J-A02022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

TYRONE JOHNSTON

                            Appellant                     No. 2929 EDA 2013


           Appeal from the Judgment of Sentence of March 4, 2009
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0004489-2007


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                 FILED MARCH 20, 2015

       Tyrone Johnston appeals nunc pro tunc from the judgment of sentence

entered on March 4, 2009, following reinstatement of his appeal rights by

order of October 4, 2013, pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46.             Johnston challenges his bench trial

convictions of two counts of first-degree murder, criminal conspiracy, and

two counts of possessing instruments of crime (“PIC”).1 We affirm.

       The PCRA court set forth the underlying facts as follows:

       On February 7, 2006, [Jamel] Conner was shot and killed on the
       2800 block of Kensington Avenue in North Philadelphia. Conner
       was shot six times at close range—twice in the head and once
       each in the chest, right shoulder, left shoulder, and right middle
       finger. All shots were fired within a distance of [two to three]
       feet. Conner was taken to Temple University Hospital where, at
____________________________________________


1
       18 Pa.C.S.A. §§ 2502(a), 903, and 907(a), respectively.
J-A02022-15


     3:04 AM, he was pronounced dead. Five shell casings from a .9
     millimeter gun were recovered from the scene.

     The circumstances surrounding Conner’s death did not become
     fully known until a subsequent shooting occurred three months
     later in the same neighborhood. In the early morning of May 15,
     2006, 24-year-old [Stephanie] Labance was shot at 2933 Ruth
     Street in North Philadelphia. She was pronounced dead on the
     scene at 4:19 AM as a result of two close-range gunshot wounds
     to the head. Two shell casings from a .9 millimeter gun were
     recovered from the scene.

     On June 5, 2006, during a routine patrol of Kensington Avenue,8
     Philadelphia Police Officer Anna Mae Law stopped Erin Wood
     (Wood) at 2:45 AM. Officer Law told Wood to leave the area
     because a young woman, Labance, had recently been killed in
     the area. When Wood told Officer Law that she had information
     about the shooting, she was taken to the Homicide Unit to make
     a statement, where she related the following:
       8
           This area was known for prostitution.

     During a conversation [Johnston] had with Wood and her
     boyfriend, Paul Evans (Evans), a few weeks before the murder,
     [Johnston] had stated that he had given drugs to Labance to sell
     on his behalf. “[S]he was supposed to turn in 200 and some
     dollars, never turned it in and was gone for a few days.”
     Labance resurfaced; [Johnston] found her and took her to the
     street, where his associate, Horace Archer—referred to as “Jay”
     (Jay)—joined [Johnston] and Labance. Jay handed a gun to
     [Johnston], who said that he had no choice but to shoot
     Labance. [Johnston] bragged to Wood and Evans that he shot
     the girl on Ruth Street.

     Wood also linked [Johnston] to a February 2006 shooting, blocks
     away from where Labance had been killed.9 As of February
     2006, Wood had known [Johnston] for two years, as he had
     dealt drugs to her. On February 27, 2006, Wood had been in the
     area of 2840 Kensington Avenue when [Johnston] walked
     towards Conner and the two exchanged words. Wood watched
     as, roughly five seconds after [Johnston] and Conner started
     speaking, [Johnston] pulled a gun from his waistband and shot
     Conner in the chest; once Conner collapsed, [Johnston] stood
     over him and fired two or three more times. [Johnston] then
     sprinted away from the scene of the shooting, down Kensington
     Avenue. At one point, he came within 10-12 feet of Wood,

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     whereupon she saw his face. She then saw [Johnston] enter
     Jay’s parked car, which then drove off. When Wood spoke with
     Officer Law, she mentioned that another woman, Mary Beth
     Beiland (Beiland), had also been in the area of 2840 Kensington
     Avenue when Connor was shot.
       9
          Ballistics testing revealed that fire[d] cartridge casings
       (FCCs) found outside Conner’s home, 2840 Kensington
       Avenue, had been fired from the same firearm that was
       used to kill Labance.

     Beiland testified that she had been purchasing crack cocaine
     from [Johnston] for about three years prior to the time of
     Conner’s murder. Beiland spent a significant amount of time
     with [Johnston] and Jay, who supplied [Johnston] with crack
     cocaine to sell. During that time, Beiland became acquainted
     with both Labance and Conner, both of whom used drugs
     obtained from Jay.

     On February 27, 2006, Beiland entered Jay’s building and found
     [Johnston] and Jay confronting Conner about selling “fake
     crack.” In fact, Beiland had purchased “fake crack” from Conner
     a few days earlier. The argument escalated; Conner threatened
     to set fire to Jay’s car and house.

       ADA BARRY: During the course of this argument did you
       hear Tyrone Johnston say anything?

       MS. BEILAND: Yeah. He said not to worry about it, tell Jay
       don’t worry about it, that he’ll take care of it.

     Immediately after threatening [Johnston], Conner left the
     premises as [Johnston], Jay[,] and Beiland went upstairs in the
     building to Jay’s apartment. [Johnston] and Jay spoke to one
     another in the hallway; Beiland entered the apartment and sat
     close to the window, watching as Jay walked back out of the
     building to his car. “He got in his car and made a u-turn.” At
     some point thereafter, Beiland saw [Johnston] exit the
     apartment building and walk directly to Conner, who was
     standing near a nail salon. Beiland then heard a gunshot and
     saw [Johnston] standing over Conner, who had collapsed onto
     the ground. Next, [Johnston] took off towards Somerset Street
     and entered Jay’s car, which drove off.

     Although they could not identify [Johnston] as the shooter,
     eyewitnesses George Filosoglou (Filosoglou), Richard Lacovara

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     (Lacovara), and Charles Purnell (Purnell) corroborated the
     essential facts of the shooting. Filosoglou was on Kensington
     Avenue when he heard gunshots. He turned toward the sound
     and saw a man run to a red car, get in, and saw the car drive
     off. Lacovara happened to be driving a news van at that location
     when he heard a popping sound, turned and saw one man
     standing over another man, with one arm held down lover than
     the other. Purnell was a passenger in the news can with
     Lacovara. He heard loud pops, turned his attention toward
     them, and saw a man firing his weapon four to five times at
     another man who was on the ground; Purnell then saw the
     shooter run away. . . .10
        10
           Dr. Gary Collins testified that the cause of Conner’s
        death was multiple gunshot wounds. Conner suffered six
        gunshot wounds, including two to the head and one to the
        chest. Each gunshot was inflicted from close range—two
        to three feet away. Because the head wounds would have
        caused instant immobility, at least one shot must have
        been fired after Conner had lost the ability to voluntarily
        move [sic].

PCRA Court Opinion (“P.C.O.”), 4/28/2014, at 3-6 (record citations and

some footnotes omitted).

     On February 26, 2009, following a non-jury trial . . . , [Johnston]
     was found guilty of [the above-mentioned counts].1 Sentencing
     was deferred until March 4, 2009, on which date [the c]ourt
     sentenced [Johnston] to the mandatory term of life
     imprisonment2 for both counts of murder of the first degree.3
     On March 12, 2009, [Johnston] filed post-sentence motions,
     which [the c]ourt denied on July 8, 2009.
        1
           In connection with the killing of Jamel Conner (Conner),
        CP-51-CR-0004489-2007, [Johnston] was convicted of
        murder of the first degree, criminal conspiracy, and PIC.
        In connection with the killing of Stephanie Labance
        (Labance), CP-51-CR-1300475-2006, [Johnston] was
        convicted of murder of the first degree and PIC.
        [Johnston] was represented by Steven Laver, Esquire on
        the Conner case, and by Bernard Siegel, Esquire, on the
        Labance case.
        2
             18 Pa.C.S.A. § 1102(a)(1).

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       3
          As to the conviction for criminal conspiracy in
       connection with the Conner murder, [Johnston] was
       sentenced to a consecutive term of not less than 20 nor
       more than 40 years[’] imprisonment. As to the conviction
       for PIC in connection with the Conner murder, [Johnston]
       was sentenced to a consecutive term of not less than two-
       and-a-half years nor more than five years[’] imprisonment.
       As to the conviction for murder of the first degree in
       connection with the Labance murder, [Johnston] was
       sentenced to a consecutive term of life imprisonment. And
       finally, as to the conviction for PIC in connection with the
       Labance murder, [Johnston] was sentenced to a
       consecutive term of not less than two-and-a-half nor more
       than five years[’] imprisonment.

     On July 20, 2009, [Johnston] filed a timely notice of appeal as to
     both cases.4 On December 9, 2009, [the trial c]ourt filed an
     opinion pursuant to Pa.R.A.P. 1925(a) . . . .5         Thereafter,
     [Johnston’s] counsel failed to comply with the briefing schedule
     as set forth by the Superior Court. On June 17, 2010, the
     Superior Court dismissed the appeal arising out of the Labance
     murder. On July 13, 2010, the Superior Court dismissed the
     appeal arising out of the Conner murder. [Johnston’s] counsel
     petitioned the Superior Court to reinstate both appeals. On July
     14, 2010, the Superior Court reinstated the appeal arising out of
     the Labance murder; on August 11, 2010, the Superior Court
     reinstated the appeal arising out of the Conner murder.
     [Johnston’s] counsel submitted briefs in connection with the
     Labance appeal, allowing that case to progress forward; on
     March 20, 2011, the Superior Court affirmed [Johnston’s]
     judgments of sentence on that case.         On April 11, 2011,
     [Johnston] petitioned our Supreme Court for allowance of
     appeal, which was denied on September 20, 2011.
       4
          The Superior Court docket number assigned to the case
       associated with the Conner murder was 2105 EDA 2009.
       The Superior Court docket number assigned to the case
       associated with the Labance murder was 2116 EDA 2009.
       5
          This [Pa.R.A.P.] 1925(a) Opinion addressed issues
       raised with respect to both the Conner and Labance
       appeals—2105 EDA 2009 and 2116 EDA 2009.

     Whereas the Labance appeal reached our Commonwealth’s
     appellate courts on its merits, the Conner appeal was again


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J-A02022-15


       dismissed by the Superior Court on September 22, 2010 for
       counsel’s failure to file a brief.        On November 22, 2010,
       [Johnston] filed a pro se petition pursuant to the [PCRA] seeking
       reinstatement of his direct appeal rights on the Conner case.
       Due to an administrative error, the Clerk of Courts failed to
       appoint an attorney to represent [Johnston] on collateral attack
       for more than two years.7 On July 31, 2013, in response to an
       inquiry in that Court by [Johnston], our Supreme Court issued an
       order, directing [the PCRA c]ourt to resolve [Johnston’s] pending
       PCRA petition within 90 days of the date of the order. On
       August 6, 2013, John P. Cotter, Esquire, having been appointed,
       entered his appearance on [Johnston’s] behalf. On September
       3, 2013, he filed an amended petition, to which the
       Commonwealth responded on September 27, 2013.                 In his
       amended petition, [Johnston] raised two issues: (1) [Johnston]
       requested reinstatement of [his] direct appeal rights on the
       Conner case, and (2) [Johnston] claimed that [his] trial counsel
       was ineffective for failing to litigate a speedy trial motion on the
       Labance case. On October 4, 2013, without objection from the
       Commonwealth, [the PCRA c]ourt reinstated [Johnston’s]
       appellate rights on the Conner case nunc pro tunc.                On
       November 25, 2013, [the PCRA c]ourt held an evidentiary
       hearing pursuant to Pa.R.Crim.P. 908 . . . to address
       [Johnston’s] claim that trial counsel was ineffective for failing to
       litigate a speedy trial motion on the Labance case. At the
       conclusion of the [Rule] 908 Hearing, [the PCRA c]ourt denied at
       dismissed [Johnston’s] petition.
          7
              Ordinarily, the Clerk of Courts receives PCRA petitions
          and alerts chambers when a new PCRA petition has been
          filed. In this situation, [the PCRA c]ourt first became
          aware that [Johnston] had filed his November 22, 2010
          petition upon receiving our Supreme Court’s July 31, 2013
          order.

Id. at 1-3 (record citations omitted). Accordingly, the instant appeal arises

nunc pro tunc from Johnston’s convictions under the Conner case.2

____________________________________________


2
     Johnston filed a separate appeal from the denial of his PCRA petition,
which we address at Docket No. 3271 EDA 2013.



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      In the instant appeal nunc pro tunc from his judgment of sentence,

Johnston raises three questions for our review:

      I.     Was the evidence insufficient to convict [Johnston] of
      [first-]degree murder, conspiracy, and possession of instrument
      of a crime [sic] (PIC)?

      II.   Did the trial court err in allowing consolidation of two
      wholly separate homicide cases into one trial?

      III. Was [Johnston] denied his Constitutional right to
      confrontation when the trial court permitted the testimony of
      Assistant Medical Examiner Dr. Gary Collins as to the cause and
      manner of death even though Dr. Collins was not the pathologist
      who conducted the autopsy of the victim and was not even
      present when the autopsy was done?

Johnston’s Brief at 2.

      In his first issue, Johnston contests the sufficiency of the evidence

underlying his convictions for first-degree murder, conspiracy, and PIC.

Specifically, he argues that “eye-witness testimony that [Johnston] was the

perpetrator of these offenses was inconsistent, contradictory, and unreliable

and there was no physical evidence that connected [Johnston] to the

offenses and three eyewitnesses to the incident who were not cocaine users

or under the influence of drugs did not identify [Johnston] a[s] the

perpetrator of the offenses.” Id. at 6. We disagree.

      In evaluating a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt. We may not weight the
      evidence and substitute our judgment for the fact-finder. To
      sustain a conviction, however, the facts and circumstances which

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J-A02022-15


      the Commonwealth must prove must be such that every
      essential element of the crime is established beyond a
      reasonable doubt.

      Lastly, the finder of fact may believe all, some or none of a
      witness’s testimony.

Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations

omitted). A factfinder’s acceptance of some, but not all, testimony does not

render the evidence insufficient. Priest, 18 A.3d at 1240. Any uncertainty

in an eyewitness’s identification of a defendant is a question of the weight of

the evidence, not its sufficiency. See Commonwealth v. Minnis, 458 A.2d

231, 233 (Pa. Super. 1983).

      Here, Erin Wood testified that, before Jamel Conner’s death, she had

known Johnston for two years as her drug dealer, and Jamel Conner for a

year and a half as a fellow drug user.     See Notes of Testimony (“N.T.”),

2/23/2009, at 154, 161. In the early morning hours of February 7, 2006,

Wood was standing on the sidewalk on Frankford Avenue when she saw

Johnston walking toward Conner and a man she knew as “Paul.” Id. at 165.

She watched Johnston exchange words with Conner, pull a gun from his

pants, and shoot Conner in the chest.      Id. at 166, 170-72.     She further

testified that she watched Conner fall to the ground, and that Johnston

“stood over top of him and shot him again.” Id. at 172. She crossed the

street as she saw Johnston run over to Jay’s car, and estimated that

Johnston passed within ten to twelve feet of her.       Id. at 173-74.     She

testified:



                                     -8-
J-A02022-15


      [ADA Barry]:           Were you able to see his face?

      [Wood]:         Yes.

      [ADA Barry]:           Did you have any doubt that it was Johnston?

      [Wood]:         No.

Id. at 174.

      Conner’s murder also was witnessed by Mary Beth Beiland, who was

familiar with Johnston and Conner.             N.T., 2/25/2009, at 72-73.    She

watched Johnston from Jay’s apartment as Johnston approached Conner on

the street. Id. at 95-96. She testified that she heard a gunshot and saw

Johnston standing over Conner, and watched him leave the scene in Jay’s

car. Id. at 99. Dr. Gary Collins testified, consistent with this description of

events, that Conner died of six gunshot wounds inflicted from close range.

Id. at 162-71.

      Johnston contends that there was insufficient evidence to convict him

of the offenses related to Conner’s murder because “no weapon was found

on [Johnston] that linked him to the offenses” and “[t]he two eyewitnesses

that identified [Johnston] were both admitted long[-]term crack cocaine

users whose testimony was contradictory, inconsistent[,] and unreliable.”

Johnston’s Brief at 7.

      However, we frequently have held that identification testimony by

eyewitnesses     is    sufficient   to   support   a   conviction.   See,   e.g.,

Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014)

(“Pennsylvania courts have consistently held that [eyewitness testimony] is


                                         -9-
J-A02022-15



sufficient for a first-degree murder conviction.”); Commonwealth v. King,

959 A.2d 405, 411 (Pa. Super. 2008) (“The identification testimony of the

two     eyewitnesses   was sufficient    to      support Appellant’s conviction.”).

Furthermore, Johnston’s challenge to the credibility of Wood and Beiland’s

testimony goes to its weight, not its sufficiency, and we will not usurp the

role of the trial court as fact-finder by reweighing the evidence. See Priest,

18 A.3d at 1239; Minnis, 458 A.2d at 233. Johnston’s first issue does not

merit relief.

        In his second issue, Johnston challenges the consolidation of the cases

for the homicides of Jamel Conner and Stephanie Labance because “the trial

court made the erroneous finding that the evidence of each murder charge

could be used as evidence of the other murder charge and therefore the

finding of guilt was based on irrelevant and highly prejudicial evidence.”

Johnston’s Brief at 8. We disagree, and conclude that, because a previous

panel of this Court has reviewed this issue, we are bound by the law of the

case.

        Pennsylvania Rule of Criminal Procedure 582 provides, in relevant

part:

        Rule 582.    Joinder—Trial of Separate Indictments or
        Informations

           (A) Standards

           (1) Offenses charged in separate                indictments   or
           informations may be tried together if:




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J-A02022-15


            (a) the evidence of each of the offenses would be
            admissible in a separate trial for the other and is
            capable of separation by the jury so that there is no
            danger of confusion[.]

Pa.R.Crim.P. 582(A)(1)(a). “Whether or not separate indictments should be

consolidated for trial is within the sole discretion of the trial court and such

discretion will be reversed only for a manifest abuse of discretion or

prejudice and clear injustice to the defendant.”               Commonwealth v.

Robinson, 864 A.2d 460, 481 (Pa. 2004) (citation omitted).

      Here, Johnston argues that he was prejudiced by the joinder of “two

separate and unrelated murders.”           Johnston’s Brief at 9.         He does not

address the PCRA court’s observation that this precise issue has already

been considered and ruled upon by this Court.            P.C.O. at 9.      “Under the

doctrine of ‘law of the case,’ where an appellate court has considered and

decided a question on appeal, that Court will not, in a subsequent appeal of

another   phase       of    the   same   case,    reverse   its    previous    ruling.”

Commonwealth v. Warrick, 609 A.2d 576, 578 n.3 (Pa. Super. 1992)

(citation omitted).

      Previously, a panel of this Court reviewed Johnston’s appeal from the

judgment of sentence entered on March 4, 2009, for the murder of

Stephanie Labance, in which Johnston challenged “whether the court erred

in consolidating for trial [Johnston’s] charges in this case[, the Labance

charges,] with a homicide charge in another case[, the Conner charges].”

Commonwealth           v.    Johnston,    No.     2116   EDA      2009,    unpublished



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memorandum at 1 (Pa. Super. March 30, 2011). There, after setting forth

our standard of review, as above, the Court held:

     [Johnston] argues the trial court erred when it      allowed the
     [homicide of Stephanie Labance] to be consolidated   for trial with
     charges listed in a separate criminal information    alleging the
     homicide of Jamel Connor. There is no merit to       [Johnston’s]
     argument.

                               *     *      *

     Ballistics evidence indicated the gun used to kill L[a]bance was
     the same one used by the person who killed Connor. Beiland
     and Wood saw [Johnston] shoot Connor.             Testimony from
     Beiland indicated [Johnston] and his drugselling associate, Jay,
     had an argument with Connor over the sale of drugs, and that
     the killing sprang from that drug dispute. [Johnston’s] own
     statements, elicited at trial from Wood, indicated that L[a]bance
     was likewise killed because of a dispute involving drug sales.
     Moreover, testimony linked Jay to the killing of L[a]bance in that
     Jay told [Johnston] to do what he had to do after [Johnston]
     located L[a]bance.

     The trial court reasoned that the foregoing evidence was
     relevant and admissible as to each homicide charge because the
     evidence tended to prove the identity of the shooter in each
     case. In reaching this decision, the court also reasoned that,
     because this case was a bench trial, the risks of factfinder
     confusion and misuse of the evidence were non-existent.

     We see no abuse of discretion in the foregoing evidentiary
     determination.    The common weapon, the similar drug- or
     money-related motive, and the involvement of Jay in each case
     helped to establish the identity of the shooter in the other case.
     Also, we presume the trial court, as factfinder, followed the law
     and used the evidence for appropriate reasons.

     Similarly, we find no abuse in the court’s ultimate determination
     to consolidate the informations. The distinct homicides, while
     involving evidence both relevant and admissible as to each
     other, were easily separable for the purposes of determining
     guilt. The facts were relatively straightforward; we find no
     reason to conclude the court was confused as to which case was


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J-A02022-15


      which. [Johnston’s] claim that it was error to consolidate the
      cases warrants no relief.

Johnston, No. 2116 EDA 2009, at 7-8.         We will not reverse the previous

ruling, in which this Court determined that there was no trial court abuse of

discretion in consolidating the trials for the homicides of Stephanie Labance

and Jamel Conner. See Warrick, 609 A.2d at 578 n.3. Johnston’s second

issue does not merit relief.

      In his third issue, Johnston contends that the court violated his right to

confrontation “when the trial court erroneously permitted the testimony of

Assistant Medical Examiner Dr. Gary Collins as to the cause and manner of

death” because “Dr. Collins was not the pathologist who conducted the

autopsy of the victim, was not even present when the autopsy was done and

the [d]octor who did the autopsy was available to testify and was never

previously examined by the defense counsel.” Johnston’s Brief at 10. We

disagree, and again conclude that we are bound by the law of the case.

      Whether the admission of Dr. Collins’ testimony violated Johnston’s

rights under the Confrontation Clause is a question of law, for which our

standard of review is de novo and our scope of review is plenary.           See

Commonwealth v. Cannon, 22 A.3d 210, 217 (Pa. 2011).

      The Confrontation Clause of the Sixth Amendment, made
      applicable to the States via the Fourteenth Amendment, provides
      that “[i]n all criminal prosecutions, the accused shall enjoy the
      right . . . to be confronted with the witnesses against him. . . .”
      In Crawford [v. Washington], 541 U.S. [36,] 51 [(2004)], the
      Court held that the Sixth Amendment guarantees a defendant’s
      right to confront those “who ‘bear testimony’” against him, and
      defined “testimony” as “[a] solemn declaration or affirmation

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     made for the purpose of establishing or proving some fact.” The
     Confrontation Clause, the High Court explained, prohibits out-of-
     court testimonial statements by a witness unless the witness is
     unavailable and the defendant had a prior opportunity for cross-
     examination.

Commonwealth v. Yohe, 79 A.3d 520, 530-531 (Pa. 2013) (some citations

omitted).

     Our Supreme Court has held that “a medical expert who did not

perform the autopsy may testify as to cause of death as long as the

testifying expert is qualified and sufficiently informed[.]” Commonwealth

v. Ali, 10 A.3d 282, 306 (Pa. 2010). We have concluded that, where the

individual who performed the autopsy is unavailable to testify, a qualified

testifying expert is one whose “testimony was based upon his own

conclusions after his own independent review of the file.” Commonwealth

v. Buford, 101 A.3d 1182, 1198 (Pa. Super. 2014).

     As in Johnston’s second issue, we are compelled to follow the law of

the case.     See Warrick, 609 A.2d at 578 n.3.     In his previous appeal,

Johnston also challenged “whether the court erred in allowing a pathologist

to testify to the cause and manner of death of two decedents when he did

not perform their autopsies.”   Johnston, No. 2116 EDA 2009, at 1.        This

Court held:

     Although [Dr.] Collins’s testimony did reveal the findings and/or
     conclusions of the doctors who conducted the autopsies, [Dr.]
     Collins did not merely read those findings and/or conclusions into
     the record. Rather, [Dr.] Collins went on to give his own
     opinions based on the facts in the autopsy reports and various
     photographs relevant to the autopsies.         In doing so, he
     essentially indicated that he agreed with the findings and/or

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J-A02022-15


      conclusions of the other doctors. Also, when questioned by the
      court, he indicated the information on which he relied was
      sufficient for him to form his opinions.

      [Johnston] has offered us no discussion showing that the reports
      and photos used by [Dr.] Collins were insufficient to inform him
      of the necessary facts relating to the cause and manner of the
      decedents’ deaths. To the extent [Johnston] maintains [Dr.]
      Collins’s testimony was inadmissible merely because he was not
      the autopsy doctor, [Johnston] is simply wrong. We note, too,
      that [Johnston] cross examined [Dr.] Collins concerning his
      opinions.    In sum, [Johnston] was not denied his right to
      confront witnesses.

Johnston, No. 2116 EDA 2009, at 9-10.         Based upon our review of Dr.

Collins’ trial court testimony and the current applicable law as set forth

above, we agree with the prior panel of this Court. See Warrick, 609 A.2d

at 578 n.3; see also Ali, 10 A.3d at 306; Buford, 101 A.3d at 1198. Dr.

Collins testified that the examiners who initially performed the autopsies of

Jamel Conner and Stephanie Labance were no longer employed by the

Philadelphia Medical Examiner’s Office at the time of trial, and that Dr.

Collins’ testimony was based upon his own conclusions after his independent

review of their files. See N.T., 2/25/2009, at 143-45. Accordingly, the trial

court did not err or abuse its discretion in admitting Dr. Collins’ testimony.

See Buford, 101 A.3d at 1198. Johnston’s third issue does not merit relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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