J-A30005-17

                                 2018 PA Super 142


 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ANTOINE WARD                              :
                                           :
                     Appellant             :   No. 968 WDA 2016

          Appeal from the Judgment of Sentence February 24, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0001839-2014

BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                                   FILED JUNE 1, 2018

      Antoine      Ward appeals from the       judgment of sentence    of life

imprisonment entered after he was convicted of first-degree murder, third-

degree murder, and carrying a firearm without a license. We affirm.

      On a snowy evening in January 2014, in the Mt. Oliver neighborhood of

Pittsburgh, Ja’yde Dorsey heard gunshots and looked out a window to see a

silver Lexus that appeared to be stopped at a stop sign.      When she went

outside to inquire if anyone was injured, there were four more shots and she

saw sparks in the back of the car.      Ms. Dorsey called 911, and paramedics

arrived within minutes to find Jason Eubanks and Cherylann Sabatasso dead

in the car. N.T. Trial, 10/15-19/15, at 52-54, 70. Tracks in the snow led from

the car to 302 Rochelle Street, where Appellant lived with Nichelle Goodnight.

Id. at 78, 90, 237-41, 284.
J-A30005-17


       Appellant was charged with two counts of homicide and firearms

violations. A jury convicted Appellant of the crimes listed above, and the trial

court imposed consecutive sentences of life imprisonment on the murder

convictions, followed by two to four years incarceration for carrying a firearm

without a license. Following the denial of his post-sentence motion, Appellant

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

with Pa.R.A.P. 1925.

       Appellant presents the following issues for this Court’s review, which we

have paraphrased to omit unnecessary detail.1

       I.   Did the Commonwealth offer insufficient evidence to prove
       beyond a reasonable doubt that Appellant acted in self-defense?

       II.   Did the trial court err in not excluding evidence obtained
       from the silver Lexus when the vehicle was transferred out of the
       country before it was examined by Appellant’s investigators?

       III. Did the trial court err in allowing the Commonwealth’s
       medical expert to testify outside of both the scope of his report
       and his area of expertise?

Appellant’s brief at 7.

       We first consider Appellant’s claim that the Commonwealth offered

insufficient evidence that he did not act in self-defense. “The use of force

against a person is justified when the actor believes that such force is

immediately necessary for the purpose of protecting himself against the use


____________________________________________


1See Pa.R.A.P. 2116(a) (“The statement of the questions involved must state
concisely the issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail.”).

                                           -2-
J-A30005-17


of unlawful force by the other person.” Commonwealth v. Emler, 903 A.2d

1273, 1279 (Pa.Super. 2006) (citation and quotation marks omitted). When

a defendant raises a claim of self-defense by identifying evidence that

supports the claim, the Commonwealth has the burden of disproving self-

defense beyond a reasonable doubt.     Commonwealth v. Bullock, 948 A.2d

818, 824 (Pa.Super. 2008). “[T]he Commonwealth cannot sustain its burden

of proof solely on the fact finder’s disbelief of the defendant’s testimony.”

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001).

     Appellant testified at trial in support of his claim of self-defense. He said

he wanted to meet Mr. Eubanks on the night in question to obtain cocaine.

N.T. Trial, 10/20-22/15, at 700.       He called Mr. Eubanks to make the

arrangements, and Mr. Eubanks said he would be at Appellant’s house in a

minute.   Id.   Mr. Eubanks arrived in a car that was being driven by Ms.

Sabatasso, and Appellant took a seat in the back of the vehicle. Id. They

then drove to the home of Appellant’s mother so Appellant could obtain his

tax papers to offer Mr. Eubanks as proof that Appellant would soon have

money to pay for the cocaine. Id. at 702. While Ms. Sabatasso drove, she

and Appellant argued about his accusation, conveyed to Mr. Eubanks the

previous day, that Ms. Sabatasso had sought to cheat on Mr. Eubanks with

another man. Mr. Eubanks encouraged them to calm down. Id. at 708-09.

After Appellant questioned Mr. Eubanks’s manhood, Mr. Eubanks pulled a gun

on Appellant, and the two men struggled for the weapon. Ms. Sabatasso was


                                     -3-
J-A30005-17


shot in the head when she stopped the car abruptly. Id. at 710. Appellant

claimed that he shot Mr. Eubanks during a subsequent struggle for the gun,

and shot him a second time, in the face, after Mr. Eubanks climbed into the

back seat and the two men again attempted to gain control of the weapon.

Id. at 711-12. Appellant ran home, placed the bullets from the gun into a

sock, put his bloody clothing in a plastic bag, and hid the gun under a kitchen

cabinet. Id. at 713-14.

      Based upon the above testimony, self-defense was properly at issue in

the case.    Therefore, the Commonwealth was required to disprove the

defense.    Bullock, supra.      Appellant contends that it failed to do so.

Appellant’s brief at 32-39. We disagree.

      It is settled that “[t]he fabrication of false and contradictory statements

by an accused [is] evidence from which a jury may infer that they were made

with an intent to mislead the police or other authorities, or to establish an alibi

or innocence, and hence are indicatory of guilt.”           Commonwealth v.

Carbone, 574 A.2d 584, 589 (Pa. 1990) (internal quotation marks and

citation omitted). For example, in Carbone, the defendant claimed that she

stabbed the decedent when he had attempted to rape and kill her. Id. at 588.

Although the Commonwealth offered no contradictory witnesses to the

stabbing, the jury convicted Carbone of first-degree murder.              Carbone

appealed, raising the same claim as Appellant in the instant case: that the




                                       -4-
J-A30005-17


Commonwealth did not disprove self-defense beyond a reasonable doubt. Id.

at 589.

      Our Supreme Court held that, viewing the evidence in the light most

favorable to the Commonwealth as the verdict winner, the jury could have

concluded that Carbone was not justified in killing the decedent. Specifically,

the Court pointed to the fact that Carbone initially lied to explain the blood on

her clothing, claiming that she had punched a friend in the nose. Id. at 590.

Further, her claim that the decedent walked 100 feet back to his vehicle after

she stabbed him was refuted by testimony that he would have been physically

unable to do so after being stabbed in the back and heart. Id. at 589.

      In the instant case, Appellant offered multiple versions of his actions on

the day of the shootings.    In his initial statement to the police, Appellant

indicated that Mr. Eubanks was supposed to come to Appellant’s house on the

day of the shooting, but that Mr. Eubanks never appeared. N.T. Trial, 10/15-

19/15, at 277. Appellant also offered three different versions of how he got

from his home on Rochelle Street to his mother’s house: that he had walked,

that he drove Goodnight’s car there, and that he had driven a different,

unidentified person’s car there. Id. at 279. Appellant first placed himself

home alone at 302 Rochelle Street during the evening in question, including

at the time Mr. Eubanks and Ms. Sabatasso were killed. Id. at 279-80. Then

he claimed that he called his friend to meet at a local bar to toast Mr. Eubanks.

Id. at 280.    Appellant indicated that he learned of Mr. Eubanks’s death


                                      -5-
J-A30005-17


because Appellant was standing on the porch of 302 Rochelle Street when an

unidentified person walked by and informed him that there were two people

dead in a vehicle; Appellant figured it was Mr. Eubanks and Ms. Sabatasso

based upon the description of the car. Id. at 281. Appellant initially denied

having gone to the crime scene, but later contradicted that statement and said

that he went to the corner after hearing a gunshot, and called Mr. Eubanks’s

phone upon seeing the Lexus in the middle of the intersection. Id.

        Additionally, the Commonwealth offered evidence that a sock containing

bullets and a plastic bag containing bloody clothing were recovered from a

wooded area at the end of Appellant’s street.       Id. at 336.    A pistol and

magazine were retrieved from under a cabinet in the kitchen at 302 Rochelle

Street. Id. at 393. The jury could conclude from Appellant’s attempts to

conceal or dispose of evidence of his involvement in the shootings constituted

evidence of guilt. Commonwealth v. Paddy, 800 A.2d 294, 319 (Pa. 2002)

(“[A]ttempts by a defendant to suppress evidence are admissible to

demonstrate his or her consciousness of guilt.”).

        Moreover, Appellant informed the jury that Mr. Eubanks was shot during

an initial struggle for the gun, and then reached into the back seat of the car

to struggle for the gun a second time, at which time Appellant shot him in the

face.   N.T. Trial, 10/20-22/15, at 711-12.    However, the Commonwealth’s

medical expert testified that the first shot that hit Mr. Eubanks in his left ear

fractured his skull and would either have killed him immediately, or allowed


                                      -6-
J-A30005-17


for only minimal movement before fatality. N.T. Trial, 10/15-19/15, at 562-

63. From this evidence the jury could have found that Mr. Eubanks would not

have been physically able to have engaged in a second struggle for the gun

after he was shot during the initial struggle.

       Thus, the record reveals that the Commonwealth did not rely solely upon

disbelief of Appellant’s testimony to prove that Appellant did not act in self-

defense.     From his false statements and attempts to hide the physical

evidence, and Appellant’s testimony that he shot Mr. Eubanks in the head, the

jury   was   permitted   to   conclude   that    Appellant   was   guilty.    See

Commonwealth v. Hinchcliffe, 388 A.2d 1068, 1070-71 (Pa. 1978) (holding

evidence was sufficient to support third-degree murder conviction where the

only witness to the killing was Hinchcliffe, who claimed self-defense; in

addition to being free to disbelieve some or all of Hinchcliffe’s self-defense

story, the jury could rely upon the facts that Hinchcliffe sought to dispose of

the body and hide evidence of the killing). Accordingly, Appellant’s first issue

merits no relief.

       Appellant’s remaining issues concern the trial court’s evidentiary rulings.

The following principles guide our review.

              The [a]dmission of evidence is within the sound discretion
       of the trial court and will be reversed only upon a showing that
       the trial court clearly abused its discretion. Accordingly, a ruling
       admitting evidence will not be disturbed on appeal unless that
       ruling reflects manifest unreasonableness, or partiality, prejudice,
       bias, or ill-will, or such lack of support to be clearly erroneous.




                                       -7-
J-A30005-17


Commonwealth v. Shelton, 170 A.3d 549, 552 (Pa.Super. 2017) (citations

and quotation marks omitted).

       With his first evidentiary issue, Appellant contends that the physical

evidence obtained from the silver Lexus should have been suppressed. 2 The

following background information summarized by the trial court is relevant to

Appellant’s claim.

       [T]he homicides occurred within Cheralynn Sabatasso’s vehicle on
       January 23, 2014. The vehicle was secured on that date and
       towed to the police auto squad for processing.        Extensive
       photographs were taken and evidence was collected from the
       vehicle both at the scene and at the auto squad. On February 8,
       2014, the vehicle was transported to the police impound facility.

             On March 12, 2014, Appellant filed a formal motion for
       discovery, requesting inspection of and copies of reports
       pertaining to [. . .] physical evidence. The Commonwealth
       provided photographs and reports regarding the vehicle. These
       reports did not contain any opinions as to trajectory of bullets, but
       rather documented general observations of items discovered
       within the vehicle.

             On March 25, 2014, Detective McGee signed a Request for
       Chief’s Release to return the vehicle to the Sabatasso family
       because the processing of the vehicle was complete and the family
       requested return of the vehicle.      Assistant District Attorney
       Michael Berquist authorized the return and the vehicle was
       subsequently transported to the residence of [Ms.] Sabatasso’s
____________________________________________


2 In stating his evidentiary issues in his brief, Appellant alternatively suggests
that the trial court should have given cautionary instructions regarding the
spoliation of evidence and unqualified expert testimony. Appellant’s brief at
7, 40, 60. Appellant does not cite where in the record he made a request for
cautionary instructions; nor have we found any such request in our review.
Moreover, he does not offer any argument or cite any authority to support the
claim that a cautionary instruction should have been given. Accordingly, the
claims that the trial court erred in not issuing such instructions are waived.
Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa.Super. 2006).

                                           -8-
J-A30005-17


     mother. Shortly thereafter, [Ms.] Sabatasso’s estate transferred
     ownership of the vehicle to the insurance company, and on May
     5, 2014, the family requested that the vehicle be transported to
     Coparts, a local salvage yard. Pittsburgh police complied and the
     vehicle was transported to the salvage yard.

           On May 13, 2014, Appellant’s trial attorney Christopher
     Patarini, along with his investigators, met with Detective [James]
     McGee at Coparts to examine the vehicle.            At that time,
     Appellant’s investigators took more photographs of the vehicle at
     the direction of a potential defense expert, Fred Wentling, who
     was corresponding with the defense team via Skype. On May 13,
     2014, Attorney Patarini called ADA Berquist to request that the
     vehicle be transferred back into police custody. ADA Berquist
     relayed this request to Detective McGee, who assigned this
     responsibility to Detective Sherwood.

           At some point in time, because the insurance company now
     owned the vehicle, Detective McGee was told that a court order
     would be needed in order to transfer the vehicle back to police
     custody. ADA Berquist requested the necessary information from
     Detective Sherwood for the court order, but never received a
     response. A court order was never issued. ADA Berquist was
     under the impression that the police were taking care of re-
     securing the vehicle. In the meantime, Coparts assured Detective
     McGee that they would store the vehicle, covered, as long as the
     police needed; the vehicle remained at Coparts.

           On May 23, 2014, [t]he Trial Court ordered discovery for
     scientific evidence to close on June 29, 2014, absent exigent
     circumstances. On July 2, 2014, Appellant filed a Supplemental
     Motion for Specified Discovery, requesting opinion evidence and
     scientific reports.

           On November 25, 2014, the insurance company sold the
     vehicle and it was transported to the United Arab Emirates.
     Coparts did not notify the police, the Commonwealth, or Appellant
     that the vehicle had been sold and transported abroad.

           On March 25, 2015, the Commonwealth’s expert, Detective
     Blase Kraeer, authored a blood spatter analysis report that
     included opinions regarding the trajectory of the bullets.
     Detective Kraeer did not independently examine the vehicle, but
     rather based his report and opinions on photographs and evidence

                                   -9-
J-A30005-17


     taken from the vehicle during initial processing. All of that
     information had been provided to Appellant during the early
     phases of the discovery process.

           On April 29, 2015, Attorney Patarini met with Martin
     Aronson (Office of the Public Defender Investigator) and Arthur
     Young (forensic DNA expert). During this meeting, Attorney
     Patarini called Detective McGee ostensibly to set up a time to
     examine the vehicle, but in the same conversation cancelled the
     request to examine the vehicle. Detective McGee testified that
     Attorney Patarini cancelled the request because an expert witness
     thought it would be a waste of time to inspect the vehicle.
     However, Attorney Patarini denied making such a statement.

           On May 4, 2015, the Trial Court conducted a status
     conference on the case, and granted an extension for the time
     frame in which scientific discovery had to be produced. On that
     date Attorney Patarini requested that the vehicle be made
     available for inspection by his expert, Fred Wentling, and the
     Commonwealth agreed to set that up. Sometime after that, the
     Commonwealth learned from Coparts that the vehicle had been
     sold and shipped to the United Arab Emirates.

           On May 5, 2015, Attorney Patarini arranged for Wentling to
     come to Pittsburgh to examine the firearm and vehicle. On May
     6, 2015, Detective [Robert] Provident notified Attorney Patarini
     that the vehicle had been sold and transported to the United Arab
     Emirates. On May 7, 2015, Wentling came to Pittsburgh and
     examined the firearm.       On May 11, 2015, the prosecution
     confirmed that the vehicle had been sold and was no longer
     available. Finally, on July 15, 2015, Appellant filed a motion to
     suppress the vehicle and all evidence derived therefrom.

Trial Court Opinion, 1/19/17, at 17-20 (citations, quotation marks, and

footnote omitted).

     Appellant’s     suppression   claim   is   based   upon   the   Fourteenth

Amendment’s Due Process Clause, which

     requires defendants be provided access to certain kinds of
     evidence prior to trial, so they may “be afforded a meaningful
     opportunity to present a complete defense.” This guarantee of

                                     - 10 -
J-A30005-17


      access to evidence requires the prosecution to turn over, if
      requested, any evidence which is exculpatory and material to guilt
      or punishment, see Brady [v. Maryland, 373 U.S. 83 (1963),]
      and to turn over exculpatory evidence which might raise a
      reasonable doubt about a defendant’s guilt, even if the defense
      fails to request it, see United States v. Agurs, 427 U.S. 97
      (1976). If a defendant asserts a Brady or Agurs violation, he is
      not required to show bad faith.

            There is another category of constitutionally guaranteed
      access to evidence, which involves evidence that is not materially
      exculpatory, but is potentially useful, that is destroyed by the
      state before the defense has an opportunity to examine it. When
      the state fails to preserve evidence that is “potentially useful,”
      there is no federal due process violation “unless a criminal
      defendant can show bad faith on the part of the police.”
      Potentially useful evidence is that of which “no more can be said
      than that it could have been subjected to tests, the results of
      which might have exonerated the defendant.” In evaluating a
      claim that the Commonwealth’s failure to preserve evidence
      violated a criminal defendant’s federal due process rights, a court
      must first determine whether the missing evidence is materially
      exculpatory or potentially useful.

Commonwealth v. Williams, 154 A.3d 336, 339 (Pa.Super. 2017) (quoting

Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (some

citations omitted)).

      Appellant argues that the Lexus, as the crime scene itself and “the only

evidence of the shooting at all,” was exculpatory evidence. Appellant’s brief

at 54-56. He maintains that, without examining the vehicle, forensic scientist

Fredrick Wentling was unable to reconstruct the shootings or render an opinion

with the requisite degree of certainty on whether the physical evidence

supported Appellant’s version of events. Id. at 56.




                                    - 11 -
J-A30005-17


       Exculpatory evidence is “evidence which extrinsically tends to establish

[a] defendant’s innocence of the crimes charged.”          Commonwealth v.

Woodell, 496 A.2d 1210, 1212 (Pa. 1985) (internal quotation marks

omitted). A claim that a defendant was denied access to exculpatory evidence

must    be   supported;   “it   cannot   be   based   on   a   mere   assertion.”

Commonwealth v. Snyder, 963 A.2d 396, 405 (Pa. 2009) (internal

quotation marks omitted).

       It is apparent that Appellant has no support for his claim that the Lexus

contained exculpatory evidence; rather, his contention is that, if his expert

had been able to examine the car, he might have found evidence that could

have enabled him to opine that Appellant’s self-defense narrative was

forensically substantiated.

       Evidence that possibly could have been exculpatory had it been available

to be tested is potentially useful evidence, not exculpatory evidence.

Chamberlain, supra, at 402 (“Evidence that is possibly exculpatory is only

merely potentially useful.”). Therefore, to prevail Appellant must establish

that the Commonwealth acted in bad faith in failing to preserve the vehicle.

Appellant offers the following argument.

              At several points, the prosecution (including the police)
       failed in their duty to preserve the evidence. Several discovery
       motions had been filed by the defense; it was well-known that the
       vehicle, as the crime scene itself, was a necessary piece of
       evidence. The Commonwealth promised to “take care of it” and
       make the vehicle available to the defense prior to trial. Yet
       nothing was done.       The defense was not informed of any
       impending sale of the vehicle which would send it overseas. The

                                     - 12 -
J-A30005-17


      defense was not aware of the need for an Order of Court to retain
      the vehicle. The Commonwealth utterly failed in their duty to
      preserve the vehicle. While we do not suggest that this [was]
      done to intentionally hamper the defense, this is more than a one-
      time failure to properly act to preserve the evidence. At several
      points the Commonwealth failed to fulfill its duty to ensure
      fundamental fairness in [Appellant’s] trial. This is bad faith.
      Failure to act when tasked with a duty to so act is bad faith.

Appellant’s brief at 58-59.       The trial court disagreed with Appellant’s

assessment, stating as follows.

      Here, the police reasonably believed that the vehicle was being
      held at Coparts. The Commonwealth was not notified of the sale
      to the United Arab Emirates, and did not purposefully destroy the
      vehicle or take any measures to render it unavailable for
      inspection. The vehicle remained in police custody for over two
      months, and was available for defense inspection for eight
      months. At all times the Commonwealth was cooperative and
      accommodating to the several “half-steps” that Appellant made
      toward examination of the vehicle.

Trial Court Opinion, 1/19/17, at 21-22.

      We agree with the trial court. The record does not reflect that the car

was disposed of “in a calculated effort to circumvent the disclosure

requirements,” or that there was any “official animus towards [Appellant] or

. . . conscious effort to suppress exculpatory evidence.”      California v.

Trombetta, 467 U.S. 479, 488 (1984). Appellant had ample opportunity to

examine the Lexus. The Commonwealth believed that the car would continue

to be available. The most that Appellant can perhaps establish is that the

Commonwealth was negligent in failing to obtain an order to return the vehicle

to police custody; however, negligence is not bad faith. See, e.g., Arizona

v. Youngblood, 488 U.S. 51, 58 (1988) (holding there was no suggestion of

                                     - 13 -
J-A30005-17


bad faith where the failure to preserve evidence could “at worst be described

as negligent”); Chamberlain, supra, at 389-403 (rejecting argument that

the defendant was entitled to relief from the Commonwealth’s loss of blood

samples that the defendant sought to have DNA tested because “the

Commonwealth’s mishandling of the blood evidence was so grossly negligent

that it actually amounted to bad faith”). Accordingly, we discern no error or

abuse of discretion in the trial court’s denial of Appellant’s motion to suppress

the Commonwealth’s evidence obtained from the Lexus.

        With his final issue, Appellant claims that he is entitled to a new trial

because the trial court erroneously permitted Commonwealth expert Baiyang

Xu, M.D., to testify “outside the scope of his expert report” and to offer opinion

testimony that “exceeded Dr. Xu’s technical expertise.” Appellant’s brief at 7.

Specifically, Appellant complains that Dr. Xu was permitted to testify (1)

regarding the trajectory of the bullets; (2) that the stippling he observed near

the entrance wounds on Mr. Eubanks’s head indicated that the gun was fired

within three feet of Mr. Eubanks; and (3) that the first shot to Mr. Eubanks’s

head may have been fatal. Id. at 60.

        There is no question that Dr. Xu, a medical doctor employed by the

Allegheny County Medical Examiner’s Office who testified more than thirty

times as an expert in forensic pathology,3 possessed the requisite expertise



____________________________________________


3   N.T. Trial, 10/15-19/15, at 547.

                                          - 14 -
J-A30005-17


to offer testimony regarding the distance and direction of the shots that killed

Mr. Eubanks.     See, e.g., Commonwealth v. Mollett, 5 A.3d 291, 305

(Pa.Super. 2010) (holding pathologist’s testimony regarding the timing of

gunshots and distance of the firearm “was well within his expertise”);

Commonwealth v. Guess, 416 A.2d 1094, 1096 (Pa.Super. 1979) (“A

physician who examines the gunshot wounds suffered by a decedent may give

his opinion regarding the direction and distance from which such wounds were

inflicted though that physician is not qualified as a ballistics expert.”).

      We also discern no abuse of discretion in the trial court’s ruling that Dr.

Xu could opine that the shot that entered Mr. Eubanks’s head at the left ear

was fatal.

      [E]xpert testimony is incompetent if it lacks an adequate basis in
      fact. While an expert’s opinion need not be based on absolute
      certainty, an opinion based on mere possibilities is not competent
      evidence. This means that expert testimony cannot be based
      solely upon conjecture or surmise.           Rather, an expert’s
      assumptions must be based upon such facts as the jury would be
      warranted in finding from the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa.Super. 2015) (citation

omitted).

      Here, Dr. Xu indicated that, because different people respond differently

to wounds, he could not say whether the initial shot Mr. Eubanks sustained to

his head in his left ear would have been immediately fatal, or whether Mr.

Eubanks may have been able to move “a little bit” afterwards. N.T. Trial,

10/15-19/15, at 562-63. The opinion was not impermissible “conjecture or


                                      - 15 -
J-A30005-17


surmise.”   Cf. Gonzalez, 109 A.3d at 727 (affirming exclusion of expert

testimony that mental health conditions may have affected rape victim’s

perception and recollection). Rather, Dr. Xu explained that the bullet that

entered Mr. Eubanks’s left ear fractured his skull, traveled down from the front

to back, and “stopped at the central back part of the skull.” N.T. Trial, 10/15-

19/15, at 558. Even without expressly stating that his opinion that the shot

to the ear would have either killed Mr. Eubanks immediately, or allowed for

only minimal movement thereafter, was rendered to “a reasonable degree of

medical certainty,” it is clear from his testimony that his opinion was based

upon fact and not speculation. Commonwealth v. Spotz, 756 A.2d 1139,

1160-61 (Pa. 2000) (holding expert testimony was properly rendered to a

reasonable degree of medical certainty although the doctor did not use the

“magic words” where the doctor explained the medical basis for all of his

conclusions).

      Finally, to the extent that Dr. Xu’s testimony was beyond the scope of

his report, Appellant has not demonstrated that he was prejudiced. Dr. Xu’s

opinion was consistent with Appellant’s testimony that he was located in the

center of the Lexus’s rear seat, and Mr. Eubanks was in the front passenger

seat, when they struggled for the gun between them. According to Appellant’s

version of events, the gun muzzle would have been within three feet of Mr.

Eubanks when it fired. Further, Dr. Xu indicated that his descriptions of the

trajectories of the bullets were given “as if we are in the anatomically correct


                                     - 16 -
J-A30005-17


position,” and that he actually had no knowledge or opinion of the position of

Mr. Eubanks’s body at the time the wounds were inflicted. N.T. Trial, 10/15-

19/15, at. 561. Hence, this portion of his testimony did not negate Appellant’s

self-defense claim.

      Without any indication that Appellant was prejudiced by the testimony,

no relief is due. Commonwealth v. Poplawski, 130 A.3d 697, 718-19 (Pa.

2015) (holding claim that medical examiner’s testimony as to the order of

wounds and position of the victim’s body when he was shot was outside of the

scope of the report failed, although the report merely indicated the location of

injuries based upon standard anatomical position without opining as to which

wounds came first, where the defendant failed “to carry his burden of

explaining how this admission of evidence prejudiced his defense”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2018




                                     - 17 -
