J-S72036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID WILLIAM SLEETS,                      :
                                               :
                       Appellant.              :   No. 1047 MDA 2018


        Appeal from the Judgment of Sentence Entered June 21, 2018,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division at No(s): CP-36-CR-0000073-2015.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 05, 2019

       David Sleets appeals from the judgment of sentence after a jury found

him guilty of criminal attempt (homicide), aggravated assault, two counts of

kidnapping, and one count of endangering the welfare of children.1            After

careful review, we affirm.

       The trial court summarized the relevant facts in part as follows:

             Johnnette Hill ("Hill") testified at trial that [Sleets], whom
          she had dated for thirteen years, was the father to her four
          children. The youngest child, Jahniyah Sleets ("victim"), was
          three-years-old at the time of trial. After the victim was
          born, [Sleets] and Hill broke up, at which time Hill moved
          back into her mother's home with the children because her
          relationship with [Sleets] was "terrible." Two days before
          this incident, Hill had called the police to report that [Sleets]


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1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2901(a.1)(2), 2901(a.1)(3), and
4304(a), respectively.
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         jumped in her face and said, "I'll kill my own." Hill took that
         to mean [Sleets] was referring to his own children.

            In the early morning hours of November 11, 2014, after
         working a 3:00 p.m. to 11:30 p.m. shift, Hill arrived home
         and saw her mother on a couch with the victim. [Sleets] was
         also in the home, seated at a computer. When her mother
         went to bed, Hill sat down on the couch and fell asleep with
         the victim in her arms.

            Hill was awakened when she felt [Sleets] taking the
         victim out of her arms. Hill headed towards the kitchen, saw
         [Sleets] hovering over a bag, and heard the muffled cries of
         the victim coming from the bag. When Hill yelled for
         [Sleets] to give her the baby, [Sleets] ran out the back door
         with the bag and Hill gave chase.

            After chasing [Sleets] through an alleyway and cornering
         him in the Lancaster garage, Hill saw [Sleets] throw the bag
         under a van and run away. Hill opened the bag and pulled
         the victim out of the bag. The victim was "stiff as a board"
         and was covered in blood. Hill then exited the parking
         garage and ran with the victim a short distance to Lancaster
         General Hospital ("LGH").

Trial Court Opinion, 8/28/18, at 2-3 (citations omitted).

      Sleets was apprehended and charged with the above offenses.            On

March 13, 2018, Sleets filed a motion in limine to exclude two color

photographs depicting the victim with a severe laceration to the left side of

her face. Officer Paul Blanchflower took the photographs of the victim on the

night of the incident in the trauma bay of Lancaster General Hospital. At the

beginning of the jury trial, on March 26, 2018, the court denied the motion in

limine, and allowed the photographs to be admitted.

      During trial, three medical doctors testified as to the victim’s injuries.

Dr. Brett Levy, an emergency department physician at Lancaster General



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Hospital, testified that the victim had "a fairly long, deep laceration that went

roughly from the base of the skull in the left posterior, from what I can recall,

and it came around towards the front of her neck." N.T. at 286-87.

Additionally, Dr. Levy noted that the victim was in shock because of trauma

and blood loss.

      Dr. Brett Engbrecht, a pediatric surgeon at Penn State Children’s

Hospital, operated on the victim after she was flown from Lancaster General

Hospital to Hershey. During trial, he testified that the cut on the victim went

under her jaw and down to her esophagus. He also testified that a fragment

of the victim’s jaw bone had broken off from the cut, and that the victim would

have died if not for the surgery.

      Finally, Dr. Wayne Ross, Lancaster County Forensic Pathologist,

summarized at trial that the victim was cut and stabbed while inside the bag

numerous times with significant force. The victim went into shock, suffocated

while in the bag, and the wounds would have been fatal if not for the quick

medical treatment. Moreover, the nature of the injuries reflected an attempt

to decapitate the child.

      On March 29, 2018, the jury found Sleets guilty on all charges. On June

21, 2018, following the completion of a pre-sentence investigation report, the

trial court imposed an aggregate sentence of 26-52 years’ incarceration.

Sleets filed a timely notice of appeal on June 27, 2018. Both Sleets and the

trial court have complied with Pa.R.A.P. 1925.

      Sleets raises the following issue for our review:

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         Did the trial court err by failing to exclude color photographs
         vividly depicting the victim’s injuries when in the trauma
         bay?

Sleet’s Brief at 4.

      The photographs that Sleets challenges, depict “a one-month old child,

lying on a hospital bed with open, gaping wounds.” Id. at 10. Sleets asserts

“that the digital photos possess inflammatory qualities likely to inflame the

passions of the viewer.” Id. at 9. He further argues that the Commonwealth

presented ample testimony from the doctor-witnesses to prove the nature and

extent of the victim’s injuries.    As such, the photographs were merely

cumulative, and therefore, unnecessary.

      The   Commonwealth      responds    that   the   photographs    were   not

inflammatory, that they were highly relevant to assist the jury in

understanding the facts and expert testimony, and were necessary to show

that Sleets possessed the requisite intent to commit murder. Additionally, the

Commonwealth points out that the trial court gave a cautionary instruction to

the jury prior to having them view the photographs.

      “The admission of evidence is solely within the discretion of the trial

court, and a trial court’s evidentiary rulings will be reversed on appeal only

upon an abuse of that discretion.” Commonwealth v. Reid, 99 A.3d 470,

493 (Pa. 2014). An abuse of discretion will not be found based on a mere

error of judgment, but rather occurs where the court has reached a conclusion

that overrides or misapplies the law, or where the judgment exercised is




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manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014).

      When the Commonwealth proffers photographic evidence of an injured

or homicide victim, the trial court must engage in a two-part analysis to

determine whether such evidence is admissible:

         First a trial court must determine whether the photograph
         is inflammatory. If not, it may be admitted if it has relevance
         and can assist the jury's understanding of the facts. If the
         photograph is inflammatory, the trial court must decide
         whether or not the photographs are of such essential
         evidentiary value that their need clearly outweighs the
         likelihood of inflaming the minds and passions of the jurors.

Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013)(citations omitted).

      Here, after examining the photographs, the trial court concluded “that

the photographs were not inflammatory by their very nature, and they were

relevant to assist the jury’s understanding of the facts.” Trial Court Opinion,

8/28/18, at 8. We agree.

      Both the trial court and the Commonwealth rely on our Supreme Court’s

decision in Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015), to

support of the admissibility of the photographs in the present case.           In

Woodard, the trial court admitted autopsy photos in a child murder case.

The photos depicted wounds from numerous beatings and blunt force trauma.

In that case, an expert witness testified to the nature of the victim’s injuries

and cause of death, and also admitted that he could testify to such things

without the photographs. Nonetheless, on review, our Supreme Court ruled

that the trial court “acted within its discretion when it concluded that the

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images were not inflammatory.” Id. at 494. Further, the Court held that even

if the photographs were inflammatory, they were highly relevant and rejected

that the photographs were cumulative in essence merely because the expert

testified as to the nature of the injuries and the cause of the victim’s death.

Id.

        Here, the trial court, like the court in Woodard, held that a medical

examiner’s testimony to the nature of the injuries did not render photographic

evidence of those injuries duplicative. Further, the trial court reasoned that

even if the photographs were inflammatory, they “were probative, relevant,

and necessary for the Commonwealth to prove [Sleets’] intent to commit

murder.” Trial Court, 8/28/18, at 9.

        Further, as noted cogently by the trial court, the factual circumstances

presented herein are akin to those in Commonwealth v. Stein, 548 A.2d

1230 (Pa. Super. 1988). There, this Court found the trial court did not err in

allowing the jury to see eleven inflammatory photographs of the victim’s

wounds, including one with a throat wound being held open. We reasoned

that in order to demonstrate the crime of attempted homicide, “evidence of

the extent of the victim’s wounds [] was relevant to prove intent.” Id. at

1233.

        Here, we find that the trial court acted within its discretion when it

concluded that the images depicted were not inflammatory. The two color




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photos introduced into evidence assisted in illustrating the nature and extent

of the victim’s injuries.2

       Even assuming the photos were inflammatory, we conclude that they

were highly probative as they related directly to the requisite elements of

attempted murder and aggravated assault, i.e., that Sleets intended to kill the

victim and/or cause serious bodily injury. We disagree with Sleets’ argument

that the photographs constituted cumulative evidence because three

physicians testified in regard to the nature of the victim’s injuries.    See

Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa. 2008) (holding that

photographic evidence of the victim’s injuries is not rendered duplicative

merely because a medical examiner or other comparable expert witness has

conveyed to the jury the nature of a victim’s injuries).

       Accordingly, Sleets’ challenge to the suppression motion fails.     We

therefore affirm the judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


2 We note the trial court sua sponte gave a cautionary instruction to the jury
regarding the purpose of the photographs. N.T., 3/26/18 at 271-72.
Specifically, the judge told the jury the photographs were to show them the
nature of the wounds sustained by the victim and to understand the testimony
of the witnesses, and not to stir up their emotions to the prejudice of Sleets.
Id. The law presumes that the jury followed the instructions given by the trial
judge. Commonwealth v. Housman, 986 A.2d 822, 837 (Pa. 2009).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/05/2019




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