the information;

            (4) written jury instructions.

      (C) The jurors shall be permitted to have their notes for use during
      deliberations.

Pa.R.Crim.P. 646.

      At trial the PowerPoint exhibits were admitted, in conjunction with Dr.

Lorenz’s testimony, by motion of the Commonwealth. N.T. Jury Trial – Volume

Three, 5/10/16, at 1408, 1509-10; N.T. Jury Trial – Volume Four, 5/12/16, at

1719. The PowerPoint was not initially sent out with the jury for deliberations.

However, once the jurors asked for the entire PowerPoint presentation, the

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“case specific” portions of it were provided, after an extensive review of the

slides and over multiple defense objections. N.T. Jury Trial – Volume Six,

5/20/16, at 2617-56. Importantly, the trial court found that providing the

PowerPoint slides to the jury was not precluded by the Pennsylvania Rules of

Criminal Procedure or appellate precedent, as the slides did not equate to

transcripts of trial testimony. Id. Additionally, the court determined that any

potential prejudice to Appellant could be cured by a cautionary instruction.

Accordingly, before giving the jury the slides, the court instructed the jurors

not to place undue emphasis on the content of the slides, but to review them

in the context of Dr. Lorenz’s entire testimony. Id. at 2656.

      Appellant concedes that the PowerPoint presentation was admitted into

evidence as a Commonwealth exhibit and that exhibits are generally permitted

to be given to the jury during their deliberations.   Appellant’s brief at 51.

However, he maintains that the trial court’s inclusion of the PowerPoint slides

was the functional equivalent of giving the jury a transcript of Dr. Lorenz’s

trial testimony, absent the cross-examination. Thus, he contends that they

should have been prohibited under Pa.R.Crim.P. 646(C)(1). Id. at 57-60. We

disagree.

      Our Supreme Court has explicitly held that the term “transcript” in Rule

646(C) refers only to a written transcript of testimony. Commonwealth v.

Williams, 9 A.3d 613, 623 (Pa. 2010) (finding that the jury’s review of audio-

recorded trial testimony during its deliberations did not constitute a


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“transcript” that would be prohibited under Rule 646(C), since it was not a

“written, typed or printed copy of testimony orally.”). Perhaps most akin to

our case, in Commonwealth v. Woodard, 129 A.3d 480, 497 (Pa. 2015),

our Supreme Court found that the trial court did not abuse its discretion when

it allowed the jury to review expert medical reports during its deliberations.

The Court explained that medical reports are not “specifically precluded from

examination during deliberations pursuant to Rule 646(C).” Id. Further, no

prejudice arose from the jury’s review of these materials because both expert

reports from the defense and the prosecution were included. Id.

      Viewed plainly, the trial court found that the PowerPoint slides were not

the functional equivalent of “a written reproduction of a witness’s testimony

as a transcript.” Williams, supra at 623. Trial Court Opinion, 5/9/18, at 30.

A review of the certified record and relevant legal precedent supports the trial

court’s conclusion. It was well within the trial court’s discretion to grant the

jury’s request to review these slides as an aid to assist them in unpacking

complex DNA evidence testimony that went on for many hours. Further, just

as in Woodard, the trial court guarded against any potential prejudice when

it delivered a cautionary instruction.   See Commonwealth v. Aiken, 168

A.3d 137, 143 (Pa. 2017) (reiterating the long-held presumption that jurors

follow trial court instructions). Accordingly, no relief is due.

      In his final issue, Appellant argues that the trial court abused its

discretion when it failed to grant a mistrial after the Commonwealth elicited


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testimony from Matthew Buchholz about a polygraph examination. Appellant’s

brief at 64-76. A motion for a mistrial is within the discretion of the trial court.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003). A mistrial

upon motion of one of the parties is required only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial trial. Id. It is within the trial court’s discretion to determine whether

a defendant was prejudiced by the incident that is the basis of a motion for a

mistrial. Id. On appeal, our standard of review is whether the trial court

abused that discretion.

      By way of background, after a pre-trial oral motion in limine by the

defense, both sides agreed to avoid mentioning the fact that Buchholz had

taken a polygraph examination at trial. Buchholz was the first witness called

by the Commonwealth. He explained his actions and interactions throughout

the morning of February 7, 2014, up until the point that he discovered the

victims’ bodies in their basement. The questioning proceeded chronologically,

focusing next on Buchholz’s interactions with the police.           The following

exchange occurred:

      Q.    Without asking any specific questions as to what was done
            at the police station, did you meet with them? Did you
            speak with them?

      A.    Yes, I talked to an officer for – I was there for several hours.
            I talked to a couple of different officers. They asked me to
            take a polygraph test, which I did. I was there for several
            hours talking with them.




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N.T. Jury Trial – Volume One, 5/2/16, at 117-18. The parties immediately

approached sidebar and defense counsel requested a mistrial. Id. at 118.

      The prosecutor represented that he had “deliberately [tried] to steer

clear of [any mention of polygraph testing].”     Id. at 119.   The trial court

agreed that there had been no deliberate attempt by the prosecutor to solicit

the improper reference and refused to declare a mistrial.         Trial counsel

declined the court’s offer to instruct the jury to disregard this information,

reasoning that to do so would only draw more attention to the inappropriate

testimony. Id.

      During a short recess, defense counsel advised the court that she had

spoken with Buchholz, and he had informed her that the Commonwealth had

not instructed him to refrain from any mention of the lie detector test. The

prosecutor responded that he had indeed spoken with Buchholz, but that he

had done so many months before during a pretrial interview. Id. at 153. The

trial court found “that in the pressures attached to testifying and preparation

this was not an intentional conduct on behalf of the prosecutor or the witness.”

Id. at 154.

      The next day, defense counsel presented the court with a curative

instruction that she had prepared. N.T. Jury Trial – Volume One, 5/3/16, at

286-87. At the close of testimony on the second day, the court delivered the

instruction as follows:

            Yesterday you heard the testimony from Mr. Buchholz that
      he took a lie detector test at or during the time of his interview

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      with the Pittsburgh Police homicide detectives. It is recognized
      that these tests and the results lack any established scientific
      reliability, and they are deemed inadmissible in any court
      proceeding because of their inherent [un]reliability. And that is
      the law of the United States and this Commonwealth.

            You are entirely to disregard Mr. Buchholz’s testimony and
      references in that regard, and you may not draw any inferences
      from that part of his testimony. Thus, you may not consider any
      evidence regarding the test.

            Determining the weight and credibility of Mr. Buchholz and
      any witness is your function to be completed consistent with the
      instructions that I have given you and I will give you at the
      conclusion of this case.

Id. at 498-99. The trial court also instructed the jury how to evaluate witness

credibility in both its opening remarks and final charge.       N.T. Jury Trial –

Volume One, 5/2/16, at 17; N.T. Jury Trial – Volume Six, 5/18/16, at 2526-

27.

      In determining whether a reference to a polygraph test warrants a

mistrial, our Supreme Court has provided three factors that guide our

analysis:   “(1) whether the Commonwealth prompted the reference to the

polygraph test; (2) whether the reference suggested the results of the

polygraph; and (3) whether the trial court issued prompt and adequate

instructions regarding the unreliability and inadmissibility of polygraph tests.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013). Next, we

assess the    resulting   prejudice,   considering   “whether   such reference,

considered in the light of the circumstances of the case, cause[d] an inference

to arise as to the defendant’s guilt or innocence.” Id.


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      Appellant   acknowledges     that   the   prosecutor’s   question   did   not

specifically refer to a polygraph test, but nonetheless alleges that the

prosecutor deliberately solicited this testimony anyway through his own

negligence. Appellant’s brief at 69-70. Further, he argues that one could

infer from Buchholz’s mention of the polygraph suggested that he had passed

it, because of the police actions that followed: namely, that law enforcement

quickly eliminated Buchholz as a suspect and directed their focus to Appellant.

Id. at 71.    This inference was especially damaging, he argues, since the

primary defense strategy was to offer Buchholz as an alternative suspect.

Finally, he contends that the trial court’s failure to administer a curative

instruction to the jury until the end of the next day’s testimony, rather than

the beginning of the next day, was “too removed in time to rectify any

prejudice caused by the error.” Id. at 76.

      In declining Appellant’s motion for a mistrial, the trial court relied on the

specific wording of the Commonwealth’s narrow question, and found that the

Commonwealth did not deliberately introduce the remark and that Buchholz’s

statement did not suggest a result. Trial Court Opinion, 5/9/18, at 43-45.

Also, significant to the court’s analysis was the fact that it offered to provide

a cautionary instruction immediately, which the defense rejected. Id. at 45.

We agree.

      We note the following: “[n]ot every mention of a polygraph is prejudicial

or worthy of a mistrial.” Fortenbaugh, supra at 195. The reference was a


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brief, isolated incident that was not solicited by the prosecutor’s question. The

answer did not suggest the results of the polygraph examination, despite

Appellant’s attempt to construe Buchholz’s answer in light of testimony that

was elicited over the next sixteen days. The trial court promptly offered to

deliver a curative instruction, which the defense initially refused. When it was

subsequently requested to do so, the court delivered a thorough and accurate

instruction. Considering the circumstances, we find no abuse of discretion in

the trial court’s denial of a mistrial on this ground. Accordingly, no relief is

due.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2019




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