J-A04037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GREGORIO ORROSTIETA                        :
                                               :
                      Appellant                :   No. 1686 MDA 2016

              Appeal from the Judgment of Sentence July 27, 2016
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0001507-2015


BEFORE:      STABILE, J., NICHOLS, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 02, 2018

        Appellant, Gregorio Orrostieta, appeals from the judgment of sentence

of twenty to forty years of incarceration, imposed July 27, 2016, following a

jury trial resulting in his conviction for murder of the third degree.1       We

affirm Appellant’s conviction, but we vacate the judgment of sentence and

remand for resentencing in compliance with 18 Pa.C.S. § 1106(c).

        The following factual and procedural history is garnered from the

record. On January 25, 2015, Karli Hall, the decedent, fractured her orbital

bone while in her dormitory room at Millersville University (“Millersville”),

where she attended school. Notes of Testimony Trial (N.T. Trial) at 514-23,



____________________________________________


1   18 Pa.C.S. § 2502(c).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04037-18


1205, 1268-73, 1292-93.       She had been drinking alcohol earlier in the

evening and did not recall how the injury occurred.

      On Thursday, February 5, 2015, Appellant travelled to Millersville to

visit Hall, his girlfriend, and he stayed all weekend.    Trial Court Opinion

(TCO), 12/7/16, at 6 (N.T. Trial at 440, 447-50, 460, 602-05).            After

spending Saturday night drinking, they had an argument and returned to

Hall’s dormitory room.

      At 5:22 a.m. on February 8, 2015, Appellant called 911 and said Hall

was unresponsive.    Id. at 4 (citing Commonwealth Exs. 1-2; N.T. Trial at

305-07, 351-52). When police arrived to Hall’s dorm room, Appellant was

standing over Hall who had dried blood over her face and body. Appellant’s

sweatshirt was ripped half-way down, exposing red scratch marks on his

chest. He had scratch marks on his face, a cut on his forehead, and blood

on his hands and pants. Appellant smelled of alcohol, but he spoke clearly

and was responsive to questions.

      An autopsy by Dr. Wayne Ross revealed that Hall had defensive

wounds, a skull fracture, internal bleeding, and thirty-nine different areas of

external trauma and that her chest was compressed back to the spine. Hall

“drowned in her own blood while being suffocated”; her cause of death was

strangulation and multiple traumatic injuries. The manner of her death was

homicide.




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      Prior to Appellant’s trial, the defense revealed that it intended to

present the testimony of forensic toxicologist Gary L. Lage, Ph.D. According

to Appellant, Dr. Lage would testify about the correlation between alcohol

intoxication and violence, alcohol-induced amnesia, how alcohol distorts

perception, and the effects of combining alcohol and caffeine, and he would

provide a “retrograde extrapolation” of Appellant’s blood alcohol content

(“BAC”) at the time of the incident.       Appellant further maintained that

Dr. Lage would also testify that Hall had BAC of 0.166% at the time of her

death and that people with a BAC between 0.1% and 0.2% experience

disorientation and the inability to control emotional and physical reactions to

stimuli.

      Dr. Lage’s report included the following statements:

      [Appellant] indicated that he slept on the floor and woke up at
      about 5:20 am and could not awaken Ms. Hall. . . . [Appellant]
      indicated that Ms. Hall attacked him with a pencil, striking him in
      the forehead. He said he backhanded her and she fell striking
      her head in a chair. After that, [Appellant] indicated he has no
      memory until finding Ms. Hall later that morning. It is unknown
      what [Appellant]’s blood alcohol level was in the early morning
      hours of February 8, 2015, but he was consuming alcohol at the
      same party as Ms. Hall, and he has indicated that he has a poor
      memory of the events that morning.

Dr. Lage’s Report, attached to Appellant’s Brief as App. “B”, at 4-5.

      The Commonwealth filed a motion to preclude Dr. Lage’s testimony.

In Appellant’s response to the Commonwealth’s motion, he wrote:             “High

doses of caffeine effects the individual who continues to drink because

caffeine diminishes the effects of the alcohol.       That’s why intoxicated


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persons are given coffee to sober up.            This is . . . common knowledge.”

Appellant’s Resp. to Commonwealth’s Multiple Mots. in Limine, 4/11/16, at

25.

        The trial court held a hearing on the Commonwealth’s motion, during

which Appellant’s counsel conceded that Appellant’s BAC at the time of the

incident was unknown, that there was no accepted scientific methodology to

determine      whether   an   individual    was   suffering      from   alcohol-induced

amnesia, and that the testimony would be used to bolster Appellant’s

credibility by suggesting that he could not recall the details of the killing

based     on   alcohol-induced    amnesia.         The   trial    court   granted   the

Commonwealth’s motion.

        During Appellant’s jury trial in April 2016, multiple individuals testified

about arguments between Appellant and Hall in the eleven months before

the incident. Evidence from Facebook showed that Appellant had previously

physically assaulted Hall, giving her a black eye on one occasion and leaving

scratches on her neck from choking her. Throughout the duration of their

relationship, Appellant repeatedly asked whether Hall was cheating on him

and frequently accused Hall of infidelity.

        Appellant offered the testimony of Dr. Peter Speth, who had been

retired from practice as a medical examiner for twenty-four years prior to

trial and whose New Jersey medical license had been suspended between

1998 and 2008. Dr. Speth opined that Hall probably died from a fall in her


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J-A04037-18


drunken state that precipitated positional asphyxia, as well as a severe

nosebleed caused by re-injury of her orbital bone.       Dr. Ross rejected this

theory, because Hall’s orbital bone was healing, her septum and nose were

intact, and she did not suffer a nosebleed.

      Throughout trial, defense counsel maintained that Appellant acted in

self-defense when, after an alcohol-fueled evening, he and Hall fought, and

Hall repeatedly stabbed him in the head with a pencil or pencils. See, e.g.,

N.T. Trial at 2292-93, 2297.         Defense counsel’s theory continued that,

during the ensuing struggle, Appellant accidentally struck Hall on her

previously fractured orbital bone.

      After testimony concluded, the trial court and counsel held a

conference to discuss the final jury charge.       At the conference, defense

counsel provided the trial court with a 2007 version of Pennsylvania

Suggested Standard Criminal Jury Instruction 15.2501B, “Criminal Homicide

Finding Lesser Type,” which did not include “progression” language that the

jury should first consider first-degree murder, then third-degree murder,

then voluntary manslaughter, and then involuntary manslaughter.

      During the charge itself, the trial court instructed the jury:

      a killing may be voluntary manslaughter but never murder[,
      even when] a defendant kills in the heat of passion following
      serious provocation or when he kills under an unreasonable
      mistaken belief in justifying circumstances.

      Accordingly, you can find malice and murder only if you are
      satisfied beyond a reasonable doubt that the defendant was not
      acting under a sudden and intense passion resulting from serious


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J-A04037-18


     provocation by the victim or under an unreasonable belief that
     the circumstances were such that, if they existed, would have
     justified the killing.

     A defendant acts under an intense passion if he acts under an
     emotion, such as anger, rage, sudden resentment or terror that
     is so strong that it renders him incapable of cool reflection. A
     defendant acts under a sudden passion if the time between the
     provocation and the killing is not long enough for the passion of
     a reasonable person to cool. A defendant’s passion results from
     serious provocation if it results from conduct or events that are
     sufficient to excite an intense passion in a reasonable person.

     Thus, the existence of intense passion turns on the actual mental
     and emotional state of the defendant, while the existence of
     sudden passion and serious provocation turn on how a
     reasonable person confronted by the same provocation would
     react.

     Remember, you can find malice and murder only if you are
     satisfied beyond a reasonable doubt the defendant was not
     acting under a sudden and intense passion resulting from serious
     provocation by the victim.

     The law recognizes the cumulative impact of a series of related
     events can lead to sudden passion and amount to serious
     provocation. The test is whether a reasonable person confronted
     with the same series of events would become so impassioned
     that he or she would be incapable of cool reflection.

     The reducing circumstances of a defendant acting under an
     unreasonable belief that the circumstances of the killing was
     justified applies where the defendant actually believed he was in
     immediate danger of death or serious bodily injury from Karlie
     Hall at the time he used deadly force, but his belief was
     unreasonable in light of the facts as they appeared to him at the
     time. . . . Note that the unreasonableness of the defendant’s
     belief is not an issue here.       The question is whether the
     defendant actually believed such an immediate danger existed at
     the time he used deadly force, and to prove malice through this
     element, the Commonwealth must prove the defendant did not
     actually hold such a belief.

Id. at 2386-89.



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J-A04037-18


     The trial court also gave the following instruction about finding lesser

types of criminal homicide than first-degree murder:

     Now, I have defined the elements of the four types of criminal
     homicide that you might possibly find in this case. Beginning
     with the most serious, they are first degree murder, third degree
     murder, voluntary manslaughter, and involuntary manslaughter.

     You have the right to bring a verdict finding the defendant not
     guilty or finding him guilty of one of these types of criminal
     homicide.

     It may help you remember each type of criminal homicide if I
     review some highlights. Murder requires malice, manslaughter
     does not. First degree murder requires a specific intent to kill;
     third degree murder is any other murder.                  Voluntary
     manslaughter is basically an intentional killing for which malice is
     not proven because of passion and provocation or an
     unreasonable, mistaken belief in justifying circumstances.
     Involuntary manslaughter requires a reckless or grossly
     negligent killing.

     To guide the deliberations, you may wish to consider each type
     of homicide in order, beginning with the most serious grade
     charged. For example, in this case you may wish to begin with
     the charge of first degree murder.

     ...

     If . . . you find the Commonwealth has not proven all of the
     elements of first degree murder beyond a reasonable doubt, you
     must find the defendant not guilty of that charge and go on to
     consider the next most serious type of homicide charged in this
     case, that being third degree murder.

     ...

     If you find the defendant guilty of that charge, you do not need
     to consider a verdict on any of the lesser degrees of homicide
     that I have defined for you, including voluntary or involuntary
     manslaughter.

     If, however, you find the Commonwealth has not proven all of
     the elements of third degree murder beyond a reasonable doubt,
     you must find the defendant not guilty of that charge and then


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J-A04037-18


      go on to consider the most – next most serious type of homicide,
      namely voluntary manslaughter.

      ...

      If you find the defendant guilty of that charge, you do not
      consider involuntary manslaughter.

      If, however, you find the Commonwealth has not proven all the
      elements of voluntary manslaughter beyond a reasonable doubt,
      you must then find the defendant not guilty of voluntary
      manslaughter and go on to consider the elements of involuntary
      manslaughter.

      If you proceed with your deliberations in this manner, you must
      remember that at every stage you must consider all of the
      evidence presented in determining whether the elements of that
      offense have been proven beyond a reasonable doubt.

Id. at 2398-2401. After the trial court completed the jury instructions but

before the jury retired to deliberate, defense counsel requested a sidebar

and placed an objection to this “progression” language on the record, which

the trial court overruled. Id. at 2406.

      Appellant was found guilty of third-degree murder. In June 2016, he

filed a post-trial motion seeking DNA analysis of blood found on a comforter,

rug, and blanket at the scene; Appellant’s motion was denied. In July 2016,

Appellant was sentenced to twenty to forty years’ imprisonment and

deferred the determination of restitution. Following a restitution hearing in

August 2016, Appellant was ordered to pay $14,936.71.

      In August 2016, Appellant timely filed a post-sentence motion

requesting the court modify his sentence, grant a new trial, or grant a

motion of acquittal. In September 2016, the court denied Appellant’s post-

sentence motion.

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J-A04037-18


        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement.2 The trial court issued a responsive opinion.

        Appellant presents the following questions for our review:

        1.    Where all parties agreed that alcohol played a huge part in
        this case, did the [trial c]ourt err in excluding the testimony of
        the defense toxicologist?

        2.     When the Commonwealth took the position at trial that
        there was little spilled blood from the victim on several bloody
        items at the scene, yet changed its position post-trial, was there
        prosecutorial misconduct where the amount of blood was a
        critical issue at trial?

        3.    Where the [trial c]ourt gave a progression charge to the
        jury which did not include the main theory of the defense, did the
        [c]ourt’s charge prejudice the defense and should the [c]ourt
        have granted a mistrial or provided some other curative
        measure?

Appellant’s Brief at 3.

                                  Expert Testimony

        Appellant contends that the trial court erred in excluding Dr. Lage’s

testimony.     Appellant’s Brief at 19.        Appellant argues that Dr. Lage would

have explained the effects of alcohol on violence and memory and the

“synergistic effects” of alcohol and caffeine.

        Our standard of review for the challenges to the admission of expert

testimony is as follows:

        The admission of expert testimony is a matter committed to the
        discretion of the trial court and will not be disturbed absent an
        abuse of that discretion. An abuse of discretion is not merely an
____________________________________________


2   Appellant abandoned a number of his arguments on appeal.



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J-A04037-18


     error of judgment, but if in reaching a conclusion the law is
     overridden or misapplied, or the judgment exercised is
     manifestly unreasonable, or the result of partiality, prejudice,
     bias or ill-will, as shown by the evidence or the record, discretion
     is abused.

Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations

and internal quotation marks omitted).

                           No Expertise Required

     Pa.R.E.   702   permits   expert    testimony   on   subjects   concerning

knowledge beyond that possessed by a layperson. As we have explained:

     [“]It is the job of the trial court to ‘assess the expert’s testimony
     to determine whether the expert’s testimony reflects the
     application of expertise or strays into matters of common
     knowledge.’ ” Snizavich v. Rohm & Haas Co., 83 A.3d 191,
     194 (Pa. Super. 2013) (citations to quoted authorities omitted).
     ...

        Admissible expert testimony that reflects the application of
        expertise requires more than simply having an expert offer
        a lay opinion. “Testimony does not become scientific
        knowledge merely because it was proffered by a scientist.”
        Likewise, expert testimony must be “based on more than
        mere personal belief,” and “must be supported by
        reference to facts, testimony or empirical data.”

     Id. at 195 (citations to quoted authorities omitted). Accordingly,
     we have stated the following test to distinguish between
     admissible expert testimony and inadmissible lay testimony by
     an expert:

        The exercise of scientific expertise requires inclusion of
        scientific authority and application of the authority to the
        specific facts at hand. Thus, the minimal threshold that
        expert testimony must meet to qualify as an expert
        opinion rather than merely an opinion expressed by an
        expert, is this: the proffered expert testimony must point
        to, rely on or cite some scientific authority—whether facts,
        empirical studies, or the expert’s own research—that the
        expert has applied to the facts at hand and which supports


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J-A04037-18


        the expert’s ultimate conclusion. When an expert opinion
        fails to include such authority, the trial court has no choice
        but to conclude that the expert opinion reflects nothing
        more than mere personal belief.

     Id. at 197.

Nobles, 150 A.3d at 114-15.

     Here, Appellant’s challenge fails, because the effects of alcohol on

memory and as a cause of violence do not require expert testimony. This

information is not beyond the knowledge of a layperson.           Additionally,

Appellant has admitted that the relationship between alcohol and caffeine

are common knowledge.       Appellant’s Resp. to Commonwealth’s Multiple

Mots. in Limine, 4/11/16, at 25. Thus, we find that the trial court did not

abuse its discretion in assessing that Dr. Lage’s proposed testimony did not

reflect the application of expertise but, instead, strayed into matters of

common knowledge. Nobles, 150 A.3d at 113-15; TCO at 22.

   Inclusion of Appellant’s Out-of-Court Statements in Dr. Lage’s Report

     Assuming that Dr. Lage’s testimony went beyond common knowledge,

we consider whether Appellant would have been permitted to present

Dr. Lage’s testimony in support of his self-defense claim.           Appellant

contends that, had Dr. Lage testified, he would have explained that, at the

time of her death, Hall tested positive for caffeine and had a BAC of 0.166%,

which was a level at which people become disoriented and unable to control

their emotional and physical reactions to stimuli.    Appellant’s Brief at 20

(citing Dr. Lage’s Report, attached thereto as App. “B”, at 3-4, 7-8).     The

allegation that Hall was irrational and out-of-control was intended to buoy

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J-A04037-18



defense counsel’s theory that Hall had violently attacked Appellant and that

he had accidentally killed her when he struck out in self-defense, hitting her

previously fractured orbital bone.   Id. at 24.   Appellant contends that the

trial court “wholly ignored” his argument that Dr. Lage’s testimony would not

only have explained Appellant’s behavior but also would have provided the

foundation for “how Ms. Hall acted.” Id. at 26.

      In Commonwealth v. Towles, 106 A.3d 591, 604 (Pa. 2014), the

appellant argued that the trial court improperly excluded his expert’s report

and abused its discretion by refusing to permit his expert to testify about all

the facts on which he relied in rendering his report.     The expert’s report

contained the non-testifying appellant’s narrative of events on the night of

murder and his self-reported alcohol and drug consumption. Id. at 605-06.

The Supreme Court of Pennsylvania held that the trial court properly

excluded the expert’s report and testimony:

      The trial court did not abuse its discretion in finding appellant's
      self-serving statements were not of a type reasonably relied on
      by experts in toxicology. There is a distinction between an
      expert using basic facts provided by laymen to form an expert
      opinion, versus one who simply parrots out-of-court statements
      in court, thereby acting as a conduit for hearsay. In this case,
      there were no toxicology screens or tests performed on
      appellant. The expert’s report was simply appellant’s firsthand
      narrative of the events on the night of the murder and a detailed
      account of his drug and alcohol consumption that night. Had the
      expert been permitted to testify to the facts contained in his
      report, he would have been merely relaying testimony appellant
      would have given had he taken the stand. Pennsylvania’s Rules
      of Evidence do not provide a mechanism for a criminal defendant
      to decline to testify and to avoid the rules of evidence by using
      an expert witness to introduce his story into the record.


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       Accordingly, it was proper for the trial court to exclude the
       report from the jury’s consideration and to prevent appellant’s
       statements from reaching the jury via the expert’s testimony.

Id. at 606.

       Here, Appellant also contends that the trial court improperly excluded

his expert’s report and testimony.             Similarly, Appellant did not testify, but

Dr. Lage’s report repeatedly included Appellant’s narrative of events – e.g.,

Appellant “indicated that he slept on the floor . . .”, Appellant “indicated

that . . .”, he “said he backhanded . . .”, Appellant “indicated he has no

memory . . .”, “and he has indicated that he has a poor memory . . .”

Dr. Lage’s Report, attached to Appellant’s Brief at App. “B”, at 4-5

(emphasis added) (quoted above). As in Towles, Appellant cannot use an

expert’s testimony and report to slip his story into the record via the

backdoor when he chose not to take the stand himself. 106 A.3d at 606.

Accordingly, just like in Towles, “it was proper for the trial court to exclude

the report from the jury’s consideration and to prevent [A]ppellant’s

statements from reaching the jury via the expert’s testimony.” Id.3
____________________________________________


3 Assuming arguendo that Dr. Lage had been permitted to testify, his
argument that Appellant was suffering from alcohol-induced amnesia would
have been belied by Appellant’s own discussion with police. As the trial
court summarized:

       Appellant . . . initially claimed he could not recall details of what
       happened the night of the murder until he was confronted by
       police with details they obtained from witnesses. Appellant then
       remembered more details but blamed Hall for starting a fight.
       When asked why he didn’t say this earlier Appellant did not
       blame alcohol consumption but stated it was because he knew it
(Footnote Continued Next Page)


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J-A04037-18



                            Prosecutorial Misconduct

      In the “Argument” section of his brief, Appellant argues that “the

Commonwealth committed prosecutorial misconduct or a Brady violation.”4

Appellant’s Brief at 35. However, Appellant makes no reference to a Brady

violation in his statement of questions involved. Id. at 3. “No question will

be considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.” Pa.R.A.P. 2116(a). As Appellant’s statement of

questions involved does not state or suggest a Brady claim, he has failed to

preserve this challenge, and we will only address his claim of prosecutorial

misconduct.5


(Footnote Continued) _______________________

      would not look good for him. Appellant initially claimed he did
      not hear the RA knock on the door after the altercation, before
      admitting he did hear the knock but did not answer because he
      was considering suicide.    Appellant claimed that after the
      confrontation everything got quiet and he next remembered
      waking up at 5:00 a.m.      However, evidence revealed that
      between 3:14 a.m. and 4:16 a.m., Appellant sat in the room
      next to Hall’s dead body and conducted a [G]oogle search for
      music, watched a YouTube video, and went to Hall’s Facebook
      page.

TCO at 21 n.19.

4 Brady v. Maryland, 373 U.S. 83, 86-89 (1963), held that a prosecution’s
withholding of information or evidence that is favorable to a criminal
defendant’s case violates the defendant’s due-process rights and that the
prosecution has a duty to disclose such information or evidence.
5 Assuming, for argument’s sake, that Appellant had preserved a Brady
challenge, we would agree with the trial court that no Brady violation
(Footnote Continued Next Page)


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J-A04037-18


      Here, Appellant appears to be arguing that the prosecution committed

misconduct by presenting a different argument to the trial court in response

to a post-trial motion than it did to the jury during trial. Appellant’s Brief at

35-37.

      “Prosecutorial misconduct occurs where the unavoidable effect of the

prosecutor’s actions is to prejudice the jury, forming in their minds fixed bias

and hostility towards the accused so as to hinder an objective weighing of

the evidence and impede the rendering of a true verdict.” Commonwealth

v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015).

      The prosecutor’s actions that Appellant is challenging occurred post-

trial. Thus, they could not have possibly prejudiced the jury, which was no

longer involved in the case.          See Graham, 109 A.3d at 736.       Hence,

Appellant’s claim of prosecutorial misconduct is meritless.

                                  Jury Instruction

      Finally, Appellant argues that the trial court --

      erred in giving a progression charge when it instructed the jury
      as to how the various charges of homicide should be considered.
(Footnote Continued) _______________________

occurred. See TCO at 13. The trial court opinion comprehensively discusses
and properly disposes of that question. See id. at 19-20 (finding: Appellant
claims a Brady violation occurred, because the Commonwealth may have
known the blood at the scene came from Hall; however, “[i]n the present
case, the Commonwealth did not suppress evidence regarding the source of
blood because there was no DNA testing conducted to make such a
determination”; and “Appellant was provided with equal access to the
evidence so he could have uncovered the source of the blood with
reasonable diligence”).



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      . . . [G]iven the fact that the jury returned with a verdict in
      about one and one-half hours after a nine-day trial, it appears
      clear that the jury did not consider all the charges and
      particularly the defenses in the case, especially given how the
      progression is worded.

Appellant’s Brief at 49.

      When reviewing the adequacy of a jury instruction, the Supreme Court

of Pennsylvania has instructed that “we must consider the charge in its

entirety to determine if it is fair and complete.   The trial court has broad

discretion in phrasing the charge and the instruction will not be found in

error if, taken as a whole, it adequately and accurately set forth the

applicable law.”   Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa.

2009) (citations omitted).

      The trial court held that Appellant’s challenge to the “progression

charge” was waived, because he did not object to it during the charge

conference. TCO at 27. We disagree. At the charge conference, defense

counsel believed that the trial court was going to give the 2007 version of

the criminal homicide finding lesser type instruction, which did not contain

the “progression” language at issue; thus, defense counsel had no reason to

object at the charge conference.     Additionally, according to Pa.R.Crim.P.

647(C): “No portions of the charge or admissions from the charge may be

assigned as error, unless specific objections are made thereto before the

jury retires to deliberate” (emphasis added). Here, defense counsel did

place its objection on the record before the jury retired to deliberate, N.T.



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Trial at 2406, and the objection was thus preserved. Pa.R.Crim.P. 647(C).

In its opinion, the trial court also asserted that the issue is waived “where

trial Counsel does not object when the misstatement could have been

corrected.” TCO at 28 (citing Commonwealth v. Brown, 134 A.2d 1097,

1108 (Pa. Super. 2016)).         However, since the jury had not yet begun its

deliberations when defense counsel objected, the alleged misstatement

could have been corrected. Brown, 134 A.2d at 1108; N.T. Trial at 2406.

For these reasons, we find that Appellant did not waive his challenge to the

criminal homicide finding lesser type instruction and will consider the merits

of his claim.6

       This Court has previously, repeatedly determined that, as a general

rule, progression charges are proper in homicide cases. Commonwealth v.

Loach, 618 A.2d 463, 464-66, 468-70 (Pa. Super. 1992) (en banc);

Commonwealth v. duPont, 730 A.2d 970, 985 (Pa. Super. 1999);

Commonwealth v. Sneeringer, 668 A.2d 1167, 1170 (Pa. Super. 1995);

Commonwealth v. Hart, 565 A.2d 1212, 1217 (Pa. Super. 1989).

       For example, in Hart, this Court affirmed the following charge:

       [I]f you find the Defendant guilty of murder of the first degree, it
       will not then be necessary to consider second degree, third
       degree or voluntary manslaughter. . . . If you find him guilty of
____________________________________________


6 “This Court is not bound by the rationale of the trial court, and we may
affirm the trial court on any basis.” Commonwealth v. Williams, 73 A.3d
609, 617 n.4 (Pa. Super. 2013) (citing In re Jacobs, 15 A.3d 509, 509 n.1
(Pa. Super. 2011)).



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      first degree murder, it will not be necessary to consider any of
      the other charges.

      If you find him not guilty of first degree but find him guilty of
      second degree, then the chairperson should write beside that
      charge guilty. It will not be necessary to consider third degree
      and manslaughter. . . .

      You will only consider voluntary manslaughter if you are satisfied
      the Commonwealth has not proven the Defendant guilty of any
      degrees of murder.

Id. at 1214 (emphasis omitted) (citation to the record omitted). This Court

en banc re-considered such a progression charge in Loach and approved of

the following jury charge:

      [I[f you find the Defendant guilty of murder of the first degree,
      you do not then go on to consider murder of the third degree or
      voluntary manslaughter. If, however, you find the Defendant
      not guilty of murder in the first degree, then you would go on to
      consider murder of the third degree. If you find him guilty of
      murder of the third degree, you don’t go on to consider
      voluntary manslaughter.

      If you find him not guilty of murder in the third degree, then you
      would go on to consider voluntary manslaughter and make that
      determination, guilty or not guilty.

618 A.2d at 465 (citation to the record omitted).

      The language quoted above from Hart and Loach is analogous to the

contested jury instruction in the current matter:

      If . . . you find the Commonwealth has not proven all of the
      elements of first degree murder beyond a reasonable doubt, you
      must find the defendant not guilty of that charge and go on to
      consider the next most serious type of homicide charged in this
      case, that being third degree murder.

      ...

      If you find the defendant guilty of that charge, you do not need
      to consider a verdict on any of the lesser degrees of homicide


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       that I have defined for you, including voluntary or involuntary
       manslaughter.

       If, however, you find the Commonwealth has not proven all of
       the elements of third degree murder beyond a reasonable doubt,
       you must find the defendant not guilty of that charge and then
       go on to consider the most – next most serious type of homicide,
       namely voluntary manslaughter.

       ...

       If you find the defendant guilty of that charge, you do not
       consider involuntary manslaughter.

       If, however, you find the Commonwealth has not proven all the
       elements of voluntary manslaughter beyond a reasonable doubt,
       you must then find the defendant not guilty of voluntary
       manslaughter and go on to consider the elements of involuntary
       manslaughter.

N.T. Trial at 2399-2400.7 As this Court has sanctioned similarly worded jury

instructions before, we normally would find no abuse of discretion by the

trial court in giving said instruction. See Daniels, 963 A.2d at 430; Loach,

618 A.2d at 464-66, 468-70; Hart, 565 A.2d at 1214, 1217.


____________________________________________


7 Moreover, Appellant’s contention that, “when it gave this progression
charge, the [trial c]ourt did not include involuntary manslaughter” is
contradicted by these notes of testimony. N.T. Trial at 2400 (“If you find the
defendant guilty of [voluntary manslaughter], you do not consider
involuntary manslaughter. If, however, you find the Commonwealth has not
proven all the elements of voluntary manslaughter beyond a reasonable
doubt, you must then find the defendant not guilty of voluntary
manslaughter and go on to consider the elements of involuntary
manslaughter.” (emphasis added)).        Furthermore, the trial court had
defined involuntary manslaughter in detail earlier in the instructions. Id. at
2390-91 (including three elements of offense, definitions of “reckless or
grossly negligent” conduct, and that all relevant facts and circumstances
must be considered when determining if conduct is reckless or grossly
negligent).



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      However, this Court has also cautioned:

      Whenever the trial judge gives a progression charge in a
      homicide case, he should accompany the charge with an
      instruction that makes clear to the jurors that they must take
      any evidence of “heat of passion” or “unreasonable belief” into
      account when initially determining whether the Commonwealth
      has established the malice element of murder beyond a
      reasonable doubt. Without proper instructions regarding malice,
      the jury might misinterpret the progression charge as mandating
      a conviction for murder despite the presence of mitigating
      evidence establishing “heat of passion” or “unreasonable belief”.

Id. at 1217–18 (footnote omitted).

      Here, the trial court gave an instruction clarifying to the jury that it

must take any evidence of heat of passion or unreasonable belief into

account. N.T. Trial at 2386-89 (quoted above). As a thorough and accurate

instruction on heat of passion and unreasonable belief was given by the trial

court, the inclusion of the progression charge thus was permissible.      See

Hart, 565 A.2d at 1217–18.

      As for Appellant’s argument that the fact that the jury returned a

verdict after deliberating for only about ninety minutes indicated that the

jury “did not consider all the charges and particularly the defenses in the

case,” Appellant’s Brief at 49, we find no case law – and Appellant provides

none – where a verdict is reversed, because the duration of the jury

deliberations was too short.    The question of the proper duration of jury

deliberations is one that rests within the sound discretion of the trial court,

whose decision will not be disturbed unless there is a showing that the court

abused its discretion or that the jury’s verdict was the product of coercion or


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fatigue, neither of which Appellant claims here.       Pa.R.Crim.P. 648(A);

Commonwealth v. Greer, 951 A.2d 346 (Pa. 2008).

      As for Appellant’s allegation that “the jury did not consider all the

charges and particularly the defenses in the case,” Appellant’s Brief at 49,

we acknowledge that, in “exercising our supervisory power, we direct our

trial judges to adopt and enforce procedures in all homicide cases which will

prevent the recording of a jury verdict of not guilty on lesser included

degrees of homicide when the jury returns a guilty verdict on a higher

degree.”    Commonwealth v. Terry, 521 A.2d 398, 410 (Pa. 1987).

Pursuant to Terry, id., the trial court’s instruction that the jury need not

consider the lesser degrees of criminal homicide once it had determined that

Appellant was guilty of some form of criminal homicide was proper, N.T. Trial

at 2398-2401, because it prevented the possibility of the jury recording a

verdict of not guilty on either of the lesser degrees of homicide after it had

returned a guilty verdict on murder of the third degree.

      Thus, after considering the jury instructions in their entirety, we

determine that they are fair and complete and accurately set forth the

applicable law. Daniels, 963 A.2d at 430 (Pa. 2009). For these reasons,

Appellant’s final challenge merits no relief.

                                  Sentencing

      “[I]t is well settled that this Court may address the legality of a

sentence sua sponte.” Commonwealth v. McCamey, 154 A.3d 352, 357


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(Pa. Super. 2017) (citing Commonwealth v. Infante, 63 A.3d 358, 363

(Pa. Super. 2013)).         “When reviewing the legality of a sentence, our

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

Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super. 2017).

       Here, the trial court sought to impose restitution as part of Appellant’s

direct sentence, as evidenced by the court’s reliance on 18 Pa.C.S. § 1106.

See TCO at 32-34.8 As our Supreme Court has explained:

       [R]estitution must properly be included in a sentence.
       Commonwealth v. Dinoia, 801 A.2d 1254, 1257 n.1 (Pa.
       Super. 2002); Commonwealth v. Torres, 579 A.2d 398, 401
       (Pa. Super. 1990). Section 1106(c)(2) provides that “[a]t the
       time of sentencing the court shall specify the amount and
       method of restitution.” 18 Pa.C.S. § 1106(c)(2). Further, “[i]t
       shall be the responsibility of the district attorneys of the
       respective counties to make a recommendation to the court at or
       prior to the time of sentencing as to the amount of restitution to
       be ordered; ... based upon information solicited by the district
       attorney and received from the victim.”       Id., [18 Pa.C.S.]
       § 1106(c)(4)(i).    In Dinoia, the Superior Court held these
       requirements “provide[ ] the defendant with certainty as to his
       sentence, and at the same time allow[ ]for subsequent
       modification [pursuant to § 1106(c)], if necessary.” Dinoia, at
       1257.



____________________________________________


8      Restitution is authorized under both the Crimes Code and under
       the Sentencing Code. The Crimes Code, in 18 Pa.C.S. § 1106,
       controls restitution as a direct sentence. The Sentencing Code,
       in 42 Pa.C.S. § 9754, permits a sentence of probation and offers
       a non-exclusive list of permissible conditions of probation,
       including restitution.

Commonwealth v. Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004).



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Commonwealth v. Dietrich, 970 A.2d 1131, 1134 (Pa. 2009) (some

formatting added). Failure to comply with Section 1106(c)(2) results in an

illegal sentence. Commonwealth v. Mariani, 869 A.2d 484, 485-86 (Pa.

Super. 2005) (invalidating trial court’s order at the sentencing hearing which

failed to specify both the amount and method of restitution and postponed

determining same until after sentencing hearing); Commonwealth v.

Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004) (citing Commonwealth

v. Dinoia, 801 A.2d 1257, 1257 n.1 (Pa. Super. 2002)) (same);

Commonwealth v. Torres, 579 A.2d 398, 401 (Pa. Super. 1990) (same).

Rather than setting the amount and method of restitution at the time of

sentencing, the trial court ordered a subsequent hearing to determine the

amount of restitution due. As the trial court failed to comply with Section

1106(c)(2), Appellant’s sentence is illegal.        Mariani, 869 A.2d at 486-87

(“[T]he illegality of one part invalidates the whole.”). When a disposition by

an appellate court alters the sentencing scheme, the entire sentence should

be vacated, and the matter remanded for resentencing. Deshong, 850 A.2d

at 714 (citing Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa.

1986); Commonwealth v. Farone, 808 A.2d 580 (Pa. Super. 2002)).

Accordingly,   we   vacate   the   judgment    of    sentence   and   remand   for

resentencing in compliance with 18 Pa.C.S. § 1106(c).

      Judgment vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2018




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