J-A23021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
            v.                           :
                                         :
JOHN COASTON,                            :
                                         :
                 Appellant               :           No. 701 WDA 2014

      Appeal from the Judgment of Sentence entered on April 3, 2014
           in the Court of Common Pleas of Allegheny County,
              Criminal Division, No. CP-02-CR-0014774-2012

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 14, 2015

     John Coaston (“Coaston”) appeals from the judgment of sentence

imposed following his convictions of murder of the second degree, robbery,

and criminal conspiracy (robbery).       See 18 Pa.C.S.A. §§ 2502(b);

3701(a)(1); 903. We affirm.

     On October 1, 2008, in the Hill District section of Pittsburgh, Justin

Fowler (“Fowler”) was shot in the back.      The shooting severed Fowler’s

spinal cord below his shoulders, resulting in paralysis below the arms. Leila

House (“House”) witnessed two black males wearing masks that only

covered a portion of their faces shoot Fowler.       House stated that the

assailants then went through Fowler’s pockets and took his money. House

called the police and later identified Coaston in a photo array as one of the

shooters.   Coaston was arrested with two other men, including Malik S.
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Williams (“Williams”).   Due to the fact that Fowler survived the shooting,

Coaston was charged with aggravated assault.      However, the charge was

withdrawn on November 19, 2008, because Fowler was uncooperative1 and

House was afraid to testify.

      On December 28, 2011, Detective Margaret Sherwood (“Detective

Sherwood”) responded to a call regarding a deceased person in an

apartment.     Detective   Sherwood noticed a strong      odor of a body

decomposing and observed Fowler on the floor of the apartment. Detective

Sherwood stated that Fowler’s body had decomposed and that his muscles

had atrophied from lack of use.     Detective Sherwood also observed that

Fowler had very large bed sores and that there were flies and maggots on

his body. Allegheny County Forensic Pathologist Dr. Beiyang Xu (“Beiyang”)

stated that Fowler died as a result of complications of paralysis caused by a

gunshot wound that severed his spine.      Xu ruled the manner of death a

homicide.

      On December 11, 2012, Coaston was charged with criminal homicide,

criminal conspiracy to commit homicide, robbery, and criminal conspiracy to

commit robbery. Coaston’s case was joined with that of Williams, who was

facing similar charges. The case proceeded to a jury trial in April 2013. The

jury found Coaston guilty of murder of the second degree, robbery, and

criminal conspiracy to commit robbery.    The jury acquitted Williams of all

1
 Fowler stated that he was going to “keep it in the streets,” and he did not
want to be labeled a “snitch.” N.T., 4/25/13, at 196, 201.


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charges. The trial court sentenced Coaston to forty to ninety-nine years in

prison on the murder conviction, a consecutive prison term of ten to twenty

years on the robbery conviction, and a consecutive prison term of ten to

twenty years on the conspiracy conviction.        Coaston filed a Motion for

Reconsideration, arguing, inter alia, that the robbery and murder sentences

should have merged.         The trial court re-sentenced Coaston to forty to

ninety-nine years in prison for the murder conviction and a consecutive

prison term of ten to twenty years for the conspiracy conviction.

      Coaston filed a timely Notice of Appeal, and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. The

trial court issued an Opinion.

      On appeal, Coaston raises the following questions for our review:

      1. Whether there was insufficient evidence to convict [Coaston]
         when the Commonwealth failed to prove beyond a reasonable
         doubt that the assault on [Fowler] was the direct and
         substantial cause of [Fowler’s] death?

      2. Whether the trial court abused its discretion in failing to
         sustain the objection to Exhibits 6-8 (photographs)?

      3. Whether [Coaston] received an illegal sentence when he was
         sentenced for both second-degree murder and criminal
         conspiracy to commit robbery, when those sentences should
         have merged for purposes of sentencing?

Brief for Appellant at 6.

      In his first claim, Coaston contends that the evidence was insufficient

to support his murder conviction.        Id. at 15.   Coaston argues that the

Commonwealth failed to demonstrate that Fowler’s October 2008 gunshot


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wound was the direct and substantial cause of his death.       Id. at 15, 24.

According to Coaston, the evidence suggested that Fowler’s death was

caused by his failure to take care of himself, including the fact that he was

malnourished and allegedly abused alcohol. Id. at 20-24; see also id. at

24 (wherein Coaston claims that Fowler’s physical and mental condition was

not so weakened, due to the injuries, that he could not take care of himself).

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2015) (citation

and brackets omitted).

      The Crimes Code defines murder of the second degree as follows:




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     (b) Murder of the second degree.--A criminal homicide
     constitutes murder of the second degree when it is committed
     while defendant was engaged as a principal or an accomplice in
     the perpetration of a felony.

18 Pa.C.S.A. § 2502(b).

     “It is undisputed that the Commonwealth must prove a direct causal

relationship between the acts of a defendant and the victim’s death.”

Commonwealth v. Fabian, 60 A.3d 146, 152 (Pa. Super. 2013) (citation

omitted). “To establish criminal causation, the Commonwealth must prove

that the defendant’s conduct was so directly and substantially linked to the

actual result as to give rise to the imposition of criminal liability.”

Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008).                 In

establishing criminal causation, the Commonwealth must fulfill a two-part

test. See Commonwealth v. Rementer, 598 A.2d 1300, 1305 (Pa. Super.

1991); see also 18 Pa.C.S.A. § 303(a).       “First, the defendant’s conduct

must be an antecedent, but for which the result in question would not have

occurred.” Nunn, 947 A.2d at 760; see also 18 Pa.C.S.A. § 303(a)(1). “A

victim’s death cannot be entirely attributable to other factors; rather, there

must exist a causal connection between the conduct and the result of

conduct; and causal connection requires something more than mere

coincidence as to time and place.”     Nunn, 947 A.2d at 760 (citation and

quotation marks omitted); see also Fabian, 60 A.3d at 152 (stating that

“so long as the defendant’s [conduct] started the chain of causation which

led to the victim’s death, criminal responsibility for the crime of homicide


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may properly be found.”) (citation omitted). “The second part of the test is

satisfied when the victim’s death is the natural or foreseeable consequence

of the defendant’s actions.” Nunn, 947 A.2d at 760. “[T]he results of the

defendant’s actions cannot be so extraordinarily remote or attenuated that it

would be unfair to hold the defendant criminally responsible.” Id.

     The trial court summarized the relevant evidence as follows:

     Detective [] Sherwood testified that she responded to the
     investigation of a deceased person on Chauncey Drive,
     Pittsburgh, Pennsylvania. She noticed a strong odor of a body
     decomposing and observed [Fowler] on the floor of the
     apartment.     She described numerous, used and unused,
     bandages and a wheelchair in the living area. [Fowler’s] body
     had large decubiti, bed sores, across his buttocks, hips, feet,
     shins and elbows. She knew the deceased suffered a gunshot to
     the back on October 6, 2008, and that his spinal cord was
     severed below the shoulders. … Several decubiti were identified
     on various parts of [Fowler’s] body, and that they were caused
     by pressure on the skin that is in a position for a long time,
     which causes the skin to break down resulting in bed sores.
     Numerous gauze bandages, used and unused, were observed
     along with seeping bandages throughout the apartment. She
     observed [Fowler] to be very thin with atrophied muscles.

                                    ***

     The Commonwealth called [] House, who testified that on
     October 1, 2008, she resided in the Bedford Housing
     Community, directly across from Chauncey Drive. While on the
     phone, and looking out her kitchen window, she saw a man on
     the steps in the courtyard. She observed two (2) black males
     run from a hallway to the top of a stairway. The two (2) men
     reached their hands out, [] House heard a pop and the man who
     was walking fell straight down. [Coaston] was observed going
     through [Fowler’s] pockets taking his money, after which both
     shooters fled the area. [] House made an in-court identification
     of the defendants. A prior pre-trial photo array was admitted as
     Exhibit 18, wherein … Coaston, was identified by [] House as the
     “short one with gun” on his picture. [] House testified that she


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      was sure that [Coaston] was one of the individuals who were
      standing over the stairs shooting at [Fowler]. …

      Detective Dale Canofari testified that he took measurements and
      photographed the scene of this shooting a couple weeks after
      the death of [] Fowler. Photographs were taken from [] House’s
      kitchen window toward the area in which she had observed the
      shooting of [Fowler]. The distance from the kitchen window to
      the scene of the shooting measured 44 feet.

      Detective Brian Weismantle testified that at the time of []
      Fowler’s shooting in 2008, he responded to the scene of the
      shooting. The detective testified that he identified the red shirt
      worn by [] Fowler. … He also verified that [] House identified []
      Coaston in a photo array, where she wrote “short one with gun”
      and signed it.

Trial Court Opinion, 11/6/14, at 3-5 (citations and footnote omitted).

      Additionally, Beiyang, a Forensic Pathologist with the Allegheny County

Medical Examiner’s Office, conducted an autopsy on Fowler’s body.          N.T.,

4/24/13, at 85, 87. Beiyang testified that Fowler had an “oval-shaped scar

on the right posterior shoulder [from] the remote gunshot entrance wound.”

Id. at 88. Beiyang stated that a projectile was left in the border of Fowler’s

chest wall.   Id. at 94-95.    Beiyang asserted that the shooting caused

Fowler’s spine to be severed between the T-1 and T-3 vertebra, which

rendered Fowler paralyzed from the arms down.            Id. at 92-94, 100.

Beiyang testified that multiple locations on Fowler’s body had deep decubitus

ulcerations, commonly known as pressure sores or bed sores, which were a

natural consequence of paralysis. Id. at 88-89, 102. Beiyang indicated that

even though Fowler did not take care of himself, the ulcerations would have

eventually developed because of his paralysis.     Id. at 102, 104-05, 108.


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Beiyang stated that Fowler only weighed 92 pounds at the time his body was

found, and that the low weight may have been caused by loss of muscle

mass, normal atrophy, and decomposition of the body. Id. at 103-05, 111.

Beiyang testified that while the alcohol level in Fowler’s body was consistent

with decomposition, he could not tell what Fowler’s blood alcohol level was

at the time of his death.    Id. at 109-13; see also id. at 113 (wherein

Beiyang testified that no drugs were found in Fowler’s body, but that drugs

dissipate over time).   Beiyang confirmed that the ulcerations, caused by

gunshot wounds that led to paralysis, resulted in Fowler’s death. Id. at 99-

100. Beiyang determined the cause of death to be a homicide. Id. at 100,

107.

       Based upon the foregoing evidence, viewed in a light most favorable to

the Commonwealth, we conclude that Coaston’s actions were the “but for”

cause of Fowler’s death. See Commonwealth v. Thompson, 660 A.2d 68,

70-71 (Pa. Super. 1995) (concluding that evidence was sufficient to support

appellant’s murder conviction where appellant assaulted a man, which

caused subdural hematomas, leading to the victim’s eventual death due to

pneumonia); Commonwealth v. Cartagena, 416 A.2d 560, 562 (Pa.

Super. 1979) (concluding that the evidence was sufficient to support the

murder conviction where appellant stabbed the victim, which caused

paralysis and eventually an infection from bed sores that killed the victim

one and one-half years after the stabbing).     Indeed, Coaston’s argument



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that Fowler did not take care of himself was not such an independent and

intervening act as to break the chain of causation.       See Cartagena, 416

A.2d at 563 (stating that the fact the victim did not cooperate in treating his

bed sores was “not such an intervening and independent act sufficient to

break the chain of causation or events between the stabbing and the

death.”).     Because   Fowler’s    death   was   a   foreseeable   and    natural

consequence of Coaston’s actions, we conclude that the evidence was

sufficient to support Coaston’s murder conviction.

      In his second claim, Coaston contends that the trial court abused its

discretion in admitting photographs of Fowler’s dead body.                Brief for

Appellant at 25. Coaston argues that while the photographs were redacted,

they were so graphic that they unduly prejudiced him at trial. Id. at 25, 27-

28, 31; see also id. at 28-29 (wherein Coaston states that the pictures

depicted Fowler’s body when the police found him, and Fowler’s body on the

medical examiner’s table).       Coaston claims that Beiyang was capable of

explaining the cause and manner of death without the admission of

photographs. Id. at 26, 31. Coaston asserts that he is entitled to a new

trial without the admission of the photographs. Id. at 31.

      Our standard of review regarding the admission of photographs of a

homicide victim is as follows:

      We will affirm a trial court’s admission of photographs absent an
      abuse of discretion. …




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     When considering the admissibility of photographs of a homicide
     victim, which by their very nature can be unpleasant, disturbing,
     and even brutal, the trial court must engage in a two-step
     analysis:

     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. Johnson, 42 A.3d 1017, 1033-34 (Pa. 2012) (citations

omitted).

     Here, the Commonwealth sought to introduce various photographs of

the victim at the apartment and during the autopsy. N.T., 4/24/13, at 4-7.

The trial court excluded many of the photographs because they were too

graphic and inflammatory. Id. at 5, 9-10, 15-16. However, the trial court

allowed the Commonwealth to introduce three photographs (Exhibits 6, 7,

and 8) of Fowler to show the ulcerations on his body, which the

Commonwealth argued were the cause of his death. Id. at 10, 21, 23-26;

see also id. at 10, 11-12, 18-19 (wherein the Commonwealth argued that

the photos were relevant to show Fowler’s ulcerations were the cause of his

death). Due to the graphic nature of the photographs, the Commonwealth

was required to redact two of the photographs deemed admissible. Id. at

18-21.

     Detective Sherwood testified that Exhibits 6 and 7 showed the

condition of Fowler’s body when it was found on December 28, 2011. Id. at


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70. Specifically, Detective Sherwood stated that the photographs displayed

the ulcerations on Fowler’s body. Id. 73-75, 79-80. Beiyang testified that

Exhibit 8 was an autopsy photograph that depicted various ulcerations on

Fowler’s body. Id. at 91-92. Beiyang stated that the ulcerations were the

cause of Fowler’s death. Id. at 99-100.

     The trial court gave the following instruction with regard to the

photographs:

     You saw some exhibits. Your recollection will control, and I don’t
     need to look it up, but there were several photos of [Fowler]. I
     believe 6, 7, and 8 may have been the numbers, but at any rate,
     you saw some photographs that were admitted into evidence for
     the purpose of showing the nature of the wounds, that [Fowler]
     had and showing conditions of the scene of the alleged crime
     which may help you understand the testimony of witnesses who
     testified about these events.

     It is not pleasant – and they were not pleasant photographs to
     look at. You should not let those photographs stir your emotions
     to the prejudice of the defendants in this case.

     Your verdict must be based on a rational and fair consideration
     of all of the evidence and not on passion or prejudice against the
     defendants, the Commonwealth, or anyone else connected with
     this case.

     Again, they were only designed and offered for the purpose of
     helping explain what the situation was at the time, even though
     they were – I don’t know the proper word; unpleasant is putting
     it mildly I would say.

N.T., 4/26/13, at 107-08.

     Here, despite the gruesome nature of the photographs, they were

probative in that they assisted the jury in understanding the circumstances

and cause of Fowler’s death. See Commonwealth v. Rush, 646 A.2d 557,


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560 (Pa. 1994) (stating that “the condition of the victim’s body provides

evidence of the assailant’s intent, and, even where the body’s condition can

be described through testimony from a medical examiner, such testimony

does not obviate the admissibility of photographs.”). Indeed, the trial court

carefully considered each photograph offered, and only admitted certain

photographs to aid the jury’s understanding of Fowler’s death in light of

Coaston’s defense. With regard to the prejudicial impact that Coaston may

have sustained, the trial court provided a cautionary instruction designed to

ameliorate bias in the minds of the jury and remind them of their duty to

serve in an impartial manner.        See N.T., 4/26/13, at 107-08; see also

Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (stating that it

is presumed that the jury will follow a trial court’s instructions). In light of

the probative value of each photograph, and the trial court’s cautionary

instruction, we conclude that the trial court did not abuse its discretion in

admitting the photographs.2 See Commonwealth v. Pestinikas, 617 A.2d

1339, 1347 (Pa. Super. 1992) (concluding that trial court did not abuse its

discretion in admitting photographs of the deceased victim, even though the

photographs were assumed to be inflammatory, because the trial court

issued a cautionary instruction warning the jury that they should not let the

photographs “stir up [their] emotions.”); see also Commonwealth v.

Spell, 28 A.3d 1274, 1281 (Pa. 2011) (noting that an appropriate


2
    After review, the cases cited by Coaston do not support his claim for relief.


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instruction regarding photographs of a homicide victim can minimize the

danger of inflaming the jury).

      In his final claim, Coaston contends that the trial court imposed an

illegal sentence because his sentences for murder and conspiracy should

have merged. Brief for Appellant at 32, 38, 41. Coaston points out that the

jury was instructed that he could be found guilty of murder under a theory of

accomplice liability, and the jury made no finding as to the theory under

which Coaston was convicted. Id. at 32-33, 37-38, 40-41. Coaston argues

that the definition of conspiracy is similar to accomplice liability, and

therefore the sentences should have been merged. Id. at 32, 38.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence.”     Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa. Super. 2012). “Therefore, our standard of

review is de novo and our scope of review is plenary.” Id.

      Whether offenses merge at sentencing implicates Section 9765 of the

Sentencing Code, which provides the following:

      § 9765. Merger of sentences

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765.




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     Here, the jury convicted Coaston of murder of the second degree and

criminal conspiracy to commit robbery. Pointedly, these crimes are distinct

criminal acts and the statutory elements of murder of the second degree are

plainly different from the elements of criminal conspiracy to commit robbery.

See Commonwealth v. Szakal, 50 A.3d 210, 214 n.5 (Pa. Super. 2012)

(noting that “the crime of criminal conspiracy to commit robbery did not

merge with the crime of second degree murder for sentencing purposes.”);

see also Quintua, 56 A.3d at 401 (stating that “there is no merger if each

offense requires proof of an element the other does not.”). Thus, the trial

court properly determined that the sentences should not merge.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015




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