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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

DAVID STAHL,

                      Appellee                No. 1937 WDA 2014


             Appeal from the Order Entered October 20, 2014
         In the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0001233-2012

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

DAVID FRANK STAHL,

                                              No. 1938 WDA 2014


                 Appeal from the Order October 20, 2014
         In the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0001233-2012

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

DAVID FRANK STAHL,

                      Appellant                 No. 1 WDA 2015
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             Appeal from the Judgment of Sentence June 27, 2014
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0001233-2012

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED NOVEMBER 29, 2016

        David Stahl appeals at docket number 1 WDA 2015 from the June 27,

2014 judgment of sentence of life imprisonment that the trial court imposed

after a jury convicted him of first-degree murder. The Commonwealth and

Appellant also filed appeals, which were docketed at 1937 WDA 2014 and

1938 WDA 2014, from an October 20, 2014 order awarding some, but not

all, of the restitution sought by the Commonwealth in this case. This panel

consolidated the appeals for disposition. We affirm.

        On June 27, 2014, a jury convicted Appellant of first-degree murder in

connection with the February 18, 2012 strangulation death of his wife

Rebecca Stahl.       Appellant and Rebecca lived on 803 Seton View Drive,

Greensburg. Rebecca’s close friend Debra Lynn Morrison testified that the

victim and Appellant had financial issues and Rebecca had told Ms. Morrison

many times that she was afraid of Appellant. N.T. Trial, 6/23-27/14, at 66.

Other evidence indicated that Rebecca and Appellant had a stormy

relationship.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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      In January 2012, the decedent had a hysterectomy and part of her

bowel removed.    Rebecca was still very weak from that operation the last

time that Ms. Morrison saw the victim alive, Friday, February 17, 2012, when

they lunched together. On Saturday, February 18, 2012, Rebecca had plans

to watch a movie with her sister Kelly Beltz that evening. Rebecca called at

noon, telling Ms. Beltz that she needed to speak with Appellant before she

could meet Ms. Beltz and had to wait for him to return from work. Ms. Betlz

explained that Appellant was controlling and that Rebecca did not go

anywhere or do anything without Appellant’s knowledge.       Rebecca neither

called to cancel plans nor arrived to watch the movie. After Ms. Beltz “didn’t

hear from her all day Sunday or Monday,” she telephoned Appellant on

Tuesday morning, February 21, 2012, and asked him where she was. Id. at

74. Appellant responded, “[A]ll he knows is [Rebecca] went to see a college

friend named Jodie, that’s all he knows.” Id. at 74.

      The morning of February 21, 2012, Rebecca’s father Kenneth Anderson

went to the state police barracks and reported her missing.     Pennsylvania

State Trooper Michael W. Laird spoke with him. Mr. Anderson said that the

family had last heard from the victim on February 18, 2012, and that was

highly unusual for her not to be in contact with them for three days. Mr.

Anderson was also concerned since “she had just previously within the last

few weeks had a major surgery consisting of a hysterectomy and part of her

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bowel being removed.”      Id. at 72.    At 12:30 p.m. on February 21, 2012,

Trooper Laird went to 803 Seton View Drive to speak with Appellant, who

reported that he last saw the victim the previous day and that they had

texted each other.     Id. at 76.    Appellant claimed that he had deleted the

texts.

         Trooper Laird went to his car and telephoned Ms. Beltz, who informed

him about Appellant’s controlling behavior.         Ms. Beltz also said that

Appellant and Rebecca argued when he drank.           The trooper immediately

returned and spoke with Appellant again. Appellant then admitted that he

went to a bar on Saturday, February 18, 2012, and that, afterwards, he

argued with his wife. Appellant maintained that after that squabble, he left

to go to another bar and returned home at around midnight, and Rebecca

was asleep. Appellant told Trooper Laird that on Sunday February 19, 2012,

he and Rebecca went for a drive together during the afternoon.

         With Appellant’s consent, Trooper Laird looked around the Seton View

Drive residence for Rebecca.        The trooper returned to the barracks, and,

after speaking with his supervisor, listed Rebecca as missing and, due to her

recent surgery, endangered. State Trooper Thomas Kaecher was assigned

to investigate the disappearance. He and State Trooper Robert Burford went

to Appellant’s house at 8:00 p.m. on Tuesday, February 21, 2012, and asked

Appellant for a follow-up interview about Rebecca’s whereabouts.

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      Appellant proffered the following details about the events of Saturday

February 18th through Tuesday February 21st. On February 18, 2012 he took

his daughter by his former wife to volleyball practice at about 9:00 a.m. and

returned home.    He and Rebecca argued about her damaged car which

needed an estimate for repairs. Between 10:30 and 11:00 a.m., Appellant

left, did some chores, and then went to two different bars. Appellant arrived

back at home at 5:00 p.m., when he again argued with Rebecca, this time

about his drinking. At around 6:30 p.m., Appellant left the residence to go

to the Whitney Club, a bar about twenty minutes from his home. He stayed

there, ignoring texts and calls from Rebecca, until 12:30 a.m. on Sunday

February 19th, when he came home again. Rebecca was asleep.

      Appellant continued his narrative to Troopers Kaecher and Burford as

follows.   On Sunday morning between 7:30 and 8:00 a.m., while Rebecca

was still sleeping, Appellant went and delivered materials to a job site.

Appellant was not able to give a job name or address. Appellant returned to

his residence around 2:00 p.m., when he and Rebecca went for a drive until

5:00 p.m.    They then watched television and went to bed.     The following

morning, Monday, February 20, 2012, Appellant went to a local Lowes to

purchase a bathroom door and drywall “because he said Rebecca wanted a

smooth celling as opposed to a textured ceiling” in the stairwell leading to

the basement. Id. at 97. Appellant purchased the door since the existing

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one “had a hole in it from a towel holder[.]” Id. Appellant then replaced

the bathroom door, and placed the old one on the curb for garbage pickup.

When Appellant left home again on Monday, February 20, 2012 at 11:30

a.m. to go to work, Rebecca was still there.

       During that February 21, 2012 interview, Appellant relayed to police

that the following then occurred.   When he returned home after work on

February 20, 2012, Rebecca was not at home. Appellant was not concerned

since he “had overheard a conversation – a phone conversation Rebecca had

with a friend named Jodie on Thursday before the weekend and he heard her

mention about getting together with Jodie on Monday so he figured that’s

where she was.”    Id. at 101. Appellant was unable to supply any further

information about Jodie, including a last name, address, or telephone

number. Appellant decided to go to a bar and returned home at 8:00 p.m.

Monday evening. When Appellant awoke on Tuesday February 21 st, Rebecca

still had not come back home. Appellant asserted that he called Rebecca’s

mother Tuesday morning but “her mother said not to call the police.” Id. at

103.

       Trooper Kaecher took notes of the foregoing statement, and Appellant

executed the notes.    That trooper noticed that medicine belonging to the

victim was in her home and that Appellant had scratches on his nose and

cheek and abrasions on the back of his hands. Appellant said that the dog

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jumped on him and that his hands were injured when he was fixing his car.

With consent, Trooper Kaecher examined the home, and it appeared as

though all Rebecca’s personal hygiene items and clothes were present.

Appellant, who appeared unconcerned about his wife’s absence, told the

officer that she had not packed anything.

        State Trooper Brian Kendgia, pursuant to a written consent-to-search,

went through Appellant’s home at 10:00 a.m. on Wednesday February 22,

2012.     He observed that there was one wall with new drywall in the

downstairs game room and a drywall patch on the ceiling to the stairs

leading to that area. The bathroom door was new.

        Police   conducted   an   investigation   to   verify   the   information   in

Appellant’s February 21, 2012 statement.           They returned to Appellant’s

residence at 8:00 p.m. on February 22, 2012, and administered Miranda

warnings to him.      After waiving those rights, Appellant conducted a tape-

recorded interview, which was transcribed and introduced as an exhibit.

Police challenged Appellant’s report that he left the bathroom door for

garbage collection outside his residence on Monday, February 21, 2012,

since they were told that there was no door or bag containing enough wood

to be a door.      Police informed Appellant that the man “who remembers

picking your garbage up . . . doesn’t recall any door that he had picked up.

He recalls picking up uh a few pieces of wood and uh a couple pieces of

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drywall.” Commonwealth Exhibit a 10 at (unnumbered page) 2.       Appellant

retracted his early statement concerning the door and told police that he

chopped up the door and used part of it as kindling.

      Police next confirmed that Appellant previously reported that he went

for a drive with Rebecca from approximately 2:00 to 5:00 p.m. on Sunday,

February 19, 2012.    After Appellant agreed that this was true, police said

that they had spoken with a bartender, Robert Leham, who told them that

Appellant had a beer at 3:00 p.m. on February 19, 2012, at the bar where

Mr. Leham worked. Mr. Leham stated that Appellant was alone. Appellant

responded that Rebecca remained in the car while he drank the beer.

      Police had obtained Rebecca’s telephone records and, contrary to

Appellant’s previous indication that he stopped sending texts to Rebecca on

Saturday afternoon, her telephone records established that Appellant

continually texted her until 7:00 p.m. that evening. Appellant then stopped

the interview.

      After being questioned by police at 8:00 p.m. on February 22, 2012,

Appellant went to a local bar and told two women that his wife had left him.

He gave one of them his wedding ring.

      In the meantime, Trooper Burford obtained a search warrant for 803

Seton View Drive.    In the basement freezer, police found garbage bags

containing some of Rebecca’s clothing and personal items, including a

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partially burnt driver’s license, as well as a man’s boots, socks, t-shirt, and

blue jeans.   The boots had dirt and bits of arborvitaes, which are bushes

cultivated for landscaping, on them.     Rebecca’s and Appellant’s cars were

both in the garage. Using luminol, a substance that renders blood particles

fluorescent, police discovered bloodstains in the following areas in the

house: 1) a small bloodstain on the bottom of the basement steps; 2) four

one-foot stains on the tiled basement hall floor; and 3) two stains on the

wall of the stairwell leading to the basement.      Police then applied leuco

crystal violet, which is another test that reveals the presence of blood, in the

bathroom. There was blood on the tile floor of the bathroom and at various

places on the carpet outside the bathroom.

      Police also saw that one basement wall had been replaced with new,

unpainted dry wall. In the basement, they also observed a wooden picture

that appeared to have blood on it and that some of the baseboard trim was

missing. The piece of removed trim with what appeared to be bloodstains

was discovered in another area of the house.

      On February 24, 2012, police obtained permission to examine a

location with many arborvitae bushes on Bell Memorial Church Road in Unity

Township. At 10:15 a.m., they discovered Rebecca’s body wrapped in clear

plastic and blue U-Haul moving blankets under the bushes. The body had

cuts and bruises. Appellant was arrested. On February 29, 2012, while in

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the local county jail, Appellant asked to speak to police.      He was again

advised of and waived his Miranda rights.         At that time, Appellant told

police that he killed Rebecca on Saturday, February 18, 2012, in self-

defense, after she tried to stab him with a knife.       He reported that he

panicked and hid her body in the bushes and threw away her purse and cell

phone.

     Dr. Cyril H. Wecht, a forensic pathologist, was utilized to introduce

autopsy photographs of the victim into evidence, and he explained what the

autopsy demonstrated. Rebecca had sustained numerous external injuries,

including a laceration on her scalp, bruises on her mouth and chest, and

ligature marks consistent with strangulation on her neck. Dr. Wecht opined

that the mouth injuries were caused by a punch and that bruises on the

victim’s head and chest were inflicted by either a blow or when she fell into

an object.

     Using the autopsy pictures, Dr. Wecht explained the nature of

Rebecca’s internal injuries, as follows.     There was hemorrhage under the

surface of her scalp on the left side of the skull. Dr. Wecht showed the jury

this subscapular hemorrhage, which supported his opinion that her head was

struck by either a blow or an object. The internal organs revealed numerous

areas of hemorrhage in soft tissues and muscles of the neck, around the

larynx and entrance to the esophagus, under the sternum, and in tissue

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under the breast plate.   By referencing pictures of bleeding in Rebecca’s

internal organs, Dr. Wecht supported his conclusion that she had either

suffered a severe punch to the chest area or fallen violently against

something. Rebecca had a fracture of a bone in the neck. Based upon the

amount of force applied to the neck, as evidenced by the external and

internal injuries shown in the pictures, Dr. Wecht opined that, the victim

died of “asphyxiation due to manual strangulation.”       Id. at 347.     He

characterized the force applied to Rebecca’s neck as extreme.

      Ashlee Mangan was qualified as an expert in serology, which pertains

to the examination of biological fluids including blood. She obtained a blood

sample and fingernail clippings from Rebecca. In addition, police gave her:

1) vaginal, oral and anal swabs from Rebecca; 2) fibers from the basement

stairwell carpet; 3) the items of male clothing found in Appellant’s basement

freezer; 4) a men’s hoodie found in the house; 5) the section of wood trim;

6) the painting retrieved from the downstairs game room; and 7) a blood

sample from Appellant.    The two blood samples were subjected to DNA

analysis.

      Ms. Mangan reported that the swabs were negative for the presence of

semen and blood so she concluded that the victim had not been raped. The

male hoodie had blood on the left pocket, sleeve, and cuff, and the blue

jeans had blood in different areas on both legs. There was also blood on the

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wood trim, wooden frame of the picture, carpet fibers, socks, and on the

fingernail clippings.

      Alex Glessner was qualified as an expert in conducting DNA analysis

and performed analyses of the victim’s blood, Appellant’s blood, and the

bloodstained items described by Ms. Mangan. Mr. Glessner concluded that

the blood on the carpet fibers, the wooden trim, and the wooden frame

belonged to Appellant, that Rebecca’s fingernails and the sock had a

combination of both her and Appellant’s blood, and that the bloodstains on

the male hoodie and jeans were from Rebecca.

      Based upon this proof, the jury convicted Appellant of first-degree

murder on June 27, 2014, and he was sentenced immediately to life

imprisonment, costs, and an indeterminate amount of restitution.              The

Commonwealth filed a timely motion to modify the sentence of restitution,

and   Appellant   countered   with    a   timely   post-sentence   motion.   After

conducting hearings, on October 20, 2014, the trial court ordered Appellant

to pay restitution in the amount of $14,116.55, which represented Rebecca’s

funeral costs, but it denied the Commonwealth’s request to impose over

$60,000 in restitution for various expenses purportedly associated with the

administration of Rebecca’s estate.

      Both the Commonwealth and Appellant appealed from the October 20,

2014 restitution award, and, after his post-sentence motion was denied,

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Appellant filed a direct appeal from the judgment of sentence of life

imprisonment. In order to determine if Appellant is entitled to a new trial,

thereby nullifying the restitution award, we first address the issues

presented in Appellant’s direct appeal:

           I. Whether the trial court erred when it allowed the
      Commonwealth to introduce thirty-four photographs depicting
      the victim's injuries, including photographs of the victim's
      organs which were taken during the autopsy.

            II. Whether the trial court erred when it instructed the
      jury as to a time frame regarding the element of intent.

Appellant’s brief at 1 WDA 2005, at 4.

      Appellant’s first position is that the trial court erroneously admitted

into evidence color autopsy photographs depicting the victim’s brain, neck

and tongue, exposed gums, and interior chest wall. Appellant’s brief at 9.

Initially, we outline our standard of review:

            Photographs of a murder victim are not per se
      inadmissible.   In reviewing a challenge to the trial court's
      admission of photographs, we employ the abuse of discretion
      standard. A trial court must engage in the following two-step
      analysis when considering the admissibility of photographs of
      homicide victims:

             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.



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Commonwealth v. Haney, 131 A.3d 24, 37 (Pa. 2015) (citations omitted).

      In Haney, a new trial was not granted even though nine color

photographs of a child’s body were introduced into evidence.                The

photographs were determined to be relevant because they depicted the

injuries sustained by the victim to prove that the defendant, who was

convicted of first-degree murder and sentenced to death, beat his victim

with the requisite mens rea, specific intent. Noting that autopsy pictures are

often relevant to the issue of specific intent, our Supreme Court found that

the evidentiary value of the pictures outweighed the likelihood of inflaming

the passions of the jurors.

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

our High Court concluded that the trial court in a murder case did not abuse

its discretion in permitting into evidence twelve photographs, which included

a depiction of the victim’s liver, of a two-year-old’s injuries. Once again, it

was ruled that the images were pertinent to establish the nature and extent

of the injuries sustained by the victim and constituted direct proof of the

defendant’s specific intent to kill.

      In Commonwealth v. Watkins, 108 A.3d 692, 707 (Pa. 2014), the

Court also visited, in the PCRA context, the issue of whether autopsy

photographs admitted into evidence required the grant of a new trial.         It

held that direct-appeal counsel was not ineffective for failing to litigate that

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the pictures were improperly admitted into evidence, despite the fact that

they were shocking as they showed a nine-year-old boy and eighteen-week-

old   female    infant.        The   Watkins    Court     stated   that,   even     though

“photographs of a homicide victim can be unpleasant, disturbing, and

brutal,” it is unnecessary “to so overextend an attempt to sanitize the

evidence of the condition of the body as to deprive the Commonwealth of

opportunities of proof in support of the onerous burden of proof beyond a

reasonable doubt.” Id. at 708 (citation omitted). These three cases are just

the latest in a long line of decisions wherein our Supreme Court has refused

to grant a new trial after a first-degree murder conviction based upon the

admission      of    graphic    photographs    of   a   victim’s   body.      See    e.g.,

Commonwealth v. Pruitt, 951 A.2d 307 (Pa. 2008); Commonwealth v.

Tharp, 830 A.2d 519 (Pa. 2003).

      In the present case, before trial, Appellant objected to the introduction

of nineteen autopsy photographs.          The trial court refused to allow four of

those pictures to be shown to the jury but concluded that, “The remaining

photographs         clearly   demonstrated    essential    evidentiary     value,   clearly

outweighing any potential for prejudice.”           Trial Court Opinion, 2/19/15, at

10. Additionally, the trial court cautioned the jurors about the photographs,

advising them “not to let your emotions be inflamed by seeing these. They




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are being admitted for a purpose and that is so when Dr. Cyril Wecht

testifies he can tell you about his autopsy[.]” N.T. Trial, 6/23-27/14, at 291.

      Dr. Wecht carefully linked each picture to an explanation of the injuries

suffered by the victim and reported how the photograph supported his

conclusions about the nature of the victim’s wounds.          While Appellant

suggests that the picture of the brain was introduced merely to show that it

was swollen due to the strangulation, we disagree. Dr. Wecht indicated that

there was an injury to the head consistent with either a punch or her head

striking something during a fall. He referenced a hemorrhage on the brain

shown in a photograph in order to prove this fact.        The pictures of the

internal injuries suffered by Rebecca to her chest area were likewise

introduced to demonstrate that she either sustained a severe blow in that

area or powerfully struck an object. The neck and mouth photographs were

displayed to prove that Appellant’s strangulation of the victim was

particularly brutal.

      We have viewed the photographs, and, while they are graphic, we

cannot conclude that the trial court abused its discretion in admitting them.

They demonstrated the viciousness of Appellant’s attack on his wife for

purposes of establishing that Appellant acted with specific intent to kill

Rebecca. Given that Appellant’s final statement to police raised the specter

of self-defense, which Appellant exploited during closing remarks, the

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ferocity of the beating and wounds suffered by Rebecca became particularly

relevant to his specific intent. Haney, supra at 38 (where defense was that

child victim was clumsy and injuries were self-inflicted by accidental falls,

“photographs, while troubling to view, were admissible to explain the nature

and extent” of the injuries and the severity of the defendant’s attack on the

boy so as to prove specific intent); Watkins, supra (no abuse of discretion

in admitting photographs of autopsy during forensic pathologist’s testimony

so that witness could explain his findings to the jury, especially since jury

was instructed specifically as to evidentiary use of photographs and not to

allow emotional impact of pictures to sway it against defendant).

       Appellant also posits that Dr. Wecht’s testimony would have been

sufficient to establish the nature of the injuries sustained by Rebecca and

that   the   photographs   therefore     were   of   limited   evidentiary   value.

Appellant’s brief at 10.   In Haney, supra, the defendant raised the same

argument, maintaining that the photographs of the dead victim were

cumulative to the testimony of the medical examiners.            In rejecting that

position, our High Court noted:

       This Court consistently has held, however, that “the fact that a
       medical examiner can describe the victim's wounds to the jury
       does not render photographs of those wounds irrelevant.”
       Commonwealth v. Karenbauer, 552 Pa. 420, 443, 715 A.2d
       1086, 1097 (1998) (citation omitted); See [Commonwealth
       v.] Johnson, 615 Pa. [354,] 384, 42 A.3d [1017,] 1034 [(2012]
       (“Even if the nurse and the pathologist could have testified as to

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      these injuries, a witness's ability to testify as to the condition of
      the body does not render photographs per se inadmissible.”).

Haney, supra at 38. Hence, we conclude that Appellant is not entitled to a

new trial due to the admission of the autopsy photographs.

      Appellant’s second position is that the trial court improperly instructed

the jury that specific intent to kill can be formed in any amount of time. We

first elucidate the appropriate standard of review:

          When evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Roane, 142 A.3d 79, 95 (Pa.Super. 2016) (citation

omitted).

      Appellant’s complaint concerns a jury instruction given in response to

the jury’s request that the court re-instruct on the elements of first-degree

and third-degree murder. The Court responded in pertinent part:

            [THE COURT:] I guess to summarize it. First degree he
      intended and that intent premeditation it can be any length of
      time. It doesn’t have to be any particular length of time. It can
      be the day before, it could be an hour before, it could be a
      minute before, it could be two seconds before. That is first.

            ....



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            Does everybody agree to that? Is there anything else?

            [DEFENSE COUNSEL]:         The    intent   to   kill   requires   a
      conscious forming.

            THE COURT: The first degree conscious forming of that
      intent does not require any particular length of time.

N.T. Trial, 6/23-27/14, at 953.

      Herein, Appellant objects to the court’s suggestion that there is no

period confining when specific intent can be formed.                 However, this

statement of the law was correct:

             There are three elements of first-degree murder: (i) a
      human being was unlawfully killed; (2) the defendant was
      responsible for the killing; and (3) the defendant acted with
      malice and a specific intent to kill. 18 Pa.C.S. § 2502(a);
      Commonwealth v. Houser, 610 Pa. 264, 18 A.3d 1128, 1133
      (2011). As set forth in the third element, first-degree murder is
      an intentional killing, i.e., a “willful, deliberate and premeditated
      killing.” 18 Pa.C.S. § 2502(a) and (d). “Premeditation and
      deliberation exist whenever the assailant possesses the
      conscious purpose to bring about death.” Commonwealth v.
      Drumheller, 570 Pa. 117, 808 A.2d 893, 910 (2002). The law
      does not require a lengthy period of premeditation;
      indeed, the design to kill can be formulated in a fraction
      of a second. Commonwealth v. Rivera, 603 Pa. 340, 983
      A.2d 1211, 1220 (2009)[.]

Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013) (emphasis

added).   Hence, we reject Appellant’s position that the trial court erred in

instructing the jury that specific intent to kill can be formed in a month, a

week, a day, or in seconds.




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      We now address the appeals pertaining to restitution.          The issues

involve mandatory restitution, as outlined in 18 Pa.C.S. 1106.       “Questions

regarding the court's authority with respect to ordering restitution implicate

the legality of a sentence. . . . . When a trial court imposes a sentence

outside of the legal parameters prescribed by the applicable statute, the

sentence    is      illegal    and   should   be    remanded   for   correction.”

Commonwealth v. Burwell, 58 A.3d 790, 792–93 (Pa.Super. 2012)

(citations omitted).          Interpretation of § 1106 “also involves statutory

construction and is, therefore, purely a question of law; questions of law are

subject to plenary and de novo review.” Id. at 793. Section 1106 sets forth

in relevant part:

      (a) General rule.--Upon conviction for any crime . . . wherein
      the victim suffered personal injury directly resulting from the
      crime, the offender shall be sentenced to make restitution in
      addition to the punishment prescribed therefor.
      ....

      (c) Mandatory restitution.--

      (1) The court shall order full restitution:

      (i) Regardless of the current financial resources of the
      defendant, so as to provide the victim with the fullest
      compensation for the loss. . . .

18 Pa.C.S. § 1106 (emphasis added).

      The Commonwealth retains the burden of proof to establish its

entitlement to restitution.       Commonwealth v. Atanasio, 997 A.2d 1181,

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1183 (Pa.Super. 2010).      The record must contain a “factual basis for the

appropriate amount of restitution,” and the “amount of the restitution award

may not be excessive or speculative.” Id. It is settled law that “although it

is mandatory under section 1106(c) to award full restitution, it is still

necessary that the amount of the ‘full restitution’ be determined under the

adversarial system with considerations of due process.” Id. (citation and

quotation marks omitted).

     Herein, the following evidence was adduced at the hearings held on

this question. Thomas Anderson was the Commonwealth’s sole witness. Mr.

Anderson was Rebecca’s brother and an attorney employed by the law firm

of Thomson, Rhodes, and Cowie, located in Pittsburgh.         Mr. Anderson

specified and documented that the estate incurred funeral costs in the

amount of $14,116.55. Mr. Anderson asked for an additional $46,535.10 in

legal fees, reporting that some of the work that resulted in this fee was

performed by another lawyer and paralegal in his firm. Mr. Anderson did not

supply any proof as to the value of the probate and non-probate assets.

Finally, Mr. Anderson requested restitution for various other expenses that

he characterized as administrative expenses.      Specifically, Mr. Anderson

sought reimbursement for time and expenses incurred by Rebecca’s father,

mother, sister and himself in connection with “care and maintenance of the

house” and “dealing with any criminal proceedings that would not have

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occurred but for the murder in this case.”         N.T. Hearing, 8/11/14, at 11.

Thus, these expenses were for work that Rebecca’s father, sister, mother,

and Mr. Anderson performed at 803 Seton View Drive and for time spent

attending the criminal trial in the following amounts: $11,080.00 for

Rebecca’s father, $677.28 for her mother, $4,080 for Kelly Beltz, and

$380.00 for Thomas himself. Id. at 15. Thus, in addition to the $14,116.55

in funeral expenses, the Commonwealth asked for $62,752.38.

       The trial court ascertained that Thomas Anderson personally billed

$15,799 of the $46,535.10 for legal services. In addition, “almost $10,000

[was] charged under the heading of Monitoring the Criminal Trial.”        Id. at

20.   Mr. Anderson acknowledged that this figure represented charges for

going to the present criminal trial, and he maintained that he attended it as

a lawyer in order to determine the applicability of the Slayer’s Act. 1 The trial

court pointed out that all that was needed to trigger that statute was a

finding the Appellant was guilty of murdering Rebecca, and it rejected the

____________________________________________


1
   That statute provides, “No slayer shall in any way acquire any property or
receive any benefit as the result of the death of the decedent, but such
property shall pass as provided in the sections following.” 20 Pa.C.S. §
8802. A slayer is a “person who participates, either as a principal or as an
accessory before the fact, in the willful and unlawful killing of any other
person,” and property “[i]ncludes any real and personal property and any
right or interest therein.” 20 Pa.C.S. § 8801.




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assertion that the fees that Mr. Anderson charged for attending this criminal

trial were necessary to administer the estate.

      When asked about the large amount of fees requested, after excluding

the $10,000, Mr. Anderson maintained that a significant amount of legal

work was needed with regard to distribution of Rebecca’s life insurance and

pension since the Slayer’s Act prevented Appellant from receiving those

assets.   The trial court again discounted this assertion, noting that the

simple fact that Appellant was convicted of first-degree murder herein was

sufficient to ensure proper distribution of the pension and life insurance. Mr.

Anderson also admitted that the estate never paid the $46,535.10 in legal

fees outlined in his submitted bill and that the estate was settled by a family

settlement agreement. Id. at 23, 22.

      The trial court granted restitution for the funeral and burial expenses

of $14,116.55, but denied the claim for $62,752.38, including the legal fees

in the amount of $46,535.10.       In its appeal, the Commonwealth presents

this issue: “Where the defendant was convicted of killing his wife, Rebecca

Stahl, did the court err in refusing to order the defendant to pay restitution

to the estate of Rebecca Stahl for legal fees incurred in administration of her

estate?” Commonwealth’s brief at 1938 WDA 2014 at 7. In his appeal from

the   restitution   award,   Appellant   maintains,   “Restitution   for   funeral,

cemet[e]ry, and burial expenses cannot be ordered as part of a sentence

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pursuant to Section 1106.” Appellant’s brief at 1937 WDA 2014 at 4. We

can readily dispose of Appellant’s position since in Commonwealth v.

Lebarre, 961 A.2d 176, 177 (2008), we specifically held that restitution for

funeral expenses incurred for a homicide victim can be awarded to the

estate of that victim.

      We find it more difficult to decipher the Commonwealth’s averments

on appeal. Apparently acknowledging that the $46,535 will be paid to Mr.

Anderson, a family member, for work performed by himself and members of

his law firm, the Commonwealth argues that a family member can be a

victim under § 1106.     However, we have specifically rejected this position

when we held in Commonwealth v. Langston, 904 A.2d 917, 924

(Pa.Super. 2006), that: “The mandatory payment of restitution pursuant to

Section 1106 of the Crimes Code is limited to the direct victim and not to

third parties, including family members, who shoulder the burden of the

victim's losses.” We therefore disagree with the Commonwealth’s assertion

that a family member can be a victim under § 1106, as this panel is bound

by Langston.

      Additionally, the Commonwealth fails to acknowledge the weakness

involved in Thomas Anderson’s claim for legal fees.          The trial court

specifically discounted Mr. Anderson’s position that the $10,000 in “legal

fees” that he charged to attend the criminal trial herein could be properly

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characterized as associated with the administration of the estate. The trial

court likewise refused to credit Mr. Andersons’ testimony that large legal

fees of $36,535 not associated with his trial attendance were warranted due

to complexities associated with the application of the Slayer’s Act.

      There was a house to sell, an insurance policy to recover, and a death

benefit from a pension to obtain. No values were proffered for those assets.

The Slayer’s Act was triggered upon Appellant’s conviction herein, Rebecca’s

family members did the work necessary to prepare the house for sale, and

the estate was settled by a family settlement agreement.               Given the

evidence presented at the restitution hearing and the trial court’s rejection

of the reasonableness of nearly all of the legal fees submitted for payment,

we conclude that the Commonwealth simply failed to carry its burden of

proof that the legal fees were reasonable, as required by the case law.

      Finally, and most critically, Mr. Anderson admitted that the estate

never paid the $46,535 in fees, and there was no indication that the estate

will actually pay them. Section 1106 permits recover only for a loss. Given

the facts at issue herein, we believe that there was no loss by the estate

because fees in question were not paid.

      At 1 WDA 2015, the judgment of sentence is affirmed. At 1937 WDA

2014 and 1938 WDA 2014, the order is affirmed.

      Judge Strassburger joins the memorandum.

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     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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